ATTACHMENT 3
ORDINANCE
AMENDMENDING
CHAPTER 12.40
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ORDINANCE NO. ________-2026
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BARSTOW AMENDING CHAPTER 12.40 OF THE BARSTOW MUNICIPAL CODE,
CONCERNING DEVELOPMENT IMPACT FEES
WHEREAS, the City has the authority to impose development impact fees (DIFs) under the Mitigation Fee Act (Gov. Code, § 66000 et seq.) to help it fund new and / or expanded infrastructure to absorb the growth-based impacts that come with new development; WHEREAS, Chapter 12.40 of the Barstow Municipal Code sets forth the City’s local requirements and procedures for DIFs;
WHEREAS, under both state and local law, the City Council may set DIF rates by resolution at a noticed public hearing (Gov. Code, §§ 66004, 66018; Barstow Muni. Code, § 12.40.040(d));
WHEREAS, however, Chapter 12.40 also includes language specific to the City’s current schedule of DIF rates, rather than generally governing how to organize and administer the City’s DIF program, and which must be amended by ordinance rather than resolution (see, e.g., Barstow Muni. Code, §§ 12.40.040(f) [annual adjustment formula],
12.40.050(a) [specifying funds to hold DIF revenues]);
WHEREAS, this creates the potential for confusion if the City Council adopts new rates via resolution, but it does not simultaneously amend Chapter 12.40 via ordinance to edit or eliminate language designed only to apply to previous rates; WHEREAS, the two most straightforward solutions to this issue are (1) to remove the City Council’s ability to adjust DIF rates via resolution, and instead require all such adjustments to be done via an ordinance that amends the Barstow Municipal Code to ensure internal consistency, or (2) to edit out language in Chapter 12.40 that is specific to any particular rate schedule, and instead permit the City Council to set DIF rates via resolution without creating a potential conflict with the Barstow Municipal Code; WHEREAS, on balance the City Council believes the second option is in the City’s best interest, as each DIF adjustment should not require an amendment to the Barstow Municipal Code, and the other provisions in both the Mitigation Fee Act and Chapter 12.40 provide sufficient guidance and boundaries for such adjustments; and WHEREAS, while it amends Chapter 12.40 primarily for the reasons explained above, the City Council also takes this opportunity to make non-substantive updates to this law to clarify its application.
NOW, THEREFORE, the City Council of the City of Barstow does ordain as follows:
Section 1. Amendment to Section 12.40.020. Title 12, Chapter 12.40, Section
12.40.020 of the Barstow Municipal Code is hereby amended to read as follows. Additions are presented in underline while deletions are presented in strikethrough.
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Sec. 12.40.020. – Definitions.
The following words and terms as used in this chapter shall have the meaning respectively ascribed thereto:
Administrator means the city manager, or his or her designee, who shall administer the provisions of this chapter.
Applicant means the owner of real property proposed for development, or the owner's authorized agent.
Development means a proposal for the construction, alteration, addition, or change of use of any building or structure in or upon real property in the city that requires any entitlement from or by the city including, without limitation, a building permit, use permit, zoning or rezoning approval, subdivision or re-subdivision map approval, lot line adjustment, architectural permit, general plan amendment, specific plan approval, or any other entitlement or approval.
ENR means the construction cost index published in the engineering news record, or if such index is no longer published, its successor.
Impact fee or fees means the fee or fees imposed on a development pursuant to this chapter.
Impact fee schedule means the schedule of impact fee rates approved by resolution or ordinance of the city council and maintained on file in the office of the administrator.
Improvement means (i) the facilities, vehicles and equipment (as well as any land associated with such improvement) identified in the development impact fee study approved by the city council, and (ii) other similar facilities, vehicles and equipment that are approved by the city council that may be substituted for an identified improvement (or be a part of a class of identified improvements) because they will mitigate similar congestion.
Improvement subtype means the category of improvements that a particular impact fee is designed to support, such as law enforcement facilities or circulation infrastructure (i) law enforcement facilities, (ii) circulation facilities, (iii) storm drain facilities, (iv) general government facilities, or (v) community center facilities.
Program means the improvements described in the development impact fee study or approved by the city council as substitutes for such improvements.
Section 2. Amendment to Section 12.40.030. Title 12, Chapter 12.40, Section
12.40.030 of the Barstow Municipal Code is hereby amended to read as follows. Additions are presented in underline while deletions are presented in strikethrough.
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Sec. 12.40.030. – Imposition and payment of impact fee. (a) The City Council is hereby authorized to impose impact fees is hereby imposed as a condition of the issuance of any permit for any development, unless expressly exempted by this chapter. The rate of the impact fee shall be calculated pursuant to section 12.40.040 of this Code.
