This Chapter 70 of Title 10 of the Oakland Municipal Code maybe referred to as the “Southeast Oakland Area Traffic Impact Fee” as is adopted pursuant to the authority of Article XI, Section 7 of the California Constitution, Government Code sections 66000 et seq. (hereinafter “Mitigation Fee Act”), and in accordance with findings set forth in the ordinance codified herein (and all amendments thereto). (Ord. 12786 § 1 (part), 2007)

Pursuant to this chapter, the city has established fees that will constitute a funding mechanism for traffic improvements required to mitigate cumulative traffic impacts in the Southeast Oakland area, as documented in the Leona Quarry Environmental Impact Report. Development of a TIF and TIP is required as part of the Conditions of Approval (see Condition #26) for the Leona Quarry project (Resolution No. 78358), and is also addressed in the Leona Quarry Settlement Agreement executed in December 2003 (Action No. RG-03077607). (Ord. 12786 § 1 (part), 2007)

The Traffic Impact Program (TIP) area is located in Southeast Oakland. The area generally extends along both sides of the 1-580 freeway corridor between the Seminary Avenue and the 98th Avenue interchanges. A more detailed map of the geographic area included in the Southeast Oakland TIF and TIP Fee Study is included as Appendix B, and made a part of the resolution establishing the TIP. (Ord. 12786 § 1 (part), 2007)

Fees imposed by the city pursuant to this chapter shall be used solely for the purpose of constructing or providing specific traffic and transportation related projects and/or facilities, as described in the implementing resolution(s). The fees shall be collected by the city and deposited in a separate and distinct “fee fund” in a manner to avoid commingling of the fees with other revenues or funds of the city. Such fees are subject to accounting requirements of the Mitigation Fee Act. Any interest income earned on the fund shall also be deposited therein and shall only be expended for the purpose for which the fee was originally collected. (Ord. 12786 § 1 (part), 2007)

As used in this chapter, all words, phrases, and terms shall be interpreted in accordance with the definitions set forth in the Mitigation Fee Act, unless otherwise defined herein.
“Affordable housing” means a housing unit that is provided at an affordable rent or sold at an affordable sales price to persons and families of low or moderate income.
“Affordable sales price” means a sales price that would permit persons and families of low or moderate income to purchase the housing unit at an affordable housing cost. “Affordable housing cost” shall be as defined in California Health and Safety Code Section 50052.5. “Housing cost” shall include those items set forth in 25 California Code of Regulations Section 6920. “Affordable rent” shall be as defined in California Health and Safety Code Section 50053. “Persons and families of low or moderate income” shall be as defined in California Health and Safety Code Section 50093.
“Applicant” means any person, developer, or other legal entity, which applies to the city for approval of a development project.
“Change of use” means any proposed use that results in an increase in the number of peak hour trips generated by the replacement land use.
“Development project” means any project undertaken for the purpose of development, as defined in the Mitigation Fee Act, and shall specifically include any building permit, or any other permit or city approval required for a change of use. Development project shall specifically include any change of use or remodel.
“Director” means the Development Director who oversees the planning, zoning, and building services functions of the City of Oakland or any person designated by the City Administrator to perform the functions of the “Director” specified in this chapter.
“Fee” means, for the purpose of this chapter, a traffic impact fee imposed by the city in accordance with this chapter.
“Fee fund” means each of the separate and distinct funds into which fees for each public facility category are deposited.
“Future growth” means the total amount of potential new development in the city permitted under the general plan. Future growth can be expressed in terms of either gross square footage for commercial, office, and industrial development, and in terms of the number of dwelling units for residential development.
“Implementing resolution” means a resolution of the City Council of the City of Oakland, including any technical report incorporated by reference.
“Inflation index” means a recognized standard index (such as the Consumer Price Index or Engineering News Record Construction Cost Index), as determined by the Director to be a reasonable method of calculating the impact of inflation upon cost estimates set forth in implementing resolutions.
“Mitigation Fee Act” means California Government Code Section 66000 et seq.
“Peak hour trip” is as defined in Trip Generation, 7th Edition by the Institute of Transportation Engineers (ITE).
“Traffic or transportation facility” means any traffic or transportation related public improvements, public services, or community amenities, as defined by the Mitigation Fee Act, including, but not limited to: traffic signals, street improvements, bicycle amenities and any similar public improvement for which the city has adopted an implementing resolution pursuant to this chapter.
“Remodel” means any proposed improvement or reconstruction of an existing structure (or a previously existing structure) on a parcel which: (a) requires a building permit or other permit or city approval (such as a conditional use permit or a zoning administrator permit), and (b) results in an increase in the number of peak hour trips generated from the last legal use of the existing structure.
“Vested development rights” means an applicant’s right to proceed with development of a development project in substantial compliance with the local ordinances, policies, and standards in effect at the time that the rights vests, as the term is defined in the vesting tentative map statutes (Government Code sections 66498.1 66498.9), development agreement statutes (Government Code sections 65864— 65869.5), and other state laws. (Ord. 12786 § 1 (part), 2007)

