HomeMy WebLinkAboutJanuary 25, 2005 Agenda AGENDA
CITY OF DENTON CITY COUNCIL
January 25, 2005
After determining that a quorum is presem, the City Council will convene in a Special Called
Work Session of the City of DeNon City Council on Tuesday, January 25, 2005 at 4:00 p.m. in
the City Council Work Session Room at City Hall, 215 E. McKinney, DeNon, Texas at which
the following item will be considered:
NOTE: A Work Session is used to explore matters of interest to one or more City Council
Members or the City Manager for the purpose of giving staff direction into whether or not such
matters should be placed on a future regular or special meeting of the Council for citizen input,
City Council deliberation and formal City action. At a Work Session, the City Council generally
receives informal and preliminary reports and information from City staff, officials, members of
City committees, and the individual or organization proposing council action, if invited by City
Council or City Manager to participate in the session. Participation by individuals and members
of organizations invited to speak ceases when the Mayor announces the session is being closed to
public input. Although Work Sessions are public meetings, and citizens have a legal right to
attend, they are not public hearings, so citizens are not allowed to participate in the session
unless invited to do so by the Mayor. Any citizen may supply to the City Council, prior to the
beginning of the session, a written report regarding the citizen's opinion on the matter being
explored. Should the Council direct the matter be placed on a regular meeting agenda, the staff
will generally prepare a final report defining the proposed action, which will be made available
to all citizens prior to the regular meeting at which citizen input is sought. The purpose of this
procedure is to allow citizens attending the regular meeting the opportunity to hear the views of
their fellow citizens without having to attend two meetings.
Receive a report, hold a discussion, and give staff direction regarding the drainage
department transfers to General Fund.
Receive a report, hold a discussion, and give staff direction regarding impact fee
administration as it relates to residemial and nonresidemial infill projects.
o
Receive a report, hold a discussion, and give staff direction regarding the City of
Denton's employee health benefits program.
Receive a report, hold a discussion, and give staff direction regarding the City of
Denton's workers' compensation program.
5. Hold a discussion and give staff direction regarding the 2004-2005 budget.
o
Suggestions for Agenda Committee on future agenda items and/or placement of items for
upcoming agendas.
NOTE: The City Council reserves the right to adjourn imo a Closed Meeting on any item on its
Open Meeting agenda consistent with Chapter 551 of the Texas Government Code, as amended,
including without limitation, Sections 551.071-551.086 of the Texas Open Meetings Act.
City of Denton City Council Agenda
January 25, 2005
Page 2
CERTIFICATE
I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the
City of Denton, Texas, on the day of ,2005 o'clock (a.m.)
(p.m.)
CITY SECRETARY
NOTE: THE CITY OF DENTON CITY COUNCIL WORK SESSION ROOM IS
ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT.
THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING
IMPAIRED IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED
MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE
TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800-RELAY-
TX SO THAT A SIGN LANGUAGE INTERPRETER CAN BE SCHEDULED THROUGH THE
CITY SECRETARY'S OFFICE.
AGENDA INFORMATION SHEET
AGENDA DATE:
DEPARTMENT:
ACM:
January 25, 2005
Utility Administration
Howard Martin, Utilities 349-8232
SUBJECT
Receive a report, hold a discussion, and give staff direction regarding the drainage
department transfers to General Fund.
BACKGROUND
During the FY2005 budget discussions council requested staff'bring back several topics
for further discussion, one of those being drainage, specifically as it relates to General
Obligation debt, franchise fee, and return on investment.
During FY 1999, the decision was made to move the drainage division from General Fund
to Utilities. The drainage division was setup in the Wastewater Fund, but funded with
water and wastewater revenues. Included in the transfer along with personnel and
operation costs, was the General Obligation (G.O.) debt. The total G.O. debt including
principal and interest amounts to $11,308,722 from 1999 - 2018 when the bonds mature.
The FY2005 payment for G.O. debt is $554,404. No additional G.O. debt has been
issued for drainage purposes since the transfer of drainage to Utilities. From FY2001 to
date $5.658 million of revenue bonds have been issued for drainage capital projects.
In January 2002, Council approved a drainage fee to fund drainage operations and capital
improvement plan (CIP). Estimated revenue from the drainage for FY2005 is $3.6
million. Total funding from water and wastewater revenues for drainage operations until
the drainage fee was approved was $7,281,875 (includes $2.437 million for G.O. bonds
and $.275 million for revenue bonds). After the drainage fee was approved in January
2002, drainage began paying a 4% franchise fee and 3.5% return on investment on those
revenues. The estimated payment to General Fund for franchise fee and return on
investment for FY2005 is $278,426.
Additionally, during the 2003 Texas legislative session, H.B. 2425 was approved, which
exempted state agencies from paying drainage fees. As a result of this change in the law,
the drainage division was forced to reduce their ongoing revenue projections by over
$250,000 each year. This exemption not only includes state owned facilities such as the
University of North Texas and Texas Woman's University, but other state facilities, as
well.
Attached as Exhibit 1 is the five-year drainage proforma presented to the Council on
August 5, 2004. The proforma includes watershed protection, which was added as a
component to the drainage operations in FY2003. As a result of the loss of revenue from
state agencies and additional expenses to the drainage budget, new capital projects are
currently not being funded.
At this time staff is requesting direction regarding drainage funding.
EXHIBITS:
1. FY 2005 five-year proforma
Respectfully Submitted:
Howard Martin
Asst. City Manager - Utilities
AGENDA INFORMATION SHEET
AGENDA DATE:
DEPARTMENT:
ACM:
January 25, 2005
Utility Administration
Howard Martin, Utilities 349-8232
SUBJECT
Receive a report, hold a discussion and give staff direction regarding impact fee administration
as it relates to residential and nonresidential infill projects.
BACKGROUND
The Texas Legislature enacted the first impact fee statute in Texas, effective August 28, 1989.
