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HomeMy WebLinkAbout2005-10-11 Ordinance 4880 050711 sm 0100384 1 ORDINANCE NO. 4880 ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO ESTABLISHING THE CHARLESTON ARASTADERO CORRIDOR PEDESTRIAN AND BICYCLIST SAFETY IMPACT FEE AND AMENDING THE PALO ALTO MUNICIPAL CODE, TITLE 16 (BUILDING REGULATIONS) BY ADDING CHAPTER 16.60 – CHARLESTON ARASTADERO CORRIDOR PEDESTRIAN AND BICYCLIST SAFETY IMPACT FEE The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1. Findings. The City Council finds and declares that: (a) Development projects in the vicinity of the Charleston Arastadero Corridor will increase the volume of pedestrians and bicyclists seeking to use that corridor. (b) The Charleston Arastadero Corridor Plan sets forth a program of safety improvements for the corridor intended to reduce the pedestrian and bicyclist safety impacts caused by the increased volume of pedestrian and bicyclist use of the corridor. (c) The City has engaged Nelson\Nygaard Consulting Associates to prepare a study, entitled “Charleston Arastadero Corridor Pedestrian and Bicyclist Safety Impact Fee Nexus Study” (the “Study”), describing the safety improvements that are intended to mitigate these pedestrian and bicyclist safety impacts caused by new development (the “Program”). The Study, which is on file in the Office of the City Clerk, is incorporated herein by reference. (d) Section 66000 et seq. of the California Government Code authorizes the City to levy a fee upon development projects to defray all or a portion of the costs of public improvements and public services related to the development project. (e) The City desires to impose a fee, to be known as the “Charleston Arastadero Corridor Pedestrian and Bicyclist Safety Impact Fee”, upon development projects, for the purpose of funding a portion of the costs of the Program (the “Fee”). The Fee, its methodology, and the calculations supporting its methodology, are set forth in this Ordinance and more completely analyzed in the Study. 050711 sm 0100384 2 (f) The Study estimates the costs of each element of the Program and substantiates a methodology for the Fee that will charge each new development projects only for the portion of the costs of the Program necessary to mitigate the pedestrian and bicyclist safety impacts expected to be caused by the introduction of additional bicyclists and pedestrians onto the corridor by that development project. (g) There is a reasonable relationship between the need for the Program and the development projects on which the Fee will be imposed because such development projects will introduce additional bicyclists and pedestrians to the corridor, necessitating elements of the Program that will improve the physical design of corridor to permit their safe transit through the corridor. (h) There is a reasonable relationship between the Fee's use and development projects on which the Fee will be imposed because the Fee will only fund the portion of Project costs necessitated by pedestrians and bicyclists introduced to the corridor as a result of the development projects. (i) The Fee does not exceed the estimated reasonable cost of providing the services and facilities for which the Fee is imposed. The Fee is not levied, collected or imposed for general government purposes. (j) Certain new development projects, though likely to introduce at least some pedestrians and bicyclists to the corridor, are exempted by this Ordinance from the Fee due to the following considerations: (i) public schools, affordable housing projects, projects with excess below market units; and day care centers are exempted because the provision of the critical social services provided by these types of developments are of higher priority to the City i don’t know that we want to say that these are of higher priority than ped and bike safety improvements???; (ii) municipal buildings are exempted because the City already funds a wide range of pedestrian and bicycle safety improvements throughout the city; and (iii) small retail establishments are exempted because CAN WE SAY BECAUSE THE CITY’S POLICY OR DESIRE IS TO ENCOURAGE AND NOT BURDEN SMALL BUSINESSES??IN THE CURRENT ECONOMIC CLIMATE TO INDUCE THEM TO STAY/LOCATE IN THE CITY WHICH ENHANCES THE CITY’S OVERALL ECONMOIC HEALTH? I’VE SEEN THIS USED TO JUSTIFY USE OF LOCAL PREFERENCE IN AWARDING CONTRACTS. I REALIZE WE ARE IN THE 050711 sm 0100384 3 REGULATORY CONTEXT RATHER THAN ACTING AS A MARKET PARTICIPANT – LET ME KNOW YOUR THOUGHTS (k) The Report methodology does not charge non-exempt development projects for the portion of Program Costs necessary to mitigate impacts of pedestrians and bicyclists introduced by exempt uses. SECTION 2. Title 16 of the Palo Alto Municipal Code is hereby amended by adding Chapter 16.60 to read as follows: “Chapter 16.60 – Charleston Arastadero Corridor Pedestrian and Bicyclist