§ 1.10. Proportionality Appeal.

a.

Definitions. For purposes of this section:

1.

Public infrastructure improvement means a water, wastewater, roadway, drainage or park facility that is a part of one or more of the City's public facilities systems.

2.

Public facilities system means the collection of water, wastewater, roadway, drainage or park facilities owned or operated by or in behalf of the City for the purpose of providing services to the public, including existing and new developments.

b.

Purpose, Applicability and Effect.

1.

Purpose. The purpose of a proportionality appeal is to assure that a requirement to dedicate, construct or pay a fee for a public infrastructure improvement imposed on a proposed plat as a condition of approval does not result in a disproportionate cost burden on the property owner, taking into consideration the nature and extent of the demands created by the proposed development on the City's public facilities systems.

2.

Applicability. An appeal under this section may be filed by a property owner to contest any requirement to dedicate land, to construct improvements or to pay development fees, other than impact fees, for a public infrastructure improvement, which requirement is imposed under the City's Subdivision Regulations, whether the requirement is applicable under uniform standards, or is imposed pursuant to an individual evaluation of the proposed subdivision.

c.

Proportionality Determination by City Engineer. Prior to a decision by the Planning and Zoning Commission on a construction plat or development plat application, or if no construction plat or development plat application is required, on a final plat application, the City Engineer shall prepare a report affirming that each public infrastructure improvement to be imposed as a condition of plat approval is roughly proportionate to the demand created by the development on the City's public facilities systems, taking into consideration the nature and extent of the development proposed.

1.

In making his proportionality determination, the City Engineer may rely upon categorical findings pertaining to on-site improvements; the proposed or potential use of the land; the timing and sequence of development in relation to availability of adequate levels of public facilities; impact fee studies or other studies that measure the demand for services created by the development and the impact on the City's public facilities systems; the function of the public infrastructure improvements in serving the proposed development; the degree to which public infrastructure improvements to serve the subdivision are supplied by other developments; the anticipated participation by the City in the costs of such improvements, if any; reimbursements for the costs of public infrastructure improvements for which the proposed development is eligible; or any other information relating to the mitigating effects of the public infrastructure improvements on the impacts created by the development on the City's public facilities systems.

2.

Based upon his proportionality determination, the City Engineer shall affirm that the public infrastructure improvement requirements of the Subdivision Regulations do not impose costs on the developer for such improvements that exceed those roughly proportionate to those incurred by the City in providing public facilities to serve the development.

3.

The City Engineer may promulgate any application requirements that may assist in making the proportionality determination required by this subsection.

d.

Commission Determination. The Commission shall take into account the City's Engineer's report concerning the proportionality of public infrastructure improvement requirements to be applied to a proposed plat application in making its decision on the plat application, and shall identify any variation to the requirements that are to be included as conditions to plat approval.

e.

Appeals.

1.

Who May Appeal. An appeal to the City Council under this section may be filed by a property owner or the applicant for a plat, in which a requirement to dedicate land for, construct or pay a fee, other than an impact fee, for a public infrastructure improvement has been applied or attached as a condition of approval, or as grounds for denying the plat application.

2.

Time for Filing and Request for Extension of Time. The appeal shall be filed in writing within ten (10) days of the date the Planning and Zoning Commission takes action applying the public infrastructure improvement requirement to the plat application. The appeal shall be filed with the City Secretary and shall be forwarded to the City Council for consideration in conjunction with its deliberations on the plat application. The applicant may request postponement of consideration of the plat application by the City Council pending preparation of the study required by subsection (4), in which case the applicant shall also waive the statutory period for deciding plats for the time needed to decide the appeal by the City Council.

3.

Form of Appeal. An appeal under this section shall allege that application of the standard or the imposition of conditions relating to the dedication, construction or fee requirement is not roughly proportional to the nature and extent of the impacts created by the proposed development on the City's public facilities systems, or does not reasonably benefit the proposed development.

4.

Study Required. The appellant shall provide a study in support of the appeal that includes the following information within 30 days of the date of appeal, unless a longer time is requested.

f.

[Total Capacity to be Utilized.] Total capacity of the City's water, wastewater, roadway, drainage or park 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.

g.

