SB1306 - 522R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 11-1102, Arizona Revised Statutes, is amended to read:

START_STATUTE11-1102. County development fees; imposition by counties; infrastructure improvements plan; advisory committee; annual report; limitation on actions; definitions

A. If a county has adopted a capital improvements plan, the A county may assess development fees within the covered county's planning area in order to offset the capital costs for water, sewer, streets, parks and public safety facilities determined by the plan to be necessary for public services provided by the county to a new development in the planning area.

B. Development fees assessed under this section are subject to the following requirements:

1. Development fees shall result in a beneficial use to the development.

2. The county shall calculate the development fee based on the infrastructure improvements plan adopted pursuant to this section.

3. The development fees may not exceed a proportionate share of the cost of necessary public services, based on service units, needed to provide necessary public services to the development.

4. Costs for necessary public services made necessary by new development shall be based on the same level of service provided to existing development in the service area at the time the infrastructure improvements plan is adopted.

5. Development fees may not be used for any of the following:

(a) Funding a level of service that is higher than the current level of service provided to existing development at the time the infrastructure improvements plan is adopted.

(b) Construction, acquisition or expansion of public facilities or assets other than necessary public services or facility expansions identified in the infrastructure improvements plan.

(d) Upgrading, updating, expanding, correcting or replacing existing necessary public services to serve existing development in order to meet stricter safety, efficiency, environmental or regulatory standards.

(e) Upgrading, updating, expanding, correcting or replacing existing necessary public services to provide a higher level of service to existing development.

(f) Administrative, maintenance or operating costs of the county.

6. Any development for which development fees have been paid is entitled to the use and benefit of the services for which the development fees were imposed and is entitled to receive immediate service from any existing facility with available capacity to serve the new service units if the available capacity has not been reserved or pledged in connection with the construction or financing of the facility.

7. Development fees may be collected if any of the following occurs:

(a) The collection is made to pay for a necessary public service or facility expansion that is identified in the infrastructure improvements plan and the county plans to complete construction and have the service available within the time period established in the infrastructure improvements plan, but not longer than the time period provided in subsection I, paragraph 3 of this section.

(b) The county reserves capacity in the infrastructure improvements plan adopted pursuant to this section or otherwise agrees to reserve capacity to serve future development.

(c) The county requires or agrees to allow the owner of a development to construct or finance the necessary public service or facility expansion and any of the following applies:

(i) The costs incurred or monies advanced are credited against or reimbursed from the development fees otherwise due from a development. The county shall allow the owner to assign the credits from the development fees otherwise due from a development to other developments for the same category of necessary public services in the same service area.

(ii) The county reimburses the owner for those costs from the development fees paid from all developments that will use those necessary public services or facility expansions. The county shall allow the owner to assign the reimbursement rights to other developments for the same category of necessary public services in the same service area.

8. Projected interest charges and other finance costs may be included in determining the amount of development fees only if the monies are used for the payment of principal and interest on the portion of the bonds, notes or other obligations issued to finance construction of necessary public services or facility expansions identified in the infrastructure improvements plan.

2. 9. Monies received from development fees shall be placed in a separate fund and accounted for separately and may only be used for the purposes authorized by this section. Monies received from development fees identified in an infrastructure improvements plan adopted or updated pursuant to subsection E of this section shall be used to provide the same category of necessary public services or facilities expansions for which the development fee was assessed and for the benefit of the same service area as defined in the infrastructure improvements plan in which the development fees were assessed. Interest earned on monies in the separate fund shall be credited to the fund.

3. 10. The county shall prescribe the schedule for paying the development fees. Based on the costs identified in the infrastructure improvements plan, the county shall provide a credit toward the payment of the fee development fees for the required or agreed to dedication of public sites, and improvements and other necessary public services or facility expansions included in the infrastructure improvements plan and for which development fees are assessed, to the extent the public sites, improvements and necessary public services or facility expansions are provided by the developer for which that fee is assessed. On request of the developer, instead of providing a credit toward the payment of development fees, the county shall provide for reimbursement of the actual costs of the required or agreed to dedication of public sites, improvements or other necessary public services or facility expansions included in the infrastructure improvements plan and for which development fees are assessed, to the extent the public sites, improvements and necessary public services or facility expansions are provided by the developer. The developer of residential dwelling units shall be required to pay the fees when construction permits for the dwelling units are issued, or at a later time if specified in the development agreement pursuant to section 11‑1101. If a development agreement provides for development fees to be paid at a time later than the issuance of construction permits, the deferred development fees shall be paid not later than fifteen days after the issuance of a certificate of occupancy. The development agreement shall provide for the value of any deferred development fees to be supported by an appropriate security, including a surety bond, letter of credit or cash bond.

