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HomeMy WebLinkAboutOrdinance 6466113 West Mountain Street
Fayetteville. AR 72701
(479) 575-8323
Ordinance: 6466
File :dumber: 2021-0-571
AMEND § 158.05 OFF -SITE IMPROVEMENTS/DELAYS:
AN ORDINANCE TO AMEND § 158.05 OFF -SITE IMPROVEMENTS/DELAYS TO
CONFORM THIS SECTION TO THE: REQUIREMENTS OF A.C.A. § 14-56-103
DEVELOPMENT IMPACT FEES -DEFINITION
WHEREAS, long before the enactment of A.C.A. §14-56-103 Development Impact Fees -
Definition. the City of Fayetteville constitutionally collected impact fees from developers whose
developments impacted the City's infrastructure needs for streets. water and sewer mains and other
types of infrastructure: and
WHEREAS, when A.C.A. § 14-56-103 was enacted, it provided that a city could collect a
development impact fee under ordinances enacted before July 16, 2003... only if collected in
compliance with subsections (f)-(h) of this section; and
WHEREAS, the City has consistently followed the requirements of A.C.A. § 14-56-103 (t)(g)(h), but
the C.D.C. needs an amendment to the old refunding Code section (158.05) so that it precisely
follows state law.
NOW, THEREFORE, BE IT ORDAINED BV THE CITY COUNCIL OF THE CITY OF
FAVETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § 158.05
Off -Site Improvement/Delay in its entirety and enacts a replacement § 158.05 as follows:
"158.05 Off -Site Improvement/Development Impact Fees for Specific Infrastructure
Improvements Necessitated by a Particular Development.
Page 1 Printed on 8118121
Ordinance: 6466
File Number: 2021-0571
A. Detel'tninati077 of Need Fa• Impact Fee
If the Planning Commission determines that a particular development would cause a need for a
specific infrastructure development that cannot be built until future development occurs, the
developer shall pay to the city a development impact fee in an amount determined by the
Planning Commission in accordance with the standards prescribed in § 166.04 to be the
developer's constitutional proportionate share of the cost of such specific infrastructure need.
B. C'nlleCW017 of Inipuct Fee
As a part of the approval of the developer's subdivision approval, the developer shall pay the
amount determined appropriate, legal and constitutional by the Planning Commission. The city
shall deposit these funds into a special interest -bearing account and follow all requirements of
A.C.A. § 14-56-103 (f) and (g).
C. Refund of Unused Impact Fees
If all or a portion of the collected impact fee has not been properly expended upon the specific
infrastructure project within seven (7) years from the date the fees were paid, the city, shall
refund all unused funds plus accrued interest to the present owner of the property that was
subject of the new development and against which the fee was assessed and collected as
required by A.C.A. §14-56-103 (h).
D. Compliance with State Lax
The section shall be interpreted to conform with A.C.A. § 14-56-103 and all requirements of
that law as well as any future amendments.
PASSED and APPROVED on 8/17/2021
Attest:
• • G Y
FgYE7TEL�iC ;z=
Kara Paxton, City Clerk TreasureE : (c .
Page 2 Printed on &1&21
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479)575-8323
Text File
File Number: 2021-0571
Agenda Date: 8/17/2021 Version: 1 Status: Passed
In Control: City Council Meetinq File Type: Ordinance
Agenda Number: B.2
AMEND § 158.05 OFF -SITE IMPROVEMENTS/DELAYS:
AN ORDINANCE TO AMEND § 158.05 OFF -SITE IMPROVEMENTS/DELAYS TO CONFORM
THIS SECTION TO THE REQUIREMENTS OF A.C.A. §14-56-103 DEVELOPMENT IMPACT
FEES -DEFINITION
WHEREAS, long before the enactment of A.C.A. § 14-56-103 Development Impact Fees - Definition,
the City of Fayetteville constitutionally collected impact fees from developers whose developments impacted
the City's infrastructure needs for streets, water and sewer mains and other types of infrastructure; and
WHEREAS, when A.C.A. § 14-56-103 was enacted, it provided that a city could collect a development
impact fee under ordinances enacted before July 16, 2003... only if collected in compliance with subsections
(f)-(h) of this section; and
WHEREAS, the City has consistently followed the requirements of A.C.A. § 14-56-103 (f)(g)(h), but the
U.D.C. needs an amendment to the old refunding Code section (158.05) so that it precisely follows state law.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § 158.05 Off -Site
Improvement/Delay in its entirety and enacts a replacement § 158.05 as follows:
"158.05 Off -Site Improvement/Development Impact Fees for Specific Infrastructure Improvements
Necessitated by a Particular Development.
