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ORD 09-627ORDINANCE NO. 09-627 AN ORDINANCE of the City of Federal Way, Washington, relating to Transportation Impact Fee (TI�; and adding new sections to Federal Way Revised Code chapters 19.91. WHEREAS, the City recognizes the need to periodically modify Title 19 of the Federal Way Revised Code (FWRC), "Zoning and Development Code," in order to conform to state and federal law, codify administrative practices, clarify and update zoning regulations as deemed necessary, and improve the efficiency of the regulations and the development review process; and WHEREAS, this ordinance, containing amendments to development regulations and the text of Title 19 FWRC, has complied with Process VI review, chapter 19.80 FWRC, pursuant to chapter 19.35 FWRC; and WHEREAS, the City Council finds that new growth and development in the City will create additional demand and need for public facilities; and WHEREAS, the City is authorized by Chapter 82.02 RCW to require new growth and development within the City to pay a proportionate share of the cost of new facilities to serve such new development activity through the assessment of impact fees; and WHEREAS, the impact fees assessed pursuant to Chapter 82.02 RCW must be based upon a showing that new growth and development creates additional demand and need for public facilities, that the impact fees do not exceed a proportionate share of the costs of such additional public facilities, and that the fees spent for facilities reasonable related to the new growth and development; and Ordinance No.09-627 Page 1 of 22 WHEREAS, the City is authorized by Chapter 82.02 RCW to impose impact fees for system improvement costs previously incurred by the City to the extent that new growth and development will be served by the previously constructed improvements; and WHEREAS, impact fee may be collected and spent for system improvements that are included within a capital facilities plan element of a comprehensive plan,; and WHEREAS, the City has adopted a list of transportation capital facilities in the Transportation Element of the Comprehensive Plan; and WHEREAS, RCW 58.17.110 and RCW 58.17.060 require the Council and administrative personnel to make written finding that public facilities; such as roads and streets, are adequate before approving �roposed subdivisions, dedications, short plats, and short subdivisions; and WHEREAS, to meet these requirements with respect to public streets and roads, the Council finds that it must assure that public street and roads are adequate to serve new growth and development; and WHEREAS, the Council finds that it is in the public interest, and consistent with the intent and purposes of the Growth Management Act, RCW 36.70A et seq., for the City to adopt transportation impact fees which are uniform to the greatest extent practicable; and WHEREAS, The City has conducted extensive research and analysis documenting the p.rocedures for measuring the impact of new growth and development on public streets and roads, and has prepared the report "City of Federal Way Transportation Impact Fees Program" dated February 2009 which serves as the basis for the actions taken by the Council; and WHEREAS, the Council hereby incorporates the Rate Study into this ordinance by reference. The Rate Study utilizes a methodology for calculating transportation impact fees which fulfills all of the requirement of RCW 82.02.060(1); and Ordinance No.09-627 Page 2 of 22 WHEREAS, based on information in the Rate Study, the Council has determined that the City is composed a single services area for purposes of assessing transportation impact fees; and WHEREAS, in developing the impact fees for public facilities contained in this ordinance, the City has provided adjustments for past and future taxes paid or to be paid by new growth and development, which are earmarked or proratable to the same new public facilities that will serve the new growth and development; and WHEREAS, the Planning Commission conducted properly conducted a duly noticed public hearing on these code amendments on July 1, 2009; and forwarded a recommendation of approval to the City Council; and WHEREAS, the Land Use/Transportation Committee of the Federal Way City Council considered these code amendments on September 14, 2009 and recommended adoption of the text amendments as recommended by the Planning Commission with further modifications as follows: (1) Chapter 19.91.060 to provide option for single family residential development to either pay the impact fee prior to the issuance of Building Permit or the City record a covenant against the property for the payment of the impact fee in effect at time of payment. