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HomeMy WebLinkAboutORD-10-03 Add Ch 3.4 - Payment of Park Facilities FeesORDINANCE NO. 10- OJ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ORANGE ADDING CHAPTER3.40 OF TITLE 3 TO THE ORANGE MUNICIPAL CODE PERTAINING TO REQUIREMENTS FOR THE PAYMENT OF PARK FACILITIES FEES AS A CONDITION OF APPROVAL FOR CERTAIN RESIDENTIAL DEVELOPMENT PROJECTS.WHEREAS, by the adoption of Ordinance No. 11-00 on June 13, 2000 ( herein referred to as the Quimby Ordinance), the City Council of the City of Orange amended Chapter 5. 18 of Title: 5 of the Orange Municipal Code and thereby provided revised standards and formulae for park dedication and/or the payment of fees in lieu of dedication (or a combination of both) as a condition of subdivision approval pursuant to the authority granted under Section 66477 of the Government Code of the State of California (the Quimby Act); and WHEREAS, other types of residential development projects within the City of Orange as that term is defined in Section I of this ordinance), which are not within the ambit of the Quimby Ordinance, will result in additional population growth and such growth will create an additional demand on and need for park and recreational facilities which c;wnot be met by the ordinary revenues of the city, alone, or the fees received by the city under its Quimby Ordinance and will necessitate the acquisition of land and construction of park and recreational facilities and expansion of services in order to meet and accommodate said residential development projects; and WHEREAS, the demand and need for park and recreational facilities results directly from the increase in density in the City of Orange by the development of land that has heretofore been vacant and by the construction of additional residential units on land heretofore dev(: loped; and WHEREAS, in addition to subdivisions governed by the Quimby Ordinance, new residential development projects within the City of Orange should bear a proportionate financial burden in the construction and improvement of park and recreational facilities which are necessary to serve the growth engendered by such residential development projects; and WHEREAS, the most practical and equitable method of collecting the funds necessary to provide park and recreational facilities for new residential development projects is to establish and impose a development impact fee upon the construction of new residential development projects in the City of Orange and to expend those funds in a manner intended to mitigate the adverse effects of new residential dwelling units from such residential development projects on park and recreational facilities; WHEREAS, the City Council of the City of Orange finds that the purpose of park and recreational facilities fees is to prevent population and growth from reducing the availability of park and recreational facilities to residents of the City of Orange by requiring new residential development projects to bear a portion of the costs of additional park and recreational facilities needed to serve a growing population; and WHEREAS, Sections 66000 et seq. of the Government Code of the State of Cali fomi a commonly known as the"Mitigation Fee Act) authorizes the City to require the payment of development impact fees as a condition of approval for the issuance of a permit for the construction of new residential development projects; and WHEREAS, the City Council of the City of Orange has received and duly considered a report entitled City of Orange Quimby Ordinance Background Report, dated December, 1999, and prepare:d by Hogle-Ireland, Inc., as amended by a supplemental report prepared by Hogle-Ireland, Ine., dated March 11, 2003 (collectively referred to herein as the Study), which established costs for providing park and recreational facilities occasioned by new residential development within the City of Orange; and WHEREAS, the Study analyzed the impacts of residential development on the City' s parks system and the City's goals and objectives contained in its Master Plan for Park Facilities, Recreation and Community Services, which was adopted by the City Council on December 14, 1999 (Master Plan); and WHEREAS, this City Council now desires to require the payment of certain park and recreational facilities development impact fees to serve new residential development projects in accordance with the Master Plan and the City of Orange Seven Year Capital Improvement Program for Fiscal Years 2001-02 through 2007-08, dated May 22, 2001 (CIP); and WHEREAS, the City Council of the City of Orange finds that revenue from park and recreationall facilities fees will be used to acquire land, construct facilities and expand and/or develop park and recreational facilities identified in the Master Plan and the CIP; and WHEREAS, based on the analysis presented in the Study, the City Council of the City of Orange finds that there is a reasonable relationship between:A. The use of the park and recreational facilities fees and the development type on which it is imposed; and B. The need for the facility and the type of development on which the park and recreational facilities fees is imposed; and C. The amount of the park and recreational facilities fees and the facility costs attributable to the residential WHEREAS, as the Study demonstrates, the park and recreational facilities fees established by this ordinance for new residential development projects are based upon