A. Determination of Need For Impact Fee
If the Planning Commission determines that a particular development would cause a need for a specific
infrastructure development that cannot be built until future development occurs, the developer shall pay
to the city a development impact fee in an amount determined by the Planning Commission in
accordance with the standards prescribed in § 166.04 to be the developer's constitutional proportionate
share of the cost of such specific infrastructure need.
B. Collection of Impact Fee
As a part of the approval of the developer's subdivision approval, the developer shall pay the amount
City of Fayetteville, Arkansas Page 1 Printed on 811812021
File Number: 2021-0571
determined appropriate, legal and constitutional by the Planning Commission. The city shall deposit
these funds into a special interest -bearing account and follow all requirements of A.C.A. § 14-56-103
(f) and (g).
C. Refund of Unused Impact Fees
If all or a portion of the collected impact fee has not been properly expended upon the specific
infrastructure project within seven (7) years from the date the fees were paid, the city shall refund all
unused funds plus accrued interest to the present owner of the property that was subject of the new
development and against which the fee was assessed and collected as required by A.C.A. § 14-56-103
(h).
D. Compliance with State Law
The section shall be interpreted to conform with A.C.A. § 14-56-103 and all requirements of that law
as well as any future amendments.
City of Fayetteville, Arkansas Page 2 Printed on 811812021
Legistar ID No.: __02 QoC j—QsC]'
AGENDA REQUEST FORM
FOR: Council Meeting of August 3, 2021
FROM: Mayor Lioneld Jordan
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
AN ORDINANCE TO AMEND § 158.05 OFF -SITE IMPROVEMENTS/DELAYS TO
CONFORM THIS SECTION TO THE REQUIREMENTS OF A.C.A. §14-56-103
DEVELOPMENT IMPACT FEES -DEFINITION
APPROWD FOR AGENDA:
Mayor Li
City Attorney Kit Williams
i i 7 X.
ate
July 19, 2021
Date
4
DEPARTMENTAL CORRESPONDENCE
OFFICE OF THE
CITY ATTORNEY
TO: Mayor Jordan
City Council
Kit Williams
City Attorney
Blake Pennington
Assistant City Attorney
Jodi Batker
Paralegal
CC: Susan Norton, Chief of Staff
Jonathan Curth, Development Services Director
Chris Brown, Public Works Director
FROM: Kit Williams, City Attorney
DATE: July 19, 2021
RE: Amendment Needed to §158.05 Off -Site Improvements/Delays of the
U.D.C. to Conform Refunding Requirements to State Law
The City has consistently obeyed A.C.A. §14-56-103 Development Impact
Fees -Definitions, subsections (f), (g) and (h) for collection, deposit into special
interest -bearing accounts and refunds of unused fees, plus their accrued interest.
However, §158.05 Off -Site Improvements/Delays of the Unified Development
Code needs to be amended to clarify that this collection and refund procedure
completely complies with state law.
This issue was brought to my attention by Development Services Director
Jonathan Curth who supplied me with an attorney's claim that her client's
refund amount should have included a higher amount of interest than what the
deposit had actually earned in our interest -bearing account. Attached is my letter
explaining that, pursuant to state law, only the actually accrued interest can be
refunded to her client.
To prevent further confusion, the City Council needs to amend the current
Unified Development Code section to precisely conform to state law. Attached is the
sections of A.C.A. §14-56-103 (f), (g) and (h) with which the City must comply to
continue assessing "Development/ Impact Fees for Specific Infrastructure
Improvements Necessitated by a Particular Development."
ORDINANCE NO.
AN ORDINANCE TO AMEND § 158.05 OFF -SITE IMPROVEMENTS/DELAYS TO
CONFORM THIS SECTION TO THE REQUIREMENTS OF A.C.A. §14-56-103
DEVELOPMENT IMPACT FEES -DEFINITION
WHEREAS, long before the enactment of A.C.A. § 14-56-103 Development Impact Fees —
Definition, the City of Fayetteville constitutionally collected impact fees from developers whose
developments impacted the City's infrastructure needs for streets, water and sewer mains and
other types of infrastructure; and
WHEREAS, when A.C.A. §14-56-103 was enacted, it provided that a city could collect a
development impact fee under ordinances enacted before July 16, 2003... only if collected in
compliance with subsections (f)-(h) of this section; and
WHEREAS, the City has consistently followed the requirements of A.C.A. §14-56-103
(f)(g)(h), but the U.D.C. needs an amendment to the old refunding Code section (158.05) so that
it precisely follows state law.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby repeals § 158.05
Off -Site Improvement/Delay in its entirety and enacts a replacement §158.05 as follows:
"158.05 Development Impact Fees for Specific Infrastructure Improvements Necessitated
by a Particular Development.