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DO ORDAIN AS FOLLOWS: Section l. Findin�s. The City Council of the City of Federal Way makes the following findings with respect to the proposed amendments. (a) These code amendments are in the best interest of the residents of the City and will benefit the City as a whole by providing a more systematic way for applying the impact fees, and provide predictability for developers. Ordinance No.09-627 Page 3 of 22 (b) These code amendments comply with Chapter 36.70A RCW, Growth Management. (c) These code amendments are consistent with the intent and purpose of Title 19 FWRC and will implement and are consistent with the applicable provisions of the Federal Way Comprehensive Plan, (d) These code amendments bear a substantial relationship to, and will protect and not adversely affect, the public health, safety, and welfare. (e) These code amendments have followed the proper procedure required under the FWRC. Section 2. Conclusions. Pursuant to chapter 19.80 FWRC and chapter 19.35 FWRC, and based upon the recitals and the findings set forth in Section 1, the Federal Way City Council makes the following Conclusions of Law with respect to the decisional criteria necessary for the adoption of the proposed amendrrients: (a) The proposed FWRC amendments are consistent with, and substantially implement, the following Federal Way Comprehensive Plan goals and policies: TGll Develop and implement funding mechanisms to: a. Leverage state and federal funds for transportation improvements. b. Meet GMA's concurrency requirements. c. Provide consistent, fair, and predictable assessment of sufficient mitigation fees for development consistent with SEPA. d. Assure that adequate transportation infrastructure is provided to accommodate forecast growth. TP82 Assure cost-effective maintenance of transportation facilities under the City's jurisdiction. TP 85 Develop a transportation impact fee by 2002 to simplify development review, assess mitigation fees consistently and fairly, improve the City's ability to Ordinance No.09-627 Page 4 of 22 leverage grant funding for transportation funding, and provide adequate infrastructure to accommodate new growth. LUG2 Develop an efficient and timely development review process based on a public/private partnership. LUP4 Maximize efficiency of the development review process. HP9 Maximize efficiency in the City's development review process and ensure that unnecessary time delays and expenses are eliminated. Continue to provide streamlined permitting processes for development that is consistent with the FWCP and FWCC, and that has no adverse impacts. HPIO Encourage community input, where appropriate, into the development permit process by providing thorough and timely information to the public. (b) The proposed FWRC amendment bears a substantial relationship to the public health, safety, and welfare because it would replace the existing code-based pro-rata fees in the concurrency code and the Planned Action SEPA fee, create a more systematic way for applying the fees in this national economic conditions that impact local land development and housing- related industries by implementing development regulations to provide predictability for developers during the development review process that is not provided in the current code; and clarifies to increase the efficiency of the development review process. (c) The proposed amendment is in the best interest of the public and the residents of the City of Federal Way as it will provide the developer with an up front cost of the impact fees for development proposal, which results in attracting and continued development within the City, thus aiding the local economy. Ordinance No.09-627 Page S of 22 Section 3. A new section is added to chapter 19.91 FWRC to read as follows: TRANSPORTATION IMPACT FEES Sections: 19.91.010 19.91.020 19.91.030 19.91.040 19.91.050 19.91.060 19.91.070 19.91.080 19.91.090 19.91.100 19.91.110 19.91.120 19.91.130 19.91.140 19.91.150 19.91.160 19.91.170 19.91.180 19.91.190 19.91.200 19.91.210 Title Purpose and Intent Findings and authority Definitions Transportation Impact Fees Methodology Assessment of Impact Fees Independent Fee Calculations Exemptions Credits Adjustments Establishment of Impact Fee Account Authorization for interlocal agreements Administrative Guidelines Refunds Use of Funds Periodic Adjustment of Rate Administrative Fees Appeals Existing authority unimpaired Relationship to State Environmental Policy Act (SEPA) Relationship to Concurrency 19.91.010 Title. This code shall be hereinafter known as the City of Federal Way transportation impact fee (TIF}. 19.91.020 Purpose and Intent. The purpose and intent of this chapter is for the collection of impact fees for streets and roads, and providing for certain other matters in connection therewith. 