§ 46-21. Credits.

The county shall grant credit against impact fees using the same impact multiplier percent rate as adopted by the board of county commissioners.

The county shall grant credit against impact fees imposed pursuant to this chapter under the following circumstances:

(1)

Credits shall be granted only for the value of any construction of improvements or contribution or dedication of land, easements or money for system improvements or system studies made by a developer or his predecessor in title or interest as a condition of development approval or pursuant to a development agreement with the county, or for payments made or to be made pursuant to the terms of any special assessment district.

(2)

Credits shall only be granted for system improvements or system studies for the same category of system improvements and within the same service areas for which impact fees are imposed pursuant to this chapter. For the county roadway impact fee, credits shall be granted for improvements that are specifically identified in the IFCIP or for any permissible action(s) that increases the vehicle miles of capacity on the impact fee roadway system. Actions that may be considered under this provision include the addition of transit bays, pedestrian and bicycle facilities. For any one of these eligible activities the actual increase in vehicle miles of capacity that results from the improvements must be quantified and clearly demonstrated based on accepted capacity calculation methodologies.

(3)

Credits shall only be granted for contributions, dedications or improvements accepted by the county. Cash contributions shall be deemed accepted when payment is received and accepted by the county. Land or easements shall be deemed accepted when conveyed or dedicated to and accepted by the county. Improvements shall be deemed accepted when:

a.

The construction of the creditable improvement is complete and accepted by the county;

b.

A suitable maintenance and warranty bond or letter of credit is received and approved by the county; and

c.

All design, construction, testing, bonding and acceptance procedures are verified by the county to be in strict compliance with the current county standards.

(4)

Notwithstanding subsection (3) of this section, the county may by agreement grant credits for system improvements which have not been completed if the applicant for such credits provides the county with acceptable security to ensure completion of the system improvements in the form of a performance bond, irrevocable letter of credit, or escrow agreement or other form of security payable to or for the benefit of the county in an amount determined by the impact fees administrator to be equal to 120 percent of the estimated completion cost of the system improvements, including land acquisition costs and planning and design costs. The value of such system improvements for computing credits shall be their estimated completion cost, based on documentation acceptable to the county.

(5)

No credits shall be granted for:

a.

System improvements that fail to meet applicable county standards;

b.

Project improvements;

c.

The construction of local on-site facilities required by zoning, subdivision, or other county regulation intended to serve only a particular development;

d.

System improvements made in excess of the level of service established in this chapter unless such system improvements are required as a condition of development approval; or

e.

Any study, analysis or report, or portion thereof, required by the county to determine the project improvements for a development project.

(6)

Development agreements for system improvements may be negotiated and entered into between the county and a developer, subject to the following requirements:

a.

A developer may offer to construct, contribute, dedicate or pay the cost of a capital improvement included within the categories of capital improvements listed in the IFCIP;

b.

The county may accept such offer on terms satisfactory to the county;

c.

The terms of the agreement shall be memorialized in a written agreement between the county and the developer prior to the issuance of a building permit;

d.

The agreement shall establish the estimated value of the system improvements, the schedule for initiation and completion of the system improvements, a requirement that the system improvements be completed to accepted county standards, and such other terms and conditions as deemed necessary by the county; and

e.

The county must review the system improvements plan, verify costs and time schedules, determine if the system improvements are eligible system improvements, determine if the completed improvement meets applicable county standards, calculate the applicable impact fees otherwise due, determine the amount of the credits for such system improvements to be applied to the otherwise applicable impact fees, and determine if excess credits are created.

(7)

Pre-ordinance credit. Credit shall be granted for the value of any construction of improvements or contribution or dedication of land, easements or money for system improvements accepted by the county as a condition of development approval, or for payments made or to be made pursuant to the terms of any special assessment district, on or after January 1, 1980, and prior to the effective date. The impact fees administrator shall deduct from the value of the pre-ordinance credit the value of the impact fee that would have been charged had this chapter been in effect on the date that the building permits for the development were issued.

(8)

Credits for system improvements shall be applied for as follows:

a.

Pre-ordinance credits shall be applied for within one year from the effective date on forms provided by the county. Pre-ordinance credits not applied for within such time period shall be deemed waived.

b.

Post-ordinance credits shall be applied for no later than the time of application for a building permit on forms provided by the county. Post-ordinance credits not applied for within such time period shall be deemed waived.

c.

Credits created pursuant to a development agreement with the county entered into between the county and a developer from and after the effective date shall be applied for no later than the time the development agreement is approved by the county.

(9)

The value of credits and the calculation of excess credits shall be determined by the impact fees administrator, in writing, subject to appeal pursuant to section 46-22.

(10)

The value of credits for system improvements shall be computed as follows:

a.

The value of cash contributions shall be based on the face value of the cash payment at the time of payment to the county;

b.

The value of unimproved land or easements shall, at the option of the applicant, be:

1.

The fair market value of the land or easement prior to any increase in value resulting from development approval demonstrated by an appraisal prepared by an appraiser acceptable to the county;

2.

The acquisition cost of the land or easement to the developer or his predecessor in title or interest demonstrated by documentation acceptable to the county; or

3.

The total unit costs of the land or easement calculated using the IFCIP table of facility unit costs in effect at the time impact fees are assessed on the development project, or, if no fees have been assessed, at the time the credits are applied for.

c.

