06 LC 29
2347ERS
The
House Committee on Governmental Affairs offers the following substitute
to
HB 1230:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 36 of the Official Code of Georgia Annotated, relating to local
government, so as to change certain provisions in the "Georgia Development
Impact Fee Act"; to change and provide for definitions; to increase community
participation in development impact fee advisory committees; to provide for the
expenditure of impact fees; to correct cross-references; to provide for related
matters; to provide for an effective date; to repeal conflicting laws; and for
other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
36 of the Official Code of Georgia Annotated, relating to local government, is
amended by striking Chapter 71, relating to the "Georgia Development Impact Fee
Act," and inserting in lieu thereof the following:
"36-71-1.
(a)
This chapter shall be known and may be cited as the 'Georgia Development Impact
Fee Act.'
(b)
The General Assembly finds that an equitable program for planning and financing
public facilities
and public
transportation needed to serve new growth
and development is necessary in order to promote and accommodate orderly growth
and development and to protect the public health, safety, and general welfare of
the citizens of the State of Georgia. It is the intent of this chapter
to:
(1)
Ensure that adequate public facilities
and public
transportation are available to serve new
growth and development;
(2)
Promote orderly growth and development by establishing uniform standards by
which municipalities and counties may require that new growth and development
pay a proportionate share of the cost of new public facilities
and public
transportation needed to serve new growth
and development;
(3)
Establish minimum standards for the adoption of development impact fee
ordinances by municipalities and counties; and
(4)
Ensure that new growth and development is required to pay no more than its
proportionate share of the cost of public facilities
and public
transportation needed to serve new growth
and development and to prevent duplicate and ad hoc development
exactions.
36-71-2.
As
used in this chapter, the term:
(1)
'Capital improvement' means an improvement with a useful life of ten years or
more, by new construction or other action, which increases the service capacity
of a public facility
or public
transportation.
(2)
'Capital improvements element' means a component of a comprehensive plan adopted
pursuant to Chapter 70 of this title which sets out projected needs for system
improvements during a planning horizon established in the comprehensive plan, a
schedule of capital improvements that will meet the anticipated need for system
improvements, and a description of anticipated funding sources for each required
improvement.
(3)
'Comprehensive plan' has the same meaning as provided for in Chapter 70 of this
title.
(4)
'Developer' means any person or legal entity undertaking
development.
(5)
'Development' means any construction or expansion of a building, structure, or
use, any change in use of a building or structure, or any change in the use of
land, any of which creates additional demand and need for public facilities
or public
transportation.
(6)
'Development approval' means any written authorization from a municipality or
county which authorizes the commencement of construction.
(7)
'Development exaction' means a requirement attached to a development approval or
other municipal or county action approving or authorizing a particular
development project, including but not limited to a rezoning, which requirement
compels the payment, dedication, or contribution of goods, services, land, or
money as a condition of approval.
(8)
'Development impact fee' means a payment of money imposed upon development as a
condition of development approval to pay for a proportionate share of the cost
of system improvements needed to serve new growth and development.
(9)
'Encumber' means to legally obligate by contract or otherwise commit to use by
appropriation or other official act of a municipality or county.
(10)
'Feepayor' means that person who pays a development impact fee or his successor
in interest where the right or entitlement to any refund of previously paid
development impact fees which is required by this chapter has been expressly
transferred or assigned to the successor in interest. In the absence of an
express transfer or assignment of the right or entitlement to any refund of
previously paid development impact fees, the right or entitlement shall be
deemed 'not to run with the land.'
(10.1)(11)
'Governmental entity' means any water authority, water and sewer authority, or
water or waste-water authority created by or pursuant to an Act of the General
Assembly of Georgia.
(11)(12)
'Level of service' means a measure of the relationship between service capacity
and service demand for public facilities
or public
transportation in terms of demand to
capacity
ratios,
or
the comfort and convenience of use or service of public facilities
or public
transportation, or both.
(12)(13)
'Present value' means the current value of past, present, or future payments,
contributions or dedications of goods, services, materials, construction, or
money.
(13)(14)
'Project' means a particular development on an identified parcel of
land.
