HomeMy WebLinkAboutHRS_Chapter 46_Impact Fee
[PART VIII.] IMPACT FEES
§46-141 Definitions.
As used in this part, unless the
context requires otherwise:
"Board" means the board of water supply or water board of
any county.
"Capital improvements" means the acquisition of real
property, improvements to expand capacity and
serviceability of existing public facilities, and the
development of new public facilities.
"Comprehensive plan" means a coordinated land use plan for
the development of public facilities within the
jurisdiction of a county based on existing and anticipated
needs, showing existing and proposed developments, stating
principles to which future development should conform, such
as the county's general plans, development plans, or
community plans, and the manner in which development should
be controlled. In the case of the city and county of
Honolulu, public facility maps shall be equivalent to the
comprehensive plan required in this part.
"County" or "counties" means the city and county of
Honolulu, the county of Hawaii, the county of Kauai, and
the county of Maui.
"Credits" means the present value of past or future
payments or contributions, including, but not limited to,
the dedication of land or construction of a public facility
made by a developer toward the cost of existing or future
public facility capital improvements, except for
contributions or payments made under a development
agreement pursuant to section 46-123.
"Developer" means a person, corporation, organization,
partnership, association, or other legal entity
constructing, erecting, enlarging, altering, or engaging in
any development activity.
"Development" means any artificial change to real property
that requires a grading or building permit as appropriate,
including, but not limited to, construction, expansion,
enlargement, alteration, or erection of buildings or
structures.
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Chapter 46, Hawaii Revised Statutes
"Discount rate" means the interest rate, expressed in terms
of an annual percentage, that is used to adjust past or
future financial or monetary payments to present value.
"Impact fees" means the charges imposed upon a developer by
a county or board 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.
"Needs assessment study" means a study required under an
impact fee ordinance 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.
"Non-site related improvements" means land dedications or
the provision of public facility capital improvements that
are not for the exclusive use or benefit of a development
and are not site-related improvements.
"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.
"Present value" means the value of past or future payments
adjusted to a base period by a discount rate.
"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
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Chapter 46, Hawaii Revised Statutes
by a developer pursuant to county land
use provisions.
"Public facility capital improvement costs" means costs of
land acquisition, construction, planning and engineering,
administration, and legal and financial consulting fees
associated with construction, expansion, or improvement of
a public facility. Public facility capital improvement
costs do not include expenditures for required affordable
housing, routine and periodic maintenance, personnel,
training, or other operating costs.
"Reasonable benefit" means a benefit received by a
development from a public facility capital improvement that
is greater than the benefit afforded the general public in
the jurisdiction imposing the impact fees. Incidental
benefit to other developments shall not negate a
"reasonable" benefit to a development.
"Recoupment" means the proportionate share of the public
facility capital improvement costs of excess capacity in
existing capital facilities where excess capacity has been
provided in anticipation of the needs of a development.
"Site-related improvements" means land dedications or the
provision of public facility capital improvements for the
exclusive use or benefit of a development or for the
provision of safe and adequate public facilities related to
a particular development. [L 1992, c 282, pt of §2; am L
2001, c 235, §1]
§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; or
(2) Any board for any development, or
portion thereof, involving water supply
or service;
provided that the county enacts appropriate impact fee
ordinances or the board adopts rules to effectuate the
imposition and collection of the fees within their
respective jurisdictions.
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Chapter 46, Hawaii Revised Statutes
(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. 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. [L
1992, c 282, pt of §2; am L 1996, c 175, §1; am L 2001, c
235, §2]
§46-143 Impact fee calculation.
(a) A county council or
board 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.
[2004 amendment retroactive to October 1, 2002. L 2004,
(c)
c 155, §6.]
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.
[2004 amendment retroactive to October 1, 2002. L 2004,
(d)
c 155, §6.]
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 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:
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Chapter 46, Hawaii Revised Statutes
(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
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Chapter 46, Hawaii Revised Statutes
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. [L 1992, c 282, pt
of §2; am L 2001, c 235, §3; am L 2001, c 235, §3; am L
2004, c 155, §3]
§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 rule shall
provide that:
(1) Upon collection, the fees shall be
deposited in a special trust fund or
interest-bearing account. 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 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. A
county or board shall explain in
writing and disclose at a public
hearing reasons for establishing or not
establishing benefit zones;
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Chapter 46, Hawaii Revised Statutes
(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; and
(5) Within six years of the date of
collection, 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.
[L 1992, c 282, pt of §2; am L 2001, c
235, §4]
§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 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 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 seeks to terminate impact fee
requirements, all unexpended or unencumbered funds shall be
refunded as provided in subsection (a) and the county or
board 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
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Chapter 46, Hawaii Revised Statutes
involving water supply or service as
determined by the county council; or
(2) The board's general fund and
expended for any public purpose
involving water supply or service as
determined by the board.
(c) Recoupment shall be exempt from subsections (a) and
(b). [L 1992, c 282, pt of §2; am L 1998, c 2, §14; am L
2001, c 235, §5]
[§46-146] Time of assessment and collection of impact fees.
Assessment of impact fees shall be a condition precedent to
the issuance of a grading or building permit and shall be
collected in full before or upon issuance of the permit. [L
1992, c 282, pt of §2]
[§46-147]Effect on existing ordinances.
This part shall
not invalidate any impact fee ordinance existing on
June 19, 1992. [L 1992, c 282, pt of §2]
[§46-148] Transitions.
Any county requiring impact fees or
imposing development exactions, in order to fund public
facilities, shall incorporate fee requirements into their
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. [L
1992, c 282, pt of §2]
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