Chapter 20.182 IMPACT FEES <a id="ref47352775-1" href="#ft47352775-1" class="footnoteref" > [1]

This chapter is enacted pursuant to the city's police powers, the Growth Management Act (Chapter 36.70A RCW), the impact fee statutes (RCW 82.02.050 through 82.02.100), the State Subdivision Act (Chapter 58.17 RCW) and the State Environmental Policy Act (SEPA, Chapter 43.21C RCW).

The purpose of this chapter is to:

Develop a program consistent with the city's parks, open space and recreation plan, six-year road plan and the city's comprehensive plan (parks and transportation elements) and capital improvement plan, for joint public and private financing of park and transportation facility improvements necessitated in whole or in part by development in the city;

Develop a program for financing of school facilities consistent with the capital improvement plan of the school district, as such public facilities are necessitated in whole or in part by development in the city;

Ensure adequate levels of service in public facilities within the city and school district;

Create a mechanism to charge and collect fees to ensure that all new development bears its proportionate share of the capital costs of off-site park, school and transportation facilities reasonably related to new development, in order to maintain adopted levels of park service, maintain adopted levels of service in the city's transportation facilities, and to ensure the availability of adequate school facilities at the time of new development;

§ 20.182.020 Applicability and definitions.

Ensure that the city pays its fair share of the capital costs of parks and transportation facilities necessitated by public use of the parks and roadway system, and ensure that the school district pays its fair share of the capital costs of school facilities; and

(f)

Ensure fair collection and administration of such impact fees.

(Ord. 019-17 § 18 (Exh. 1))

Chapter 20.184 POMC includes the definitions for this chapter and Chapter 20.180 POMC on concurrency management. The requirements of this chapter apply to all development in the city, as "development" or "development activity" is defined in Chapter 20.12 POMC.

Mitigation of impacts on parks and transportation facilities located in jurisdictions outside the city will be required when:

The other affected jurisdiction has reviewed the development's impact under its adopted impact fee/mitigation regulations and has recommended to the city that there be a requirement to mitigate that impact; and

There is an interlocal agreement between the city and the affected jurisdiction specifically addressing impact identification and mitigation.

§ 20.182.040 Imposition of impact fees.

The director of community development shall be responsible for administering this chapter and the impact fee program for the city.

(Ord. 019-17 § 18 (Exh. 1); Ord. 010-18 § 33; Ord. 013-22 § 2)

§ 20.182.030 Geographic scope.

The boundaries within which transportation and park impact fees shall be charged and collected are the same as the corporate city limits. The boundaries within which school impact fees shall be charged and collected are the same as the boundaries of the South Kitsap School District No. 402 lying within the corporate city limits. All unincorporated areas annexed to the city on and after the effective date of the ordinance codified in this chapter shall be subject to the provisions of this chapter. After the adoption of interlocal agreements with other local and regional governments, the geographic boundaries may be expanded consistent therewith.

(Ord. 019-17 § 18 (Exh. 1))

The city is hereby authorized to impose impact fees on new development.

Impact fees may be required pursuant to the impact fee schedule adopted through the process described herein, or mitigation may be provided through:

The purchase, installation and/or improvement of park, school and transportation facilities pursuant to POMC § 20.182.080; or

The dedication of land pursuant to POMC § 20.182.080.

Impact fees:

Shall only be imposed for park, school and transportation facilities that are reasonably related to new development;

Shall not exceed a proportionate share of the costs of park, school and transportation facilities that are reasonably related to new development;

Shall be used for park, school and transportation facilities that will reasonably benefit the new development;

Shall not be used to correct existing deficiencies;

Shall not be imposed to mitigate the same off-site park, school and transportation facility impacts that are being mitigated pursuant to any other law;

(f)

Shall not be collected for improvements to state/county park and transportation facilities unless the state/county requests such improvements and an interlocal agreement to collect such fees has been executed between the state/county and the city;

(g)

Shall not be collected for improvements to park and transportation facilities in other municipalities unless the affected municipality requests that such impact fees be collected on behalf of the affected municipality, and an interlocal agreement has been executed between the city and the affected municipality for the collection of such fees;

(h)

Shall be collected only once for each development, unless changes or modifications to the development are proposed which result in greater direct impacts on park, school and/or transportation facilities than were considered when the development was first permitted;

§ 20.182.060 Fee schedules and establishment of service area.

May be imposed for system improvement costs previously incurred by the city and school district, to the extent that new growth and development will be served by previously constructed improvements; and provided, that such fee shall not be imposed to make up for any system improvement deficiencies; and

(j)

Shall only be imposed for park and school facilities on residential development.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.182.050 Approval of development.

