Chapter 1.3
Sensitive Lands and Wildlife Habitat

• ALL
• Remove Code Barriers
• Create Incentives
• Fill Regulatory Gaps

Open Space Impact Fees

INTRODUCTION

Impact fees are one-time charges assessed on new development in order to help pay for new or expanded public facilities and/or the impact development may have on public facilities.[1] In most jurisdictions, the fees must be used to directly address the increased demand caused by the new development and may not be used for pre-existing issues.[2] Impact fees may go toward a variety of things, such as transportation, schools, and open space. Open space is often used as an umbrella term that can incorporate parks, natural areas, conservation lands, and other outdoor recreational areas.

Local governments will typically assess and vary fees based on the type of proposed land use, such as single-family residential or multi-family residential. This ensures that uses that more densely populated or increase the burden on public facilities have a proportionally larger share of the cost associated with new development. In the ordinances, jurisdictions may also state what the proceeds will be used for, such as open space acquisition or capital investment. Even though funds must always directly address the increased demand caused by the new development, jurisdictions can place further limitations on where the funds may be spent, such as in the specific zone that the development took place. Additionally, when calculating the fees to be assessed, local governments have some flexibility, but will frequently factor in type of use, occupancy rate, number of dwellings, and/or the size of the development.[3] Some local governments will accept open space or park land dedicated to the city as credit toward the open space impact fees.

EFFECTS

Preserving open space is important for a variety of reasons and collecting impact fees allows a community to mitigate the effects of development on open space and invest in acquiring or improving existing open space. Open spaces provide essential natural habitats for certain species of wildlife and plants. Native wildlife and plants depend on undisturbed land for food, shelter, and protection, and by mitigating the loss of these lands through development impact fees, local governments can protect critical wildlife habitat and promote biodiversity.^[4] Furthermore, preserving and improving open space can lead to improvements in overall air and water quality.[5] Vegetate open spaces, sometimes called green spaces, can filter stormwater by trapping and removing pollutants before they are able to enter a water resource.[6] In addition, trees help combat climate change and improve air quality by absorbing carbon dioxide and other air pollutants.[7] They also provide shade which can decrease temperatures and lead to reduced artificial cooling cost.[8]

Open spaces also allow communities to participate in a wide range of outdoor activities. This affords people the chance to interact with other members of their community and come in contact with their natural environment.[9] Studies have shown that spending time outdoors can improve physical and mental health.[10] Economically, open spaces can benefit a community as well. Studies have shown that open spaces, such as parks and recreation areas, can positively impact neighboring residential property values.[11] This can, in turn, lead to local governments receiving higher property tax revenue.[12]

EXAMPLES

Rialto, CA

Rialto established an open space development fund in order to cover the cost of acquiring new open space and any cost associated with having to construct or install infrastructure for the use of the open space.[13] Any new development that results in a decrease in the amount of public open space available in the City is assessed an open space development impact fee.[14] The funds will be used for preparing an open space master plan or other studies, including habitat conservation plan(s) “to identify and designate appropriate open space and habitat areas for preservation of threatened or endangered species.”[15] Additionally, funds can be used for acquiring real property or other right of ways for the development of open space, designing and constructing improvements or facilities for the use open space, and establishing biological or cultural monitoring programs needed to maintain habitat conservation areas.[16] Rialto also has a separate parks and recreation impact fee that is imposed on all residential development projects.[17] Developers can receive credit toward the different impact fees if they construct a public facility for which a development impact fee is imposed.[18]

To view the provision, see Rialto, CA- Code of Ordinances § 3.33.230 (2013).

Deerfield Beach, FL

In order to ensure that new development carries its proportionate share of the cost of public facilities needed to accommodate it, Deerfield Beach established various development impact fees.[19] Among them is the recreation and open space impact fee. Any person seeking to get a building permit for a residential building or hotel is required to pay a recreation and open space impact fee.[20] Single-family dwellings are assessed a fee of $1,528.00, multi-family dwellings (two units or more) are assessed a fee of $1,030.00 per unit, and hotel/motel rooms are assessed a fee of $960.00 per unit.[21] This ordinance also provides exemptions to payment of impact fees when there is an alteration to an existing building that doesn’t increase the residential density or adds hotel rooms and the use has not changed, or when construction of an accessory building does not result in increased demand for services by the parent parcel.[22] The funds collected from the fees are only to be used to acquire or make capital improvements to parks within the City’s jurisdiction and are not permitted to be used for maintenance or operation expenses.[23] Additionally, funds not expended or encumbered seven years after the payment of the impact fee can be returned to the landowner upon request.[24]

To view the provision, see Deerfield Beach, FL- Land Development Code § 98-17.1 (2016).

ADDITIONAL EXAMPLES

Bennett, CO, Municipal Code § 4-8-340 (2014) (establishing a park, recreation, and open space impact fee which is used to develop, construct, or acquire land for parks, recreation, and open space facilities).

Martin County, FL Land Development Regulations § 6.9.J (2016) (establishing a conservation/open space impact fee to be used for conservation and open space purposes).

Durham, NC, Code of Ordinances § 30-85 (2011) (requiring impact fee funds to be spent on the capital cost of streets, parks, recreation facilities, or open space and be used exclusively in the service zone where they were collected).

Bernalillo County, NM, Code of Ordinances § 46-15 (2013) (requiring an open space impact fee for single-family and multifamily dwelling developments).