A. Each application for review and approval by the city for a development project within the program boundary area as defined in Section 10.70.130 of this chapter including new, in-fill, change of use, and remodeling, shall pay traffic impact fees to the city, in accordance with the amounts set forth in the implementing resolution for said fee, unless the applicant establishes, to the satisfaction of the Development Director, entitlements to a fee credit pursuant to Section 10.70.300, a fee adjustment pursuant to Section 10.70.400, or a fee exemption or exception pursuant to Section 10.70.250.
B. The obligation to pay traffic impact fees pursuant to this chapter shall not replace an applicant’s obligation to mitigate development project impacts in accordance with other requirements of state or local law. The obligation to pay the traffic impact fee will not replace the applicant’s obligation for other impact related fees and programs. (Ord. 12786 § 1 (part), 2007)

The fee for each unit of development within a development project shall be imposed at the time of planning and zoning approvals and will paid in full prior to the issuance of the certificate of occupancy. Failure by the city to collect payment at time of issuance of certificate of occupancy does not waive the city’s right to collect this fee.
The full amount of the fee shall be paid at the times set forth in this section:
A. Residential Development.
1. Except as provided in subsection (A)(2) of this section, the fee with respect to residential development shall be paid in one of the following ways:
For residential development consisting of only one dwelling unit, before the final inspection, or the date the certificate of occupancy is issued, whichever occurs first; or
For residential development consisting of more than one dwelling unit, at the discretion of the Director: (i) on a pro rata basis for each dwelling unit within the residential development before the dwelling unit receives its final inspection or certificate of occupancy, whichever occurs first, or (ii) on a pro rata basis when a specified percentage of the dwelling units within the residential development have received their final inspections or certificates of occupancy, whichever occurs first, or (iii) on a lump sum basis when the first dwelling unit within the residential development receives its final inspection or certificate of occupancy, whichever occurs first.
If the fee is not fully paid before issuance of a building permit, under this subsection (A)(1), the property owner shall enter into a written agreement with the city pursuant to subsection (C) of this section.
2. Notwithstanding the provisions of subsection (A)(1) of this section, the director may require the payment of the fees imposed under this chapter before a building permit is issued, where the director determines that such fees will be collected for the purpose of defraying the actual or estimated cost of constructing traffic improvements for which an account has been established and funds appropriated and for which the city has adopted a proposed construction schedule or plan prior to any final inspection or issuance of a certificate of occupancy for a dwelling unit within the residential development; or the fees are to reimburse the city for expenditures previously made for the construction of traffic improvements.
B. Nonresidential Development. The applicant shall pay the traffic impact fee at one of the following times, at the applicant’s option:
1. Before the issuance of the building permit;
2. Before the first certificate of occupancy is issued, or consistent with the requirements of subsection (c) below.
C. Written Agreement. If an owner or applicant chooses to pay the fee after the time a building permit is issued, then before the building permit is issued, he or she shall enter into a written agreement with the city, in a form acceptable to the City Attorney, and record the agreement with the Alameda County Recorder. (Ord. 12786 § 1 (part), 2007)