A. Determination of Need For Impact Fee
If the Planning Commission determines that a particular development would cause a need
for a specific infrastructure development that cannot be built until future development
occurs, the developer shall pay to the city a development impact fee in an amount
determined by the Planning Commission in accordance with the standards prescribed in
§ 166.04 to be the developer's constitutional proportionate share of the cost of such
specific infrastructure need.
B. Collection of Impact Fee
As a part of the approval of the developer's subdivision approval, the developer shall pay
the amount determined appropriate, legal and constitutional by the Planning Commission.
The city shall deposit these funds into a special interest -bearing account and follow all
requirements of A.C.A. § 14-56-103 (f) and (g).
C. Refund of Unused Impact Fees
If all or a portion of the collected impact fee has not been properly expended upon the
specific infrastructure project within seven (7) years from the date the fees were paid, the
city shall refund all unused funds plus accrued interest to the present owner of the
property that was subject of the new development and against which the fee was assessed
and collected as required by A.C.A. §14-56-103 (h).
D. Compliance with State Law
The section shall be interpreted to conform with A.C.A. §14-56-103 and all requirements
of that law as well as any future amendments.
PASSED and APPROVED this 3rd day of August, 2021.
APPROVED:
LIONELD JORDAN, Mayor
ATTEST:
KARA PAXTON, City Clerk/Treasurer
Blake E. Pennington
Assistant City Attorney
bpeniiiiigtoii@fayetteN,ille-ar.gov
Jodi Baker
Paralegal
Phone 479.575.8313
KIT WILLIAMS
FAYETTEVILLE CITY ATTORNEY
kwilIiains@fayetteville-ar.gov
July 19, 2021
Dana Davis Paul
Paul Law Firm
2003 S. Horsebarn Road, Suite 7
Rogers, AR 72758
dpaul@dpaullaw.com
Re: Refund of unused impact fee to owner
Dear Attorney Paul,
113 W. Mountain Street, Suite 302
Fayetteville, AR 72701-6083
I need to explain why your client received the check from the City of
Fayetteville for the refund of the off -site impact fee funds ($86,000.00) plus accrued
interest ($6,694.57) for a total of $92,694.57. Planning Staff evidently did not
realize that A.C.A. § 14-56-103 Development Impact Fees -Definition which was
passed by the Legislature in Acts 1719 and 310 of 2003 changed the requirements
when impact fees had been collected, but were not used. The $86,000.00 was an
impact fee based upon the rough proportionality of the traffic impact of your large
Church which created a need for a left turn lane on Highway 112 (Gregg Avenue)
to serve your client's church. However, this money could not be used pursuant to
Arkansas Highway and Transportation Department (AHTD) guidelines. Now,
AHTD will be substantial improving Highway 112 without cost to Fayetteville and
so these funds must be returned to your client pursuant to A.C.A. § 14-56-103 (g)
and (h).
"(g)(1) The funds collected under a development impact fee ordinance
shall be deposited into a special interest -bearing account.
(2) The interest earned on the moneys in the separate account shall be
credited to the special fund and the funds deposited into the special
account and the interest earned shall be expended only in accordance
with this section.
(3) No other revenues or funds shall be deposited in the special account.
(h)(1) The municipality or municipal service agency shall refund the
portion of collected development impact fees, including the accrued
interest, that has not been expended seven (7) years from the date the
fees were paid."
The City, pursuant to state law, "shall refund the portion of collected
development impact fees, including the accrued interest" after it is clear that the
fees will not be expended with seven years. This is precisely what the City has done.
The City could not earn 5% per annum so that amount of interest could not have
accrued in the special fund holding the $86,000.00. Therefore only the actual
amount of accrued interest that the City actually received, $6,694.57 could be
refunded to your client.
State law makes it clear that only those funds in the special fund can be
returned to the developer and that "No other revenues or funds shall be deposited
into the special account." A.C.A. § 14-56-103(g)(3). There are simply no other funds
that can be legally paid to your client.