estimated costs for new park and recreational facilities, which will be required, incrementally, by new residential development projects (as opposed to subdivisions) within the City of Orange; and WHEREAS, as the Study demonstrates, the park and recreational facilities fees established by this ordinance for new residential development projects do not exceed the reasonable cost of providing park and recreational facilities occasioned by new residential development projects (as opposed to subdivisions) within the City of Orange; and WHEREAS, the fees established by the Study rationally relate to the reasonable cost of providing park and recreational facilities occasioned by new residential development projects as opposed to subdivisions) within the City of Orange; and WHEREAS, a public hearing on the adoption of this ordinance and the park and recreational facilities fees outlined herein and in an accompanying resolution was noticed pursuant to and in compliance with California Government Code Section 6062(a), and set as part of a regularly scheduled City Council meeting held on May 13, 2003; and WHEREAS, the Study, as well as all materials supplementary thereto, and all background data referenced in the Study, were available for public inspection and review at the City Clerk's office at the City of Orange; and WHEREAS, this City Council finds that, pursuant to Section 15061(b)(3) of the State of California Environmental Quality Act ("CEQA") Guidelines, the adoption of this ordinance will not cause a significant effect on the environment; and WHEREAS, this City Council has received and duly considered the information and facts set forth in the agenda report presented to it and any testimony received from staff and the pubIic at the public hearing at which the proposed ordinance was considered, which testimony is hereby incorporated into the record on this matter; and WHEREAS, this City Council has duly considered all of the terms and provisions of this ordinance and believes that the adoption of this ordinance is in the best interests of the City and the health, safety, morals and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local law and requirements. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES ORDAIN AS FOLLOWS: SECTION I: Title 3 of the Orange Municipal Code is hereby amended by adding Chapter 3.40 ther'~to to read in full as follows: 3 Sections: 3.40,010 3.40.020 3.40.030 3.40.040 3.40.050 3.40,060 3.40.070 3.40.080 3,40.090 3,40.100 3,40,110 3.40.120 3.40,130 3.40,140 3.40,010 Chapter 3.40 PARK FACILITIES FEES Findings and Purpose. Definitions. Park Facilities Fees, Imposition of Park Facilities Fees; Amount and Formula, Automatic Annual Adjustment. Increase by Resolutiou. Time for Payment of Park Facilities Fees. Use of Park Facilities Fees. Exemptions, Fee Adjustments. Credits, Credit for Park Facilities Provided by Developers. Refunds; Periodic Findings, Controlling State Law, Findings and Purpose. The City Council of the City of Orange finds and declares that all recitals set forth in the preamble of the ordinance codified in this chapter are true and such recitals are incorporated in this chapter and set forth as findings of the City COWlcil; and the City COWlcil does further find and declan: as follows: A. The State of California, through the enactment of Section 66000 et seq. of the Government Code of the State of California, also known as the Mitigation Fee Act, has determined the nexus that must be established in the enactment of development impact fees. B. The imposition of development impact fees is one of the preferred methods of ensuring that development bears a proportionate share of the cost of public facilities necessary to accommodate such development. This must be done in order to promote and protect the public health, safety and welfare. C. This chapter recognizes that the types of new residential development referenced in this chapter within the City of Orange will result in additional growth and that such growth will place additional burdens on park and recreational facilities, necessitating the acquisition of land and construction of park and recreational facilities and infrastructure in order to meet and accommodate certain new residential development. 4 D. The types of new residential development referenced in this chapter should bear a proportionate financial burden in the construction and improvement of park and recreational facilities necessary to serve them. E. The cost of providing park and recreational facilities occasioned by the types of new residential development projects referenced in this chapter exceeds the revenue generated by fees exacted from such residential development. F. The City of Orange adopts the City of Orange Quimby Ordinance Background Report, dated December, 1999, and prepared by Hogle-Ireland, Inc., as amended by a supplemental report prepared by Hogle-Ireland, Inc., dated March 11, 2003 (the Study), which established costs for providing park and recreational facilities occasioned by new residential devdopment within the City of Orange.G. The park facilities fees established by this chapter are based upon the costs genl~rated through the need for new park and recreational facilities and other capital acquisition costs required, incrementally, by the types of new residential development referenced in this chapter.H. The fees established by this chapter do not exceed the reasonable cost of providing park and recreational facilities occasioned