A. The fee to be paid for each unit of development within a development project within the traffic impact program area shall be the amount of the fee in effect, pursuant to implementing resolution, at the time that full payment is made to the city.
B. The fee to be paid for a remodel action shall be the amount of the fee required pursuant to subsection (A) of this section for that portion of the remodel which generates impacts greater than the last legal use of the existing structure.
C. In the event that a previous partial fee payment is made for any unit of development, the full fee to be paid for that unit shall be the amount of the fee in effect, pursuant to implementing resolution, at the time that full payment is made to the city, less the amount of the previous partial payment.
D. The applicant shall have the burden of proving the amount of any fee previously paid, the date on which payment was made, and the unit of development for which payment was made.
E. It is the intent of the city that the fees required by this chapter shall be supplementary to the fees, dedications or conditions imposed upon development pursuant to the provisions of the Subdivision Map Act, California Environmental Quality Act, and other state laws and city ordinances or policies which may authorize the imposition of fees, dedications or conditions. (Ord. 12786 § 1 (part), 2007)

The city reserves the right to update and adjust the TIP fee from time to time, in accordance with the Mitigation Fee Act. The fee in effect at the time any applicant has obtained a vested development right shall be subject to adjustment by the city as incorporated in updated implementing resolutions in effect at the time that full payment of the fee is made, based upon any or all of the following criteria:
A. Adjustments in the amount of the estimated construction costs of providing the specified public facilities based upon adjustments in accordance with the inflation index.
B. Adjustments to replace estimated costs with actual costs (including carrying costs) of providing the specified traffic and/or transportation facilities.
C. Adjustments to reflect more accurate cost estimates of providing the specified traffic and transpiration facilities based upon more detailed analysis or design of the previously identified specified public facilities. (Ord. 12786 § 1 (part), 2007)

A. Affordable housing units are exempt from the TIP and TIF. Restrictions on household incomes, rents and sales prices shall be in the form of a regulatory agreement, affordability agreement, resale controls, declaration of covenants, or similar binding instrument executed by the city and the applicant. Such restrictions shall be recorded against the affordable housing units as covenants running with land, senior in priority to any private liens or encumbrances, and shall be enforceable by the city against the project applicant or the applicant’s successors-in- interest to the units for the full affordability term. In the case of rental units, the restrictions shall have a term of not less than fifty-five (55) years from the date of initial occupancy of the unit. In the case of ownership units, the restrictions shall have a term of not less than forty-five (45) years from the date of initial occupancy of the unit.
B. Residential development projects are exempt from TIP and TIF impact fees for any remodel, as long as it does not result in a change of use or does not increase the number of housing units.
C. A reconstruction of a razed structure shall receive a fee credit only if the applicant submits documentation to the satisfaction of the Development Director establishing that the razed structure was in existence in accordance with the timing requirements of this subsection. If a development project receives a credit pursuant to this subsection, the amount of the fee to be paid shall be: (i) the amount of the fee required pursuant to subsection 10.70.250(A) for the entire new structure, (ii) minus the amount of the fee which would have been required pursuant to subsection 10.70.250(A) for the last legal use of the razed structure. In order to be entitled to a credit for the traffic impact fee, the razed structure is required to have been in existence on or after the date this ordinance is in effect.
D. An applicant may request a refund of a fee previously paid in accordance with this chapter only if the applicant provides written documentation to the satisfaction of the Development Director that: (1) the building permit (including any permit or city approval on which the fee was imposed) is cancelled or voided, and (2) work has not progressed on the building permit which would allow commencement of a new use or change of use, and (3) the city has not already committed the fees to the construction of traffic or transportation facilities. Any refund made pursuant to this subsection may, in the discretion of the Development Director, include a deduction to cover the city’s administrative costs of processing the refund. (Ord. 12786 § 1 (part), 2007)