The value of system improvements shall, at the option of the applicant, be:

1.

The fair market value of the completed system improvement at the time of acceptance by the county demonstrated by an appraisal prepared by an appraiser acceptable to the county;

2.

The actual construction cost of the completed system improvement, including planning and design costs, demonstrated by documentation acceptable to the county; or

3.

The total unit costs of the completed improvement calculated using the IFCIP table of facility unit costs in effect at the time impact fees are assessed on the development project or, if no impact fees have been assessed, at the time the credits are applied for.

d.

The value of system studies shall be the cost of the study demonstrated by documentation acceptable to the county.

e.

An applicant for credits shall be responsible for providing at his own expense the appraisals, construction and acquisition cost documentation and other documentation necessary for the valuation of credits by the impact fees administrator. The county shall not be obligated to grant credits to any applicant who cannot provide such documentation in such form as the impact fees administrator may require.

f.

In lieu of the appraisals referred to in subsections (10)b.1 and (10)c.1 of this section, the impact fees administrator may accept an appraisal prepared by an appraiser acceptable to the county that demonstrates the combined fair market value of land, easements or completed improvements at the time of acceptance by the county, less the increase in land value resulting from development approval.

g.

The impact fees administrator may accept an appraisal that was prepared contemporaneously with the original contribution, dedication or construction of a system improvement if he determines that such appraisal is reasonably applicable to the computation of the credit due.

h.

The impact fees administrator retains the right to obtain, at the county's expense, additional engineering and construction cost estimates and/or property appraisals that may, at the impact fees administrator's option, be used to determine the value of credit.

(11)

Credits granted for system improvements and system studies shall be applied as follows:

a.

Credits shall be applied first to offset the impact fees otherwise due for the development project for which the credit was granted. If the value of the credit exceeds the impact fees otherwise due, the excess credits shall become the property of the applicant, subject to the requirements of this chapter.

b.

Credits shall only be applied to offset impact fees for the same category of system improvements, within the same service area for which the credit was granted. Credits shall not be used to offset impact fees for other categories of system improvements or for other service areas.

c.

If an applicant is entitled to excess credits, the impact fees administrator shall issue a certificate of excess credit to the applicant which denotes the dollar amount of the excess credit, the category of system improvement and service area to which the excess credit may be applied, the name of the applicant as the original credit-holder and a description of the development project for which the credit was granted. The certificate of excess credit shall be signed by both the impact fees administrator and the credit-holder. The impact fees administrator shall retain a copy of the certificate of excess credit and the credit-holder shall be given the original certificate.

d.

Excess credits shall be freely transferable in accordance with the provisions of this chapter.

e.

The credit-holder of excess credits may do any of the following:

1.

Apply all or part of the excess credits to offset impact fees due for new development for the same category of system improvements within the same service area for which the credit was granted;

2.

Transfer all or part of the certificate of excess credits to another person who shall become the credit-holder upon written notice to the impact fees administrator, subject to the same rights and restrictions as the original credit-holder, in addition to additional restrictions that apply to transferred excess credits; and/or

3.

Request reimbursement from the county for all or part of the amount of the excess credits from revenue generated by impact fees paid by new development for system improvements within the same service category and service area for which the credit was granted.

f.

Excess credits shall be subject to the following restrictions:

1.

Excess credits shall not accrue interest and shall not be considered public money, public funds or public credit within the meaning of any law or ordinance relating to public money, public funds or public credit.

2.

Excess credits shall not be reimbursed from the county's general fund or from any other county funding source other than impact fees paid by new development for system improvements within the same service category and service area for which the credit was granted.

3.

The county shall, upon request from the credit-holder of excess credits, after acceptance by the county of the project creating credits, provide reimbursements for excess credits on a first in, first out basis and shall not be obligated to provide reimbursements in the event there is no unencumbered account balance in the county's impact fee account for the appropriate service category and service area.

4.

Except as otherwise provided in this chapter, excess credits shall not constitute a liability of the county, and the county shall not be obligated to reimburse excess credits.

5.

Excess credits transferred from the original credit-holder may be applied to offset only up to 50 percent of the impact fees otherwise due from new development for system improvements within the same service category and service area for which the credit was granted.

6.

The county shall grant credit against drainage impact fees imposed pursuant to this chapter for the value of any construction of improvements or contribution or dedication of land, easements or money for system improvements or system studies made by a developer or his predecessor in title or interest as a condition of development approval or pursuant to a development agreement with the county for drainage improvements which are, or upon completion will be, owned and operated by AMAFCA. These credits shall be applied for, granted, valued and applied in the same manner as other credits provided for in this chapter, subject to the following additional restrictions:

i.

These credits shall only be granted for drainage system improvements which are, or upon completion will be, owned and operated by AMAFCA;

ii.

Credit-holders of these credits may not request reimbursement from the county for some or all of these credits from revenue generated by impact fees paid by other new development; and

iii.

These credits may only be applied to offset drainage impact fees for new development in the same service area which uses AMAFCA facilities.

(Ord. No. 95-16, § XI-1-1 (U), 12-5-95; Ord. No. 02-2, 6-25-02; Ord. No. 2007-16, 8-28-07; Ord. No. 2013-13, 5-14-13)

State law reference

Credits, NMSA 1978, § 5-8-15.