by the types of new residential development referenced in this chapter.1. The fees established by this chapter relate rationally to the reasonable cost of providing park and recreational facilities occasioned by the type of new residential development projects referenced in this chapter within the City of Orange, which park and recr,eational facilities are consistent with the general plan of the City of Orange.J. The park and recreational facilities and anticipated future residential development referenced in this chapter are based upon an analysis of existing and projected land use and zoning.K. The fees established by this chapter are consistent with the goals and objectives of the city' s general plan and are designed to mitigate the impacts caused by the new residential development referenced in this chapter throughout the City of Orange.Development impact fees are necessary in order to finance the required park and recreational facilities and to pay for such new residential development's fair share of their costs.L. Imposition of fees to finance park and recreational facilities required by the types of new residential development referenced in this chapter is necessary in order to avoid advl:rsely impacting existing park and recreational 3.40.020 Definitions, For purposes of this chapter, unless otherwise apparent from the context, the following terms, phrases, words, and their derivations shall have the meanings respectively ascribed to them by this section: A. Building permit - means and includes any permits required for construction,moving structures into the City of Orange, and the like, such as electrical and plwnbing permits, moving permits, and the like.B. Developer - means the legal or beneficial owner or owners of a lot or of any land included in a proposed residential development, including the holder of an option or contract to purchase or other persons having an enforceable proprietary interest in such land, who is legally responsible for payment of a park facilities fee under and pursuant to this chapter.C. District No. 1 - means all of that geographical area within the boundaries of the City of Orange which is west of the boundary of District No.2, together with that portion of the City's sphere of influence not located within District No.2, as depicted on a map on file with the office of the City Clerk, which is by reference hereto incorporated herein as though fully set forth.D. District NO. 2 - means all of that geographical area bounded on the east by the City's sphere of influence and on the west by a line beginning at the intersection of Newport Boulevard and the existing southerly boundary of the City of Orange; thence continuing north along Newport Boulevard to Santiago Canyon Road; thence continuing in a southeast direction along Santiago Canyon Road to the easterly boundary of Tract No. 13102; thence continuing north along said easterly boundary of said Tract No. 13102 to said tract's intersection with the Irvine Regional Park; thence continuing westerly along the northerly boundary of said Tract No. 13102 to the southwest comer of Irvine Regional Park; thence continuing northerly along the entire length of the boundary line bisecting the proposed Villa Park Dam Regional Park arid Irvine Regional Park to a point where it intersects with the southerly ridgeline of the proposed Weir Canyon Regional Park; thence continuing northerly along the ridgeline of the proposed Weir Canyon Regional Park to the northerly boundary of the City of Orange sphere of influence, as depicted on a map on file with the office of the City Clerk, which is by reference hereto incorporated herein as though fully set forth.E. Dormitory-style housing - means student housing facilities for individual or group accommodation owned or operated, or authorized to be acquired,constructed, furnished, equipped and operated, by a college or university for use by students, faculty members, or other employees of any college or university.6 F. Dwelling Unit - shall have the same meaning assigned to that term in Section 17. 04.023 of this Code but, for the purposes of this chapter, shall also mean and include any of the other types of housing units within the definition of the term residential development" in this Section 3.40.020.G. Fair Market Value - means the fair market value of undeveloped residential real property as applicable for the density classifications established by resolution of the City Council for the implementation of this chapter.H. Master Plan - means the City of Orange Master Plan for Park Facilities,Recreation and Community Services as adopted by the City Council of the City of Orange on December 14, 1999, as the same may be amended from time to time.1. Minimum park standards - shall have the meaning given that term in Section 16.60.020 of this Code.J. Park - means a parcel or contiguous parcels ofland, which provides recreational land and facilities for the benefit and enjoyment of the residents and visitors of the City.K. Park facilities fee - means a monetary exaction, other than taxes or special assessments, which is established by the City Council under this chapter and is charged by the City of Orange to an applicant in connection with approval of a residential development for the purpose of defraying all or a portion of the cost of public park and recreational facilities serving the residential development, but does not include fees specified in Section 66477 of the California Government Code, Chapter 