26-11

Section 1. Sections 52-47[[, 52-49,]] and 52-50[[, 52-51, 52-54, 52-55, 52-56, 52-59, 52-89, 52-93, and 52-94]] are amended as follows:

52-47. Definitions.

In this Article the following terms 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 permit has been requested for development.

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Development means the carrying out of any building activity or the making of any material change in the use of any structure or land which requires issuance of a [building] [[use and occupancy]] building permit and:

(1) Increases the number of dwelling units; or

(2) Increases the gross floor area of nonresidential development.

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 permit 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, firm, corporation, or other entity with a proprietary interest in the land on which a [building] [[use and occupancy]] building permit has been requested.

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Use and occupancy permit means a use and occupancy permit issued by the Department of Permitting 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 and occupancy]] building permit is issued for development in the County.

(b) An applicant for a [building] [[use and occupancy]] building permit 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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52-50. Collection of development impact taxes.

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(b) [Applicants] Each applicant for [building permits] a [[use and occupancy]] building permit for development that is not exempt from the development impact tax must supply to the Department of Permitting Services for each requested [building] [[use and occupancy]] building permit:

(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 documentation as the Department requires.

(c) The Department of Permitting Services must not issue a [building] [[use and occupancy]] building permit for development that is not exempt from the development impact tax unless:

(1) the applicant has paid the applicable development impact tax;

(2) 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 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 refund 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) 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.

(l) Notwithstanding any 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 until:

(1) if the building is a single-family detached or attached residential building, the earlier of:

(A) the final inspection of the building by the Department of Permitting Services; or

(B) 6 months after the building permit is issued; and

(2) if the building is a multi-family residential or non-residential development, the earlier of:

(A) the final inspection of the building by the Department of Permitting Services; or

(B) 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 permittee may appeal the imposition or calculation of the tax or Payment under Section 52-56. If the Department of 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 order.

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);

(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) determining the applicable tax under Section 52-57; and

(4) multiplying the applicable tax by:

(A) the appropriate number of dwelling units; and

(B) the gross floor area of nonresidential 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 definitions 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 if the 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) increasing the number of dwelling units;

(2) increasing the gross floor area of nonresidential development; or

(3) changing the type of development so that the development impact tax would be increased.

The Department must recalculate the development impact tax based on the plans contained in the resubmitted [building] [[use and occupancy]] building permit 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 formally 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 permit has been revoked or has lapsed because construction did not start; or

(3) the project has been physically altered, resulting in a decrease in the amount of impact tax due.

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52-55. Credits.

(a) (1) 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 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) 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 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. The agreement or development approval must contain:

(A) the estimated cost of the improvement, if known then;

(B) the dates or triggering actions to start and, if known then, finish the improvement;

(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 finds necessary.

(2) The Department of Transportation must:

(A) review the improvement plan;

(B) verify costs and time schedules;

(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 municipality issues any [building] [[use and occupancy]] building permit.

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52-56. Appeals.

After determination of the amount of the development impact tax or credit due, an applicant for a [building] [[use and occupancy]] 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 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.

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52-89. Imposition and applicability of tax.

(a) An applicant for a [building] [[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:

(1) a credit for the entire tax owed is allowed under Section 52-93; or

(2) an appeal bond is posted under Section 52-56.

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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 [building] [[use and occupancy]] building permit is issued. The agreement or development approval must contain:

(1) the estimated cost of the improvement, if known then,

(2) 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) such other terms and conditions as MCPS finds necessary.

(1) review the improvement plan,

(2) verify costs and time schedules,

(3) determine whether the improvement is a public school improvement of the type listed in Section 52-91(d),

(4) determine the amount of the credit for the improvement, and

(5) 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.

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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.

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Section 2. Expedited Effective date. The Council declares that this legislation is necessary for the immediate protection of the public welfare. This Act takes effect [[91 days after it becomes law]] on December 1, 2011. The payment date for the development impact tax imposed under Articles VII and XII of Chapter 52, as amended by Section 1 of this Act, applies to any building for which an application for a [[use and occupancy]] building permit 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 permit for development if the applicant paid the tax before receiving a building permit for the same development.]]

[[Section 3. Expiration. Section 52-50(l), inserted by Section 1 of this Act, expires on December 1, 2016.]]

Approved: