Naches City Zoning Code

17.52.010 Purpose.

The purpose of the latecomers agreements code sections is to establish a uniform methodology and process for the administration of latecomers agreements for developers in circumstances where a developer uses private funds to construct a public utility and/or street system improvement(s) and desires to be compensated by property owners who will be benefited by the improvements. The ordinance [this chapter] is intended to establish a methodology to the agreements which are authorized under Revised Code of Washington 35.72 and Revised Code of Washington 35.91.

(Ord. No. 674, 6-11-2012)

17.52.020 Definitions.

A.

"Adjacent" means abutting on public roads, streets, right-of-way or easements in which street system improvements are installed or directly connecting to street system improvements through an interest in real property such as an easement or license.

B.

"Assessment" means an equitable pro-rata charge to be paid by an owner of property within the assessment reimbursement area for the cost of private construction of public street and/or utility improvements made pursuant to a public facilities agreement.

C.

"Assessment reimbursement area" means that area which includes all parcels of real property adjacent to street system improvements or likely to require connection to or service by utility system improvements constructed by a developer.

D.

"Construction interest" mans the sum of money to be added to the direct construction cost and reimbursed to the developer for the use of developer's monies during the construction term. The interest rate shall be one percent above the Federal Reserve Bank prime loan rate published most recently before the date of the latecomers agreement. Interest accrual begins on the date of execution of the latecomers agreement and will continue throughout the construction term. Construction interest shall be computed utilizing the two-third rule; i.e., direct cost of construction x construction interest rate divided by 365 × the construction term expressed in days × 0.67 = construction interest.

E.

"Construction term" means the period of time between the date of execution of the latecomers agreement and the date of acceptance of the project by the town, or the construction completion date as set forth in the latecomers agreements, whichever occurs first.

F.

"Cost of construction" is the sum of the direct construction costs incurred to construct the street and/or utility systems improvements plus indirect costs which are limited to the town's latecomers administrative fee, and developer administrative costs provided herein. "Direct construction costs" include but are not limited to all related design services, engineering, surveying, legal services, bonding costs, environment mitigation, relocation and/or new construction of private utilities as required by the town, (i.e., power, telephone, cable and gas), relocation and/or installation of street lights, relocation and/or signage, acquisition of right-of-way and/or easements, government agency fees, testing services, inspection, plan review and approved labor, materials, equipment rental, and contractor and/or subcontractor fees or charges.

G.

"Developer" is the individual or entity that contracts with the town for the construction of street and/or utility system improvements, where such improvements are a requirement for development of real property owned by such entity or individual.

H.

"Developer administrative costs" means all indirect costs incurred by the developer in the creation and execution of a latecomers agreement and managing the project; such as office supplies, mailings, clerical services, telephone expenses, accounting expenses, project oversight, and the like. Administrative costs shall not exceed three percent of all direct construction costs.

I.

"Latecomers agreement" means a written contract between the town and one or more developers providing reimbursement for cost of construction of street system improvements and/or utility system improvements to the developer by owners of property who are likely to utilize the improvements and who did not contribute to the original cost of construction.

J.

"Direct connection" means a service connection, to be owned and maintained by the property owner and not the town, from existing or new utility improvements including, but not limited to, the following:

1.

Water system direct connections are single and dual water service taps;

2.

Sewer system direct connections include side sewer (service) connections;

3.

Storm sewer system direct connections are hereby defined as, but not limited to, tight line, down spout, and roof leader service connection to storm sewer mains for the conveyance of site specific storm sewer (if required).

K.

"Street system improvements" mean public street and alley improvements made in existing or subsequently dedicated or granted rights-of-way or easements and any improvements associated therewith including but not limited to such things as acquisition of right-of-way and/or easements, design, engineering, surveying, inspection, grading, paving, installation of curbs, gutters, pedestrian facilities, street lighting, bike lanes, and traffic control devices, relocation and/or construction of private utilities as required by the town, (i.e., power, telephone, cable and gas), relocation and/or construction of street lights, traffic control devices, signage and other similar improvements.

L.