16.60 of the Orange Municipal Code, fees for processing applications for governmental regulatory actions or approvals, or fees collected under development agreements adopted pursuant to Article 2.5 of Chapter 4,Division 1, Title 7 of the California Government Code (commencing with Section 65864).L. Recreational facilities - means those improvements to parks, which provide a recreational opportunity for the user, including, but not limited to, ball fields,lighting, swimming pools, tennis courts, picnic shelters, trails, play/tot lots, and community buildings. These are improvements that are above the basic minimum park standard requirements.M. Residential care facility for the elderly - means a housing arrangement chosen voluntarily by persons 60 years of age or over, or their authOlized representative,where varying levels and intensities of care and supervision, protective supervision, personal care, or health-related services are provided, based upon their varying needs, as determined in order to be admitted and to remain in the facility. As used in this chapter, the term, residential care facility for the elderly,7 shall also mean a housing arrangement chosen voluntarily by persons under 60 years of age, or their authorized representative, with compatible needs who are allowed to be admitted or retained in a residential care facility for the elderly. N.Residential development - means any project undertaken for the purpose of developing real property with one or more dwelling units involving the issuance of a permit for construction or expansion, including condominiums, apartment houses, dormitory-style housing, fraternity and sorority houses, room and board facilities, mobile homes and other residential development not a part of a subdivision for which dedication of park land and/or the payment of fees in- lieu of dedication (or both) were imposed and paid as a condition of subdivision approval.3.40.030 Park Facilities Fees,A. A park facilities fee is established and imposed on the issuance of all building permits for residential development projects within the City of Orange to finance the cost of park facilities and improvements required by new residential development.B. The City Council shall, by resolution, set forth the specific amount of the park facilities fees, list the specific improvements to be financed, and describe the estimated cost of those facilities.3,40.040 Imposition of Park Facilities Fees; Amount and Formula.A. Prior and as a condition precedent to the issuance of a building permit for a residential development, every developer who constructs or installs a residential development shall pay a park facilities fee, as established by resolution of the City Council from time to time as provided by law, for the purpose of providing park and recreational facilities to serve the needs of the residential development. At the time the City imposes a park facilities fee, it shall identify the park and recreational facility (or facilities) that the fee will be used to finance.Population densities by dwelling unit types for the purpose of this chapter shall be determined by resolution of the City Council from time to time as provided by law.B. Definitions of terms.1) 3.0 - The park acreage standard for the City; number of acres per 1,000 persons. 2) DU - The number of proposed dwelling units.3) PPD - The number of persons per dwelling unit for each types of dwelling unit to be constructed, as established by resolution of the City Council.8 4) FMV- The average fair market value of undeveloped residential real property within District 1 or District 2 as applicable for the density classification of the proposed dwelling unites), as established by resolution of the City Council. 5) MPSF- The average per acre cost to provide land with the minimum park standards, as established by resolution of the City Council. C. The development impact fee shall be calculated using the following formula: Fee = 3.0(DU x PPD) x (FMV + MPSF) 1,000 3.40.050 Automatic Annual Adjustment. The park facilities fees imposed by this chapter shall be adjusted automatically on July 1st of each fiscal year, beginning on July 1, 2004, to reflect the percentage increase or decrease in the cost for minimum park standards on the basis of a factor recommended by the Director of Public Works, which factor shall be based upon the Construction Cost Index as published in Engineering News-Record, or its successor or similar publication, for the twelve month period ending March 31 st of the preceding fiscal year. All revisions shall be by a resolution amendingthe\.1aster Schedule of Fees and Charges.3,40,060 Increase by Resolution,Notwithstanding the automatic annual adjustment provided in Section3.40.050, the amount of the fees established pursuant to this chapter may be more specifically set and revised periodically by resolution of the City Council, witb this chapter being considered as enabling and directive in this regard in accordance with the notice and public hearing procedures specified in Section 66018 of the Government Code of the State of California and with available Federal census data, updated cost estimates for minimum park standards, updated fair market values for undeveloped residential real property within District No. 1 and/or District No.2, substantial changes in the City's Master Plan, Capital Improvement Plan and/or General Plan, or other pertinent information.3,40.070 Time for Payment of Park Facilities Fees,A. Anything to