(14)(15)
'Project improvements' means site improvements and facilities that are planned
and designed to provide service for a particular development project and that
are necessary for the use and convenience of the occupants or users of the
project and are not system improvements. The character of the improvement shall
control a determination of whether an improvement is a project improvement or
system improvement and the physical location of the improvement on site or off
site shall not be considered determinative of whether an improvement is a
project improvement or a system improvement. If an improvement or facility
provides or will provide more than incidental service or facilities capacity to
persons other than users or occupants of a particular project, the improvement
or facility is a system improvement and shall not be considered a project
improvement. No improvement or facility included in a plan for public
facilities or
public transportation approved by the
governing body of the municipality or county shall be considered a project
improvement.
(15)(16)
'Proportionate share' means that portion of the cost of system improvements
which is reasonably related to the service demands and needs of the project
within the
defined service area.
(16)(17)
'Public facilities' means:
(A)
Water supply production, treatment, and distribution facilities;
(B)
Waste-water collection, treatment, and disposal facilities;
(C)
Roads,
streets, and bridges, including rights of way, traffic signals, landscaping, and
any local components of state or federal highways;
(D)
Storm-water collection, retention, detention, treatment, and disposal
facilities, flood control facilities, and bank and shore protection and
enhancement improvements;
(E)(D)
Parks, open space, and recreation areas and related facilities;
(F)(E)
Public safety facilities, including police, fire, emergency medical, and rescue
facilities; and
(G)(F)
Libraries and related facilities.
(18)
'Public transportation' means roads, streets, and bridges, including rights of
way, traffic signals, landscaping, any local components of state or federal
highways, streetcars, light rail projects, or other transportation rail
projects, including preconstruction activities, when such projects are not part
of a system that is presently owned by a regional transportation
authority.
(17)(19)
'Service area' means a geographic area defined by a municipality, county, or
intergovernmental agreement in which a defined set of public facilities
or public
transportation provide service to
development within the area. Service areas shall be designated on the basis of
sound planning or engineering principles or both.
(18)(20)
'System improvement costs' means costs incurred to provide additional public
facilities or
public transportation capacity needed to
serve new growth and development for planning, design and construction, land
acquisition, land improvement, design and engineering related thereto, including
the cost of constructing or reconstructing system improvements or facility
expansions, including but not limited to the construction contract price,
surveying and engineering fees, related land acquisition costs (including land
purchases, court awards and costs,
attorneyś
fees, and expert witness fees), and expenses incurred for qualified staff or any
qualified engineer, planner, architect, landscape architect, or financial
consultant for preparing or updating the capital improvement element, and
administrative costs, provided that such administrative costs shall not exceed 3
percent of the total amount of the costs. Projected interest charges and other
finance costs may be included if the impact fees are to be used for the payment
of principal and interest on bonds, notes, or other financial obligations issued
by or on behalf of the municipality or county to finance the capital
improvements element but such costs do not include routine and periodic
maintenance expenditures, personnel training, and other operating
costs.
(19)(21)
'System improvements' means capital improvements that are public facilities
or public
transportation and are designed to provide
service to the community at large, in contrast to 'project
improvements.'
(22)
'Transportation impact fee' means those development impact fees specifically
paid for public transportation improvement.
36-71-3.
(a)
Municipalities and counties which have adopted a comprehensive plan containing a
capital improvements element are authorized to impose by ordinance development
impact fees as a condition of development approval on all development pursuant
to and in accordance with the provisions of this chapter. After the transition
period provided in this chapter, development exactions for other than project
improvements shall be imposed by municipalities and counties only by way of
development impact fees imposed pursuant to and in accordance with the
provisions of this chapter.
(b)
Notwithstanding any other provision of this chapter, that portion of a project
for which a valid building permit has been issued prior to the effective date of
a municipal or county development impact fee ordinance shall not be subject to
development impact fees so long as the building permit remains valid and
construction is commenced and is pursued according to the terms of the
permit.
(c)
Payment of a development impact fee shall be deemed to be in compliance with any
municipal or county requirement for the provision of adequate public facilities
or
services
or public
transportation in regard to the system
improvements for which the development impact fee was paid.
36-71-4.
(a)
A development impact fee shall not exceed a proportionate share of the cost of
system improvements, as defined in this chapter.
(b)
Development impact fees shall be calculated and imposed on the basis of service
areas.
