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HomeMy WebLinkAboutPlanning and Zoning Commission-Agenda Packets-11/14/2005 (2) city or n~ Texas AGENDA CITY OF COLLEYVILLE CAPITAL IMPROVEMENTS ADVISORY COMMITTEE Monday, November 14, 2005 at 7:00 - 8:00 p.m. CITY HALL - COUNCIL CHAMBERS 100 Main Street Call to Order and Roll Call by Chairman Jeff Byerly: Robert McCormick, Dave Dudziak, Thomas Bartkowski, Mary Taylor, John Blassingame, Denis Duffy, Larry Cole, Andrew Wayne, and Jeff Byerly Approval of Minutes of the past meeting - January 12, 2004 Agenda Items: 1. Orientation on the Water, Sewer and Roadway Impact Fee Study update by Kimley Horn and Associates 2. Discussion of the proposed amendment to the Land Development Code regarding apportionment of infrastructure costs Adjournment I certify that this agenda was posted on the Bulletin Board at City Hall on November 10, 2005 at 4:30 p.m. Amy Shelley, Planning & Zoning Assistant Meeting Minutes January 12, 2004 Chairman Wall called the meeting of the City of Colleyville Capital Improvements Advisory Committee to order at 6:30 P.M. on January 12, 2004. Roll Call: Present: Bruce Kelly, Bob Culley, Jeff Byerly, Mark Jones, Larry Cole, Andrew Wayne, Jeff Wall Absent: Earl Swift, Bud Sellers Staff: Barry LeBaron, Clayton Husband, Jan Levy Approval of Minutes: August 12,2002 Committee Member Bob Culley moved to approve the minutes of the August 12, 2002 meeting as written. Committee Member Bruce Kelly seconded the motion. The motion passed by a unanimous "Aye" voice vote. Agenda Items: 3. Discussion of a draft proposal by Grady Walker to the Capital Recovery Fee Ordinance for secondary meters for irrigation purposes, Case G-03- 036 Mr. Barry LeBaron presented the case to the committee members and reviewed the staff briefing. Mr. Grady Walker, 7309 John McCain Road, was present to represent the case to the committee members. He said he reviewed the survey of other cities and took out the loopholes. He commented on personal use of water. Committee member Mark Jones suggested the City should consider a six month waiver to monitor the usage. The committee members and Mr. Walker entered into discussion about the proposal; the number citizens who may want to take advantage of the plan; the usage patterns relating to time; and the possible impact on the City. Committee Member Bob Culley moved to recommend to City Council, in lieu of making a decision for or against the proposal, that they allow Mr. Walker and four or five others to proceed with the plan in exchange for the data needed to initiate a policy waiving the impact fees and monitor the results rather than paying consultants to prepare a report. Committee Member Larry Cole seconded the motion. Committee Member Mark Jones recommended the City select users from diverse areas throughout the City. The vote being: Ayes: Cole, Kelly, Culley, Byerly, Jones, Wayne, Wall Noes: None 4. Staff Reports Mr. Barry LeBaron distributed copies of the status of funds for the two service areas and reviewed the report. ADJOURNMENT: The meeting adjourned at 7:22 p.m. Respectfully Submitted, is cl>I4 Ie 1S~ Barry LeBaron Community Development Director Approved on: -------------------------- cUyor cc8n~ CAPITALIMPRO~MENSADWSORYCOMMITTEE AGENDA BRIEFING TexaS Meeting Date: i November 14, 2005 I Prepared by: I Barry LeBaron I I Development Director Subject: I Orientation on the Water, Sewer and Roadway Impact Fee Study i update by Kimley Horn and Associates STAFF REVIEW COMMENTS Chapter 395 of the Texas Local Government Code provides the statutory authority for municipalities to collect water, sewer and roadway impact fees to pay for the expansion of major public facilities, due to the additional demands placed on these systems by new development. Colleyville first began collecting roadway and water impact fees in 1990, and added the collection of sewer impact fees in 1995. Texas law requires communities, which collect impact fees, periodically update the related water, sewer and roadway capital improvement plans and recalculate the applicable fee schedules. This update process is required every five years. Kimley Horn and Associates, an engineering consulting firm located in Fort Worth, is currently in the process of updating the required documents. This firm also prepared the Capital Improvement Plans in 2000. Representatives from Kimley Horn and Associates will be making a presentation to the Capital Improvements Advisory Committee to provide an orientation and overview of the impact fee development and collection process. The Capital I mprovements Advisory Committee is composed of the members of the Planning and Zoning Commission, one developer representative (Larry Cole) and one realtor representative (Andrew Wayne). The composition of the Committee is mandated by the Local Government Code. RECOMMENDATION No official action is anticipated by the Committee on this agenda item. Agenda Item No.1 - Page 1 cce~ TexaS CAPITAL IMPRO~MENS ADWSORY COMMITTEE AGENDA BRIEFING Subject: Prepared by: I, Barry LeBaron November 14, 2005 D ltD' t eve 0 men Irec or Discussion of the proposed amendment to the Land Developmen Code re ardin apportionment of infrastructure costs Meeting Date: STAFF REVIEW COMMENTS In 2004, the Texas Supreme Court issued a significant decision in the case of Town of Flower Mound v. Stafford Estates. Ltd. Partnership regarding the apportionment of infrastructure costs as a condition to subdivision plat approval by a municipality. Reference in