Millbrae City Zoning Code
ARTICLE XVIII
Millbrae Station Area Specific Plan Development Impact Fee
§ 10.05.1800 Authority.
This article is enacted pursuant to Government Code Sections 66000 et seq. (the "Mitigation Fee Act") and the police power granted to cities in the Constitution of the State of California.
(Formerly 10.05.0620; 1976 Code § 10-1.5(2)01; Amended by Ord. 726 § 2 (Att. A); Ord. 658 § 2)
§ 10.05.1805 Definitions.
For purposes of this article, the following terms, phrases, words and their derivations shall have the meanings respectively ascribed to them by this section:
means any person who, after the effective date of the ordinance codified in this article, seeks to develop land within the MSASP area requiring issuance of a building permit.
means any permit, such as electrical, plumbing, or moving permit, required for construction, reconstruction, remodeling, or moving a structure within or into the city.
means any project within the MSASP area that requires a building permit. The term "development" or "development project" also includes projects for the erection of manufactured housing or structures, and structures moved into the city which require city permits.
means a monetary exaction, other than a tax or special assessment, which is charged by the city to an applicant in connection with approval of a development for the purpose of defraying all or a portion of the cost of facilities related to a development project within the MSASP area, but does not include city-wide fees, school fees, fees specified in Section 66477 of the California Government Code, fees for processing applications for governmental regulatory actions or approvals, fees collected under development agreements adopted pursuant to Article 2.5 (commencing with Section 65864 of Article 4, Division 1, Title 7 of the California Government Code) or fees collected pursuant to any agreement with the redevelopment agency.
means public improvements, public services, and community amenities described in the Feasibility Report and its technical evaluations, which are required to support new development within the MSASP.
means that report issued by West Yost Associates dated December 2015, entitled "Millbrae Station Area Specific Plan," which describes the facilities, estimates the cost for implementation of improvements.
means the Millbrae Station Area Specific Plan adopted by the city council on February 9, 2016, as it may hereinafter be amended.
means the area subject to the Millbrae Station Area Specific Plan, adopted on February 9, 2016, as that plan may hereinafter be amended.
means that report issued by Economic and Planning Systems, Inc., dated February 3, 2017, entitled "Millbrae Station Area Specific Plan Development Impact Fee Study," which allocates the costs estimated in the Feasibility Report for the implementation of improvements and allocates them to individual land uses within the MSASP area.
means the resolution referred to in MMC § 10.05.1820.
(Formerly 10.05.0630; 1976 Code § 10-1.5(2)02; Ord. 765 § 2; Ord. 758 § 3; Amended by Ord. 726 § 2 (Att. A); Ord. 658 § 2)
§ 10.05.1810 Purpose.
The city council finds that the impact of anticipated development pursuant to the Millbrae Station Area Specific Plan will result in unacceptable decreases in the level of public services and additional burdens on existing city facilities and infrastructure. To prevent these undesirable consequences, the city has determined that certain facilities must be provided at a rate that will accommodate the expected growth in the MSASP area. The city council also desires to ensure that this new development will pay its fair share of the cost of these facilities necessitated by development pursuant to the MSASP.
(Formerly 10.05.0640; 1976 Code § 10-1.5(2)03; Amended by Ord. 726 § 2 (Att. A); Ord. 658 § 2)
§ 10.05.1815 Application.
This article applies to fees charged as a condition of development approval within the MSASP area to defray the cost of the facilities required to serve new development within the city. This article does not replace other city-wide fees, exactions imposed pursuant to the Subdivision Map Act or other measures required to mitigate site-specific impacts of a development project, including, but not limited to, mitigations pursuant to the California Environmental Quality Act; regulatory and processing fees; fees required pursuant to a development agreement; funds collected pursuant to a reimbursement agreement that exceed the applicant's share of public improvement costs; or assessment district proceedings, benefit assessments, or taxes.
(Formerly 10.05.0650; 1976 Code § 10-1.5(2)04; Amended by Ord. 726 § 2 (Att. A); Ord. 658 § 2)
§ 10.05.1820 Establishment of development impact fees and providing for their adoption by resolution of the city council.
A.
Development impact fees are established and imposed on the issuance of all building permits for development within the MSASP area to finance the cost of the following categories of facilities:
B.
The city council shall from time to time adopt, after a noticed public hearing, the resolution establishing specific development impact fees. In adopting the resolution, the city council shall:
1.
Identify the purpose of the fee;
2.
