(A) Limitation on imposition of Impact Fee. This section shall expire and become void five years after its effective date (May 1, 2017) as required by I.C. 36-7-4-1340, unless action is undertaken to extend this section consistent with Indiana law.
(B) Establishment of Impact Zone. There is hereby established one Recreation Infrastructure Impact Zone (the "Impact Zone"), the boundaries of which are co-terminus with the existing corporate boundaries of the town, as such boundaries may be extended from time to time through annexation, and over which boundaries the town exercises planning and zoning jurisdiction. In this regard, the Town Council specifically finds that there is a functional relationship between the components of the Recreation Zone Improvement Plan for Parks and Recreation Facilities (the "Plan") and that the Plan provides a reasonably uniform benefit to all citizens throughout the Impact Zone as of the adoption of this section. The Town Council further finds that all areas within the Impact Zone are contiguous as required by I.C. 36-7-4-1316. Except as provided herein, this section shall apply uniformly to all residential developments within the Impact Zone. This section shall not apply to:
(1) Development meeting the requirements set forth in I.C. 36-7-4-1322(g);
(2) Improvements which do not require a building permit;
(3) Improvements which do not create a need for new and additional infrastructure, including the erection of a sign, construction of accessory buildings, structures or fences, or the alteration, renovation or expansion of an improvement where the use, or intensity thereof, has not changed;
(4) The replacement of a destroyed or partially destroyed improvement provided that the replacement improvement does not create a need for new and additional infrastructure over and above the infrastructure needed by the original improvement prior to the destruction or partial destruction thereof; and
(5) Non-residential development.
(C) Zone Improvement Plan. As a precondition to the adoption of this section, the Town Council undertook a comprehensive and detailed park and recreational impact analysis through the employment for that purpose of Lehman & Lehman, Inc. The Town Council now finds that the resulting study and data base constitute a sufficient study to constitute a "Zone Improvement Plan" as contemplated by I.C. 36-7-4-1318. Additionally, on October 17, 2016, the Town Council adopted the Zone Improvement Plan as an official part of the Comprehensive Plan of the Town of Danville, pursuant to I.C. 36-7-4-500 et seq. The Town Council does hereby adopt the plan prepared by Lehman & Lehman, Inc., dated August 2016, as its Zone Improvement Plan and specifically finds that the Zone Improvement Plan contains the following elements:
(1) A description of the nature and location of existing infrastructure in the Impact Zone;
(2) A reasonable determination of the current level of service provided within the Impact Zone;
(3) A reasonable determination of the community level of service for the Impact Zone;
(4) Reasonable estimates relating to the nature and location of development that is expected to occur within the Impact Zone during the following ten-year period;
(5) A reasonable estimate of the nature, location, costs, sequencing, and timing of the park and recreational infrastructure necessary to provide the community level of service for the developments contemplated in division (C)(4) above;
(6) A general description of the sources and amounts of money used to pay for infrastructure during the previous five years;
(7) Reasonable provisions for the completion of the infrastructure necessary to raise the current level of service to the community level of service within the following ten-year period;
(8) Reasonable provisions for the nature, location, and cost of infrastructure that is necessary to raise the current level of service to the community level of service;
(9) Reasonable provisions concerning the revenue sources and estimated amounts of revenue that the town intends to use to raise the current level of service to the community level of service for existing development;
(10) A reasonable estimate of the share of the park and recreational costs identified in division (C)(5) above that will he used to raise the current level of service for existing development or provide service to existing development, or to provide service to new development;
(11) A reasonable estimate of revenues that are from sources other than impact fees and will be used to finance the cost of raising the current level of service for existing development or providing service to existing development;
(D) Establishment of Park and Recreation Impact Fees.
(1) Based on the Plan, it is determined that each dwelling unit hereafter constructed in the town, not specifically excepted hereunder, shall pay a recreational Impact Fee in the amount of $789.
(2) The Town Council hereby makes as part of the record of these proceedings all the data collected, calculations made, and conclusions reached by the town's consultant, Lehman & Lehman, Inc., on the process of developing the Zone improvement Plan, and specifically instructs the employees of the town to make such data available to the public for review during regular business hours, along with any other information that is part of the public record created as a result of the process involved in enacting this section.
