Chapter 15.15 SYSTEMS DEVELOPMENT CHARGES

"Accessory dwelling unit"

means a second residential dwelling unit created on a single lot with a single-family or a manufactured housing dwelling unit. The second unit is created auxiliary to, and is always smaller than, the single-family or manufactured housing residential dwelling unit.

"Administrator"

means that person, or persons, appointed by the city to manage and implement this SDC program.

"Alternative system development charge"

means an SDC established pursuant to HMC § 15.15.070.

"Applicant"

means the person who applies for a building permit.

"Building official"

means that person, or designee, certified by the state and designated as such to administer the state building codes for the city.

"Capital improvements plan,"

"Building permit"

means that permit issued by a building official pursuant to the State of Oregon Structural Specialty Code Section 301 or as amended, and the State of Oregon One and Two Family Dwelling Code Section R-109 or as amended. In addition, "building permit" shall mean a manufactured home installation permit issued by the building official, relating to the placement of manufactured homes in the city.

(7)

also called the CIP, means the city program that identifies facilities and improvements projected to be funded, in whole or in part, with SDC revenues.

(8)

"City"

means the city of Hubbard, Oregon.

(9)

"Condition of development approval"

is any requirement imposed on an applicant by the city, a city or county land use or limited land use decision, or site plan approval.

(10)

"Construction cost index"

means the Engineering News Record (Seattle) Construction Cost Index.

(11)

"County"

means Marion County, Oregon.

(12)

"Credit"

means the amount by which an applicant may be able to reduce the SDC fee as provided in this chapter.

(13)

"Development"

means a building or other land construction, or making a physical change in the use of a structure or land, in a manner which increases the usage of capital improvements or which may contribute to the need for additional or enlarged capital facilities.

(14)

"Duplex"

means two attached single-family dwelling units on a single lot.

(15)

"Improvement fee"

means a fee for costs associated with capital improvements to be constructed after the effective date of the ordinance codified in this chapter.

(16)

"Multifamily housing"

means three or more attached residential dwelling units located on a single lot.

(17)

"New development"

means development for which a building permit is required.

(18)

"Over-capacity"

means that portion of an improvement that is built larger or with greater capacity than is necessary to serve the applicant's new development or mitigate for system impacts attributable to the applicant's new development.

(19)

"Permit"

means a building permit.

(20)

"Previous use"

means the most intensive use conducted at a particular property within the past 18 months prior to the date of application for a building permit. Where the site was used simultaneously for several different uses (mixed use) then, for the purposes of this chapter, all of the specific use categories shall be considered. Where the previous use is composed of a primary use with one or more ancillary uses that support the primary use and are owned and operated in common, that primary use shall be deemed to be the sole use of the property for purposes of this chapter.

(21)

"Proposed use"

means the use proposed by the applicant for the new development. Where the applicant proposes several different uses (mixed use) for the new development then, for purposes of this chapter, all of the specific use categories shall be considered. Where the proposed use is composed of a primary use with one or more ancillary uses that support the primary proposed use and are owned and operated in common, that primary use shall be deemed to be the sole proposed use of the property for purposes of this chapter.

(22)

"Qualified public improvement"

means any system capital facility or conveyance or an interest in real property that increases the capacity of the city's system and is:

Required as a condition of development approval;

Identified as a need in the SDC methodology report; and

"Remodel" or "remodeling"

Not located on or contiguous to property that is the subject of development approval; or

(ii)

Located in whole or in part on or contiguous to property that is the subject of development approval and, in the opinion of the administrator, is required to be built larger or with greater capacity (over-capacity) than is necessary for the applicant's new development or mitigate for system impacts attributable to the applicant's new development. There is a rebuttable presumption that improvements built to the city's minimum standards are required to serve the applicant's new development and to mitigate for system impacts attributable to the applicant's new development.

(23)

"Reimbursement fee"

means a fee for costs associated with capital improvements that have been constructed or were under construction prior to the effective date of the ordinance codified in this chapter.

(24)

means to alter, expand or replace an existing structure.