The road impact fees denoted as a "street assessment' have been part of the
City's Unified Development Code for decades and long before the enactment of
A.C.A. §14-56-103, the state impact fee statute. We are allowed to continue to use
this impact fee ordinance only if "in compliance with subsections (f)-(h)." A.C.A.
§14-56-103 (i)(1)(B). As pointed out earlier (g) requires that the return of unused
impact fee must be accompanied by "the accrued interest" rather than any amount
that would be less than or greater than the actual accrued interest.
"(i)(1)(B) Beginning January 1, 2004, a municipality or municipal
service agency shall collect development impact fees under ordinances
enacted before July 16, 2003, or under ordinances amended after July
16, 2003, only if collected in compliance with subsections (f)-(h) of this
section."
Since state law required the City of Fayetteville to refund the unused impact
fees "including accrued interest," the City would be violating state law if it attempted
to return more than the full amount of accrued interest in received. This would likely
also be a violation of the Arkansas Constitution, Article 12 §5 and Article 16 § 13
Illegal exactions.
Article 12 §5 (a) states: "No county, city... shall... appropriate money for...
any corporation, association, institution or individual." The City can certainly pay
just debts such as refunding your client's impact fee ($86,000.00) plus accrued
interest ($6,694.57). However, the City cannot refund more than state law allows
without committing an Illegal Exaction for which the City could properly be sued
by any taxpayer.
I apologize for our Planner's mistaken reference to 5% interest which had
been superseded by state law about a year earlier. We will make a concerted effort
to ensure this mistake will not be made again. My City Attorney's Office has been
involved in the refund of unused impact fees primarily if there is some uncertainty
about who should receive the refund. This is the first time a mistake in the old
Planning memo has caused a concern. Thank you for bringing this to my attention.
I hope that I have properly and fully explained to your satisfaction why the
City of Fayetteville must precisely follow state law and refund your client exactly
$92,694.57.
With kindest regards,
a-" -
�-
KIT WILLIAMS
Fayetteville City Attorney
Cc: Mayor Lioneld Jordan
Susan Norton, Chief of Staff
Paul Becker, Chief Financial Officer
Jonathan Curth, Development Services Director
14-56-103 iOCAL GOVERNMENT 40 4
(2) The development impact fee may be -pledged to the payment of
bonds issued by the municipality or municipal service agency to finance
capital improvements or public facilities for which the development
impact fee may be imposed.
(3) No development impact fee shall be assessed for or expended
upon the operation or maintenance of any public facility or for the
construction or improvement of public facilities that does not create
additional capacity.
(d)(1) A municipality or a municipal service agency may assess and
collect impact fees only. from new development. and only against a
particular new development in reasonable proportion to the demand for
additional capacity. in public facilities that is reasonably attributable to
the use and occupancy of that new development.
�2) The owner, resident, or tenant df:a property that was assessed an
impact fee and paid it in full shall have the right to make reasonable
use of all public facilities that were .financed by the. impact fee.
(e)(1). A municipality or -municipal service agency may assess, collect,
and expend impact fees only under a development impact fee ordinance
adapted ,and amended under this section..
(2) A development'impact fee ordinance shall be adopted or amended
by' the governing body. of a municipality or municipal. service agency
only after the ,, municipality or municipal service agency has adopted a
capital plan bLnd level of service standards for. all of the public facilities
that are to be so financed:
(3) The development impact fee ordinance shall contain:'
-(A.) A statement- of the new public facilities and capital inipr©ve=
merits to existing -public` facilities that are to be financed by impact
fees' and the level of service standards included inthe-capital plan for
the public facilities that are to be financed with -impact fees;
(B) The actual ,'foemula or formulas 'far assessing the iriipact fee,
which shall be consistent with the level of service standards;
(C) The procedure by which impact fees are to be assessed and
collected; and
(D) The procedure for refund of excess impact fees in accordance
with subsection (h) of this section.
(f)(1) The municipality or municipal service agency shallcollectthe
development impact fee at the time and manner and frorri the party as
prescribed in the ordinance and- si hall collect -the fee separate and 'apart
from. any other charges to-thedevelopment.
(2)(A) ='A development impact fee' shall be collected, at either the
closing'on' the property by the owner or the issuance of a certificate of
occupancy. by the muxcipality.
(B') 'However, a municipal water or wastewater department, wa-
terworks, joint waterworks, or consolidated 'Waterworks system ' op-
erating under the Consolidated Waterworks Authorization Act;'§' 25=
20-301 et seq.;omay collect a development impact fee'in connection
with and as,a condition to the installation of the water meter serving
t
the property.