the case was made to two U.S. Supreme Court cases, Nolan v. California Costal Commission (1987) and Dolan v. City of Tiqard (1994), in ruling that exactions/dedications must (1) bear an essential nexus to the substantial advancement of some legitimate governmental interest, and (2) be roughly proportional to the projected impact of the proposed development. As a result of the 2004 Texas Supreme Court decision, the 79th Texas Legislature, during the legislative session held earlier this year, produced an amendment to the Texas Local Government Code to impose new subdivision approval requirements on municipalities. Attached is a copy of HB1835, which generally states that the developer's portion of the costs associated with any required infrastructure improvements must be proportional to the projected impact of the proposed development. Under the new Texas law, municipalities can no longer simply require a developer to build one-half of the abutting unimproved roadways. Roadway and utility improvement requirements must be proportional to the demand generated by the development as determined by a professional engineer retained by the municipality. The new Texas law does not outline any particular formula for determining rough proportionality, but mandates that the approval of any method used, be approved by a professional engineer employed by the municipality making the calculations. Staff contacted several area cities to determine their status in complying with the new Texas law and discovered that only the City of Cedar Hill has amended its code to comply with the new requirement. Most of the other cities contacted are in various stages of development in preparing compliance methods. Staff drafted a proposed amendment to Sections 9.12 and 9.16 of Chapter 9 of the Colleyville Land Development Code to modify the language regarding street and utility improvements for purpose of bringing the current subdivision regulations into compliance with the new state law.. Attached is a copy of the applicable sections of the Land Development Code showing the proposed changes to the text of the regulations. Agenda Item No.2 - Page 1 Staff will be discussing with the Committee the issues associated with the tasks and issues associated with developing a methodology to determine rough proportionality. Representatives from Kimley Horn and Associates will also be available to provide input during the discussion. At the October 18, 2005 Pre-Council Meeting, the City Council requested the comments, input and recommendations on this issue from the Capital Improvements Advisory Committee. Recommendation Approval of the proposed amendment to the Land Development Code Attachments · HB1835 . Current Regulations Showing Proposed Changes Agenda Item No.2 - Page 2 House Bi1l1835 H.B. No. 1835 1 AN ACT 2 relating to the apportionment of municipal infrastructure costs in 3 regard to certain property development proj ects. 4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 5 SECTION 1. Subchapter Z, Chapter 212, Local Government 6 Code, is amended by adding Section 212.904 to read as follows: 7 Sec. 212.904. APPORTIONMENT OF MUNICIPAL INFRASTRUCTURE 8 COSTS. (a) If a municipality requires as a condition of approval 9 for a property development proj ect that the developer bear a 10 portion of the costs of municipal infrastructure improvements by 11 the making of dedications, the payment of fees, or the payment of 12 construction costs, the developer's portion of the costs may not 13 exceed the amount required for infrastructure improvements that are 14 rouqhly proportionate to the proposed development as approved by a 15 professional enqineer who holds a license issued under Chapter 16 1001, Occupations Code, and is retained by the municipality. 17 (b) A developer who disputes the determination made under 18 Subsection (a) may appeal to the governing body of the H.B. No. 1835 1 (c) A developer may appeal the determination of the 2 governing body to a county or district court of the county in which 3 the development project is located within 30 days of the final 4 determination by the governing body. 5 (d) A municipality may not require a developer to waive the 6 right of appeal author ized by this section as a condition of 7 approval for a development proj ect. 8 (e) A developer who prevails ln an appeal under this section 9 is entitled to applicable costs and to reasonable attorney's fees, 10 including expert witness fees. 11 (f) This section does not diminish the authority or modify 12 the procedures specified by Chapter 395. 13 SECTION 2. The change in law made by this Act applies to the 14 approval of a development project that is not finally adjudicated 15 before the effective date of this Act. 16 SECTION 3. This Act takes effect immediately if it receives 17 a vote of two-thirds of all the members elected to each house, as 18 provided by Section 39, Article III, Texas Constitution. If this 19 Act does not receive the vote necessary for immediate effect, this 20 Act takes eff ect September 1, 2005. H.B. No. 1835 President of the Senate Speaker of the House I certify that H.B. No. 1835 was passed by the House on April 27, 2005, by the following vote: Yeas 147, Nays 0, 1 present, not voting; that the House refused to concur in Senate amendments to H.B. No. 1835 on May 23, 2005, and requested the appointment of a conference committee to consider the differences between the two houses; and that the House adopted the conference committee report on H.B. No. 1835 