§ 30-112. Appeal for relief from apportionment of municipal infrastructure costs.

(a)

Purpose and applicability.

(1)

Purpose. The purpose of an appeal for relief from a dedication, reservation, construction, payment of fees, or payment of construction cost requirement is to assure that the application of uniform apportionment of municipal infrastructure costs to a proposed master plan or plat is roughly proportionate to the proposed development, taking into consideration the nature and extent of the demands created by the proposed development on municipal infrastructure.

(2)

Applicability. An appeal for relief under this section may be filed only to contest the roughly proportionate nature of any apportionment that is imposed under this chapter to a master plan or plat application or to any other development application authorized under this chapter, whether the requirement is pursuant to uniform standards, or attached as a condition to approval of the application. It is the developer's responsibility to determine the burden of proof of roughly proportionate. An appeal under this section shall not be used to seek variation from a standard on grounds applicable to a petition for a waiver under section 30-110. Relief under this provision may not be sought for a recorded plat.

(3)

Effect. If the relief requested under the petition is granted in whole or in part by the city council, the requirement initially imposed shall be modified accordingly, and the standards applied or the conditions attached to initial approval of the application shall be thereafter applied in accordance with the relief granted, and the property owner will not be required to resubmit the application in order to get the benefit of the relief granted.

(b)

Appeal procedures.

(1)

Roughly proportionate analysis; who may appeal. If an applicant for master plan or plat approval disagrees with the roughly proportionate nature of the apportionment at any time in the master plan's or plat's review process, he should so advise the city in writing no later than two weeks before such master plan or plat would be considered by the commission. The city engineer or other professional engineer retained by the city shall prepare a roughly proportionate analysis prior to consideration of the master plan or plat by the commission, the fees for which shall be paid by the applicant. If the city engineer's analysis shows the apportionment of the municipal infrastructure costs to the applicant's development do not exceed the amount that is roughly proportionate to the development's impact and the applicant disagrees with such analysis, the applicant may appeal in accordance with this section.

(2)

Planning and zoning commission action. The commission may not approve a master plan or plat for which an appeal in accordance with this section has been applied until the city council has made its decision on the appeal.

(3)

Form of appeal. The appeal for relief from an apportionment requirement shall be in the form of a petition to the city council and allege that application of the standard or the imposition of conditions relating to the apportionment is not roughly proportional to the nature and extent of the impacts created by the proposed development on municipal infrastructure.

(4)

Evidence. The petitioner shall demonstrate that the apportionment requirement that was applied is not roughly proportional to the proposed development's impact on municipal infrastructure. Written evidence presented on behalf of an appellant at any appeal hearing may include evidence that addresses any of the following information that may be pertinent to the circumstances and any other information the appellant deems necessary to the appeal:

a.

Total capacity of the particular municipal infrastructure system to be utilized by the proposed development, employing standard measures of capacity and equivalency tables relating the type of development proposed to the quantity of system capacity to be consumed by the development. If the proposed development is to be developed in phases, such information also shall be provided for the entire development proposed, including any phases already developed.

b.

Total capacity to be supplied to the particular municipal infrastructure system by the proposed apportionment. If the development application is part of a phased development, the information may include any capacity supplied by prior apportionments.

c.

Comparison of the capacity of the municipal facilities systems to be consumed by the proposed development with the capacity to be supplied to such systems by the proposed apportionment. In making this comparison, the impacts on the municipal infrastructure systems from the entire development shall be considered.

d.

The effect of any credits against any impact fees due the petitioner as a result of the apportionment in accordance with the city's requirements.

e.

The effect of any city participation in the costs of over-sizing the capital improvement to be constructed.

(5)

Time for filing petition and study. The petition shall be filed with the city within 90 days of the initial decision on the application. Where the apportionment requirement is applicable to more than one requirement, the petition may be filed following a decision on any application in which the requirement is applied. The study and any evidence in support of the petition shall be filed within 90 days of the date the petition was filed, unless the petitioner seeks an extension in writing. The city engineer may extend the time for submitting the study or other evidence for a period not to exceed an additional 60 days for good cause shown.

