(A) Limitation on imposition of impact fee. This section shall expire and become void five years after its effective date as required by IC 36-7-4-1340, however, the town may adopt a replacement impact fee ordinance consistent with IC 36-7-4-1300 et seq.
(B) Establishment of impact zone.
(1) There is hereby established one park and recreational infrastructure impact zone ("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 any boundaries for which the town exercises planning and zoning jurisdiction. In this regard, the Town Council specifically finds: there is a functional relationship between the components of the park and recreational infrastructure type in the impact zone; the park and recreational infrastructure type provides a reasonably uniform benefit to all citizens throughout the impact zone; that all areas within the impact zone are contiguous as required by IC 36-7-4-1316. Except as provided herein, this section shall apply uniformly to single-family detached, duplex/condo and townhouse, and multi-family apartment residential developments within the impact zone for which the town may require an Improvement Location Permit, and which creates a need for new and additional park and recreational infrastructure.
(2) This section shall not apply to:
(a) Development meeting the requirements set forth in IC 36-7-4-1322(g);
(b) Improvements which do not require an Improvement Location Permit;
(c) 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;
(d) 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 destructions thereof;
(e) Non-residential development; and
(f) "Qualified property" as that term is defined in IC 36-1-8-18, except that, upon request of the owner of qualified property, an impact fee may be imposed on the qualified property.
(C) Zone Improvement Plan. As a precondition of the adoption of this section, the town engaged Baker Tilly to prepare a comprehensive and detailed park and recreational infrastructure impact analysis, referred to as a "special purpose report" by Baker Tilly . The Town Council hereby adopts the Special Purpose Report prepared by Baker Tilly dated February 1, 2022, as its Zone Improvement Plan. Additionally the Town Council hereby adopts specifically the Zone Improvement Plan as part of the Comprehensive Plan for the Town of Pendleton, Indiana, pursuant to IC 36-7-4-500 et seq.
(D) Establishment of Park and Recreation Infrastructure Impact Fee Schedule.
(1) Based on the Zone Improvement Plan, the Town Council determines that the park and recreational infrastructure impact fee for each residential dwelling unit is as follows:
Detached Single-family home: $3,854
Attached Single-family home: $3,854
Multi-Family home: $2,852
(2) The Town Council hereby makes all of the data collected, the calculations made and the conclusions reached by Baker Tilly in the process of developing and drafting the Zone Improvement Plan a part of the official record considered by the Town Council in enacting this section, and specifically instructs the employees of the town to make such data and other information available to the public for review during regular business hours.
(E) Credit in lieu of payment; exemptions.
(1) Pursuant to IC 36-7-4-1335, any person obligated to pay an impact fee pursuant to the terms of this section may have the option of constructing, providing, and dedicating park and recreational infrastructure owned and operated by a neighborhood association for the public benefit, all as described and defined in the Zone Improvement Plan and in accordance with the specifications for such park and recreational infrastructure to be improved, instead of paying all or part of any impact fee to the town. The fee payer, or other person or entity constructing and providing the infrastructure or improvement, shall be given credit for the actual costs of constructing and providing such park and recreational infrastructure for the town, provided that the park and recreational infrastructure meets the requirements of IC 36-7-4-1335. A request for credit shall be presented prior to the issuance of the Improvement Location Permit. In the event the actual cost of such infrastructure does not equal the amount of the impact fee pursuant to the calculation provided for in division (D) of this section, the remaining balance shall be due in accordance with the provisions stated hereafter.
(2) Credits against impact fees otherwise due shall be allowed pursuant to this section for all park and recreational infrastructure improvements constructed or provided in accordance with IC 36-7-4-1313 and IC 36-7-4-1335. In addition, a fee payer or other person or entity responsible for constructing the infrastructure or improvements shall be allowed to designate in writing a reasonable and administratively feasible 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.
(3) Any person or entity otherwise obligated to pay the impact fee established by this section whose property was totally or partially destroyed by fire, storm, or other casualty beyond his or her control, shall be exempt from said impact fee if such person or entity 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 impact fee shall be calculated based only on the increased burden created by the structure.
(4) The person providing the infrastructure or improvement may waive the person's right to a credit under this section.
