CHAPTER 31:  PUBLIC IMPROVEMENTS
Section
General Provisions
   31.01   Initiation of proceedings and report from City Engineer
   31.02   Council’s action on City Engineer’s report
   31.03   Resolution and notice of hearing
   31.04   Hearing
   31.05   Call for bids
   31.06   Assessment ordinance
   31.07   Method of assessment and alternative methods of financing
   31.08   Remedies
   31.09   Notice of assessment
   31.10   Lien records and foreclosure proceedings
   31.11   Errors in assessment calculations
   31.12   Deficit assessment
   31.13   Rebates
   31.14   Abandonment of proceedings
   31.15   Curative provisions
   31.16   Reassessment
System Development Charges
   31.30   Purpose and classification; emergency clause
   31.31   Definitions
   31.32   Establishment of program
   31.33   Methodology to establish or modify a reimbursement fee
   31.34   Authorized expenditures
   31.35   Expenditure restrictions
   31.36   Improvement plans
   31.37   Collection of charge
   31.38   Delinquent charges; hearing
   31.39   Installment payments
   31.40   Exemptions
   31.41   Credits
   31.42   Notice
   31.43   Use of revenue
   31.44   Refunds
   31.45   Implementing regulations; amendments
   31.46   Appeals; procedure
   31.47   Prohibited connection
 
   31.99   Penalty
GENERAL PROVISIONS
§ 31.01  INITIATION OF PROCEEDINGS AND REPORT FROM CITY ENGINEER.
   (A)   Whenever the Council shall deem it necessary, upon its own motion or upon the written petition of the owners of property upon which more than 33% of the total amount of the assessment is levied, to make any street, sewer, sidewalk, drain, or other public improvement to be paid for in whole or in part by special assessment according to benefits, then the Council shall, by motion, direct the City Engineer to make a survey and written report for such project and file the same with the City Recorder.
   (B)   Unless the Council shall direct otherwise, such report shall contain the following matters:
      (1)   A map or plat showing the general nature, location, and extent of the proposed improvement and the land to be assessed for the payment of any part of the cost thereof;
      (2)   Plans, specifications, and estimates of the work to be done; provided, however, that where the proposed project is to be carried out in cooperation with any other governmental agency, the Engineer may adopt the plans, specifications, and estimates of such agency;
      (3)   An estimate of the probable cost of the improvement, including any legal, administrative, and engineering costs attributable thereto;
      (4)   An estimate of the unit cost of the improvement to the specially benefitted properties;
      (5)   A recommendation as to the method of assessment to be used to arrive at a fair apportionment of the whole or any portion of the cost of the improvement to the properties specially benefitted;
      (6)   The description and assessed value of each lot, parcel of land, or portion thereof, to be specially benefitted by the improvement, with the names of the record owners thereof and, when readily available, the names of the contract purchasers thereof; and
      (7)   A statement of outstanding assessments against property to be assessed.
(Prior Code, § 31.01)  (Ord. 120, passed 2-1-1971)
§ 31.02  COUNCIL’S ACTION ON CITY ENGINEER’S REPORT.
   After the City Engineer’s report shall have been filed with the City Recorder, the Council may thereafter by motion approve the report, modify the report, and approve it as modified, require the Engineer to supply additional or different information for such improvement, or it may abandon the improvement.
(Prior Code, § 31.02)  (Ord. 120, passed 2-1-1971)
§ 31.03  RESOLUTION AND NOTICE OF HEARING.
   (A)   After the Council shall have approved the Engineer’s report as submitted or modified, the Council shall, by resolution, declare its intention to make such improvement, provide the manner and method of carrying out the improvement, and shall direct the Recorder to give notice of such improvement by two publications one week apart in a newspaper of general circulation within the city, and by mailing copies of such notice by registered or certified mail to the owners to be assessed for the costs of such improvement.
   (B)   Said notice shall contain the following matters:
      (1)   The report of the City Engineer is on file in the office of the Recorder and is subject to public examination;
      (2)   The Council will hold a public hearing on the proposed improvement on a specified date, which shall not be earlier than 30 days following the first publication of notice pursuant to O.R.S. 223.117, at which objections and remonstrances to such improvement will be heard by the Council; and that if prior to such hearing there shall be presented to the Recorder valid written remonstrances of the owners of property upon which more than 33% of the total amount of the assessment is levied, then the improvement will be abandoned;
      (3)   A description of the property to be specially benefitted by the improvement, the owners of such property, and the Engineer’s estimate of the unit cost of the improvement to the property to be specially benefitted, and the total cost of the improvement to be paid for by special assessments to benefitted properties; and
      (4)   The Council may provide in the improvement resolution that the construction work may be done in whole, or in part by the city, by a contract, or by any other governmental agency, or by any combination thereof.
(Prior Code, § 31.03)  (Ord. 120, passed 2-1-1971)
§ 31.04  HEARING.
   At the time of the public hearing on the proposed improvement, if the written remonstrances shall represent less than the amount of property required to defeat the proposed improvement, then, on the basis of said hearing of written remonstrances and oral objections, if any, the Council may, by motion, at the time of said hearing or within 60 days thereafter, order said improvement to be carried out in accordance with the resolution; or the Council may, on its own motion, abandon the improvement.