L7
41 BUILDING AND ZONING REGULATIONS - PLANNING 14-56-103
(3) At closing, the development impact fee that has been paid or will
be paid for the property shall be separately enumerated- on the closing
statement.
(4) The ordinance may include that the development impact fee- may
be'paid in installments at a reasonable interest rate fbr a fixed number
of years or that the municipality `or : municipal service agency, may
negotiate agreements with' the owner of the property as. to the time and
method of paying the impact fee.
(g)(1) The hinds collected'under a development impact fee ordinance
shall be deposited into a special interest -bearing account.
(2) The interest earned on the moneys in the separate account shall
be credited to the special fund and the funds deposited into the special
account and the interest earned shall be expended'only in accordance
with this section.
(3) No other revenues or funds shall- be deposited into the special
account.
(h)(1) The, municipality or municipal service agency shall refund the
portion of collected development impact fees,. including 'tl a accrued
interest, that has not been expended seven (7) years from the date the
fees were paid. .
(2)(A) A refund shall be paid to the present owner of the property
that was the subject of new development and against which the fee
,a -was assessed and collected.
(B) Notice of 'the right to a refund, including the amount of the
refund and'the procedure for applying for and receiving fu the rend,
shall ' be sent or served- in writing to the present owners of the
property no later than thirty (30). days after the date on which the
refund becomes due.
.(C) The sending by regular mail of the notices to all present owners
of record shall be sufficient to satisfythe requirement of notice.
(3)(A) The refund shall be made on a pro rata basis and shall be paid
in full not later than ninety (90) days after the' date certain upon
which the refund becomes due.
(B) ' If the municipality or municipal service agency does not pay, a
refund in full: within the period set in subdivision (h)(3)(A) .of this
section to any person entitled to a refund, that person shall have a
cause of action against the municipality for the refund or the unpaid
portion in the ' circuit court of the county in which the property is
located.
(i)(1)(A) On and after July 16, 2003, a municipality or municipal
service agency shall levy and collect'a development impact fee only if
levied and collected under ordinances enacted in compliance with this
section.
(B) Beginning January 1, 2004, a municipality or municipal ser-
vice agency shall collect development impact fees under ordinances
enacted before July 16, 2003, or under ordinances amended after July
16, 2003, only if collected in compliance with subsections (f)-(h) of this
section.
I r
14-56-201 LOCAL GOVERNMENT 42 4`
(2) However, except for the compliance with the collection require-
ments under subsections (f)-(h) of this section, this section does not
invalidate any development impact fee or a similar fee adopted by a
municipality or municipal service agency before July 16, 2003, nor does
this section apply to funds collected under any development impactfee
or similar _fee adopted July 16, 2003. .
(3) . In, addition, a municipality with a park land or. green, space
ordinance that has been in existence for ten (10) years on July 16, 2003,
and any amendments to the ordinance, which allows the option to pay
a fee or to dedicate green space or park land in lieu of a fee, may
continue to be administered under the existing, -ordinance.
History. Acts 2003, No. 1719, § 1,
2007, No: 310, § 1.
RESEARCH -REFERENCES
Ark. L. Notes, ;Carl J. Cu-co,,Land Use.. ,an , Arkansas - Philosophy of Property
Impact 'Fees: Dues Koontz v. St. Johns 'Rights?, 2014rArk. L. Notes 1626., •
River Water Management District Echo
SuticnAPTEFt 2 -- BUILDING REGULATIONS
' ndTIAN. i g;
14-56-202. Additional ,powers of cities of 14-56-204: Municipal, regulation of resi-
a }, the last class, cities oitlie. > , dential builcl�ng design el -
second class, and incorpo- eruents prohibited — FS-nd-
raied towns. :' ings Except;ons —
14-86-�203. Removal or razing of buildings: - Definitions:-=
14-56-201:--Authority generally.
:c; r• ,.r,: rCASEoNOTES,' r
ArrnsysFs . , f i complaint filed by a, lessor and a, lessee
sufficiently alleged teat. their .rights or
Construction; other ' legal relatiaris were af%ct, by
Billboards.'" Avoca, Ark., Ordinance No. '69 wlere a
Erection, Construction, Etc: ° town wasmaking demands regarding the
! 1. ::. i -- remogal ofbillboards; therefore,.the lessor
C sti-uctiun. and the lessee, were-ent'tled to declaratory
i-'Seetian`'14`56-202 conferred upon cities 'relief under §. 16-1 M. Tiky•wer'ear-
6£'the1 firfit' class the' exclusive power to gums gthat the town lacked power4o regu-
issue or refuse to issue building permits late the billboards at issue. Statewide
and td. regulate the building of houses fand OutdoorAdver.,, LLC v Tawa of-Avvea,::104
thereby denied such;power,to dties of the Ark. App..,10, 289 � W.3d,.1•Il (2408). ,,,
second class, despite the general powers
listed in § 14-56-201. First State Bank v ` Erl6etion;'Constructibn, €Etc.
