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(a) Determination of Requirements.
(1) Except for projects where the building or site permit was issued prior to July 1, 2010, the Department shall determine the applicability of Section 411.1 et seq. to any development project requiring a first construction document and, if Section 411.1 is applicable, shall impose any TIDF owed as a condition of approval for issuance of the first construction document for the development project. The project sponsor shall supply any information necessary to assist the Department in this determination. The Zoning Administrator may seek the advice and consent of the MTA regarding any interpretations that may affect implementation of this section.
(b) Department Notice to Development Fee Collection Unit at DBI of Requirements. After the Department has made its final determination regarding the application of the TIDF to a development project under Section 411.1 et seq., it shall immediately notify the Development Fee Collection Unit at DBI of any TIDF owed in addition to the other information required by Section 402(b) of this Article.
(c) Process for Revisions of Determination of Requirements. In the event that the Department or the Commission takes action affecting any development project subject to Section 411.1 et seq. and such action is subsequently modified, superseded, vacated, or reversed by the Board of Appeals, the Board of Supervisors, or by court action, the procedures of Section 402(c) of this Article shall be followed.
AMENDMENT HISTORY
Former division (a) redesignated as division (a)(1) and amended; division (a)(2) added; division (b) amended; Ord. 247-12
, Eff. 1/17/2013.
The following principles have been and shall in the future be observed in calculating the TIDF:
(a) Actual cost information provided to the National Transit Database shall be used in calculating the fee rates. Where estimates must be made, those estimates shall be based on such information as the Director of Transportation or his or her delegate considers reasonable for the purpose.
(b) The rates shall be set at an actuarially sound level to ensure that the proceeds, including such earnings as may be derived from investment of the proceeds and amortization thereof, do not exceed the capital and operating costs incurred to maintain the applicable base service standard in light of the demands created by new development subject to the fee over the estimated useful life of such new development. For purposes of Section 411.1 et seq. of this Code, and any Comprehensive Five Year Evaluation of the TIDF under Section 410, the estimated useful life of a new development is 45 years.
(Added by Ord. 108-10, File No. 091275, App. 5/25/2010; amended by Ord. 247-12
, File No. 120523, App. 12/18/2012, Eff. 1/17/2013)
AMENDMENT HISTORY
Section header amended; former division (a) deleted; designation of former division (b) deleted and division retained as undesignated introductory paragraph; former divisions (b)(1) and (b)(2) redesignated as divisions (a) and (b) and amended; Ord. 247-12
, Eff. 1/17/2013.
Money received from collection of the TIDF, including earnings from investments of the TIDF, shall be held in trust by the Treasurer of the City and County of San Francisco under Section 66006 of the Mitigation Fee Act (Cal. Gov. Code § 60000 et seq.) and shall be distributed according to the fiscal and budgetary provisions of the San Francisco Charter and the Mitigation Fee Act, subject to the following conditions and limitations. TIDF funds may be used to increase revenue service hours reasonably necessary to mitigate the impacts of new non-residential development on public transit and maintain the applicable base service standard, including, but not limited to: capital costs associated with establishing new transit routes, expanding transit routes, and increasing service on existing transit routes, including, but not limited to, procurement of related items such as rolling stock, and design and construction of bus shelters, stations, tracks, and overhead wires; operation and maintenance of rolling stock associated with new or expanded transit routes or increases in service on existing routes; capital or operating costs required to add revenue service hours to existing routes; and related overhead costs. Proceeds from the TIDF may also be used for all costs required to administer, enforce, or defend Section 411.1 et seq.