(Prior Code, § 31.04)  (Ord. 120, passed 2-1-1971)
§ 31.05  CALL FOR BIDS.
   (A)   (1)   The Council may, in its discretion, direct the City Recorder to advertise for bids for construction of all, or any part of the improvement project on the basis of the Council-approved Engineer’s report and before the passage of the resolution, or after the passage of the resolution and before the public hearing on the proposed improvement, or at any time after the public hearing; provided, however, that no contract shall be let until after the public hearing has been held to hear remonstrances and oral objections to the proposed improvement.
      (2)   In the event that any part of the work of the improvement is to be done under contract bids, then the Council shall determine the time and manner of advertisement forbids; and the contracts shall be let to the lowest responsible bidder, provided that the Council shall have the right to reject all bids when they are deemed unreasonable or unsatisfactory. The city shall provide for the bonding of all contractors for the faithful performance of any contract let under its authority; and the provisions thereof, in case of default, shall be enforced by action in the name of the city.
   (B)   If the Council finds, upon opening bids for the work of such improvement, that the lowest responsible bid is substantially in excess of the Engineer’s estimate, it may, in its discretion, provide for holding a special hearing of objections to the proceeding with the improvement on the basis of such bid; and it may direct the City Recorder to publish one notice thereof in a newspaper of general circulation in the city.
(Prior Code, § 31.05)  (Ord. 120, passed 2-1-1971)
§ 31.06  ASSESSMENT ORDINANCE.
   (A)   If the Council determines that the local improvement shall be made, when the estimated cost thereof is ascertained on the basis of the contract award or city departmental cost, or after the work is done and the cost thereof has been actually determined, the Council shall determine whether the property benefitted shall bear all or a portion of the cost.
   (B)   (1)   The City Recorder shall prepare the proposed assessment to the respective lots within the assessment district and file it in the appropriate city office.
      (2)   Notice of such proposed assessment shall be mailed or personally delivered to the owner of each lot proposed to be assessed, which notice shall state the amounts of assessment proposed on that property and shall fix a date by which time objections shall be filed with the Recorder. Any such objection shall state the grounds thereof.
   (C)   The Council shall consider such objections and may adopt, correct, modify, or revise the proposed assessments and shall determine the amount of assessment to be charged against each lot within the district, according to the special and peculiar benefits accruing thereto from the improvement, and shall by ordinance spread the assessments.
(Prior Code, § 31.06)  (Ord. 120, passed 2-1-1971)
§ 31.07  METHOD OF ASSESSMENT AND ALTERNATIVE METHODS OF FINANCING.
   The Council, in adopting a method of assessment of the costs of the improvement, may:
   (A)   Use any just and reasonable method of determining the extent of any improvement district consistent with the benefits derived;
   (B)   Use any method of apportioning the sum to be assessed as is just and reasonable between the properties determined to be specially benefitted;
   (C)   Authorize payment by the city of all, or any part of the cost of any such improvement when, in the opinion of the Council, the topographical or physical conditions, or unusual or excessive public travel, or other character of the work involved warrants only a partial payment or no payment by the benefitted property of the costs of the improvement; and/or
   (D)   Nothing contained in this chapter shall preclude the Council from using any other available means of financing improvements, including federal or state grants-in-aid, sewer charges or fees, revenue bonds, general obligation bonds, or any other legal means of finance. In the event that such other means of financing improvements are used, the Council may, in its discretion, levy special assessments according to the benefits derived to cover any remaining part of the costs of the improvement.
(Prior Code, § 31.07)  (Ord. 120, passed 2-1-1971)
§ 31.08  REMEDIES.
   (A)   Subject to the curative provisions of § 31.15 and the rights of the city to reassess as provided in § 31.16, proceedings for writs of review and suits in equity may be filed not earlier than 30 days nor later than 60 days after the filing of written objections as provided herein. A property owner who has filed written objections with the City Recorder prior to the public hearing may have the right to apply for a writ of review based upon the Council exercising its functions erroneously or arbitrarily or exceeding its jurisdiction to the injury of some substantial right of such owner, if the facts supporting such claim have been specifically set forth in the written objections.
   (B)   A property owner who has filed written objections with the City Recorder prior to the public hearing may commence a suit for equitable relief based upon a total lack of jurisdiction on the part of the city; and if notice of the improvement shall not have been sent to the owner, and if the owner did not have actual knowledge of the proposed improvement prior to the hearing, then the owner may file written objections alleging lack of jurisdiction with the City Recorder within 30 days after receiving notice or knowledge of the improvement.
   (C)   No provision of this section shall be construed so as to lengthen any period of redemption or so as to affect the running of any statute of limitation. Any proceeding on a writ of review or suit in equity shall be abated, if proceedings are commenced and diligently pursued by the Council to remedy or cure the alleged errors or defects.
(Prior Code, § 31.08)  (Ord. 120, passed 2-1-1971)
§ 31.09  NOTICE OF ASSESSMENT.
   (A)   Within ten days after the ordinance levying assessments has been passed, the City Recorder shall send by registered or certified mail a notice of assessment to the owner of the assessed property, and shall publish notice of such assessment twice in a newspaper of general circulation in the city, the first publication of which shall be made not later than ten days after the date of the assessment ordinance.