City of Elkins, 2018 Ark. 191, 546 S. W.3d In light of the devastation caused -by a
427 (2018) (answering question of law tornado, the . city ,had +thee- authority to
certified y,the;federal dis#z�et court). adopt an ordinance' wi �ch'added new re-
quirements for tha construction and an-
Billboais. choring of manufactured homes_'Smith v.
= Motion to dismiss for failurel to state! a' ; ,City of Arkadelphia, 336 Ark:' °42;'' 984
claim was improperly granted because a S.W.2d 392 (1999). r
158.03 FAYETTEVILLE CODE OF ORDINANCES
TITLE XV UNIFIED DEVELOPMENT CODE
filed with the City Engineer prior to the acceptance of the improvements by the city. A
walk-through shall be performed at the end of the two (2) year period and all deficiencies
corrected prior to the release of the bond.
(13) Erosion and Sediment Control. For developments in excess of 5 acres, an acceptable
guarantee shall be provided at the time of the issuance of the drainage permit in the amount of
100% of the total cost to install the approved Erosion & Sediment Control Plan to insure the
continuation of the proper maintenance of the plan. The guarantee shall remain in place until
permanent stabilization has been achieved for the development site.
(Code 1965, App. C., Art. III, §C: Ord. No. 1750, 7-6-70; Code 1991, §§159.35, 163.13; Ord. No.
3895, §1, 6-20-95; Ord. No. 4100, (Ex. A), 6-16-98; Ord. No. 5140, 5-06-08; Ord. No. 5184, 10-7-08)
158.04 Grading; Bonds/Sureties
The Building Official may require bonds or other sureties in such form and amounts as may be
deemed necessary to assure the work, if not completed in accordance with the approved plans and
specifications, will be corrected to eliminate hazardous conditions.
(Code 1991, §161.23; Ord. No, 3551, 6-4-91; Ord. No. 4100 (Ex. A), 6-16-98)
158.05 Off -Site Improvements/Delays C Ir f cot* C_x>
(A) Proportionate Share. If the Planning Commission determines that a needed off -site improve-
ment cannot be built until future development occurs, the developer shall pay to the city an
amount determined by the Planning Commission, in accordance with the standards prescribed
in §166.04. to be the developer's proportionate share of the cost of said off -site improvements
as of the date of final plat or large scale development approval.
(1) The city shall deposit said money into an interest bearing escrow account until such time
as the off -site improvement is constructed and shall provide for payment of interest on
said amount at the rate of 10% per annum, or the maximum rate allowable under
Arkansas law, whichever is lower.
(2) If the off -site improvement is not constructed within five (5) years from the date of the first
payment into the escrow account by a developer, the Planning Commission shall hold a
public hearing, after notification to all affected property owners, to determine the dispo-
sition of all money in the escrow account. Following the public hearing, the Planning
Commission may:
(a) Determine that the off -site improvement is still necessary and feasible, and can be
built within a reasonable time, in which case the escrow account shall be continued
for a period specified by the Planning Commission; or
(b) Determine that the off -site improvement is not necessary, or will not be feasible, or
that insufficient development has occurred to render the improvement likely in the
foreseeable future, in which case the Planning Commission shall refund the monies
to the then current owner of the land for which such fee was paid with interest since
the date of payment. Interest shall be based on a 5% percent annual rate.
Supp. No. 17 CD158:4
Received 08/09/21 4:19 PM
41LDEPARTMENTAL CORRESPONDENCE
OFFICE OF THE
CITY ATTORNEY
TO: Mayor Jordan
City Council
Kit Williains
City Attorney
Blake Pennington
Asstst«,,t City Attorney
Jodi Batker
Pzaralcmi
CC: Susan Norton, Chief of Staff
Paul Becker, Finance Director
Jonathan Curth, Development Services Director
i
FROM: Kit Williams, City Attorney -
DATE: August 9, 2021
RE: Grandfathering Amended Impact Fee Ordinance
Thank you, City Council, for allowing this proposed ordinance to remain
on the first reading during your August 3,,d meeting so I could make a minor, but
important, revision to the proposed ordinance. Often when the Planning
Department or my office believes a Code section needs a significant rewrite to
comply with changed circumstances, procedures, or state law, we repeal the
existing Code section in its entirety rather than trying to insert many separate
amendments. That repeal and replace procedure is usually easier to understand
and more concise and logical. That is what I started to do with this very old
impact fee Code section, so it would more closely conform to the state law.