"Utility system improvements" mean public water, sewer and public or private storm drainage system improvements including but not limited to the acquisition of right-of-way and/or easements, design, engineering, surveying, inspection, testing connection fees, and installation of improvements as required by the town, and includes, but is not limited to, the following:

1.

Water system improvements including but not limited to such things as treatment facilities, reservoirs, wells, mains, valves, fire hydrants, telemetry systems, pumping stations, and pressure reducing stations;

2.

Sewer system improvements including but not limited to such things as treatment plants, gravity mains, lift stations, force mains, and telemetry systems; or

3.

Storm sewer system improvements including but not limited to such things as water quality structures and systems, detention and retention facilities, and stormwater collection and conveyance facilities.

(Ord. No. 674, 6-11-2012)

17.52.030 Applicability.

This chapter is intended to apply to any developer or property owner utilizing private funds to conduct street system improvements or utility system improvements may apply to the town to establish a latecomers agreement for recovery of a pro-rata share of the cost of such improvements from other parties or landowners that subsequently develop their property that will later derive a benefit from said improvements.

(Ord. No. 674, 6-11-2012)

17.52.040 Application for latecomer agreement.

A.

Any developer using private funds to construct street system improvements and/or utility system improvements in the town or within the town's utility service area, may apply to the town for a latecomers agreement in order to recover a pro-rata share of the costs of construction from other property owners that will later derive a benefit from the street and/or utility system improvements made by the developer.

B.

The application for a latecomers agreement shall be made within thirty (30) days after the date street and /or utility improvements have been accepted by the town or thirty (30) days after this chapter takes effect. Acceptance by the town shall mean, for purposes of this section, the date the public facilities are conveyed to the town by a deed of conveyance or other equivalent written document. Application shall be made on forms prepared by the town and shall be accompanied by the town's fee established by this chapter. The application shall contain the following information which shall be approved by a state of Washington licensed engineer:

1.

A legal description of the developer's property.

2.

A legal description of the properties within the developer's proposed assessment reimbursement area together with the name and address of the owners of each property as shown in the records of the Auditors' Office of Yakima County.

3.

Vicinity map of the developer's property.

4.

The developer's proposed assessment reimbursement area, including the proposed assessment for each separate parcel of property within the proposed assessment reimbursement area as determined by apportioning the total project cost on the basis of the benefit of the project to each such parcel of property within said area, and general location of the street and/or utility system improvements.

5.

Itemized costs of the street or utility project, including but not limited to design, grading, paving, installing of curb, gutters, storm drainage, sidewalks, street lights, engineering, construction, water lines, sewer lines, disposal plants, pumping stations, hydrants, reservoirs, property acquisition, costs of preparing the latecomers agreement, and contract administration, all of which shall approved by a State of Washington licensed engineer for the cost of construction.

6.

Copies of executed deeds and/or easements in which the applicant is the grantee for all properties necessary for the installation of such street or utility project providing evidence of permission from property owners to conduct such activities on their properties.

C.

Within thirty (30) days of the town administrator receiving the application for a latecomers agreements, the town administrator will provide the applicant written notice of whether the application is complete and, if incomplete, what must be done for the application to be considered complete. The applicant will have no more than thirty (30) days from the date of the written notice to respond and provide the information required to complete the application or, if the applicant cannot submit the required information within the thirty-day period, the applicant shall provide the town a written explanation of why they cannot provide the information within the designated time period and a date that the requested information will be submitted. In its discretion, the town administrator may grant the applicant an extension of not more than sixty (60) days to submit the required information. If the applicant fails to meet the foregoing time frame, the town administrator may, in his or her discretion, reject the application as untimely.

D.

The town administrator shall establish policies and procedures for processing application and complying with the requirements for this chapter.

(Ord. No. 674, 6-11-2012)

17.52.050 Preliminary determinations.

The town administrator shall formulate a preliminary assessment reimbursement area and preliminary assessment for real property benefited by the street and/or utility system improvements based on the following and provide the same to the developer:

A.

The likelihood that the benefited property will be developed within fifteen (15) years from the date of the recording of the latecomer agreement.

B.

The likelihood that at the time of development of the benefited property such property will not be required to install similar street and/or utility improvements because they were already installed by the developer.

