§302A-1606 Land component impact fee; determining the amount of land or fee in lieu. (a) The school land area requirements for new residential developments in a school impact district shall be based on recent school site area averages, student generation rates, and the number of dwelling units in the new residential development.

(b) The following formula shall be used to determine the total school land area requirement for each individual new residential development in a school impact district:

Elementary school student generation rate per single-family unit (x) number of single-family units (x) recent school site area average for the land area per elementary school student;

plus (+)

Elementary school student generation rate per multi-family unit (x) number of multi-family units (x) recent school site area average for the land area per elementary school student;

plus (+)

Middle school student generation rate per single-family unit (x) number of single-family units (x) recent school site area average for the land area per middle school student;

plus (+)

Middle school student generation rate per multi-family unit (x) number of multi-family units (x) recent school site area average for the land area per middle school student;

plus (+)

High school student generation rate per single-family unit (x) number of single-family units (x) recent school site area average for the land area per high school student;

plus (+)

High school student generation rate per multi-family unit (x) number of multi-family units (x) recent school site area average for the land area per high school student;

equals (=)

Total school land requirement.

(c) The procedure for determining whether the dedication of land is required or a payment of a fee in lieu is required for a new school facility or to satisfy the land component impact fee shall be as follows:

(1) A new residential development with fifty or more units shall include a written agreement between the owner or developer of the property and the department, executed prior to issuance of a building permit, under which the owner or developer has:

(A) Agreed to designate an area to be dedicated for one or more schools for the development, subject to approval by the department; or

(B) Agreed to pay to the department, at a time specified in the agreement, a fee in lieu of land dedication;

(2) A new residential development with less than fifty units shall include a written agreement between the owner or the developer of the property and the department, executed prior to the issuance of the building permit, under which the owner or developer has agreed to a time specified for payment for the fee in lieu;

(3) Prior to approval of any change of zoning, subdivision, or any other approval for a:

(A) Residential development with fifty or more units; or

(B) Condominium property regime development of fifty or more units,

the department shall notify the approving agency of its determination on whether it will require the development to dedicate land, pay a fee in lieu thereof, or a combination of both for the provision of new school facilities;

(4) The department's determination to require land dedication or the payment of a fee in lieu, or a combination of both, shall be guided by the following criteria:

(A) The topography, geology, access, value, and location of the land available for dedication;

(B) The size and shape of the land available for dedication;

(C) The location of existing or proposed schooling facilities; and

(D) The availability of infrastructure;

(5) The determination of the department as to whether lands shall be dedicated or whether a fee in lieu shall be paid, or a combination of both, shall be final;

(6) When land dedication is required, the land shall be conveyed to the State upon completion of the subdivision improvements and any offsite infrastructure necessary to serve the land; and

(7) When the payment of a fee in lieu is required, the fee in lieu shall be paid based on the terms contained in the written agreement.

(d) In determining the value per acre for any new residential development, the fee simple value of the land identified for the new or expanded school facility shall be based on the appraised fair market value of improved, vacant land, zoned for residential use, and serviced by roads, utilities, and drainage. An appraiser, licensed pursuant to chapter 466K, who is selected and paid for by the developer, shall determine the value of the land. If the department does not agree with the developer's appraisal, the department may engage another licensed appraiser at its own expense, and resolve, through negotiation between the two appraisers, a fair market value. If neither party agrees, the first two appraisers shall select the third appraiser, with the cost of the third appraisal being shared equally by the department and the developer, and the third appraisal shall be binding on both parties.

(e) The developer or owner of new residential developments of fifty or more units shall either pay the fee in lieu based on the land value as determined in subsection (d) or convey appropriate acreage as determined in subsection (b). When conveying the fee simple interest for the new or expanded school facility, the developers shall be credited the difference between the fair market fee simple value of the property and the developers' proportionate share of the value of the land as determined in subsection (d) against any construction cost component impact fee. Any excess may be transferred and used as credit against any future land or construction cost requirements on any other development of the State.

(f) The dollar amount of the fee in lieu shall be determined using the following formula:

Acres of land subject to the fee in lieu, as determined under subsection (c) multiplied by the value per acre of land determined pursuant to subsection (d).

[L 2007, c 245, pt of §2; am L 2010, c 188, §9]