§ 74-201. Imposition of impact fees.

(a)

General requirements. All development within the unincorporated areas and within the boundaries of all municipalities in the county shall pay all assessed impact fees unless such impact fees, in whole or in part, have been exempted, waived, or deferred pursuant to this chapter. The impact fee shall be assessed based on a calculation of the impact of the proposed development on the respective public facilities. The amount of the impact fee to be assessed for each type of public facility shall be as specified in sections 74-302 through 74-311 (section 74-302—Special requirements for road impact fee; section 74-303—Special requirements for water impact fee and/or sewer impact fee; section 74-304—Special requirements for parks and recreational facilities impact fee; section 704-305—Special requirements for library facilities impact fee; section 74-306—Special requirements for emergency medical services impact fee; section 74-307—Special requirements for educational facilities impact fee; section 74-308—Special requirements for correctional facilities impact fee; section 74-309—Special requirements for fire facilities impact fee; section 74-310—Special requirements for general government impact fee; and section 74-311—Special requirements for law enforcement impact fee).

(b)

Impact fee rates. The board hereby adopts the impact fee rates incorporated by reference in sections 74-302 through 74-311, inclusive, and as set forth in Schedules 1 through 10, inclusive, appended hereto as Appendix A, which shall be imposed upon all development occurring within the county. These impact fee rates may be changed from time-to-time by board resolutions or by Collier County Ordinances provided, in every instance, the board advertises notice of a scheduled public hearing in a newspaper of general circulation in Collier County with regard to the then proposed impact fee schedule amendments.

(c)

Change of size or use. Impact fees shall be imposed and calculated for net increase, alteration, expansion, or replacement of a use or a building, or part of a building (including dwelling unit), and each accessory or non-accessory building, provided such net increase, alteration, expansion, or replacement of the use, building, or part thereof or therein, by applying this chapter results in: (1) a net increase in the number of dwelling units; (2) a net increase in the size or square footage of a building; (3) a net increase in the size of the use; or (4) intensification of the use so as to constitute an expansion of the same use category or result in a change to a higher impact fee land use category; or (5) otherwise create additional demand or additional impacts on any of the public facilities. The impact fee imposed under the applicable impact fee rate shall be calculated as follows:

(1)

If the impact fee is calculated based on land use and not square footage, such as a golf course, the impact fee imposed shall be the impact fee due under the applicable impact fee rate for the impact fee land use category resulting from the alteration, expansion or replacement minus the impact fee that would be imposed under the applicable impact fee rate for the impact fee land use category immediately prior to the new alteration, expansion or replacement.

(2)

In the event only the square footage of a use or building is increased, the impact fee shall be calculated only for the net increased square footage.

(3)

The impact fee imposed for any accessory buildings shall be that applicable under the impact fee rate for the land use for the primary building unless the accessory building has its own impact fee rate.

(4)

If proposed changes to a lawfully existing building or then permitted use are deemed to create any additional impact on one or more public facilities, then the impact fee that will be due and payable to the county for such proposed changes will be determined by the net increase in demand on those public facilities any lawfully existing building or land use that is expanded, replaced, or changed shall be required to pay impact fees based on the new or net additional demand placed upon one or more public facilities by applying the then applicable impact fee rate schedule. Therefore, impact fees will be assessed only for the net increase in square footage, number of unit(s), intensification of land use, or any other change resulting in increased available capacity. The burden of verifying the previous lawful land use, units and square footage, as applicable, shall be on the applicant. Any proposed changes under this section which would result in lower net impacts upon one or more public facilities are not entitled to a downward adjustment, off-set, or credit against any previously paid impact fees.

(5)

Impact Fee Program for Existing Commercial Redevelopment. Proposed developments which meet the criteria set forth below shall not be assessed additional impact fees related to changes of use within the existing buildings.

a.

Development is proposed within a lawfully existing building which has had a Certificate of Occupancy issued for at least 3 years. Impact fees for the existing building must have been paid the then applicable impact fees at time of construction; and

b.

Proposed development is solely within the existing building and does not include the addition of any new square footage.

c.

Demolition and reconstruction projects are not eligible for this program.

d.

For the purposes of water and wastewater impact fees, projects that require an existing meter to be upsized are not eligible for this program.

