Title 16
IMPACT FEES

Chapters:

16.05 Repealed

16.10 School Impact Fees

16.15 Traffic Impact Fees

Chapter 16.05
COMPREHENSIVE PLAN

(Repealed by Ord. 2005-303)

Chapter 16.10
SCHOOL IMPACT FEES

Sections:

16.10.005 Purpose.

16.10.010 Definitions.

16.10.020 Impact fee program elements.

16.10.030 Fee calculations.

16.10.040 Fee collection.

16.10.050 Assessment of impact fees.

16.10.060 Effective date.

16.10.070 Adjustments, exceptions, and appeals.

16.10.080 Exemption or reduction for low or moderate income housing.

16.10.090 Impact fee accounts and refunds.

16.10.100 Fee schedule.

16.10.005 Purpose.

This chapter relating to the assessment and collection of impact fees is adopted pursuant to Chapter 82.02 RCW for the purpose of implementing the capital facilities element of the comprehensive plan and the Growth Management Act by:

A. Ensuring that adequate public school facilities and improvements are available to serve new development;

B. Establishing standards whereby new development pays a proportionate share of the cost for public school facilities needed to serve such new development;

C. Ensuring that school impact fees are imposed through established procedures and criteria so that specific developments do not pay arbitrary fees or duplicative fees for the same impact; and

D. Providing needed funding for growth-related school improvements to meet future growth needs. (Ord. 98-174 § 1).

16.10.010 Definitions.

“District” or “school district” shall refer solely to Issaquah School District No. 411. (Ord. 98-174 § 1).

16.10.020 Impact fee program elements.

A. Impact fees will be assessed on every new residential unit in that portion of the city located within the district’s boundaries based on the provisions of this chapter.

B. Impact fees will be imposed on behalf of the district if the district provides to the city a capital facilities plan, the district’s standards of service for the various grade spans, estimates of the cost of providing needed facilities and other capital improvements, and any other data from the district required by the city. Any impact fee imposed shall be reasonably related to the impact caused by the development and shall not exceed a proportionate share of the cost of system improvements that are reasonably related to the development. The impact fee formula shall take into account in the fee calculation future revenues that the district will receive from the development.

C. The impact fee shall be based on a capital facilities plan developed and approved by the district, and adopted by reference by the city as part of the capital facilities element of the city’s comprehensive plan for the purpose of establishing the fee program. (Ord. 98-174 § 1).

16.10.030 Fee calculations.

A. The impact fees for the district shall be calculated based on the formula set out in Attachment A* to the ordinance codified in this chapter.

B. Separate fees shall be calculated for single-family and multifamily residential units, and separate student generation rates must be determined by the district for each type of residential unit. For purposes of this chapter, single-family residential units shall mean single detached dwelling units, and multifamily units shall mean townhouses and apartments. Mobile homes shall be treated as single-family residential units, and duplexes shall be treated as multifamily residential units.

C. The fee calculations shall be made on a district-wide basis to assure maximum utilization of all school facilities in the district used currently or within the last two years for instruction purposes.

D. The formula in Attachment A* provides a credit for the anticipated tax contributions that would be made by the development based on historical levels of voter support for bonds issued in the district.

E. The formula also provides for a credit for school facilities or sites actually provided by a developer which the district finds to be acceptable. (Ord. 98-174 § 1).

*Code reviser’s note: Attachment A to Ordinance No. 98-174 is available in the office of the city clerk.

16.10.040 Fee collection.

A. Impact fees shall be collected by the city and paid to the district pursuant to administrative rules under an interlocal agreement. For administrative convenience while processing the fee payments, the city may temporarily deposit school impact fees in a city account. The city shall deposit the school impact fees collected on behalf of the district in the district’s school impact fee account.

B. The district shall establish a school impact fee account with the office of the King County treasurer, who serves as the treasurer for the district. The account shall be an interest bearing account, and the school impact fees received shall be prudently invested in a manner consistent with the investment policies of the district. (Ord. 98-174 § 1).

16.10.050 Assessment of impact fees.

A. Except as otherwise provided in this chapter, the city shall collect impact fees from any applicant seeking development approval from the city where the development activity requires final plat or PUD approval or the issuance of a residential building permit or a mobile home permit, and the fee for the lot or unit has not been previously paid. No approval shall be granted and no permit shall be issued until the required school impact fees have been paid.

B. For a plat or PUD applied for on or after September 30, 1994, 50 percent of the impact fees due on the plat or PUD shall be assessed and collected from the applicant at the time of final approval, using the impact fee schedules in effect when the plat or PUD is approved. The balance of the assessed fee shall be allocated to the dwelling units in the project, and shall be collected when the building permits are issued. Residential developments proposed for short plats shall be governed by subsection (D) of this section.

