Exoedited Bill No. =26=--...:..11-'--_ _ _ __
Concerning: Taxation -
Development
Impact Tax - Payment
Revised: 11-1-11
Draft No. 6
Introduced:
September 13, 2011
Enacted:
November 1, 2011
Executive:
November 9, 2011
Effective:
December1! 2011
Sunset Date: [[Qecember 1 20161]
~
Ch.
~,
Laws of Mont. Co.
2011
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmember Riemer, Council President Ervin, and Councilmembers Berliner, Floreen,
Leventhal, Navarro, and Rice
AN EXPEDITED ACT
to:
(1)
[[temporarilyl] require any development impact tax to be paid before a [[use and
occupancy permit is issued]] certain date;
[~mporarilylJ
require any transportation mitigation payment or school facilities
(2)
payment to be paid before a [[use and occupancy permit is issued]] certain date; and
(3)
generally amend the law governing deVelopment impact taxes.
By amending
Montgomery County Code
Chapter 52, Taxation
Sections 52-47([, 52-49,11
~d
52-50[[,52-51,52-54,52-55, 52-56, 52-59, 52-89,52-93,52­
9411
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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ExPEDITED BILL No. 26-11
Section 1. Sections 52-47[[, 52-49,]] and 52-50[[,52-51,52-54,52-55,52­
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56, 52-59, 52-89, 52-93, and 52-94]] are amended as follows:
52-47. Definitions.
In this Article the following tenns have the following meanings:
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Applicant
means the property owner, or duly designated agent of the property
owner, of land on which a [building] [[use and occupancy]] building pennit
has been requested for development.
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Development
means the carrying out of any building activity or the making of
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any material change in the use of any structure or land which requires issuance
ofa [building] [[use and occupancy]] building pennit and:
(1)
(2)
Increases the number ofdwelling units; or
Increases the gross floor area of nonresidential development.
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Development impact tax
means a pro rata per unit or per square foot of gross
floor area tax imposed before a [building] [[use and occupancy]] building
pennit is issued for development which is intended to defray a portion of the
costs associated with impact transportation improvements that are necessary to
accommodate the traffic generated by the development.
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Property owner
means any person, group of persons, finn, corporation, or
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other entity with a proprietary interest in the land on which a [building] [[use
and occupancy]] building pennit has been requested.
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Use and occupancy permit
means
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use and occupancy pennit issued
the
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Department ofPennitting Services under Chapter 8.
52-49. Imposition and applicability of development impact taxes.
(a)
A development impact
tax
must be imposed before a [building] [[use
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EXPEDITED BILL NO. 26-11
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and occupancy]] building pennit
County.
(b)
IS
issued for development in the
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An
applicant for a [building] [[use and occupancy]] building pennit
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must pay a development impact tax in the amount and manner provided
in
this Article, unless a credit in the full amount of the applicable tax
applies under Section 52-55 or an appeal bond is posted under Section
52-56.
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(b)
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52-50. Collection of development impact taxes.
[Applicants] Each applicant for [building pennits]
£!
[[use and
occupancy]] building pennit for development that is not exempt from
the development impact tax must supply to the Department of
Pennitling Services for each requested [building] [[use and occupancy]]
building penn
it:
(1)
The number and type of dwelling units for residential
development; and
(2)
The gross floor area and type of development for nonresidential
development.
The
applicant
must
submit
for
inspection
relevant
support
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(
c)
documentation as the Department requires.
The Department of Pennitling Services must not issue a [building] [[use
and occupancy]] building pennit for development that is not exempt
from the development impact
tax
unless:
(1)
(2)
the applicant has paid the applicable development impact
tax;
the applicant is entitled to a credit under Section 52-55 in the
amount of the applicable development impact tax; or
(3)
an appeal has been taken and a bond or other surety posted under
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EXPEDITED
Bill No. 26-11
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Section 52-56.
(d)
When a person applies to a municipality in the County for a [building]
[[use and occupancy]] building permit for a building or dwelling unit,
the applicant must show that all payments due under this Section with
respect to the building or unit have been paid. The Director of Finance
must promptly refimd any payment made for any building or part of a
building for which a [building] [[use and occupancy]] building permit is
not issued by the municipality.
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(k)
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If, within 10 years after a [building] [[use and occupancy]] building
permit is issued, any person changes the use of all or part of a building
to a use for which a higher tax would have been due under this Article
when the [building] [[use and occupancy]] building permit was issued
(including a change from a status, use, or ownership that is exempt from
payment to a status, use, or ownership that is not so exempt), the owner
of the building must within 10 days after the change in status, use, or
ownership pay all additional taxes that would have been due if the
building or part of the building had originally been used as it is later
used. If the building owner does not pay any additional
tax
when due,
each later owner is liable for the tax, and any interest or penalty due,
until all taxes, interest, and penalties are paid.
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ill
Notwithstanding aJ:'ly other provision of this Chapter. an applicant for a
building . permit need not pay any development impact
tax,
Transportation Mitigation Payment. or School Facilities Payment due
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ill
if the buildil:'lg is a siugle-family detached or attached residential
bllilding, the earlier of:
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Exe~
BILL
No.