C.

For street system improvements, whether the benefited parcels are adjacent to such street system improvements.

D.

For utility system improvements, the likelihood:

1.

That such improvements will be tapped into or used (including not only direct connection but also connection to laterals or branches connecting thereto) by properties within the assessment reimbursement area and that such improvements do not constitute mainline extensions to be owned and maintained by the town, as such extension are not defined as direct connections; and/or

2.

That such properties will receive a special benefit from the utility system improvements such as, but not limited to pump stations, sewer lift stations, and additional utility pipe depth to accommodate future utility expansion.

E.

An equitable allocation of the cost of construction among the properties within the assessment reimbursement area, so that each pays for benefits attributable to those improvements. The method or methods used to calculate the allocation of the assessment may be either by front footage, number of units, square footage or may be the zone and termini method or other recognized methods reasonably calculated to equitably allocate the assessment.

(Ord. No. 674, 6-11-2012)

17.52.060 Preliminary determination notice.

A.

The preliminary assessment reimbursement area and the preliminary assessment formulated by the town administrator shall be sent by certified mail to the property owners of record within the preliminary assessment reimbursement area in accordance with RCW 35.72.

B.

The applicant or any property owner with the preliminary assessment reimbursement area may, in writing within twenty (20) days of mailing the notice, request a hearing to be held before the Naches Planning Commission to contest the preliminary assessment reimbursement area and preliminary assessment. Notice of such hearing shall be given to all property owners within the preliminary assessment reimbursement area and the hearing before the planning commission shall be conducted as soon is reasonably practical. After the hearing, the planning commission shall develop a report with findings of fact, conclusions of law and recommendations to the town council regarding the assessment reimbursement area and the assessment for each property within the assessment reimbursement area. The town council shall consider the record developed before the planning commission and the commission's report. After considering the record, the planning commission's report and public comments thereon at a public meeting, if any, town council may adopt or reject the commission's recommendations in whole or part or it may render its own findings and conclusions. Town council is the final authority to establish the assessment reimbursement area and the assessment for each property within the assessment reimbursement area. The town council's determination of the assessment reimbursement area and the assessment shall be determinative and final.

C.

In the event no written request for a hearing is received as required, the determination of the town administrator shall be final.

(Ord. No. 674, 6-11-2012)

17.52.070 Developer reimbursement agreement.

Based upon the preliminary assessment reimbursement area and the preliminary assessment, if no hearing is requested, or based upon the town council's determination of the assessment reimbursement area and assessment if a hearing is requested, the town administrator shall prepare and give to the applicant a latecomers agreement.

(Ord. No. 674, 6-11-2012)

17.52.080 Recording, effective date, payment of assessment and lien for non-payment.

A.

The latecomers agreement shall be recorded by the town with the Yakima County Auditor within thirty (30) days of its final execution. If it is so filed and recorded, it shall be binding on owners of record within the assessment area who are not a party to the latecomers agreement. All property described and recorded with the latecomers agreement shall be subject to the assessment after it has been approved by the town and the latecomers agreement has been recorded in the Yakima County Auditor's Office.

B.

The town shall not issue a building permit or similar development permit or other land use approval nor grant permission to use water or sewer service unless the town has received full payment of the assessment, including interest, applicable to the property connecting to or using the street and/or utility systems improvements constructed by developer; provided, if the latecomers agreement's validity is challenged, the town reserves the right to issue a permit, approval or permission without liability or prejudice to the town, and without prejudicing the developer's rights or remedies under this chapter or otherwise at law or in equity.

C.

If improvements are made to a property adjacent to a street improvement or if a property connects to a utility system improvement without payment of an assessment otherwise due, the amount of such assessment shall be a binding obligation upon the owner of record, and successors in ownership, of the affected property.

D.

If a property owner fails to pay the assessment due and owing within one hundred eighty (180) days of notice of such payment, the developer may foreclose against the property in the same manner as a mortgage, and recover reasonable costs and attorney fees ordered by the court.