C. If on September 30, 1994, a plat or PUD had received preliminary approval, such plat or PUD shall not be required to pay 50 percent of the impact fees at the time of final approval, but the impact fees shall be assessed and collected from the lot owner at the time the building permits are issued, using the impact fee schedule in effect at the time of building permit application. If on September 30, 1994, an applicant had applied for preliminary plat or PUD approval, but had not yet received such approval, the applicant shall follow the procedures set forth in subsection (B) of this section.

D. For existing lots or lots not covered by subsection (B) of this section, application for single-family and multifamily residential building permits, mobile home permits, and site plan approval for mobile home parks, the total amount of the impact fees shall be assessed and collected from the applicant when the building permit or mobile home permit is issued, using the impact fee schedules in effect at the time of permit application. (Ord. 98-174 § 1).

16.10.060 Effective date.

No fee shall be assessed or collected on any pending building permit which has been applied for prior to the effective date of the impact fee. (Ord. 98-174 § 1).

16.10.070 Adjustments, exceptions, and appeals.

A. The following are excluded from the application of the impact fees:

1. Any form of housing exclusively for senior citizens, including nursing homes and retirement centers, so long as these uses are maintained;

2. Reconstruction, remodeling, or replacement of existing dwelling units which does not result in additional new dwelling units. In the case of replacement of a dwelling, a complete application for a building permit must be submitted within three years after it has been removed or destroyed;

3. Shelters for temporary placement, relocation facilities, transitional housing facilities and community residential facilities;

4. Any development activity that is exempt from the payment of an impact fee pursuant to RCW 82.02.100, due to mitigation of the same system improvement under the State Environmental Policy Act;

5. Any development activity for which school impacts have been mitigated pursuant to a condition of plat or PUD approval to pay fees, dedicate land or construct or improve school facilities, unless the condition of the plat or PUD approval provides otherwise; provided, that the condition of the plat or PUD approval predates the effective date of this chapter;

6. Housing units which fully qualify as housing for persons age 55 and over meeting the requirements of the Federal Housing Amendments Act of 1988, 42 U.S.C. 3607(b)(2)(c) and (b)(3), as subsequently amended and which would have recorded covenants or other legal arrangements precluding school-aged children as residents in those units;

7. Mobile homes permitted as temporary dwellings pursuant to NMC 18.32.170; and

8. The addition of an accessory dwelling units as defined in NMC 18.06.183 and 18.08.030 (B)(7), by (a) constructing a new accessory dwelling unit on property with an existing dwelling, (b) reconstructing or remodeling an existing dwelling into a dwelling and an accessory dwelling unit, or (c) constructing a new dwelling and remodeling, replacing or otherwise converting an existing dwelling into an accessory dwelling unit.

B. Arrangement may be made for later payment with the approval of the district only if the district determines that it will be unable to use or will not need the payment until a later time; provided, that sufficient security, as defined by the district, is provided to assure payment. Security shall be made to and held by the district, which will be responsible for tracking and documenting the security interest.

C. The fee amount established in the schedule shall be reduced by the amount of any payment previously made for the lot or development activity in question, either as a condition of approval or pursuant to a voluntary agreement with a district entered into after the effective date of this chapter.

D. After the effective date of this chapter, whenever a development is granted approval subject to a condition that the developer actually provide school sites, school facilities, or improvements to school facilities acceptable to the district, or whenever a developer has agreed, pursuant to the terms of a voluntary agreement with the district, to provide land, provide school facilities, or make improvements to existing facilities, the developer shall be entitled to a credit for the value of the land or actual cost of construction against the fee that would be chargeable under the formula provided by this chapter. The land value or cost of construction shall be estimated at the time of approval but must be documented. If construction costs are estimated, the documentation shall be confirmed after the construction is completed to assure that an accurate credit amount is provided. If the land value or construction costs are less than the calculated fee amount, the difference remaining shall be chargeable as a school impact fee.

E.  Impact fees may be adjusted by the city, at the city’s discretion, if one of the following circumstances exist; provided, that the discount set forth in the fee formula fails to adjust for the error in the calculation or fails to ameliorate for the unfairness of the fee:

1. The developer demonstrates that an impact fee assessment was incorrectly calculated; or

2. Unusual circumstances identified by the developer demonstrated that if the standard impact fee amount was applied to the development, it would be unfair or unjust.