on May 29, 2005, by the following vote: Yeas 142, Nays 0, 2 present, not voting. Chief Clerk of the House H.B. No. 1835 I certify that H.B. No. 1835 was passed by the Senate, with amendments, on May 20, 2005, by the following vote: Yeas 30, Nays 1; at the request of the House, the Senate appointed a conference committee to consider the differences between the two houses; and that the Senate adopted the conference committee report on H.B. No. 1835 on May 28, 2005, by the following vote: Yeas 31, Nays O. Secretary of the Senate APPROVED: Date Governor BILL ANALYSIS C.S.H.B.1835 By: Talton Urban Affairs Committee Report (Substituted) BACKGROUND AND PURPOSE In 2004, the Texas Supreme Court, in Town of Flower Mound v. Stafford Estates, Ltd. Partnership, 135 S.W.3d 620 (Tex. 2004), issued a significant decision regarding Texas law relating to exactions/dedications imposed by governmental entities as conditions to issuing permits for the development of property. The court restated and followed the rules established in two landmark U.S. Supreme Court cases, Nollan v. California Coastal Cornn, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), in ruling that exactions/dedications that are made as a condition of development permit approvals which do not (1) bear an essential nexus to the substantial advancement of some legitimate governmental interest, and (2) are not roughly proportional to the projected impact of the proposed development, violate federal and state constitutional provisions prohibiting the taking of private property for public use without just compensation. The Texas Supreme Court also ruled that state law does not entitle a developer to recover attorney's fees or expert witness fees. HB 1835 codifies the decision made in Stafford Estates, that a developer may dispute a condition of approval for a property development project that requires a developer to bear a portion of the costs of municipal infrastructure improvements, and establishes that the developer may recover attorney's fees and expert witness fees when a developer prevails in an appeal. RULE MAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional ru1emaking authority to a state officer, department, agency, or institution. ANALYSIS Adds Section 212.904 to the Local Government Code to establish that a developer may dispute a condition of approval for a property development project that requires a developer to bear a portion of the costs of municipal infrastructure improvements beyond the municipalities minimum adopted standards for on-site development. The developer's portion of the cost may not exceed the amount required for infrastructure i tare rou h1 ro ortionate to the proposed developme . The developer may not be required to waive tre right of appeal as a con 1 . or a develo ment ro' ect. A developer who disputes the determination by the municipality may appeal to the governing ody of th~Jllunicipality and may present testimony and evidence under rocedures adopted by that municipality. A eveloper may then appeal the determination of the governing body to a county or district court of the county" The party that prevails in an appeal is entitled to applicable costs and reasonable attorney's fees, including expert witress fees. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute requires that a municipality make a determination on an appeal thirty days after hearing the appeal and that a developer may appeal the decision of the municipality within thirty days of final determination. In addition, the substitute defines prevailing party as it applies to the new section to make certain a party may receive attorney and expert witness fees even if there is not a judgment, but court proceeding have advanced to the point where these fees are warranted. A. General ReQuirement - The developer of a subdivision shall install all water, sewer, street, sidewalk I and drainage improvemenh.., _ ~!!~_ ,~!!y, ~!~~~ _ f~~!lt~~, r~~ir~<;I, ,~y_ JN~ _ .L:~_I"!~_ _ ~~~!<;>J?r:D~I)! _ ~~~ _ ~~J~~. ,~r~.. _ -. . { Deleted: facilities necessary for the proper development of the subdivision. The design, construction and inspection of any public facilities shall be a cost to the developer, unless the City has entered into an agreement for cost sharing. All such facilities shall be designed and constructed in accordance with the criteria contained in this ~~~P.~;:~:'G:;~J~~~;:~~~~~~P:~:-[~;;,~t~_~~~i!~~:~~[~~~~~J~~}~~~~::~~;~~7;:: :;~~;~:~~_ .1. -.. - { Deleted: Master the upgrading of any existing facilities which do not meet current standards. . .. . . . Land DeveloDment Code Oty of CoIIeYVIlle. Texas .Current Reaulations Showing Proposed Chanaes .. ------------------.- Section 9.12 General Infrastructure Policy .8. Apportionment of Infrastructure Costs - As a condition of the approval of a development. the developer's"'.: portion of the costs mav not exceed the amount reauired for infrastructure improvements that are rouahlv proportionate to the proiected impact of the proposed development. as determined bv a professional enQineer. licensed in the State of Texas. and who is retained bv the City of Collevville. The basis used for determinina estimated costs shall be revised annuallv on Julv 1 bv the Collevville Enaineerina Department. A developer who disputes the determination bv said professional enQineer may appeal to the Citv Council and present testimony and evidence in support of the appeal. The developer shall not be reQuired to wave the richt to appeal as a condition of approval for a development proiect. C. Optional Escrow Provision - Where, in the opinion of the City, construction of a required public facility should be deferred to a future date, the developer shall place in escrow with the City an amount equal to the estimated cost of the improvements as determined by the City Engineer. The Planning and Zoning Commission or City Council may consider an altemate arrangement when appropriate. D. Citv Participation in Oversizina - W~~~~_ ~,,~~!:~[I)g _Qf. a. p~.