(c)
Development impact fees shall be calculated on the basis of levels of service
for public facilities
or public
transportation that are adopted in the
municipal or county comprehensive plan that are applicable to existing
development as well as the new growth and development.
(d)
A municipal or county development impact fee ordinance shall provide that
development impact fees shall be collected not earlier in the development
process than the issuance of a building permit authorizing construction of a
building or structure; provided, however, that development impact fees for
public
transportation or public facilities
described in subparagraph
(D)
(C)
of paragraph
(16)(17)
of Code Section 36-71-2 may be collected at the time of a development approval
that authorizes site construction or improvement which requires
public
transportation or public facilities
described in subparagraph
(D)
(C)
of paragraph
(18)(17)
of Code Section 36-71-2.
(e)
A municipal or county development impact fee ordinance shall include a schedule
of impact fees specifying the development impact fee for various land uses per
unit of development on
a
service
an
area by
service
area basis. The ordinance shall provide that a developer shall have the right
to elect to pay a
project́s
proportionate share of system improvement costs by payment of development impact
fees according to the fee schedule as full and complete payment of the
development
project́s
proportionate share of system improvement costs.
(f)
A municipal or county development impact fee ordinance shall be adopted in
accordance with the procedural requirements of Code Section
36-71-6.
(g)
A municipal or county development impact fee ordinance shall include a provision
permitting individual assessments of development impact fees at the option of
applicants for development approval under guidelines established in the
ordinance.
(h)
A municipal or county development impact fee ordinance shall provide for a
process whereby a developer may receive a certification of the development
impact fee schedule or individual assessment for a particular project, which
shall establish the development impact fee for a period of 180 days from the
date of certification.
(i)
A municipal or county development impact fee ordinance shall include a provision
for credits in accordance with the requirements of Code Section
36-71-7.
(j)
A municipal or county development impact fee ordinance shall include a provision
prohibiting the expenditure of development impact fees except in accordance with
the requirements of Code Section 36-71-8.
(k)
A municipal or county development impact fee ordinance may provide for the
imposition of a development impact fee for system improvement costs previously
incurred by a municipality or county to the extent that new growth and
development will be served by the previously constructed system
improvements.
(l)
A municipal or county development impact fee ordinance may exempt all or part of
particular development projects from development impact fees if:
(1)
Such projects are determined to create extraordinary economic development and
employment growth or affordable housing;
(2)
The public policy which supports the exemption is contained in the
municipalitýs
or
countýs
comprehensive plan; and
(3)
The exempt
development́s
proportionate share of the system improvement is funded through a revenue source
other than development impact fees.
(m)
A municipal or county development impact fee ordinance shall provide that
development impact fees shall only be spent for the category of system
improvements for which the fees were collected and in the service area in which
the project for which the fees were paid is located.
(n)
A municipal or county development impact fee ordinance shall provide that, in
the event a building permit is abandoned, credit shall be given for the present
value of the development impact fee against future development impact fees for
the same parcel of land.
(o)
A municipal or county development impact fee ordinance shall provide for a
refund of development impact fees in accordance with the requirements of Code
Section 36-71-9.
(p)
A municipal or county development impact fee ordinance shall provide for appeals
from administrative determinations regarding development impact fees in
accordance with the requirements of Code Section 36-71-10.
(q)
Development impact fees shall be based on actual system improvement costs or
reasonable estimates of such costs.
(r)
Development impact fees shall be calculated on a basis which is net of credits
for the present value of revenues that will be generated by new growth and
development based on historical funding patterns and that are anticipated to be
available to pay for system improvements, including taxes, assessments, user
fees, and intergovernmental transfers.
36-71-5.
(a)
Prior to the adoption of a development impact fee ordinance, a municipality or
county adopting an impact fee program shall establish a Development Impact Fee
Advisory Committee.
(b)
Such committee shall be composed of not less than five nor more than ten members
appointed by the governing authority of the municipality or county and at least
40
50
percent of the membership shall be representatives from the development,
building, or real estate
industries
industry.
An existing planning commission or other existing committee that meets these
requirements may serve as the Development Impact Fee Advisory
Committee.