[Total Capacity to be Supplied by Dedication.] Total capacity to be supplied to the City's water, wastewater, roadway, drainage or park facilities system by the dedication of an interest in land, construction of improvements or fee contribution. If the plat application is proposed as a phased development, the information shall include any capacity supplied by prior dedication, construction or fee payments.

h.

[Comparison of Capacity.] Comparison of the capacity of the City's public facilities system(s) to be consumed by the proposed development with the capacity to be supplied to such system(s) by the proposed dedication of an interest in land, construction of improvements, or fee payment. In making this comparison, the impacts on the City's public facilities system(s) from the entire development shall be considered.

i.

[Participation in Costs.] The amount of any City participation in the costs of oversizing the public infrastructure improvement to be constructed in accordance with the City's requirements.

j.

[Other Information.] Any other information that shows the alleged disproportionality between the impacts created by the proposed development and the dedication, construction or fee requirement imposed by the City.

k.

Land in Extraterritorial Jurisdiction. Where the subdivision or the public infrastructure improvements are located in the extraterritorial jurisdiction of the City and are to be dedicated to a county under an interlocal agreement under Texas Local Government Code, Chapter 242, an appeal or study in support of the appeal shall not be accepted as complete for filing by the planning and zoning administrator unless the appeal or study is accompanied by verification that a copy has been delivered to the county in which the facilities are to be located.

l.

Processing Application. The City Engineer shall evaluate the appeal and supporting study 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 City Engineer's analysis based upon the same factors considered in making his original proportionality determination. Where the appeal is for relief from dedication of rights-of-way for or construction of a facility in the City's extraterritorial jurisdiction that is to be dedicated to a county under an interlocal agreement under Texas Local Government Code, Chapter 242, the City Engineer shall coordinate a recommendation with the county responsible for reviewing plats in the county.

m.

Decision. The City Council shall decide the appeal in conjunction with its decision on the plat application. The Council shall base its decision on the criteria listed in subsection h., and may take one of the following actions.

1.

Deny the appeal, and impose the standard or condition on the plat application in accordance with the City Engineer's recommendation or the Planning and Zoning Commission's decision on the plat; or

2.

Deny the appeal, upon finding that the proposed dedication, construction or fee requirements are inadequate to offset the impacts of the subdivision on the public facilities system for water, wastewater, roadway, drainage or park improvements, and either deny the plat application or require that additional public infrastructure improvements be made as a condition of approval of the application; or

3.

Grant the appeal, and waive in whole or in part any dedication, construction or fee requirement for public infrastructure improvements to the extent necessary to achieve proportionality; or

4.

Grant the appeal, and direct that the City participate in the costs of acquiring land for or constructing the public infrastructure improvement under standard participation policies.

n.

Criteria for Approval. In deciding an appeal under this section, the City Council shall determine whether the application of the standard or condition requiring dedication of an interest in land for, construction of, or payment of a fee for public infrastructure improvements is roughly proportional to the nature and extent of the impacts created by the proposed subdivision on the City's public facilities systems for water, wastewater, roadway, drainage or park facilities, and reasonably benefits the development. In making such determination, the Council shall consider the evidence submitted by the appellant, the City Engineer's report and recommendation, considering in particular the factors identified in subsection (c), and, where the property is located within the City's extraterritorial jurisdiction, any recommendations from the county. Action Following Decision. If the relief requested under the proportionality appeal is granted in whole or in part by the City Council, the dedication, construction or fee requirement initially imposed by the Planning and Zoning Commission as a condition of plat approval shall be modified accordingly, and the standards applied or the conditions attached to Commission's approval of the plat application shall be conformed to the relief granted. Thereafter, the appellant shall resubmit the plat application to the City Council within ninety (90) days of the date relief under the appeal is granted, in whole or in part, showing conformity with the City Council's decision on the appeal.

o.

Expiration of Relief. If an applicant for plat approval prevails on a proportionality appeal, but fails to conform the plat to the relief granted by the City Council within the ninety-day period provided, the relief granted by the City Council on the appeal shall expire.

1.

The Council may extend the time for filing the revised plat application for good cause shown, but in any event, the expiration date for the relief granted shall not be extended beyond one year from the date relief was granted on the appeal.

2.

If the plat application is modified to increase the number of residential units or the intensity of non-residential uses, the responsible official may require a new study to validate the relief granted by the City Council.

3.

If the plat application for which relief was granted is denied on other grounds, a new petition for relief shall be required on any subsequent application.