F. A developer may provide studies and data to demonstrate that any particular factor used by the district may not be appropriately applied to the development proposal, but the district’s data shall be presumed valid unless clearly demonstrated to be otherwise by the proponent.

G. Any appeal of the decision of the director or the hearing examiner with regard to imposition of an impact for or fee amounts shall follow the appeal process for the underlying permit and not be subject to a separate appeal process. Where no other administrative appeal process is available, an appeal may be taken to the hearing examiner using the appeal procedures for variances. Any errors in the formula identified as a result of an appeal should be referred to the council for possible modification.

H. Impact fees may be paid under protest in order to obtain a building permit or other approval of development activity, when an appeal is filed. (Ord. 98-174 § 1).

16.10.080 Exemption or reduction for low or moderate income housing.

A. Low or moderate income housing projects being developed by public housing agencies or private non-profit housing developers shall be exempt from the payment of school impact fees. The amount of the school impact fees not collected from low or moderate income household developments shall be paid from public funds other than impact fee accounts. The impact fees for these units shall be considered paid for by the district through its other funding services, without the district actually transferring funds from its other funding sources into the impact fee account. In no event shall this section be construed to require the city to provide any funds for school impact fees not collected. The department of community development shall review proposed developments of low or moderate income housing by such public or non-profit developers pursuant to criteria and procedures adopted by administrative rule to determine whether the project qualifies for the exemption.

B. Private developers who dedicate residential units for occupancy by low or moderate income households may apply to the division for reductions in school impact fees pursuant to the criteria established for public housing agencies and private non-profit housing developers pursuant to subsection (A), and subject to the provisions of subsection (A). The department shall review proposed developments of low or moderate income housing by such private developers pursuant to criteria and procedures adopted by administrative rule, whether the project qualifies for the exemption. If the department recommends the exemption, the department shall reduce the calculated school impact fee for the development by an amount that is proportionate to the number of units in the development that satisfy the adopted criteria.

C. Individual low or moderate income home purchasers (as defined pursuant to the King County Comprehensive Housing Affordability Strategy (CHAS)) who are purchasing homes at prices within their eligibility limits based on standard lending criteria and meet other means tests established by rule by the department are exempted from payment of the impact fee; provided, that at such time as the property in question is transferred to another owner who does not qualify for the exemption, at which time the fee shall be due and payable.

D. The department is authorized to adopt administrative rules to implement this section. Such rules shall provide for the administration of this program and shall:

1. Encourage the construction of housing for low or moderate income households by public housing agencies or private non-profit housing developers participating in publicly sponsored or subsidized housing programs;

2. Encourage the construction in private developments of housing units for low or moderate income households that are in addition to units required by another housing program or development condition;

3. Ensure that housing that qualifies as low or moderate costs meet appropriate standards regarding household income, rent levels or sale price location, number of units and development size, consistent with county-wide planning policies as identified in the comprehensive plan;

4. Ensure that developers who obtain an exemption from or reduction of school impact fees will in fact build the proposed low or moderate housing and make it available to low or moderate income households for a minimum of 15 years;

5. Ensure that individual low or moderate income purchasers appropriate eligibility standards based on income and other financial tests.

E. As a condition of receiving an exemption under subsection (B) or (C) of this section, the owner must execute and record a city-approved lien, covenant, and/or other contractual provision against the property for a period of 10 years for individual owners, and 15 years for private developers, guaranteed that the proposed development will continue to be used for low or moderate income housing. In the event that the pattern of development or the development is no longer for low or moderate income housing, then the owner shall pay the impact fee amount from which the owner or any prior owner was exempt. The lien, covenant, or other contractual provision shall run with the land and apply to subsequent owners. (Ord. 98-174 § 1).

16.10.090 Impact fee accounts and refunds.

A. Impact fee receipts shall be earmarked specifically and retained in a special interest-bearing account established by the district pursuant to NMC 16.10.040 solely for the district’s school impact fees. All interest shall be retained in the account and expended for the purposes identified in subsection (B) of this section. Annually, the city shall prepare a report, based in part on a report submitted by the district, on each impact fee account showing the source and amount of all moneys collected, earned or received, and capital or system improvements that were financed in whole or in part by impact fees.

B. Impact fees for the district’s system improvements shall be expended by the district for capital improvements including but not limited to school planning, land acquisition, site improvements, necessary off-site improvements, construction, engineering, architectural, permitting, financial and administrative expenses, relocatable facilities, capital equipment pertaining to educational facilities, and any other expenses which could be capitalized, and which are consistent with the district’s capital facilities plan.