   (B)   The notice of assessment shall recite the date of the assessment ordinance and shall state that upon the failure of the owner of the property assessed to make application to pay the assessment in installments within ten days from the date of the first publication of notice, or upon the failure of the owner to pay the assessment in full within 30 days from the date of the assessment ordinance, then interest will commence to run on the assessment and that the property assessed will be subject to foreclosure; and said notice shall further set forth a description of the property assessed, the name of the owner of the property, and the amount of each assessment.
(Prior Code, § 31.09)  (Ord. 120, passed 2-1-1971)
§ 31.10  LIEN RECORDS AND FORECLOSURE PROCEEDINGS.
   (A)   After passage of the assessment ordinance by the Council, the City Recorder shall enter in the docket of city liens a statement of the amounts assessed upon each particular lot, parcel of land, or portion thereof, together with a description of the improvement, the name of the owners, and the date of the assessment ordinance.
   (B)   Upon such entry in the lien docket, the amount so entered shall become a lien and charge upon the respective lots, parcels of land, or portions thereof, which have been assessed for such improvement. All assessment liens of the city shall be superior and prior to all other liens or encumbrances on property insofar as the laws of the state permit. Interest shall be charged at the rate of 7% per annum until paid on all amounts not paid within 30 days from the date of the assessment ordinance; and after expiration of 30 days from the date of such assessment ordinance the city may proceed to foreclose or enforce collection of the assessment liens in the manner provided by the general law of the state; provided, however, that the city may, at its option, enter a bid for the property being offered at a foreclosure sale, which bid shall be prior to all bids except those made by persons who would be entitled under the laws of the state to redeem such property.
(Prior Code, § 31.10)  (Ord. 120, passed 2-1-1971)
§ 31.11  ERRORS IN ASSESSMENT CALCULATIONS.
   Claimed errors in the calculation of assessments shall be called to the attention of the City Recorder, who shall determine whether there has been an error in fact. If the Recorder shall find that there has been an error in fact, he or she shall recommend to the Council an amendment to the assessment ordinance to correct such error; and upon enactment of such amendment, the City Recorder shall make the necessary correction in the docket of city liens and send a correct notice of assessment by registered or certified mail.
(Prior Code, § 31.11)  (Ord. 120, passed 2-1-1971)
§ 31.12  DEFICIT ASSESSMENT.
   (A)   In the event that an assessment shall be made before the total cost of the improvement is ascertained, and if it is found that the amount of the assessment is insufficient to defray the expenses of the improvement, the Council may, by motion, declare such deficit and prepare a proposed deficit assessment.
   (B)   The Council shall set a time for a hearing of objections to such deficit assessment and shall direct the City Recorder to publish one notice thereof in a newspaper of general circulation in the city. After such hearing, the Council shall make a just and equitable deficit assessment by ordinance, which shall be entered in the docket of city liens as provided by this chapter; and notices of the deficit assessment shall be published and mailed; and the collection of the assessment shall be made in accordance with §§ 31.09 and 31.10 of this chapter.
(Prior Code, § 31.12)  (Ord. 120, passed 2-1-1971)
§ 31.13  REBATES.
   (A)   If, upon the completion of the improvement project, it is found that the assessment previously levied upon any property is more than sufficient to pay the costs of such improvements, then the Council must ascertain and declare the same by ordinance; and when so declared, the excess amounts must be entered on the lien docket as a credit upon the appropriate assessment.
   (B)   In the event that any assessment has been paid, the person who paid the same, or his or her legal representative, shall be entitled to the repayment of such rebate credit, or the portion thereof which exceeds the amount unpaid on the original assessment.
(Prior Code, § 31.13)  (Ord. 120, passed 2-1-1971)
§ 31.14  ABANDONMENT OF PROCEEDINGS.
   The Council shall have full power and authority to abandon and rescind proceedings for improvements made under this chapter at any time prior to the final completion of such improvements; and if liens have been assessed upon any property under such procedure, they shall be canceled; and any payments made on such assessments shall be refunded to the person paying the same, his or her assigns, or legal representatives.
(Prior Code, § 31.14)  (Ord. 120, passed 2-1-1971)
§ 31.15  CURATIVE PROVISIONS.
   No improvement assessment shall be rendered invalid by reason of a failure of the Engineer’s report to contain all of the information required by § 31.01 of this chapter, or by reason of failure to have all of the information required to be in the improvement resolution, the assessment ordinance, the lien docket, or notices required to be published and mailed, nor by the failure to list the name of, or mail notice to the owner of any property as required by this chapter, or by reason of any other error, mistake, delay, omission, irregularity, or other act, jurisdictional or otherwise, in any of the proceedings or steps herein specified, unless it appears that the assessment is unfair or unjust in its effect upon the person complaining; and the Council shall have the power and authority to remedy and correct all such matters by suitable action and proceedings.
(Prior Code, § 31.15)  (Ord. 120, passed 2-1-1971)
§ 31.16  REASSESSMENT.
   Whenever any assessment, deficit, or reassessment for any improvement which has been made by the city has been, or shall be, set aside, annulled, declared or rendered void, or its enforcement restrained by any court of this state, or any federal court having jurisdiction thereof, or when the Council shall be in doubt as to the validity of such assessment, deficit assessment, or reassessment, or any part thereof, then the Council may make a reassessment in the manner provided by the laws of the state.