the contrary stated elsewhere in this Code or any ordinance or resolution adopted by the City Council adopted prior to tbe effective date of the ordinance adding this chapter to the Code notwithstanding, the park facilities fees imposed by the provisions of this chapter shall be payable as follows:1) For a residential development involving the construction of one (1) new dwelling unit, the fee due therefor shall be due and payable to the City upon the earlier to occur of final inspection or the issuance of a certificate of occupancy for the new dwelling unit. 2) For a residential development involving the construction of more than one (1) new dwelling unit, the fee due and payable h)r each and all of the dwelling units shall be due and payable to the City upon the earlier to occur of final inspection or the issuance of a certificate of occupancy for the first dwelling unit. B. The timing of payment of the park facilities fees established pursuant to this chapter shall apply to all residential developments upon which park facilities fees are imposed on or after the effective date of this chapter, unless one of the following applies: 1) An earlier or later time for the payment of the fees is stated in a condition of approval for a particular residential development because: a) The park facilities fees are collected for improvements or facilities for which the City has established an account, appropriated fWlds, and adopted a proposed construction schedule or plan; or b) The park facilities fees are to reimburse the City for expenditures previously made for a public improvement, service or amenity. 2) The residential development is subject to a statutory development agreement pursuant to Government Code Section 65864) or an agreement pursuant to Chapter 17.44 of this code, which provides for the payment and/or satisfaction of park facilities fees in a marmer different than set forth in this Section. C. The City may require the developer of a residential development, as a condition to the issuance of a building permit, to execute and deliver to the City a contract, in recordable form, whereby the developer agrees to pay the park facilities fee within the time (or at the times) specified in subparagraph "A" of this Section 3.40.070, which contract shall comply with the requirements of subparagraph "(c)" of Section 66007 of the Government Code of the State of California and shall be satisfactory in form and content to the City Attorney. D. The fees created pursuant to this chapter shall be calculated on the basis of number of 1m its, as set forth in the resolution referenced in Section 3.40.040. All fees collected shall be promptly transferred for deposit in the Park Facilities Fund referenced in Section 3.40.080. 3,40.080 Use of Park Facilities Fees. A. There is hereby established a Park Facilities Fund. All sums collected pursuant to the provisions of this chapter shall be deposited into the Park Facilities Fund. The park facilities fees collected shall be used for the purpose of paying (1) the actual or estimated costs of acquisition, development, purchase of equipment for new parks. recreational facilities, or for 10 the expansion of land or improvements at existing parks in accordance with the City of Orange Seven Year Capital Improvement Program, the City of Orange Master Plan for Park Facilities, Recreation and Community Services, and the Open Space and Recreational Element of the Orange General Plan, as each or any may be amended from time to time, or (2) reimbursing the City of Orange for the residential development's share of those park facilities already constructed by the City of Orange or to reimburse the City of Orange for costs advanced with respect to a specific park facility project. Monies within the Park Facilities Fund may be expended only by appropriation by the City Council for specific projects. Any interest income earned by moneys placed in the Park Facilities Fund shall also be deposited in that fund and shal1 be expended only for the purpose for which the fee was originally col1ected. B. In the event that bonds or similar debt instruments are issued for the advanced provision of park facilities for which park facilities fees may be expended, such fees may be used to pay debt service on such bonds or similar debt instruments to the extent that the faciJlities provided are of the type to which the fees involved relate. C. Funds may be used to provide refunds as described in Section 3.40.130. D. No later than six months following the end of each fiscal year, the City Manager shal1 prepare a report for the City Council, which shall be made available to the public, containing the following information for the fiscal year in question: I) The amount of the park facilities fees on deposit in the Park Facilities Fund. 2) The beginning and ending balance of the Park Facilities Fund. 3) The amount of the fees col1ected and the interest earned on the Park Facilities Fund. 4) An identification of each park and recreational facilities improvement on which fees were expended and the amount of the expenditures on each park and recreational facilities improvement, including the total percentage of the cost of the park and recreational facilities improvements that were funded with the park facilities fees. 5) An identification of an approximate date by which the construction of the park and recreational facilities improvements will commence if the City Council determines that sufficient funds have been col1ected to complete financing on an incomplete park and recreational improvement, as identified in paragraph (2) of Section 66001 of the Government Code of the State of California, and the park and recreational improvement remains incomplete. 