Nine years later, the City Council of the City of Denton first adopted water and wastewater
impact less by approval of Ordinance No. 98-301, on September 15, 1998. This ordinance was
later updated and amended in accordance with state law requirements by the current impact fee
Ordinance No. 2004-183 (Exhibit 1) on May 13, 2003. Recently, the City Council has requested
that staff'provide additional information related to impact fee implementation and its relationship
to infill development. This report will attempt to address this request by providing background
information related to the following:
1. The legal background with respect to impact fees in general and in Texas.
2. The prior policy decisions and directions to staff from the Public Utilities Board and City
Council related to impact fees for infill and/or affordable housing.
3. Current programs designed to address impact fees for infill and/or affordable housing.
Legal Background
The legal basis for impact fees is authorized through the city's police powers, not its taxing
power. Impact fees are a part of the development approval process. As such, requiring an
impact fee to provide adequate public facilities for water and wastewater services to a
development is similar to meeting site planning and zoning requirements. The legal basis for
impact fees is tied to the development exaction process and therefore must meet the "rational
nexus" and "rough proportionality" tests. First, there must be a reasonable connection between
the "need" for additional facilities and new development. Second, it must be shown that the fee
payer will "benefit" in some way from the fee. In addition, calculation of the fee must be based
on a proportionate "fair share" formula. For most water and wastewater impact fee systems, this
is done by assessing impact fees based upon the size of the water meter connected to the system.
Case law requires that impact fees be applied to all new users in a "proportionate share" manner
relative to their impact on public facilities. In the case of water and wastewater impact fees, this
equates to a method that relates to water demands taken from the system or wastewater loads
discharged into the system. This proportionate share requirement makes exemptions, waivers or
discounts to selected user groups, a potentially risky situation from a legal perspective (Exhibit
2). Since both infill development (as a separate issue from infill redevelopment) and affordable
housing both create new demands for water and wastewater service, just as does other new
residential and commercial developments, both developments have impact fee obligations to
consider. Two common methods used to help cities provide developmem incemives for infill or
affordable housing that comply with the legal basis of impact fees are:
· Providing variable rates based upon unit size or number of bedrooms that can be
supported by local data that relates the fee to water demands or wastewater loads.
· A policy decision by the governing body to fund the impact fee from other revenue
sources.
In the case of Denton's water and wastewater impact fee administration, both of these systems
are currently in use to some extent.
Impact fees in Texas must follow Chapter 395 of the Texas Local Governmem Code (Exhibit 3).
§395.016(g) outlines restrictions to impact fee reductions or waivers of impact fees for
affordable housing. The only other provisions for waivers relate to political subdivisions and are
comained in §395.022. Under DeMon's prior and currem impact fee ordinance, there are no
specific entities that are exempt from paying impact fees if they place new water demands or
wastewater loads to the system.
In the adoption of the impact fee ordinances in both 1998 and 2003, the city hired an impact fee
consulting firm (Duncan and Associates) from Austin that are recognized experts in the area of
impact fees. An article related to recommended methods to address the issues related to impact
fees and affordable housing is included in the back up (Exhibit 4) as additional background
information.
Prior Policy Decisions
The policy discussions related to impact fees and affordable housing date back to the passage of
Denton's first impact fee ordinance in 1998. The policy decision at that time was to not grant
waivers for affordable housing but to fund the impact fee for non-profit affordable housing
organizations (DeNon Affordable Housing and Habitat for Humanity) through a differem
funding source. Progress reports by staff to the Public Utilities Board and City Council related
to other implememation issues occurred in 2001 and 2002. Additional policy discussions by the
Public Utilities Board and City Council in 2003, leading up to the state-mandated impact fee
update study, resulted in the impact fee ordinance revisions reflected in the currem ordinance.
Prior policy direction to staff has been based on the principles that all new developments need to
pay impact fees. and that exemptions and waivers regarding the payment of impact fees have not
been included in the prior two impact fee ordinances. In addition, existing loopholes within the
original 1998 impact fee ordinance, that were perceived to restrict the city's ability to collect
impact fees from building permit-"exempt" entities, such as UNT and TWU, were eliminated in
the re-write of the impact fee ordinance in 2003.
The 2003 impact fee ordinance also imroduced specific language to recognize and support a
reduced impact fee for "infill developmem" that was defined as a single-family residence of less
than 1,300 square feet in size, constructed on a lot of 6,000 square feet or less. An "infill
development" that meets this criteria is assessed a reduced impact fee of 0.5 Single-Family
Equivalems (SFEs), rather than the 1.0 SFE typically assessed to single-family residences. The
rational basis for the reduced fee was the reduced water demand and wastewater load expected
from a small home on a small lot.
Current Programs for Infill/Affordable Housing
The city first elected to address the affordable housing impact issue by developing an affordable
housing impact fee gram incemive program. The program was instituted by a City Council
resolution (Resolution R2000-046 -Exhibit 4). This program was funded by the general fund as
a part of the annual budget process. The impact fee grant incentive program is currently
restricted to non-profit single-family affordable housing projects or non-profit multi-family
housing that meets specific criteria for rental to the elderly or disabled. To date, this grant
program has funded impact fees for a total of 37 housing units (from 1999 to 2003) at a total cost
of $77,074.
The redevelopment of existing properties that had prior active water and wastewater service is
addressed through provisions in the original and currem impact fee ordinance (§26-221).
Redevelopments of existing properties are credited for their existing meters and are only
assessed impact fees if they add additional new water demands or wastewater loads to the
system. The first implementation of these provisions was for the Walgreen's Drug Store on
Highway 380 at North Locust. This development received credits for the existing water meters
for the multiple single-family residential homes that were originally served on the site, and there
were no impact fees assessed for this redevelopment. A typical example of a redevelopment that
does occur, that requires payment of a partial impact fee, is an 8-unit multi-family apartment
building being built near UNT or TWU. These projects usually involve applying a credit for the
single-family homes being removed from the property, with an assessmem of an impact fee
based upon the difference between the SFEs of the prior uses of the property, and the proposed
redevelopment. If the applicant wants to individually meter each apartment unit, the SFEs
assessed for the new project are based on a 0.28 SFEs per bedroom basis, rather than a 1.0 SFE
per 3A-inch water meter basis.