(Prior Code, § 31.16)  (Ord. 120, passed 2-1-1971)
SYSTEM DEVELOPMENT CHARGES
§ 31.30  PURPOSE AND CLASSIFICATION; EMERGENCY CLAUSE.
   (A)   Purpose. The purpose of the system development charge is to impose an equitable share of the public costs of capital improvements for water, sewers, and wastewater drainage, streets, flood control, and parks upon those developments and redevelopments that create the need for, or increase the demands on, capital improvements.
   (B)   Scope. The system development charges as imposed by this section are separate from, and in addition to, any applicable tax, assessment, charge, fee in lieu of assessment, exaction, dedication, or fee otherwise provided by law or imposed as a condition of development approval application.
   (C)   Classification. Any fee, rates, or charges imposed by this subchapter are not a tax subject to the property tax limitations of Oregon State Constitution Article XI, § 11(b).
   (D)   Emergency clause. Whereas passage of this subchapter is deemed to be necessary for the preservation of the public health, safety, and welfare of the citizens of the city, an emergency is hereby declared to exist, and this subchapter shall be in full force and effect upon its passage by the City Council and approval of the Mayor.
§ 31.31  DEFINITIONS.
   For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
   ADMINISTRATIVE CHARGE. The amount charged to each development to cover the cost of developing the methodologies, providing an annual accounting of system development charge expenditures, implementation, and operational costs associated with the system development charge program.
   CAPITAL IMPROVEMENT. Public facilities or assets used for the following:
      (1)   Water supply, treatment, and distribution;
      (2)   Wastewater collection, transmission, treatment, and disposal;
      (3)   Drainage and flood control;
      (4)   Transportation, including, but not limited to, streets, sidewalks, bicycle lanes, multi-use paths, street lights, traffic signs and signals, pavement markings, street trees, swales, public transportation, vehicle parking, and bridges; or
      (5)   Parks and recreation, including, but not limited to, community parks, public open space and trail systems, recreational buildings, courts, fields, and other like facilities.
   CAPITAL IMPROVEMENT. Does not include costs of the operation or routine maintenance of CAPITAL IMPROVEMENTS.
   DEVELOPER. The person, builder, applicant, permittee, or firm developing land, making the improvement, or building or modifying a structure.
   DEVELOPMENT. All improvements on a site, including buildings, other structures, parking and loading areas, landscaping, paved or graveled areas, and areas devoted to exterior display, storage, or activities, any building permit resulting in increased usage of capital improvements, and any new connection or increased size connection for a capital improvement.
      (1)   DEVELOPMENT includes the redevelopment of property.
      (2)   DEVELOPMENT also includes improved open areas, such as plazas and walkways, but does not include natural geologic forms or unimproved lands.
   IMPROVEMENT FEE. A fee for costs associated with capital improvements to be constructed after the date the fee is adopted pursuant to § 31.32.
   LAND AREA. The area of a parcel of land as measured by projection of the parcel boundaries upon a horizontal plane, with the exception of a portion of the parcel within a recorded right-of-way or easement subject to a servitude for a public street or for a public scenic or preservation purpose.
   OWNER. The owner or owners of record, title, or the purchaser or purchasers under a recorded land sales agreement, and other persons having an interest of record in the described real property.
   PARCEL OF LAND. A lot, parcel, block, or other tract of land that is occupied, or may be occupied, by a structure or structures or other use, and that includes the yards and other open spaces required under the zoning, subdivision, or other development ordinances.
   QUALIFIED PUBLIC IMPROVEMENTS. A capital improvement that is required as a condition of development approval, identified in the plan adopted pursuant to § 31.36; and either:
      (1)   Not located on, or contiguous to, property that is the subject of the development approval; or
      (2)   Located in whole or in part on, or contiguous to, property that is the subject of development approval and required to be built larger, or with greater capacity than is necessary, for the particular development project to which the improvement fee is related.
   REIMBURSEMENT FEE. A fee for costs associated with capital improvements already constructed, or under construction when the fee is established, for which the City Council determines that capacity exists.
   SYSTEM DEVELOPMENT CHARGE. A reimbursement fee, an improvement fee, or a combination thereof, assessed or collected at the time of increased usage of a capital improvement or issuance of a development permit, building permit, or connection to the capital improvement.
      (1)   SYSTEM DEVELOPMENT CHARGE includes the portion of a sewer or water system connection charge that is greater than the amount necessary to reimburse the city for its average cost of inspecting and installing connections with water and sewer facilities.
      (2)   SYSTEM DEVELOPMENT CHARGE does not include any fees assessed or collected as part of a local improvement district or a charge in lieu of a local improvement district assessment, or the cost of complying with requirements or conditions imposed upon a land use decision, expedited land use division, or limited land use decision.
(Ord. 2021-02, passed 3-22-2021)
§ 31.32  ESTABLISHMENT OF PROGRAM.
   (A)   System development charges shall be established and may be revised by resolution of the City Council. The resolution shall set the amount of the charge through a methodology developed pursuant to § 31.33 herein, the type of permit to which the charge applies, and, if the charge applies to a geographic area smaller than the entire city, the geographic area subject to the charge. Changes in the system development charges shall also be adopted by resolution, excepting those changes resulting solely from inflationary cost impacts.
   (B)   All system development charges will be indexed. The indexing will be based on the Engineering News Record Construction Cost Index for Seattle, Washington for December of each year, and they will be increased on April 1 each subsequent year.
