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29 The SDC Imposed by this Chapter is not a tax on prop- erty or on a property owner as a direct consequence of ownership of property within the meaning of Section 11b, Article XI of the Oregon Constitution or legislation im- plementing that section. This Chapter does not shift, transfer or convert a government product or service, wholly or partially paid for by ad valorem property taxes, to be paid for by a fee, assessment or other charge, within the meaning of Section 11g, Article XI of the Oregon Con- stitution. The funding provided by this Chapter constitutes a man- datory collection method based upon the guidelines set forth in ORS 223.297 through 23.314 and HB 3480 (1996 Special Session) to assure the construction of capacity in- creasing improvements to arterial, boulevard and collec- tor roads as well as to bicycle, pedestrian and transit fa- cilities as contemplated in the City Comprehensive Plan, City of Portland Transportation capital Improvement Program and the list of projects, referred to as the SDC- CIP, to be funded with money under this Chapter and in- corporated as Table 3-1 in the attached Transportation System Development Charges Rate Study, (dated June 11, 1997).230 The ordinance relates to all âNew Developmentâ231 throughout the City of Portland and is incurred upon application for a permit to develop property for a spe- cific use or at a specific density. The SDC due for a spe- cific project must be determined by estimating the trip generation of the previous uses on the property and the trip generation for all of the proposed uses and then calculating the total SDC for the previous uses and the proposed uses as provided in the cityâs Rate Study. If the SDC attributable to the proposed use of the New Development is more than 115 percent of the SDC at- tributable to the previous use, then the applicant pays the difference between the SDC attributable to the pro- posed use and the SDC attributable to the previous use.232 The Portland SDC is automatically subject to annual adjustment based upon the 10-year moving average percentage fluctuation of the Oregon Construction Cost Index. In no event does the dollar amount change to the SDC exceed 6 percent. The Portland SDC provides for exemptions for, among other things, affordable housing and transit-oriented development. VII. CONCLUSION It is hard to escape the conclusion that impact fees for transit are underutilized as a resource for capital 230 Id. § 17.15.010(D), (E). 231 âNew Developmentâ is defined to mean all improvements on a site, including buildings and other structures, parking and loading areas, landscaping, paved or graveled areas, and areas devoted to exterior display, storage, or activities that have the effect of generating additional weekday or weekend trips. De- velopment includes improved open areas such as plazas and walkways, but does not include natural geologic forms or un- improved land. City of Portland Code and Charter § 17.15.020(O). 232 Id. § 17.15.040(A)(3). improvements for transit infrastructure in the United States. While statutory limitations exist, at least one- half of all states expressly or impliedly authorize local jurisdictions to utilize impact fees for transit purposes. Case law in the area of impact fees generally, and with respect to transportation impact fees specifically, is well developed. A municipality must be willing to devote the resources to 1) perform studies prior to adopting legisla- tion, 2) reach out to all stakeholders and bring them into the public approval process, and 3) craft the lan- guage of a local ordinance in accordance with applicable state law. In this way, the likelihood of litigation is minimized. Certain jurisdictions have experienced tremendous development growth over the last several decades. Growth communities rely heavily on transportation systems for their current and future development. In many cases, but for the gap between transportation planning and municipal planning, impact fees for tran- sit purposes could have been implemented years ago to provide local funds for burgeoning transit capital needs. For impact fees to become a successful financing tool for transit infrastructure, coordination between planners and transit providers is crucial. Coordination and coop- eration between municipalities, counties, transportation agencies, and the private sector is also important. The current successful use of impact fees for transit in a limited number of jurisdictions should be instructive for those municipalities that face continued development growth in the years to come.