§26-230(c) of the impact fee ordinance also allows paymem of an impact fee by the city through
another funding source. In addition to the affordable housing impact fee grant incentive program
previously discussed, the Water Utilities Department has also funded impact fees for situations
that could result in inconsistencies with prior policies related to the Utility Department. The
Water Utility had partnered with Keep Denton Beautiful in the past to assist with their "Adopt-a-
Spot" program. Under this program, if local residems waned to provide landscaping to a city-
owned property at their own expense, the Water Utilities Department would fund the installation
of a water tap and meter (with a maximum limit of five per year), if a water main was available,
and if the volunteers would agree to set up a billing account for purchase of water for irrigation.
The Water Utilities Departmem elected to budget for the impact fees (five per year, maximum)
for this program about one year after the impact fees were first adopted by the city in 1998.
Actual utilization of the "Adopt a Spot" program has been very limited to date. Policy direction
from the Public Utilities Board restricted this program to not include any homeowners
association's landscaping of subdivision, emry statemems or projects sponsored by the Parks and
Recreation Department.
A second example of a Water Utilities Departmem funded impact fee was for Community
Development Block Grant funded extensions of water and wastewater facilities to existing
subdivisions served by wells and septic systems. In these cases, the Water Department
established funding through the annual budget process for paying or "in-kind" services that
included engineering design and inspection services and water and wastewater impact fees.
Wastewater extensions to the residences in the Gayla-Bridges area, and water and wastewater
3
extensions to residences on Carpenter Road were funded by a combination of CDBG funds for
construction and the Water Utilities Department budget for "in-kind" services and impact fees.
OPTIONS
Staff has identified the following options to consider:
1. Maintain the current programs and policy direction that have resulted in the 2003 impact
fee ordinance as well as maintaining funding support through the budget process for the
current programs designed to support infill, affordable housing, and redevelopment.
2. Redefine the current programs to expand or restrict them to achieve new objectives or
goals established by the PUB and City Council. This will include requirements to
establish new policy guidelines to staff, and to establish an appropriate funding source for
the program incentives.
3. Provide waivers or exemptions to selected entities to achieve new objectives or goals
established by the PUB and City Council. This would require a revision to the current
impact fee ordinance. The next state mandated update to the impact fee study would not
occur until 2008.
We are advised by the city's Utility Attorney that any waiver or exemption of the impact fee
granted by the City Council as a part of any amended ordinance is subject to careful scrutiny and
would result in the risk of federal litigation against the city. The basis for such litigation would
be a claimed violation of the Equal Protection Clause of the United States Constitution. Creation
of different classifications, within a fee class, raises the question of whether the different
classifications serve a legitimate government purpose. In other words, is the waiver or
exemption classification based upon a rational, factual, nondiscriminatory basis? The previous
and present impact fee ordinances have not been attacked on these Constitutional grounds. They
are based on a clearly articulated SFE standard. Any deviation, such as the current infill
provision of the impact fee ordinance, is based upon an objective standard - size (water demand
and/or wastewater load).
RECOMMENDATION
Staff recommends Option 1, since it is consistent with prior policy direction that was included in
the re-write of the impact fee ordinance in 2003. Option 2 involves a policy change and
identification of additional funding sources to support the program, but would be allowed within
the framework of the 2003 impact fee ordinance. Option 3 is the least desirable option from
staff's perspective because it has the most significant potential to undermine the legal defend
ability and enforceability of the current impact fee ordinance and could also result in a potential
loss of impact fee revenues that are currently programmed into the Water Utilities financial plan
and rate proforma.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
Several prior agenda items have addressed impact fee issues in the past.
FISCAL INFORMATION
N/A
BID INFORMATION
N/A
EXHIBITS
1. Impact Fee Ordinance
2. Article - "Do Fee Waivers, Exemptions and Other Classifications Satisfy Equal Protection of
the Law?" by Michael W.L. McCrory
3. Chapter 395, Texas Local Government Code
4. Article - "Impact Fees and Housing Affordability" by Jim Duncan
Respectfully submitted:
Howard Martin, ACM/Utilities
Prepared by:
Tim Fisher, P.E.
Assistant Director of Water Utilities
AN ORDINANCE OF THE CITY OF DENTON, TEXAS UPDATING IMPACT FEES BY
· AMENDING CHAPTER 26, "UTILITIES,". SECTION 26-210 THROUGH 26-232 OF THE
CITY OF DENTON CODE OF ORDINANCES; ADOPTING REVISED LAND USE
ASSUMPTIONS AND CAPITAL IMPROVEMENTS PLANS FOR WATER AND
WASTEWATER IMPACT FEES; ESTABLISHING NEW SERVICE AREAS FOR
WASTEWATER IMPACT FEES; ESTABLISHING NEW MAXIMUM IMPACT FEES PER
SERVICE UNIT AND IMPACT FEES TO BE COLLECTED; CREATING SCHEDULES'FOR
THE ASSESSMENT AND COLLECTION OF IMPACT FEES; AMENDING THE
DEFINITION OF "NEW DEVELOPMENT" CONTAINED IN SECTION 26-213(9); ADDING
THE DEFINITION OF "UTILITY CONNECTION" TO SECTION 26-213(14); ADDING
CLARIFYING LANGUAGE TO SECTION 26-221(a) AND (h); ADDING SECTION 26-221(i)
WHICH CLARIFIES THE POWERS OF THE DIRECTOR RESPECTING THE'
ENFORCEMENT, ASSESSMENT, COMPUTATION OR COLLECTION OF IMPACT FEES;
REVISING PROCEDURES FOR ADMINISTERING IMPACT FEES; REPEALING
CONFLICTING ORDINANCES AND RESOLUTIONS; PROVIDING A SEVERABILITY
CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $2,000 FOR EACH
VIOLATION THEREOF; AND. PROVIDING AN EFFECTIVE DATE.