(d)

Exemptions. The following development or change in use shall be exempted from paying additional impact fees:

(1)

Alteration, expansion or replacement of a building, structure, dwelling unit, or use provided the respective alteration, expansion or replacement: (1) will not create any additional net increase in the size or square footage of the respective development, including number of dwelling units; (2) will not result in a net increase of the intensity of use(s); or (3) will not otherwise create any additional net demand of the respective public facility.

(2)

New building(s) or addition to a building(s) or an accessory building or structure that will not create additional net demand upon the public facility for which the exemption is sought over and above the then existing development impacts deemed to be created by the then lawful existing building(s), structures or uses.

(3)

Construction or expansion of publicly owned residential housing; however this exemption shall not apply to the applicable impact fees for water and/or sewer public facilities, or for the applicable impact fees for educational public facilities.

(4)

Lots, pads, sites, foundations or spaces for a single mobile home, recreational vehicle, travel trailer, or park model, when the applicable impact fee has been previously paid, or if the then existing development was not subject to the impact fee because the county's original applicable impact fee ordinance had not then become effective.

(5)

An "adults only community" shall be exempt from the educational facilities impact fee only if: (i) evidence of permanent age restrictions, which require all residents of the adults only community to be older than 18 years of age, are recorded in the land records of Collier County and run with the specified geographic area; (ii) an effective planned unit development document restricts the occupation/residency of the subject property to persons older than 18 years of age; or (iii) the type of licensing through the State of Florida restricts the occupation/residency of the subject property to persons older than 18 years of age.

(6)

Development for which the respective impact fee is then expressly prohibited by Florida law, rule or regulation, or by federal law, rule or regulation.

(7)

Exemptions from road impact fees for specified airport leases.

a.

Placement of buildings upon the leasehold by or through the leasing subtenant or tenant within the then existing boundaries of a county-owned airport are eligible for exemptions from road impact fees provided the airport leasing agreement was executed prior to March 13, 2001, and the lease, when executed, expressly provided that the county or the airport authority, not later than 29 years subsequent to the initial effective date of the leasing agreement, at no expense to the county or airport authority, will automatically acquire title to the respective buildings, or if the board or airport authority decides not to acquire title to such buildings, the subtenant (or tenant), at no expense to the county or the airport authority, shall promptly remove such buildings and restore the leased (or subleased) premises to the physical conditions that existed as of the commencement date of the respective leasing agreement. Eligibility for these exemptions shall be vested retroactively to the date of the original execution of the lease.

b.

These exemptions are to be granted by the county manager subject to an application for the requested exemption being submitted to the county manager, which shall include a copy of the associated airport lease and a description of the associated airport leasehold development. Each such request must be submitted to the county manager not later than the date of the application to the county for the associated building permit(s) unless a time extension is granted by the county manager for good cause.

(8)

In the event that a development for which an exemption was previously applied changes use, ownership, or other circumstances occur whereby the previously granted exemption no longer applies, impact fees shall be paid based on the existing land use and impact fee rate schedule in effect at the time of the change which caused the exemption to no longer apply.

(e)

Reserved.

(f)

Fund reimbursement. Every county approved deferral of a water or sewer impact fee requires complete reimbursement and deposit of the entire amount deferred into the applicable water or sewer trust fund(s) within 30 days of the deferral or waiver agreement being signed on behalf of the county, except for deferrals of ten years for multi-family affordable housing rental units. However, deferrals of ten years for multi-family affordable housing rental units must not adversely impact the cash flow or liquidity of the water and/or sewer impact fee trust fund accounts and thereby frustrate or interfere with the then-planned or then-ongoing growth-necessitated capital improvements and additions to such water and/or sewer systems. Such an adverse impact may be determined by the public utilities division administrator whenever either of the two trust fund's individual reserve balances is in jeopardy of approaching (or actually has reached) less than a total of $600,000.00 of unappropriated and unencumbered funds. If the public utilities division administrator determines that the unappropriated and unencumbered funds in either of these accounts is then in jeopardy of approaching a level of less than $600,000.00, then the total number of such multi-family affordable housing rental units that may be approved in any such fiscal year (including the fiscal year when the public utilities division administrator makes such a "funds in jeopardy" determination) for deferrals (i.e., for ten years) shall not exceed 225 units. This unit number limitation will continue so long as a determination of "jeopardy" exists, except that any of the 225 units not approved by an agreement in any fiscal year where funds are in "jeopardy" may be accumulated and rolled-over from one fiscal year to the next fiscal year until such time as the "jeopardy" determination ends. The number of multi-family rental deferrals granted in a fiscal year where funds are in "jeopardy" may exceed 225 units, but only if an alternate funding source for the deferral is secured.

(g)

Immokalee Enterprise Zone Deferral Area.

(1)

Pursuant to the provisions set forth in this subsection the county shall defer the payment of impact fees for all owner-occupied dwelling units within the geographic boundaries of the Immokalee Enterprise Zone, which is United States Census Tracts numbers 112.04, 112.05, 113 and 114 (the Immokalee Census Tract). Such provisions will automatically sunset three years from the effective date of the amendment establishing these provisions unless otherwise officially extended by the Collier County Board of County Commissioners.

(2)

This deferral program will be funded by budgeted and appropriated funds from general revenue, subject to the availability of funding, and from a portion of the tax increment revenue generated by ad valorem property taxes associated to the qualifying development. All re-payments to satisfy liens, as well as any applicable interest accrued due to default from the program, shall be paid back to general revenue and the community redevelopment area trust fund, as applicable to each qualifying development.

(3)

As used in this subsection, (g) of section 74-201, "qualifying development," means an owner-occupied dwelling unit and its associated lot or land. "Sale" includes each and every voluntary and/or involuntary sale of any part of the fee title to any part of the real property that is subject to the respective deferred impact fees (as described in the agreement). "Transfer" includes each and every transfer, voluntary or involuntary (including transfer by court order or order of any administrative agency or administrative body, and including whether the transferee is a government or agency of a government, excepting only the following: Transfer of fee title of the property from one original tenant by the entireties to the other original tenant by the entireties; transfer of any part of the fee title between (or among) the original joint tenants, or between or among the original tenants in common. "Refinancing" includes any extension of the payment term or any increase in the amount financed, of any original mortgage(s) or other financing document that has as security for the payment obligation any fee title to the real property that is subject to the deferred impact fees. "Original" refers to the parties to the relevant document on the effective date of the applicable impact fee deferral agreement. Notwithstanding anything in this subsection (g) of section 74-201, the county manager may waive the triggering of the obligation to pay deferred impact fees due to a sale, a transfer or refinancing if, in the judgment of the county manager, the respective sale, transfer or refinancing is of such a nature as not to justify that the deferred impact fees should become due and payable because of the sale, transfer, or refinancing.

(4)

Any person seeking an impact fee deferral for a proposed owner—Occupied dwelling unit, wholly within the Immokalee Enterprise Zone, shall file an application for deferral with the county manager prior to receiving a certificate of occupancy (CO) for any such proposed Development. The application for deferral must contain the following:

a.

The name and address of the property owner; and

b.

A current and complete legal description of the site upon which the qualifying development is proposed to be located; and

c.

The qualifying development will be owner-occupied and the homestead of the applicant; and

d.

A notarized affidavit affirming that the maximum sale price of the proposed qualifying development will not exceed $254,250.00. Should the maximum home sales price exceed $254,250.00 for the qualifying new construction, the applicant may be subject to the collection provisions provided for in article V, section 74-501, including delinquency fees and interest dating back to the effective date of the deferral agreement; and

e.

Proof of qualifying income level, which is less than or equal to $100,000.00 annual household income from all sources; and

f.

Payment of a non-refundable application filing fee in the amount of $300.00.

(5)

If the proposed qualifying development meets the requirements for a deferral, as listed above, the county manager may enter into an impact fee deferral agreement with the owner.

(6)

The impact fee deferral agreement shall stand in lieu of payment of impact fees pursuant to section 74-202 of this article, which impact fees would otherwise be due and payable as a prerequisite to the issuance of the building permit(s) for that development but for the deferral agreement. The deferral agreement must contain the following provisions:

a.

The name and address of the property owner; and

b.

The correct legal description of the affected property, which is the property that will be subject to lien and be subject to foreclosure; and

c.

That such payment shall be without interest only if the agreement has not been breached by the non-county party thereto at any time in the deferral period, but shall be subject to interest retroactively to the effective date of the agreement if the agreement is breached by the non-county party thereto; and

d.