C. In the event that bonds or similar debt instruments are issued for the advanced provision of capital facilities for which impact fees may be expended and where consistent with the provisions of the bond covenants, impact fees may be used to pay debt service on such bonds or similar debt instruments to the extent that the facilities or improvements provided are consistent with the requirements of this section.

D. Impact fees shall be expended or encumbered (i.e., committed as part of the funding for a facility for which the publicly funded share had been assured, or building permits applied for, or construction contracts let) by the district for a permissible use within six years of receipt by the city unless there exists an extraordinary or compelling reason for fees to be held longer than six years. Such extraordinary or compelling reasons shall be identified to the city by the district. The city must prepare written findings concurring with the district’s reasons, and authorizing the later encumbrance or expenditure of the fees prior to the district so encumbering or expending the funds, or directing a refund of the fees.

E. The current owner of property on which an impact fee has been paid may receive a refund of such fees if the impact fees have not been expended or encumbered within six years of receipt of the funds by the city. In determining whether impact fees have been unencumbered, impact fees shall be considered encumbered on a first in, first out basis. The city shall notify potential claimants by first-class mail addressed to the owner of the property as shown in the county tax records.

F. An owner’s request for a refund must be submitted to the city in writing within one year of the date the right to claim the refund arises or the date that notice is given, whichever date is later. Any impact fees that are not expended or encumbered within these time limitations, and for which no application for a refund has been made within this one-year period, shall be retained and expended consistent with the provisions of this section. Refunds of impact fees shall include any interest earned on the impact fees.

G. Should the city seek to terminate any or all school impact fee requirements, all unexpended or unencumbered funds, including interest earned, shall be refunded to the current owner of the property for which a school impact fee was paid. 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 addressed to the owner of the property as shown in the county tax records. 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, but must be expended for the district, consistent with the provisions of this section. The notice requirement set forth above shall not apply if there are no unexpended or unencumbered balances within the account or accounts being terminated.

H. A developer may request and shall receive a refund, including interest earned on the impact fees, when:

1. The developer does not proceed to finalize the development activity as required by statute, city code or the Uniform Building Code; or

2. No impact on the district has resulted. “Impact” shall be deemed to include cases where the district has expended or encumbered the impact fees in good faith prior to the application for a refund. In the event that the district has expended or encumbered the fees in good faith, no refund shall be forthcoming. However, if within a period of three years, the same or subsequent owner of the property proceeds with the same or substantially similar development activity, the owner shall be eligible for a credit. The owner must petition the city and provide receipts of impact fees paid by the owner for a development of the same or substantially similar nature on the same property or some portion thereof. The city shall determine whether to grant a credit, and such determinations may be appealed by following the procedures set forth in NMC 16.10.070.

I. Interest due upon the refund of impact fees required by this section shall be calculated according to the average rate received by the city or the district on invested funds throughout the period during which the fees were retained. (Ord. 98-174 § 1).

16.10.100 Fee schedule.

A. School Impact Fees. School impact fees on development in the city located within the boundaries of the district shall be imposed at the rate for single-family dwelling units and the rate for multifamily dwelling units established in the district’s capital facilities plan adopted by reference as a subelement of the capital facilities element of the city’s comprehensive plan.

B. City Administrative Fee. The city shall charge a fee for administering the school impact fee program in the amount established by resolution. The applicant shall pay the fee to the city at the time of paying the development application fee. (Ord. 98-174 § 1).

Chapter 16.15
TRAFFIC IMPACT FEES

Sections:

16.15.010 Findings and authority.

16.15.020 Definitions.

16.15.030 Assessment of impact fees.

16.15.040 Independent fee calculations.

16.15.050 Exemptions.

16.15.060 Credits.

16.15.070 Adjustments.

16.15.080 Establishment of impact fee account.

16.15.090 Authorization for interlocal agreements.

16.15.100 Refunds.

16.15.110 Use of funds.

16.15.120 Review of schedule.

16.15.130 Appeals.

16.15.140 Existing authority unimpaired.

16.15.010 Findings and authority.

The city council finds and determines that new development, including but not limited to new residential, commercial, retail, office, industrial and institutional development, in the city will create additional demand and need for public facilities (public streets and roads) in the city and finds that new growth and development should pay a proportionate share of the cost of new public facilities needed to serve the new growth and development. The city has conducted a study documenting the procedure for measuring the impact of new development on public facilities and has prepared rate calculations. The city council accepts the methodology and data contained in the rate calculations. Therefore, pursuant to Chapter 82.02 RCW, the city council adopts this chapter to assess impact fees for public facilities. (Ord. 2000-232 § 1).