Prior to approving or permitting a development or development permit, the approving authority shall consult with the director and the superintendent of the school district concerning mitigation of a development's impacts and impact fees.

(Ord. 019-17 § 18 (Exh. 1))

Impact fee schedules setting forth the amount of the impact fees to be paid by developers shall be adopted by ordinance of the city council and incorporated herein by this reference. The impact fee schedules may be revised at any time the city council deems just and appropriate.

For the purpose of road and park impact fees, the entire city shall be considered one service area.

For the purpose of school impact fees, the entire boundary of the school district shall be considered one service area.

§ 20.182.070 Calculation of impact fees.

Transportation and parks impact fees adopted by the city shall each automatically increase annually per CPI-U (All Urban Consumers Index) (1982-1984=100), not seasonally adjusted, for the Seattle-Tacoma-Bellevue area for that 12-month period from January 1st to December 31st indexed as the annual average, as is specified by the Bureau of Labor Statistics, United States Department of Labor. Increases based on CPI-U shall take effect on March 1st of the following year.

(Ord. 019-17 § 18 (Exh. 1); Ord. 007-21 § 2; Ord. 013-22 § 3)

Director Calculates the Fees. The director shall calculate the impact fees set forth in Appendices A, B, and C. Such calculation shall include determining the dates at which the impact fees are due and which rates apply. The city council shall have the final decision on the establishment of the impact fee schedule to be imposed under this chapter as set forth in Appendices A, B, and C. The school district shall propose to the city its requested impact fee schedule to be imposed under this chapter, including specific rates applicable to different project types; however, the council has the authority to establish Appendix C.

Factors Used in Impact Fee Calculations. The calculation of impact fees shall include the factors identified in RCW 82.02.040 through 82.02.070 and shall:

Determine the standard fee for similar types of development, which shall be reasonably related to each development's proportionate share of the cost of projects described in the project list for each type of impact fee.

Reduce the proportionate share by applying the benefit factors described in POMC § 20.182.080.

Proportionate Share. In calculating proportionate share, the following factors shall be considered:

Identification of all park, school and transportation facilities that will be impacted by users from development;

Identification of the point at which the capacity of a park, school or transportation facility has been fully utilized;

Updating of the data as often as practicable, but at least annually;

Estimation of the cost of construction of the projects in the project list (see POMC § 20.182.120) for roads at the time they are placed on the list; the cost of maintaining the city's level of park service as shown on Appendix B; and the costs relating to the construction of school facilities, and to then update the cost estimates at least annually, considering the:

Availability of other means of funding park, school and transportation facilities;

Cost of existing park, school and transportation facility improvements;

Methods by which park, school and transportation facility improvements were financed; and

(iv)

An adjustment to the cost of the park, school and transportation facilities for past or future payments or reasonably anticipated to be made by new development to pay for particular system improvements in the form of user fees, debt service payments, taxes or other payments earmarked for or proratable to the particular system improvement.

§ 20.182.075 Accessory dwelling unit impact fee calculations.

Information Supplied by Applicants. Applicants for development shall provide the necessary information to facilitate the application and calculation of impact fees including the square footage of buildings to be constructed, the number of bedrooms in proposed housing units, and/or the trip generation (peak PM trips) for the proposed use (to be coordinated with concurrency review pursuant to Chapter 20.180 POMC). This information must also accompany any request for variation from the impact fee schedule pursuant to POMC § 20.182.090 or any request for impact fee credits pursuant to POMC § 20.182.080.

(Ord. 019-17 § 18 (Exh. 1); Ord. 013-22 § 4; Ord. 002-25 § 3)

Accessory dwelling units shall be charged impact fees in accordance with the schedules adopted in POMC § 20.182.070(1), except that pursuant to RCW 36.70A.681(1)(a), the city may not assess impact fees on the construction of accessory dwelling units that are greater than 50 percent of the impact fees that would be imposed on the principal unit. If the impact fee resulting from the use of the rates established in POMC § 20.182.070(1) result in an impact fee on an accessory dwelling unit that is in excess of 50 percent of the fee that would be imposed on the principal unit, then the city shall reduce the amount of impact fee owed on the accessory dwelling unit to 50 percent of the amount that would be owed on the principal dwelling were it to be constructed at the current rate.

Applicants seeking approval for the construction or creation of (an) accessory dwelling unit(s) shall provide the following information with their application for the construction or creation of (an) accessory dwelling unit(s):

The estimated trip generation pursuant to the currently adopted version of the ITE manual for both the accessory dwelling unit and the principal dwelling unit on the site.