I was only suggesting an amendment as I stated in my last WHEREAS
Clause: "the U.D.C. needs an amendment to the old refunding Code section
(158.05) so it precisely follows state law."" (emphasis added) However, I stated in
Section 1.: "hereby repeals §158.05... and enacts a replacement §158.05 as
follows."(emphasis added)
When I read "repeals" out loud to you, I realized that I may have
inadvertently left open a way to attack the proposed amended §158.05. State law
says that "development impact fees under ordinances enacted before July 16,
2003 (which would include §158.05), or under ordinances amended after June 16,
2003" (emphasis added) would remain valid with proper collection and refund
provisions. Although that is in reality what I was proposing, an amendment to
§158.05, I did not want there to be any misunderstanding, nor leave any opening
for someone legally to challenge that amendment and validity of §158.05 with its
required impact fees because I had stated it was being repealed and replaced
rather than being amended.
If we had been challenged, I believe a Court would have properly
interpreted your intention as one of amendment rather than a repeal. But I do
not want to take that chance nor give a challenger any opportunity to contest
your ordinance. That is why I have slightly redrafted the introductory language
in Section 1 to read: "hereby amends §158.05... to read as follows." I also kept
the most of the Code sections title which is being amended before adding the
impact fee language.
Through the years, I have found that careful consideration and
draftsmanship will prevent unnecessary litigation and will strengthen the City's
case if we are sued more strongly than even a good brief or argument. Therefore,
I ask that you amend Section 1 of the proposed ordinance to the language in the
revised ordinance attached to this memo. Basically, it just replaces "repeals" with
"amends" and includes much of the old Code sections title.
ORDINANCE NO.
AN ORDINANCE TO AMEND § 158.05 OFF -SITE IMPROVEMENTSIDELAYS TO
CONFORM THIS SECTION TO THE REQUIREMENTS OF A.C.A. §14-56-103
DEVELOPMENT IMPACT FEES -DEFINITION
WHEREAS, long before the enactment of A.C.A. § 14-56-103 Development Impact Fees —
Definition, the City of Fayetteville constitutionally collected impact fees from developers whose
developments impacted the City's infrastructure needs for streets, water and sewer mains and
other types of infrastructure; and
WHEREAS, when A.C.A. §14-56-103 was enacted, it provided that a city could collect a
development impact fee under ordinances enacted before July 16, 2003... only if collected in
compliance with subsections (f)-(h) of this section; and
WHEREAS, the City has consistently followed the requirements of A.C.A. § 14-56-103
(f)(g)(h), but the U.D.C. needs an amendment to the old refunding Code section (158.05) so that
it precisely follows state law.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE,ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § 158.05
Off -Site Improvement/Delay to read as follows:
"158.05 Off -Site Improvement/Development Impact Fees for Specific Infrastructure
Improvements Necessitated by a Particular Development.
A. Determination of Need For Impact Fee
If the Planning Commission determines that a particular development would cause a need
for a specific infrastructure development that cannot be built until future development
occurs, the developer shall pay to the city a development impact fee in an amount
determined by the Planning Commission in accordance with the standards prescribed in
§ 166.04 to be the developer's constitutional proportionate share of the cost of such
specific infrastructure need.
B. Collection ofimpact Fee
As a part of the approval of the developer's subdivision approval, the developer shall pay
the amount determined appropriate, legal and constitutional by the Planning Commission.
The city shall deposit these funds into a special interest -bearing account and follow all
requirements of A.C.A. §14-56-103 (f) and (g).
