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. Such infrastructure, for which is credit is allowed, does not include interior streets, roads, rights-of-way, or other public ways which serve the development. 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 Public Works Department. 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. Provided, however, the credit will not include amounts for land or improvements required by the town to be dedicated to the town for right-of-way pursuant to the town’s Transportation Plan or any planning or zoning approval.
(A) Adjustment of credit. 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 Director of the Department of Public Works, or the Director’s designee, may agree that the amount of the credit may not be subsequently increased or decreased.
(B) Voluntary waiver of credit. 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 Department of Public Work.
(C) Partial credit. 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 from the owner as otherwise provided. If the amount of the credit exceeds the impact fee provided for by this subchapter, no fee will be due to the town and no refund will be due to the fee payer.
(D) Disputed credit amount. 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 Department of Public Works. Not later than 30 days after receiving a copy of the petition, the Department of Public Works 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 Department of Public Works' 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.
(E) Appeal of Board 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 Boone County. This appeal shall be determined by a trial de nova.
(F) Allocation of credit to successors in interest. 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.
(Ord. 2023-23, passed 11-6-2023)