The number of bedrooms in the proposed accessory dwelling unit and the principal dwelling unit on the site. If the principal unit is existing, this shall be the number of bedrooms as reported by the Kitsap County assessor's office for the existing structure. If the principal unit (either new or modified) is being proposed concurrent with the accessory dwelling unit(s), then the proposed number of bedrooms for the principal unit shall be provided consistent with the submitted plans for the principal dwelling.

The total finished square footage in the proposed accessory dwelling unit and the principal dwelling unit on the site. If the principal unit is existing, this shall be the finished square footage as reported by the Kitsap County assessor's office for the existing structure. If the principal unit (either new or modified) is being proposed concurrent with the accessory dwelling unit(s), then the proposed square footage for the principal unit shall be provided consistent with the submitted plans for the principal dwelling.

An applicant for the construction or creation of an accessory dwelling unit may request a variation from the impact fee schedule in accordance with POMC § 20.182.090.

Unless a variation to the impact fee schedule is granted in accordance with POMC § 20.182.090, the city shall determine the amount of impact fees owed for the creation or construction of accessory dwelling units based on the information supplied by the applicant pursuant to subsection (2) of this section. This information shall be verified by the city by reviewing the currently adopted ITE trip generation estimates for the proposed uses, the number of bedrooms and/or square footage either reported by the Kitsap County assessor or as shown on plans for the accessory dwelling unit and principal structure. Where inconsistencies are found between the applicant-supplied information and the ITE manual or Kitsap County assessor records, the application shall be returned to the applicant for correction. Required corrective action may include, but is not limited to, the following:

Correcting the supplied information to match County assessor records or submitted construction plans; and/or

Requesting amendment to property records or appealing assessments to the Kitsap County assessor office; and/or

Submitting an impact fee variation request in accordance with POMC § 20.182.090.

The conversion of an ADU to a principal unit or the enlargement of a principal unit shall be considered new development subject to impact fee charges which may apply.

(Ord. 001-25 § 3)

§ 20.182.080 Credits.

Credit Allowed. The director shall reduce the calculated proportionate share for a particular development by giving credit for the benefit factors described in this section.

Procedure for Obtaining Credit, Time to Request Credit. Requests for credits against impact fees will not be considered unless the developer makes the request in writing, concurrent with the submission of the application for the underlying development permit triggering the impact fee. Impact fee credits may only be granted by use of a development agreement in accordance with the procedures contained in Chapter 20.26 POMC.

Benefit Factors. The director will consider the following benefit factors when determining whether an impact fee credit is appropriate:

Developer's dedication of land and/or construction of system improvements. The value of any dedication of land for, improvement to, or new construction of any system improvements provided by the developer, to facilities required by the city that are identified in the capital facilities plan and that are required by the city as a condition of approving the development activity, as long as the following conditions are satisfied. For school impact fees, the director shall consult with the superintendent in considering the value of any dedication of land provided by the developer identified in the school district's capital facilities plan as long as the following conditions are satisfied to the extent applicable:

The system improvements are located on land owned by the city (or in the case of school impact fees, by the school district); and

A designated public owner is responsible for permanent, continuing maintenance and operation of the system improvements; and

The director determines that the system improvements correspond to the type(s) of park, transportation, or school system improvements that are reasonably related to the development as determined pursuant to this chapter;

(iv)

The director determines, after consultation with the school district, as applicable, and after an analysis of supply and demand data, the parks, open space and recreation plan, the six-year road plan and the adopted park and transportation plan, that the proposed park and transportation system improvements better meet the city's need for park and transportation system improvements than would payment of funds to mitigate the park and transportation impacts of the development;

(v)

In the determination of credit toward the impact fee, the director shall also consider the extent to which the proposed dedication or conveyance meets the following criteria:

(A)

The land should result in an integral element of the city park/road system or in the school system;

(B)

The land is suitable for future park, school and/or transportation facilities;

(C)

The land is of appropriate size and of an acceptable configuration;

(D)

The land has public access via a public street or an easement of an equivalent width and accessibility;

(E)

The land is located in or near areas designated by the city or county on land use plans for park, trail or recreational purposes, or, in the case of schools, is appropriately located for school facilities;

(F)

The land provides linkage between county and/or other publicly owned recreation and transportation properties;

(G)

The land has been surveyed or adequately marked with survey monuments, or is otherwise readily distinguishable from adjacent privately owned property;

(H)

The land has no known physical problems associated with it, such as the presence of hazardous waste, drainage erosion or flooding problems which the director or superintendent determines would cause inordinate demands on public resources for maintenance and operation;

(I)

The land has no known safety hazards;

(J)

The developer is able to provide documentation, as nearly as practicable, of the land's compliance with the criteria of this subsection, and of clear title;

(K)

The developer is able to provide and fund a long-term method, acceptable to the director, for the management and maintenance of the land, if applicable.

