(A) Eligibility of capital facility. All development impact fee credits must meet the following requirements:
(1) One of the following is true:
(a) The capital facility, or the financial contribution toward a capital facility that will be provided by the developer and for which a credit will be issued, must be identified in an adopted infrastructure improvements plan and fee report as a capital facility for which a development impact fee was assessed; or
(b) The applicant must demonstrate to the satisfaction of the town that, given the class and type of improvement, the subject capital facility should have been included in the infrastructure improvements plan in lieu of a different capital facility that was included in the infrastructure improvements plan and for which a development impact fee was assessed. If the subject capital facility is determined to be eligible for a credit in this manner, the town shall amend the infrastructure improvements plan to:
1. Include the subject replacement facility; and
2. Delete the capital facility that will be replaced.
(2) Credits shall not be available for any infrastructure provided by a developer if the cost of such infrastructure will be repaid to the developer by the town through another agreement or mechanism. To the extent that the developer will be paid or reimbursed by the town for any contribution, payment, construction, or dedication from any town funding source including an agreement to reimburse the developer with future collected development impact fees pursuant to § 151.51, any credits claimed by the developer shall be:
(a) Deducted from any amounts to be paid or reimbursed by the town; or
(b) Reduced by the amount of such payment or reimbursement.
(B) Eligibility of subject development. To be eligible for a credit, the subject development must be located within the service area of the eligible capital facility.
(C) Calculation of credits. Credits will be based on that portion of the costs for an eligible capital facility identified in the adopted infrastructure improvements plan for which a development impact fee was assessed pursuant to the fee report. If the gross impact fee for a particular category of necessary public service is adopted at an amount lower than the maximum amount justified by the fee report, the amount of any credit shall be reduced in proportion to the difference between the maximum amount justified by the fee report and the gross impact fee adopted. A credit shall not exceed the actual costs the applicant incurred in providing the eligible capital facility.
(D) Allocation of credits. Before any credit can be issued to a subject development (or portion thereof), the credit must be allocated to that development as follows:
(1) The developer and the town must execute a credit agreement including all of the following:
(a) The total amount of the credits resulting from provision of an eligible capital facility.
(b) The estimated number of service units to be served within the subject development.
(c) The method by which the credit values will be distributed within the subject development.
(2) It is the responsibility of the developer to request allocation of development impact fee credits through an application for a credit agreement (which may be part of a development agreement entered into pursuant to § 151.51).
(3) If a building permit is issued or a water/sewer connection is purchased, and a development impact fee is paid prior to execution of a credit agreement for the subject development, no credits may be allocated retroactively to that permit or connection. Credits may be allocated to any remaining permits for the subject development in accordance with this subchapter.
(4) If the entity that provides an eligible capital facility sells or relinquishes a development (or portion thereof) that it owns or controls prior to execution of a credit agreement or development agreement, credits resulting from the eligible capital facility will only be allocated to the development if the entity legally assigns such rights and responsibilities to its successor(s) in interest for the subject development.
(5) If multiple entities jointly provide an eligible capital facility, all such entities must collectively enter into a single credit agreement with the town, and any request for the allocation of credit within the subject development(s) must be made jointly by the entities that provided the eligible capital facility.
(6) Credits may only be reallocated from or within a subject development with the town's approval of an amendment to an executed credit agreement, subject to the following conditions:
(a) The entity that executed the original agreement with the town, or its legal successor in interest and the entity that currently controls the subject development are parties to the request for reallocation.
(b) The reallocation proposal does not change the value of any credits already issued for the subject development.
(7) A credit agreement may authorize the allocation of credits to a noncontiguous parcel only if all of the following conditions are met:
(a) The entity that executed the original agreement with the town or its legal successor in interest, the entity that currently controls the subject development, and the entity that controls the noncontiguous parcel are parties to the request for reallocation.
(b) The reallocation proposal does not change the value of any credits already issued for the subject development.
(c) The non-contiguous parcel is in the same service area as that served by the eligible capital facility.
(d) The non-contiguous parcel receives a necessary public service from the eligible capital facility.
(e) The credit agreement specifically states the value of the credits to be allocated to each parcel and/or service unit, or establishes a mechanism for future determination of the credit values.
(f) The credit agreement does not involve the transfer of credits to or from any property subject to a development agreement.
(E) Credit agreement. Credits shall only be issued pursuant to a credit agreement executed in accordance with division (D) of this section. The Town Manager or designee is authorized by this subchapter to enter into a credit agreement with the controlling entity of a subject development, subject to the following:
(1) The developer requesting the credit agreement shall provide all information requested by the town to allow it to determine the value of the credit to be applied.
(2) An application for a credit agreement shall be submitted to the town by the developer within one year of the date on which ownership or control of the capital facility passes to the town.
(3) The developer shall submit a draft credit agreement to the Town Manager or designee for review in the form provided to the applicant by the town. The draft credit agreement shall include, at a minimum, all of the following information and supporting documentation:
(a) A legal description and map depicting the location of the subject development for which credit is being applied. The map shall depict the location of the capital facilities that have been or will be provided.
(b) An estimate of the total service units that will be developed within the subject development depicted on the map and described in the legal description.
(c) A list of the capital facilities, associated physical attributes, and the related costs as stated in the infrastructure improvements plan.
(d) Documentation showing the date(s) of acceptance by the town, if the capital facilities have already been provided.
(e) The total amount of credit to be applied within the subject development and the calculations leading to the total amount of credit.
(f) The credit amount to be applied to each service unit within the subject development for each category of necessary public services.
(4) The town's determination of the credit to be allocated is final.
(5) Upon execution of the credit agreement by the town and the applicant, credits shall be deemed allocated to the subject development.
(6) Any amendment to a previously-approved credit agreement must be initiated within two years of the town's final acceptance of the eligible capital facility for which the amendment is requested.
(7) Any credit agreement approved as part of a development agreement shall be amended in accordance with the terms of the development agreement and § 151.51.
(F) Issuance of credits. Credits allocated pursuant to division (D) of this section may be issued and applied toward the gross impact fees due from a development, subject to the following conditions:
(1) Credits issued for an eligible capital facility may only be applied to the development impact fee due for the applicable category of necessary public services, and may not be applied to any fee due for another category of necessary public services.
(2) Credits shall only be issued when the eligible capital facility from which the credits were derived has been accepted by the town or when adequate security for the completion of the eligible capital facility has been provided in accordance with all terms of an executed development agreement.
(3) Where credits have been issued pursuant to division (F)(2) of this section, a development impact fee due at the time a building permit is issued shall be reduced by the credit amount stated in or calculated from the executed credit agreement. Where credits have not yet been issued, the gross impact fee shall be paid in full, and a refund of the credit amount shall be due when the developer demonstrates compliance with division (F)(2) of this section in a written request to the town.
(4) Credits, once issued, may not be rescinded or reallocated to another building permit or parcel, except that credits may be released for reuse on the same subject development if a building permit for which the credits were issued has expired or been voided and is otherwise eligible for a refund under § 151.53.
(5) Notwithstanding the other provisions of this § 151.50, credits issued prior to January 1, 2012, may only be used for the subject development for which they were issued. Such credits may be transferred to a new owner of all or part of the subject development in proportion to the percentage of ownership in the subject development to be held by the new owner.
(Res. R2019-07, passed 5-6-19; Am. Ord. O2019-03, passed 5-20-19)