The following definitions apply unless in-consistent with the
context:
means a person who is required to or chooses to finance some
or all of the cost of a public street, water or sewer improvement
such that it will be available to provide service to property, other
than property owned by the person, and who applies to the city for
reimbursement for the expense of the improvement.
means any final land use decision, limited land use decision,
expedited land division decision, partition, subdivision, planned
unit development, applicable public or private infrastructure permit,
or driveway permit.
means a natural person, the person's heirs, executors, administrators
or assigns; a firm, partnership, corporation, association or legal
entity; the person's successors or assigns; and any agent, employee,
or representative thereof.
means any construction, reconstruction or upgrading of public
water, stormwater, sanitary sewer, or street improvements.
means an agreement between the developer and the city that
is authorized by the city council and provides for the installation
of, and reimbursement for, the cost of public improvements.
means the area which is determined by the city council to
derive a benefit from the construction of public improvements, financed
in whole, or in part, by the developer.
means a fee described in the reimbursement agreement and
set by city council resolution that is required to be paid by a person
who develops property that benefits from the public improvement.
means a resolution approved by city council that determines
the boundaries of the reimbursement district and the methodology for
allocating a reimbursement fee to each benefitted property that considers
the cost of reimbursing the developer for financing the construction
of the public improvement(s).
(Ord. 6254 § 1, 2018)
Nothing in this subchapter is intended to limit the authority
of the city to submit an application and serve as the developer for
the purposes of establishing a reimbursement district.
(Ord. 6281 § 1, 2018)
A.
A person
who is required to or chooses to finance some or all of the cost of
a public improvement that will be available to provide service to
property other than the person's property may by written application
filed with the manager request that the city establish a reimbursement
district. The public improvement must be of a size greater than would
otherwise ordinarily be required in connection with an application
for a building permit or development permit or must be available to
provide service to property other than property owned by the developer,
so that the public will benefit from the improvement.
B.
The
application shall be accompanied by an application fee, set by council
resolution that is reasonably calculated to cover the city's cost
of preparing the manager's report and notice pursuant to this subchapter.
C.
The
application shall include the following:
1.
A
written description of the location, type, and size of each public
improvement for which reimbursement is sought.
2.
A
map that shows the boundaries of the proposed reimbursement district,
the legal boundary of each property in the proposed district, and
the tax lot number and size of each property.
3.
A
map that shows the properties to be included in the proposed reimbursement
district; the zoning designation, the front footage and square footage
of each property, or similar data necessary for calculating the apportionment
of the cost; the property or properties owned by the developer; and
the names and mailing addresses of owners of other properties to be
included in the proposed reimbursement district.
4.
The
actual or estimated cost of each public improvement(s) prepared by
an architect, engineer or other licensed professional in accordance
with established eligibility criteria and guidelines.
D.
The
application may be submitted to the city prior to the installation
of the public improvement but not later than 180 days after completion
and acceptance of the public improvements by the city. This time period
may be extended by the manager for good cause shown.
(Ord. 6254 § 1, 2018)
The manager shall review an application to establish a reimbursement
district and evaluate whether the district should be formed. The manager
may require that the applicant provide additional information to assist
in the evaluation. The manager shall prepare a written report for
the council that considers and makes a recommendation concerning each
of the following factors:
A.
Whether
the developer will finance, or has financed some or all of the cost
of the public improvement, thereby making service available to property
other than the developer's property.
B.
The
size and boundary of the reimbursement district.
C.
The
actual or estimated cost of the public improvement(s) serving the
area of the proposed reimbursement district and the portion of the
cost for which the developer should be reimbursed for each public
improvement.
D.
A methodology
for spreading the cost among the properties within the reimbursement
district and, where appropriate, defining a "unit" for applying the
reimbursement fee to property that may be partitioned, subdivided,
altered or modified in the future. The city may use any methodology
for apportioning costs to a benefitted property that is just and reasonable.
The methodology should account for unbuildable areas such as dedicated
right-of-way, utility easements or open space.
E.
The
amount to be charged by the city as an administration fee for the
reimbursement agreement. The administration fee shall be fixed by
the council and included in the resolution approving the reimbursement
district. The administration fee may be a percentage of the total
reimbursement fee expressed as an interest figure, or may be a flat
fee per unit to be deducted from the total reimbursement fee.
F.
Whether
the public improvements meet, or will meet, city standards.
G.
Whether
it is fair and in the public interest to create a reimbursement district.
(Ord. 6254 § 1, 2018)
A.
A reimbursement
fee shall be computed by the city for all lots or parcels within the
reimbursement district that will benefit from the public improvement(s),
including the developer's property. The fee shall be calculated separately
for each lot or parcel and each public improvement. The developer
is not entitled to reimbursement of the fee that is allocated to the
developer's property.
B.
The
cost to be reimbursed to the developer is limited to the cost of construction
engineering, construction, and off-site dedication of right-of-way.
Construction engineering may include surveying and inspection costs
but may not exceed 13.5 percent of eligible public improvement construction
cost. Costs to be reimbursed for right-of-way shall be limited to
the reasonable market value of land or easements purchased by the
developer from a third party in order to complete offsite improvements.
C.
Reimbursement
is not allowed for the cost of legal expenses, design engineering,
financing costs, permits or fees required for construction permits,
land or easements dedicated by the developer, the portion of costs
that are eligible for systems development charge credits, other costs
contributed to the infrastructure by another public or private entity,
the application fee required under HMC 3.18.020, or any cost that
cannot be clearly documented.
(Ord. 6254 § 1, 2018)
A.
Within
45 days after the manager has completed the report required in HMC
3.18.030, the council shall hold a public hearing on the proposed
reimbursement district and provide an opportunity for public comment.
Developer shall provide the city with documentation illustrating the
proposed infrastructure for consideration and proposed properties
for inclusion within the district. Because formation of the reimbursement
district does not result in an assessment against property or lien
against property, the public hearing is for informational purposes
only and is not subject to mandatory termination due to remonstrance.
The council has the sole discretion after the public hearing to decide
whether to approve forming the reimbursement district.
B.
Not
less than 10 days prior to the public hearing, the developer and all
owners of property within the proposed district shall be notified
by the city of the public hearing and the purpose thereof. Notice
shall be accomplished by regular and certified mail or by personal
service. Notice is deemed effective on the date the notice is mailed.
Failure of the developer or an affected property owner to receive
notice does not invalidate or otherwise affect the reimbursement district
resolution or the council's authority to approve the same.
(Ord. 6254 § 1, 2018)
A.
After
the public hearing held pursuant to HMC 3.18.050, the council shall
approve, reject or modify the recommendations contained in the manager's
report. The council's decision shall be set forth in a resolution.
If a reimbursement district is approved, the resolution shall include
the manager's report as approved or modified, and specify that payment
of the reimbursement fee for each designated lot or parcel is a precondition
of receiving any city development permits, building permits or other
city permits necessary to develop the lot or parcel as provided for
in HMC 3.18.100.
B.
The
resolution shall establish an interest rate to be applied to the reimbursement
fee as a return on the investment of the developer. The interest rate
shall be fixed and computed against the reimbursement fee as simple
interest and will not compound.
C.
The
resolution shall instruct the manager to enter into an agreement with
the developer regarding the public improvement(s). If the agreement
is entered into prior to construction, the agreement shall be contingent
upon the improvements being accepted by the city. The agreement shall
include at least the following:
1.
The
public improvement(s) shall meet all applicable city regulations and
standards.
2.
The
total amount that may be reimbursed to the developer.
3.
The
total amount of reimbursement shall not exceed the developer's actual
cost of the public improvement(s), subject to the limitation of HMC
3.18.040(B).
4.