That the deferred impact fees shall be due and payable, and shall be paid to the county upon the first occurrence of any of the following: when any part of the affected real property is sold, or is transferred, or is refinanced, and in any such event the deferred impact fees shall be paid in full to the county not later then the closing of the sale, or not later than the effective date of the transfer, or before the refinancing becomes final; and

e.

That such impact fees shall automatically become a lien on the affected property (the property described in the legal description noted above), and shall be due and payable (and may be foreclosed upon by the county) if and when there is any breach of the agreement by the non-county party thereto; and

f.

That the qualifying development must remain owner-occupied and homesteaded and any change in the status of the occupation or loss of homestead will constitute a breach in the agreement and impact fees will be considered to be in default and immediately due and payable, including any applicable interest, in accordance with this section and the collection provisions set forth by section 74-501 of this chapter; and

g.

That the recorded agreement shall serve as an obligation to pay the deferred impact fees that runs with the affected property and that such obligation shall terminate upon the county recording in the public records of Collier County a release or full satisfaction of the lien, and that release or satisfaction will be recorded by the county upon payment to the county in full of all of the deferred impact fees; and

h.

That neither the deferred impact fees nor the agreement providing for the deferral of impact fees shall be transferred, assigned, credited, encumbered, or conveyed from the property, and that the deferral of impact fees and the agreement shall run with the land; and

i.

That upon satisfactory completion of all requirements of the agreement by the noncounty party thereto, the county shall record all necessary documentation evidencing satisfactory completion of the agreement, and any such lien shall terminate upon the recording of a release or full satisfaction of lien in the public records of Collier County. Such release shall be recorded upon payment in full of the impact fees; and

j.

The agreement shall be binding upon the property owner's, its successors and assigns; and

k.

That the agreement shall be recorded in the official records of Collier County and the agreement shall not be effective until it is so recorded.

l.

That if the noncounty party is in a non-curable default under the agreement, or if the default is curable and the curable default is not cured in full within 30 days after written notice to do so provided to the owner by the county, the board may bring a civil action to enforce the deferral agreement and that the board shall be entitled to recover all fees and costs, including attorney's fees and expenses incurred by the county in enforcing the agreement, plus interest, at the then maximum statutory rate for final judgments, calculated on a calendar day basis until paid in full. In the event that interest should begin to accrue because the noncounty party breaches the agreement, such interest shall accrue retroactively back to the commencement date of the respective impact fee deferral agreement.

(7)

Prior to the issuance of a certificate of occupancy for a qualifying dwelling unit the applicant must also provide a copy of the executed sales contract to the county manager demonstrating a qualifying sales price. A copy of the closing statement demonstrating a qualifying sales price will be provided to the county manager within ten days of the closing of the sale of each qualifying dwelling unit.

(8)

Applicants entering into any other impact fee deferral programs will not be eligible for deferral of impact fees through the provisions set forth by subsection (g).

(9)

The county's interest in the impact fees will automatically be subordinated to the owner's first mortgage and/or any government funded affordable housing loan such as a SAIL or HOME loan.

(h)

Impact Fee Installment Payment Pilot Program.

(1)

The purpose of this Program is to establish an impact fee installment payment pilot program which is intended to provide the Board of County Commissioners of Collier County, Florida, with the opportunity to study whether the payment changes set forth below result in lower initial costs in housing and greater economic development.

(2)

As an alternative to paying impact fees in full as a prerequisite to the issuance of a certificate of occupancy or certificate of completion for the development, a feepayer may exercise the privilege of paying impact fees in installments rather than in a lump sum at the time of issuance of the certificate of occupancy by entering into an impact fee installment payment program agreement with Collier County (hereinafter the "agreement") required in this section. The county administrator or designee is hereby authorized to prepare and execute the agreement on behalf of the County.

(3)

Pursuant to Subsection 74-302(h) of the Collier County Code of Laws and Ordinances, a certificate of public facility adequacy (COA) shall be issued concurrent with the approval of the next to occur final local development order. In order to obtain a certificate of adequate public facilities concurrently with the issuance of the final site development plan or plat, the feepayer and owner (if different than the feepayer) shall first enter into an approved impact fee installment payment program agreement with Collier County or provide a notarized affidavit to the county administrator or designee that they intend to participate in the program which must include the following:

a.