Requirement for System Improvement Plan by City. When the director has agreed to a developer's proposal to satisfy some or all of the impact fee through the purchase, installation and/or improvement of park and/or transportation and/or school facilities, the developer shall prepare and submit a system improvement plan to the director for approval prior to recordation of a plat or short plat for subdivisions, and prior to issuance of a building permit for all other developments.

§ 20.182.090 Variation from impact fee schedule.

Statutory Benefit Factors. The director may consider any applicable benefit factors, as described in RCW 82.02.060 (as it now exists or may hereafter be amended), that are demonstrated by the applicant not to be included in the calculation of the impact fee.

(6)

Amount of Credit. The credit against the impact fee shall be equal to the fair market value of the purchased/dedicated property or equal to the certified cost of the completed system improvements. In those situations in which a developer has not yet installed or constructed system improvements and requests a credit for the system improvement(s), the city engineer shall estimate the cost of the system improvements, which shall be the credit allowed to the developer in the decision on the amount of the impact fee. If a credit is granted for a system improvement that has not been constructed, the developer shall pay the full impact fee without the credit, at the time established in POMC § 20.182.110; provided, however, that if the developer posts a performance bond or provides other security to ensure completion of the system improvement and/or to secure the payment of the impact fees, the city may allow the payment of the impact fees to be deferred until the system improvement is completed and the final maximum impact fee credit has been calculated. If the developer opts to pay the impact fees rather than post a bond, then after the construction and/or installation of the system improvement, the developer may request the credit granted by the city engineer under this subsection, and the city shall refund the difference of the impact fee to reflect the credit; provided, that if the city and the property owner have entered into a development agreement on or before the effective date of the ordinance codified in this section, and the agreement requires the construction of such improvements, the city may allow a credit to be subtracted from the impact fee paid at the time established in POMC § 20.182.110.

(7)

PRDs, PUDs and Mobile Home Parks. A developer of a planned residential development, a planned unit development, or a mobile home park may receive credit only for park, school and transportation facilities provided in addition to those normally required under SEPA for such developments, pursuant to the city's SEPA ordinance (Chapter 20.160 POMC).

(8)

Credit to Apply Proportionately to Units. The amount of credit determined pursuant to this section shall be credited proportionately among all the units in the development, and the impact fee for each unit for which a permit or approval is applied shall be reduced accordingly.

(9)

Limits on Credit Requests. Applicants may not request that an impact fee credit be provided for a proposed development based on taxes, user fees, assessments, improvements, payments or other benefit factors applicable to property that is not included within the proposed development. Credit to be paid back by the city or the school district to a developer under this section shall not exceed the total amount of the impact fees paid by the developer.

(10)

Local Improvement Districts. Applicants shall receive credit against the impact fee equal to the amount of an LID assessment paid for transportation-related system improvements identified by the director as increasing transportation system capacity.

(11)

Appeals of Credits. The director shall issue a written decision on the developer's request for a credit of the impact fee calculation, which shall explain why the credit was granted or denied. The developer may request reconsideration and appeal the impact fee amount and credit pursuant to POMC § 20.182.160. If the procedures in POMC § 20.182.160 are not timely followed to request an appeal of the credit, the director's decision on the impact fee credit shall be final.

(Ord. 019-17 § 18 (Exh. 1); Ord. 013-22 § 5)

With respect to the transportation or park impact fee, if a developer submits information demonstrating a significant difference between the age, social activity or interest characteristics of the population of a proposed subdivision or development and the data used to calculate the impact fee schedule, the director may allow a special calculation of the impact fee requirements for the subdivision or development to be prepared by the developer's consultant, at the developer's cost; provided, that: the director shall have prior approval of the qualifications and methodology of the developer's consultant in making such calculation, and any time period mandated by statute or ordinance for the approving authority's final decision on the development shall not include the time spent in preparing the special calculation. Whether the director accepts the data provided by the special calculation shall be at the discretion of the director.

With respect to a school impact fee, if a developer submits evidence demonstrating that a development has obtained approval of an age-restricted development in accordance with applicable federal regulations or that a development has recorded a covenant against the development prohibiting occupancy of the development by a population who are not eligible to attend schools within the school district, the director may allow a special calculation of the impact fee requirement for the development after consultation with the superintendent of the school district.