(6)

Land in extraterritorial jurisdiction. Where the subject municipal infrastructures are located in the extraterritorial jurisdiction of the city and are to be dedicated to the County pursuant to an inter-local agreement under V.T.C.A., Local Government Code ch. 242, a petition and evidence in support of the petition shall not be accepted as complete for filing by the city engineer unless the petition or study or other evidence is accompanied by verification that a copy has been delivered to the county.

(c)

Processing of petitions and decision.

(1)

Administrative official.

a.

The building official is the administrative official responsible for processing an apportionment. Where the petition is for the appeal from an apportionment in the city's extraterritorial jurisdiction that is to be dedicated to the county pursuant to an inter-local agreement under V.T.C.A., Local Government Code ch. 242, the building official shall coordinate a recommendation with the appropriate county official responsible for reviewing plats in the county.

b.

The building official shall submit the petition to the city engineer, who shall evaluate the petition and supporting study and other evidence, and shall make a recommendation to the city council based upon the information contained in the study, any comments received from the county, and the appropriate city officials. In evaluating the petition and other evidence, the city engineer shall take into account the maximum amount of any impact fees to be charged against the development for the type of municipal infrastructure improvement that is the subject of the petition and any credits due the petitioner against impact fees, as well as any traffic impact, drainage or other adequate facilities studies evaluating the impacts of the development or similar developments on municipal infrastructure. The city engineer must utilize generally accepted methodology in evaluating the petitioner's study, including, but not limited to, impact fee methodologies.

(2)

Decision-maker. The city council shall decide the appeal for relief based on the criteria set forth in subsection (d) of this section.

(3)

Appeal hearing and decision time frames.

a.

The city council shall consider the request after an appeal hearing on the subject is held.

b.

The city council shall hold the appeal hearing and consider the petition within 30 days of the submission of the study and any other evidence submitted on behalf of the appellant in support of the appeal.

c.

The city council shall make a final decision within 30 days following the final submission of any testimony or evidence by the developer at the appeal hearing.

(4)

Decision. The city council shall consider the petition for relief, the analysis prepared by the city in accordance with subsection (b)(1) of this section, and the evidence presented, and based upon the criteria set forth in subsection (d) of this section, and shall take one of the following actions:

a.

Deny the appeal for relief, and impose the standard or condition in accordance with the initial decision;

b.

Deny the appeal for relief, upon finding that the proposed requirements are inadequate to offset the impacts of the development on the municipal infrastructure, and either deny the application or require that additional apportionments for municipal infrastructure be made as a condition of approval of the application;

c.

Grant the appeal in part and add such conditions of approval to the application as it deems appropriate;

d.

Grant the appeal for relief, and waive in whole or in part any apportionment requirement necessary to meet the criteria for approval; or

e.

Grant the appeal for relief, in whole or in part, and direct that the city participate in the costs of the particular municipal infrastructure.

(5)

Notification of decision on appeal. The petitioner shall be notified in writing of the decision on the appeal for relief by the building official within ten days following the decision.

(d)

Criteria for approval. In deciding the appeal for relief from an apportionment, the city council shall determine whether the petitioner has demonstrated that the city apportionment is not roughly proportional to the proposed development's impact on municipal infrastructure. In making such determination, the city council shall consider the evidence submitted by the petitioner, the staff's report and recommendation and, where the property is located within the city's extraterritorial jurisdiction, any recommendations from the county.

(e)

Implementation of appellate decision.

(1)

When appeal for relief is granted. When the city council grants the appeal for relief, the date of the final decision will be deemed the date of approval of the application, and the city must process the application consistent with the relief granted.

(2)

When appeal for relief is denied. When the city council denies the appeal for relief, the date of the final decision will be deemed the date of denial of the application, and the petitioner must either withdraw the application or be prepared to make the required apportionment pursuant to the decision, as appropriate.

(3)

Where approval of the appeal was conditioned. The city may require the applicant to submit modified master plans, plats, construction plans, or supporting materials consistent with the relief granted and conditions imposed by the city council on the petition.

(4)

Period of relief. The relief granted on a petition shall remain in effect for the period that the master plan or plat approval is in effect, and shall expire upon expiration of the master plan or plat approval. Extension of the master plan or plat approval also shall result in extension of the relief granted on the petition.

(Ord. No. 041008-01, app. A, § 1-13, 4-10-2008)