WHEREAS, Texas Local Government Code, Chapter 395 authorizes a city to adopt and
to amend impact fees for the purpose of financing capital improvements required by new
development; and'
WHEREAS, the City Council of the City of Denton, Texas initially enacted water and
wastewater impact fees in accordance with Ordinance No. 98-301, dated on the 15th day of
September, 1998; and it'is now appropriate and lawfully required that the City once again
address' the issues of Land Use Assumptions and a Capital Improvements Plan, as well as the
subjeCt of Amended Water and Wastewater Impact Fees;
WHEREAS, the City Council in accordance with law desires to update its impact fee
program by amending land use assumptions, service areas, capital improvements plans and
impact fees for water and wastewater facilities; and
'WHEREAS, the City Council of the City of Denton, Texas has duly appointed an Impact
Fee Advisory Committee by ordinance; has received written comments from such Committee;
and has adopted Land Use Assumptions and a Capital Improvements Plan for amended water
and wastewater impact fees all in accordance with the requirements of Texas Local Government
Code, Chapter 395; and
WHEREAS, the City Council of the City of Denton, Texas has also received the
recommendation of the Denton Public Utilities Board, an advisory committee; and
WHEREAS, the City Council of the City of Denton, Texas, having complied with all
applicable substantive and procedural requirements of Texas Local Government Code, Chapter
EXHIBIT 1
395, finds it necessary and appropriate to establish amended water and amended wastewater
impact fees to pay the costs of certain capital improvements for new development; and the City
Council of the city of Denton, Texas further finds and concludes it is necessary and appropriate
to make the administrative amendments to the two definitions contained herein in Sections 26-
213(9) and (14); the addition of clarifying language to Section 26-221(a) and (h); and the
addition of clarifying provisions contained in Section 26-221(i); in order to clearly express its
intentions respecting the administration and collection of impact fees, to the amended impact fee
Ordinance No. 2003-137 enacted on May 13, 2003, and effective as of May 29, 2003; NOW
THEREFORE,
.THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
. SECTION 1.. That the facts, circumstances, ann remtanons contained in the preambles to
this Ordinance are hereby found and declared to be tree and correct.
SECTION 2. That the Land Use Assumptions for Water and Wastewater Impact Fees
hereby are amended as set forth in Exhibit A, which is attached hereto and incorporated by
reference herein as if fully set forth.
SECTION 3. That the Capital Improvements Plan for Water and Wastewater Impact
Fees hereby are amended as set forth in Exhibit B, which is attached hereto and incorporated by
reference herein as if fully set forth.
SECTION 4. That Chapter 26 of the Code of Ordinances of the City of Denton, Texas,
entitled "Utilities," is hereby amended, which shall read as follows:
CHAPTER 26.: UTILITIES
ARTICLE VI. IMPACT FEES
See. 26-210. Short Title.
This Article shall be known and cited as the "Denton Impact Fee Ordinance."
Sec. 26-211. Statement of.Purpose.
This Article is intended to assure the provision of adequate public facilities to serve new
development in the' City by requiring each development to pay its proportional share of the costs
of .such improvements necessitated by. and attributable to such new development as related to
water and wastewater capital improvements.
Sec. 26-212. Authority.
This Article is adopted pursuant to Chapter 395 of the Texas Local Government Code and
pursuant to the Denton Charter. The provisions of this Article shall not be construed to limit the
powers of the City to utilize other methods authorized under state law, or pursuant to other City
powers to accomplish the purposes set forth herein, either in substitution or in conjunction with
this Article. The effective date of this Article is September 15, 1998.
Sec. 26-213. Definitions.
The following words, terms and phrases, as used in this Article, shall have the meanings
respectively ascribed to them in this Section, unless the context clearly indicates otherwise:
(1) Area-related facility means a capital improvement or facility expansion which is
designated in the Impact Fee caPital Improvements Plan and which is not a site-related facility.
Area-related facility may include a capital improvement, which is located offsite, within, or on
the perimeter of the development site.
(2) Assessment means the determination of the amount of the maximum impact fee per
service unit that can be imposed on new development pursuant to this Article.
(3) Capital' improvement means any water supply; or treatment facilities; or wastewater
treatment facilities that have a life expectancy of three (3) or more years, and are owned and
operated by or on behalf of the City.
(4) Director means the Director of Water Utilities for the City of Denton, or his or her
designee.
(5) Facility expansion means the expansion of the capacity of any existing facility for the
purpose of serving new development. The term does not include the repair, maintenance,
modernization or expansion of an existing facility to serve existing development.
(6) Impact fee capital improvements plan means the adopted plan for a service area, as may
be amended from time to time, which identifies the water facilities or'wastewater facilities and
their associated costs which are necessitated by and which are attributable to new development,
for a period not to exceed ten (10) years, and which are to be financed in whole or in part
through the imposition of water or wastewater impact fees pursuant to this Chapter 26, Article
VI.
(7,) InfiH development means a single-family residence of less than 1,300 square feet on a lot
of less than 6,000 square feet.
(8,) Land USe assumptions means the projections of population and employment growth and
associated changes in land uses, densities and intensities for a service area adopted bY the City,
as may be amended from time to time, upon which the impact fee capital improvements plan for
the service area is based.
(9) New development means an activity involving the construction, reconstruction,
redevelopment, 'conversion, structural alteration, relocation, or enlargement of any structure, or
anY use or extension of iand, which has the effect of increasing water or wastewater demand,
measured by an increase in the number of the service units utilizing the City's water or
wastewater system that are attributable to such activity, and which requires either the approval
and fling of a plat, or a re-plat pursuant to the City's subdivision regulations, or the issuance of a
building permit, or a utility connection.