Name of project, legal description and number assigned by Collier County to the development order;

b.

Name of feepayer and owner;

c.

Statement of intent that the owner is current on property taxes on the subject property and any other real property owned in Collier County, is not in bankruptcy, and that the subject property is not in foreclosure.

(4)

The form of the agreement shall be approved by the Board, and the agreement shall at a minimum provide:

a.

An acknowledgement by the feepayer that the subject property is specially benefited by the improvements to the property and the installment payments shall be special assessments levied as non-ad valorem assessments against the subject property pursuant to the Uniform Assessment Collection Act. For the purposes of this section, the term "Uniform Assessment Collection Act" shall mean F.S. §§ 197.3632 and 197.3635, as amended.

b.

The term of the agreement and the interest rate to be charged, which terms shall be set by the Board of County Commissioners. In the event a feepayer enters into the agreement after the deadline to place the assessment on the feepayer's upcoming tax bill for that year, the assessment will be placed on the feepayer's tax bill for the following year but shall accrue interest from the effective date of the agreement.

c.

Such other terms as deemed appropriate by the County Attorney.

(5)

Each agreement shall be a covenant that runs with the land and shall be recorded as a lien by county in the public records of Collier County, Florida, at the expense of the feepayer and shall be signed and notarized by the feepayer and owner (if different than the feepayer).

(6)

Any person seeking an agreement shall file with the county manager an application and the agreement shall be fully executed and recorded prior to issuance of a temporary or final certificate of occupancy or payment of impact fees.

(7)

Prior to May 1 of each fiscal year, the feepayer of a parcel assessed hereunder shall have the right to pay the outstanding and unpaid balance(s) owed without a prepayment penalty.

(8)

Pursuant to the Uniform Assessment Collection Act, non ad-valorem assessments levied pursuant to this section shall remain liens, coequal with the lien of all state, county, district and municipal taxes, superior in dignity to all other liens, titles and claims, until paid.

(9)

For purposes of this subsection the following conditions shall apply:

a.

A feepayer must be the legal owner of the property, or designated agent of the owner, and shall provide written and notarized proof of authorization from the owner when requesting to pay impact fees under this subsection; and

b.

The feepayer and/or owner must be current on property taxes on the subject property and any other real property owned in Collier County by feepayer and/or owner; and

c.

The feepayer and/or owner cannot be in bankruptcy nor can the property be an asset in any bankruptcy proceeding; and

d.

The subject property cannot be in foreclosure and cannot have any federal income tax lien, judgment lien or similar liens encumbering the property.

(10)

As an alternative method to the repayment of impact fees by special assessments under this section, the county administrator or designee may elect to lien the feepayer's property to secure repayment of impact fees paid under this section and is authorized to take any necessary action, including the development of any rules, procedures, agreements and forms to effectuate this method, at the same term and interest rate as set by the Board of County Commissioners.

(11)

To prevent unintended consequence, the Board will annually review this Pilot Program, with staff preparing regular updated reports that any Commissioner can review.

(12)

Prior to the third anniversary of this ordinance, the County Manager shall prepare and present a report to the Board of County Commissioners detailing what effect, if any, this program has had on housing costs and economic development, with a recommendation to the Board of County Commissioners on whether to amend, expand, or discontinue this pilot program.

(Ord. No. 01-13, § 1, 3-13-01; Ord. No. 01-54, § 3, 10-9-01; Ord. No. 02-34, § 1, 6-25-02; Ord. No. 03-25, § 1, 5-27-03; Ord. No. 03-32, § 2, 6-24-03; Ord. No. 2003-63, § 1, 11-8-03; Ord. No. 04-16, § 7; Ord. No. 2005-08, § 1; Ord. No. 2005-28, § 6; Ord. No. 2005-38, § 1; Ord. No. 2005-40, §§ 1, 2; Ord. No. 2006-09, § 2; Ord. No. 2006-26, § 3; Ord. No. 2009-09, § 3; Ord. No. 2009-14, § 1; Ord. No. 2010-22, § 1; Ord. No. 2013-63, § 2; Ord. No. 2015-17, § 3; Ord. No. 2017-13, § 3; Ord. No. 2017-34, § 1)