(b) Except as otherwise required by Government Code § 66007, or unless deferred pursuant to subsection (c) below, the impact fee shall be payable when an application is submitted for a building permit for the project. The amount of the impact fee with respect to the construction authorized by a building permit shall be calculated at the lower of the rate in effect at the time such building permit issues, or the highest rate permissible under state law. Notwithstanding the foregoing, no impact fee shall be charged with respect to any building permit issued prior to August 1, 2009 with respect to development shown on a tentative map approved by the planning commission and complete public improvement plans submitted to the city engineer prior to August 1, 2007. (c) If mutually agreed upon by the applicant and the city, payment of the impact fee may be deferred to the date of approval of the final building inspection of the development, provided the owner of the real property for which the fees are required enters into a recordable agreement with the city prior to issuance of the building permit for the development, which shall constitute a lien on the property from the date of recordation and shall be enforceable against successors in interest to the property owner. The agreement shall provide that approval of the final building inspection shall not be granted until the impact fee is paid. The agreement shall also provide that, in any action to collect the impact fee or any portion thereof, the city shall be entitled to all of its costs of enforcement and collection, including reasonable attorney’s fees. The city manager may execute such agreements on behalf of the city in a form acceptable to the city attorney. Any deferral granted pursuant to this paragraph shall be consistent with the requirements of Government Code § 66007. Impact fees to cover the cost of public facilities improvements that the city engineer or his/her designee determines are needed prior to the opening of the proposed new building(s) shall be paid at the time an application is submitted for a building permit. (d) Except to the extent a credit is granted pursuant to chapter 18.24 of this Code, a credit against the impact fee may be given for dedications of improvements constructed or provided at private expense and for the value of land dedicated to the city that is necessary or useful to an improvement. Such credit will be granted only if, prior to dedication, the city council determines that (i) the improvement is part of the program and (ii) the grant of the credit, in lieu of the fee, will not cause the city to DRAFT
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delay the implementation of elements of the program that are of higher priority, in the judgment of the city council, than the land or improvement to be dedicated. At the time the city council makes these determinations, it must also make a determination of the maximum credit that will be allowed for the dedication, which maximum credit shall not exceed the city council's reasonable estimate of the fair market value of the improvement and/or land. The credit shall be applied when the city accepts the land or improvement. If the city council has made the determinations required by this subdivision, payment of a portion of the impact fee equal to the amount of an expected credit against the impact fee may be deferred to the date of approval of the final building inspection of the development, provided the owner of the real property for which the fee is required enters into a recordable agreement with the city prior to issuance of the building permit for the development, which shall constitute a lien on the property from the date of recordation and shall be enforceable against successors in interest to the property owner. The agreement shall provide that approval of the final building inspection shall not be granted until the impact fee is paid or the credit issued. The agreement shall also provide that, in any action to collect the impact fee or any portion thereof, the city shall be entitled to all of its costs of enforcement and collection, including reasonable attorney's fees. The city manager may execute the agreement on behalf of the city in a form acceptable to the city attorney. Any deferral granted pursuant to this paragraph shall be consistent with the requirements of Government Code § 66007. The amount of any credit granted pursuant to this paragraph shall not exceed the lesser of (i) the actual documented construction costs for the dedicated improvement plus the value of any dedicated land as supported by a professional appraisal produced by an independent consultant selected by the city and paid for by the applicant or (ii) the maximum credit approved by the city council pursuant to this subsection.
Section 3. Amendment to Section 12.40.040. Title 12, Chapter 12.40, Section
12.40.040 of the Barstow Municipal Code is hereby amended to read as follows. Additions are presented in underline while deletions are presented in strikethrough.
Sec. 12.40.040. – Calculation of development impact fee. (a) The improvement subtype supported by each impact fee, and the rate of each impact fee, shall be set by resolution of the City Council. (b) If a new development adds to or replaces identifiable existing development on one or more parcels, the impact fee shall only apply to the extent the impacts from the new development exceed the impacts from the existing development.
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(c) An impact fee shall not include the costs attributable to existing deficiencies in public facilities, but may include the costs attributable to the increased demand for public facilities reasonably related to development in order to (1) refurbish existing facilities to maintain the existing level of service or (2) achieve an adopted level of service that is consistent with the general plan.