Safety Impact Fee Section 16.60.010 – Short Title This Chapter may be referred to as the Charleston Arastadero Corridor Pedestrian and Bicyclist Safety Impact Fee Ordinance. Section 16.60.020 – Definitions For the purposes of this Chapter, the following definitions shall apply: (a) “Affordable Housing” shall mean housing with a purchase price or rent that is affordable to a “moderate,” “low” or “very low” income household, as those terms are defined by the California Department of Housing and Community Development, as applicable to Santa Clara County. (b) “Construction Cost Index” shall mean the Construction Cost Index for the San Francisco Bay Area set forth in the Engineering News Record published by McGraw Hill and Associates. In the event the Engineering News Record ceases to calculate and publish this index, then the City Manager may designate a comparable, alternative index to serve as the Construction Cost Index. (c) “Dwelling Unit” shall have the meaning set forth in Section 18.04.030 of this Code (d) “Eligible Safety Enhancements” shall mean (i) the improvements identified in the Charleston Arastadero Corridor Pedestrian and Bicyclist Safety Impact Fee Nexus Study approved by the City Council, and (ii) other improvements to streets, sidewalks, and related facilities that are approved by the City Council that may be substituted for an identified improvement 050711 sm 0100384 4 because they will mitigate similar pedestrian or bicyclist safety impacts. (e) “Existing Development” shall mean structures present (at the time the amount of the Fee is calculated) on parcels upon which New Development is planned to occur. (f) “Fee” shall mean the Charleston Arastadero Corridor Pedestrian and Bicyclist Safety Impact Fee imposed pursuant to this Chapter. (g) Any reference in this chapter to the “Government Code” or to a section of the “Government Code” shall refer to the California Government Code as it exists at the time this ordinance is applied and shall include amendments to that Code made subsequently to the adoption of this Chapter, it being the intent of the City to maintain the Fee in compliance with applicable law. (h) “New Development” shall mean the construction of new structures or additions to existing structures in the City and, with respect to residential development, any development project that creates additional Dwelling Units. “New Development” shall not mean replacement or expansion of an existing Dwelling Unit. With respect to nonresidential development, “New Development” shall also mean any development project that creates additional square footage of useful area or changes the use of an existing structure. Section 16.60.030 – Fee Imposed The Fee is hereby imposed as a condition of the issuance of any permit for any New Development, unless expressly exempted by this chapter. Section 16.60.040 – Exemptions The provisions of this chapter shall not apply to: (a) City buildings or structures. (b) Public school buildings or structures. (c) Affordable Housing, either for sale or rental, which, by recordable means, is permanently obligated to be 100% affordable. 050711 sm 0100384 5 (d) Retail service, eating and drinking service, personal service, or automotive service when the total square footage (including New Development) is 1,500 square feet or less. (e) Day care centers used for childcare, nursery school or preschool education. (f) Below market rate housing units above and beyond the minimum number required for projects subject to the city’s Below Market Rate (BMR) Housing Program. The additional units must be offered and constructed consistently with the requirements of the BMR program. (g) New Development which is exempt from the Fee by virtue of the Constitutions of the United States and California or by virtue of other applicable state or federal law. Section 16.60.050 – Timing of Payment (a) Except as otherwise required by Government Code Section 66007, the Fee shall accrue when the first discretionary approval is given for a New Development after the effective date of this Section, or, if no such discretionary approval is required subsequent to the effective date of this Section, when an application is submitted for a building permit for that New Development. In either case, the Fee shall be payable when an application is submitted for a building permit for the New Development. A Fee shall be calculated at the rate in effect when the Fee accrues. (b) Payment of the Fee may be deferred, for residential development only, to the date of final building inspection approval of the development, provided the owner of the real property for which the fees are required enters into a recordable agreement with the City prior to issuance of the building permit for the development, which from the date of recordation, shall constitute a lien on the property and shall be enforceable against successors in interest to the property owner. The