(F) Impact Fee upon issuance of Improvement Location Permit.
(1) The impact fee imposed pursuant to the terms of this section shall be due and payable upon the issuance of an Improvement Location Permit by the town. It is understood that the Improvement Location Permit is synonymous with the term "structural building permit" as that term is used in IC 36-7-4-1323, in that the issuance of an Improvement Location Permit authorizes the applicant to commence construction activities, structural or otherwise.
(2) The entire impact fee which is calculated pursuant to the terms of this section shall be due upon the issuance of an Improvement Location Permit unless the aggregate amount of the impact fee 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 IC 36-7-4-1324(a) through (d). The Pendleton Impact Fee Review Board shall establish specific rules consistent with IC 36-7-4-1324(a) through (d) for installment payments. The interest rate on any installment plan shall not exceed the pre-judgment rate as established by Indiana law, as amended, and shall only accrue on the outstanding portion of the impact fee beginning on the date the Improvement Location Permit is issued.
(3) If all or part of an installment 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 amount equal to 10% of the installment amount that is overdue, and interest shall be charged on the penalty amount.
(4) If a fee payer requests, the amount of the impact fee shall be assessed upon the voluntary submission of a development plan or upon the issuance of the Improvement Location Permit, whichever is earlier. The town shall make the assessment within 30 days of the date of such voluntary request or upon the issuance of the Improvement Location Permit with or without the request. For purposes of this section, "assessment" means the act of calculating the amount of the impact fee which shall be due.
(G) Lien rights established. Pursuant to IC 36-7-4-1325, on the date of issuance of an Improvement Location Permit, the town acquires a lien against the real estate on which the impact fee is assessed. 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 an impact fee, and such instrument shall constitute actual notice in addition to the constructive notice provided for by the recording of this section.
(H) Form of receipt. The Pendleton Clerk-Treasurer shall issue a receipt for any and all impact fees collected and the form of such receipt shall be as follows:
Received of (fee payer) , this day of , 20 the sum of $ in (full)(partial) satisfaction of Park and Recreation Impact Fees due pursuant to Pendleton Town Council Ordinance No. relating to improvements to be constructed on the real estate described on Exhibit A, attached hereto, made part hereof, and subject to the collection remedies and lien rights in favor of the Town of Pendleton in the event or partial payment with payments remaining due pursuant to IC 36-7-4-1325. The remaining balance due (if any) is in the following amount: $ . This impact fee is dedicated to the creation of the following infrastructure element in accordance with the Zone Improvement Plan: .
, Clerk-Treasurer
Town of Pendleton, Indiana
(I) Appeals.
(1) Any fee payer who is aggrieved by the calculation of the impact fee, by the rejection of an application for a refund of an impact fee, by the approval of only a partial refund of an impact fee, or by a determination of the amount of a credit, may appeal from such calculation, rejection, partial approval, or determination to the Pendleton Impact Fee Review Board, and the Pendleton Impact Fee 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 assumed in determining the amount of the impact fee is incorrect; or
(b) The amount of the impact fee is greater than the amount allowed under IC 36-7-4-1320, 36-7-4-1321 and 36-7-4-1322.
(2) Upon conclusion of the hearing, the Pendleton Impact Fee Review Board shall make a determination based upon the facts presented, and may reverse, affirm, modify or make such adjustments in the impact 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, credits or refunds.
(3) The Pendleton Impact Fee Review Board shall provide a copy of its decision to the town and the fee payer involved in the appeal within five days after making its decision, and shall make written findings of fact to support its decision.
(4) An appeal under this section must be filed no later than 30 days after the issuance of the Improvement Location Permit, or not later than 60 days after the rejection or partial approval of an application for a refund of an impact fee, as applicable. The appeal shall be initiated with the filing of a Petition for Review with the Pendleton 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 impact fee is eliminated, reduced or adjusted by the Pendleton 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 fees, reductions, or credits were arbitrary or capricious.
(5) The Petition for Review shall be in a form calculated to inform the Pendleton Impact Fee Review Board of the nature of the complaint, the parties to the action and the relief requested. In addition, the petition shall describe the new development on which the impact fee has been assessed, all facts related to the assessment of the impact fee and the reasons the petitioner believes that the amount of the impact fee assessed is erroneous or is greater than the amount allowed by the fee limitation set forth in the enabling statute.