26-11
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(AJ
the final inspection
of~building
by the Department of
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Permitting Services; or
all
ill
6 months after the building permit is issued: and
if the. building is a multi-family residential or non-residential
developm~he
earlier of:
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La}
!he final inspection of the building by the Department of
Permitting Services; or
all
12 months after the building permit is issued.
The rate of the tax or Payment due is the rate in effect when the
tax
or
Payment is paid. A permitteemaUPDealthe impositiQn or calculation
of the tax or J;>aY,ment under Section 52-56.
If the Department of
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Permitting Services or a municipality revokes or suspends
a
building
permit or issues a stop-work order solely because the permittee did not
pay any tax or Payment due under this Article, the permittee or any
other party must not appeal the permit revocation or suspension or the
stop work order issuance. or any modification of either, under Chapter
8.
If the appealing party posts a bond or other sufficient surety
satisfactory to the County Attorney as provided in Section 52-56, the
Department or municipality must reissue or reinstate the building permit
or revoke the stop-work
~rder.
52-51. Calculation of development impact tax.
(a)
The Department of Permitting Services must calculate the amount of the
applicable development impact tax due for each [building] [[use and
occupancy]] building permit by:
(1)
determining the applicable impact
tax
district and whether the
permit is for development that is exempt from the tax under
Section 52-49(f);
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EXPEDIJED BILL
No. 26-11
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(2)
verifying the number and type of dwelling units and the gross
floor area and type of nonresidential development for which each
[building] [[use and occupancy]] building permit is sought;
(3)
(
4)
determining the applicable tax under Section 52-57; and
mUltiplying the applicable
tax
by:
(A)
(B)
the appropriate number ofdwelling units; and
the gross floor area ofnonresidential development.
(b)
If the development for which a [building] [[use and occupancy]]
building permit is sought contains a mix of uses, the Department must
separately calculate the development impact tax due for each type of
development.
(
c)
If the type of proposed development cannot be categorized under the
defmitions of nonresidential and residential in Section 52-47, the
Department must use the rate assigned to the type of development
which generates the most similar traffic impact characteristics.
(
d)
The Department must calculate the amount of the development impact
tax due under this Article in effect when the [building] [[use and
occupancy]] building permit application is submitted to the Department,
or before a [building] [[use and occupancy]] building permit is issued
by a municipality.
(e)
A [building] [[use and occupancy]] building permit application, or ifthe
property is located in a municipality with authority to issue [building]
[[use and occupancy]] building permits, a request to determine the
amount of the impact
tax,
must be resubmitted to the Department if the
applicant changes the project by:
(1)
(2)
increasing the number of dwelling units;
increasing the gross floor area of nonresidential development; or
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EXPEDITED
Bill No. 26-11
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(3)
changing the type of development so that the development impact
tax would be increased.
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The Department must recalculate the development impact tax based on
the plans contained in the resubmitted [building] [[use and occupancy}]
building pennit application.
52-54. Refunds.
(a)
Any person who has paid a development impact tax may apply for a
refund of the impact tax if:
(1 )
the County has not appropriated the funds for impact
transportation improvements of the types listed in Section 52-58,
or otherwise fonnally designated a specific improvement of a
type listed in Section 52-58 to receive funds, by the end of the
sixth fiscal year after the tax is collected;
(2)
the [building] [[use and occupancy]] building pennit has been
revoked or has lapsed because construction did not start; or
(3)
the prqject has been physically altered, resulting in a decrease in
the amount of impact tax due.
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52-55. Credits.
(a)
(1)
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A property owner is entitled to a credit if the owner, before July
1, 2002, entered into a participation agreement, or a similar
agreement with the state or a municipality, the purpose of which
was to provide additional transportation capacity. A property
owner is also entitled to a credit if the owner receives approval
before July 1, 2002, of a subdivision plan, development plan, or
similar development approval by the County or a municipality
that requires the owner to build or contribute to a transportation
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EXPEDITED
BILL
No. 26-11
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improvement that provides additional transportation capacity.
The Department of Transportation must calculate the credit. The
credit must· equal the amount of any charge paid under the
participation agreement. The Department may give credit only
for [building] [[use and occupancy]] building permit applications
for development on the site covered by the participation
agreement.
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(b)
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A property owner must receive a credit for constructing or contributing
to an improvement of the type listed in Section 52-58 if the
improvement
reduces
traffic
demand
or
provides
additional
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transportation capacity. However, the Department must not certify a
credit for any improvement in the right-of-way of a State road, except a
transit or trip reduction program that operates on or relieves traffic on a
State road or an improvement to a State road that is included in a
memorandum of understanding between the County and either
Rockville or Gaithersburg.