An applicant may be eligible for a credit against TIF otherwise owed, in return for providing a traffic or transportation facility to the city, only if the applicant submits a written application to the Development Director which establishes compliance with all of the following requirements to the satisfaction of the Development Director:
A. Describe the specified traffic or transportation facility (or portion thereof) proposed to be provided by the applicant, with a cross-reference to the description of the specified traffic or transportation facility in the relevant implementing resolution.
B. Identify the estimated cost of providing the specified traffic or transportation facilities (including construction, design, and/or land acquisition, as set forth in the implementing resolution in effect at time application to the city) for which the applicant is requesting credit.
C. Describe the development project or projects to which the fee credit is requested to apply. The description shall be limited to all or a portion of the development project for which specified public facilities are a condition of approval.
D. Document that either: (1) the applicant is required, as a condition of approval for the development project, to construct the specified public facilities; or (2) the applicant requests to build one or more specified traffic or transportation facilities which benefit the development project, and the Development Director determines in writing prior to the commencement of construction that it is in the city’s best interests for the specified public facilities to be built by the applicant.
E. The applicant must enter into a subdivision improvement agreement or other written agreement with the city, in a form acceptable to the City Attorney, before beginning construction of the improvement. (Ord. 12786 § 1 (part), 2007)

The application for credit shall be submitted by the applicant to the Development Director in accordance with the following timing requirements: (a) to the extent that the applicant requests credit for design or construction, the application shall be submitted concurrently with the submittal of improvement plans; (b) to the extent that the applicant requests credit for land dedication, the application shall be submitted prior to the recordation of the final map or parcel map for the development project. The applicant may submit a late application only if the applicant establishes, to the satisfaction of the Director, that, in light of new or changed circumstances, it is in the city’s best interests to allow the late application. (Ord. 12786 § 1 (part), 2007)

In the event that the Director determines that the applicant has submitted a timely application in compliance with Section 10.70.320, and it is in the city’s best interest to allow the applicant to provide the proposed specified traffic or transportation facility, the applicant may be entitled to credit against fees otherwise owed in accordance with this chapter, provided that the applicant enters into an agreement with the city which includes the following essential terms:
A. The design of the specified traffic or transportation facility is approved by the city.
B. The applicant agrees to provide the specified public facilities in return for the credit to be allocated in accordance with the terms of the agreement and this chapter. The applicant provides in writing a document indicating the estimate time to design and construct the relevant traffic or transportation facility, along with an estimated date of completion.
C. The amount of credit available to the applicant shall not exceed the lesser of: (i) the applicant’s actual cost of providing the specified public facility, to be evidenced by the submittal of written documentation to the satisfaction of the Director, and (ii) the estimated cost of providing the specified public facility, as identified in the implementing resolution.
D. The applicant provides improvement security in a form and amount acceptable to the city.
E. The applicant identifies the development projects to which the credit will be applied. (Ord. 12786 § 1 (part), 2007)

To the extent that the applicant has a balance of credit available, the applicant may submit a written request for reimbursement to the Development Director. The applicant shall be entitled to potential reimbursement from the city only if the applicant submits a written request to the Development Director which establishes the following:
A. The request shall be made no later than one hundred and eighty (180) days after the later to occur of: (i) issuance of the last certificate of occupancy within the development project for which the application for credit was made, or (ii) the date of the city’s acceptance of the specified traffic or transportation facilities as complete.
B. The request shall identify the specific dollar amount of the credit balance for which the applicant requests reimbursement, along with documentation in support thereof. This documentation shall include a calculation of the total credit available (pursuant to Section 10.70.330) less amount of credit previously allocated to offset fees pursuant to section.
C. The request must include a designation of the name and address of the legal entity to which reimbursement payments are to be made. (Ord. 12786 § 1 (part), 2007)

