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ORDINANCE NO. 06, SERIES 2012 INTRODUCED BY: Mayor Pro Tem Steve Kracha AN ORDINANCE AMENDING CHAPTER 30, ARTICLE XIV – DEFERRAL OR WAIVER OF FEE PAYMENT AND ACTIVITY DEADLINES AND EXEMPTIONS FROM CERTAIN USE TAXES, OF THE CODE OF ORDINANCES OF LAFAYETTE, COLORADO, BY ELIMINATING THE REFERENCES TO PERMANENTLY AFFORDABLE DWELLING UNITS. WHEREAS, on January 3, 2012 City Council approved Ordinance No. 47, Series 2011 amending the Community Housing Program by eliminating the requirement for Permanently Affordable housing unit; and WHEREAS, Article XIV of Chapter 30 of the Code of Ordinances includes references to fee deferrals and waivers for Permanently Affordable housing units and therefore amendments. NOW, THEREFORE, THE CITY OF LAFAYETTE, COLORADO ORDAINS: SECTION 1. That Section 30-405.5 of Article XIV of Chapter 30, of the Code of Ordinances of the City of Lafayette, Colorado is hereby repealed and re-enacted as follows: Sec. 30-405.5. - Deferrals and waivers of fees and exemption from use tax for the creation of certain affordable dwelling units. Upon written request of the owner of a development project in which a charter affordable housing unit (as such term is defined in section 28-7 of this Code of Ordinances) will be created, or in which a dwelling unit will be created that is not a charter affordable housing unit, but which unit will be legally restricted to be at least as restrictive with respect to affordability as such unit, the payment of any service expansion fee pursuant to sections 30-1 through 30-5 of this chapter, parks and recreation acquisition and development fee pursuant to section 30-8 of this chapter, public art fee pursuant to section 30-13 of this chapter, engineering inspection fee pursuant to section 30-11 of this chapter, building permit fee and plan check fee pursuant to section 30-149 of this chapter, electrical inspection fee pursuant to section 30-166 of this chapter, residential water tap fee pursuant to section 120-39.1 of this Code, residential water reclamation tap fee pursuant to section 95-25 of this Code, water reclamation tap surcharge pursuant to section 120-24.1 of this Code and temporary electrical inspection fee applicable to such unit or units shall be and is hereby deferred until such time as the owner seeks the issuance of an occupancy permit by the city for such unit or units. Upon written request of the owner of a development project in which a charter affordable housing unit will be created, or in which a dwelling unit will be created that is not a charter affordable housing unit, but which unit will be legally restricted to be at least as restrictive with respect to affordability as such unit, the payment of the city use tax ---PAGE BREAK--- City of Lafayette Ordinance 06, Series 2012 Page 2 of 4 established in sections 110-146 through 110-151 of this Code that is applicable to such unit or units shall be and is hereby deferred until such time as the owner seeks the issuance of an occupancy permit by the city for such unit or units. For charter affordable housing units (as such term is defined in section 28- 7 of this Code) and for other dwelling units that, while not a charter affordable housing unit, will be legally restricted to be at least as restrictive with respect to affordability as such unit, the payment of any service expansion fee pursuant to sections 30-1 through 30- 5 of this chapter, and building permit fee and plan check fee pursuant to section 30-149 of this chapter, that is applicable to such unit or units may be waived by the city council in whole or part, and an exemption from the city use tax established in sections 110-146 through 110-151 of this Code that is applicable to such unit or units may be granted by the city council in whole or part, by ordinance, upon consideration of, and the making of findings with regard to the following factors: Whether, and the degree to which, the project for which the fees waivers and/or a use tax exemption is sought is a project that provides for affordable housing that exceeds the requirements of Article II of Chapter 28 et seq. of this Code or the community housing guidelines; Whether, and the degree to which, the project is unique and/or necessary for the development of affordable housing within the city; Whether, and the degree to which, the location of the real property to be developed for affordable housing is in the best interests of the citizens of the city; Whether, and the degree to which, the dwelling units in an affordable housing project include characteristics and/or materials that are likely to lower the operation or maintenance costs of the units; Whether, and the degree to which, benefits to the city, including but not limited to the diversification of the housing stock and the expansion of opportunities for people who work in the city to live in the city, are likely to result from the construction and use of the project, and further, whether such benefits to the city are likely to outweigh any burden to the city that may result from