agreement shall provide that final occupancy approval shall not be given until the fees are paid. The agreement shall also provide that, in any action to collect the fees or any portion thereof, the City shall be entitled to all of its costs of enforcement and collection, including reasonable attorney’s fees. The Director of Planning and Community Environment may execute the agreement on behalf of the City in a form acceptable 050711 sm 0100384 6 to the City Attorney. Any deferral granted pursuant to this paragraph (b) shall be consistent with the requirements of Government Code Section 66007. (c) A credit against the Fee may be given for dedications of Eligible Safety Enhancements constructed or provided at private expense and for the value of land dedicated to the City that is necessary or useful to an Eligible Safety Enhancements. Such credit will be granted only if the City Council determines that: (i) the City will experience a substantial cost savings or service quality improvement as a result of private construction or provision of the Eligible Safety Enhancements or the dedication of land, (ii) the Eligible Safety Enhancements can be expected to immediately and significantly improve bicyclist or pedestrian safety, and (iii) the grant of the credit, in lieu of the fee, will not cause the City to delay the implementation of elements of the Program that are of higher priority, in the judgment of the City Council, than the land or Eligible Safety Enhancement that will be dedicated. The credit shall be applied at the time the City accepts the land or Eligible Safety Enhancement. Where the City Council has made the determinations required by this subdivision, payment of a portion of the Fee equal to the amount of an expected credit against the Fee may be deferred to the date of final building inspection approval of the development, provided the owner of the real property for which the fees are required enters into a recordable agreement with the City prior to issuance of the building permit for the development, which from the date of recordation, shall constitute a lien on the property and shall be enforceable against successors in interest to the property owner. The agreement shall provide that final occupancy approval shall not be given until the fees are paid or the credit issued. The agreement shall also provide that, in any action to collect the Fees or any portion thereof, the City shall be entitled to all of its costs of enforcement and collection, including reasonable attorney’s fees. The Director of Planning and Community Environment may execute the agreement on behalf of the city in a form acceptable to the city attorney. Any deferral granted pursuant to this paragraph (b) shall be consistent with the requirements of Government Code Section 66007. Where a credit is given for the provision of a service that is an Eligible Safety Enhancement, the deferral of the Fee, and the application of the credit, may be according to a schedule set forth in the recorded agreement, which schedule shall be designed to ensure that no credit is applied in advance of the provision of services for which the credit is made. 050711 sm 0100384 7 Section 16.60.060 – Calculation of Fee (a) The Fee imposed upon a New Development shall be calculated with respect to any residential use by multiplying the number of Dwelling Units (after the completion of the New Development) on the parcels comprising the New Development by the then applicable residential rate. With respect to any non- residential use the Fee shall be calculated by multiplying the number of square feet of such use (after the completion of the New Development) on the parcels comprising the New Development by the then applicable non-residential rate. (b) The Fee imposed upon a New Development shall be reduced by the amount of the Fee which would be imposed on the Existing Development on the parcels comprising the New Development if such Existing Development were to be constructed at the time the Fee was calculated. However, such adjustment shall not cause the amount of the Fee to be below $0. (c) To the extent Existing Development on a parcel qualified as New Development after the effective date of this Section, but was exempt from the Fee by virtue of Section 16.60.040 of this Code, that Existing Development shall not be considered for purposes of subdivision (b) of this Section. (d) The rate of the Fee shall be established from time to time by resolution or ordinance of the City Council in the manner required by Government Code Sections 66004 and 66018. (e) Beginning July 1, 2006, and on each July 1 thereafter, the rate of the fee shall be automatically adjusted according to the following formula: Most Recent ENR Council-Approved Rate * --------------------------- ENR at Council-Approval Where the “Council-Approved Rate” is the rate most recently set by resolution or ordinance of the City Council, “Most Recent ENR” is the most recently published Construction Cost Index when the calculation is made and “ENR at Council-Approval” is the Construction Cost Index published for the month in which the Council approved the “Council-Approved Rate”. (f) The Department of Planning and Community Environment shall be responsible for the calculation of the Fee at the time of plan review or when the Fee is due, whichever is earlier. 