The
developer shall guarantee the public improvement(s) for the city required
minimum maintenance period after the date of acceptance by the city.
5.
A
clause in a form acceptable to the city attorney stating that the
developer shall defend, indemnify and hold harmless the city from
any and all losses, claims, damage, judgments or other costs or expense
arising as a result of or related to the city's establishment of the
reimbursement district, including any city costs, expenses and attorney
fees related to collection of the reimbursement fee should the council
decide to pursue collection of an unpaid reimbursement fee under HMC
3.18.100(J).
6.
A
clause in a form acceptable to the city attorney stating that the
developer agrees that the city is not liable for any of the developer's
alleged damages, including all costs and attorney fees, under the
agreement or as a result of the formation or administration of the
reimbursement district, and that the developer waives any claim, suit
or other action of any kind against the city, including a claim in
inverse condemnation, because the developer has benefited by the city's
approval of its development and the required improvements.
7.
Other
provisions the city determines necessary and proper to carry out the
provisions of this subchapter.
D.
If a
reimbursement district is established by the council, the date the
district is formed is the date that the council adopts the resolution
forming the district.
(Ord. 6254 § 1, 2018)
The city shall notify the developer and all owners of real property
within the district of the council's decision to adopt or reject the
reimbursement district. If the council approves the district, the
notice shall include a copy of the resolution, the date it was adopted,
and a short explanation that describes the amount of the reimbursement
fee and that the property owner is legally obligated to pay the fee
pursuant to this subchapter.
(Ord. 6254 § 1, 2018)
The city recorder shall cause notice of district formation and
nature of the reimbursement district to be filed in the office of
the Washington County clerk to provide notice to a potential purchaser
of property within the district. Filing notice with the clerk shall
not create a lien. Failure to make such filing shall not affect the
legality of the resolution or the obligation to pay the reimbursement
fee.
(Ord. 6254 § 1, 2018)
Legal action to contest formation of the district or the reimbursement
fee, including the amount of the fee for any lot or parcel, must be
filed within 60 days following the date the resolution approving the
reimbursement district is adopted. Any such legal action shall be
exclusively by Writ of Review pursuant to ORS 34.010 to ORS 34.102.
(Ord. 6254 § 1, 2018)
A.
A person
who applies to the city for a permit to develop property within a
reimbursement district shall, upon approval of the permit, pay the
city, in addition to any other applicable fees and charges, the reimbursement
fee established by the council, if within 10 years from the date of
the resolution forming the reimbursement district, the person applies
for any of the following permits:
1.
A
building permit for a new building;
2.
Building
permit(s) for any addition(s) of a building, which cumulatively exceed
25 percent of the existing square footage in any 36-month period;
3.
A
development permit as defined in this subchapter;
4.
A
permit issued for connection to a public improvement.
B.
The
city's determination of the person responsible for paying the reimbursement
fee and when the fee is due is final.
C.
In no
instance shall the city, or any officer or employee of the city, be
liable for payment of any reimbursement fee, or portion thereof, as
a result of the city's determination of the person responsible to
pay the reimbursement fee. Only those payments the city receives from
or on behalf of those properties within a reimbursement district shall
be payable to the developer. The city's general fund or other revenue
sources shall not be liable for or subject to payment of outstanding
and unpaid reimbursement fees imposed upon private property.
D.
Nothing
in this subchapter is intended to modify or limit the authority of
the city to provide or require access management.
E.
Nothing
in this subchapter is intended to modify or limit the authority of
the city to enforce development conditions which have been or may
be imposed against property in the reimbursement district.
F.
Nothing
in this subchapter is intended to modify or limit the authority of
the city to impose development conditions against property in the
reimbursement district as it develops.
G.
A person
is not required to pay a reimbursement fee for a public improvement
if the reimbursement fee allocated to property for that public improvement
has been previously paid. A permit will not be issued for any of the
activities listed in HMC 3.18.100(A) unless the reimbursement fee,
together with the amount of accrued interest, has been paid in full.