4. The amount of any development fees must bear a reasonable relationship to the burden of capital costs imposed on the county to provide additional necessary public services to the development. In determining the extent of the burden imposed by the development, the county shall consider, among other things, the contribution made or to be made in the future in cash by taxes, fees or assessments by the property owner toward the capital costs of the necessary public service covered by the development fee.

11. If a county requires as a condition of development approval the construction or improvement of, contributions to or dedication of any facilities that were not included in a previously adopted infrastructure improvements plan, the county shall cause the infrastructure improvements plan to be amended to include the facilities and shall provide a credit toward the payment of development fees for the construction, improvement, contribution or dedication of the facilities to the extent that the facilities will substitute for or otherwise reduce the need for other similar facilities in the infrastructure improvements plan for which development fees were assessed. If a county requires as a condition of development approval the set aside of active or passive open space, the county shall issue a credit toward any development fees identified in the infrastructure improvements plan to fund any park facilities or facility expansion. On request of the individual or entity seeking development approval, instead of issuing a credit toward the payment of development fees, the county shall provide for reimbursement of the actual costs of the construction or improvement of, contributions to or dedication of the public facilities required as a condition of development approval.

12. The county shall forecast the contribution to be made in the future in cash, taxes, fees, assessments and all other sources of revenue derived from the property owner towards the capital costs of the necessary public service covered by the development fees.

5. 13. If development fees shall be are assessed in a nondiscriminatory manner against residential development, the county shall also assess development fees against commercial and industrial development. The county may distinguish between different categories of residential, commercial and industrial development in assessing the costs to the county of providing necessary public services to new development and in determining the amount of the development fees applicable to the category, except that the county may not distinguish residential developments on the basis of square footage. If a county agrees to waive any of the development fees assessed on a development, the county shall reimburse the appropriate development fees accounts for the amount that was waived. The county shall provide notice of any such waiver to the advisory committee established pursuant to subsection H of this section.

6. 14. In determining and assessing a development fee fees applying to land in a community facilities district established under title 48, chapter 4, article 6, the county shall take into account all public infrastructure provided by the district and capital costs paid by the district for necessary public services and shall not assess a portion of the development fee fees based on the infrastructure or costs.

7. 15. The county shall not assess or collect development fees from a school district or charter school, other than fees assessed or collected for streets and water and sewer utility functions.

C. Before assessing or increasing a development fee fees, the county shall:

1. Give at least one hundred twenty thirty days' advance notice of intention to assess a new or increased development fee fees.

2. Release to the public and post on the county's website a written report including all documentation that supports the assessment of a new or increased development fee of the land use assumptions and infrastructure improvements plan adopted pursuant to subsection E of this section.

3. Conduct a public hearing on the proposed new or increased development fee fees at any time after the expiration of the one hundred twenty day thirty-day notice of intention to assess a new or increased development fee fees and at least fourteen thirty days before the scheduled date of adoption of the new or increased fee development fees. Within sixty days after the date of the public hearing on the proposed development fees, the county shall approve or disapprove the imposition of the development fees. A county may not adopt an ordinance, order or resolution approving development fees as an emergency measure.

D. A Development fee fees assessed pursuant to this section is are not effective for at least ninety days after its formal adoption by the board of supervisors.