(3) In the event any parcel of real estate subject to the Plan undergoes a change in use from a use for which the Impact Fee does not pertain to a dwelling unit, an Impact Fee will be assessed against said real estate.
(4) Any person or entity otherwise obligated to pay the fee established by this section whose property was totally or partially destroyed by fire, storm, or other casualty beyond his/her/its control, shall be exempt from said fee if he/she/it repairs or replaces the destroyed structure without creating a burden on infrastructure greater than the burden imposed by the destroyed infrastructure. In the event of such additional burden, the fee shall be calculated based only on the increased burden created by the structure.
(E) Credit in lieu of payment.
(1) A fee payer is entitled to a credit against an Impact Fee if the owners or developer of the development constructs or provides infrastructure that is an infrastructure type for which the town imposed an Impact Fee in the Impact Zone or constructs or provides an improvement as defined by I.C. 36-7-4-1335(a). Such infrastructure or improvement will be public property or furnished or constructed under the requirements of the town (including but not limited to the Plan) and available for use by other development in the area. The amount of a credit will be determined at the date the Impact Fee is assessed. If an assessment is not requested, the amount of the credit will be determined at the time the structural building permit is issued. The amount of the credit shall be determined by the person constructing or providing the infrastructure or improvement and the Town Council. The amount of the credit will be equal to the sum of the cost of constructing or providing the infrastructure or improvement and the fair market value of land, real property interests, and site improvements provided.
(2) The amount of the credit may be increased or decreased after the date the Impact Fee is assessed if, between the date the Impact Fee is assessed and the date the structural building permit is issued, there is a substantial and material change in the cost or value of the infrastructure or improvement that is constructed or furnished from the cost or value determined on the date the Impact Fee is assessed. Provided however, at the time the amount of the credit is determined on the date the impact fee is assessed, the person providing the infrastructure or improvement and the Town Council may agree that the amount of the credit may not be subsequently increased or decreased.
(3) The person providing the infrastructure or improvement may waive the person's right to a credit against an Impact Fee by executing a written waiver and filing such waiver with the Town Council.
(4) If the actual cost of constructing or providing the infrastructure or improvement and the fair market value of land, real property interests, and site improvements provided is less than the amount of the Impact Fee assessed, the difference shall be due as otherwise provided. If the amount of the credit exceeds the Impact F ee provided for by this section, no fee will be due to the town and no refund will be due to the fee payer.
(5) If the parties cannot agree on the cost or fair market value used in calculating the credit, the fee payer or the person constructing or providing the infrastructure or improvement may file with the town's Impact Review Board a petition for determination of the amount of the credit. This petition must be filed not later than 30 days after the structural building permit is issued for the development on which the Impact Fee is imposed. Immediately after receiving a timely filed petition for determination of a credit amount, the Review Board shall provide a copy of the petition to the Town Council. Not later than 30 days after receiving a copy of the petition, the Town Council shall provide to the Board a response on the form prescribed by the Board. The Board shall immediately provide the petitioner a copy of the Town Council's response. The Review Board shall review the petition and the response and hold a public hearing to determine the amount of the credit not later than 30 days after the response is provided to the Board. At the hearing, each party may appear and present evidence in person, by agent, or by attorney. A person may not communicate with a member of the Board before the hearing with intent to influence the member's action regarding the appeal. The Board may reverse, affirm, modify or otherwise establish the amount of the credit. Within five days after making its decision, the Board shall provide to the petitioner and the Town Council a copy of its written findings and decision. A fee payer aggrieved by the Board's final determination of the amount of the credit may, within 30 days of the determination, appeal the determination to the Circuit or Superior Courts of Hendricks County. This appeal shall be determined by a trial denovo.
(6) In addition, a fee payer or other person or entity responsible for installing infrastructure or improvements may designate in writing a method of allocating its credits to future fee payers who may be successors in interest to the credits earned by the fee payer or others, as part of the certification provided for above.