C. Refund of Unused Impact Fees
If all or a portion of the collected impact fee has not been properly expended upon the
specific infrastructure project within seven (7) years from the date the fees were paid, the
city shall refund all unused funds plus accrued interest to the present owner of the
NORUiWF.ST ARKVW
.Democrat 10(�Az&
Pv -6X: `5''=1--,:!�E, AP. 72,U '=9'•l i -A): _-a�?�F,g• Pi.;;: ti1lA� •. ^v
AFFIDAVIT OF PUBLICATION
I, Brittany Smith, do solemnly swear that I am the Accounting Legal Clerk of the Northwest Arkansas
Democrat -Gazette, a daily newspaper printed and published in said County, State of Arkansas; that I was so
related to this publication at and during the publication of the annexed legal advertisement
the matter of. Notice pending in the Court, in said County, and at the dates of
the several publications of said advertisement stated below,
and that during said periods and at said dates, said newspaper
Ordinance: 6466
File Number: 2021-0571
was printed and had a bona fide circulation in said County;
that said newspaper had been regularly printed and published
AMEND § 158.05 OFF -SITE
IMPROVEMENTS/DELAYS:
AN ORDINANCE TO AMEND §
In said County, and had a bona fide circulation therein for the
period of one month before the date of the first publication of
158.05 OFF -SITE
IMPROVEMENTS/DELAYS TO
CONFORM THIS SECTION TO
said advertisement; and that said advertisement was published
in the regular daily issues of said newspaper as stated below.
THE REQUIREMENTS OF
A.C.A. §14-56-103
DEVELOPMENT IMPACT FEES -
DEFINITION
WHEREAS, long before the
City of Fayetteville
enactment of A.C.A. § 14-56-103
Development Impact Fees -
Ord 6466
Definition, the City of Fayetteville
constitutionally collected impact
fees from developers whose
developments impacted the City's
Was inserted in the Regular Edition on:
infrastructure needs for streets,
water and sewer mains and other
August 22, 2021
types of infrastructure; and
WHEREAS, when A.C.A. §14-56-
103 was enacted, it provided that a
Publication Charges: $215.84
city could collect a development
impact fee under ordinances
enacted before July 16, 2003...
only if collected in compliance with
subsections (f)-(h) of this section;
&di t Sen-6-
ano
WHEREAS, the City has
Brittany 9tith
consistently followed the
requirements of A.C.A. §14-56-103
Subscribed and sworn to before me Cathy Wiles
(f)(g)(h), but the U.D.C. needs an
amendment to the old refunding
This 2t� day of , 2021. Benton COUNTY
Code section (158.05) that it
,
NOTARY PUBLIC -ARKANSAS
sstate la
NOW, THEREFORE aEtT
My Commission Expires 02 20-20
RDAINED BY THE CRY
ss
Commiion No. 12397118
FAYETTE IR LLE, NCIL OF THE I TY OF
KANSAS:
6
Section 1: That the City Council of
V
the City of Fayetteville, Arkansas
hereby amends § 158.05
Notary Public ., /
4
Off -Site Improvement/Delay in its
entirety and enacts a replacement
M Commission Expires: �f
y p
§158.05 as follows:
"158.05 Of( -Site
Improvement/Development Impact
Fees for Specific Infrastructure
Improvements Necessitated by a
Particular Development.
A. Determination of Need
**NOTE** Please do not pay from Affidavit For Impact Fee
If the Planning Commission
Invoice will be sent. determines that a particular
development would cause a need
for a specific infrastructure
development that cannot be built
until future development occurs,
the developer shall pay to the city a
development impact fee in an
amount determined by the Planning
Commission in accordance with the
standards prescribed in §166.04 to
be the developer's constitutionai
proportionate share of the cost of
such specific infrastructure need.
B. Collection of Impact Fee
As a part of the approval of the
developer's subdivision approval,
the developer shall pay the amount
determined appropriate, legal and
constitutional by the Planning
Commission. The city shall deposit
these funds into a special interest -
bearing account and follow all
requirements of
A.C.A. § 14-56-103 (f) and (g).
C. Refund of Unused
Impact Fees
If all or a portion of the collected
impact fee has not been properly
expended upon the specific
infrastructure project within seven
(7) years from the date the fees were
paid, the city shall refund all unused
funds plus accrued interest to the
present owner of the property that
was subject of the new development
and against which the fee was
assessed and collected as required
by A.C.A. §14-56-103 (h).
D. Compliance with State
Law
The section shall be interpreted to
conform with A.C.A. § 14-56-103
and all requirements of that law as
well as any future amendments.
PASSED and APPROVED on
8/17/2021
Approved:
Lioncld Jordan, Mayor
Attest:
Kara Paxton, City Clerk Treasurer
This publication was paid for by the
City Clerk -Treasurer of the City of
Fayetteville, Arkansas. Amount
paid: $ 215.84
75455755 Aug 22, 2021