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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