19.91.030 Findings and authority. The City Council of the City of Federal Way hereby finds and determines that development activities, including but not limited to new residential, commercial, retail, office, and industrial development in the City of Federal Way will create additional demand and need for public facilities in the City, and the Council finds that such new Ordinance No.09-627 Page 6 of 22 growth and development should pay a proportionate share of the cost of new facilities needed to serve the new growth and development. The City of Federal Way has conducted extensive research and analysis documenting the procedures for measuring the impact of new developments on public facilities, has prepared the "Rate Study for Transportation Impact Fees, City of Federal Way" dated February 2009 ("Rate Stud}�'), and incorporates that Rate Study into this title by this reference. The Rate Study utilizes a methodology for calculating impact fees that fulfills all of the requirements of RCW 82.02.060(1). A copy of the Rate Study shall be kept on file with the City Clerk and is available to the public for review. Therefore, pursuant to Chapter 82.02 RCW, the Council adopts this title to assess impact fees for streets and roads. The provisions of this title shall be liberally construed in order to caYry out the purposes of the Council in establishing the impact fee program. 19.91.040 Definitions. The following words and terms shall have the following meanings for the purposes of this chapter, 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. Applicant means a person who applies for a building permit under this article and who is the owner of the subject property or the authorized agent of the property owner. B. Building Permit means an official document or certification which is issued by the building official and which authorizes the construction, alteration, enlargement, conversion, reconstruction, remodeling, rehabilitation, erection, demolition, moving, or repair of a building or structure. C. Capital Facilities Plan means the capital facilities element of the City's Comprehensive Plan adopted pursuant to RCW 36.70A and such plan as amended. D. Council means the City Council of the City. E. Department means the City's Department of Public Works. Ordinance No.09-627 Page 7 of 22 m F. Development Activity means any work, condition, or activity which requires a permit or approval under the city's subdivision, zoning, or building code. Exempt permits are set forth in FWRC 19.91.080. G. Development Approval means any written authorization from the City authorizing the commencement of a development activity or use. H. Director means the Director of the Department of Public Works of the City of Federal Way or her/his designee L Encumbered means to reserve, set aside, or otherwise earmark the impact fees in order to pay for commitrnents, contractual obligations, or other liabilities incurred for public facilities. J. Hearing Examiner means the hearing examiner operating pursuant to the powers and duties set forth by Chapter 2.20 FWRC. K. Impact fee means a payment of money imposed by the City of Federal Way on development activity pursuant to this title as a condition of granting development approval. "Impact fee" does not include a reasonable permit fee, an application fee, the administrative fee for collecting and handling impact fees, or the cost of reviewing independent fee calculations. L. Independent Fee Calculation means the street and road impact calculation, and/or economic documentation prepared by a applicant, to support the assessment of an impact fee other than by the use of the rates listed in the fee schedule, or the calculations prepared by the Director where none of the fee categories or fee amounts in the traffic impact fee in the fee schedule accurately describe or capture the impacts of the development activity on public facilities. M. Interest means the average interest rate earned in the last fiscal year by the City of Federal Way. N. ITE Land Use Code means the classification code number assigned to a type of land use by the Institute of Transportation Engineers in the latest Edition of Trip Generation. Ordinance No.09-627 Page 8 of 22 r O. CITY CODE SECTION means the City of Federal Way Revised Code or, when followed by a numerical designation, a provision of the FWRC Code. P. P.M. Peak Hour means the highest volume of traffic for a continuous hour between 4:00 p.m. and 6:00 p.m. on weekdays. Q. P.M. Peak Hour Trips means the total vehicular trips entering and leaving a place of new development activity on the adjacent public road or street during the p.m. peak hour. R. Project Improvements mean site improvements and facilities that are planned and designed to provide service for a particular development project and are necessary for the use and convenience of the occupants or users of the project, and are not system improvements. No improvement or facility included in a capital facilities plan adopted by the Council shall be considered a project improvement. S, Public F. acilities, for purposes of this chapter, means the following capital facilities owned or operated by the City of Federal Way or other governmental entities: public streets and roads. T. Rate Study means the "Transportation Impact Fees Program," City of Federal Way, by Fehr Peers Mirai, dated February 2009. U. Residential or Residential Development means all types