   (C)   Unless otherwise exempted by the provisions of this subchapter, or by other local or state law, a system development charge is hereby imposed upon all development within the city upon issuance of permit, as stated in § 31.37 herein, or upon the act of making a connection to the city’s water or sewer system within the city, whichever occurs first, and upon all development outside the boundary of the city that connects to, or otherwise uses, the sewer facilities, storm sewers, or water facilities of the city.
   (D)   Administrative costs for the city’s system development charge program are estimated and include the periodic and on-going direct and indirect costs associated with complying with the requirement of state law and the cost of administering system development charges. An administrative charge shall be incurred when one of the following occurs.
      (1)   When a redevelopment occurs that changes the use of a building in its entirety, and it is determined that usage of any capital improvement is increased or there is need of additional capital improvements, the associated administrative fee will be calculated as either a percentage rate of the net charge after credits are applied, or at a flat rate, whichever is higher, as listed in division (E) below.
      (2)   When a redevelopment permit application (other than for redevelopment that changes the use of a building in its entirety) requires a detailed review to determine that there will be no increased usage of any capital improvement and no additional capital improvements will be needed, the associated administrative fee will be applied at a flat rate as listed in division (E) below.
      (3)   When an system development charge is imposed for all other development, the associated administrative fee will be calculated as a percentage rate of the net charge after credits for previous use and impact reduction are applied, or at a flat rate, whichever is higher, as listed in division (E) below.
   (E)   The administration fees charged in accordance with division (D) above will be as follows:
      (1)   If based on percentage, as described in division (D) above: 5%; or
      (2)   If based on flat rate, as described in division (D) above: $100.
   (F)   An administrative charge calculated shall not exceed a maximum amount of $30,000 for a single permit issued. If multiple permits are issued for different phases of the same development, the maximum administrative charge shall be applied to each permit independently.
(Ord. 2021-02, passed 3-22-2021)
§ 31.33  METHODOLOGY TO ESTABLISH OR MODIFY A REIMBURSEMENT FEE.
   (A)   The methodology used to establish or modify a reimbursement fee shall promote the objective of future system users contributing not more than an equitable share to the cost of existing facilities and be available for public inspection. The methodology used to establish or modify a reimbursement fee shall, where applicable, be based on:
      (1)   Ratemaking principles employed to finance publicly-owned capital improvements;
      (2)   Prior contributions by existing users;
      (3)   Gifts or grants from federal or state government or private persons;
      (4)   The value of unused capacity available to future system users or the cost of the existing facilities; and
      (5)   Other relevant factors identified by the City Council.
   (B)   The methodology used to establish or modify an improvement fee shall, where applicable, demonstrate consideration of the estimated cost of projected capital improvements identified in an improvement plan (see § 31.36) that are needed to increase the capacity of the systems to which the fee is related. The methodology shall be calculated to obtain the cost of capital improvements for the projected need for available system capacity for future system users.
   (C)   The methodology used to establish or modify a reimbursement fee or improvement fee shall be contained in a resolution adopted by the City Council and reviewed annually.
(Ord. 2021-02, passed 3-22-2021)
§ 31.34  AUTHORIZED EXPENDITURES.
   (A)   Reimbursement fees shall be spent only on capital improvements associated with the systems for which the fees are assessed, including expenditures relating to repayment of indebtedness.
   (B)   (1)   Improvement fees shall be spent only on capacity increasing capital improvements, including expenditures relating to repayment of debt for such improvements. An increase in system capacity may be established if a capital improvement increases the level of performance or service provided by existing facilities or provides new facilities.
      (2)   The portion of the improvements funded by improvement fees must be related to the need for increased capacity to provide service for future users.
   (C)   Notwithstanding divisions (A) and (B) above, system development charge revenues may be expended on the direct costs of complying with the provisions of this subchapter, including the costs of developing system development charge methodologies and providing an annual accounting of system development charge expenditures.
(Ord. 2021-02, passed 3-22-2021)
§ 31.35  EXPENDITURE RESTRICTIONS.
   (A)   System development charges may not be expended for costs associated with the construction of administrative office facilities that are more than an incidental part of other capital improvements, or for the expenses of the operation or maintenance of the facilities constructed with system development charge revenues.
   (B)   Any capital improvement being funded wholly or in part with system development charge revenues must be included in the plan and list adopted by the City Council pursuant to O.R.S. 223.309 and § 31.36.
(Ord. 2021-02, passed 3-22-2021)
§ 31.36  IMPROVEMENT PLANS.
   (A)   Prior to the establishment of a system development charge, the City Council shall prepare a capital improvement plan, public facilities plan, master plan, or other comparable plan that includes:
      (1)   A list of the capital improvements that the City Council intends to fund, in whole or in part, with revenues from improvement fees;
      (2)   The estimated cost of construction of each improvement and the percentage of that cost eligible to be funded with improvement fee revenue; and
      (3)   A description of the process for modifying the plan.
   (B)   In adopting a plan under division (A) above, the City Council may incorporate by reference all, or a portion of, any capital improvement plan, public facilities plan, master plan, or other comparable plan that contains the information required by this section.