(25)

"Residential dwelling unit"

means a building or a portion of a building consisting of one or more rooms, which include sleeping, cooking, and plumbing facilities and are arranged and designed as permanent living quarters for one family or household.

(26)

"Row house"

means an attached single-family residential dwelling unit on a single lot.

(27)

"SDC methodology report" means that report entitled "Hubbard System Development Charges Methodologies Update Report and Rate Study."

(28)

"Single-family dwelling unit"

means one detached residential dwelling unit, or one-half of a duplex, or one row house.

(Ord. 272-2003 § 2, 2003; Ord. 325-2012, 2012)

§ 15.15.030 Rules of construction.

For the purposes of administration and enforcement of this chapter, unless otherwise stated in this chapter, the following rules of construction shall apply:

In case of any difference of meaning or implication between the text of this chapter and any caption, illustration, summary table, or illustrative table, the text shall control.

The word "shall" is always mandatory and not discretionary; the word "may" is permissive.

Words used in the present tense shall include the future; words used in the singular number shall include the plural and the plural the singular, unless the context clearly indicates the contrary.

The phrase "used for" includes "arranged for," "designed for," "maintained for," or "occupied for."

Where a regulation involves two or more connected items, conditions, provisions, or events:

"And" indicates that all the connected terms, conditions, provisions or events shall apply;

"Or" indicates that the connected items, conditions, or provisions or events may apply singly or in any combination.

The word "includes" shall not limit a term to the specific example, but is intended to extend its meaning to all other instances or circumstances of like kind or character.

(Ord. 272-2003 § 3, 2003)

§ 15.15.040 Application.

This chapter applies to all new development throughout Hubbard. The amount of the SDC shall be calculated according to this section, with rates as outlined in the SDC methodology report.

Except as otherwise provided in this chapter, the SDC set forth herein shall be imposed upon all new development for which a technically complete application is filed on or after the effective date of the ordinance codified in this chapter.

Except as otherwise provided in this chapter, manufactured housing shall be charged at the single-family residential dwelling unit SDC rate.

Except as otherwise provided in this chapter, accessory dwelling units shall be charged at one-half the residential dwelling unit SDC rate.

The applicant shall at the time of application provide the administrator with the information requested on an SDC application form regarding the previous and proposed use(s) of the new development, including a description of each of the previous and proposed uses for the property for which the building permit is being sought, with sufficient detail to enable the city to calculate the number of employees and dwelling units under the previous use and for the proposed use(s) of the new development.

For residential uses: the number of residential dwelling units for the previous and proposed use(s) of the new development.

For commercial uses: the square footage for each type of nonresidential use (i.e., office, warehouse, retail, etc.) for the previous and proposed use(s) of the new development.

Except as otherwise provided in this chapter, the amount of the SDC shall be determined by calculating the SDC amount that would have been imposed for the previous use(s) of the property and the SDC amount for the proposed use(s).

Notwithstanding any other provision, the dollar amounts of the SDC set forth in the SDC methodology report shall on January 1st of each year be adjusted to account for changes in the costs of acquiring and constructing facilities. The adjustment factor shall be based on:

§ 15.15.050 Partial and full exemptions.

The change in construction costs according to the Engineering News Record (ENR) Northwest (Seattle, Washington) Construction Cost Index (CCI).

The system development charges adjustment factor shall be used to adjust the system development charges, unless they are otherwise adjusted by the city based on a change in the costs of materials, labor, or real property; or adoption of an updated methodology.

(Ord. 272-2003 § 4, 2003; Ord. 299-2007, 2007)

The uses listed and described in this section shall be exempt, either partially or fully, from payment of the SDC. Any applicant seeking an exemption under this section shall specifically request that exemption no later than the time of application for the building permit. Where new development consists of only part of one or more of the uses described in this section, only that/those portion(s) of the development which qualify under this section are eligible for an exemption. The balance of the new development which does not qualify for any exemption under this section shall be subject to the full SDC. Should the applicant dispute any decision by the city regarding an exemption request, the applicant must apply for an alternative exemption calculation under HMC § 15.15.070. The applicant has the burden of proving entitlement to any exemption so requested.