~!i~ .(~~j!i!y_ j~_ f~ql!if~_ _~y_ !~,~_ ~~r:Dpr~~.~!l.Sil..~_~:i Master Plan, Thoroughfare Plan, Water or Sewer Capital Improvements Plan or other planning document adopted by the City, City participation shall be in accordance with the provisions of any applicable Impact Fee Ordinance or city-developer agreement which has been approved by the City Council. .. YE.... -Pub-lie - Easements '.:--~!( j?~j?[i~ I~~jOji~~: ~~~O: ~~: ~~:~(~i;t~~: ~j(~h ~~~~iTI~~t~ :9!: r!9h(~~!~~i (~~( :~~~~ :.l been dedicated for publiC use. The width of an easement or right-of-way shall be in accordance with the . . specifications contained elsewhere in this land Development Code. Section 9.16 Street Improvement Requirements A..' .General ReC1Ulremeni" ~ "the' deve.loper .sh-alf construct, - at -hiS - expense',. street' facij~je-s - necessary- for "the..:::l /../ proper development of the subdivision. The street system shall provide access to every lot in the :' ::-:: subdivision and be designed and constructed in accordance with the criteria contained in this land ,:.:::.: Development Code. /7 ... . ,f " .8. ImQrovements to Existina Unimproved Streets and Utilities - J~.i~, ~~~~q!l.J_~ ,~'pp'lj~J;l!~..~q _ a proposed~.fl' development situated adiacent to an existing ~!~~t~_munici~al l!~i!it~_that does not meet current J' standards contained in this land Development Coda. _.... _......,.......... __....... _.............................._ ~ . ,J[1JP'!?I(fJ-'!'.f!!l.~~ _ ~!3.g_~~~cj _ -:-. _1.( .~, ,p~~p~~~~ _ _~~_b~_i~i~,i~r:' _ _i~ _ ~!~I:I~~~~_ _ ~_dj~~~~ ,tq, _~n, . ~_xi.~~i~9. ,~!reElt _ o.r _I: . : . . municipal utility which does not meet the standards contained in this land Development Code, the developer shall bear the cost for constructing the infrastructure. [r:I"!p_r_q,,~r:D~I)!~_ reguired bv the land I. __.. Development Code in accordance with the General Infrastructure Policv contained elsewhere in this land Development Code.,.. ...... _.... _... __ . ......... _ __ __ ...................... _ no on _....... no _.. . . . .Chapter 9 - subdi~Sion Design & Public FaCilities .-----.----.-------------.--.Paie9~- .~ Formatted: Font: 14 pt, Bold Formatted: Centered Deleted: This policy may be further defined and supplemented by other ordinances adopted by the City. . Deleted: 9.12.A . OPTIONAL EscRow PROVISIO~ 11 Formatted: Indent: Hanging: 0.25" .. . .' . .' Formatted: Indent: Hanging: 0.25" Deleted: 9.12.8 . CITY PARTICIPATION IN OVERSIUNG'I 11 . Deleted:. Deleted: 9.12.C. PUBUC EAsEMENTS1 11 Deleted: 9.16.A . GENERAL :" REoUIREME!n1 , Formatted: Indent: Hanging: 0.25" Deleted: 9.16.8. IMPROVEMENTS TO :' ExISTING UNIMPROVED STREETS AND UTILITIES (Oni. 0-01-1314/12-18- 01)t 11 . Deleted: 1. ADolicabilitv - :, Deleted: only Formatted: Indent: Left: 0" , Deleted: unimproved s Deleted: s Deleted: and Deleted:ies Deleted: adjacent to a proposed development.lI Deleted: 2 Formatted: Font: Italic, No undertine Deleted: all of the street or utility Deleted: which directly abut the area being subdivided or otherwise developed -- IIId Develooment Code 0tY of CoIIeYVllle. Texas For the purpose of this regulation, the calculation used for estimatina the reconstruction cost for an unimproved street ~I)~IJ _ !!l~t~~_~ _ ~tl_ ~~~~.t_ .P~~!t:I9.,- _~_~ _ ~~ _ g"'~~!'L ~i~~t~~J _ h!~~_ _l!l~ct _1?~~_ _~~!~,. _. water and sewer utilities, and drainage improvements" The im.provements shall be sized in accordance with the most recently approved Master Thoroughfare .pian - or - capiiai. improvements- - - - - - - - Plan, whichever is applicable. k -.~~~~lffi~n:~Wo~~ili~~e~~)~~:~r~~~7ih:-~~ti:~:i~~;-tt~:~~j~~~r~~)~io~~t:: -:::::: i =. Foot. Italt No uOOel1kle and utility improvements in-lieu of the actual construction of said facilities. Any escrow, without - .., interest, shall be applied against any assessment for improvements levied on such property, but shall not be deemed to release such property from liability for any future costs assessed which exceed the escrow. DeIeIecI: Improvements DeIetIld: for that half of such unimproved street adjacent to the development ;\ __a~r'~61%::rid-1~~ ~~Z:~~!d~~~~~~~- ;ni ~~(::=:p~~~~!r~ -~~o~::~af~~!~~~~:~~: -.::- - { DeIeIecI: 4 developer shall pay the applicable perimeter street charge in accordance with the General .{ Formatted: Foot: Italic, No uncIerlIne Infrastructure Policy contained elsewhere in this Land DeveloDment Code '~r _~~ J~~! _ ~!'!~_ h~_~~.