A. In the event the Development Director determines that the applicant has properly submitted a request for reimbursement pursuant to Section 10.70.340, the Development Director shall prepare a written determination which will identify the dollar amount of the potential reimbursement. The dollar amount of the reimbursement shall equal the amount specified in the applicant’s request (not to exceed the actual credit available to the applicant, less the total of all credit allocations to offset fees pursuant to Section 10.70.330, as determined by the Director).
B. The city shall make reimbursement payments to the applicant. The right to receive reimbursement payments, if any, shall not run with the land.
C. The city shall make reimbursement payments pursuant to a schedule to be established by the Director, and consistent with the approved capital improvement program. The city shall make no reimbursements to any applicant in excess of the amount of fees deposited in the relevant reimbursement account.
D. No reimbursement payment shall be made to an applicant until after the completion of construction by the applicant, and acceptance of improvements by the city. (Ord. 12786 § 1 (part), 2007)

A. Each applicant is hereby notified that, in order to protest the imposition of a traffic impact fee required by this chapter, the protest must be filed in accordance with the requirements of this chapter and the Mitigation Fee Act. Failure of any person to comply with the protest requirements of this chapter or the Mitigation Fee Act shall bar that person from any action or proceeding or any defense of invalidity or unreasonableness of the imposition.
B. On or before the date on which payment of the fee is due, the applicant shall pay the full amount required by the city and serve a written notice to the Director with all of the following information: (1) a statement that the required payment is tendered, or will be tendered when due, under protest; and (2) a statement informing the city of the factual elements of the dispute and the legal theory forming the basis for the protest.
C. The applicant shall bear the burden of proving, to the satisfaction of the Director, entitlement to a fee adjustment. The evidence (information and documentation) to be submitted by the applicant in support of the protest shall include, but not be limited to, an identification of the amount of the fee which the applicant alleges should be imposed upon the development project, and all factual and legal bases for the allegation. The applicant shall identify each portion of this Impact Fee Ordinance and any implementing resolution which the applicant claims supports the allegation. The applicant shall identify each portion of this Impact Fee Ordinance and each portion of any implementing resolution (in particular the technical reports incorporated therein) which the applicant claims fails to support the city’s imposition of the fee upon the development project. At the request of the Director, the applicant shall provide additional information or documentation in substantiation of the protest. (Ord. 12786 § 1 (part), 2007)

No more than thirty (30) days after receipt of all requested materials identified in subsection 10.70.410 (C), the Director shall investigate the factual and legal adequacy of the applicant’s protest to render a decision and issue a written determination regarding the protest. During the review process, the Director shall consider the applicant’s protest, relevant evidence assembled as a result of the protest. The Director’s determination shall support the fee imposed upon the development project unless the applicant establishes, to the satisfaction of the Director, entitlement to an adjustment to the fee.

Any applicant who desires to appeal a determination issued by the Director pursuant to Section 10.70.420 shall submit a written appeal to the Director and the City Administrator. A complete written appeal shall include a complete description of the factual elements of the dispute and the legal theory forming the basis for the appeal of the Director’s determination. An appeal received by the City Administrator more than ten calendar days after the Director’s determination shall be rejected as late. No later than thirty (30) days after receipt of a complete and timely appeal, the City Administrator shall render a decision. The City Administrator’s decision is final and conclusive. (Ord. 12786 § 1 (part), 2007)

The applicant shall pay all city costs related to any protest or appeal pursuant to this chapter, in accordance with the fee schedule adopted by the city. At the time of the applicant’s protest, and at the time of the applicant’s appeal, the applicant shall pay a deposit in an amount established by the city to cover the estimated reasonable cost of processing the protest and appeal. (Ord. 12786 § 1 (part), 2007)

The City Administrator is hereby authorized to adopt rules and to implement this chapter and to make such interpretations of this chapter as he or she may consider necessary to achieve the purposes of this chapter. (Ord. 12786 § 1 (part), 2007)