DOE; Impact Fees; Collection
Authorizes the department of education to assess and collect impact fees by intergovernmental agreement with a county, as fair share contributions of developers for the construction of state public school facilities.
HOUSE OF REPRESENTATIVES
TWENTY-SECOND LEGISLATURE, 2004
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO IMPACT FEES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. This Act creates a new state educational facilities impact fee trust fund account for the department of education to deposit and expend impact fees collected for state school construction projects. This Act also amends the authorization for the counties to assess and collect impact fees and for the land use commission to impose conditions on boundary amendment petitions, by providing reference to fair share contributions to the department of education.
The purpose of this Act is to authorize the department of education to assess and collect impact fees by intergovernmental agreement with a county, as fair share contributions of developers for the construction of state public school facilities.
SECTION 2. Chapter 36, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§36- State educational facilities impact fee trust fund account. There is created in the treasury of the State a state educational facilities impact fee trust fund account, into which shall be deposited impact fees assessed, imposed, levied and collected from developments for state educational facilities pursuant to section 302A- . Expenditures of impact fees from the trust fund account shall be used solely to plan, design, acquire lands for, and construct the specific state educational facilities identified in a needs assessment study prepared by the department of education pursuant to section 302A- . Upon the application of a developer or a developer’s successor in title, the department of education shall refund any impact fees transferred to the state educational facilities impact fee trust fund account which have not been expended or encumbered pursuant to section 302A- within ten years of the date of transfer. Appropriations or authorizations from the trust fund account may be transferred to the comptroller and shall be subject to sections 37-31 and 37-33 to 37-40."
SECTION 3. Chapter 302A, Hawaii Revised Statutes, is amended by adding a new section to part VI to be appropriately designated and to read as follows:
"§302A- Fair share contributions. The department may assess, impose, levy, and collect impact fees for the fair share contribution by any development, or portion thereof, involving the planning, design, acquisition of land for, and construction of state educational facilities, provided that the board of education shall adopt appropriate rules to effectuate the imposition and collection of the fees. Any rules adopted pursuant to this section shall in all relevant respects comport with the requirements of chapter 46, part VIII, relating to the calculation, collection, expenditure, time of assessment and collection, and refund of impact fees by the counties. Impact fees calculated and assessed by the department pursuant to this section shall be levied and collected pursuant to section 46-144 by intergovernmental agreement with the county in which the fees are imposed, and shall be deposited in the state educational facilities impact fee trust fund account for expenditure in accordance with section 36- ."
SECTION 4. Section 46-141, Hawaii Revised Statutes, is amended as follows:
1. By adding a new definition of "department" to read: "Department" means the department of education, when it prepares and submits a needs assessment study and an intergovernmental agreement for approval by a county council for collection of impact fees as authorized by this part and section 302A- ."
2. By amending the definition of "impact fees" to read:
""Impact fees" means the charges imposed upon a developer by a county or board or by the department to fund all or a portion of the public facility capital improvement costs required by the development from which it is collected, or to recoup the cost of existing public facility capital improvements made in anticipation of the needs of a development."
3. By amending the definition of "needs assessment study" to read:
""Needs assessment study" means a study required under an impact fee ordinance or departmental rule that determines the need for a public facility, the cost of development, and the level of service standards, and that projects future public facility capital improvement needs; provided that the study shall take into consideration and incorporate any relevant county general plan, development plan, or community plan."
4. By amending the definition of "offset" to read:
""Offset" means a reduction in impact fees designed to fairly reflect the value of non-site related public facility capital improvements provided by a developer pursuant to county land use provisions[
.] or departmental rule."
5. By amending the definition of "proportionate share" to read:
""Proportionate share" means the portion of total public facility capital improvement costs that is reasonably attributable to a development, less:
(1) Any credits for past or future payments, adjusted to present value, for public facility capital improvement costs made or reasonably anticipated to be contributed by a developer in the form of user fees, debt service payments, taxes, or other payments; or
(2) Offsets for non-site related public facility capital improvements provided by a developer pursuant to county land use provisions[
.] or departmental rule."