(Ord. 019-17 § 18 (Exh. 1); Ord. 013-22 § 6)

§ 20.182.100 Payment of fees.

All applicants for development, including changes in use, shall pay an impact fee in accordance with the provisions of this chapter which shall be calculated by the city at the time that the building or other applicable permit is ready for issuance. Applicants/developers may choose to pay impact fees or a portion thereof prior to the city's issuance of a building permit, other applicable permit, or change in use, but if the early payment is less than the fee calculated at the time the building or other applicable permit is ready for issuance or the change in use takes effect, the applicant/developer shall pay the difference. If the early payment is more than the fee calculated at the time the building permit or other applicable permit is ready for issuance or the change of use takes effect, the city or school district shall refund the difference.

The impact fee shall be recalculated if the development is modified or conditioned in such a way as to alter park, school or transportation impacts for the development.

§ 20.182.110 Time of payment of impact fees.

A developer may obtain a preliminary determination of the impact fee before submitting an application for the development permit or use change by providing the director with the information needed for processing together with the applicable fee. Such determinations are provided to the developer as estimates only, and they are not binding on the city, given the limited information needed to calculate the preliminary impact fee amount and the fact that the city or school district annually updates the project list and impact fee schedule. In addition, impact fees are not subject to the vested rights doctrine, and the fee actually paid by the developer will be the impact fee in effect at the time of building or other applicable permit issuance or change of use, regardless of any preliminary determinations unless otherwise agreed by development agreement or impact fee credit agreement.

(Ord. 019-17 § 18 (Exh. 1); Ord. 013-22 § 7)

Payment of any required impact fees shall be made as a condition of the issuance of a building permit or a stormwater permit, except as provided in subsection (4) of this section.

Impact fees may be paid under protest in order to obtain the necessary permits/approvals until an appeal of the fee amount is finally resolved.

When a subdivision or development is conditioned upon the dedication of land, or the purchase, installation or improvement of park, school, and/or transportation facilities, a final plat or short plat shall not be recorded, and a building permit within such plat or development shall not be issued until:

The director has determined in writing that the land to be dedicated is shown on the face of the final plat or short plat, or a deed conveying the land to the city, the school district or special purpose district, as appropriate, has been recorded with the county auditor; and

The director has determined in writing, after consultation with the designated public owner responsible for permanent, continuing maintenance and operation of the facilities that the developer has satisfactorily undertaken or guaranteed to undertake in a manner acceptable to the director or superintendent, any required purchase, installation or improvement of school, park or transportation facilities.

Deferral of Payment of Impact Fees. Payment of impact fees for single-family attached or single-family detached residential dwelling units may be deferred only until issuance of certificate of occupancy or equivalent certification, pursuant to RCW 82.02.050(3), subject to the following provisions:

Each applicant, in accordance with their contractor registration number or other unique identification number, is entitled to annually receive deferrals under this section for the first 20 single-family residential construction building permits per city. Any single-family residential building construction permits beyond 20 for the same applicant are subject to payment of impact fees at the time of building permit issuance as required by subsection (1) of this section.

A request for deferral must be submitted prior to issuance of a building permit.

Application for deferral must be made on a form provided by and acceptable to the city and must include the following information and fees:

Name, address, telephone number and email address of the applicant.

The specific address, legal description and tax identification number of the single-family dwelling for which deferral is being requested.

The building permit application number associated with the requested deferral.

(iv)

The registration number or other unique identification number for the contractor that will be building the structure.

(v)

A statement by the contractor describing how many deferrals have been granted during the current year for said contractor, describing how many have been requested during the current year, and attesting that the number provided and/or requested is less than 20 for the current calendar year.

(vi)

Applicable fees for processing the application and for future monitoring of the deferred payment of impact fees are required in addition to fees required by this chapter. Deferral application fees shall include:

(A)

Minimum of four hours base administration fee, at the hourly staff rate required by the development fee schedule adopted in the city's fee resolution, and payable at the time of application submittal.

(B)

Minimum of four hours administration fee at the current hourly staff rate to cover additional time spent processing of final payment of impact fees, including but not limited to preparation of lien release documents, payable before the lien release document shall be released to the applicant.

No more than one single-family dwelling may be included on a single application for impact fee deferral.

Impact fees shall be calculated on the fees in place at the time that the applicant applies for a deferral.

(f)

Impact fees deferred under this section are due no later than the following events, whichever occur first:

Issuance of certificate of occupancy or equivalent certification for the single-family dwelling; or

Eighteen months from the date of the building permit issuance.