E. Before the adoption or amendment of development fees, the board of supervisors shall adopt or update the land use assumptions and infrastructure improvements plan for the designated service area. The county shall conduct a public hearing on the land use assumptions and infrastructure improvements plan at least thirty days before the adoption or update of the infrastructure improvements plan. The county shall release the infrastructure improvements plan to the public, post the infrastructure improvements plan on the county's website, including in the posting the land use assumptions, the time period of the projections, a description of the necessary public services included in the infrastructure improvements plan and a map of the service area to which the land use assumptions apply, make available to the public the documents used to prepare the land use assumptions and infrastructure improvements plan and provide public notice at least sixty days before the public hearing, subject to the following:

1. The land use assumptions and infrastructure improvements plan shall be approved or disapproved within sixty days after the public hearing on the land use assumptions and infrastructure improvements plan and at least thirty days before the public hearing on the report required by subsection C of this section. A county may not adopt an ordinance, order or resolution approving the land use assumptions or infrastructure improvements plan as an emergency measure.

2. An infrastructure improvements plan shall be developed by qualified professionals using generally accepted engineering and planning practices pursuant to subsection F of this section.

3. A county shall update the land use assumptions and infrastructure improvements plan at least every five years. The initial five-year period begins on the day the infrastructure improvements plan is adopted. The county shall review and evaluate the current land use assumptions and shall cause an update of the infrastructure improvements plan to be prepared pursuant to this section.

4. Within sixty days after completion of the updated land use assumptions and infrastructure improvements plan, the county shall schedule and provide notice of a public hearing to discuss and review the update and shall determine whether to amend the land use assumptions and infrastructure improvements plan.

5. A county shall hold a public hearing to discuss the proposed amendments to the land use assumptions, the infrastructure improvements plan or the development fees. The land use assumptions and the infrastructure improvements plan, including the amount of any proposed changes to the development fees per service unit, shall be made available to the public on or before the date of the first publication of the notice of the hearing on the amendments.

6. The hearing procedures prescribed in paragraph 1 of this subsection apply to a hearing on the amendment of land use assumptions, an infrastructure improvements plan or development fees. Within sixty days after the date of the public hearing on the amendments, a county shall approve or disapprove the amendments to the land use assumptions, infrastructure improvements plan or development fees. a county may not adopt an ordinance, order or resolution approving the amended land use assumptions, infrastructure improvements plan or development fees as an emergency measure.

7. The advisory committee established under subsection H of this section shall file its written comments on any proposed or updated land use assumptions, infrastructure improvements plan and development fees before the fifth business day before the date of the public hearing on the proposed or updated land use assumptions, infrastructure improvements plan and development fees.

8. If, at the time an update as prescribed in paragraph 3 of this subsection is required, the county determines that no changes to the land use assumptions, infrastructure improvements plan or development fees are needed, the county, as an alternative to the updating requirements of this subsection, may publish notice of the determination on the county's website that includes the following:

(a) A statement that the county has determined that no change to the land use assumptions, infrastructure improvements plan or development fees is necessary.

(b) A description and map of the service area in which an update has been determined to be unnecessary.

(c) A statement that by a specified date, which shall be at least sixty days after the date of publication of the first notice, a person may request to the county in writing that the county update the land use assumptions, infrastructure improvements plan or development fees.

(d) A statement identifying the person or entity to whom the written request for an update should be sent.

9. If, by the date specified pursuant to paragraph 8 of this subsection, a person requests in writing that the county update the land use assumptions, infrastructure improvements plan or development fees, the county shall cause, accept or reject an update of the land use assumptions, infrastructure improvements plan or development fees to be prepared pursuant to this section.

10. Notwithstanding the notice and hearing requirements for adoption of an infrastructure improvements plan, the county may amend an infrastructure improvements plan without a public hearing if the amendment addresses only elements of necessary public services in the existing infrastructure improvements plan and the changes to the plan will not, individually or cumulatively with other amendments adopted pursuant to this subsection, increase the level of service in the service area or cause an increase in development fees that is greater than five percent when new or modified development fees are assessed pursuant to this section. The county shall provide notice of the amendment at least thirty days before adoption, shall post the amendment on the county's website and shall provide notice to the advisory committee established pursuant to subsection H of this section that the amendment complies with this subsection.

F. For each necessary public service that is the subject of development fees, the infrastructure improvements plan shall include:

1. A description of the existing necessary public services in the service area and the costs to upgrade, update, improve, expand, correct or replace those necessary public services to meet existing needs and usage and stricter safety, efficiency, environmental or regulatory standards. The description shall be prepared by qualified professionals who are licensed in this state, as applicable.