Identify the use to which the fee is to be put. If the use is financing public facilities, the facilities shall be identified as required by the Mitigation Fee Act;
3.
Determine how there is a reasonable relationship between the fee's use and the type of development project on which the fee is imposed;
4.
Determine how there is a reasonable relationship between the need for the public facility and the type of development project on which the fee is imposed; and
5.
Establish a fee schedule.
(Formerly 10.05.0660; 1976 Code § 10-1.5(2)05; Ord. 765 § 3; Amended by Ord. 726 § 2 (Att. A); Ord. 658 § 2)
§ 10.05.1825 Imposition of development impact fee.
All applicants are required to pay the development impact fee established by MMC § 10.05.1820 as the same may be applicable, in the manner, amount, and for the purposes specified, as follows:
A.
Residential Construction. The fee shall be charged for each new dwelling unit. No fee is applicable to a development project for remodeling or for an addition to an existing unit not resulting in a new unit.
B.
Commercial Office, Retail and All Other Construction. The fee shall be charged on a per square foot basis for all new gross floor area, including additions where floor area is increased. No fee is applicable for remodeling or restoration only, where the structure is improved or replaced but the floor area is not increased.
C.
Hotel. The fee shall be charged for each separately rentable hotel room.
(Formerly 10.05.0670; 1976 Code § 10-1.5(2)06; Amended by Ord. 726 § 2 (Att. A); Ord. 658 § 2)
§ 10.05.1830 Timing of development impact fee payment.
A.
The development impact fee established pursuant to this article shall be paid for each approved development project at the time of the issuance of the first required building permit, except as otherwise provided in this article. Any fee imposed on a development that is residential in nature, however, shall be collected in accordance with the provisions of the Mitigation Fee Act, as the same presently exists or may hereafter be amended from time to time. The fee shall apply to all development projects submitted for a building permit after the effective date of the ordinance codified in this article.
B.
No city official may issue a building permit for a development until the development impact fee with respect to any such development required by this article has been paid. In no event may a city official issue a certificate of occupancy, or certify a final inspection, as the case may be, for a development which has not paid a required development impact fee.
(Formerly 10.05.0680; 1976 Code § 10-1.5(2)07; Amended by Ord. 726 § 2 (Att. A); Ord. 658 § 2)
§ 10.05.1835 Authority for additional mitigation.
The development impact fee collected pursuant to this article is not intended to replace, satisfy the need for or limit any requirements for the mitigation of impacts which are not specifically identified in the Feasibility Report and Nexus Study, which may result from a development project or which are imposed upon development projects as part of the development review process.
(Formerly 10.05.0690; 1976 Code § 10-1.5(2)08; Ord. 765 § 4; Amended by Ord. 726 § 2 (Att. A); Ord. 658 § 2)
§ 10.05.1840 Exemptions.
A.
The following shall be exempted from payment of the development impact fee:
1.
Alterations, renovations or expansion of an existing residential building or structure where no additional dwelling units are created and the use is not changed; provided, however, that the expansion of an existing commercial or industrial building or structure shall not be exempt from the fee established in this article. For purposes of this section, "expansion" is defined as any increase in the gross floor area of the existing building or structure and "change of use" is defined as the initiation of a use which requires approval of a conditional use permit, development plan or zoning change.
2.
The replacement of a destroyed or partially destroyed or damaged building or structure with a new building or structure of the same size and use.
3.
City facilities, including, but not limited to, parks, buildings and infrastructure as well as any other public facilities which are entitled under state law to an exemption from development fees.
B.
Any claim of exemption from the imposition of the development impact fee must be made no later than the time for application for fee refunds as set forth in MMC § 10.05.1855(A).
(Formerly 10.05.0700; 1976 Code § 10-1.5(2)09; Amended by Ord. 726 § 2 (Att. A); Ord. 658 § 2)
§ 10.05.1845 Fee credits.
A.
Replacement Construction. Development projects, which would otherwise be subject to the fee under this article, but that will replace structures that were partially or totally destroyed by fire, flood, earthquake, mudslide, or other casualty or act of God, are entitled to a fee credit for that portion of the development project that is replacing construction that was partially or totally destroyed, provided the construction was a lawful use under this title, including a legal nonconforming use, at the time of such destruction. The community development director or designee shall include such a credit in determining the fee in accordance with the fee schedule set forth in the resolution and such credit shall be applicable only to development on the same site.
B.
Applicant Construction of Facilities.
1.
In-Lieu Fee Credits Due.
a.