(g)

An applicant seeking a deferral under this subsection must grant and record a deferred impact fee lien against the property in favor of the city of Port Orchard. The deferred impact fee lien must include the legal description, tax account number, and address of the property, and must also be:

In a form approved by the city attorney which ensures that it is binding on all successors on the title to the property after recordation;

Signed by all owners of the property, with all signatures acknowledged as required for a deed, and recorded with the Kitsap County auditor's office; and

Junior and subordinate to one mortgage for the purpose of construction upon the same real property granted by the person who applied for the deferral of impact fees.

(h)

The city may withhold a certificate of occupancy or equivalent certification until the impact fees are paid in full. Upon receipt of final payment of all deferred impact fees for a property, and upon payment of all applicable administration fees in the city's fee resolution, the city must execute a release of deferred impact fee lien for the property. The property owner at the time of the release, at their expense, is responsible for recording the lien release.

Foreclosure Proceedings. If impact fees are not paid in accordance with a deferral authorized by this section, the city may institute proceedings to enforce the lien in accordance with Chapter 61.12 RCW.

(j)

Obligation to Pay. The extinguishment of a deferred impact fee lien by the foreclosure of a lien having priority does not affect the obligation to pay the impact fees as a condition of issuance of certificate of occupancy or equivalent certification.

(k)

Deferral Process Not Subject to Review Proceedings. Per RCW 36.70B.140(2), the processing of an impact fee deferral application is not subject to the project permit review requirements of Chapter 36.70B RCW.

(Ord. 019-17 § 18 (Exh. 1); Ord. 010-18 § 34; Ord. 013-22 § 8; Ord. 017-23 § 1 (Exh. A))

§ 20.182.120 Project list.

The director shall annually review the city's parks, open space and recreation plan, the six-year road plan and the projects listed in Appendices A and B and shall:

Identify each project in the comprehensive plan that is growth-related and the proportion of each such project that is growth-related;

Forecast the total money available from taxes and other public sources for park and transportation improvements for the next six years;

Update the population, building activity and demand and supply data for park and transportation facilities and the impact fee schedule for the next six-year period;

Calculate the amount of impact fees already paid;

Identify those comprehensive plan projects that have been or are being built but whose performance capacity has not been fully utilized.

The director shall use this information to prepare an annual draft amendment to the fee schedule in Appendices A and B, which shall comprise:

The projects in the comprehensive plan that are growth-related and that should be funded with forecast public monies and the impact fees already paid; and

The projects already built or funded pursuant to this chapter whose performance capacity has not been fully utilized.

The city council, at the same time that it adopts the annual budget and appropriates funds for capital improvement projects, shall, by separate ordinance, establish the annual project list by adopting, with or without modification, the director's draft amendment.

Once a project is integrated into the fee schedule in Appendices A and B, a fee shall be imposed on every development until the project is removed from the project list by one of the following means:

The city council by ordinance removes the project from the project list and Appendix A and/or B, in which case the fees already collected will be refunded if necessary to ensure that impact fees remain reasonably related to the park and transportation impacts of developments that have paid an impact fee; provided, that a refund shall not be necessary if the council transfers the fees to the budget of another project that the council determines will mitigate essentially the same park and transportation impacts; or

The capacity created by the project has been fully utilized, in which case the director shall remove the project from the project list.

§ 20.182.125 Designation of capital facilities plan for transportation.

The school district shall annually review and update its capital facilities portion of the city's comprehensive plan and submit such updated plan to the city by July 1st of each year. The school district's updated capital facilities plan shall identify projects that are growth-related, include the amount of school impact fees paid, calculate the impact fees as required by RCW 82.02.050 through 82.02.090, and may include a proposed school impact fee schedule adjustment to Appendix C, for consideration by and adoption by the city council in its sole discretion.

(Ord. 019-17 § 18 (Exh. 1); Ord. 013-22 § 9)

The city designates the 6 Year/20 Year Transportation Improvement Plan (TIP) as the city's comprehensive capital facilities plan for the purpose of identifying the proposed transportation improvements reasonable and necessary to meet the future development needs of the service area consistent with the city's level of service policy, as required by RCW 82.02.050. The TIP identifies the specific subset of transportation improvements in the impact fee project list that forms the basis for the transportation impact fee program.

(Ord. 007-21 § 3)

§ 20.182.128 Designation of capital facilities plan for parks.

The city designates the Parks Recreation and Open Space Plan (PROS Plan) as the city's comprehensive capital facilities plan for the purpose of identifying the proposed parks improvement projects reasonable and necessary to meet the future development needs of the service area consistent with the city's level of service policy, as required by RCW 82.02.050. The PROS Plan identifies the specific subset of parks improvements in the impact fee project list that forms the basis for the parks impact fee program.