2. An analysis of the total capacity, the level of current usage and commitments for usage of capacity of the existing necessary public services. The analysis shall be prepared by qualified professionals who are licensed in this state, as applicable.

3. A description of all or the parts of the necessary public services or facility expansions and their costs necessitated by and attributable to new development in the service area based on the approved land use assumptions, including a forecast of the cost of infrastructure, improvements, real property, financing, engineering and architectural services. the description shall be prepared by qualified professionals who are licensed in this state, as applicable.

4. A description of all the costs necessitated by ongoing maintenance and operations of the necessary public services once construction is completed and a description of the source of revenue to be used to fund the maintenance and operations.

5. The total number of projected service units necessitated by and attributable to new development in the service area based on the approved land use assumptions and calculated pursuant to generally accepted engineering and planning criteria.

6. The projected demand for necessary public services or facility expansions required by new service units for a period of not more than ten years.

7. A forecast of revenues generated by new service units other than development fees, including estimated state shared revenue, highway user revenue, federal revenue, ad valorem property taxes, construction contracting or similar excise taxes and the capital recovery portion of utility fees attributable to development based on the approved land use assumptions, and a plan to include these contributions in determining the extent of the burden imposed by the development as required in subsection B, paragraph 12 of this section.

G. A county's development fees ordinance shall provide that new development fees or an increased portion of modified development fees may not be assessed against a development after the date that the county issues the final approval for a commercial, industrial or multifamily development or the date that the first building permit is issued for a residential development pursuant to an approved site plan or subdivision plat, only if subsequent changes are not made to the approved site plan or subdivision plat that would increase the number of service units. If the number of service units increases, the new or increased portion of modified development fees shall be limited to the amount attributable to the additional service units. The period is not extended by a renewal or amendment of the site plan or the final subdivision plat that was the subject of the final approval. The county shall issue, on request, a written statement of the development fees schedule applicable to the development. If, after the date of the county's final approval of a development, the county reduces the development fees assessed on development, the reduced fees shall apply to the development.

H. A county shall do one of the following:

1. Before the adoption of the proposed or updated land use assumptions, infrastructure improvements plan and development fees as prescribed in subsection E of this section, appoint an infrastructure improvements advisory committee, subject to the following requirements:

(a) The advisory committee shall be composed of at least five members who are appointed by the board of supervisors. At least fifty percent of the members of the advisory committee must be representatives of the real estate, development or building industries, of which at least one member of the committee must be from the home building industry. Members may not be employees or officials of the county.

(b) The advisory committee shall serve in an advisory capacity and shall:

(i) Advise the county in adopting land use assumptions and in determining whether the assumptions are in conformance with the general plan of the county.

(ii) Review the infrastructure improvements plan and file written comments.

(iii) Monitor and evaluate implementation of the infrastructure improvements plan.

(iv) Every year file reports with respect to the progress of the infrastructure improvements plan and the collection and expenditures of development fees and report to the county any perceived inequities in implementing the infrastructure improvements plan or assessing the development fees.

(v) Advise the county of the need to update or revise the land use assumptions, infrastructure improvements plan and development fees.

(c) The county shall make available to the advisory committee any professional reports with respect to developing and implementing the infrastructure improvements plan.

(d) The municipality shall adopt procedural rules for the advisory committee to follow in carrying out the advisory committee's duties.

2. Provide for a biennial certified audit of the county's land use assumptions, infrastructure improvements plan and development fees. An audit pursuant to this paragraph shall be conducted by one or more qualified professionals who are not employees or officials of the county and who did not prepare the infrastructure improvements plan. The audit shall review the progress of the infrastructure improvements plan, including the collection and expenditures of development fees for each project in the infrastructure improvements plan, and evaluate any inequities in implementing the infrastructure improvements plan or imposing the development fees. The county shall post the findings of the audit on the county's website and shall conduct a public hearing on the audit within sixty days after the release of the audit to the public.