of construction intended for human habitation. This shall include, but is not limited to, single-family, duplex, triplex, and other multifamily development. V. RCW means the Revised Code of Washington or, when followed by a numerical designation, a provision of the Revised Code of Washington. W. Square Footage means the square footage of the gross floor area of the development as defined in FWRC. X. Street or Road means a public right-of-way and all related appurtenances, which enables motor vehicles, transit vehicles, bicycles, and pedestrians to travel between destinations, and affords the principal means of access to abutting property, including avenue, place, way, drive, Ordinance No.09-627 Page 9 of 22 lane, boulevard, highway, street, and other thoroughfare. For purposes of this chapter, public streets and roads are collectively referred to as "transportation." Y. System Improvements means public facilities that are included in the City of Federal Way's capital facilities plan, and such plan as amended, and are designed to provide service to service areas within the community at large, in contrast to project improvements. Z Transportatian means public streets and roads and related appurtenances. AA. Transportatio�i Impact Fee Account(s) means the account(s} established for the transportation impact fees that are collected. The account(s) shall be established pursuant to FWRC 19.91.110, and shall comply with the requirements of RCW 82.02.070. 19.91.050 Transportation Impact Fees Methodology and Applicability. The transportation impact fee rates are generated from the formula for calculating impact fees set forth in the Rate Study, which is on file with the Public Works Department. Except as otherwise provided for independent fee calculations in FWRC 19.91.0�0, exemptions in FWRC 19.91.080, and credits in FWRC 19.91.090, all new development activity in the City will be charged the transportation impact fee applicable to the type of development as set forth in the Traffic Impact Fee in the current Fee Schedule as adopted by Council. 19.91.060 Assessment of Impact Fees. A. The City shall collect impact fees, based on the land use categories and rates on the current Fee Schedule, from any applicant seeking development permits from the City where such development activity requires the issuance of a building permit or approval for a change in use, except for development exempt under FWRC 19.91.080. This shall include, but is not limited to, the development of residential, commercial, retail, office, and industrial land, and includes the expansion of existing uses that creates a demand for additional system improvements as well as a change in existing use that creates a demand for additional system improvements. The public works department is authorized to determine the appropriate land use category found in the rate schedule applies to the application. Ordinance No.09-627 Page 10 of 22 B. All impact fees shall be due and payable prior to issuance of the building permit or at the time of permit approval for a change in land use when no building permit is required based on the land use categories on the Fee Schedule. Prior to issuance of a single family residential building permit, the applicant may elect to defer payment of the impact fee to the time of closing of sale of the unit. If this option is selected, the City shall record a covenant against the property for the payment of the impact fee in effect at time of payment. Any fees associated with filing/recoding the covenant shall be paid by applicant. Unless the use of an independent fee calculation has been approved, or unless a development agreement entered into pursuant to RCW 36.70B.170 provided otherwise, the fee shall be calculated based on the impact fee schedule in effect at the time a completed building permit application is filed. For a change in use for which no building permit is required, the fee shall be calculated based on the impact fee schedule in effect on the date of payment of the impact fee. C. The public works department shall establish the traffic impact fee rate for a land use that is not listed in the fee schedule. The applicant shall submit all information requested by the City for purposes of determining the impact fee rate pursuant to FWRC 19.91.070. D. For a change in use of an existing building or dwelling unit, including any alteration, expansion, replacement or new accessory building that generate additional trips, the impact fee shall be the applicable impact fee for the land use category of the new use, less any irnpact fee previously paid for the land use category of the prior use. If no impact fee was paid for the prior use, the impact fee for the new use sha11 be reduced by an amount equal to the current impact fee rate of the current use. E. For mixed use developments, impact fees shall be imposed for the proportionate share of each land use based on the applieable measurement in the traffic impact fee rates set forth in the fee schedule. F. The