(c)
The Development Impact Fee Advisory Committee shall serve in an advisory
capacity to assist and advise the governing body of the municipality or county
with regard to the adoption of a development impact fee ordinance. In that the
committee is advisory, no action of the committee shall be considered a
necessary prerequisite for municipal or county action in regard to adoption of
an ordinance.
36-71-6.
Prior
to the adoption of an ordinance imposing a development impact fee pursuant to
this chapter, the governing body of a municipality or county shall cause two
duly noticed public hearings to be held in regard to the proposed ordinance.
The second hearing shall be held at least two weeks after the first
hearing.
36-71-7.
(a)
In the calculation of development impact fees for a particular project, credit
shall be given for the present value of any construction of improvements or
contribution or dedication of land or money required or accepted by a
municipality or county from a developer or his
or
her predecessor in title or interest for
system improvements of the category for which the development impact fee is
being collected. Credits shall not be given for project
improvements.
(b)
In the event that a developer enters into an agreement with a county or
municipality to construct, fund, or contribute system improvements such that the
amount of the credit created by such construction, funding, or contribution is
in excess of the development impact fees which would otherwise have been paid
for the development project, the developer shall be reimbursed for such excess
construction, funding, or contribution from development impact fees paid by
other development located in the service area which is benefited by such
improvements.
36-71-8.
(a)
An ordinance imposing development impact fees shall provide that all development
impact fee funds shall be maintained in one or more interest-bearing accounts.
Accounting records shall be maintained for each category of system improvements
and the service area in which the fees are collected. Interest earned on
development impact fees shall be considered funds of the account on which it is
earned and shall be subject to all restrictions placed on the use of development
impact fees under the provisions of this chapter.
The accounting
records shall include the following information:
(1)
The accounting records to be maintained shall specify the address of each
property which paid development impact fees, the amount of fees paid in each
category in which fees were collected, and the date that such fees were paid;
and
(2)
As to any exemptions granted, the accounting records to be maintained shall
specify the address of each property for which exemptions were granted, the
reason for which such exemption was granted, and the revenue source from which
the exempt
development́s
proportionate share of the system improvements is to be paid.
(b)
Expenditures of development impact fees shall be made only for the category of
system improvements and in the service area for which the development impact fee
was imposed as shown by the capital
improvement
improvements
element and as authorized by this chapter. Development impact fees shall not be
used to pay for any purpose that does not involve system improvements that
create additional service available to serve new growth and
development.
(c)(1)
Transportation impact fees shall be expended to fund, in whole or in part,
system improvement projects:
(A)
That have been identified in the capital improvements element of the
municipalitýs
or
countýs
comprehensive development plan; and
(B)
That are prioritized by proximity to areas which have generated transportation
impact fees and which provide the largest improvement in level of service for
public transportation.
(2)
Where no proposed system improvement project meets the criteria set forth in
paragraph (1) of this subsection, transportation impact fees may be expended to
fund, in whole or in part, system improvement projects that are included in the
capital improvements element of the
municipalitýs
or
countýs
comprehensive development plan, provided that the county or municipality
separately states in its annual report that transportation impact fees have been
expended, or encumbered, under this subsection. Each municipality or county
which funds a system improvement project under this subsection shall be required
to document that no projects met the criteria set forth in paragraph (1) of this
subsection and shall include documentation stating the planning or engineering
principles that demonstrate that such project provided service to developments
which paid transportation impact fees.
(3)
Where the expenditure of development impact fees paid by a development is
allocated to system improvements in the general area of such development,
through an agreement between the municipality or county and the fee payor and
such agreement is approved by the governing body, the analysis required by
paragraphs (1) and (2) of this subsection shall not be applicable.
(d)
As part of its annual audit process, a municipality or county shall prepare an
annual report describing the amount of any development impact fees collected,
encumbered, and used during the preceding year by category of public facility
and service area.
36-71-9.