(10) .Service area means a geographic area within the City or within the City's extraterritorial
jurisdiction, within which impact fees for water or wastewater facilities may be collected for new
development occurring within such area and within which fees so collected will be expended for
those types of improvements identified in the type of capital improvements plan applicable to the
service area.
(10 Service unit means a standardized measure of consumption, use, generation or discharge
attributable to an individual unit 'of development calculated in accordance with generally
accepted engineering or planning standards, for a particular category of capital improvements or
facility expansions. For water and wastewater facilities, the service unit shall constitute the basis
for establishing equivalency within various customer classes based upon the relationship of the
.continuous duty maximum flow rate in gallons per minute for a water meter of a given size and
type compared to the continuous duty maximum flow rate in gallons, per' minute for a 3/4-inch
diameter simple water meter.
(12) Single-family equivalency ("SFE") means an equivalency factor, based on the demand
associated with the smallest water meter used in the City of Denton, Texas utility.system. SFE's
are utilized to establish the number of service units to' be allocated to various meter sizes used in
the City of Denton, Texas utility system.
(13) Site-related facility means an improvement or facility which is for the primary use or
benefit of a new development and/or which is the for the primary purpose of safe and adequate
provision of water and wastewater facilities to serve the new development and which is not
included in the impact fee capital improvements plan and for which the developer or property
owner is solely responsible under subdivision and other applicable regulations.
(1.4) Utility connection means connection of an individual meter to the City's water or
wastewater system, or an increase in the size of an existing meter.
Sec. 26-214. Impact fee as condition of development approval.
No new development shall be connected to.the City's water or wastewater system within the
service area without the assessment of an impact fee pursuant to this Article, and no building
permit Shall be issued until the applicant has paid the impact fee imposed herein.
Sec. 26-215. Land use assumptions.
¢)
Said land use assumptions for the City shall be updated at least every five (5) years
utilizing the amendment procedure set forth in Texas Local Government Code, Chapter
395.
(b)
Amendmeni to the land use assumptions shall incorporate projections of changes in land
uses, densities, intensities and population for the service area over at least a ten (10) year
period.
Sec. 26-216. Water impact fee service area.
There is hereby established an amended water impact fee service area, to include all land within
the City and its extraterritorial jurisdiction, as depicted in Exhibit C, which is attached hereto and
incorporated by reference herein as if fully set forth.
Sec. 26-217. Wastewater impact fee service areas.
There are hereby established two (2) wastewater impact fee service areas, the boundaries of
which are respectively described in Exhibits D and E, which are attached hereto and incorporated
by reference herein as if fully set forth.
Sec. 26-218. Determination of service units.
The number of service units for both water or wastewater impact fees shall be determined by
using the land equivalency table, which converts the demands for water or wastewater
improvements generated by typical land uses to water meter size, and which is attached hereto as
Exhibit F and incorporated by reference herein as if fullyset forth.
Sec. 26-219. Impact fees per service unit.
(a)
Maximum impact fees per service unit for each service area shall be established by
category of capital improvements. The maximum impact fee per service unit for each
service area for each category of capital improvement shall be computed in the following
manner:
(1)
For each category of capital improvements, calculate the total 15rojected costs of
capital improvements necessitated by and attributable to new development in the
service area identified in the impact fee capital improvements plan;
(2)
From such amount, subtract a credit in the amount of that portion of utility service
revenues, if any, including the payment of debt, to be generated by new service
units during the period the capital improvements plan is in effect, including the
payment of debt, associated With the capital improvements in the plan;
(3)
Divide the resultant, mount by the total number of service units anticipated within
the service area, based upon the land use assumptions for that service area.
(b) The maximum impact fee per service unit for water or wastewater facilities by service
area shall 'be as set forth in Schedule 1,. which is attached hereto and incorporated herein by
reference as if fully set forth. Schedule 1 shall be used to assess impact fees. Schedule 1 may be
amended from time to time utilizing the amendment procedure set forth in Section 26-228.
(c) The impact fee per service unit which is to be paid by each new development within a
service area shall be as set forth in Schedule 2, which is attached hereto and incorporated by
reference as if fully set forth, and shall be an amount less than or equal to the maximum impact
fee per service unit established in Schedule 1. Schedule 2 may be amended from time to time
utilizing the amendment procedure set' forth in Section 26-228.
Sec. 26-220. Assessment of impact fees.
(a)
Assessment of impact fees for any new development shall be made as follows:
(1)
For land which is unplatted at the time of application for a building permit or
utility connection, or for a new development which received final plat approval
pm[or to the effective date of this Article, and for which no re-platting is necessary
pursuant to the City's subdivision regulations prior to development, assessment of
impact fees shall occur at the time application is made for the building permit or
utility connection, whichever first occurs, and shall be the amount of the
maximum impact fee per service unit in effect, as set forth in Schedule 1.
(2)
For a new development which is submitted for approval pursuant to the City's
subdivision regulations on or after the effective date of this Article, or for which
re-platting results in. an increase in the number of service units after such date,
assessment of impact fees shall be at the time of final plat recordation, and shall
be the amount of the maximum impact fee per service unit in effect as set forth in
Schedule 1.
(b)
Following assessment of impact fees pursuant.to subsection (a), the amount of impact fee
assessment per service unit for that development cannot be increased, unless the owner
proposes to change the approved development by the submission of a new application for
final plat approval or other development application that results in approval of additional
service units; in which case a new assessment shall occur at the Schedule 1 rate then in
effect for such additional service units.
(c)
Following the vacating of any plat' or approval of any re-plat, a new assessment must be
made in accordance with subsection (a)(2).
(d)
An apPlication for an amending plat made pursuant to Texas Local Government Code
§212.016 V.T.C.A. and the City of Denton Subdivision Ordinance, and for which no new
development is proposed, is not subject to reassessment for an impact fee.