   (C)   The City Council may modify such plan and list, as described in § 31.36(A), at any time. If a system development charge will be increased by a proposed modification to the list to include a capacity increasing public improvement, the City Council will:
      (1)   At least 30 days prior to the adoption of the proposed modification, provide written notice to persons who have requested notice pursuant to § 31.40; and
      (2)   Hold a public hearing if a written request for a hearing is received within seven days of the date of the proposed modification.
   (D)   A change in the amount of a reimbursement fee or an improvement fee is not a modification of the system development charge if the change in amount is based on the periodic application of the indexing provisions of this subchapter or a modification to any of the factors related to the rate therein that are incorporated in the established methodology.
(Ord. 2021-02, passed 3-22-2021)
§ 31.37  COLLECTION OF CHARGE.
   (A)   The system development charge is payable upon the issuance of:
      (1)   A building permit;
      (2)   A development permit;
      (3)   A development permit for development not requiring the issuance of a building permit;
      (4)   A permit or approval to connect to the water system;
      (5)   A permit or approval to connect to the sewer system; or
      (6)   A right-of-way access permit.
   (B)   If no building, development, or connection permit is required, the system development charge is payable at the time the usage of the capital improvement is increased, based on changes in the use of the property unrelated to seasonal or ordinary fluctuations in usage.
   (C)   If development is commenced or connection is made to the water or sewer systems without an appropriate permit, the system development charge is immediately payable upon the earliest date that a permit was required, and it will be unlawful for anyone to continue with the construction or associated use until the system development charge has been paid. The City Recorder shall collect the applicable system development charge from the permittee when a permit that allows building or development of a parcel is issued or when a connection to the water or sewer system of the city is made. The applicable charge is the charge in place at the time of collection, not the time of the permit application.
   (D)   The applicant for a connection permit shall be required to state, in writing, the intended use of the building in sufficient detail to enable the city to determine the appropriate category of use. If the use of a building changes, or if the use stated is incorrect, the occupant shall report the change of use to the city within 30 days and promptly pay any additional system development charges. If the occupant fails to report a correct statement of use or a change of use within 30 days, or fails to pay the additional system development charge within ten days after invoice, the occupant shall pay a penalty of 10% of the balance due plus interest on the unpaid balance at the rate of 1.5% per month.
   (E)   The City Recorder shall not issue such permit or allow such connection until the charge has been paid in full, or until provision for installment payments has been made pursuant to § 31.39, or unless an exemption is granted pursuant to § 31.40.
(Ord. 2021-02, passed 3-22-2021)  Penalty, see § 31.99
§ 31.38  DELINQUENT CHARGES; HEARING.
   (A)   When, for any reason, the system development charge has not been paid, the City Manager shall report to the City Council the amount of the uncollected charge, the description of the development to which the charge is attributable, the date upon which the charge was due, and the name of the developer.
   (B)   The City Council shall schedule a public hearing on the matter and direct that notice of the hearing be given to each developer with a copy of the City Manager’s report concerning the unpaid charge. Notice of the hearing shall be given either personally or by certified mail, return receipt requested, or by both personal and mailed notice, and by posting notice on the parcel at least ten days before the date set for the hearing.
   (C)   At the hearing, the City Council may accept, reject, or modify the determination of the City Recorder as set forth in the report. If the City Council finds that a system development charge is unpaid and uncollected, it shall direct the City Recorder to enter the unpaid and uncollected system development charge in the lien docket. Upon completion of the docketing, the city shall have a lien against the described land for the full amount of the unpaid charge, together with interest at the legal rate of 10% and with the city’s actual cost of serving notice of the hearing on the owners. The lien shall be enforceable in the manner provided in O.R.S. Chapter 223.
(Ord. 2021-02, passed 3-22-2021)
§ 31.39  INSTALLMENT PAYMENTS.
   (A)   An owner of property obligated to pay a system development charge in an amount exceeding $2,500 may apply to pay the charge in semiannual installments over a period not to exceed ten years, but will pay minimum semiannual installments of not less than $1,250. Installments shall include interest on the unpaid balance at the rate equal to 3% per annum above the prime rate of interest quoted by the Wall Street Journal as of January 2 of the year in which the charge is imposed, in accordance with O.R.S. Chapter 223.
   (B)   The City Recorder shall provide application forms for installment payments, which shall include a waiver of all rights to contest the validity of the lien, except for the correction of computational errors.
   (C)   An applicant for installment payments shall have the burden of demonstrating the applicant’s authority to assent to the imposition of a lien on the parcel and that applicant’s property interest in the parcel is adequate to secure payment of the lien.
   (D)   The City Recorder shall report to the City Council the amount of the system development charge, the dates on which payments are due, the name of the owner, and the description of the parcel.
   (E)   The City Recorder shall docket the lien. From the time the lien is docketed, the city shall have a lien upon the described parcel for the amount of the system development charge, together with interest on the unpaid balance at a rate established by the City Council via resolution. The lien shall be enforceable in the manner provided in O.R.S. Chapter 223.
   (F)   Upon written request of the City Council, the City Recorder is authorized to cancel assessments of system development charges, without further City Council action, where a new development approved by a building permit is not constructed and the building permit is cancelled. Any system development charges paid to the city pursuant to the cancelled permit shall be refunded upon request of the applicant. Such refund will be in the amount paid at the time of the payment to the city, unadjusted for inflation.