the loss of fee and tax revenue due to the fee waiver and use tax exemption provided for herein; and Whether, and the degree to which, other aspects of an affordable housing project further the purposes set forth in Article II of Chapter 28 of this Code of Ordinances. Provided, however, that no fee waiver(s) and/or use tax exemption provided pursuant to this section shall, in the aggregate, exceed the sum of two thousand dollars ($2,000.00) per dwelling unit. Nothing in subsection above shall be construed as providing any person or entity with any right to request, apply for or obtain any fee waiver or use tax ---PAGE BREAK--- City of Lafayette Ordinance 06, Series 2012 Page 3 of 4 exemption described herein, it being the intent of the city that this section is adopted solely for the purposes of authorizing the fee waivers and use tax exemption described herein and guiding the exercise of legislative discretion by the city council in considering the fee waivers and use tax exemption described herein. If, after any fee waiver or use tax exemption is provided pursuant to subsection above for a charter affordable housing unit and such unit is to be sold or rented without a deed restriction, real covenant or other legal restriction, then any fee waiver or use tax exemption with respect to such unit shall be null and void and all payments waived or exempted shall be made to the city by the owner of such unit prior to the initial sale of the unit. It is the intent of this section that only the fees and use taxes directly applicable to charter affordable housing units and other units eligible for fee waivers and use tax exemptions be waived and exempted, respectively, if at all. If a development project includes the construction of improvements other than charter affordable housing units and/or other eligible units, the fee waiver and use tax exemption provided for herein shall be provided on a pro rata basis taking into consideration the relationship between the charter affordable housing units and/or other eligible units and all other improvements proposed within the development project. Any fee waiver and/or tax exemption provided by or granted pursuant to this section shall be reduced to a written agreement between the city and all owners of the property that benefits from the fee waiver and/or tax exemption. The written agreement shall guarantee performance or satisfaction of the fee waiver and/or tax exemption eligibility criteria and all other applicable development conditions. The written agreement shall be subject to specific enforcement, run with the land and be binding upon the successors and assigns of said owners. The written agreement shall provide that, if the owners, their successors or assigns shall fail to perform or satisfy any term or condition of the agreement, the city council may revoke the grant of any fee waiver and/or tax exemption and the owners and their successors and assigns shall be jointly and severally liable for the payment of all fees and taxes that would, but for the fee waiver and/or tax exemption, have been applied. The written agreement shall provide for enforcement of any revocation of fee waivers/tax exemptions by way of a lien that may be foreclosed in the manner provided for foreclosure of a deed of trust under state law. SECTION 2. If any article, section, paragraph, sentence, clause or phrase of this ordinance is held to be unconstitutional or invalid for any reason, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The city council hereby declares that it would have passed this ordinance and each part or parts hereof irrespective of the fact that any one part or parts be declared unconstitutional or invalid. SECTION 3. All other ordinances or portions thereof inconsistent or conflicting with this ordinance or any portion hereof is hereby repealed to the extent of such inconsistency or conflict. ---PAGE BREAK--- City of Lafayette Ordinance 06, Series 2012 Page 4 of 4 SECTION 4. The repeal or modification of any provision of the Code of Ordinances of Lafayette, Colorado by this ordinance shall not release, extinguish, alter, modify or change in whole or in part any penalty, forfeiture or liability, either civil or criminal, which shall have been incurred under such provision. Each provision shall be treated and held as still remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings and prosecutions for enforcement of the penalty, forfeiture or liability, as well as for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered or made in such actions, suits, proceedings or prosecutions. SECTION 5. This ordinance shall become effective upon the latter of the 10th day following enactment, or the day following the final publication of the ordinance. INTRODUCED, PASSED ON FIRST READING AND PUBLIC NOTICE ORDERED THE 7TH DAY OF FEBRUARY, 2012. PASSED ON SECOND AND FINAL READING AND PUBLIC NOTICE ORDERED THIS 21ST DAY OF FEBRUARY, 2012. CITY OF LAFAYETTE, COLORADO Carolyn D. Cutler, Mayor ATTEST: Susan Koster, City Clerk APPROVED AS TO FORM: Dave S. Williamson, City Attorney