Where a land use permit has been approved but no subsequent building
permits or other development permits are requested or issued, the
requirement to pay the reimbursement fee expires if the underlying
land use approval expires.
H.
A reimbursement
district established under this subchapter shall remain in full force
and effect for a period of 10 years from the date of the resolution
approving district formation. The developer may file with the city
a written application to extend the reimbursement district for up
to five additional years. The application shall describe the remaining
useful life of the improvement(s), the continuing benefit to subject
properties, and explain why there is good cause for the extension.
In considering an application for an extension, the council must provide
notice in accordance with HMC 3.18.070 and hold a public hearing at
which the council will receive public comment. After the public hearing
the council may, by resolution, approve the extension for up to five
additional years after determining that the developer has demonstrated
good cause for the extension and that the value of the improvement(s)
to the subject properties remains sufficient to warrant reimbursement.
If an extension is approved by the council, the city shall provide
notice of the council's decision as provided in HMC 3.18.070 and file
a copy of the resolution with the county clerk as provided in HMC
3.18.080.
I.
The
reimbursement fee is immediately due and payable to the city upon
issuance of a permit or connection to a public improvement as provided
in this HMC 3.18.100. If connection is made or construction commenced
without required city permits, then the reimbursement fee is immediately
due and payable upon the earliest date that any such permit was required.
J.
Whenever
the full reimbursement fee has not been paid and collected for any
reason after it is due, the manager shall report to the council the
amount of the uncollected reimbursement, the legal description of
the property on which the reimbursement is due, the date upon which
the reimbursement was due and the name or names of the person(s) responsible
for payment. The council shall set a public hearing date and provide
notice of the hearing to the owner(s) of the subject property and
the person(s) responsible for paying the reimbursement fee if different.
Notice may be made by regular mail, certified mail or personal service.
At the public hearing, the council may accept, reject or modify the
manager's report. If the council determines that the reimbursement
fee is due but has not been paid for any reason, the council may,
in its sole discretion and by resolution, take any action it deems
appropriate, including all legal or equitable means necessary to collect
the unpaid amount. However, nothing in this subchapter requires the
city to take action to collect such amounts.
K.
A person
who is required to pay a reimbursement fee under this section may
present to the city a full or partial waiver in lieu of paying all
or a portion of the required reimbursement fee. Such waivers shall
be on forms provided by the city, signed by the developer and shall
be acknowledged before any notary public within the state. The waiver
shall expressly state the amount of the reimbursement fee waived by
the developer.
(Ord. 6254 § 1, 2018; Ord. 6281 § 2, 2018)
Public improvements installed pursuant to reimbursement district
agreements shall become and remain the sole property of the city upon
acceptance by the city.
(Ord. 6254 § 1, 2018)
A reimbursement district may be formed and reimbursement collected
for more than one public improvement.
(Ord. 6254 § 1, 2018)
A.
The
developer shall receive all reimbursement fees collected by the city
from persons developing property within the district, subject to HMC
3.18.100(H). The reimbursement fees shall be delivered to the developer
for as long as the reimbursement district agreement is in effect.
Such payments shall be made by the city within 90 days of receipt
of the reimbursements. The city may retain an amount up to one-half
of one percent of the fee to cover its administrative costs.
B.
The
reimbursement fee is not intended to replace or limit, and is in addition
to, any other existing fees or charges collected by the city.
(Ord. 6254 § 1, 2018)
The council finds that the fees imposed by this subchapter are
directly related and proportionate to the benefit conferred on property
within the reimbursement district, and are not a tax subject to the
property tax limitations of Article XI, Section 11(b) of the Oregon
Constitution.
(Ord. 6254 § 1, 2018)
If any section, phrase, clause, or part of this subchapter is
found to be invalid by a court of competent jurisdiction, the remaining
phrases, clauses, and parts shall remain in full force and effect.
(Ord. 6254 § 1, 2018)