(Ord. No. 674, 6-11-2012)

17.52.090 Term of latecomers agreements.

Each latecomers agreement shall be valid for a period not to exceed fifteen (15) years from the date of its recording. The latecomers agreement may provide for an extension of the fifteen-year period for a time not to exceed the duration of any moratorium, phasing ordinance, concurrency designation, or other governmental action that prevents making applications for, or the approval of, any new development within the benefit area for a period of six months or more. Any extension must specify the duration of the contract extension and must be filed with the Yakima County Auditor. Property owners affected by the reimbursement agreement shall be notified of the extension.

(Ord. No. 674, 6-11-2012)

17.52.100 Removal of unauthorized connections or taps.

Whenever any tap or connection is made into any utility improvement without payment of the assessment required by this chapter, the town administrator is authorized to remove and disconnect, or cause to be removed and disconnected, such unauthorized tap or connection including all connecting tile or pipe located in the right-of-way, and to dispose of such unauthorized material without liability. The owner of the property where the unauthorized connection is located shall be liable for all costs and expenses of any type incurred to remove, disconnect, and dispose of the unauthorized tap or connection.

(Ord. No. 674, 6-11-2012)

17.52.110 Interest on assessment.

Each assessment established in the latecomers agreement shall bear interest from the date of recording of the latecomers agreement at an interest rate fixed at the Federal Reserve Rate for a two-year treasury note as determined on the date of recording of the latecomers agreement.

(Ord. No. 674, 6-11-2012)

17.52.120 Town administrative fees.

A.

The town shall charge a base fee of three hundred dollars ($300.00) plus one percent of the cost of construction for processing latecomers agreements for utility system improvements, and four hundred fifty dollars ($450.00) plus one percent of the cost of construction for street system improvements.

B.

In addition to the costs outlined in subsection A of this section, for every separate parcel of property within the applicant's proposed assessment reimbursement area, an additional one hundred fifty dollars ($150.00) shall be added to the base fee established pursuant to the above schedule.

C.

The town latecomer base fee shall be paid upon application for a developer reimbursement agreement with all remaining fees paid prior to the mailing the preliminary determination notice under NMC 17.52.060.

(Ord. No. 674, 6-11-2012)

17.52.130 Payment of developer reimbursement charges.

Each assessment shall be due in its entirety upon connection to or use of a street and/or utility system improvement by a property subject to an assessment, and shall be paid to the town in one lump sum including interest until date of payment. Any necessary reimbursements to the developer shall be made within sixty (60) days of receipt of full payment of the assessment.

When the assessment for any property has been paid in full, the town administrator shall record a release indicating that such property is no longer subject to the latecomers agreement.

(Ord. No. 674, 6-11-2012)

17.52.140 Enforcement of latecomer obligations.

A.

In processing and imposing obligation in this chapter for reimbursement of developers, the town in no way guarantees payment of assessments, or enforceability of the latecomers agreements, or the amount(s) thereof against such persons or property. Nor will the offices or finances of the town be used for enforcement or collection of latecomer obligation beyond those duties specifically undertaken by the town herein. It shall be the obligations of a developer to take whatever authorized means are available to enforce payment of latecomer assessments; and, developers are hereby authorized to take such actions. The town shall not be responsible for locating any beneficiary or survivor entitled to any benefits by or through a latecomers agreement.

B.

Any funds collected under this chapter that are unclaimed by developers after three years from the expiration of the latecomers agreements shall be returned to the parties making payment to the town, if they may be reasonably found and minus any reasonable administrative processing costs. Any undeliverable funds shall be placed into the town's general fund and any rights of any interested parties shall be forfeited.

(Ord. No. 674, 6-11-2012)

17.52.150 Rights and non-liability of the town.

The town reserves the right to refuse to enter into any latecomers agreements or to reject any application therefore. All applications for a latecomers agreement shall be made on the basis that the applicant releases and waives any claims for any liability of the town in establishment or enforcement of latecomer agreements. The town shall not be responsible for locating any beneficiary or surviving beneficiary entitled to benefits by or through the latecomers agreements. Each agreement shall include a provision that every two years a property owner entitled to reimbursements shall provide the town with contact information.

(Ord. No. 674, 6-11-2012)