~~_ _ _ _ . . - - { DeIeIlIId: established by the City Council feet of street frontage. The applicable perimeter street charge shall be reduced 0.2% per linear foot of frontage in excess of one hundred feet, not to exceed fifty percent of the applicable additional street frontage. Exemption: A lot platted under this Section that contains an existing single-family dwelling at the time a subdivision Dlat aDDlication has been filed with the City and the lot is situated within a zoning district that allows single-family residential uses. said lot shall have an automatic exemption from the perimeter street charge, provided that existing perimeter street facilities are sufftclent to assure the safe, effective and orderly movement of traffic in and about the subdivision and utility services are adequate to serve the development. The following notation shall be placed on the plat: "Any future divisions of these lots will require full compliance with the unimproved street requirements applicable at the time of any subsequent replatting. U Iter 9 - Subdivision Design & Public Facilities Page 9- 2 Meeting Minutes January 12, 2004 Chairman Wall called the meeting of the City of Colleyville Capital Improvements Advisory Committee to order at 6:30 P.M. on January 12, 2004. Roll Call: Present: Bruce Kelly, Bob Culley, Jeff Byerly, Mark Jones, Larry Cole, Andrew Wayne, Jeff Wall Absent: Earl Swift, Bud Sellers Staff: Barry LeBaron, Clayton Husband, Jan Levy Approval of Minutes: August 12,2002 Committee Member Bob Culley moved to approve the minutes of the August 12, 2002 meeting as written. Committee Member Bruce Kelly seconded the motion. The motion passed by a unanimous "Aye" voice vote. Agenda Items: 3. Discussion of a draft proposal by Grady Walker to the Capital Recovery Fee Ordinance for secondary meters for irrigation purposes, Case G-03- 036 Mr. Barry LeBaron presented the case to the committee members and reviewed the staff briefing. Mr. Grady Walker, 7309 John McCain Road, was present to represent the case to the committee members. He said he reviewed the survey of other cities and took out the loopholes. He commented on personal use of water. Committee member Mark Jones suggested the City should consider a six month waiver to monitor the usage. The committee members and Mr. Walker entered into discussion about the proposal; the number citizens who may want to take advantage of the plan; the usage patterns relating to time; and the possible impact on the City. Committee Member Bob Culley moved to recommend to City Council, in lieu of making a decision for or against the proposal, that they allow Mr. Walker and four or five others to proceed with the plan in exchange for the data needed to initiate a policy waiving the impact fees and monitor the results rather than paying consultants to prepare a report. Committee Member Larry Cole seconded the motion. Committee Member Mark Jones recommended the City select users from diverse areas throughout the City. The vote being: Ayes: Cole, Kelly, Culley, Byerly, Jones, Wayne, Wall Noes: None 4. Staff Reports Mr. Barry LeBaron distributed copies of the status of funds for the two service areas and reviewed the report. ADJOURNMENT: The meeting adjourned at 7:22 p.m. Respectfully Submitted, is cl>I4 Ie 1S~ Barry LeBaron Community Development Director Approved on: -------------------------- CUy O( ccen~ CAPITAL IMPRO~MENS ADWSORY COMMITTEE AGENDA BRIEFING TexaS Meeting Date: \ November 14, 2005 I Prepared by: I Barry LeBaron Develooment Director Subject: I Orientation on the Water, Sewer and Roadway Impact Fee Study i update by Kimley Horn and Associates STAFF REVIEW COMMENTS Chapter 395 of the Texas Local Government Code provides the statutory authority for municipalities to collect water, sewer and roadway impact fees to pay for the expansion of major public facilities, due to the additional demands placed on these systems by new development. Colleyville first began collecting roadway and water impact fees in 1990, and added the collection of sewer impact fees in 1995. Texas law requires communities, which collect impact fees, periodically update the related water, sewer and roadway capital improvement plans and recalculate the applicable fee schedules. This update process is required every five years. Kimley Horn and Associates, an engineering consulting firm located in Fort Worth, is currently in the process of updating the required documents. This firm also prepared the Capital Improvement Plans in 2000. Representatives from Kimley Horn and Associates will be making a presentation to the Capital Improvements Advisory Committee to provide an orientation and overview of the impact fee development and collection process. The Capital Improvements Advisory Committee is composed of the members of the Planning and Zoning Commission, one developer representative (Larry Cole) and one realtor representative (Andrew Wayne). The composition of the Committee is mandated by the Local Government Code. RECOMMENDATION No official action is anticipated by the Committee on this agenda item. Agenda Item No.1 - Page 1 cce~ l'exas cAPITALIMPRO~MENSADWSORYcOMMITTEE AGENDA BRIEFING Subject: November 14, 2005 Prepared by: I D sal rry LeBtaDr~:m t eve 0 men Irec or Discussion of the proposed amendment to the Land Developmen Code re arding apportionment of infrastructure costs Meeting Date: STAFF REVIEW COMMENTS In 2004, the Texas Supreme Court issued a significant decision in the case of Town of Flower Mound v. Stafford Estates, Ltd. Partnership regarding the apportionment of infrastructure costs as a condition to subdivision plat approval by a municipality. Reference in the case was made to two U.S. Supreme Court cases, Nolan v. California Costal Commission (1987) and Dolan v. City of TiQard (1994), in ruling that exactions/dedications must (1) bear an essential nexus to the substantial advancement of some legitimate governmental interest, and (2) be roughly proportional to the projected impact of the proposed development. As a result of the 2004 Texas Supreme Court decision, the 79th Texas