SECTION 5. Section 46-142, Hawaii Revised Statutes, is amended to read as follows:
"§46-142 Authority to impose impact fees; enactment of ordinances required. (a) Impact fees may be assessed, imposed, levied, and collected by:
(1) Any county for any development, or portion thereof, not involving water supply or service; [
(2) Any board for any development, or portion thereof, involving water supply or service; or
(3) The department for any development, or portion thereof, involving departmental educational facilities;
provided that the county enacts appropriate impact fee ordinances or the board or the department adopts rules to effectuate the imposition and collection of the fees within their respective jurisdictions.
(b) Except for any ordinance governing impact fees enacted before July 1, 1993, impact fees may be imposed only for those types of public facility capital improvements specifically identified in a county comprehensive plan or a facility needs assessment study[
.] prepared for a county, or by intergovernmental agreement with the department. The plan or study shall specify the service standards for each type of facility subject to an impact fee; provided that the standards shall apply equally to existing and new public facilities."
SECTION 6. Section 46-143, Hawaii Revised Statutes, is amended to read as follows:
"§46-143 Impact fee calculation. (a) A county council or board or the department, when considering the enactment or adoption of impact fees, shall first approve a needs assessment study that shall identify the kinds of public facilities for which the fees shall be imposed. The study shall be prepared by an engineer, architect, or other qualified professional and shall identify service standard levels, project public facility capital improvement needs, and differentiate between existing and future needs.
(b) The data sources and methodology upon which needs assessments and impact fees are based shall be set forth in the needs assessment study.
(c) The pro rata amount of each impact fee shall be based upon the development and actual capital cost of public facility expansion, or a reasonable estimate thereof, to be incurred by the county or board[
.] or the department.
(d) An impact fee shall be substantially related to the needs arising from the development and shall not exceed a proportionate share of the costs incurred or to be incurred by the county or the board or the department in accommodating the development. The following seven factors shall be considered in determining a proportionate share of public facility capital improvement costs:
(1) The level of public facility capital improvements required to appropriately serve a development, based on a needs assessment study that identifies:
(A) Deficiencies in existing public facilities;
(B) The means, other than impact fees, by which existing deficiencies will be eliminated within a reasonable period of time; and
(C) Additional demands anticipated to be placed on specified public facilities by a development;
(2) The availability of other funding for public facility capital improvements, including but not limited to user charges, taxes, bonds, intergovernmental transfers, and special taxation or assessments;
(3) The cost of existing public facility capital improvements;
(4) The methods by which existing public facility capital improvements were financed;
(5) The extent to which a developer required to pay impact fees has contributed in the previous five years to the cost of existing public facility capital improvements and received no reasonable benefit therefrom, and any credits that may be due to a development because of such contributions;
(6) The extent to which a developer required to pay impact fees over the next twenty years may reasonably be anticipated to contribute to the cost of existing public facility capital improvements through user fees, debt service payments, or other payments, and any credits that may accrue to a development because of future payments; and
(7) The extent to which a developer is required to pay impact fees as a condition precedent to the development of non-site related public facility capital improvements, and any offsets payable to a developer because of this provision.
(e) The impact fee ordinance shall contain a provision setting forth the process by which a developer may contest the amount of the impact fee assessed."