Sec. 26-221. Computation of impact fees.
(a)
Following the filing and acceptance of a written application for building permit or utility
connection, the City shall compute the impact fee due in the following manner:
(1)
The number of service units shall be determined by the size of the water meter
purchased using the land equivalency table incorporated as Exhibit F, or by
evaluation of the Director as provided in Section 26-218 or this section; '
(2) Service units shall be summed for all meters purchased for the development;
(3)
The total number of service units shall be multiplied by the impact fee per service
unit for water or wastewater service facilities using Schedule 1 then in effect as
established in Section 26-219;
(4)
The moUnt of each impact fee shall be reduced 'by any allowable offsets or
credits for that category of capital improvements, in the manner provided in
Section 26-223.
(b)
The amoUnt of impact fee due for new development shall not exceed the amount
computed by multiplying the assessed fee for water or wastewater service by the total
number of service units generated by the development. The amoUnt of irnpact fee due for
redevelopment shall not exceed the amount computed by multiplying the assessed fee for
water or wastewater service by the net increase in service units generated by the
redevelopment.
(c)
The developer may submit or the Director may require the Submission of a study,
prepared by a professional engineer, licensed in the State of Texas, clearly indicating the
number of water and/or wastewater service un/ts which will be consumed or generated by
the new development. The Director will review the information for completeness and
conformity with generally accepted engineering practices and will, when satisfied with
the completeness and conformity of the study, multiply the number of service. Units
determined by the study times the impact fee per service unit contained in Section 26-219
above to determine the total impact fee to be collected for the development. The Director
may also use recent historical water billing records for existing customers to determine
water demands and SFE equivalents in accordance with data from the most recent Capital
Improvements Plan.
(d)
Whenever the property owner increases the number of service units for a development,
the additional impact fees collected for such new service units shall be determined based
(e)
(f)
¢)
on Schedule 1 and applicable offsets, credits, and discounts then in effect and such
additional fee shall be.~ assessed and collected at the time the additional meters are
purchased.
In the event the property owner decreases.the number of service units for a development,
the property owner shall be entitled to a refund of the impact fee for impact fees actually
paid, but only for the amounts represented by the decrease in service units based on the
assessed fee and offsets~ credits, or discounts applicable at the time the. fee was' paid.
If the building permit for the property on Which an impact fee is paid has expired and a
new application is thereafter filed for the identical property and the number of service
units, the impact fee previously paid satisfies the requirements of this Article.
The impact fee shall attach to the property for which the impact fee was paid and shall
not be transferable to other properties or service units.
No building permit or utility connection shall be issued if the applicant cannot verify
payment'of the appropriate impact fee and other applicable fees or if existing facilities do
not have actual capacity to provide service to the new connection(s).
All matters pertaining to the enforcement, assessment~ computation, or collection of
impact, fees provided for herein shall be determined by the Director, or his or her
designate.
Sec. 26-222. Collection of impact fees.
Except as' otherwise provided in this Section, the impact fee for the new development
shall' be collected at the time the City issues a building permit, or if a building permit is
not required, at the time an application is filed for a new connection, to the City's water
or wastewater system or for an increase in water meter size.
(b)
'Except as otherwise provided .. by contracts with political subdivisions, developer's
contracts, .or wholesale customers, no building permit shall 'be issued until all impact fees
have been paid to the City.
The City may enter into an agreement for capital improvements with a property owner
pursuant to Section 26-229 that establishes a different time and manner of payment.
(d)
The owner of an existing single-family homestead housing unit, actually occupying said
homestead, may make payments of any water or wastewater impact fee required by the
Article in monthly installments over a period of not more than. five (5) years from the
date payment of the fee is otherwise required by this Article. The owner of said
homestead must .execUte a .promissory note, deed of trust, homestead affidavit, or other
documents to' be prepared by the City Attorney 'sufficient to establish an enforceable lien
on the real property. All such installment payments shall be subject to interest at a rate
(e)
(g)
equal to a twelve-month average of the 5-year Treasury Note. The interest rate on such
note shall be adjusted annually, according to the most current twelve-month average.
In the event that a property owner agrees to construct or finance capital improvements in
the capital improvements plan pursuant to Section 26-229,.the costs of which are to be
reimbursed, to the owner from impact fees paid from other new developments that will
use such facilities, the City may collect impact fees from such other new developments at
the time final plats are recorded for such development.
Schedule 1 sets the assessment rate and establishes maximum impact fees as set forth in
subparagraphs (1) and (2) below:
(1) For a new development for which final plat recordation occurred on or after
September 15, 1998, but before May 29, 2003, the maximum impact fee per service unit
shall be $2,044 for the water service area, and $483 for the Zone 1 wastewater service
area.
(2) For a new development for 'which final plat recordation occurred prior to
September 15, .1998, on or after May 29, 2003, or for any new development which is not
subject to paragraph (1), the maximum impact fee per service unit shall be as follows:
$3,155 for the water service area; $1,703 for the Zone 1 wastewater service area; and
$2,614 for the Zone 2 wastewater service area.
Schedule 2 sets the collection rate for impact fees as set forth in subparagraphs (1) and
(2) below:
(1) Except as provided in paragraph (2), impact fees. shall be collected and paid as
follows:
Water Service Area:
$3,155 per service unit
Wastewater Service Area (Zone 1): $1,437 per service unit (from May 29, 2003 until
May 28, 2006)
$1,570 per service unit (from May 29, 2006 until
May 28, 2OO8)
$1,703 per service unit (from May 29, 2008 until
May 28, 2013)
Wastewater Service Area (Zone 2): $1,437 per service unit (from May 29, 2003 until
May 28, 2006)
$1,893 per service unit (from May 29, 2006 until
May 28, 2008)
.$2,614 per service units (from May 29, 2008 until
May28, 2013)
Provided, however, Wastewater Service Area Impact Fees for Zone 1, for Single-Family
Residences of less than 1,300 square feet, that are located on lots of less than 6,000 square feet,
shall instead be charged, and the City shall collect a Wastewater Service Area Impact fee of 50%
of the adopted Wastewater Service Area Impact Fee for Zone 1.