I. On written request, an owner of real property for which development fees have been paid after December 31, 2017 is entitled to a refund of the development fees or any part of the development fees if:

1. Pursuant to subsection B, paragraph 6 of this section, existing facilities are available and service is not provided.

2. The county, after collecting the fees to construct a facility when service is not available, has failed to complete construction within the time period identified in the infrastructure improvements plan, but in no event later than the time period specified in paragraph 3 of this subsection.

3. For development fees other than development fees for water or wastewater facilities, any part of the development fees is not spent as authorized by this section within ten years after the fees have been paid or, for development fees for water or wastewater facilities, any part of the development fees is not spent as authorized by this section within fifteen years after the development fees have been paid.

J. If the development fees were collected for the construction of all or a portion of a specific item of infrastructure, and on completion of the infrastructure the county determines that the actual cost of construction was less than the forecasted cost of construction on which the development fees were based and the difference between the actual and estimated cost is greater than ten percent, the current owner may receive a refund of the portion of the development fees equal to the difference between the development fees paid and the development fees that would have been due if the development fees had been calculated at the actual construction cost.

K. A refund shall include any interest earned by the county from the date of collection to the date of refund on the amount of the refunded fees. All refunds shall be paid to the owner of record of the property at the time the refund is paid. If the development fees are paid by a governmental entity, the refund shall be paid to the governmental entity.

L. Development fees that were adopted before January 1, 2017 may continue to be assessed only to the extent that the development fees will be used to provide a necessary public service for which development fees can be assessed pursuant to this section and shall be replaced by development fees imposed under this section on or before January 1, 2018. Any county having development fees that have not been replaced under this section on or before January 1, 2018 may not collect development fees until the development fees have been replaced with fees that comply with this section. Any development fees monies collected before January 1, 2017 remaining in a development fees account:

1. Shall be used towards the same category of necessary public services as authorized by this section.

2. And collected for a purpose not authorized by this section shall be used for the purpose for which the development fees were collected on or before January 1, 2024, and after which, if not spent, shall be distributed equally among the categories of necessary public services authorized by this section.

M. A moratorium may not be placed on development for the sole purpose of awaiting completion of all or any part of the process necessary to develop, adopt or update development fees.

N. In any judicial action interpreting this section:

1. All powers conferred on a county by this section shall be narrowly construed to ensure that development fees are not used to impose on new residents a burden all taxpayers of a county should bear equally.

2. The time limitation in section 12-821 shall restart each time the county collects the development fees.

E. O. Each county that assesses development fees shall submit an annual report accounting for the collection and use of the fees for each service area. The annual report shall include the following:

1. The amount assessed by the county for each type of development fee.

2. The balance of each fund maintained for each type of development fee assessed as of the beginning and end of the fiscal year.

3. The amount of interest or other earnings on the monies in each fund as of the end of the fiscal year.

4. The amount of development fee monies used to repay:

(a) Bonds issued by the county to pay the cost of a capital improvement project that is the subject of a development fee fees assessment, including the amount needed to repay the debt service obligations on each facility for which development fees have been identified as the source of funding and the time frames in which the debt service will be repaid.

(b) Monies advanced by the county from funds other than the funds established for development fees in order to pay the cost of a capital improvement project that is the subject of a development fee fees assessment, the total amount advanced by the county for each facility, the source of the monies advanced and the terms under which the monies will be repaid to the county.

5. The amount of development fee fees monies spent on each capital improvement project that is the subject of a development fee fees assessment and the physical location of each capital improvement project.

6. The amount of development fee fees monies spent for each purpose other than a capital improvement project that is the subject of a development fee fees assessment.

F. P. Within ninety days following the end of each fiscal year, each county shall submit a copy of the annual report to the clerk of the board of supervisors and post the annual report on the county's website. Copies shall be made available to the public on request. The annual report may contain financial information that has not been audited.

G. Q. A county that fails to file the report and post the annual report on the county's website as required by this section shall not collect development fees until the report is filed and posted.

H. This section does not affect any development fee adopted before May 18, 2000.

R. Any action to collect development fees shall be commenced within two years after the obligation to pay the development fees accrues.

S. A county may continue to assess development fees adopted before January 1, 2017 for any facility that was financed before June 1, 2016 if:

1. Development fees were pledged to repay debt service obligations related to the construction of the facility.

2. After January 1, 2018, any development fees collected under this subsection are used solely for the payment of principal and interest on the portion of the bonds, notes or other debt service obligations issued before June 1, 2016 to finance construction of the facility.