(Added by Ord. 108-10, File No. 091275, App. 5/25/2010)
(Added by Ord. 108-10, File No. 091275, App. 5/25/2010; amended by Ord. 247-12
, File No. 120523, App. 12/18/2012, Eff. 1/17/2013)
AMENDMENT HISTORY
(a) When the property or a portion thereof will be exempt from real property taxation or possessory interest taxation under California Constitution, Article XIII, Section 4, as implemented by California Revenue and Taxation Code Section 214, then the sponsor shall not be required to pay the TIDF attributed to the new development in the exempt property or portion thereof, so long as the property or portion thereof continues to enjoy the aforementioned exemption from real property taxation. This exemption from the TIDF shall not apply to the extent that the non-profit organization is engaging in activities falling under the Retail/Entertainment or Visitor Services economic activity categories in the new development that would otherwise be subject to the TIDF.
(b) The TIDF shall be calculated for exempt structures in the same manner and at the same time as for all other structures. Prior to issuance of the first construction document for the development project, the sponsor may apply to the Department for an exemption under the standards set forth in subsection (a) above. If the Department determines that the sponsor is entitled to an exemption under this Section, it shall cause to be recorded a notice advising that the TIDF has been calculated and imposed upon the structure and that the structure or a portion thereof has been exempted from payment of the fee but that if the property or portion thereof loses its exempt status during the 10-year period commencing with the date of the imposition of the TIDF, then the building owner shall be subject to the requirement to pay the fee.
(c) If within 10 years from the date of the issuance of the Certificate of Final Completion and Occupancy, the exempt property or portion thereof loses its exempt status, then the sponsor shall, within 90 days thereafter, be obligated to pay the TIDF, reduced by an amount reflecting the duration of the charitable exempt status in relation to the useful life estimate used in determining the TIDF for that structure. The amount remaining to be paid shall be determined by recalculating the fee using a useful life equal to the useful life used in the initial calculation minus the number of years during which the exempt status has been in effect. After the TIDF has been paid, the Department shall record a release of the notice recorded under subsection (b) above.
(d) If a property owner fails to pay a fee within the 90-day period, a notice for request of payment shall be served by the Development Fee Collection Unit at DBI under Section 107A.13 of the San Francisco Building Code. Thereafter, upon nonpayment, a lien proceeding shall be instituted under Section 408 of this Article and Section 107A.13.15 of the San Francisco Building Code.
AMENDMENT HISTORY
(a) Ordinance No. 224-81 originally enacted the TIDF in 1981, codified in Chapter 38 of the Administrative Code. Chapter 38 was amended several times between 1981 and 2004. In 2004, Ordinance No. 199-04 repealed and replaced the existing Chapter 38, which was subsequently amended, and then repealed in 2010 by Ordinance 108-10, which relocated the TIDF from the Administrative Code to this Code. In determining the applicable TIDF due for a project under this Section 411.9, MTA shall calculate the TIDF based upon the law in effect on the date of issuance of the first building or site permit for the project. Subsequent references to "former Administrative Code Chapter 38" in this section 411.9 shall be intended to refer to that Chapter as it read on the date of issuance of the first building or site permit for the project in question.
(b) MTA shall be responsible for determining the TIDF to the City for new development for which the City issued a building or site permit prior to July 1, 2010. In such cases, MTA shall determine the TIDF as follows:
(1) Where MTA has determined that such new development may be subject to the TIDF, the Director of Transportation or his or her designee may cause the County Recorder to record a notice that the new development is potentially subject to the TIDF under this Article. Such notice shall identify the development project and state that MTA is evaluating whether the project is subject to the TIDF as well as the amount of any potential liability. The notice shall also state that if MTA subsequently determines that a TIDF is due on the project and the amount due is not paid, MTA may impose a lien on the property in accordance with this Article. Where the Director of Transportation or his or her designee has caused this notice to be recorded and subsequently concludes that the project is not subject to the TIDF, the Director of Transportation or his or her designee shall promptly record a notice identifying the project and stating that the agency has determined that the project is not subject to the TIDF.