Legislature, during the legislative session held earlier this year, produced an amendment to the Texas Local Government Code to impose new subdivision approval requirements on municipalities. Attached is a copy of HB1835, which generally states that the developer's portion of the costs associated with any required infrastructure improvements must be proportional to the projected impact of the proposed development. Under the new Texas law, municipalities can no longer simply require a developer to build one-half of the abutting unimproved roadways. Roadway and utility improvement requirements must be proportional to the demand generated by the development as determined by a professional engineer retained by the municipality. The new Texas law does not outline any particular formula for determining rough proportionality, but mandates that the approval of any method used, be approved by a professional engineer employed by the municipality making the calculations. Staff contacted several area cities to determine their status in complying with the new Texas law and discovered that only the City of Cedar Hill has amended its code to comply with the new requirement. Most of the other cities contacted are in various stages of development in preparing compliance methods. Staff drafted a proposed amendment to Sections 9.12 and 9.16 of Chapter 9 of the Colleyville Land Development Code to modify the language regarding street and utility improvements for purpose of bringing the current subdivision regulations into compliance with the new state law.. Attached is a copy of the applicable sections of the Land Development Code showing the proposed changes to the text of the regulations. Agenda Item No.2 - Page 1 Staff will be discussing with the Committee the issues associated with the tasks and issues associated with developing a methodology to determine rough proportionality. Representatives from Kimley Horn and Associates will also be available to provide input during the discussion. At the October 18, 2005 Pre-Council Meeting, the City Council requested the comments, input and recommendations on this issue from the Capital Improvements Advisory Committee. Recommendation Approval of the proposed amendment to the Land Development Code Attachments · HB1835 . Current Regulations Showing Proposed Changes Agenda Item No.2 - Page 2 House Bi111835 H.B. No. 1835 1 AN ACT 2 relating to the apportionment of municipal infrastructure costs ln 3 regard to certain property development proj ects. 4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 5 SECTION 1. Subchapter Z, Chapter 212, Local Government 6 Code, is amended by adding Section 212.904 to read as follows: 7 Sec. 212.904. APPORTIONMENT OF MUNICIPAL INFRASTRUCTURE 8 COSTS. (a) If a municipality requires as a condition of approval 9 for a property development project that the developer bear a 10 portion of the costs of municipal infrastructure improvements by 11 the making of dedications, the payment of fees, or the payment of 12 construction costs, the developer's portion of the costs may not 13 exceed the amount required for infrastructure improvements that are 14 roughly proportionate to the proposed development as approved by a 15 professional engineer who holds a license issued under Chapter 16 1001, Occupations Code, and is retained by the municipality. 17 (b) A developer who disputes the determination made under 18 Subsection (a) may appeal to the governing body of the H.B. No. 1835 1 (c) A developer may appeal the determination of the 2 governing body to a county or district court of the county in which 3 the development project is located within 30 days of the final 4 determination by the governing body. 5 (d) A municipality may not require a developer to walve the 6 right of appeal author ized by this section as a condition of 7 approval for a development proi ect. 8 (e) A developer who prevails ln an appeal under this section 9 is entitled to applicable costs and to reasonable attorney's fees, 10 including expert witness fees. 11 (f) This section does not diminish the authority or modify 12 the procedures specified by Chapter 395. 13 SECTION 2. The change in law made by this Act applies to the 14 approval of a development project that is not finally adjudicated 15 before the effective date of this Act. 16 SECTION 3. This Act takes effect immediately if it receives 17 a vote of two-thirds of all the members elected to each house, as 18 provided by Section 39, Article III, Texas Constitution. If this 19 Act does not receive the vote necessary for immediate effect, this 20 Act takes effect September 1, 2005. President of the Senate H.B. No. 1835 Speaker of the House I certify that H. B. No. 1835 was passed by the House on Apr il 27, 2005, by the following vote: Yeas 147, Nays 0, 1 present, not voting; that the House refused to concur in Senate amendments to H.B. No. 1835 on May 23, 2005, and requested the appointment of a conference committee to consider the differences between the two houses; and that the House adopted the conference committee report on H.B. No. 1835 on May 29, 2005, by the following vote: Yeas 142, Nays 0, 2 present, not voting. Chief Clerk of the House H.B. No. 1835 I certify that H.B. No. 1835 was passed by the Senate, with amendments, on May 20, 2005, by the following vote: Yeas 30, Nays 1; at the request of the House, the Senate appointed a conference committee to consider the differences between the two houses; and that the Senate adopted the conference committee