ORDINANCE NO. XX-2023
AN ORDINANCE OF THE CITY OF FREMONT AMENDING
TITLE 18 (PLANNING AND ZONING) CHAPTER 18.290 OF THE
FREMONT MUNICIPAL CODE TO ALLOW MARKET RATE
RESIDENTIAL DEVELOPMENT PROJECTS TO DEFER
PAYMENT OF FEES FOR UP TO 18 MONTHS AND MAKING
FINDINGS OF CEQA EXEMPTION
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FREMONT DOES ORDAIN AS FOLLOWS:
SECTION 1. FMC $18.290.050 AMENDED
Fremont Municipal Code Section 18.290.050 is amended to read as follows:
Sec. 18.290.050 Definitions.
As used in this chapter, all words, phrases, and terms shall be interpreted in accordance with the definitions set forth in the Mitigation Fee Act, unless otherwise defined herein. "Affordable housing" means any residential unit restricted for persons at or below 120 percent of the area median income.
"Applicant" means any person, or other legal entity, which applies to the city for approval of a development project.
"Change of use" means any proposed use of an existing structure (or a previously existing structure) on a parcel which: (a) requires a building permit or other permit or city approval (such as a conditional use permit or a zoning administrator permit), and (b) the proposed use is included in a different property use category (as defined in implementing resolutions) than the last legal use of the existing structure, and (c) the proposed use results in impacts greater than the last legal use of the existing structure.
"Development project" means any project undertaken for the purpose of development, as defined in the Mitigation Fee Act, and shall specifically include any building permit, or any other permit or city approval required for a change of use. "Development project" shall specifically include any change of use or remodel.
"Director" means the director of the community development department of the city of Fremont, or any person designated by the city manager or director to perform the functions of the "director" specified in this chapter.
"Fee" means, for the purpose of this chapter, a development impact fee imposed by the city in accordance with this chapter.
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"Fee fund" means each of the separate and distinct funds into which fees for each public facility category are deposited.
"Impact fee ordinance" means this chapter.
"Implementing resolution" means a resolution of the city council of the city of Fremont, including any technical report incorporated by reference, in which the findings specified in Section 18.290.040 are made for each public facility category. "Inflation index" means a recognized standard index (such as the Consumer Price Index), as determined by the director to be a reasonable method of calculating the impact of inflation upon cost estimates set forth in implementing resolutions.
"Market rate housing" means any residential unit with no affordability restrictions (excluding the manager's unit in a housing project with only affordable housing). "Mitigation Fee Act" means Cal. Gov't Code § 66000 et seg. "Permit" means the city building permit required for a development project, or, if the development project consists of a change of use for which no building permit is required, any other permit or city approval required for the change of use. "Public facility" means any public improvements, public services, or community amenities, as defined by the Mitigation Fee Act, including, but not limited to: traffic improvements, park land dedication, park facility improvements, capital facilities (such as public buildings), fire facilities, and any similar public improvement for which the city has adopted an implementing resolution pursuant to this chapter.
"Public facility category" means a separate and distinct set of public facilities as described in Section 18.290.030(b).
"Quimby Act" means Cal. Gov't Code § 66477.
"Remodel" means any proposed improvement or reconstruction of an existing structure (or a previously existing structure) on a parcel which: (a) requires a building permit or other permit or city approval (such as a conditional use permit or a zoning administrator permit), and (b) results in impacts greater than the last legal use of the existing structure. "Specified public facility" means those public facilities described in each implementing resolution, the total program costs of which are used as the basis for the calculation of a fee, as described in Section 18.290.030.
"Vested development rights" means an applicant's right to proceed with development of a development project in substantial compliance with the local ordinances, policies, and standards in effect at the time that the rights vest, as the term is defined in the vesting tentative Ordinance XX-2023 Page 2 of 9
map statutes (Cal. Gov't Code §S 66498.1 through 66498.9), development agreement statutes (Cal. Gov't Code §§ 65864 through 65869.5), and state law. (Ord. 2463 § 1, 6-4-02; Ord. 13- 2009 § 2, 7-7-09; amended during 2012 reformat; Ord. 04-2016 § 45, 3-1-16; Ord. 06-2019 § 2, 10-1-19. 1990 Code § 8-9104.)
SECTION 2. FMC $18.290.070 AMENDED
Fremont Municipal Code Section 18.290.070 is amended to read as follows:
Sec.18.290.070 Timing of payment.