(F) Impact Fee due upon issuance of a building permit.
(1) The fee imposed pursuant to the terms of this section shall be due and payable upon the issuance of a building permit by the town. It is understood that the term BUILDING PERMIT is synonymous with the term STRUCTURAL BUILDING PERMIT as that term is used in I.C. 36-7-4-1323, in that the issuance of a building permit authorizes the applicant to commence construction activities, structural or otherwise. The fee which is calculated pursuant to the terms of this section, which is a per dwelling unit fee, shall be due at said time unless the amount of the fee upon calculation is greater than $5,000 in which case an installment plan may be requested by the applicant in accordance with the terms set forth in I.C.36-7-4-1324.
(2) In an installment plan, a maximum of $5,000 or 5% of the Impact Fee, whichever is greater, shall become due and payable on the date the building permit is issued for the development on which the fee is imposed. The first installment may not become due and payable less than one year after the building permit is issued, and the last installment may not be due and payable less than two years after the building permit is issued. When an Impact Fee is paid through an installment plan, interest shall accrue at the rate of 5% per annum on the portion of the Impact Fee that is outstanding and does not begin to accrue until the date the structural building permit is issued for the development or part of the development on which the Impact Fee is imposed. If all or part of an Impact Fee is not paid when due and payable, the amount of the installment shall be increased on the first day after the installment is due and payable by a penalty equal to 10% of the installment amount that is overdue. Interest, as identified above, shall also be charged on the penalty amount.
(3) If a fee payer requests, the amount of the fee shall be assessed upon the voluntary submission of a development plan or upon the issuance of the building permit whichever is earlier. For purposes of this section, ASSESSMENT means the act of calculating the amount of the fee which shall be due. The town shall make such assessment within 30 days of the date of such voluntary request or at the issuance of the building permit with or without the request.
(G) Lien rights established. Pursuant to I.C. 36-7-4-1325, the town acquires a lien against the real estate which is the subject of the fee on the date a building permit is issued. Upon adoption, this section shall be recorded, and thereafter, it shall constitute constructive notice of the lien rights of the town with respect to a parcel of real estate which is the subject of an installment payment of the fee. The town may, in its discretion, file a specific instrument setting forth its lien rights with respect to a parcel of real estate which is the subject of an installment payment of the fee, and such instrument shall constitute actual notice in addition to the constructive notice provided for by the
(H) Form of receipt. The Clerk- Treasurer shall issue a receipt for all fees collected, in substantially the following form.
Received of (fee payer) this day of the sum of $ in (full) (partial) satisfaction of Recreational Impact Fees due pursuant to the Town of Danville Ordinance No. 22-2016 relating to improvements to be constructed on the real estate located at and described on Exhibit A attached hereto and made part hereof and subject to lien rights in favor of the Town of Danville in the event of partial payment with payments remaining due. The remaining balance due (if any) is in the following amount: $ .
Danville Clerk-Treasurer
(I) Establishment of Impact Fee Review Board.
(1) The Town Council hereby establishes, pursuant to I.C. 36-7-4-1338, an Impact Fee Review Board which shall consist of three citizen members appointed by the Town Council President and who shall qualify as follows:
(a) One member shall be a real estate broker licensed in Indiana;
(b) One member shall be an engineer licensed in Indiana; and
(c) One member shall be a certified public accountant.
(2) A Board member shall not be a member of the Danville Plan Commission.
(3) The initial term for the real estate broker shall be one year. The initial terms of the engineer and the certified public account shall be two years. At the expiration of the terms of each Review Board member, successors shall be appointed in the same manner as the original appointees, and each such succeeding member shall serve for a term of two years. Each member shall continue to serve until his/her successor is appointed and qualified.
(4) If any person appointed as an Impact Fee Review Board member shall fail to qualify as provided within ten days after the mailing to him/her of notice of his/her appointment, or if any member after qualifying shall die, resign, or vacate office, the Town Council President shall fill such vacancy with a new member meeting the qualifications of the member being replaced. A new member shall serve out the remainder of the vacated term.