(6) The town shall not deny the issuance of an Improvement Location Permit on the basis that the impact fee has not been paid, or condition issuance of the permit on the payment of the impact fee; however, if the impact fee is $1,000 or less, the town may require the fee payer to pay the impact fee or initiate an appeal under this section before the Improvement Location Permit is issued.
(J) Establishment of Pendleton Impact Fee Review Board.
(1) The Town Council hereby establishes an Impact Fee Review Board ("Board"), which shall consist of three citizen members appointed by the President of the Pendleton Town Council and who shall qualify as follows:
(a) One member shall be 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) No Board member shall be a member of the Pendleton Advisory Plan Commission.
(a) The term of office of the members of the Board shall commence from the date of their appointment and expire five years from the date of appointment.
(b) At the expiration of the respective terms of each of the Board members originally appointed, their respective successors shall be appointed in the same manner as the original appointee, and each such succeeding member shall serve for a term of five years. Each member shall continue to serve until his or her successor is appointed and qualified.
(c) In the event any person appointed as a Board member shall fail to qualify as provided within ten days after the mailing to him or her of notice of his or her appointment, or if any member after qualifying shall die, resign, vacate office, or in the event a member is unable to hear a petition due to a conflict of interest, the Pendleton Town Council President shall fill such vacancy with a new or temporary (in the event of a conflict of interest) member meeting the qualifications of the member being replaced. A new member shall serve out the remainder of the vacated term, while a temporary member shall serve for the period necessary to dispose of the petition giving rise to the conflict.
(d) The Board shall be governed by IC 36-7-4-1338(c) and all other applicable provisions of Indiana's Impact Fee Statute.
(K) Establishment of Park and Recreation Impact Fee Fund.
(1) The Town Council hereby establishes the Park and Recreation Impact Fee Fund ("Fund") for the town. This 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. In the event, and only in the event, 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 Pendleton Department of Finance and Records shall maintain records of the status of the Fund, or any account established therein, and shall make an annual report of the Fund to the Pendleton Plan Commission and to the Pendleton Town Council, which report shall be available to the public, in general, and fee payers, upon request.
(2) Pursuant to IC 36-7-4-1332(e), the Pendleton Clerk-Treasurer is designated as the town official responsible for accepting, rejecting and paying on refund requests. In order to facilitate refunds when they may be due, the Pendleton Clerk-Treasurer is directed to identify the purpose of any impact fee paid in order that a refund, if any, may be paid from the Fund or account into which the impact fee was originally deposited.
(L) Use of Impact Fees collected pursuant to this section. Any and all fees collected pursuant to the provisions of this section may be utilized for the following purposes only 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 IC 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 necessary to serve the new development within the corporate limits of the town and that is identified in the Plan;
(2) An amount not to exceed 5% of the annual collections of the impact fee to be utilized for expenses incurred by the town for the consulting services used to establish this section;
(3) To pay any refund amounts due pursuant to the terms of this section;
(4) To pay the debt service cost on any obligation issued to provide new park and recreational infrastructure described in division (1) above.
(M) House Enrolled Act 1467. The Town Council specifically acknowledges the existence of House Enrolled Act 1467 ("Act") adopted by the General Assembly of the State of Indiana which regulates the imposition of impact fee ordinances by municipal corporations within the State of Indiana. It is the intent of the town to comply with the Act, and this section shall be construed in all respects to be consistent with the Act. The substantive and procedural requirements of IC 36-7-4-1300 et seq. shall control in the event of conflicts between this section and the Act, which conflicts are unintended by the Town Council.
(N) Amendment and review. The impact 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 Town Council may, not less than once each year, 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 Fee Zone and the Zone Improvement Plan. The Town Council shall consider and adopt such amendments as are necessary to cause substantive compliance with all constitutional and statutory requirements. To the extent required by the facts and circumstances, this process shall include all steps necessary to update the Zone Improvement Plan and the Comprehensive Plan.
(O) Effective date. This section shall be in full force and effect six months after its adoption by the Town Council in accordance with IC 36-7-4-1340.
(Ord. 22-14, passed 4-13-22)