SECTION 7. Section 46-144, Hawaii Revised Statutes, is amended to read as follows:
"§46-144 Collection and expenditure of impact fees. Collection and expenditure of impact fees assessed, imposed, levied, and collected for development shall be reasonably related to the benefits accruing to the development. To determine whether the fees are reasonably related, the impact fee ordinance or [
board] the board or the department rule shall provide that:
(1) Upon collection, the fees shall be deposited in a special trust fund or interest-bearing account[
.], or transferred to the department as provided in this section. The portion that constitutes recoupment may be transferred to any appropriate fund;
(2) Collection and expenditure shall be localized to provide a reasonable benefit to the development. A county or board or the department shall establish geographically limited benefit zones for this purpose; provided that zones shall not be required if a reasonable benefit can be otherwise derived. Benefit zones shall be appropriate to the particular public facility and the county or board or the department. A county or board or the department shall explain in writing and disclose at a public hearing reasons for establishing or not establishing benefit zones;
(3) Except for recoupment, impact fees shall not be collected from a developer until approval of a needs assessment study that sets out planned expenditures bearing a substantial relationship to the needs or anticipated needs created by the development;
(4) Impact fees shall be expended for public facilities of the type for which they are collected and of reasonable benefit to the development; [
(5) Within six years of the date of collection[
,] or transfer, as the case may be, the impact fees shall be expended or encumbered for the construction of public facility capital improvements that are consistent with the needs assessment study and of reasonable benefit to the development. Impact fees transferred to the state educational facilities impact fee trust fund account shall be expended or encumbered for state educational facility capital improvements within ten years of the date of transfer; and
(6) A county may transfer impact fees for expenditure by the department pursuant to an intergovernmental agreement approved by the county upon request of the department pursuant to this part."
SECTION 8. Section 46-145, Hawaii Revised Statutes, is amended to read as follows:
"§46-145 Refund of impact fees. (a) If impact fees are not expended or encumbered within the period established in section 46-144, the county or the board or the department, as the case may be, shall refund to the developer or the developer's successor in title the amount of fees paid and any accrued interest. Application for a refund shall be submitted to the county or the board or the department, as the case may be, within one year of the date on which the right to claim arises. Any unclaimed refund shall be retained in the special trust fund or interest bearing account and be expended as provided in section 46-144.
(b) If a county or board or the department seeks to terminate impact fee requirements, all unexpended or unencumbered funds shall be refunded as provided in subsection (a) and the county or board or the department shall give public notice of termination and availability of refunds at least two times. All funds available for refund shall be retained for a period of one year at the end of which any remaining funds may be transferred to:
(1) The county's general fund and expended for any public purpose not involving water supply or service as determined by the county council; [
(2) The board's general fund and expended for any public purpose involving water supply or service as determined by the board[
(3) The state educational facilities impact fee trust fund account and expended for any public purpose involving state educational facilities.
(c) Recoupment shall be exempt from subsections (a) and (b)."
SECTION 9. Section 46-148, Hawaii Revised Statutes, is amended to read as follows:
§46-148[ ]] Transitions. Any county, the land use commission pursuant to section 205-4(g), or the department pursuant to section 302A- , requiring impact fees or imposing development exactions, in order to fund public facilities, shall incorporate fee requirements into [ their] its broader system of development and land use regulations in such a manner that developments, either collectively or individually, are not required to pay or otherwise contribute more than a proportionate share of public facility capital improvements. Development contributions or payments made under a development agreement, pursuant to section 46-123, are exempted from this requirement."
SECTION 10. Section 205-4, Hawaii Revised Statutes, is amended by amending subsection (g) to read as follows:
"(g) Within a period of not more than three hundred sixty-five days after the proper filing of a petition, unless otherwise ordered by a court, or unless a time extension, which shall not exceed ninety days, is established by a two-thirds vote of the members of the commission, the commission, by filing findings of fact and conclusions of law, shall act to approve the petition, deny the petition, or to modify the petition by imposing conditions pursuant to section 46-48 or section 302A- necessary to uphold the intent and spirit of this chapter or the policies and criteria established pursuant to section 205-7 or to assure substantial compliance with representations made by the petitioner in seeking a boundary change. The commission may provide by condition that absent substantial commencement of use of the land in accordance with such representations, the commission shall issue and serve upon the party bound by the condition an order to show cause why the property should not revert to its former land use classification or be changed to a more appropriate classification. Such conditions, if any, shall run with the land and be recorded in the bureau of conveyances."
SECTION 11. Section 302A-127, Hawaii Revised Statutes, is amended to read as follows:
"The board may adopt rules under chapter 91 to implement sections 302A-02, 302A-124 to 302A-126, 302A- , and 302A-1507."
SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 13. This Act shall take effect upon its approval.