(2) MTA shall send a Preliminary TIDF Notice to the project sponsor informing the project sponsor of MTA's proposed determination that TIDF is due for the project and requesting that the sponsor file with MTA, on such form as MTA may develop, a report indicating the number of gross square feet of use of the new development and any other information that MTA may require to determine the project sponsor's obligation to pay the TIDF.
(3) The Preliminary TIDF Notice shall:
(A) identify the development project;
(B) state the legal authority for imposing the TIDF;
(C) specify the preliminary amount of the fee that MTA calculates the sponsor owes based on the information available to the agency, which amount MTA shall calculate on the basis of the number of gross square feet of new development, multiplied by the square foot rate in effect at the time of building or site permit issuance for each of the applicable economic categories within the new development under former Administrative Code Chapter 38, and taking into account any exceptions or credits provided therein; and
(D) list the name and contact information for the staff person at MTA responsible for calculating the TIDF.
(4) When calculating the TIDF for a development project in which there is a change of use such that the rate charged for the new economic activity category is higher than the rate charged for the existing economic activity category, the TIDF per square foot rate for the change of use shall be the difference between the rate charged for the new use and the existing use.
(5) The project sponsor shall submit the report of gross square feet of use to MTA not later than 15 calendar days from the date of mailing of the Preliminary TIDF Notice.
(6) After receiving the report of gross square feet of use, or if no response is received from the project sponsor within 15 calendar days from the date of mailing of the Preliminary TIDF Notice, MTA shall prepare a Final TIDF Determination for the project by determining the fee under Subsection 411.9(b)(3)(C), taking into account any additional information received from the project sponsor since the Preliminary TIDF Notice. The Final TIDF Determination shall also contain the information required by Subsection 411.9(b)(3)(A), (B) and (D) and inform the project sponsor of the sponsor's right to seek review of the determination in accordance with either Section 411.9(c) or (d).
(7) MTA shall cause the Final TIDF Determination to be addressed to the project sponsor and deposited in the U.S. Mail on the date of issuance of that Report. In addition, MTA shall transmit the Final TIDF Determination to DBI in the case of projects subject to Section 411.9(c).
(c) Where the City issued a building or site permit prior to July 1, 2010 and the City has not issued the First Certificate of Occupancy for that development, DBI shall be responsible for collection of the fee due consistent with the otherwise applicable requirements set forth in this Article and the San Francisco Building Code. For purposes of this paragraph, the Final TIDF Determination shall be treated as a Project Development Fee Report.
(d) Notwithstanding any provisions to the contrary in the San Francisco Building Code, where the TIDF may be owed to the City for new development for which the City issued a building or site permit prior to July 1, 2010, and the City issued the First Certificate of Occupancy for the new development on or before the effective date of this Section 411.9, MTA shall be responsible for the collection of the fee due in accordance with the procedures set forth in this Subsection 411.9(d).
(1) Recording of Fee. Once MTA has prepared the Final TIDF Determination, the Director of Transportation or his or her designee may cause the County Recorder to record a notice that the development is subject to the TIDF. The County Recorder shall serve or mail a copy of such notice to the project sponsor and the owners of the real property described in the notice. The notice shall include (i) a description of the real property subject to the fee; (ii) a statement that the development is subject to the fee; and (iii) a statement that the MTA has determined the amount of the fee to which the project is subject under this Section and related provisions of this Article. Where the Director of Transportation or his or her designee has caused this notice to be recorded and the Final TIDF Determination is either paid or subsequently revised or reversed following review under paragraphs 411.9
(d)(2) or (3) of this Section, the Director of Transportation or his or her designee shall promptly cause the County Recorder to record a notice stating that either (i) the agency has revised the amount of TIDF due; (ii) the agency has determined that the project is not subject to the TIDF; or (iii) that the fee has been paid. The County Recorder shall also serve or mail a copy of such notice to the project sponsor and the owners of the real property described in the notice.
