There is an area used to be a "hotel". In that "hotel", there are restaurant, hotel & duplex. Now, a developer came in to convert the whole "hotel" area to residential area.

In this case, is developer entitled to credits for Restaurants, hotel & duplex? (0.33/ft for commercial; 2.05/ft for residential)

Can we levy developer 2.05? or has to be $1.72 (2.05-0.33)?

Response: Cynthia, thank you for your question. FCMAT is not qualified to issue a legal opinion and encourages you to seek clarification from legal counsel, if necessary. The nature of your question is not a common one and there is always the possibility the developer may not agree with the interpretation of the Codes.

We do believe that Education Code Section 17626 relates to your question, although it does not specifically nor necessarily answer it:

17626. (a) A fee, charge, dedication, or other requirement authorized under Section 17620, whether or not allowable under Chapter 6 (commencing with Section 66010) of Division 1 of Title 7 of the Government Code, may not be applied to the reconstruction of any residential, commercial, or industrial structure that is damaged or destroyed as a result of a disaster, except to the extent the square footage of the reconstructed structure exceeds the square footage of the structure that was damaged or destroyed. That square footage comparison shall be made, in the case of a commercial or industrial structure, on the basis of chargeable covered and enclosed space, as defined in Section 65995 of the Government Code, or, in the case of a residential structure, on the basis of assessable space, as defined in Section 65995 of the Government Code.

(b) The following definitions apply for the purposes of this

Section:

(1) "Disaster" means a fire, earthquake, landslide, mudslide, flood, tidal wave, or other unforeseen event that produces material damage or loss.

(2) "Reconstruction" means the construction of property that replaces, and is equivalent in kind to, the damaged or destroyed property.