(d) Except to the extent a credit is granted pursuant to chapter 18.24 of this Code, a credit against the impact fee may be given for dedications of improvements constructed or provided at private expense and for the value of land dedicated to the city that is necessary or useful to an improvement. Such credit will be granted only if, prior to dedication, the city council determines that (i) the improvement is part of the program and (ii) the grant of the credit, in lieu of the fee, will not cause the city to delay the implementation of elements of the program that are of higher priority, in the judgment of the city council, than the land or improvement to be dedicated. At the time the city council makes these determinations, it must also make a determination of the maximum credit that will be allowed for the dedication, which maximum credit shall not exceed the city council's reasonable estimate of the fair market value of the improvement and/or land. The credit shall be applied when the city accepts the land or improvement. If the city council has made the determinations required by this subdivision, payment of a portion of the impact fee equal to the amount of an expected credit against the impact fee may be deferred to the date of approval of the final building inspection of the development, provided the owner of the real property for which the fee is required enters into a recordable agreement with the city prior to issuance of the building permit for the development, which shall constitute a lien on the property from the date of recordation and shall be enforceable against successors in interest to the property owner. The agreement shall provide that approval of the final building inspection shall not be granted until the impact fee is paid or the credit issued. The agreement shall also provide that, in any action to collect the impact fee or any portion thereof, the city shall be entitled to all of its costs of enforcement and collection, including reasonable attorney's fees. The city manager may execute the agreement on behalf of the city in a form acceptable to the city attorney. Any deferral granted pursuant to this paragraph shall be consistent with the requirements of Government Code § 66007. The amount of any credit granted pursuant to this paragraph shall not exceed the lesser of (i) the actual documented construction costs for the dedicated improvement plus the value of any dedicated land as supported by a professional appraisal produced by an independent consultant selected by the city and paid for by the applicant or (ii) the maximum credit approved by the city council pursuant to this subsection.
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(a) The impact fee imposed upon a development shall be calculated by subtracting any pre-existing impact credits for that development (calculated pursuant to subsection (c) of this section) from the sum of the base amounts (calculated pursuant to subsection (b) of this section) for all uses constituting that development. If the pre-existing impact credits for a project exceed the base amounts for that development, then the fee shall be zero.
(b) A base amount shall be calculated for each use included in a development. The base amount shall be calculated by multiplying the planned number (after the completion of the project) of dwelling units (for a residential use), guest rooms (for a commercial lodging use) or developed square feet (for any other use) on the parcels comprising the development by the then-applicable rate for that use as set forth in the impact fee schedule.
(c) The existing impact credit for development shall be the sum of the base amounts that would be imposed on a project comprised of the structures that existed on the parcels comprising the development prior to the occurrence of the new development.
(d) The rate of the fee shall be established from time to time by resolution or ordinance of the city council in the manner required by Government Code §§ 66004 and 66018 and other applicable law.
(e) The council shall review the fee annually to determine if the fee shall increase incrementally consistent with Exhibit A attached to the ordinance codified in this chapter or delay the incremental increase based on economic conditions. If no council action is taken, the fee increase will automatically follow the incremental increase consistent with Exhibit A attached to the ordinance codified in this chapter. (f) Beginning July 1, 2008, and on each July 1 thereafter, the rate of the fee shall increase without further action by the city according to the following formula:
Council-Approved Rate * Most Recent ENR ______
ENR at Council-Approval
Where the “Council-Approved Rate” is the rate shown on the most recently adopted impact fee schedule, “Most Recent ENR” is the most recently published construction cost index when the calculation is made and “ENR at Council-Approval” is the construction cost index published for the month in which the council adopted the impact fee schedule including the “council-approved rate.” The administrator shall calculate DRAFT
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the increased fee annually and give notice of that calculation in the manner required by law for the publication of ordinance of the city council.
However, the rate determined pursuant to this subsection in any year shall not exceed the rate which would exist if the council-approved rate had been increased by three percent on each July 1st following the approval of the council-approved rate by the city council.
Section 4. Amendment to Section 12.40.050(a). Title 12, Chapter 12.40, Section
12.40.050, Subdivision (a) of the Barstow Municipal Code is hereby amended to read as follows. Additions are presented in underline while deletions are presented in strikethrough.
Sec. 12.40.050. – Use of funds.
(a) The City shall maintain special funds for each improvement subtype as necessary to ensure that impact fee revenues for each improvement subtype are not comingled with each other or with other City revenues or funds. The administrator may establish or eliminate such special funds to ensure compliance with this Subdivision and with Government Code § 66006. There are hereby established seven special funds, entitled "Law Enforcement Development Impact Fund," "Circulation Development Impact Fund," "Storm Drain Development Impact Fund," "General Government Facilities Development Impact Fund," "Community Center Development Impact Fund," "Aquatic Facilities Development Impact Fund," and "Parks Development Impact Fund," into which all fee proceeds and any interest thereon shall be deposited. Fee proceeds shall be apportioned amongst the funds as set forth in the impact fee schedule, as adjusted pursuant to subsection (d) of section
12.40.040. The funds shall be maintained as required by Government Code § 66006. Revenues deposited in each fund shall be used exclusively for improvements of the improvement subtype for which the fund has been reserved.