(Ord. 013-22 § 10)

§ 20.182.130 Funding of projects.

An impact fee fund is hereby created for parks and transportation fees. Separate accounts shall be established for each fee type. The school district shall be responsible for the creation of its own impact fee fund and shall be solely responsible for the deposit of fees in such fund following transfer from the city, and the calculation/use/refund of such fees. The school district shall manage its impact fee funds in accordance with state law and the interlocal agreement between the school district and the city. The director shall be the manager of the city's fund. The city shall place park and transportation impact fees in appropriate deposit accounts within the impact fee fund.

The parks and transportation impact fees paid to the city shall be held and disbursed as follows:

The fees collected for each project shall be placed in a deposit account within the impact fee fund, with the exception of school impact fees, which shall be collected by city and then transferred to the school district for deposit into the school district impact fee fund;

When the council appropriates capital improvement project (CIP) funds for a park or transportation project on the project list, the park or transportation fees held in the impact fee fund shall be transferred to the CIP fund. The nonimpact fee monies appropriated for the project shall comprise both the public share of the project cost and an advancement of that portion of the private share that has not yet been collected in park or transportation impact fees;

The first money spent by the director on a project after a council appropriation shall be deemed to be the fees from the impact fee fund;

Fees collected after a project has been fully funded by means of one or more council appropriations shall constitute reimbursement to the city of the funds advanced for the private share of the project. The public monies made available by such reimbursement shall be used to pay the public share of other projects;

All interest earned on impact fees paid shall be retained in the account and expended for the purpose or purposes for which the impact fees were imposed.

Projects shall be funded by a balance between impact fees and public funds, and shall not be funded solely by impact fees.

Impact fees shall be expended or encumbered for a permissible use for 10 years after receipt, unless there exists an extraordinary or compelling reason for fees to be held longer than 10 years. The director may recommend to the council that the city hold park or transportation fees beyond 10 years in cases where extraordinary or compelling reasons exist. Such reasons shall be identified in written findings by the council. The superintendent of the school district shall prepare written findings evidencing such extraordinary or compelling reason for fees to be held longer than 10 years which findings shall be approved by the board of directors of the school district.

§ 20.182.140 Use and disposition of dedicated land.

The school district and the director shall prepare an annual report on the impact fee accounts showing the source and amount of all monies collected, earned or received and system improvements that were financed in whole or in part by impact fees. The school district shall be responsible for compliance with RCW 82.02.070.

(Ord. 019-17 § 18 (Exh. 1); Ord. 013-22 § 11)

All land dedicated or conveyed pursuant to this chapter shall be set aside for development of park, school and transportation facilities. The city or the school district to which land is dedicated or conveyed pursuant to this chapter shall make every effort to use, develop and maintain land dedicated or conveyed for park, school and transportation facilities. In the event that use of any such dedicated land is determined by the director or superintendent to be infeasible for development of park, school or transportation facilities, the dedicated land may be sold or traded for another parcel of land. The proceeds from such a sale shall be used to acquire land or develop park, school or transportation facilities.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.182.150 Refunds.

A developer may request and shall receive a refund from either the city (for parks and transportation impact fees) or the school district (for school impact fees) when the developer does not proceed with the development activity for which impact fees were paid, and the developer shows that no impact has resulted.

If the city or school district fails to expend or encumber the impact fees within 10 years of the date the fees were paid or the date established by the findings adopted under POMC § 20.182.130(4) on public facilities intended to benefit the development activity for which the impact fees were paid. In determining whether impact fees have been encumbered, impact fees shall be considered encumbered on a first in, first out basis. The city or school district shall notify potential claimants by first class mail, deposited with the U.S. Postal Service at the last known address of claimants. The request for a refund must be submitted to the city or school district in writing within one year of the date the right to claim the refund arises or the date notice is given, whichever is later. Any impact fees that are not expended within these time limitations and for which no application for refund has been made within the one-year period shall be retained and expended on the indicated capital facilities. Refunds of impact fees under this section shall include interest earned on the impact fees. The school district shall be responsible for compliance with this section and RCW 82.02.080 for school impact fees.

In the event that impact fees are refunded for any reason, they shall be refunded by the city with respect to park and transportation fees (and the school district with respect to school impact fees) and shall be returned with interest earned to the owners as they appear of record with the county assessor at the time of the refund.

