15.08.090 Impact Fee Adjustment, Independent Calculations, and Individualized Review

(1) Adjustments. A department director may adjust an impact fee imposed pursuant to this Chapter as necessary under Utah Code 11, Chapter 36a, Part 4, as amended, in order to:

(a) respond to unusual circumstances in specific cases; or

(b) respond to a request for a prompt and individualized impact fee review for the development activity of the State, a school district, or a charter school and an offset or credit for a public facility for which an impact fee has been or will be collected; and

(c) ensure the impact fees are imposed fairly; and

(d) adjust the amount of the fee to be imposed on a particular development based upon studies and data submitted by a fee payer to ensure the impact fee represents the proportionate share of the costs of providing a public facility; and

(e) allow a credit against an impact fee for dedication of land for, improvements to, or new construction of, any system improvements identified in the capital facilities plan and required by the City as a condition of approving a development activity. No credit shall be given for a project improvement.

(2) Independent Calculations and Individualized Review. A fee payer who alleges an unusual circumstance in which use of the City’s Consolidated Fee Schedule results in an impact fee greater than the project’s proportionate share of the costs of providing a public facility, or a fee payer who is the State, a school district, or a charter school who requests an individualized impact fee review, shall prepare and submit to the relevant department an independent impact fee calculation (“IIFC”) for the development activity for which a building permit is sought by:

(a) Submitting to the relevant department the IIFC in which is delineated the unusual circumstance alleged and calculating the fee the payer believes more accurately represents the project’s proportionate share of its impact on City facilities, with its supporting data, studies, statutes, codes, or other documentation showing the basis upon which the IIFC was calculated; and

(b) Posting a cash deposit in the amount set in the Provo City Consolidated Fee Schedule for the impact fee under review, plus an amount estimated to equal the City’s actual review costs, including the cost of any consultant services deemed necessary by the City.

(c) Complying with the following general standards:

(i) The IIFC shall follow accepted impact fee assessment practices and methodologies.

(ii) The IIFC shall use acceptable data sources and the data shall be comparable with the uses and intensities proposed for the proposed development activity.

(iii) The IIFC shall comply with the applicable State laws governing impact fees including Utah Code Title 11, Chapter 36a, or its successor.

(iv) The IIFC, including any data collection and analysis, shall be prepared and documented by professionals qualified in their respective fields.

(v) The IIFC shall show the basis upon which the independent fee calculation was made.

(i) A fee payer alleging that the household size of the project is lower than that in the parks IFA per capita calculation, must provide signed expert opinion and data that the project’s limitation on household size is lawful as evidenced by:

(A) Written advertising, screening, and compliance documents;

(B) Citation to applicable law showing compliance with the Fair Housing Amendments Act;

(C) Household size approval by applicable State or Federal agency;

(D) Written contracts or leases with tenants/clients; and

(E) Expert legal opinion.

(i) The independent calculation or individualized review shall be prepared and signed by a qualified electrical engineer or engineering firm.

(i) The independent calculation or individualized review shall be prepared and signed by a qualified traffic engineer and shall include, without limitation, the following elements:

(A) A study of existing area conditions, a projection of the number of vehicular trips entering and departing from the project during the evening peak hour on an average weekday;

(B) If the site is already developed, and some or all of the existing development will be replaced by the completed project, a calculation of the number of vehicular trips for that portion of the existing development that will be replaced by the completed project;

(C) Traffic projections (using locally derived trip generation rates, if available);

(D) Traffic analysis;

(E) On- and off-site improvement analysis, conclusions, and recommendations; and

(F) Other items as reasonably determined by the City Traffic Engineer.

(i) The independent calculation or individualized review shall be prepared by a qualified professional and shall comply with Subsection (2) of this Section.

(i) The independent calculation or individualized review shall be prepared by a qualified engineer.

(ii) The study shall be signed by the engineer submitting the calculation and shall include sufficient information and analysis to support the claim that the proposed development will have less impact on the need for sewer improvements than indicated by the Sewer Impact Fee Schedule.

(i) The independent calculation or individualized review shall be prepared by a qualified engineer.

(ii) The study shall be signed by the engineer submitting the calculation and shall include sufficient information and analysis to support the claim that the proposed development will have less impact on the need for storm water improvements than indicated by the Storm Water Impact Fee Schedule.

(i) The independent calculation or individualized review shall be prepared by a qualified engineer.

(ii) The study shall be signed by the engineer submitting the calculation and shall include sufficient information and analysis to support the claim that the proposed development will have less impact on the need for water improvements than indicated by the Water Impact Fee Schedule.

(4) The department director shall consider the study and documentation submitted by the person required to pay the impact fees but is not required to accept the study if the department director decides the study is not accurate or reliable. The department director may, in the alternative, require the person submitting the study to submit additional or different documentation for consideration. If the department director decides that outside experts are needed to review the study, the applicant shall be responsible for paying for the reasonable cost of a review by outside experts. If an acceptable independent fee calculation study is not presented, the person shall pay the impact fees based upon the process and schedules referenced in this Chapter. If an acceptable independent fee calculation study is presented, the department director may adjust the fee to an amount which more accurately reflects the project’s proportionate impact on City facilities.

(5) Within twenty-one (21) days of receipt of the IIFC the department director or the director’s experts shall review and analyze the IIFC and provide a written decision to the fee payer via email or mail. The director may adopt or reject the IIFC in whole or in part and shall provide a written determination of the amount of impact fee owing, its calculation, and an explanation of the reasons and data upon which the decision is based.

(6) If the City’s actual review costs exceed the cash deposit, the fee payer shall pay such additional review costs incurred by the City. If the cash deposit exceeds the actual review costs, the City shall refund to the payer the portion of the deposit exceeding the actual costs of review.

(7) A fee payer not satisfied with the decision of the department director may file an appeal under the procedures set forth in Section 15.08.100, Provo City Code.