Temporary uses are fully exempt so long as the new development use or structure will be used for not more than 180 days in a single calendar year.

Alteration permits for tenant improvements are fully exempt.

New development which, in the administrator's opinion, will not create demands on the system greater than those of the present use of the property are fully exempt.

(Ord. 272-2003 § 5, 2003)

§ 15.15.060 SDC credits.

The city shall grant a credit against the SDC, which is otherwise assessed for a new development, for any qualified public improvement(s) constructed or dedicated as part of that new development. The applicant bears the burden of evidence and persuasion in establishing entitlement to an SDC credit and to a particular value of SDC credit.

To obtain an SDC credit, the applicant must specifically request a credit prior to the city's issuance of a building permit for the new development. In the request, the applicant must identify the improvement(s) for which credit is sought and explain how the improvement(s) meet the requirements for a qualified public improvement. The applicant shall also document, with credible evidence, the value of the improvement(s) for which credit is sought. If, in the administrator's opinion, the improvement(s) is a qualified public improvement, and the administrator concurs with the proposed value of the improvement(s), an SDC credit shall be granted. The value of the SDC credits under this section shall be determined by the administrator based on the cost of the qualified public improvement, or the value of land dedicated, as follows:

For dedicated lands, the value shall be based upon a written appraisal of fair market value by a qualified, professional appraiser based upon comparable sales of similar property between unrelated parties in an arms-length transaction;

For improvements yet to be constructed, value shall be based upon the anticipated cost of construction. Any such cost estimates shall be certified by a professional architect or engineer or based on a fixed price bid from a contractor ready and able to construct the improvement(s) for which SDC credit is sought;

For improvements already constructed, value shall be based on the actual cost of construction as verified by receipts submitted by the applicant;

For all improvements for which credit is sought, only the fraction of over-capacity in the improvement is eligible for SDC credit.

The administrator will respond to the applicant's request in writing within 30 days of when the request is submitted. The administrator shall provide a written explanation of the decision on the SDC credit request.

If the applicant disputes the administrator's decision with regard to an SDC credit request, including the amount of the credit, the applicant may seek an alternative SDC credit calculation under HMC § 15.15.070. Any request for an alternative SDC credit calculation must be filed with the administrator in writing within 30 calendar days of the written decision on the initial credit request.

Where the amount of an SDC credit approved by the administrator under this section exceeds the amount of the SDC assessed by the city upon a new development, the excess credit may be applied against SDCs that accrue in subsequent phases of the original development project. Any excess credit must be used not later than 10 years from the date the credit is given.

§ 15.15.070 Alternative calculation for SDC rate, credit, or exemption.

Notwithstanding any other provision of this chapter, the city may, by action of the city council, provide a greater credit, establish a system providing for the transferability of credits, provide a credit for a capital improvement not identified in the SDC methodology report or CIP, or provide a share of the cost or a capital improvement by means other than a credit.

(Ord. 272-2003 § 6, 2003)

Pursuant to this section, an applicant may request an alternative SDC rate calculation, alternative SDC credit determination, or alternative SDC exemption, under the following circumstances:

The applicant believes that the impact on facilities resulting from the new development is, or will be, less than that contemplated in the SDC methodology report, and for that reason, the applicant's SDC should be lower than that calculated by the city.

The applicant believes that property taxes paid by the property subject to development are, or will be, more than is provided by any credit for tax payments which may be included in the SDC methodology report, and for that reason, the applicant's SDC should be lower than that calculated by the city.

The applicant believes the city improperly excluded from consideration a qualified public improvement that would qualify for credit under HMC § 15.15.060, or the city accepted for credit a qualified public improvement, but undervalued that improvement and therefore undervalued the credit.

The applicant believes the city improperly rejected a request for an exemption under HMC § 15.15.050 for which the applicant believes it is eligible.

Alternative SDC Rate Request.

If an applicant believes that the assumptions for the class of structures that includes the new development are not appropriate for the subject new development, the applicant must request an alternative SDC rate calculation, under this section, no later than the time of issuance of a building permit for the new development. Alternative SDC rate calculations for occupancy must be based on analysis of occupancy of classes of structures, not on the intended occupancy of a particular new development.