11 6) A description of each interfund transfer or loan made from the Park Facilities Fund, including the park and recreational improvement on which the transferred or loaned fees will be expended, and, in the case of an interfund loan, the date on which the loan will be repaid, and the rate of interest that the Park Facilities Fund will receive on the loan. 7) The amount of refunds made pursuant to subsection (e) of Section 66001 and any allocations pursuant to subsection (f) of Section 66001 of the Government Code of the State of California, as the same presently exists or may hereafter be amended from time to time. E. The City Council shall review the infi)rmation made available to the public pursuant to this Section 3.40.080 at the next regularly scheduled public meeting not less than fifteen (15) days after this information is made availabJt: to the public. 3.40.090 Exemptions. A. The following shall be exempted from payment of the park facilities fees established pursuant to this chapter: 1) Alterations, renovations or expansion of an existing dwelling unit where no additional dwelling units are created and the use is not changed. 2) The replacement of a destroyed or partially destroyed or damaged dwelling unit with a new dwelling unit. 3) Residential care facilities for the elderly, residential care facilities, mental sanitariums, health sanitariums, rest homes or the like. 4) If the land on which a residential devdopment is proposed to be located has been previously subject to the park land dedication provisions of this code that were in effect after November 9, 1972 but prior to July 14, 2000, the requirements of this chapter regarding the payment of a park facilities fee shall only apply to the creation of additional dwelling units and not to the dwelling units existing on the land prior to the issmmce of a building permit for the proposed residential development. 5) Residential development which is part of a subdivision for which dedication of park land and/or the payment of fees in-lieu of dedication (or combination of both) were imposed and paid in accordance with the provisions of Chapter 16. 60 of this code as a condition of subdivision approval.B. All determinations regarding the exemptions provided ill subparagraph A,above, shall be made by the Director of Community Development. C. In order to ensure that the imposition of fees pursuant to this chapter will not be contrary to the public interest, or prevent the development of a public service project, the City Council may waive all, or any portion of, the fees required by this chapter if the City Council finds that a residential development project will serve a public purpose or satisfy a public need and is located within a redevelopment project area, or other special district, or involves direct City of Orange or Orange Redevelopment Agency participation in the residential development project. Moreover, the City Council may, from time to time, and as the need may arise, set forth, by resolution, specific limitations, which will apply to waivers of fees which may be made pursuant to this section. In this regard, this chapter shall be considered enabling and dire:ctory. 3.40,100 Fee Adjustments. A. A developer of any residential development subject to the fees described in this chapter may apply to the City Council for a reduction, adjustment or waiver of the fees, based upon the absence of any reasonable relationship or nexus between the impacts of that residential development and either the amount of the fees charged or the type of facilities to be financed. The application shall be made in writing and filed with the City Clerk not later than 1) ten (10) days prior to the public hearing on the development permit application for the residential development, or (2) if no development permit is required, at the time of the filing of the request for a building permit. The application shall state in detail the factual basis for the claim of waiver, reduction or adjustment. The City Council shall consider the application at the public hearing on the permit application or at a separate public hearing held within sixty (60) days after the filing of the fee adjustment application, whichever is later. The decision of the City Council shall be final. If a reduction, adjustment or waiver is granted, any change in use within the residential development shall invalidate the waiver, adjustment or reduction of the fee if such change in use would render the same inappropriate. The hearing shall be noticed and conducted in the same fashion and manner as prescribed by the laws of the City of Orange for hearings on development permits. B. The City Council may, from time to time, and as the need may arise, set forth, by resolution, specific limitations, which will apply to reductions, adjustments or waivers of fees which may be made pursuant to this section. In this regard, this chapter shall be considered enabling and directory. 