The community development director or designee may adjust the fee imposed pursuant to this article in consideration of certain facilities constructed or paid for by the applicant. At the discretion of the community development director or designee, an applicant may be entitled to a credit for the value of such facilities to the extent they are identified in the Feasibility Report and Nexus Study and the applicant: (i) constructs the facilities, (ii) finances the facilities by cash or pays the assessments of an assessment district or participates in the formation of a community facilities district, or (iii) a combination of the above.
b.
An amount of in-lieu credit that is greater than the fee required under this article may be reserved and credited toward the fee of any subsequent phases of the same development, if determined appropriate by the community development director or designee. The community development director or designee may set a time limit for reservation of the credit.
2.
No In-Lieu Fee Credits Due for Site-Related Improvements. Credit shall not be given for site-related improvements, including, but not limited to, traffic signals, right-of-way dedications, or providing paved access to the development, which are specifically required by the development project in order to serve it and which do not constitute facilities.
3.
Determination of Credit. The community development director or designee shall determine whether facilities are eligible for credit or reimbursement. The applicant seeking credit and/or reimbursement for construction of the facilities, or dedication of land or rights-of-way, shall submit such documentation, including, without limitation, engineering drawings, specifications, and construction cost estimates, and utilize such methods as may be appropriate and acceptable to the community development director or designee to support the request for credit or reimbursement. The community development director or designee shall determine credit for construction of the facilities based upon either these cost estimates or upon alternative engineering criteria and construction cost estimates if the director determines that such estimates submitted by the applicant are either unreliable or inaccurate.
4.
Time for Making Claim for Credit. Any claim for credit must be made no later than the application for a building permit. Any claim not so made shall be deemed waived.
5.
Transferability of Credit – Council Approval. Credits shall not be transferable from one development project to another without the approval of the city council.
C.
Payment of Park In Lieu Fees. Development fees under this chapter shall be reduced by any payment under Chapter 10.20 MMC.
D.
Appeal of Determinations of Community Development Director. Determinations made by the community development director or designee pursuant to the provisions of this section may be appealed to the city council by filing a written request with the city manager within ten days of the determination of the community development director or designee, together with the applicable fee established by resolution of the city council.
(Formerly 10.05.0710; 1976 Code § 10-1.5(2)10; Ord. 765 §§ 5, 6; Ord. 726 § 2 (Att. A); Amended by Ord. 698 § 1; Ord. 658 § 2)
§ 10.05.1850 Appeal.
An applicant for a development project may file a written appeal regarding the imposition and/or calculation of the fee, provided applicant has tendered payment in full of the required fee. Appeals must be filed within ten days of applicant's tender of payment of the fee to the city. An appeal of the imposition and/or calculation of the fee for a development project not requiring a planning application shall be made to and filed with the community development director or designee. An appeal of the imposition and/or calculation of the fee for a development project requiring a planning application or from the decision of the community development director shall be made to the city council and filed with the city clerk. The appellant shall state in detail the factual basis for the appeal and shall bear the burden of proof in presenting substantial evidence to support the appeal.
The city council or community development director or designee, as the case may be, shall uphold the fee and deny the appeal if it finds that there is a reasonable relationship between the development project's impact on the facilities and the amount of the fee. The city council or the community development director or designee, as the case may be, shall consider the land use category determination, and the substance and nature of the evidence, including the fee calculation method, supporting technical documentation, and the appellant's technical data. Based on the evidence, the city council or community development director or designee, as the case may be, may also modify the fee. All appeals shall be decided within sixty days of the date of filing and a written notice of decision of the appeal shall be provided to the applicant.
(Formerly 10.05.0720; 1976 Code § 10-1.5(2)11; Amended by Ord. 726 § 2 (Att. A); Ord. 658 § 2)
§ 10.05.1855 Refund of fee.
A.
In the event (1) a building permit or conditional use permit expires or is canceled, (2) no fee paid has been expended, (3) no construction has taken place, and (4) the use has never occupied the site, the community development director or designee may, upon the written request of the applicant, order return of the fee and interest earned on it, less administrative costs. If a building permit expires without commencement of construction, then the applicant shall be entitled to a refund, without interest, of the fee paid as a condition of issuance of the building permit. The applicant must submit a written request for such a refund to the city manager within thirty days of the expiration of the permit. Failure to timely submit the required request for refund shall constitute a waiver of any right to the refund.
B.