(5) If a Review Board member is unable to hear a petition due to a conflict of interest, the Town Council President shall appoint a temporary member to serve for the period necessary to dispose of the petition giving rise to the conflict. The temporary member shall qualify in the same manner as the member in whose place he/she is serving.
(6) The Board shall elect one of its members as President and one as Vice-President, each of whom shall serve from the day of his/her election until the following January 31 and until his successor is elected and qualified.
(7) The Board is authorized to adopt by-laws, rules, regulations, and procedures as it may deem necessary for the proper conduct of its proceedings and the carrying out of its duties. Meetings and hearings shall be held at such time as the Board may determine and upon such notice as it may fix, in accordance with the provisions of the by-laws, rules, and regulations adopted and Indiana law.
(8) A majority of the Board shall constitute a quorum and the concurrence of a majority shall be necessary to authorize any action.
(9) The Board shall conduct its review of the amount of an Impact Fee assessed, the amount of a refund, and the amount of a credit using the procedures established in I.C. 36-7-4-136 and 36-7-4-1338(c).
(10) The Impact Fee Review Board shall be governed by I.C. 36-7-4-1338 and all other applicable provisions of the impact fee statue.
(J) Appeal of fee assessment.
(1) Any fee payer who believes itself to be aggrieved by the calculation of the fee may appeal the fee assessment to the Impact Fee Review Board, and the Review Board shall conduct a hearing with regard thereto. At such hearing, the fee payer shall bear the burden of going forward with the evidence and shall present evidence addressing either of the following propositions:
(a) A fact assumption used in determining the amount of the fee is incorrect; or
(b) The amount of the fee is greater than the amount allowed under I.C. 36-7-4-1320, 1321 and 1322.
(2) Upon conclusion of the hearing at which the matter is first presented, or at the conclusion of the hearing if the matter is continued, the Impact Fee Review Board shall determine the appropriate amount of the fee based upon the facts presented and may reverse, affirm, modify, or make such adjustments in the fee, as it believes are appropriate under the circumstances, if any, including establishing the amount of an Impact Fee, a credit, a refund, or any combination of fees, credit, or refunds.
(3) The Impact Fee Review Board shall make written findings of fact supporting its decision and shall provide a copy of its decision to the Town Council and the fee payer involved in the appeal within five days after making its decision.
(4) An appeal under this division must be filed no later than 30 days after the issuance of the building permit. The appeal shall be initiated with the filing of a petition for review with the Clerk-Treasurer together with a filing fee in the amount of $100. The filing fee shall be refunded in full if:
(a) The petition for review is granted and the fee is eliminated, reduced or adjusted by the Impact Fee Review Board, by independent action of the town, or by a court having jurisdiction; and
(b) The reviewing body determines that the amount of the fee, reductions, or credits were arbitrary or capricious.
(5) The petition for review shall be in a form calculated to inform the Impact Fee Review Board of the nature of complaint, the parties to the action, and the relief requested. In addition, the petition shall describe the new development on which the fee has been assessed, all facts related to the assessment of the fee, and the reasons the petitioner believes that the amount of the fee assessed is erroneous or is greater than the amount allowed by the fee limitation set forth in this section and the enabling statute.
(6) A fee payer aggrieved by a final determination ofthe Review Board regarding the assessment of an Impact Fee may appeal the Board's determination to the Circuit or Superior Courts of Hendricks County and is entitled to a trial de novo. If the assessment of the eee is vacated by the Court, the assessment ofthe Impact Fee shall be corrected by the Board.
(7) If a petition for review or an appeal of an Impact Fee assessment is pending, the Impact Fee is not due and payable until after the petition or appeal is finally adjudicated and the amount of the fee is determined. The town shall not deny the issuance of a building permit on the basis that the fee has not been paid or condition issuance of the permit on the payment of the fee unless the fee totals $1,000 or less. If the fee is $1,000 or less, the town may require the fee payer to pay the Fee or initiate an appeal before the building permit is issued.
(K) Refunds.