In support of the alternative SDC rate request, the applicant must provide complete and detailed documentation, including verifiable data, analyzed and certified by a suitable and competent professional. The applicant's supporting documentation must rely upon generally accepted sampling methods, sources of information, cost analysis, demographics, growth projections, and techniques of analysis as a means of supporting the proposed alternative SDC rate. The proposed alternative SDC rate calculation shall include an explanation with particularity why the rate established in the SDC methodology does not accurately reflect the new development's impact on the city's capital improvements.

The administrator shall apply the alternative SDC rate if, in the administrator's opinion, the following are found:

The evidence and assumptions underlying the alternative SDC rate are reasonable, correct and credible and were gathered and analyzed in compliance with generally accepted principles and methodologies consistent with this section; and

(ii)

The calculation of the proposed alternative SDC rate was by a generally accepted methodology; and

(iii)

The proposed alternative SDC rate better or more realistically reflects the actual impact of the new development than the rate set forth in the SDC methodology report.

Within 30 days of the applicant's submission of the request, the administrator shall provide a written decision explaining the basis for rejecting or accepting the request.

Alternative SDC Credit Request.

If an applicant has requested an SDC credit pursuant to HMC § 15.15.060 and that request has been denied by the city, the applicant may request an alternative SDC credit calculation, under this section, no later than the time of application for a building permit.

In support of the alternative SDC credit request, the applicant must provide complete and detailed documentation, including appraisals, cost analysis or other estimates of value, analyzed and certified to by an appropriate professional, for the improvements for which the applicant is seeking credit. The applicant's supporting documentation must rely upon generally accepted sources of information, cost analysis, and techniques of analysis as a means of supporting the proposed alternative SDC credit.

The administrator shall apply the alternative SDC credit if, in the administrator's opinion, the following are found:

The improvement(s) for which the SDC credit is sought are qualified public improvement(s); and

(ii)

The evidence and assumptions underlying the applicant's alternative SDC credit request are reasonable, correct, and credible and were gathered and analyzed by an appropriate competent professional in compliance with generally accepted principles and methodologies; and

(iii)

The proposed alternative SDC credit is based on realistic, credible valuation or benefit analysis.

Within 30 days of the applicant's submission of the request, the administrator shall provide a written decision explaining the basis for rejecting or accepting the request.

Alternative SDC Exemption Request.

If an applicant has requested a full or partial exemption under HMC § 15.15.050 and that request has been denied, the applicant may request an alternative SDC exemption under this section, no later than the time of application for a building permit for the new development.

In support of the alternative SDC exemption request, the applicant must provide complete and detailed documentation demonstrating that the applicant is entitled to one of the exemptions described in HMC § 15.15.050.

The administrator shall grant the exemption if, in the administrator's opinion, the applicant has demonstrated with credible, relevant evidence that it meets the pertinent criteria in HMC § 15.15.050.

§ 15.15.080 Due date of payment of SDC charges.

Within 30 days of the applicant's submission of the request, the administrator shall provide a written decision explaining the basis for rejecting or accepting the request.

(Ord. 272-2003 § 7, 2003)

The SDC required by this chapter to be paid is due upon issuance of the building permit.

(Ord. 272-2003 § 8, 2003)

§ 15.15.090 Refunds.

Refunds may be given by the administrator upon finding that there was a clerical error in the calculation of the SDC. The city shall refund to the applicant any SDC revenues not expended within 10 years of receipt.

(Ord. 272-2003 § 9, 2003)

§ 15.15.100 Dedicated accounts and appropriate use of accounts.