report on H.B. No. 1835 on May 28, 2005, by the following vote: Yeas 31, Nays O. Secretary of the Senate APPROVED: Date Governor BILL ANALYSIS C.S.H.B. 1835 By: Talton Urban Affairs Committee Report (Substituted) BACKGROUND AND PURPOSE In 2004, the Texas Supreme Court, in Town of Flower Mound v. Stafford Estates, Ltd. Partnership, 135 S.W.3d 620 (Tex. 2004), issued a significant decision regarding Texas law relating to exactions/dedications imposed by governmental entities as conditions to issuing permits for the development of property. The court restated and followed the rules established in two landmark U.S. Supreme Court cases, Nollan v. California Coastal Com'!!, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), in ruling that exactions/dedications that are made as a condition of development permit approvals which do not (1) bear an essential nexus to the substantial advancement of some legitimate governmental interest, and (2) are not roughly proportional to the projected impact of the proposed development, violate federal and state constitutional provisions prohibiting the taking of private property for public use without just compensation. The Texas Supreme Court also ruled that state law does not entitle a developer to recover attorney's fees or expert witness fees. HB 1835 codifies the decision made in Stafford Estates, that a developer may dispute a condition of approval for a property development project that requires a developer to bear a portion of the costs of municipal infrastructure improvements, and establishes that the developer may recover attorney's fees and expert witness fees when a developer prevails in an appeal. RULE MAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution. ANALYSIS Adds Section 212.904 to the Local Government Code to establish that a developer may dispute a condition of approval for a property development project that requires a developer to bear a portion of the costs of municipal infrastructure improvements beyond the municipalities minimum adopted standards for on-site development. The developer's portion of the cost may not exceed the amount required for infrastructure i are rou h1 ro ortionate to the proposed developme . The developer may not be required to waive tm right of appeal as a con 1 . or a develo ment ro' ect. A developer who disputes the determination by the municipality may appeal to the governing ody of th~J!lunicipality and may present testimony and evidence under rocedures adopted by that municipality. A eveloper may then appeal the determination of the governing body to a county or district court of the county: The party that prevails in an appeal is entitled to applicable costs and reasonable attorney's fees, including expert witress fees. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute requires that a municipality make a determination on an appeal thirty days after hearing the appeal and that a developer may appeal the decision of the municipality within thirty days of final determination. In addition, the substitute defines prevailing party as it applies to the new section to make certain a party may receive attorney and expert witness fees even if there is not a judgment, but court proceeding have advanced to the point where these fees are warranted. A. General Reauirement - The developer of a subdivision shall install all water, sewer, street, sidewalk I and drainage improvements,,_ _ ~!!~_ _ ~!!y_ ~~~~~ _ f~~!ltj~.!! _ r~!1.ir~9 _ _~y_ JN~ _ J.,~!!~_ _ ~~~!()~I!I~I)~ _ G~~ _ ~~J~ _ _~r~_ _ _ - - - { Deleted: facilities necessary for the proper development of the subdivision. The design, construction and inspection of any public facilities shall be a cost to the developer, unless the City has entered into an agreement for cost sharing. All such facilities shall be designed and constructed in accordance with the criteria contained in this ~~~P.~;_:~:G:;~J~~~;'{~~~~~ ?~~=T.h~~~,~t~_~~~i)T;~:~~[~~~~~t~_~~~~~:~~~~~;: :p-u~~;~:_~~_ .1, _ - - - { Deleted: Master the upgrading of any existing facilities which do not meet current standards. . ". . . Land DeveloDment Code Qtv of CoIIeYViIIe. Texas .Current Reaulations Showing Proposed Chanaes _________________~ Section 9.12 General Infrastructure Policy J} Apportionment of Infrastructure Costs - As a condition of the aQQroval of a development. the developer's,": portion of the costs mav not exceed the amount reQuired for infrastructure improvements that are rouahlv proportionate to the proiected impact of the proposed development. as determined by a professional enoineer. licensed in the State of Texas. and who is retained by the City of Collevville. The basis used for determinino estimated costs shall be revised annually on July 1 by the Collevville Enoineerina Department. A developer who disputes the determination by said professional enQineer may appeal to the City Council and present testimony and evidence in support of the appeal. The developer shall not be reauired to wave the riaht to appeal as a condition of approval for a development proiect. C, Optional Escrow Provision - Where, in the opinion of the City, construction of a required public facility should be deferred to a future date, the developer shall place in escrow with the City an amount equal to the estimated cost of the improvements as determined by the City Engineer. The Planning and Zoning Commission or City Council may consider an altemate arrangement when appropriate. D. City Participation in OversizinQ - W~~~~,~'!~~[~ll)g_Qf.