§ 23-95. Credits.

(a)

An applicant shall be entitled to a credit against any transportation impact fee assessed pursuant to this article in an amount equal to (i) the actual, reasonable incurred cost of off-site improvements for impact fee eligible transportation improvements or (ii) contributions of land, money, or services for such off-site improvements contributed or previously contributed, paid for, or committed to by the applicant or a predecessor in interest as a condition of any development permit issued by the county. A credit shall not be awarded for any contribution of land, money, or services not made directly by the applicant, including a contribution or grant made by another entity, unless specifically provided for in a developer's agreement approved by the BCC. The cost of such improvements shall be based on the following criteria in subsections (a)(1) and (a)(2), subject to subsections (a)(3) and (a)(4):

(1)

The actual, reasonable incurred cost of improvements certified by an engineer and approved by the county in accordance with the procedures set forth in Orange County Administrative Regulation No. 4.03, as it may be amended from time to time; and

(2)

A pro rata share of the appraised land value of the parent tract (which land value is based on the "date of valuation" as defined in section 23-95(b) below) as determined by an appraiser with an M.A.I. designation, who is acceptable to the county and who was selected and paid for by the applicant. The appraisal must meet the Uniform Standards of Professional Appraisal Practice. If the appraisal does not conform to the requirements of this article and the applicable administrative regulations, the appraisal shall be corrected and resubmitted. In the event the county accepts the methodology of the appraisal but disagrees with the appraised value, it may engage another appraiser. The value used for purposes of impact fee credit calculation shall be an amount equal to the average of the two (2) appraisals. In the alternative, the appraised land value of the parent tract may be as negotiated and stated as a specific dollar value on a per-acre basis in a developer's agreement between the applicant and the county.

(3)

Except for property located in Horizon West, with respect to an on-site or off-site improvement required by the county as a condition of development, the credit for the right-of-way and the roadway therein (including design and construction costs) shall be limited to the extent of excess capacity created by the applicant's contribution as measured against the impacts attributable to the applicant's project on the roads deemed eligible. However, with respect to dedication for future right-of-way not required by the county as a development approval condition for the subject development, the credit shall be for one hundred (100) percent of such future right-of-way. The foregoing notwithstanding, the board may approve a different impact fee credit calculation or a different impact fee credit methodology for right-of-way, design, and/or construction for significant transportation facilities or systems (including transit or multimodal facilities or systems) necessary to provide mobility for development or redevelopment.

(4)

For property which is located in Horizon West, for an on-site or off-site improvement to be eligible for a credit the improvement must be an impact fee eligible improvement. For improvements deemed eligible, the credit for the right-of-way shall be limited to twenty-two thousand five hundred dollars ($22,500.00) per acre and the credit for the roadway therein (including design and construction costs) shall be limited to the extent of excess capacity created by the applicant's contribution as measured against the impacts attributable to the applicant's project on the improvements deemed eligible. The foregoing notwithstanding, the board may approve a different impact fee credit calculation or a different impact fee credit methodology for right-of-way, design, and/or construction for significant transportation facilities or systems (including transit or multimodal facilities or systems) necessary to provide mobility for development or redevelopment.

(b)

As used in this section, "date of valuation" shall mean:

(1)

For projects that enter into a developer's agreement with the county pertaining to a condition of development requiring the contribution of land, the date of valuation shall include a determination of the land use to be used in the evaluation and shall be calculated as either an agreed upon date or the day before the date on which the developer's agreement becomes effective. The developer's agreement shall specifically state the date of valuation and the determined land use to be used in the evaluation, or in the alternative, the developer's agreement may state as a specific dollar value the negotiated appraised land value of the parent parcel on a per-acre basis.

(2)

For projects where the valuation is not stated in a developer's agreement that are zoned or are being rezoned to planned development (PD) and:

a.