All monies derived from improvement fee SDCs shall be placed in SDC improvement fee accounts and shall be used solely for the purpose of providing capacity-increasing capital improvements as identified in the SDC methodology report and the city's adopted capital improvements plan, and for eligible compliance and administrative costs. In this regard, these SDC revenues may be used for purposes that include:

Design and construction plan preparation;

Permitting;

Land and materials acquisition, including any costs of acquisition or condemnation;

Construction of capital improvements;

(e)

Design and construction of new drainage facilities required by the construction of capital improvements and structures;

(f)

Relocating utilities required by the construction of improvements;

(g)

Landscaping;

(h)

Construction management and inspection;

Surveying, soils and material testing;

(j)

Acquisition of capital equipment that is an intrinsic part of a facility;

(k)

Demolition that is part of the construction of any of the improvements on this list;

(l)

Payment of principal and interest, necessary reserves and costs of issuance under any bonds or other indebtedness issued by the city to provide money to construct or acquire facilities;

(m)

Direct costs of complying with the provisions of ORS 223.297 to 223.314, including the consulting, legal, and administrative costs required for developing and updating master plans, the system development charges methodology, and capital improvement plan; and the costs of collecting and accounting for system development charges expenditures.

All monies derived from reimbursement fee SDCs shall be placed in SDC reimbursement fee accounts and shall be used solely for the purpose of providing capital improvements identified in the city's capital improvements plans, and for eligible compliance and administrative costs.

Money on deposit in any SDC account shall not be used for:

Any expenditure that would be classified as a maintenance or repair expense; or

Costs associated with the construction of administrative office facilities that are more than an incidental part of other capital improvements; or

Costs associated with acquisition or maintenance of rolling stock.

(Ord. 272-2003 § 10, 2003)

§ 15.15.110 Challenges and appeals.

For purposes of this chapter, any citizen or other interested person may challenge the expenditure of SDC revenues by filing a challenge to the expenditure with the administrator within two years after the date of the disputed SDC revenue expenditure. The fee for filing such a challenge shall be set by resolution.

Except where a different time for an administrator's decision is provided in this chapter, all administrator decisions shall be in writing and shall be delivered to the applicant within 30 days of an application or other applicant request for an administrator determination. Delivery shall be deemed complete upon the earlier of actual delivery to the applicant or upon deposit by the administrator by certified mail, addressed to the address for notice applicant has designated in the application. Any person may appeal to the city council any decision of the administrator made pursuant to this chapter by filing a written request with the administrator within 30 days after the delivery of the administrator's written decision to the applicant. The fee for appealing a decision to the city council shall be set by resolution. The appeal to be filed with the city council shall contain the following information:

The name and address of the applicant;

The legal description of the property in question;

If issued, the date of the building permit;

A brief description of the nature of the development being undertaken pursuant to the building permit;

(e)

If paid, the date the system development charges were paid; and

(f)

A statement of the reasons why the applicant is appealing a decision.

Upon receipt of such request, the city shall schedule a hearing before the city council at a regularly scheduled meeting or a special meeting called for the purpose of conducting the hearing and shall provide the applicant written notice of the time and place of the hearing. Such hearing shall be held within 90 days of the date the appeal was filed.

The city council shall conduct a hearing in a manner designed to obtain all information and evidence relevant to the requested hearing. Formal rules of civil procedures and evidence shall not be applicable; however, the hearing shall be conducted in a fair and impartial manner with each party having an opportunity to be heard and to present information and evidence.

Any applicant who appeals a decision pursuant to this section and desires the immediate issuance of a building permit shall pay prior to or at the time the request for hearing is filed the applicable system development charges pursuant to HMC § 15.15.040. Said payment shall be deemed paid "under protest" and shall not be construed as a waiver of any review rights.

An applicant may appeal a decision under this section without paying the applicable system development charges, but no building permit shall be issued until such system development charges are paid in the amount initially calculated or the amount approved upon completion of the review provided in this section.

(7)

The city council shall decide an appeal within 90 days of the date of the appeal to the city council and that decision may be reviewed under ORS 34.010 to 34.100, and not otherwise.

(Ord. 272-2003 § 11, 2003)

§ 15.15.120 City review of SDC.

No later than every five years as measured from initial enactment, the city shall undertake a review to determine that sufficient money will be available to help fund the capacity-increasing facilities identified in the SDC methodology report to determine whether the adopted SDC rates keep pace with inflation, and to ensure that such facilities will not be overfunded by the SDC receipts.