16.15.020 Definitions.

The following terms shall have the following meanings unless the context clearly requires otherwise. Terms otherwise not defined herein shall be defined pursuant to RCW 82.02.090, or given their usual and customary meaning.

A. “Act” means the Growth Management Act, Chapter 36.70A RCW.

B. “Applicant” means the owner of real property according to the records of the King County Department of Records and Elections, or the owner’s authorized agent.

C. “Building permit” means the official document or certification that is issued by the building department and that authorizes the construction, alteration, enlargement, conversion, reconstruction, remodeling, rehabilitation, erection, tenant improvement, demolition, moving or repair of a building or structure.

D. “Capital facilities” means the right-of-way facilities or improvements included in the capital facilities plan.

E. “Capital facilities plan” means the capital facilities plan element of the city’s comprehensive plan adopted pursuant to Chapter 36.70A RCW, and such plan as amended.

F. “Certificate of occupancy” means the term as defined in the Uniform Building Code, as adopted by the city. In the case of a change in use or occupancy of an existing building or structure that may not require a building permit, the term shall specifically include certificate of occupancy and for residential development, the final inspection.

G. “Department” means the department of community development.

H. “Director” means the director of the department of community development or the director’s designee.

I. “Encumbered” means to reserve, set aside or otherwise earmark the impact fees in order to pay for commitments, contractual obligations or other liabilities incurred for public facilities.

J. “Impact fee” means a fee imposed by the city on an applicant prior to issuance of a building permit, or a certificate of occupancy if a building permit is not required, pursuant to this chapter as a condition of granting the building permit, or certificate of occupancy permit if no building permit is required, in order to pay for the public facilities needed to serve new development. “Impact fee” does not include a reasonable permit or application fee.

K. “Impact fee account” or “account” means the account established for the system improvements for which impact fees are collected. The account shall be established pursuant to this chapter, and shall comply with the requirements of RCW 82.02.070.

L. “Independent fee calculation” means the study or data submitted by an applicant to support the assessment of an impact fee other than the fee imposed in NMC 16.15.030.

M. “Interest” means the interest rate earned by local jurisdictions of the State of Washington Local Government Investment Pool, if not otherwise defined.

N. “Interlocal agreement” or “agreement” means a roads interlocal agreement, authorized in this chapter, by and between the city and other government agencies concerning the collection and expenditure of impact fees, or any other interlocal agreement entered by and between the city and another municipality, public agency or governmental body to implement the provisions of this chapter.

O. “Low-income housing” means (1) an owner-occupied housing unit affordable to households whose household income is less than 80 percent of the King County median income, adjusted for household size, as determined by the United States Department of Housing and Urban Development (HUD), and no more than 30 percent of the household income is paid for housing expenses or (2) a renter-occupied housing unit affordable to households whose income is less than 60 percent of the King County median income, adjusted for household size, as determined by HUD, and no more than 30 percent of the household income is paid for housing expenses (rent and an appropriate utility allowance). In the event that HUD no longer publishes median income figures for King County, the city may use or determine such other method as it may choose to determine the King County median income, adjusted for household size. The director will make a determination of sales prices or rents that meet the affordability requirements of this section. An applicant for a low-income housing exemption may be a public housing agency, a private nonprofit housing developer or a private developer.

P. “Owner” means the owner of real property according to the records of the King County Department of Records and Elections; provided, that if the real property is being purchased under a recorded real estate contract, the purchaser shall be considered the owner of the real property.

Q. “Project improvements” means site improvements and facilities that are planned and designed to provide service for a particular development or users of a project, and are not system improvements. No improvement or facility included in the capital facilities plan shall be considered a project improvement.

R. “Public facilities” means the public streets and roads of the city or other governmental entities.

S. “Residential” means housing, such as single-family dwellings, accessory dwelling units, apartments, condominiums, mobile homes and/or manufactured homes, intended for occupancy by one or more persons and not offering other services. For this purpose of this chapter, an accessory dwelling unit, as defined in NMC Title 18, is considered an adjunct to the associated single-family dwelling unit and is not charged a separate impact fee.

T. “Road” means a right-of-way which affords the principal means of access to abutting property, including avenue, place, way, drive, lane, boulevard, highway, street, and other thoroughfare, except an alley.

U. “System improvements” means public facilities included in the capital facilities plan and designed to provide service to service areas within the community at large, in contrast to project improvements. (Ord. 2000-232 § 1).

16.15.030 Assessment of impact fees.

A. The city shall collect impact fees in the amount established in the schedule in Attachment A, attached to the ordinance codified in this section and hereby incorporated by reference, from any applicant seeking a building permit from the city, or certificate of occupancy permit if a building permit is not required.