In the event any fee collected pursuant to this article remains unexpended, the city council shall make the following findings, for the fifth fiscal year following the first deposit into such account, and every five years thereafter, with respect to that portion of the account or fund remaining unexpended, whether committed or uncommitted: (1) identify the purpose to which the fee is to be put; (2) demonstrate a reasonable relationship between the fee and the purpose for which it was charged; (3) identify all sources and amounts of funding anticipated to complete financing the facilities; and (4) designate the approximate dates on which such funding is expected to be deposited into the appropriate fund.
C.
The unexpended portion of the fee, and any interest accrued thereon, for which need cannot be demonstrated pursuant to subsection B of this section, shall be refunded to the then current record owner or owners of lots or units of the development project on a prorated basis.
D.
The provisions of California Government Code Section 66001(d), (e) and (f), as the same may be amended from time to time, shall apply fully to any refund of fees, and the provisions of subsection C of this section shall be subordinate to applicable state law and shall be applied consistent therewith.
(Formerly 10.05.0730; 1976 Code § 10-1.5(2)12; Ord. 726 § 2 (Att. A); Amended by Ord. 698 § 1; Ord. 658 § 2)
§ 10.05.1860 Accumulation and use of funds.
A.
Revenues collected from development impact fees shall be used for the purpose of (1) paying the actual or estimated costs of constructing and/or improving the facilities, including any required acquisition of land or rights-of-way therefor; (2) reimbursing the city for the development project's share of those facilities already constructed by the city or to reimburse the city for costs advanced, including, without limitation, administrative costs and costs of financing incurred to construct specific facilities; (3) reimbursing other developers who have constructed facilities described in the Feasibility Report and Nexus Study, where the scope of those facilities exceeded that needed to mitigate the impact of the applicant's development project; or (4) paying costs required for the administration of this article.
B.
In the event that bonds or similar debt instruments are issued for advanced provision of the facilities for which the development impact fee may be expended, revenues from such fees may be used to pay debt service on such bonds or similar debt instruments to the extent that the facilities provided are of the type to which the fees involved relate.
C.
The city shall deposit, invest, account for, and expend the revenues from the development impact fees in accordance with the Mitigation Fee Act, as the same may be amended from time to time.
D.
Revenues from the fees may be used to provide refunds (as specified in MMC § 10.05.1855).
(Formerly 10.05.0740; 1976 Code § 10-1.5(2)13; Ord. 765 § 6; Amended by Ord. 726 § 2 (Att. A); Ord. 658 § 2)
§ 10.05.1865 Annual review.
A.
Except for the first year following the enactment of this article, sixty days following the end of the city's fiscal year, the fee shall be automatically adjusted in accordance with the change in the Engineering Construction Cost Index, as most recently published by Engineering News-Record, for the elapsed time period from the previous July 1st. The city council may, by resolution, retroactively or prospectively postpone the application of this annual increase for a period of up to three years for projects subject to SB 330 (2019).
B.
At a noticed public hearing, the city council shall review estimated costs of the facilities described in the report and the continued need for these facilities. The city council may revise the development impact fee to include requisite additional facilities or improvements not previously anticipated or foreseen. Such revisions shall comply with the Mitigation Fee Act.
C.
The report prepared by the city manager and its review by the city council, as well as any findings thereon, shall be subject to the provisions of the Mitigation Fee Act, to the extent applicable.
(Formerly 10.05.0750; 1976 Code § 10-1.5(2)14; Ord. 811 § 1, 2024; Ord. 726 § 2 (Att. A); Amended by Ord. 698 § 1; Ord. 658 § 2)
§ 10.05.1870 Severability.
The provisions of this article shall not apply to any person or to any property as to whom or which it is beyond the power of the city to impose the fee provided in this article. If any sentence, clause, section or part of this article, or any fee imposed upon any person or entity, is found to be unconstitutional, illegal, or invalid, such unconstitutionality, illegality or invalidity shall affect only such sentence, clause, section or part of this article, or the individual application subject to challenge, and shall not affect or impair any of the remaining provisions, sentences, clauses, sections or other parts of this article, or its effect on other persons or entities. It is declared to be the intention of the city council that this article would have been adopted had such unconstitutional, illegal, or invalid sentence, clause, section or part of this article not been included herein; or had such person or entity been expressly exempted from the application of this article. To this end, the provisions of this article are severable.
(Formerly 10.05.0760; 1976 Code § 10-1.5(2)15; Amended by Ord. 726 § 2 (Att. A); Ord. 658 § 2)