T. Through January 1, 2018, development fees adopted before January 1, 2017 may be used to finance construction of a facility and may be pledged to repay debt service obligations if:

1. The facility that is being financed is a facility that is described under subsection U, paragraph 7, subdivision (a), (b), (c), (d) or (e) of this section.

2. The facility was included in an infrastructure improvements plan adopted before June 1, 2016.

3. The development fees are used for the payment of principal and interest on the portion of the bonds, notes or other debt service obligations issued to finance construction of the necessary public services or facility expansions identified in the infrastructure improvements plan.

U. For the purposes of this section:

1. "Dedication" means the actual conveyance date or the date an improvement, facility or real or personal property is placed into service, whichever occurs first.

2. "Development" means:

(a) The subdivision of land.

(b) The construction, reconstruction, conversion, structural alteration, relocation or enlargement of any structure that adds or increases the number of service units.

3. "Facility expansion" means the expansion of the capacity of an existing facility that serves the same function as an otherwise new necessary public service in order that the existing facility may serve new development. Facility expansion does not include the repair, maintenance, modernization or expansion of an existing facility to better serve existing development.

4. "Final approval" means, for nonresidnetial or multifamily development, the approval of a site plan or, if no site plan is submitted for the development, the approval of a final subdivision plat.

5. "Infrastructure improvements plan" means a written plan that identifies each necessary public service or facility expansion that is proposed to be the subject of development fees and otherwise complies with the requirements of this section and may be the county's capital improvements plan.

6. "Land use assumptions" means projections of changes in land uses, densities, intensities and population for a specified service area over a period of at least ten years and pursuant to the general plan of the county.

7. "Necessary public service" means any of the following facilities that have a life expectancy of three or more years and that are owned and operated by or on behalf of the county:

(a) Water facilities, including the supply, transportation, treatment, purification and distribution of water, and any appurtenances for those facilities.

(b) Wastewater facilities, including collection, interception, transportation, treatment and disposal of wastewater, and any appurtenances for those facilities.

(c) Street facilities located in the service area, including arterial or collector streets or roads that have been designated on an officially adopted plan of the county, traffic signals and rights-of-way and improvements thereon. Improvements to rights-of-way do not include streetcars, railways or other forms of transportation and their corresponding tracks.

(d) Public safety or fire facilities, including all appurtenances, equipment and vehicles. Public safety or fire facilities do not include a facility or portion of a facility that is used to replace services that were once provided elsewhere in the county, vehicles and equipment used to provide administrative services, helicopters or airplanes, paramilitary vehicles, court and judicial facilities, facilities that are used for training firefighters or officers from more than one station or substation or jail, correctional or detention facilities.

(e) Neighborhood parks and recreational facilities on real property up to thirty acres in area, or parks and recreational facilities larger than thirty acres if the facilities provide a direct benefit to the development. Parks and recreational facilities do not include vehicles, equipment of that portion of any facility that is used for amusement parks, aquariums, aquatic centers, auditoriums, arenas, arts and cultural facilities, bandstand and orchestra facilities, bathhouses, boathouses, clubhouses, community centers greater than three thousand square feet in floor area, environmental education centers, equestrian facilities, trails, golf course facilities, greenhouses, lakes, museums, theme parks, water reclamation or riparian areas, wetlands, zoo facilities or similar recreational facilities, but may include swimming pools.

(f) Any facility that was financed and that meets all of the requirements prescribed in subsection S of this section.

8. "Qualified professional" means a professional engineer, surveyor, financial analyst or planner providing services within the scope of the person's license, education or experience.

9. "Service area" means any specified area within the boundaries of a county in which development will be served by necessary public services or facility expansions and within which a substantial nexus exists between the necessary public services or facility expansions and the development being served as prescribed in the infrastructure improvements plan.

10. "Service unit" means a standardized measure of consumption, use, generation or discharge attributable to an individual unit of development calculated using data specific to the service area in which the facility will be located and pursuant to generally accepted engineering or planning standards for a particular category of necessary public services or facility expansions. END_STATUTE