B. All impact fees shall be collected from the applicant prior to issuance of the building permit, or certificate of occupancy permit if no building permit is required, using the impact fee schedule then in effect or pursuant to an independent fee calculation accepted by the director pursuant to NMC 16.15.040.

C. The director shall establish the impact fee rate for a land use that is not listed on the schedule in Attachment A. The applicant shall submit all information requested by the director for purposes of determining the impact fee rate pursuant to NMC 16.15.040. The cost per trip adopted in the schedule in Attachment A shall be the basis for establishing the impact fee rate.

D. For a change in use of an existing building or dwelling unit, the impact fee shall be the applicable impact fee for the land use category of the new use, less any impact fee previously paid for the land use category of the prior use. For any change in use that includes an alteration, expansion, replacement or new accessory building, the impact fee shall be the applicable impact fee for the land use category of the new use, less any impact fee previously paid for the land use category of the prior use.

E. For building permits for mixed use developments, impact fees shall be imposed for the proportionate share of each land use based on the applicable measurement in the schedule in Attachment A.

F. The building department shall not issue any building permit, or certificate of occupancy if no building permit is required, unless and until the impact fee has been paid. (Ord. 2004-299 § 1; Ord. 2000-232 § 1).

16.15.040 Independent fee calculations.

A. If in the judgment of the director, none of the fee categories or fee amounts set forth in the schedule in Attachment A accurately describes the impacts resulting from issuance of the proposed building permit, or certificate of occupancy if no building permit is required, the applicant shall provide to the director for review and evaluation an independent fee calculation, prepared by a traffic engineer approved by the director. The director may impose on the proposed building permit, or certificate of occupancy if no building permit is required, an alternative impact fee based on this calculation. With the independent fee calculation, the applicant shall pay to the department an administrative processing fee of one hour of staff time at the then-current rate established by the adopted city fee schedule.

B. If an applicant requests not to have the impact fees determined according to the schedule in Attachment A, then the applicant shall submit to the director an independent fee calculation, prepared by a traffic engineer approved by the director and paid for by the applicant, for the building permit, or certificate of occupancy if no building permit is required. The independent fee calculation shall show the basis upon which it was made and shall include, but not be limited to, trip generation characteristics. With the request, the applicant shall pay to the department an administrative processing fee of $235.00 per fee calculation.

C. While there is a presumption that the calculations set forth in the city’s rate calculations are correct, the director shall consider the documentation submitted by the applicant, but is not required to accept such documentation that the director reasonably deems to be inaccurate or not reliable, and may, in the alternative, require the applicant to submit additional or different documentation. The director is authorized to adjust the impact fee on a case-by-case basis based on the independent fee calculation, the specific characteristics of the building permit, or certificate of occupancy permit if no building permit is required, and/or principles of fairness.

D. Determinations made by the director pursuant to this section may be appealed to the hearing examiner under the procedures set forth in NMC 16.15.130. (Ord. 2000-232 § 1).

16.15.050 Exemptions.

A. The following building permit applications, or certificate of occupancy if no building permit is required, shall be exempt from impact fees:

1. Any building permit application, or certificate of occupancy application if no building permit is required, that has been submitted to the building department before 5:00 p.m. the business day before the effective date of this chapter and subsequently determined to be a complete application, based on the information on file as of the effective date of this chapter.

2. Replacement of a structure with a new structure of the same use at the same site when the replacement occurs within 12 consecutive months of the demolition or destruction of the prior structure.

3. Replacement, alteration, expansion, enlargement, remodeling, rehabilitation or conversion of an existing dwelling unit where no additional units are created and the use is not changed.

4. Alteration of an existing nonresidential structure that does not increase the square footage or change the use.

5. Miscellaneous improvements, including but not limited to fences, walls, swimming pools, mechanical units, and signs.

6. Demolition or moving of a structure.

7. Low-Income Housing.

a. Construction or Creation of Low-Income Housing. Any claim for an exemption must be made before payment of the impact fee. Any claim not so made shall be deemed waived. The claim for exemption must be accompanied by a draft notice and covenant against the property guaranteeing that the low-income housing will continue. Before approval of the exemption, the department shall approve the form of the notice and covenant. Within 10 days of approval, the applicant shall execute and record the approved notice and covenant with the King County Department of Records and Elections. The notice and covenant shall run with the land. If the housing unit is no longer used for low-income housing, the current owner shall pay the current impact fee.

b. The amount of impact fees not collected from low-income housing pursuant to this exemption shall be paid from public funds other than the impact fee account.