~_P-!J_Q!i~J~~j[i~,j~,f~g.l!lr~~__~y_~~_~_G~l)'!pr~~_~!1_~iy~:i Master Plan, Thoroughfare Plan, Water or Sewer Capital Improvements Plan or other planning document adopted by the City, City participation shall be in accordance with the provisions of any applicable Impact Fee Ordinance or city-cleveloper agreement which has been approved by the City Council. .. YE,.,. 'Putillc - Easements -'::A.!( J?~}?[i~ I~~j(iji~~: ~6~O: ~~: ~~:~(~~~~: wi(6h ~?~~i'ii~~t~ :~f: f!9h(~~f~~1: (6~( :6~Y~:.:I/ been dedicated for public use. The width of an easement or right-of-way shall be in accordance with the specifications contained elsewhere in this Land Development Code. Section 9.16 Street Improvement Requirements A'-. - - -General Rec.lulremerif:": the' dElve-loper -shall construc( - at -hiS - expense',' street - facijltle's - riecessaiY- torthe)l :,.::,', proper development of the subdivision. The street system shall provide access to every lot in the : ,:, subdivision and be designed and constructed in accordance with the criteria contained in this Land :"/,, .. Development Code. :',;. ." ::' :, .s. Improvements to Existing Unimproved Streets and Utilities - .T~J~ ,~~~le?!1.J_~ ,-Elpp'lj~~~_ .t_e? _ a proposed~fl":...': development situated adiacent to an existing .et~~~t9k municipal ~ti!it~ _ that does not meet current". standards contained in this Land Development Code.. __ __ _ __ __ _ __ __ _ __ _ __ _ __ __ __ _ _ __ __ __ _ __ __ __ __ _ __ __ __ __ _ __. _ __ .1.t _ _ J[1!Pt:l!~-'!!f![!~~ , ~~I.!~~11. _:-. ,I,~ ,~, ,p~~p~~~~ _ ,~~_~~,iv.i~.i~':l_ _i~. ,~!~':l~~~~, ~,~j~~~t _ t<?, ,l:I~, . ~xi_sti~g_ ,~!~t _ o_r _ L _ _ _ _ municipal utility which does not meet the standards contained in this Land Development Code, the developer shall bear the cost for constructing the infrastructure.1I!1P.r.l?'!~I!I~I)~_ reguired bv the Land -1-' ___ Development Code in accordance with the General Infrastructure Policv contained elsewhere in this Land Development Code. __ _ __, _ _ _ __ __ _ . _ _ _ __ _. _ _ _ __ __ _ _ __ _ _ _ _ _ _ __ _ _ __ _ _ __ __ __ __ _ _ _ __ _ _ _ _ __ _ _ _ _ _ __ _ _ _ _ __ _ _ _ __. _ _ _ .. _. . Chapter 9 - Subdivision DeSign & Public Facilities Page 9- 1 [ Formatted: Font: 14 pt, Bold Formatted: Centered Deleted: This policy may be further defined and supplemented by other ordinances adopted by the City. Deleted: 9.12.A ' OmONAL EsCROW PROVISIO~ , Formatted: Indent: Hanging: 0.25" " " " Formatted: Indent: Hanging: 0.25" Deleted: 9.12.8 _ CITY PARTICIPATION INOVERSWNG1" , , Deleted: 'I Deleted: 9.12.C PUBUC EAsEMENm , Deleted:~I~_GENE~ : REOUJREME!!!.1 , Formatted: Indent: Hanging: 0.25" : Delebld: 9.16.8 _ IMPROVEMENTS TO ,: ExISTING UNIMPROVED STREETS AND UTILITIES (Ord, 0-01-1314/12-18- 01 J'I 11 , Deleted: 1, ADOlicabllitv - , Deleted: only Formatted: Indent: Left: 0. , Deleted: unimproved s Deleted: s Deleted: and Deleted: ies Deleted: adjacent to a proposed development1l Deleted: 2 Formatted: font: Italic, No underline Deleted: all of the street or utility Deleted: which directly abut the area being subdivided or otheIWise developed --- IIId Develooment Code Otv of CoIIeYVllIe. Texas For the purpose of this regulation, the calculation used for estimatina the reconstruction cost for an unimproved street ~~~IJ _ !~~_l!~_~ _ ~tl_ ~t~~~_ P~Y~~9,_ _~~_ ~~~_ gtJ~~f,_ ~i~~I_~~L h~~~_ _~!1~_ _I?~~ _~~~~,_ _ _- water and sewer utilities, and drainage improvements._ m I~~U!!1P~~~!1t~ H~!l~!U:~~U.J~~t j~__ _ _ _ p_ accordance with the most recently approved Master Thoroughfare Plan or Capital Improvements Plan, whichever is applicable. ~--~~~~lffi~n~~~~ih~:e:~)~~:~~t~TI~:-~~t~~i:~~:o~~~~l~~~n~~~~io~~t::- ::::::{ =. Foot. Ital~ No uOOerHne and utUity improvements in-lieu of the actual construction of said facilities. Any escrow, without . .., interest, shall be applied against any assessment for improvements levied on such property, but shall not be deemed to release such property from liability for any future costs assessed which exceed the escrow. DeIetIed: Improvements DeIetIed: for that half of such unimproved street 8djacent to the development ~--.~'?~6!f::~-1~~~:~:~r!d~~~~:~-~rii ~~~~s:t;:~~-~jrk:~Jf~~~ar~~!~~~~;~~: - :::. f =a:.:. Font. Italk:, No uncB1lre developer shall pay the applicable perimeter street charge in accordance with the General . . Infrastructure Policv contained elsewhere in this Land DeveloDment Code l~r _ ~~ J!1~~! _ ~!!~_ htJ_~_~_ _ _ _ _ - - - { Deleted: established by the City Council feet of street frontage. The applicable perimeter street charge shall be reduced 0.2% per linear foot of frontage in excess of one hundred feet, not to exceed fifty percent of the applicable additional street frontage. exemption: A lot platted under this Section that contains an existing single-family dwelling at the time a subdivision Dlat aDDlication has been filed with the City and the lot is situated within a zoning district that allows single-family residential uses. said lot shall have an automatic exemption from the perimeter street charge, provided that existing perimeter street facilities are suffICient to assure the safe, effective and orderly movement of traffic in and about the subdivision and utility services are adequate to serve the development. The following notation shall be placed on the plat: -Any future divisions of these lots will require full compliance with the unimproved street requirements applicable at the time of any subsequent replatting. " Iter 9 - Subdivision Design & Public Facilities Page 9- 2