The PD has no land use approval, provided the land use approval imposes a condition of development requiring the contribution of land, the date of valuation shall be the day before the date of the land use approval.

b.

The PD has land use approval and is seeking either a preliminary subdivision plan or development plan approval then:

1.

Provided the existing land use plan imposed a condition of development requiring the contribution of land, the date of valuation shall be the day before the date of the land use approval.

2.

If the existing land use plan did not impose a condition of development requiring the contribution of land, but the preliminary subdivision plan and/or the development plan imposes a condition of development requiring the contribution of land, the date of valuation shall be the day before the date of the development plan approval.

c.

The PD has land use approval and preliminary subdivision plan/development plan approval, but neither of those approvals imposed a condition of development which required the contribution of land, the date of valuation shall be the day before the date on which the development's first building permit that prompted the credit request was approved by the Division of Building Safety.

(3)

For projects in conventional zoning districts and subject to the subdivision regulations, Orange County Code, chapter 34, then:

a.

Provided the preliminary subdivision plan imposed a condition of development requiring the contribution of land, the date of valuation shall be the day before the date of the rezoning of the property to its current zoning.

b.

Provided the project is platted and the contribution of land was not required as a condition of development, the date of valuation shall be the day before the date on which the development's first building permit that prompted the credit request was approved by the Division of Building Safety.

(4)

For projects in conventional zoning districts which are subject to the Orange County Site Development Ordinance (sometimes referred to as the commercial site plan process), Orange County Code, chapter 30, article VIII, and:

a.

The project has an existing plan or a proposed plan for which approval by the county requires the contribution of land, the date of valuation shall be the day before the date of the rezoning of the property to its current zoning.

b.

The project has an existing plan or proposed plan that does not require the contribution of land, the date of valuation shall be the day before the date on which the development's first building permit that prompted the credit request was approved by the Division of Building Safety.

(5)

In applying subsections (b)(2), (b)(3) and (b)(4) above, on the date of valuation no consideration shall be given to the proposed land use and/or zoning pending under the requested application; in other words, only the actual land use/zoning existing on the date of valuation shall be used for calculating value.

(6)

In all cases where the date of valuation is the day before the date of rezoning to the current zoning for a property, no date of rezoning shall be calculated to be further into the past than January 1, 1986.

(c)

An applicant must apply for credit for an improvement or contribution prior to the issuance of the project's first certificate of occupancy (whether temporary or permanent).

(d)

An applicant is not entitled to use any portion of a credit account granted pursuant to this section to obtain a refund for impact fees previously paid for building permits issued prior to the date of the county's receipt of the credit application, unless the applicant has entered into an agreement with the county that provides otherwise.

(e)

A portion or all of a credit account may be assigned and reassigned under terms and conditions acceptable to the county for use only within the transportation impact fee zone in which the project site is located.

(f)

Any credit issued shall take into account as an offset to the credit an amount equal to the impact fee imposed by section 23-92.

(g)

Previous development permits wherein voluntary transportation impact fees were specified and paid shall be binding as to any building permit already issued on land subject to the development permit. Road improvements required by previous development permits shall not be given a credit, unless they meet the requirements of this section.

(h)

Except in the case of a good faith mistake, if an applicant pays the impact fee when a credit could have been used, the applicant is not entitled to a refund for the impact fees paid. In all cases, the applicant will be allowed to use credits within the impact fee zone in which such credits were established.

(i)

If an applicant disagrees with a written opinion issued by the county staff pursuant to this section, the applicant may submit a written appeal to the Impact Fee Committee pursuant to Administrative Regulation Nos. 4.01 and 4.02, as may be amended from time to time.

(j)

The provisions of this section 23-95 shall be implemented and administered in accordance with the procedures set forth in Orange County Administrative Regulation No. 4.03, as it may be amended from time to time.

(Ord. No. 2012-22 , § 2, 11-13-12; Ord. No. 2013-05 , §§ 1, 2, 2-12-13)