B. The director shall be authorized to determine whether a particular development for a proposed building permit, or certificate of occupancy if no building permit is required, falls within an exemption of this chapter. Determinations of the director shall be subject to the appeals procedures set forth in NMC 16.15.130. (Ord. 2000-232 § 1).

16.15.060 Credits.

A. An applicant may request a credit or credits for the value of dedicated land, improvements, or construction if the land and/or the facility constructed are included within the capital facilities plan or the director makes the finding that such land and/or facility would serve the goals and objectives of the capital facilities plan.

B. Each request for a credit or credits shall include a legal description of land donated, a detailed description of improvements or construction provided, and a legal description or other adequate description of the development to which the credit will be applied.

C. For each request for a credit or credits, the director shall determine the value of the dedicated land, improvements, or construction on a case-by-case basis. If the applicant disagrees with the director’s valuation, the applicant may submit an appraisal for the director’s consideration, prepared by a state-certified real estate appraiser who has an MAI or SRA designation from the Appraisal Institute, establishing the fair market value of the dedicated land, improvements, or construction. The applicant shall pay the cost of the appraisal.

D. After the director has determined the amount of the credit, the department shall include the determination, with issuance of the building permit, or occupancy permit if no building permit is required, a statement setting forth the dollar amount of the credit, the basis for the credit, where applicable, the description of the land donated to which the credit is applied and the date of the determination.

E. Any claim for credit must be made before payment of the impact fee and prior to issuance of the building permit, or certificate of occupancy if no building permit is required. Any claim not so made shall be deemed waived.

F. No credit shall be given for project improvements or right-of-way dedications for direct access improvements to and/or within the subject development.

G. Determinations made by the director pursuant to this chapter shall be subject to the appeals procedures set forth in NMC 16.15.130. (Ord. 2000-232 § 1).

16.15.070 Adjustments.

Pursuant to and consistent with the requirements of RCW 82.02.060, the city’s rate calculations have provided adjustments for past and future payments made or reasonably anticipated to be paid by the new development which are earmarked or pro-ratable to the same new system improvements that will serve the new development. The schedule in Attachment A has been reasonably adjusted for taxes and other revenue sources that are anticipated to be available to fund system improvements. (Ord. 2000-232 § 1).

16.15.080 Establishment of impact fee account.

A. An impact fee account is established for the fees collected pursuant to this chapter and shall be entitled the “roads impact fee account.” Impact fees shall be earmarked specifically and deposited in the special interest bearing account and shall be prudently invested in a manner consistent with the investment policies of the city. Funds withdrawn from this account shall be used in accordance with NMC 16.15.110. Interest earned on impact fees shall be retained in the account and expended for the purpose for which the impact fees were collected.

B. On an annual basis, the finance director shall provide a report to the council on the account showing the source and amount of all moneys collected, earned, or received, and system improvements that were financed in whole or in part by impact fees.

C. Impact fees shall be expended or encumbered within six years of receipt, unless the council identifies in written findings an extraordinary and compelling reason or reasons for the city to hold the fees beyond the six-year period. Under such circumstances, the council shall establish the period of time within which the impact fees shall be expended or encumbered. (Ord. 2000-232 § 1).

16.15.090 Authorization for interlocal agreements.

The city manager is authorized to execute, on behalf of the city, an interlocal agreement with other state and local governments for the collection, expenditure, and reporting of impact fees. (Ord. 2000-232 § 1).

16.15.100 Refunds.

A. If the city fails to expend or encumber the impact fees within six years of payment or such other time period established pursuant to NMC 16.15.080, the current owner of the property for which impact fees have been paid may receive a refund of the fee. In determining whether impact fees have been expended or encumbered, impact fees shall be considered expended or encumbered on a first in, first out basis.

B. The city shall notify potential claimants by first class mail deposited with the United States Postal Service at the last known address of such claimants.

C. Property owners seeking a refund of impact fees must submit a written request for a refund of the fees to the director within one year of the date the right to claim the refund arises or the date that notice is given, whichever is later.

D. Any impact fees for which no application for a refund has been made within the one-year period shall be retained by the city and expended on the appropriate public facilities.

E. Refunds of impact fees under this chapter shall include any interest earned on the impact fees by the city.

F. If the city terminates the impact fee program, all unexpended or unencumbered funds, including interest earned, shall be refunded pursuant to this chapter. The city shall publish notice of the 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 after the second publication. At the end of one year, any remaining funds shall be retained by the city, but must be expended for the appropriate public facilities. This notice requirement shall not apply if there are no unexpended or unencumbered balances within the account.