When the city seeks to terminate any or all impact fee requirements, all unexpended or unencumbered funds shall be refunded pursuant to this section. Upon the finding that any or all fee requirements are to be terminated, the city shall place notice of such termination and the availability of refunds in a newspaper of general circulation at least two times and shall notify all potential claimants by first class mail to the last known address of the claimants. All funds available for refund shall be retained for a period of one year. At the end of one year, any remaining funds shall be retained by the city, or, if applicable, the school district, but must be expended on a project under the adopted plans of the city or school district. This notice requirement shall not apply if there are no unexpended or unencumbered balances within an account or accounts being terminated. The school district shall be responsible for compliance with this section for school impact fees under RCW 82.02.080.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.182.160 Appeals.

Decision of the Director or Superintendent, Reconsideration and Appeals. The director or the superintendent shall issue a written decision on the parks, school and/or transportation impact fee amount as described in this chapter. Because RCW 82.02.070(5) allows the appeal of an impact fee determination to be handled separately from the processing of the underlying permit application, this procedure is exempt from the permit processing requirements in Chapter 20.25 POMC (pursuant to RCW 36.70B.140).

Director's Decision.

Request for Reconsideration. In order to request reconsideration of the director's decision, the developer shall make a written request to the director for a meeting to review the fee amount, together with a written request for reconsideration. The request for reconsideration shall include the city's administrative fee, shall state in detail the grounds for the request, and shall be filed with the director within 15 days after issuance of the director's decision on the impact fees. At this meeting, the director shall consider any studies and data submitted by the developer seeking to adjust the amount of the fee. The director shall issue a written decision on reconsideration within 10 working days of the director's receipt of the request for reconsideration or the meeting with the developer, whichever is later.

Appeal. A developer may appeal the amount of the impact fee established in the decision on reconsideration of the director to the hearing examiner. This appeal must be filed with the city planning department within 14 days of issuance of the decision on reconsideration. The hearing on the appeal of the decision on reconsideration shall be consolidated with the processing of the underlying permit application, if at all possible. An appeal of the decision on reconsideration may be filed even though there is no appeal of the underlying permit. The hearing examiner shall conduct an open record hearing on the appeal of the decision on reconsideration, and if it is not consolidated with the underlying permit, the examiner's decision shall issue within 10 working days of the hearing (unless a longer period is agreed to by the developer).

Superintendent's Decision.

Request for Reconsideration. In order to request reconsideration of the superintendent's decision, the developer shall make a written request to the superintendent for a meeting to review the fee amount, together with a written request for reconsideration. The request for reconsideration shall include the administrative fee, state in detail the grounds for the request, and shall be filed with the superintendent within 15 days after issuance of the superintendent's decision on the impact fees. At this meeting, the superintendent shall consider any studies and data submitted by the developer seeking to adjust the amount of the fee. The superintendent shall issue a written decision on reconsideration within 10 working days of the superintendent's receipt of the request for reconsideration or the meeting with the developer, whichever is later.

Appeal. A developer may appeal the amount of the impact fee established in the decision on reconsideration of the superintendent to the hearing examiner chosen by the district. This appeal must be filed with the superintendent within 14 days of issuance of the decision on reconsideration. The hearing on the appeal of the decision on reconsideration shall not be consolidated with the processing of the underlying permit application. An appeal of the decision on reconsideration may be filed even though there is no appeal of the underlying permit. The hearing examiner shall conduct an open record hearing on the appeal of the decision on reconsideration and issue a decision within 10 working days of the hearing (unless a longer period is agreed to by the developer).

Burden of Proof in Appeals. In an appeal of the decision of the director or superintendent on reconsideration, the developer shall bear the burden of proving:

That the director or superintendent committed error in calculating the developer's proportionate share, as determined by an individual fee calculation, or if relevant, as set forth in the impact fee schedule, or in granting credit for the benefit factors; or

That the director or superintendent based their determination upon incorrect data.

Appeals of Hearing Examiner's Decision.

Appeals from the decision of the school district's hearing examiner on the superintendent's decision on reconsideration shall be to superior court as provided in Chapter 36.70C RCW.

Appeals from the decision of the hearing examiner on the director's decision on reconsideration shall follow the process for the underlying permit (i.e., if the city's code provides that the hearing examiner's decision is a recommendation to the city council, then the city council shall make the final decision; or if the city's code provides that the hearing examiner's decision is final, then the hearing examiner's decision may be appealed to superior court as provided in Chapter 36.70C RCW).

(Ord. 019-17 § 18 (Exh. 1))

§ 20.182.170 Relationship to SEPA.

As provided in RCW 82.02.100, a person required to pay a fee pursuant to RCW 43.21C.060 for system improvements shall not be required to pay an impact fee under this chapter for the same system improvements.