(2) For a new development for which final plat recordation occUrred on or after
September 15, 1998, but before May 29, 2003, and for which no .new service units
have been added, impact fees shall be collected as follows:
Water Service 'Area.
Wastewater Service Area (Zone 1)
$2,044 per service unit
$483 per service unit
(a)
(b)
(c)
See. 26-223. Offsets and credits.
The City shall offset the reasonable value of any area-related facilities, identified in. the
impact fee capital improvements plan and constructed pursuant to an agreement with the
City, except as otherwise provided therein, which are dedicated to and received by the
City on or after the effective date of this ordinance, against the amoUnt of the impact fee
due for that category of capital improvement. No offsets or credits shall be provided for
required Over-sizing of water and wastewater lines or' lift stations not identified in the
capital improvements plan .or for pro-rata payments to repay other developers for such
over-sizing pursuant to Chapter 35-Development Code; and Subehapter 21-Water &
Wastewater Standards.
The City shall credit any new development that occurs subsequent to the effective date of
this Article, any amount of capital recovery fees which have been collected by the City
· pursuant to duly adopted ordinances and any impact fees collected by the City pursuant to
this Article.
All offsets and: credits against impact fees shall be subject to the following limitations and
shall be granted based' on this Article and additional standards promulgated by the City,
which may be adopted as administrative guidelines.
(1)
No offset or credit shall be given for the .dedication or construction of site-related
facilities.
(2) No offset ,or credit shall exceed the :impact fee to be collected from new
development as established in Section 26-219.
(3)
The unit costs used to calculate the offsets shall not exceed those assumed for the
capital improvements included in the imPact fee capital improvements plan for
the category of facility within the service area for which the impact fee is
imposed.
10
(d)
(4)
If an offset or credit applicable to a plat has not been exhausted within ten (10)
years from the date of the acquisition of the first building permit issued or
connection made after the effective date of this Article or within such period as
may be otherwise designated by agreement for capital improvements pursuant to
Section 26-229, such offset or credit shall lapse.
(s)
In no event will the City reimburse the property owner or developer for an offset
or credit when no impact fees for the new development can be collected pursuant
to this Article or for any amount exceeding the total impact fees collected or due
for the development for that category of capital improvement, unless otherwise
agreed to by the City.
(6)
No offset shall exceed an amount equal to the eligible costs of the improvement
multiplied by a fraction, the numerator of which is the impact fee per service unit
due for the neTM development as computed using Schedule 2 and the denominator
of which is the maximum impact fee per service unit for the new development as
computed using Schedule 1.
(7)
Offsets or credits for area-related facilities dedicated to and accepted by the City
for a development prior to the effective date of this Article shall be prorated'
among the total number of service units within such development and reduced.by
an amount equivalent to the number of existing service units within such
development and shall be further reduced by the amount of any participation
funds received from the City and by any payments received from other
developments who utilize the system facility.
(8)
The City may participate in the costs of an area-related improvement to be
dedicated to the City, including costs that exceed the amount of the impact fees
due for the development under Schedule 1 for that category of capital
improvements, in accordance with policies and rules established under the City's
subdivision regulations and when incorporated into an agreement for caPital
improvements pursuant to Section 26-229. The'amount of any offset shall not
include the amount of the City's participation.
Unless an agreement for capital improvements is executed providing for a different
manner of offsetting or crediting impact fees due pursuant to Section 26-229, an offset or
credit associated with a plat shall be applied to reduce an impact fee at the time of
application for the first building permit or at. the time of application for the first utility
connection for the property, in the case of land located within the City's extraterrtofial
jurisdictiOn, and, thereafter, to reduce impact fees subsequently to be collected, until the
offset or credit is exhausted.
11
Sec. 26-224. Establishment of accounts.
(a)
The City's Department of Finance shalI 'establish separate interest-bearing accounts
clearly, identifying the category of capital improvement (i.e. water facilities and
wastewater facilities) within the.service area for which the impact fee is collected.
(b)
,Interest earned by each account shall be credited to the account on which it is earned and
shall be used. solely for the purposes specified for impact fees as authorized herein.
(c)
The City's Department of Finance shall establish adequate financial and accounting
controls to ensure that impact fees disbursed from the account are utilized solely for the
purposes authorized in this Article. Disbursement of funds shall be authorized by the
City at such times as are reasonably necessary to carry out the purposes and intent of this
Article; provided, however, that any fee paid shall be expended within a reasonable
period of time, but not to exceed ten (10) years from the date the fee is deposited into the
account.
(d)
The City's Department of Finance shall maintain, and. keep adequate financial records for
each such account, which shall show.the source and disbursement of all revenues, Which
shall .account for all monies received, the number of service units for which the monies
are received, and which shall ensure that the disbursement of funds from each account
shall be used solely and'exclusively for the provision of projects specified in the impact
fee capital improvements plan as area-related capital projects. The City's Department Of
Finance shall also maintain such .records as are necessary to ensure that refunds are
appropriately made in accordance with this Article. The records of the account into
which impact fees are deposited shall be open for public inspection and copying during
ordinary business hours. The City may establish a fee for copying services.
See. 26-225. Use of proceeds of impact fee accounts.
(a)
The impact fee collected pursuant to this Article may be used to finance or to recoup
capital construction costs for water and wastewater facilities identified in the impact fee
capital improvements plan and for any purpose authorized in Texas Local Government
Code, Chapter 395, V.T.C.A. as amended. Impact fees may also be used to pay'the
principal sum and interest and other finance costs on bonds, notes or other obligations
issued by or on behalf of the City to finance such capital improvements or facilities
expansions.