(Ord. 2021-02, passed 3-22-2021)
§ 31.40  EXEMPTIONS.
   (A)   (1)   Structures and uses established and legally existing on or before the effective date of this subchapter, March 22, 2021, are exempt from a system development charge, except water and sewer charges, to the extent of the structure or use then existing and to the extent of the parcel of land as it is constituted on that date.
      (2)   Structures and uses affected by this section shall pay the water or sewer charges pursuant to the terms of this subchapter upon the receipt of a permit to connect to the water or sewer system.
   (B)   Additions to single-family dwellings that do not constitute the addition of a dwelling unit, as defined by the State’s Uniform Building Code, are exempt from all portions of the system development charge.
   (C)   An alteration, addition, replacement, or change in use that does not increase a parcel’s or structure’s use of the public improvement facility are exempt from all portions of the system development charge.
   (D)   Up to two low- or moderate-income single-family residential projects for certified nonprofit entities per calendar year will be granted a waiver for wastewater and water system development charges by the City Manager on a first come, first served basis.
   (E)   Except as provided in division (D) above, no waiver of system development charges shall be made.
(Ord. 2021-02, passed 3-22-2021)
§ 31.41  CREDITS.
   (A)   A system development charge shall be imposed when a change of use of a parcel or structure occurs, but credit shall be given for the computed system development charge to the extent that prior structures existed and services were established on or after the effective date of the ordinance. The credit so computed shall not exceed the calculated system development charge. No refund shall be made on account of such credit.
   (B)   The city will grant to an applicant a credit against any improvement fee assessed when the applicant, or the developer from whom the applicant purchased a lot, constructs, or dedicates a qualified public improvement as part of the development. The initial determination on all credit requests shall be a decision by the City Recorder, and the applicant bears the burden of evidence and persuasion in establishing entitlement to a system development charge credit and the amount of credit in accordance with the requirements of this section. The city may deny the credit provided for in this section if the city demonstrates that the application does not meet the requirements of this section or if the improvement for which credit is sought was not included in the improvement plan.
   (C)   To obtain a system development charge credit, the applicant must make the request, in writing, prior to the city’s issuance of the first building permit for the development in question. In the request, the applicant must state the following:
      (1)   Identify the improvement for which the credit is sought;
      (2)   Explain how the improvement is a qualified public improvement; and
      (3)   Document, with credible evidence, the value of the improvement for which credit is sought.
   (D)   The system development charge credit shall be an amount equal to the fair market value of the improvement. Fair market value shall be determined by the City Recorder based on credible evidence of the following:
      (1)   For dedicated lands, value shall be based upon a written appraisal of fair market value by a qualified, professional appraiser based upon comparable sales of similar property between unrelated parties in an arms-length transaction;
      (2)   For a qualified public improvement yet to be constructed, value shall be based upon the anticipated cost of construction. Any such cost estimates shall be certified by a registered professional architect or engineer or based on a fixed price bid from a contractor ready and able to construct the improvement(s) for which the system development charge credit is sought;
      (3)   For a qualified public improvement already constructed, value shall be based on the actual cost of construction as verified by receipts submitted by the applicant; or
      (4)   For a qualified public improvement located on, or contiguous to, the site of the development, only the over-capacity portion as described in the definition of qualified public improvement is eligible for a system development charge credit. There is a rebuttable presumption that the over-capacity portion of such a qualified public improvement is limited to the portion constructed larger, or of greater capacity, than the city’s minimum standard facility capacity or size needed to serve the particular development.
   (E)   When given, system development charge credits will be for a particular dollar value as a credit against a system development charge assessed on a development. Credits may only be used to defray or pay the system development charge for the particular capital improvement system to which the qualified public improvement is related (e.g., credit from a qualified public improvement for sewers may only be used to pay or defray a sewer system development charge).
   (F)   Where the amount of a system development charge credit approved under this section exceeds the amount of a system development charge assessed on a development for a particular capital improvement system, the excess credit may be carried forward pursuant to the following rules.
      (1)   A system development charge credit carry-forward will be issued by the City Recorder for a particular dollar value to the developer who earned the system development charge credit, and may be used by the developer to satisfy system development charge requirements for any other development applied for by the developer within the city. System development charge credit carry-forwards are not negotiable or transferable to any party other than the one to whom they are issued.
      (2)   The city will accept a system development charge credit carry-forward presented by a developer as full or partial payment for the system development charge due on any of the developer’s developments.
      (3)   System development charge credit carry-forwards are void and of no value if not redeemed with the city for payment of a system development charge of the same type of capital improvement system for which the credit was issued within five years of the date of issuance.
      (4)   System development charge credits cannot be indexed for inflation or redeemed for cash.
   (G)   For all other system development charge credits not carried forward, the applicant must formally request the system development charge credit to the City Recorder no later than 60 days after the later of the following two conditions occurs:
      (1)   Acceptance of the applicable improvement by the city; and
      (2)   The applicant paying sufficient system development charges for the development to cover the approved system development charge credit.
(Ord. 2021-02, passed 3-22-2021)
§ 31.42  NOTICE.
   (A)   The city shall maintain a list of persons who have made a written request for notification prior to adoption or modification of a methodology for any system development charge. Written notice shall be mailed to persons on the list at least 90 days prior to the first hearing to establish or modify a system development charge. The methodology supporting the system development charge shall be available at least 60 days prior to the first hearing to adopt or amend a system development charge. The failure of a person on the list to receive a notice that was mailed does not invalidate the action of the city.