3.40.110 Credits. A. New residential development that, through demolition or conversion, will eliminate existing residential development is entitled to a fee credit if the existing residential development is a lawful use under the City of Orange's zoning ordinance, including a legal nonconforming use. B. New residential development that will replace residential development that was partially or totally destroyed by fire, flood, emthquake, mudslide, or other casualty or act of God, is entitled to a fee credit if the residential development that was partially or totally 13 destroyed was a lawful use under the City of Orange's zoning ordinance, including a legal nonconfoffiling use, at the time thereof. C. Credit for such eliminated residential development or residential development that was partially or totally destroyed as above specified shall be calculated by the Director of Community Development in accordance with the fee schedule set forth in the resolution to be adopted pursuant to Section 3.40.030 and shall be applied to new residential development on the same site. 3.40.120 A. 1) 2) 3) Credit for Park Facilities Provided by Developers, In-Lieu Fee Credits for Construction of Park Facilities.A developer required by the City of Orange to construct any park facilities (or a portion thereof) for which fees are required by this chapter as a condition of approval of a residential development permit may request an in-lieu credit of the park facilities fees. Upon request, an in-lieu credit of fees shall be granted for park facilities that mitigate all or a portion of the need therefor that is attributable to and reasonably related to the given residential development.Only costs proportional to the amount of the park facilities that mitigates the need therefor attributable to and reasonably related to the residential development shall be eligible for in-lieu credit, and then only against the fees to which the park facilities relate.The park facilities fees required under this chapter shall be reduced by the actual construction costs of the park facilities that relate to the park facilities fees, as demonstrated by the applicant and reviewed and approved by the Director of Community Development, all consistent with the provisions of subsections A)(I) and (A)(2), above. Subject to the applicable provisions of subsection B of this Section, if the cost of the park facilities is greater than the required park facilities fees, this chapter does not create an obligation on the City of Orange to pay the applicant the excess amount.B. Development Construction of Park Facilities Exceeding Needs Related to Residential development.1) Whenever a developer is required, as a condition of approval for a residential development permit, to construct any park facilities (or a portion thereof) for which fees are required by this chapter, which park facilities are determined by the City of Orange to exceed the need therefor attributable to and reasonably related to the given residential development, a reimbursement agreement with the developer and a credit against the park facilities fees which would otherwise be charged pursuant to this chapter on the: residential development, shall be offered. The credit shall be applied with respect to that portion facilities which are attributable to and reasonably related to the need therefor caused by the residential development, and shall be detennined, administered and processed in accordance with and subject to the provisions of this section. The amount to be reimbursed shall be that portion of the cost of the park facilities which exceeds the need therefor attributable to and reasonably related to the given residential development. The reimbursement agreement shall contain terms and conditions mutually agreeable to the developer and the City of Orange, and shall be approved by the City Council. C. 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 property, which are specifically required by the residential development in order to serve it and do not constitute park facilities.D. Determination of Credit. The developer seeking credit and/or reimbursement for construction of improvements or 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 theDirector of Community Development (or his/her designee) to support the request for credit or reimbursement. TheDirector of Community Development (or his/her designee) shall determine credit for construction of park facilities based upon either these cost estimates or upon alternative engineering criteria and constnlction cost estimates if theDirector of Community Development (or his/her designee) detelmines that such estimates submitted by the dev.:loper are either unreliable or inaccurate. The Director of Community Development (or his/her designee) shall determine whether park facilities are eligible for credit or reimbursement.E. 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.F. Transferability of Credit-- Council Approval. Credits shall not be transferable from one project or development to another without the approval of the City Council.G. Appeal of Determinations of Director of Community Development.Determinations made bythe Director of Community Development (or his/her designee)pursuant to the provisions of this chapter may be appealed to the City Council by filing a written appeal (setting forth in detail the factual basis therefor) with the City Clerk, together with a fee established by resolution of the City Council within ten (10) calendar days of the detennination ofthe Director of Community Development (or his/her designee). The appeal shall be considered by the City Council at a public hearing to be held, noticed and conducted in accordancewith the provisions prescribed in Section 3. 