(1) A fee payer is entitled to arefund of an Impact Fee if the conditions provided for in I.C. 36-7-4-1332(a) exist. An application for a refund must be filed with the Clerk-Treasurer not later than two years after the right to arefund accrues. The town shall issue a refund in part or in full or shall reject the application not later than 30 days after receiving an application for a refund. If the town approves a refund in whole or in part, the town shall pay the amount approved, plus interest from the date on which the Impact Fee was paid to the date the refund is issued. The interest rate for refunds shall be 5% per year. The Town Manager is responsible for accepting, rejecting, and paying a refund and interest.
(2) If the town rejects the application for arefund or approves a partial refund, the fee payer may appeal that rejection to the Review Board not later than 60 days after the rejection or partial approval. The appeal shall be on a form prescribed by the Board. Upon receipt of an application for appeal, the Review Board shall immediately provide to the Town Council notice of the appeal. The Review Board shall hold a hearing on all appeals for a refund. This hearing shall be held not later than 45 days after the application for appeal is filed with the Board. After the hearing, the Review Board shall determine the amount of refund that shall be made to the fee payer from the account established herein. A refund ordered by the Board must include interest from the date the Impact Fee was paid to the date the refund is issued, at the rate of 5% per annum. A party aggrieved by a final decision of the Review Board regarding a refund may appeal the decision to the Circuit or Superior Courts of Hendricks County and is entitled to a trial denovo.
(L) Establishment of Park and Recreation Infrastructure Improvement Fund.
(1) There is hereby established the Park and Recreation Infrastructure Improvement Fund ("the Fund") of the town. The Fund shall be a non-reverting fund and shall receive any and all sums collected pursuant to this section to be utilized in connection with the purposes set forth herein. The Fund shall consist initially of one account based upon the current existence of one impact zone. If, and only if, an additional impact zone is created hereafter, a separate account shall be maintained for each separate impact zone established within the town. Interest earned on the Fund or on any account with the Fund, shall be deposited and maintained within the Fund or the separate account. The Clerk-Treasurer shall maintain records of the status of the Fund or any account which may be established therein, and shall make an annual report of the Fund and accounts which shall be available to the public in general and fee payers, upon request.
(2) Pursuant to I.C. 36-7-4-1332, the Clerk-Treasurer is designated as the town official responsible for acting on refund requests. In order to facilitate refunds when they may be due, the Clerk-Treasurer is directed to identify the puipose of any fee paid in order that a refund, if any, may be paid from the Fund or account into which the fee was originally deposited.
(M) Use of Impact Fees collected pursuant to this section. Any and all fees collected pursuant to the provisions of this section may be utilized only for the following purposes by the town, acting by and through its Town Council, which for the purposes of this section is identified as the infrastructure agency contemplated by I.C. 36-7-4-1317:
(1) Providing funds to be utilized by the town for the purpose of paying the capital costs of new park and recreational infrastructure that is needed to serve the new development within the corporate limits of the town as the same may be amended from time to time and any area over which the town may exercise any of its authority;
(2) An amount not to exceed 5% of the annual collections of the fee to be utilized for expenses incurred by the town for the consulting services used to establish this section;
(3) To pay any refund due pursuant to the terms of this section; and
(4) To pay the debt service cost of an obligation issued to provide new park and recreational infrastructure described in division (M)(1) above.
(N) Indiana Impact Fee Law. The Town Council specifically acknowledges the existence of I.C. 36-7-4-1300 et seq. which regulates the imposition of impact fees by municipal corporations within the State of Indiana. The substantive and procedural requirements of I.C. 36-7-4-1300 et seq. shall control in the events of conflicts with this section which are unintended by the Council.
(O) Amendment and review. The fee provided for herein is based upon data which, in large part, is subject to inflation and other economic and market forces over which the town has no control. The Council may cause a review to be made by town staff or consultants as may be required to determine the continuing validity of the Impact Fee, the Impact Zone, and the Plan. The Council shall consider and adopt such amendments as are necessary to cause a substantive compliance with all constitutional and statutory requirements. To the extent required by the facts and circumstances, this process shall include the steps necessary to update the Plan and the Comprehensive Plan.
(Ord. 22-2016, passed 10-17-16)