Any
municipality or county which adopts a development impact fee ordinance shall
provide for refunds in accordance with the following provisions:
(1)
Upon the request of an owner of property on which a development impact fee has
been paid, a municipality or county shall refund the development impact fee if
capacity is available and service is denied or if the municipality or county,
after collecting the fee when service is not available, has failed to encumber
the development impact fee or commence construction within six years after the
date that the fee was collected. In determining whether development impact fees
have been encumbered, development impact fees shall be considered encumbered on
a first-in, first-out (FIFO) basis;
(2)
When the right to a refund exists due to a failure to encumber development
impact fees, the municipality or county shall provide written notice of
entitlement to a refund to the feepayor who paid the development impact fee at
the address shown on the application for development approval or to a successor
in interest who has given notice to the municipality or county of a transfer or
assignment of the right or entitlement to a refund and who has provided a
mailing address. Such notice shall also be published within 30 days after the
expiration of the six-year period after the date that the development impact
fees were collected and shall contain the heading 'Notice of Entitlement to
Development Impact Fee Refund';
(3)
An application for a refund shall be made within one year of the time such
refund becomes payable under paragraph (1) or (2) of this Code section or within
one year of publication of the notice of entitlement to a refund under this Code
section, whichever is later;
(4)
A refund shall include a refund of a pro rata share of interest actually earned
on the unused or excess development impact fee collected;
(5)
All refunds shall be made to the feepayor within 60 days after it is determined
by a municipality or county that a sufficient proof of claim for a refund has
been made; and
(6)
The feepayor shall have standing to sue for a refund under the provisions of
this chapter if there has been a timely application for a refund and the refund
has been denied or has not been made within one year of submission of the
application for refund to the collecting municipality or county.
36-71-10.
(a)
A municipality or county which adopts a development impact fee ordinance shall
provide for administrative appeals to the governing body or such other body as
designated in the ordinance of a determination of the development impact fees
for a particular project.
(b)
A developer may pay a development impact fee under protest in order to obtain a
development approval or building permit, as the case may be. A developer making
such payment shall not be estopped from exercising the right of appeal provided
by this chapter, nor shall such developer be estopped from receiving a refund of
any amount deemed to have been illegally collected.
(c)
A municipality or county development impact fee ordinance may provide for the
resolution of disputes over the development impact fee by binding arbitration
through the American Arbitration Association or otherwise.
36-71-11.
Municipalities
and counties which are jointly affected by development are authorized to enter
into intergovernmental agreements with each other, with authorities, or with the
state for the purpose of developing joint plans for capital improvements or for
the purpose of agreeing to collect and expend development impact fees for system
improvements, or both, provided that such agreement complies with any applicable
state laws.
36-71-12.
This
chapter shall not repeal any existing laws authorizing a municipality or county
to impose fees or require contributions or property dedications for capital
improvements; provided, however, that all local ordinances or resolutions
imposing development exactions for system improvements on April 4, 1990, shall
be brought into conformance with this chapter no later than November 30,
1992.
36-71-13.
(a)
Nothing in this chapter shall prevent a municipality or county from requiring a
developer to construct reasonable project improvements in conjunction with a
development project.
(b)
Nothing in this chapter shall be construed to prevent or prohibit private
agreements between property owners or developers and municipalities, counties,
or other governmental entities in regard to the construction or installation of
system improvements and providing for credits or reimbursements for system
improvement costs incurred by a
developer,
including interproject transfers of credits or providing for reimbursement for
project improvement costs which are used or shared by more than one development
project.
(c)
Nothing in this chapter shall limit a municipality, county, or other
governmental entity which provides water or sewer service from collecting a
proportionate share of the capital cost of water or sewer facilities by way of
hook-up or connection fees as a condition of water or sewer service to new or
existing users, provided that the development impact fee ordinance of a
municipality or county or other governmental entity that collects development
impact fees pursuant to this chapter shall include a provision for credit for
such hook-up or connection fees collected by the municipality or county to the
extent that such hook-up or connection fee is collected to pay for system
improvements. Imposition of such hook-up or connection fees by any governmental
entity to pay for system improvements either existing or new shall be consistent
with the capital
improvement
improvements
element of the comprehensive plan and shall be subject to the approval of each
county, municipality, or combination thereof which appoints the governing body
of such entity. The adoption, imposition, collection, and expenditure of such
fees for system improvements by any governmental entity shall be subject to the
same procedures applicable to the adoption, imposition, collection, and
expenditure of development impact fees by a county.
(d)
Nothing in this chapter shall apply to a water authority created by Act of the
General Assembly, as long as such authority is not established as a political
subdivision of the State of Georgia but instead acts subject to the approval of
a county governing
authority."
SECTION
2.
This
Act shall become effective on July 1, 2006.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.