G. The city shall also refund the impact fee paid plus interest to the current owner of property for which the impact fee had been paid, if the development is never completed or occupied; provided, that if the city expended or encumbered the impact fee in good faith prior to the application for a refund, the director may decline to provide the refund. If within a period of three years, the same or subsequent owner of the property proceeds with the same or substantially similar development, the owner can petition the director for an offset. The petitioner shall provide receipts of impact fees previously paid for a development of the same or substantially similar nature on the same property or some portion thereof. The director shall determine whether to grant an offset. The determination of the director may be appealed pursuant to the procedures in NMC 16.15.130. (Ord. 2000-232 § 1).

16.15.110 Use of funds.

A. Impact fees may be spent for system improvements, including but not limited to transportation planning, engineering design studies, land surveys, right-of-way acquisition, engineering, permitting, financing, administrative expenses, construction of streets and roads and related facilities such as curbs, gutters, sidewalks, bike lanes, storm drainage and installation of traffic signals, signs and street lights.

B. Impact fees may be used to recoup cost for system improvement previously incurred by the city to the extent that new development will be served by the previously constructed system improvements.

C. In the event that bonds or similar debt instruments are or have been issued for the advanced provision of system improvements, impact fees may be used to pay debt service on such bonds or similar debt instruments to the extent that system improvements provided are consistent with the requirements of this chapter and are used to serve the new development. (Ord. 2000-232 § 1).

16.15.120 Review of schedule.

A. The schedule in Attachment A shall be reviewed by the council no later than three years after the effective date of this chapter, and every three years thereafter.

B. The schedule in Attachment A may be reviewed by the council as it deems appropriate in conjunction with the update of the capital facilities plan. (Ord. 2000-232 § 1).

16.15.130 Appeals.

A. An appeal of an impact fee imposed on a building permit, or certificate of occupancy if no building permit is required, may only be filed by the applicant of the subject property. An applicant may either file an appeal and pay the impact fee imposed by this chapter under protest, or appeal the impact fee before issuance of the building permit or certificate of occupancy if no building permit is required. No appeal may be filed after the impact fee has been paid and the building permit or certificate of occupancy has been issued.

B. An appeal shall be filed with the hearing examiner on the following determinations of the director:

1. The applicability of the impact fees to a given building permit or certificate of occupancy found in NMC 16.15.030 and 16.15.050;

2. The decision on an independent fee calculation in NMC 16.15.040;

3. The availability or value of a credit in NMC 16.15.060; or

4. Any other determination which the director is authorized to make pursuant to this chapter.

C. An appeal, in the form of a letter of appeal, along with the required appeal fee, shall be filed with the department for all determinations by the director, prior to issuance of a building permit, or certificate of occupancy if no building permit is required. The letter must contain the following:

1. A basis for and arguments supporting the appeal; and

2. Technical information and specific data supporting the appeal.

D. The fee for filing an appeal shall be in accordance with the adopted city fee schedule.

E. Within 28 days of the filing of the appeal, the director shall mail to the hearing examiner the following:

1. The appeal and any supportive information submitted by the appellant;

2. The director’s determination along with the record of the impact fee determination and, if applicable, the independent fee calculation; and

3. A memorandum from the director analyzing the appeal.

F. The hearing examiner shall review the appeal from the applicant, the director’s memorandum, and the record of determination from the director. No oral testimony shall be given, although legal arguments may be made. The determination of the director shall be accorded substantial weight.

G. The hearing examiner shall make findings of fact and conclusions of law regarding the decision. The hearing examiner may, so long as such action is in conformance with the provisions of this chapter, reverse or affirm, in whole or in part, or modify the determination of the director, and may make such order, requirements, decision or determination as ought to be made, and to that end shall have the powers which have been granted to the director by this chapter. The hearing examiner’s decision shall be final.

H. The hearing examiner shall distribute a written decision to the director and the appellant within 15 working days. (Ord. 2000-232 § 1).

16.15.140 Existing authority unimpaired.

Nothing in this chapter shall preclude the city from requiring the applicant for a building permit, or certificate of occupancy if no building permit is required, to mitigate adverse environmental impacts of a specific development pursuant to the State Environmental Policy Act, Chapter 43.21C RCW, based on the environmental documents accompanying the underlying development approval process, and/or Chapter 58.17 RCW, governing plats and subdivisions; provided, that the exercise of this authority is consistent with the provisions of RCW 82.02.050(1)(c). (Ord. 2000-232 § 1).