(a) At-Building Permit Issuance. Except as otherwise provided in this section, the fees for each unit of development within a development project shall be paid in full prior to the issuance of the building permit required for that unit of development. -All market rate housing development projects consisting of two or more residential units must pay the fees for each unit of development in full at the issuance of the building permit for that unit of development. (b) After Building Permit Issuance. Upon application by an applicant, and approval by the director or director's designee, the fees for a development project may be paid as follows:
(1) For market rate and affordable housing projectsa development project consisting of only one unit, before:
(A) Final inspection; or
(B) Issuance of a certificate of occupancy; or:
(C) the expiration of 18 months from the date of permit issuance, whichever occurs first.
2) For affordable housing projectsa development project consisting of more than one unit, at the discretion of the director or director's designee:
(A) On a pro rata basis for each affordable housing unit within the development before:
(i) The particular unit receives its final inspection, or (ii) The particular unit is issued a certificate of occupancy; or (iii) The expiration of 18 months from the date of permit issuance for the particular unit, whichever occurs first; or
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(B) On a pro rata basis before each specified percentage of the residential units within the development receive:
(i) Their final inspections, or
(ii) Their certificates of occupancy; or
(iii) The expiration of 18 months from the date of permit issuance for the particular unit, whichever occurs first; or
(C) In its entirety on a date before the first residential-unit within the development receives:
(i) Its final inspection, or
(ii) Its certificate of occupancy:; or
(iii) The expiration of 18 months from the date of permit issuance for the first unit within the development, whichever occurs first; or (D) If the fee is to be paid after permit issuance pursuant to this subsection, the applicant shall, as a condition of permit issuance, enter into a written agreement with the city as provided in subsection (c) of this section. (E) For development projects that include affordable housing units meeting the criteria set forth in Cal. Gov't Code Section 66007(b)(2)(A), if application of this subsection (b)(2)(D) is specifically requested by the applicant, before:
(i) Final inspection: or
(ii) Issuance of the certificate of occupancy, whichever comes first. (3) For a nonresidential development project consisting of only one building, before:
(A) Final inspection; or
(B) Issuance of a certificate of occupancy; or
(C) The expiration of 18 months from the date of permit issuance, whichever occurs first.
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(4) For a nonresidential development project consisting of more than one building, at the discretion of the director or director's designee:
(A) On a pro rata basis for each building within the development before:
(i) The particular building receives its final inspection, (ii) The particular building is issued a certificate of occupancy, ot (iii) The expiration of 18 months from the date of permit issuance for the particular building, whichever occurs first; or
(B) On a pro rata basis before each specified percentage of the nonresidential buildings within the development receive:
(i) Their final inspections,
(ii) Their certificates of occupancy, of
(iii) On a date before the expiration of 18 months from the date of permit issuance for the specified percentage of buildings, whichever occurs first; ot (C) In its entirety on a date before the first nonresidential building within the development receives:
(i) Its final inspection,
(ii) Its certificate of occupancy, of
(iii) On a date before the expiration of 18 months from the date of permit issuance for the first building, whichever occurs first. (D) If the fee is to be paid after permit issuance pursuant to this subsection, the applicant shall, as a condition of permit issuance, enter into a written agreement with the city as provided in subsection (c) of this section. (c) Written Agreement. Any applicant, other than an applicant who pays the fees in whole pursuant to subsection (a) of this section, shall, prior to permit issuance, enter into a written agreement with the city to be recorded in the office of the Alameda County recorder. (1) Contents of Agreement. The agreement shall be signed by the property owner, be in a form approved by the city attorney, and contain all of the following:
(A) A legal description of the property;
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(B) A provision that the agreement runs with the land, constitutes a lien on the property for the payment of the fees from the date of recordation and is enforceable against successors in interest;
(C) A provision that the fees must be paid prior to final inspection, issuance of a certificate of occupancy, or within 18 months from permit issuance, whichever is first. Developments paying fees pursuant to subsection (b)(2)(D) of this section shall contain a provision that the fees must be paid prior to final inspection or issuance of certificate of occupancy, whichever occurs first. Neither approval of a final building inspection nor a certificate of occupancy shall be granted, and no occupancy shall be permitted, until the fees are paid. For developments consisting of more than one affordable housing unit or nonresidential building, the agreement shall include additional details regarding payment pursuant to subsection (b) of this section; (D) A statement of the amount of the fee due as calculated pursuant to Section 18.290.080(a);
(E) A provision that, in any action to collect the fee or any portion thereof, the city shall be entitled to all of its costs of enforcement and collection, including reasonable attorneys' fees; and
(E) A requirement that the property owner notify the city of the opening of any escrow for the sale of the property and that the property owner provide escrow instructions that the fees be paid to the city from the sale proceeds in escrow before disbursing proceeds to the seller.
(2) Release of Obligation. When the obligation is paid in full, the city shall record a release of the obligation.