050711 sm 0100384 8 Section 16.60.070 – Special Fund (a) There is hereby established a special fund, entitled the “Charleston Arastadero Corridor Pedestrian and Bicyclist Safety Mitigation Fund”, into which all Fee proceeds and any interest thereon shall be deposited. The fund shall be maintained as required by Government Code Section 66006. (b) Moneys in the fund shall be expended only on the installation, acquisition, construction, maintenance and operation of Eligible Safety Enhancement. Section 16.60.080 – Accountability Measures (a) At least annually and as required by Government Code Section 66006, the City Manager, or his or her designee, shall review the estimated cost of the public improvements to be funded by the Fee, the continued need for those improvements and the reasonable relationship between such need and the impacts of pending or anticipated New Developments. The City Manager, or his or her designee shall report his or her findings to the City Council at a noticed public hearing and recommend any adjustment to the Fee or other action as may be needed. (b) The City Council shall review such report in the manner required by Government Code Section 66006(b)(2). (c) To the extent required by Government Code Section 66001(d), the City Council shall make the findings required by that Section. Section 16.60.090 – Penalties (a) All remedies provided for in this chapter shall be cumulative and not exclusive. (b) Violation of any provision of this Chapter, including, but not limited to, converting an exempt use to a use to which this Chapter applies without paying the Fee, is a misdemeanor punishable as provided in this Code. (c) Each person is guilty of a separate offense for each and every day during any portion of which any violation of any provision of this Chapter is committed, continued or permitted by such person. 050711 sm 0100384 9 (d) Any person violating any provision of this Chapter, including, but not limited to, converting an exempt use to a use to which this Chapter applies, without paying the Fee, shall be liable civilly to the City in a sum not to exceed five hundred dollars for each day in which such violation occurs. (e) Persons employed in the following designated employee positions are authorized to exercise the authority provided in the California Penal Code Section 836.5 and are authorized to issue citation for violations of this chapter: chief building official, assistant chief building official, and ordinance compliance inspector.” SECTION 3. The initial rate of the fee imposed pursuant to Section 16.60.030 of the Municipal Code shall be $930 per dwelling unit for residential uses and $0.27 per square foot for non-residential uses. This rate may be revised by resolution or ordinance of the City Council and shall be subject to automatic annual adjustment as provided in Section 16.60.060 of the Municipal Code. SECTION 4. The City Council of the City of Palo Alto hereby determines that: (a) The Charleston Arastadero Corridor Pedestrian and Bicyclist Safety Fee (“Fee”) established by this Ordinance is in itself a financing mechanism that is not a project subject to the California Environmental Quality Act (“CEQA”); and (b) That the public improvements to be funded by the Fee are part of the Charleson Arastradero Corridor Improvement Plan (“Corridor Plan”) which was analyzed pursuant to CEQA in a Mitigated Negative Declaration adopted by the City Council as the environmental document for the Corridor Plan on January 27, 2004 in Council Resolution No. 8395. SECTION 5. If any provision or clause of this chapter or the application thereof to any person or circumstance is held to be invalid by any court of competent jurisdiction, such invalidity shall not affect any other provision or clause of this Chapter, and to that end, the provisions and clauses of this Chapter are severable. // // 050711 sm 0100384 10 SECTION 6. This ordinance shall be effective on the sixty-first day after the date of its adoption. INTRODUCED AND PASSED: October 11, 2005 AYES: BEECHAM, BURCH, FREEMAN, KISHIMOTO, KLEINBERG, MORTON, MOSSAR, OJAKIAN NOES: ABSENT: ABSTENTIONS: CORDELL ATTEST: ____________________________ ____________________________ City Clerk Mayor APPROVED AS TO FORM: APPROVED: ____________________________ ____________________________ Sr. Assistant City Attorney City Manager ____________________________ Director of Planning & Community Environment ____________________________ Director of Administrative Services