40.100 for public hearings with respect to fee adjustments. The decision of the City Council 3.40.130 Refunds; Periodic Findings, A. The City shall refund moneys deposited into the Park Facilities Fund subject to the requirements of subsections (d) and (e) of Section 66001 of the Government Code of the State of California. B. For the fifth fiscal year following the first deposit into the Park Facilities Fund, and every fi.ve (5) years thereafter, the City Council shall make all of the following findings with respect to that portion of the Park Facilities Fund remaining unexpended, whether committed or uncommitted: l) 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 is charged. 3) Identify all sources and amounts of funding anticipated to complete financing in incomplete improvements identified in paragraph (2) of subsection (a) of Section 66001 of the Government Code of the State of California. 4) Designate the approximate dates on which the funding referred to in the immediately preceding subparagraph 3 is expected to be deposited into the appropriate account or fund. The City Council shall make those findings at the same public meeting at which it reviews the information contained in the annual report pursuant to subsections D and E of Section 3.40.080, above, following the end of the fifth fiscal year following the first deposit into the Park Facilities Fund and every five (5) years thereafter. If the findings are not made, as required by this subparagraph B, the City shall refund the moneys in the Park Facilities Fund as provided in subparagraph C of this Section. C. When sufficient funds have been collected to complete financing on incomplete park and recreational facilities identified in paragraph (2) of subsection (a) of Section 66001 of the Government Code of the State of California, and the park and recreational facilities improvements remain incomplete, the City shall identify, within one hundred eighty (180) days of the determination that sufficient funds have been collected, an approximate date by which the construction of the park and recreational facilities improvement will be commenced, or shall refund to the then current record owner or owners of the dwelling units within the residential development, as identified on the last equalized assessment roll, on a prorated basis, the unexpended portion of the park facilities fee, and ,my interest accrued thereon. By means consistent with the intent of this Section, the City may refund unexpended revenues by direct payment, by providing a temporary suspension of fees, or by any other reasonable means. D. If a building permit expires without commencement of construction, then the fee payer shall be entitled to a refund, without interest, of the park facilities fees paid as a condition 16 for its issuance, except that the City of Orange shall retain one percent of the fee to offset a portion of the costs of collection and refund. The fee payer must submit an application for such a refund to the Director of Community Development within thirty (30) calendar days of the expiration of the permit. Failure to timely submit the required application for refund shall constitute a waiver of any right to the refund. All determinations with respect to said refund applications shall be made by the Director of Community Development. 3.40,140 Controlling State Law. The provisions of this chapter and any resolution adopted pursuant hereto shall at all tim~s be subject and subordinate to the provisions of Chapter 5 (commencing with Section 66000), Division 2, of Title 7 of the California Government Code, as the same presently exists or may hereafter be amended from time to time, to the extent the same are applicable. In the event of any conflict between the provisions of this chapter and state law, the latter shall control. SECTION II: Should any section, subsection, clause, or provision of this Ordinance for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Ordinance; it being hereby expressly declared that this Ordinance, and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed, approved and ratified irrespective of the fact that anyone or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION III: A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the Office of the City Clerk at least five (5) days prior to the City Council meeting at which this Ordinance is to be adopted. A summary of this Ordinance shall also be published once within fifteen (15) days after this Ordinance's passage in a newspaper of general circulation, published, and circulated in the City of Orange. The City Clerk shall post in the Office of the City Clerk a certified copy of the full text of such adopted Ordinance along with the names of those City Council members voting for and against the Ordinance in accordance with Government Code Section 36933. This Ordinance shall take effect sixty (60) days from and after the date of its final passage.ADOPTED this 27th day of May, 2003 d! i ~""~~JJ::,o,,",,17 ATTEST: A' STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF ORANGE ) I, Cassandra J. Cathcart, City Clerk of the City of Orange, California, do hereby certify that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the 13th day of May, 2003, and thereafter at a regular meeting of said City Council duly held on the 27th day of May, 2003, was duly passed and adopted by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: COUNCILMEMBERS: Ambriz, Alvare2: ,Murphy, Coontz ,Cavecche COUNCILMEMBERS: None COUNCILMEMBERS: None COUNCILMEMBERS: None 18