   (B)   The city may periodically delete names from the list, but at least 30 days prior to removing a name from the list, the city must notify the person whose name is to be deleted that a new, written request for notification is required if the person wishes to remain on the notification list.
(Ord. 2021-02, passed 3-22-2021)
§ 31.43  USE OF REVENUE.
   (A)   All funds derived from a particular type of system development charge are to be segregated by accounting practices from all other funds of the city. That portion of the system development charge calculated and collected on account of a specific facility system shall be used for no purpose other than that set forth in § 31.34.
   (B)   The City Recorder shall provide the City Council with an annual accounting, by January 1 of each year, for system development charges showing the total amount of system development charge revenue collected for each type of facility and the projects funded from each account in the previous fiscal year. A list of the amount spent on each project funded, in whole or in part, with system development charge revenue shall be included in the annual accounting.
(Ord. 2021-02, passed 3-22-2021)
§ 31.44  REFUNDS.
   (A)   Refunds shall be given by the City Recorder upon finding that there was a clerical error in the calculation of a system development charge.
   (B)   Refunds shall not be allowed for failure to timely claim a credit under § 31.41, or for failure to seek an alternative system development charge rate calculation at the time of submission of an application for a building permit.
   (C)   The city shall refund to an applicant any system development charge revenues not expended within ten years of receipt from the applicant. Such refund will be in the amount paid at the time, unadjusted for inflation.
(Ord. 2021-02, passed 3-22-2021)
§ 31.45  IMPLEMENTING REGULATIONS; AMENDMENTS.
   The City Council delegates to the City Recorder the authority to adopt necessary procedures to implement the provisions of this subchapter. All rules developed pursuant to that delegated authority shall be filed with the office of the City Recorder and be available for public inspection.
(Ord. 2021-02, passed 3-22-2021)
§ 31.46  APPEALS; PROCEDURE.
   (A)   A person challenging the propriety of an expenditure of system development charge revenue may appeal the decision or the expenditure to the City Council by filing a written appeal petition with the City Recorder pursuant to division (D) below. An appeal of an expenditure must be filed within two years of the date of the subject expenditure.
   (B)   A person challenging the propriety of the methodology adopted by the City Council pursuant to § 31.33 may appeal the decision or the expenditure to the City Council by filing a written appeal petition with the City Recorder pursuant to division (D) below. An appeal petition challenging the adopted methodology shall be filed not later than 60 days from the date of the adoption of the methodology.
   (C)   A person challenging the calculation of a system development charge must file a written appeal petition to the calculation of the system development charge with the City Recorder within 30 days of assessment of the system development charge.
   (D)   Any person submitting an appeal petition pursuant to divisions (A) through (C) above must describe, with particularity, the basis for the appeal, and include:
      (1)   The name and address of the appellant;
      (2)   The nature of the expenditure, methodology, or calculation being appealed;
      (3)   The reason the expenditure, methodology, or calculation is allegedly incorrect; and
      (4)   What the correct determination of the appeal should be, or how the correct calculation should be derived.
   (E)   If the appeal petition is untimely or fails to meet the requirements of division (D) above, the appeal shall be dismissed by the City Council without a hearing.
   (F)   If the appeal petition is timely filed and submitted in accordance with division (D) above, the City Council shall order an investigation and direct that within 60 days of receipt of the appeal petition, a written report be filed by the City Recorder recommending appropriate action. Within 30 days of receipt of that report, the City Council shall conduct a hearing to determine whether the expenditure, methodology, or calculation was proper. The City Council shall provide notice and a copy of the report to the appellant at least 14 days prior to the hearing. The appellant shall have a reasonable opportunity to present appellant’s position at the hearing.
   (G)   The appellant shall have the burden of proof. Evidence and argument shall be limited to the grounds specified in the petition. The City Council shall issue a written decision stating the basis for its conclusion and directing appropriate action to be taken.
   (H)   The City Council shall render its decision within 15 days after the hearing date, and the decision of the City Council will be final. The decision will be in writing, but written findings shall not be made or required unless the City Council, in its discretion, elects to make findings for precedential purposes. If the City Council determines that there was an improper expenditure of system development charge funds, the City Council shall direct that a sum equal to the misspent amount be deposited within one year of the date of the decision to the account of the fund from which it was spent.
   (I)   Any legal action contesting the City Council’s decision on the appeal must be filed within 60 days of the City Council’s decision. Review of the City Council’s decision shall be by writ of review pursuant to O.R.S. 34.010 to 34.100.
(Ord. 2021-02, passed 3-22-2021)
§ 31.47  PROHIBITED CONNECTION.
   No person may connect to the water or sewer systems of the city unless the appropriate system development charge has been paid or the lien or installment payment method has been applied for and approved.
(Ord. 2021-02, passed 3-22-2021)  Penalty, see § 31.99
§ 31.99  PENALTY.
   (A)   Any person violating any provision of this chapter for which no specific penalty is prescribed shall be subject to 10.99 of this code of ordinances.
   (B)   Violation of § 31.47 constitutes a violation and is punishable by a fine not to exceed $500 per day.
(Ord. 2021-02, passed 3-22-2021)