Community Development Department shall not issue the required building permit until the traffic impact fees set forth in the fee schedule have been paid as set forth in the fee schedule or in the amounts that they exceed any credits allowable under this chapter. For a Ordinance No.09-627 Page 11 of 22 change in use where a building permit is not required, the applicant shall not occupy or permit a tenant to occupy the subject property unless and until the impact fee has been paid. 19.91.070 Independent Fee Calculations. A. If in the judgment of the director, none of the fee categories or fee amounts set forth in foregoing section of this title accurately describes or captures the impacts of a new development on roads, the department may conduct independent fee calculations and the director may impose alternative fees on a specific development based on those calculations. B. The applicant may opt not to have the impact fees determined according to the fee shucture in the traffic impact fee schedule listed in the City Fee Schedule, in which case the applicant shall prepare and submit to the director an independent fee calculation for the development activity for which a development permit is being sought. The documentation submitted sha11 be prepared by a licensed traffic engineer and shall show the basis upon which the independent fee calculation was made using procedures consistent with those established in the Trip Generation Handbook, current edition, by the institute of Transportation Engineers. An independent fee calculation shall use the same methodology used to establish impact fees set forth in the traffic impact fee schedule, shall be limited to adjustments in trip generation rates and lengths used in the Rate Study, and shall not include travel demand forecasts, trip distribution, transportation service areas, costs of road projects, or cost allocation procedures. C. The applicant submitting an independent fee calculation will be required to pay the City of Federal Way a fee to cover the cost of reviewing the independent fee calculation. The fee required by the City for conducting the review of the independent fee calculation shall be charged on an hourly rate as adopted by council at the time of the submittal. D. There is a rebuttable presumption that the calculations set forth in the Rate Study and the fee set forth in the traffic impact fee in the fee schedule are valid. The director shall consider the documentation submitted by the applicant, but is not required to accept such documentation or analysis which the director reasonably deems to be inapplicable, inaccurate or not reliable. The director may require the applicant to submit additional or different documentation for consideration. The director is authorized to adjust the impact fees on a case-by-case basis based Ordinance No.09-627 Page 12 of 22 on the independent fee calculation, the specific characteristics of the development, and/or principles of fairness. E. Determinations made by the director pursuant to this section may be appealed as set forth in FWRC 19.91.180. 19.91.080 Exemptions. A. Except as provided for below, the following shall be exempted from the payment of transportation impact fees: 1. Alteration or replacement of an existing nonresidential structure that does not expand the usable space, add any residential units or generate any additional p.m. peak trips. 2. Miscellaneous improvements which do not generate increased p.m. peak trips, including, but not limited to, fences, walls, residential swimming pools, and signs; 3 generated. 4. 5. Demolition or moving of a structure when additional p.m. peak hour trips are not A change of use that does not generate one or more p.m. peak hour trips. Miscellaneous permits such as Electrical, Fire Protection System, Mechanical, Plumbing, Right-of-way use, Shoreline and sign permits which do not generate any new trips. 6. Rezones, Comprehensive plan amendments, Land surface modifications, Commercial subdivisions, Boundary line adjustment and Lot line eliminations, which does not generate any trips. 7. Structures constructed by regional transit authority as define in RCW 82.02.09. Any development permit application that has been submitted to the City before 5:00 p.m. the business day before the effective date of this chapter and subsequently determined to be a complete land use application conjunction with a concurrency application, based on the information on file as of the effective date of this chapter. B. The director shall be authorized to determine whether a particular development activity falls within an exemption identified in this FWRC 19.91.080 or under other applicable law. Determinations of the director shall be subject to the appeals procedwes set forth in FWRC 19.91.180. Ordinance No.09-627 Page 13 of 22 19.91.090 Credits A. An applicant may request that a credit or credits for impact fees be awarded to him/her for the total value of system improvements, including dedications of land, improvements andlor construction provided by the applicant. Credits will be given only if the land, improvements, and/or the facility constructed are: l. For one or more of the transportation projects listed in the Rate Study as the basis for calculating the impact fee. B. The director shall determine if requests for credits meet the criteria in subsection A, above or under other applicable law. Determinations of the director shall be subject to the appeals procedure set forth in FWRC 19.91.180. C. Each request for a credit or credits shall include a legal description of the dedicated land, 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. D. 