(3) Implementation. The director or designee shall develop an application form for applicants to request payment of fees after permit issuance pursuant to subsection (b) of this section and shall establish departmental guidelines for approval or denial of such applications. The director or designee is authorized to execute the agreement and the release of obligation under this subsection (c).
(4) Compliance. No city official or agency may issue a permit with respect to a development project unless either the fees required by this chapter have been paid as required by subsection (a) of this section or an agreement meeting the criteria set forth in this subsection (c) has been entered into and recorded in connection with the development project. No city official or agency may certify final inspection or issue a certificate of occupancy for a unit of development, or otherwise allow occupancy of a unit of development, until the fees required by this chapter with respect to such unit are paid in accordance with this section. (Ord. 13-2009 § 3, 7-7-09; Ord. 06-2019 § 3, 10-1-19. 1990 Code § 8-9201.)
SECTION 3. FMC $18.290.110 AMENDED
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Fremont Municipal Code Section 18.290.110 is amended to read as follows:
Sec. 18.290.110 Exemptions, exclusions and exceptions.
(a) Nonresidential development projects are exempt from impact fees for park land dedication fees and park facility fees.
(b) Residential development projects, including accessory dwelling units, are exempt from impact fees for any remodel or addition, as long as they do not result in a change of use. (c) Market rate housing development projects consisting of two or more units are excluded from utilizing the provisions of Section 18.290.070(b). (dc) A reconstruction of a razed structure shall receive a fee credit only if the applicant submits documentation to the satisfaction of the director establishing that the razed structure was in existence in accordance with the timing requirements of this subsection (d). If a development project receives a credit pursuant to this subsection (d), the amount of the fee to be paid shall be:
(i) the amount of the fee required pursuant to Section 18.290.080(a) for the entire new structure, (ii) minus the amount of the fee which would have been required pursuant to Section 18.290.080(a) for the last legal use of the razed structure. (1) In order to be entitled to a credit for a fire impact fee, the razed structure is required to have been in existence on or after May 16, 1989.
(2) In order to be entitled to a credit for a traffic impact fee, or a capital facility fee, or a parks facility fee, the razed structure is required to have been in existence on or after June 11, 1991.
(3) In order to be entitled to a credit for a park dedication in lieu fee, the razed structure is required to have been in existence on or after April 18, 1972. (ed) An applicant may request a refund of a fee previously paid in accordance with this chapter only if the applicant provides written documentation to the satisfaction of the director that:
(1) The building permit (including any permit or city approval on which the fee was imposed) is canceled or voided; and
(2) Work has not progressed on the building permit which would allow commencement of a new use or change of use; and
(3) The city has not already committed the fees to the construction of public facilities.
Any refund made pursuant to this subsection may, in the discretion of the director, include a deduction to cover the city's administrative costs of processing the refund. (fe) A development project shall be exempt from the requirements of this impact fee ordinance if the applicant provides documentation, to the satisfaction of the director, of federal, state, or Ordinance XX-2023 Page 7 of 9
local law (including a duly adopted resolution of the city council) which establishes entitlement to the exemption. (Ord. 2463 § 1, 6-4-02; Ord. 05-2018 § 30, 3-20-18; Ord. 06-2019 § 4, 10-1-
19. 1990 Code § 8-9205.)
SECTION 5. CEQA
The City Council finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3), that this ordinance is exempt from the requirements of the California Environmental Quality Act (CEQA) in that it is not a Project which has the potential for causing a significant effect on the environment. The City Council therefore directs that a Notice of Exemption be filed with the Alameda County Clerk in accordance with the CEQA guidelines.
SECTION 6. SEVERABILITY
If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Fremont hereby declares that it would have passed this Ordinance and each section or subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid.
SECTION 6. EFFECTIVE DATE
This Ordinance shall take effect and will be enforced thirty (30) days after its adoption, or on July 1, 2023, whichever is later.
SECTION 7. PUBLICATION AND POSTING
The City Clerk has prepared and published at least five days before the date of adoption a summary of this ordinance once in a newspaper of general circulation printed and published in Alameda County and circulated in the City of Fremont. A certified copy of the full text of the ordinance was posted in the office of the City Clerk since at least five days before this date of adoption. Within 15 days after adoption of this ordinance, the City Clerk shall cause the summary to be published again with the names of those City Council members voting for and against the ordinance and shall post in the office of the City Clerk a certified copy of the full text of this adopted ordinance with the names of those City Council members voting for and against the ordinance.
The foregoing ordinance was introduced before the City Council of the City of Fremont at the regular meeting of the City Council, held on the _day of , 2023 and finally adopted at a regular meeting of the City Council held on the _ day of _ 2023 by the following vote:
AYES:
NOES:
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ABSENT:
ABSTAIN:
Mayor
ATTEST: APPROVED AS TO FORM:
City Clerk City Attorney
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