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Section 5. Amendment to Section 12.40.060. Title 12, Chapter 12.40, Section
12.40.060 of the Barstow Municipal Code is hereby amended to read as follows. Additions are presented in underline while deletions are presented in strikethrough.
Sec. 12.40.060. – Refund of fees paid.
(a) If a building permit or other entitlement for a development expires without commencement of construction, then the applicant shall be entitled to a refund, without interest, of the impact fee paid as a condition for its issuance, except that the city shall retain an amount necessary to cover the administrative two percent of the fee to offset a portion of the DRAFT
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costs of collection and refund. The applicant shall apply in writing for such a refund within thirty calendar days of the expiration of the permit; provided, that the administrator may extend such period for good cause, not to exceed six months.
(b) The city council may additionally authorize refunds as required or permitted by Government Code § 66001(e).
Section 6. Amendment to Section 12.40.070. Title 12, Chapter 12.40, Section
12.40.070 of the Barstow Municipal Code is hereby amended to read as follows. Additions are presented in underline while deletions are presented in strikethrough.
Sec. 12.40.070. – Appeals.
(a) An applicant may either file an appeal and pay the impact fee imposed pursuant to this chapter under protest, or appeal the impact fee before the building permit or other entitlement for the development to which the fee pertains has been issued.
(b) An appeal may be filed from the following determinations of the administrator:
(1) The applicability or amount of the impact fees calculated pursuant to section 12.40.040;
(2) Calculation of a credit, disapproval of a credit, or disapproval of an exemption pursuant to section 12.40.040030 or 12.40.080; (3) Any other determination which the administrator is authorized to make under this chapter.
(c) An appeal shall be in writing and shall be accompanied with the appeal fee established by the council prior to the issuance of a building permit or other entitlement for the development to which the appeal pertains.
The written appeal shall set forth the grounds for the appeal and contain technical information and specific supporting data to the extent applicable to the determination to be made in the appeal. (d) The filing fee for appeals shall be the same as that for appeals from determinations of the zoning administrator pursuant to chapter 19.44
19.72 of this Code.
(e) The council shall hear the appeal within 60 days of the date of filing, at which hearing the administrator shall submit to the council:
(1) The written appeal and any supporting information submitted by the appellant;
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(2) The administrator’s determination and the record upon which it is based; and
(3) The administrator’s analysis of the information and materials submitted by the applicant on the appeal of impact fees paid.
Section 7. Deletion of Section 12.40.110. Title 12, Chapter 12.40, Section 12.40.110 of the Barstow Municipal Code (Fire impact fee) is hereby deleted in its entirety. This deletion is without prejudice to the City Council’s authority under Barstow Municipal Code, Section 12.40.040(a) (as amended above), to impose an impact fee to support fire facilities or any other kind of facilities by resolution.
Section 8. Existing DIF Funds. This Ordinance does not eliminate any special DIF funds that already existed when it went into effect. The administrator may continue to maintain any or all such special funds as necessary or useful to comply with Barstow Municipal Code, Section 12.40.050(a) (as amended above) and Government Code, Section 66006.
Alternatively, the administrator may eliminate any such special funds that are no longer needed to comply with those laws.
Section 9. Severability. If any provision, section, subsection, paragraph, sentence, clause, or word of this Ordinance, or the application thereof to any person or circumstance, is rendered or declared invalid or unenforceable by any court of competent jurisdiction, the remaining provisions, sections, subsections paragraphs, sentences, clauses, or words of this Ordinance, and their application to other persons or circumstances, shall not be affected thereby and shall remain in full force and effect and, to that end, the provisions of this Ordinance are severable.
Section 10. CEQA. The City Council finds that the adoption of this Ordinance does require review under the California Environmental Quality Act because it concerns a government funding mechanism that does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment, and because it can be seen with certainty that there is no possibility that this Ordinance in itself may have a significant effect on the environment. (14 CCR §§ 15061(b)(3), 15378(b)(4).)
Section 11. Effective Date. This Ordinance shall take effect thirty days after its adoption. (Gov. Code, § 36937.) The City Clerk shall cause this Ordinance to be published in accordance with law.
Section 12. Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause this Ordinance and her certification, together with proof of publication, to be entered in the Book of Ordinances of the City Council.
PASSED, APPROVED, AND ADOPTED this ___ day of ____________, 2026, by the following vote:
AYES:
NOES:
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ABSENT:
ABSTAIN:
____________________________
Timothy R. Silva, Mayor
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________ Andrew Flores, City Clerk Matthew Summers, City Attorney DRAFT