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. In the event that the applicant disagree with the director's valuation, the applicant may submit an appraisal for the director's consideration, prepared by a state certified MAI (Member of the American Institute of Appraisers) or licensed engineer and be licensed in good standing pursuant to RCW 18.40 et.seq., in the category for the property to be appraised, and shall not have a fiduciary or personal interest in the property being appraised. E. The appraiser and/or licensed engineer shall be directed to determine the fair market value of the total value of the dedicated land, improvements, andlor construction provided by the applicant. The applicant shall pay for the actual costs for the appraisal. F. After receiving and reviewing the appraisal, the director will determine the dollar amount of any credit, the basis for the credit, the legal description of the real property dedicated where applicable, and the legal description or other adequate description of the project or development to which the credit may be applied with issuance of the building permit. If the total value of any Ordinance No.09-627 Page 14 of 22 such dedication, improvement or construction cost exceeds the amount of the impact fee obligation, the developer will not be entitled to reimbursement of the difference. G. No credit shall be given for project improvements or right-or-way dedications for direct access improvements to and/or within the subject development above and beyond what is proposed in the capital facilities plan. H. Any claim for credit must be made before payment of the impact fee and prior to the issuance of the building permit or a permit for a change in use. The failure to timely file such a claim shall constitute a final bar to later request any such credit. I. Determinations made by the director pursuant to this chapter shall be subjected to the appeals procedures set forth in FWRC 19.91.180. J. No impact fee for a specific development shall be increased or decreased once said fee has been paid. 19.91.100 Adjustments. Pursuant to and consistent with the requirements of RCW 82.02.060, the Rate Study has provided adjustments for future taxes to be paid by the development activity which are earmarked or pro-ratable to the same new public facilities which will serve the new development. The traffic impact fee rates in the fee schedule have been reasonably adjusted for taxes and other revenue sources which are anticipated to be available to fund public improvements. 19.91.110 Establishment of Impact Fee Account. A. Impact fee receipts shall be earmarked specifically and deposited in a special interest- bearing account. B. The City sha11 establish a separate impact fee account for the fees collected pursuant to this chapter: Transportation Impact Fee Account. Funds withdrawn from the account must be used in accordance with the provisions of this chapter and applicable state law. Interest earned Ordinance No.09-627 Page 1 S of 22 on the fees shall be retained in the account and expended for the purposes for which the impact fees were collected. C. On an annual basis, the finance director shall provide a report to the Council on the transportation impact fee account showing the source and amount of all moneys collected, earned, or received, and the public improvements that were financed in whole or in part by impact fees. Impact fees shall be expended or encumbered within six (6) years of receipt, unless the Council identifies in written findings of extraordinary and compelling reasons for the City to hold the fees beyond the six (6) year period. Under such circumstances, the Council shall establish the period of time within which the impact fees shall be expended or encumbered. 19.91.120 Authorization for interlocal agreement. The city manager is authorized to execute, on behalf of the city, an interlocal agreement with other agencies having authority over transportation facilities to identify impacts and provide mitigation for those impacts. In no case shall mitigation payments to the city be reduced to account for mitigation payments to other jurisdictions. 