(2) Dispute Resolution. If the project sponsor disputes the accuracy of the Final TIDF Determination, including the mathematical calculation of the number of gross square feet subject to the fee, the project sponsor may request a review of the Final TIDF Determination by the Director of Transportation. The project sponsor shall submit any request for review not later than 15 calendar days after the date of issuance of the Final TIDF Determination. The Director of Transportation shall attempt to resolve the dispute in consultation with the project sponsor, and may request additional information from either MTA staff or the project sponsor. The Director of Transportation shall issue his or her decision in writing to the project sponsor not later than 30 calendar days from receipt of the review request, unless the project sponsor and the Director of Transportation mutually agree to extend this period. The Director of Transportation shall cause the decision to be placed in the U.S. Mail on the date of issuance.
(3) Appeal to MTA Board of Directors.
(A) The project sponsor may appeal the decision of the Director of Transportation on the Final TIDF Determination to the MTA Board of Directors by submitting a written notice of appeal, accompanied by payment of the full amount of the contested fee, to the Secretary of the MTA Board not later than 15 calendar days after the date of issuance of the Director of Transportation's decision. Any portion of the fee that is not upheld upon appeal to the MTA Board of Directors shall be refunded as set forth in subparagraph (D) below.
(B) In order to appeal to the MTA Board of Directors under this Section, a project sponsor appellant must first have attempted to resolve the dispute or question by following the procedure in Section 411.9
(d)(2). The MTA Board Secretary may not accept an appeal for filing under this subsection unless the appellant submits written evidence of this prior attempt.
(C) In hearing any appeal of the Final TIDF Determination, the MTA Board's jurisdiction is strictly limited to determining whether the mathematical calculation of the TIDF is accurate and resolving any technical disputes over the use, occupancy, floor area, unit count and mix, or other objective criteria upon which the applicable provisions of law dictated the calculation.
(D) The MTA Board shall schedule the appeal for hearing within 90 calendar days of the date of submission of the appeal, and shall issue a decision within 60 days of hearing the appeal. Within five business days of the MTA Board's decision, the MTA Board Secretary shall cause the decision of the MTA Board to be placed in the U.S. Mail addressed to the appellant. The decision shall be accompanied by any refund of the TIDF paid due to appellant following the MTA Board's decision. Any amount refunded shall bear interest at the rate of 2/3 of 1 percent per month or fraction thereof, or the average rate of interest computed over the preceding 6-month period obtained by the San Francisco Treasurer on deposits of public funds at the time the refund is made, whichever rate is lower, and shall be computed from the date of payment of the fee to the date of refund plus interest.
(4) Payment and Collection.
(A) Payment of TIDF. The TIDF shall be due and payable to the MTA not later than 30 days after the date of mailing of the Final TIDF Determination unless the project sponsor has timely requested review by the Director of Transportation under Section 411.9
(d)(2) or initiated an appeal to the MTA Board of Directors under Section 411.9
(d)(3), in which case any TIDF shall be due and payable to MTA on the earlier of 30 days after the date of the Director of Transportation's decision under Section 411.9
(d)(2) or at the time of submission of the written notice of appeal to the MTA Board of Directors under Section 411.9
(d)(3)(A) above.
(B) Payment of the TIDF imposed under this section is delinquent if (i) in the case of a fee not payable in installments, the fee is not paid by the dates set forth in the preceding paragraph; or (ii) in the case of a fee for Integrated PDR subject to Section 428A of this Code, any installment of the fee is not paid within 30 days of the date fixed for payment. In such case, MTA shall mail an additional request for payment to the project sponsor stating that:
(i) If the amount due is not paid within 30 days of the date of mailing of the additional request and notice, interest at the rate of one and one-half percent per month or portion thereof shall be assessed upon the fee due and shall be computed from the date of delinquency until the date of payment; and
(ii) If the account is not current within 30 days of the date of mailing of the additional request and notice, MTA shall institute lien proceedings in accordance with Section 408(b).
[TRANSPORTATION SUSTAINABILITY FEE]
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