(1)
If the property owner elects to make the improvement, the owner
must enter into an agreement with a municipality or the County,
or receIve a development approval based on making the·
improvement, before any [building] [[use and occupancy]]
building permit is issued.
approval must contain:
(A)
(B)
the estimated cost ofthe improvement, if known then;
the dates or triggering actions to start and, if known then,
finish the improvement;
The agreement or development
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ExPEDITED
Bill
No. 26-11
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(C)
a requirement that the property owner complete the
improvement according to applicable municipal or County
standards; and
(D)
any other term or condition that the municipality or County
fmds necessary.
(2)
The Department of Transportation must:
(A)
(B)
(C)
review the improvement plan;
verify costs and time schedules;
determine whether the improvement
transportation improvement;
(D)
determine the amount of the credit for the improvement
that will apply to the development impact tax; and
(E)
certify the amount of the credit to the Department of
Permitting
Services
before
that Department
or
a
IS
an
impact
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municipality issues any [building] [[use and occupancy]]
building permit.
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52-56. Appeals.
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After determination ofthe amount ofthe development impact tax or credit due,
an applicant for a [building] [[use and occupancyl1 building permit or a property
owner may appeal to the Maryland Tax Court to the extent permitted by state law or,
if the Maryland Tax Court does not have jurisdiction, to the Circuit Court under the
Maryland Rules of Procedure that regulate administrative appeals. If the appealing
party posts a bond or other sufficient surety satisfactory to the County Attorney in an
amount equal to the applicable development impact tax as calculated by the
Department of Permitting Services, the Department or municipality must issue the
[building] [[use and occupancy]] building permit if all other applicable conditions
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ExPEDITED BILL
No. 26-11
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have been satisfied. The filing of an appeal does not stay the collection of the
development impact tax until a bond or other surety satisfactory to the County
Attorney has been filed with the Department of Permitting Services.
52-59. Transportation Mitigation Payment.
(a)
In addition to the
tax
due under this Article, an applicant for a [building]
[[use and occupancy]] building permit for any building on which an
impact
tax
is imposed under this Article must pay to the Department of
Finance a Transportation Mitigation Payment if that building was
included in a preliminary plan of subdivision that was approved under
the Transportation Mitigation Payment provisions in the County
Subdivision Staging Policy.
*
52-89. Imposition and applicability of tax.
(a)
*
*
An applicant for a [building1 [[use and occupancy]] building permit for
a residential development must pay a development impact tax for public
school improvements in the amount and manner provided in this Article
before a [building] [[use and occupancy]] building permit is issued for
any residential development in the County unless:
(I)
(2)
a credit for the entire
tax
owed is allowed under Section 52-93; or
an appeal bond is posted under Section 52-56.
*
52-93. Credits.
*
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*
*
(b)
*
If the property owner elects to make a qualified improvement, the owner
must enter into an agreement with the Director of Permitting Services,
or receive a development approval based on making the improvement,
before any [building1 [[use and occupancyl1 building permit is issued.
The agreement or development approval must contain:
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EQPEDITED BILL
No. 26-11
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(1)
(2)
the estimated cost ofthe improvement, ifknown then,
the dates or triggering actions to start and, if known then, finish
the improvement.
(3)
a requirement that the property owner complete the improvement
according to Montgomery County Public Schools standards, and
(4)
(c)
such other terms and conditions as MCPS fmds necessary.
MCPS must:
(1 )
(2)
(3)
review the improvement plan,
verify costs and time schedules,
determine whether the improvement IS a public school
improvement of the type listed in Section 52-91(d),
(4)
(5)
determine the amount ofthe credit for the improvement, and
certify the amount of the credit to the Department of Permitting
Services before that Department or a municipality Issues any
[building] [[use and occupancy]] building permit.
*
52-94. School Facilities Payment.
(a)
*
*
In addition to the tax due under this Article, an applicant for a [building]
[[use and occupancy]] building permit for any building on which a
tax
is
imposed under this Article must pay to the Department of Finance a
School Facilities Payment if that building was included in a preliminary
plan of subdivision that was approved under the School Facilities
Payment provisions in the County Subdivision Staging Policy.
*
Section 2.
*
*
The Council declares that this
Expedited Effective date.
legislation is necessary for the immediate protection of the public welfare. This Act
takes effect [(91 days after it becomes law]] on December
1",2..Qll.
The payment
date for the development impact tax imposed under
Article~
VII and XII of Chapter
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ExPEDITED BILL
No. 26-11
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52,
as amended by Section 1 of this Act, applies to any building for which an
application for a [[use and occupancy]] building penn it is filed on or after that date.
The payment date for the Transportation Mitigation Payment and School Facilities
Payment imposed respectively under Section
52-59
and
52-94,
apply to any
Payment required on or after that date. [[However, an applicant need not pay the tax
before receiving a use and occupancy pennit for development if the applicant paid
the tax before receiving a building pennit for the same development.]]
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[[Section 3. Expiration.
Section
52-50(1),
inserted by Section 1 of this Act.
expires on December 1.
2016.]]
Approved:
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Date
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Isiah Leggett, Co
289
. ecutive
I
Date
This is a correct copy o/Council action.
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c:fhA7h.
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Linda M. Lauer, Clerk ofthe Council
Date
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