19.91.130 Administrative Guidelines. The Public Works Director is hereby authorized to adopt internal guidelines for the administration of transportation impact fees, which may include the adoption of a procedures guide for transportation impact fees. 19.91.140 Refunds A. If the City fails to expend or encumber the impact fees within six (6) years of when the fees were paid, or where extraordinary or compelling reasons exist, such other time periods as established pursuant to 19.91.110, the current owner of the property on which impact fees have been paid may receive a refund of such fees. 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. Ordinance No.09-627 Page 16 of 22 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. A potential claimant or claimants must be the owner of record of the real property against which the impact fee was assessed. 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 (1) 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 this one-year period shall be retained by the City and expended on the appropriate system improvements. E. Refunds of impact fees or offsets against subsequent impact fees under this section shall include any interest earned on the impact fees by the City. F. When the City seeks to terminate any or all components of the impact fee program, all unexpended or unencumbered funds from any terminated component or components, including interest earned, shall be refunded pursuant to this section. 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 (2) times and shall notify all potential claimants by first class mail at the last known address of the claimants. All funds available for refund shall be retained for a period of one (1) year a$er the second publication. At the end of one (1) 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 or accounts being terminated. G. The City shall also refund to the current owner of property for which impact fees have been paid all impact fees paid, including interest earned on the impact fees, if the development activity for which the impact fees were imposed did not occur; provided, however, that, if the City has expended or encumbered the impact fees in good faith prior to the application for a refund, the director can decline to provide the refund. If within a period of three (3) years, the same or subsequent owner of the property proceeds with the same or substantially similar development activity, the owner can petition the director for an offset in the amount of the fee Ordinance No.09-627 Page 17 of 22 originally paid and not refunded. The petitioner must provide receipts of impact fees previously paid for a development activity of the same or substantially similar nature on the same real property or some portion thereof. The director shall determine whether to grant an offset, and the determinations of the director may be appealed pursuant to the procedure in Section 19.91.180. 19.91.150 Use of Funds. A. Pursuant to this title, transportation impact fees: l. Shall be used for system improvements that will reasonably benefit the new development activity; 2. Shall not be imposed to make up for deficiencies in public facilities; and 3. Shall not be used for maintenance or operation. B. Transportation impact fees may be spent for public improvements to streets and roads as herein defined and, including, but not limited to, transportation planning, engineering design studies, land survey, right-of-way acquisition, site improvements, necessary off-site improvements, engineering, architectural, 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, applicable impact fees or mitigation costs, and any other expenses which can be capitalized. C. Transportation impact fees may also be used to recoup system improvement costs previously incurred by the City to the extent that new growth and development will be served by the previously constructed improvements or incurred costs. D. In the event that bonds or similar debt instruments are or have been issued for the advanced provision of public improvements for which impact fees may be expended, 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 and are used to serve the new development. Ordinance No.09-627 Page 18 of 22 19.91.160 Periodic Adjustment of Rates. A. The traffic impact fee in the fee schedule will be amended to reflect changes to the twenty-year transportation project list as part of adoption of amendments to the capital facilities element of the City's comprehensive plan. Amendment to the schedule for this purpose shall be adopted by the council. B. The traffic impact fee in the fee schedule shall be indexed to provide for an automatic fee increase each January 1 St beginning in the year 2011. A three-year moving average of the Washington State Department of Transportation Construction Cost Index will be used to determine the increase in fees for each year to reflect increased project costs. C. A new rate study, which established the traffic impact fee in the fee schedule, shall be updated every three years, unless the city determines that circumstances have not changed to warrant an update. 19.91.170 Administrative Fees. A. There shall be a fee for the administration of the Transportation Impact Fee Program in an amount equal to three percent (3%) of the amount of the total traffic impact fee determined from the fee schedules. The administrative fee shall be deposited into an administrative fee account within the transportation impact fee funds. Administrative fees shall be used to defray the cost incurred by the City in the administration and update of the transportation impact fee program. The administrative fee is not creditable or refundable. B. The administrative fee, in addition to the impact fee, shall be paid by the applicant at the same time as the impact fee. 19.91.180 Review by Director and Appeals. A. The applicant may pay the impact fees imposed by this title under protest so that the building permit, or a change in use when no building permit is required. No appeal shall be permitted until the impact fees at issue have been paid. B. Requests for review regarding the impact fees imposed on any development activity may be filed only by the applicant for the development activity at issue. Ordinance No.09-627 Page 19 of 22 C. The applicant must first file a request for review regarding impact fees with the director, as provided herein: 1. The request shall be in writing on the form provided by the City; 2. The request for review by the director shall be filed within fo�rteen (14) calendar days after the applicant's payment of the impact fee at issue. The failure to timely file such a request shall constitute a final bar to later seek such review; 3. No administrative fee will be imposed for the request for review by the director; and 4. The director shall issue his/her determination in writing. D. Determinations of the director with respect to the applicability of the impact fees to a given development activity, the availability or value of a credit, or the director's decision concerning the independent fee calculation which is authorized in Sect. 19.91.070, or any other determination which the director is authorized to make pursuant to this title, may be appealed by the applicant or owner using the same process as the underlying development permit application or process I of Chapter 19 FWRC if there is no underlying development permit, substituting the director of public works for the director of community development. The appeal, in the form of a letter of appeal, must be delivered to the department of community development within 14 calendar days after issuance of the decision of the director. In those cases where the proposed development activity may require a public hearing under the authority of other chapters of this code, the hearings may be combined. For example, if the underlying development permit application is a preliminary plat, the appeal shall be heard at the preliminary plat public hearing. 19.91.190 Existing Authority Unimpaired. Nothing in this title shall preclude the City from requiring the applicant or the proponent of a development activity to mitigate adverse environmental impacts of a specific development pursuant to the State Environmental Policy Act, Chapter 43.21 C RCW, based on the environmental documents accompanying the underlying development approval process, and/or Chapter 58.17 RCW, governing plats and subdivisions; so long as the exercise of such authority is consistent with the provisions of Chapter 43.21C RCW and Chapter 82.02 RCW. Ordinance No.09-627 Page 20 of 22 19.91.200 Relationship to State Environmental Policy Act (SEPA) (1) All development shall be subject to the environmental review pursuant to SEPA and other applicable city ordinances and regulations. (2) Further mitigation in addition to the impact fee shall be required for identified adverse impacts appropriate for mitigation pursuant to SEPA that are not mitigated by an impact fee program. 19.91.210 Relationship to Concurrency Management Neither compliance with this chapter or the payment of any fee hereunder shall constitute a determination of transportation concurrency under this chapter. Section 4. Severabilitv. The provisions of this ordinance are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance, sha11 not affect the validity of the remainder of the ordinance, or the validity of its application to any other persons or circumstances Section 5. Corrections. The City Clerk and the codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener/clerical errors, references, ordinance numbering, section/subsection numbers and any references thereto. Section 6. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 7. Effective Date. This ordinance shall take effect and be in force July l, 2010 as provided by law. PASSED by the City Council of the City of Federal Way this 20 day of October 2009. Ordinance No.09-627 Page 21 of 22 ATTEST: �r APPROVED AS TO FORM: CITY ATTORNEY, PATRICIA A. RICHARDSON FILED WITH THE CITY CLERK: 9-29-2009 PASSED BY THE CITY COUNCIL: 10-20-2009 PUBLISHED: 10-24-2009 EFFECTIVE DATE: 07-01-2010 ORDINANCE NO.: 09-627 Ordinance No.09-627 I'aSe 22 o 22 CITY OF FEDERAL WAY