(b)
Impact fees collected pursuant to this Article shall not be used to .pay for any of the
· following expenses:
(1)
Construction, acquisition, or' expansion of capital improvements or assets other
than those identified for the w. ater and wastewater Utility in the impact fee capital
improvements plan;
12
(2)
(3)
(4)
Repair, operation, or maintenance of existing or new capital improvements or
facilities expansions;
Upgrading, expanding, or replacing existing capital improvements to serve
existing development in order to meet stricter safety, efficiency, environmental Or
regulatory standards;
Upgrading, expanding, or replacing existing capital improvements to serve
existing deVelopment; provided, however, that impact fees may be used to pay the
costs of upgrading, expanding or replacing existing capital improvements in order
to meet the need for new capital improvements generated by new development; or
Administrative and operating costs of the City.
Sec. 26-226. Appeals.
(a)
The property owner or applicant /Or new development may appeal the following
decisions to the City Council: (a) the applicability of an impact fee to the new
development; (b) the method of calculating the amount of the impact fee due; (c) the
availability or the amount of an offset, credit or rebate; (d) the applicatiOn of an offset or
credit against an impact fee due; or (e) the amount cfa refund due, if any.
(b)
The burden of proof shall be on the appellant to demonstrate that the amount of the fee or
the amount of the offset, credit or rebate was not calculated according to the provisions, of
this Article.
(c)
The appellant must file a notice of appeal with the City Secretary within thirty (30) days
following the determination of the .amount of the impact fees to be paid .by the
development. If the notice cf appeal is accompanied by a bond or other sufficient surety
satisfactory to the City Attorney in an amount equal to the original determinatiOn of the
impact fee due, the development application may be processed while the appeal is
pending.
See. 26-227. Refunds.
(a)
Any impact fee or portion thereof collected pursuant to this Article which has not been
expended within ten (10) years from the date of payment, Shall be refunded, upon
application, to the record owner of the property at the time the refund is paid, or, if the
impact fee was paid by another governmental entity, to such governmental entity,
together with interest calculated from the date of collection to the date of refund at the
statutory rate as set forth in Vernon's Ann. Civil Statutes, Title 79, Art. 1C.002, or any
successor statute.
13
(b)
(c)
(d)
Upon the request of an owner of the property on which an impact fee has been paid, the
City shall refund such fees if:
(1) Existing service is available and service is denied; or
(2)
Service was not available when the fee was collected and the City has failed to
commence construction of facilities to provide service within two (2) years of fee
payment; or
(3)
Service was not available when the fee was collected and has not subsequently
been made available within, a reasonable period of time considering the type of
capital improvement or facility expansion to be constructed, but in any event no
later than five (5) years from the date of tlie payment.
The City shall refund an appropriate proportion of impact fee payments in the event that a
previously purchased but uninstalled water meter for which the impact fee has been paid
is replaced with a smaller meter, based on the service unit differential of the two (2)
meter sizes and the fee per service unit at the time of the original fee payment.
A petition for refund under this section shall be submitted to the Director on a form
provided by the City for such purpose. Within one (1) month of the date of. receipt of a
petition for refund, the Director must provide the petitioner, in writing, with a decision on
the refund request, including the reasons for the decision. If a refund is. due to the
petitioner,, the Director shall notify the Assistant City Manager of Finance and request
that a refund payment be made to the petitioner.
See. 26-228.- Update of plan and revision of fees.
(a)
The City shall update its land use assumptions and capital improvements plans at least
every five (5) years, commehcing from the date of adoption of such plans, and shall
recalculate the impact fees based thereon in accordance with the procedures set forth in
Texas Local Government Code, Chapter 395, or in any successor statute.
(b)
The City may review its land use assumptions, impact fees, capital, improvements plans
and other factors such as market conditions more frequently than provided in subsection
(a) to determine whether the land use assumptions and capital improvements plans should
be updated and the impact fee recalculated accordingly, or whether Schedules 1 or 2
should be changed. Schedule 2 may be amended without revising land use assumptions
and capital improvements plans at any time. prior to the update provided for in subsection
(a), provided that the impact fees to be collected under Schedule 2 do not exceed the
impact fees assessed under Schedule 1.
.(c)
If, at the time'an update is required pursuant to Subsection' (a), the City Council
determines that no change to the land use assumptions, capital improvements plan or
impact fee is needed, it may dispense with such update by following the procedures in
14
(d)
Texas Local Government Code, Section 395.0575.
The City may amend by resolution the land use equivalency table (Exhibit F) at any time
prioLto_the_update_pro:v~ded for_/n Slxbxeati~on_(a),_pro_v_ided_that_themumb er o f service
units associated with a particular land use shall not be increased.
Sec. 26-229. Agreement for capital improvements.
An owner of a new development may construct or finance a capital improvement or facility
expansion designated in the impact fee capital improvements plan, if required or authorized by
the City, by entering into an agreement with the City prior to the issuance of any building permit
for the development. The agreement shall be on a form approved bY the City and shall identify
the estimated cost of the improvement or expansion, the Schedule for initiation and completion of
the improvement or expansion, a requirement that the improvement be designed and completed
to City standards and such other terms and conditions as deemed necessary by the. City. The
agreement shall provide for the method to be used to determine the amount of the offset to be
given against the impact fees due for the development or any reimbursement to the owner for
construction of the facility. '
Sec. 26-230. Use of other financing mechanisms.
(a)
In addition to the use of impact fees, the City may finance water and wastewater capital
improvements or facilities expansions designated in the impact fee capital improvements
plan through the issuance of bonds, through the formation of public improvements
districts or other assessment districts, or through any other authorized mechanism, in such
manner and subject to such limitations as may be provided by law.
(b)
Except as otherwise provided herein, the assessment and collection of a impact fee shall
be additional and supplemental to, and not in substitution of, any other tax, fee, charge or
assessment which is lawfully imposed on and due against the property.
(c)
The City may pay all or part of impact fees due for a new development taking, into
account available offsets and credits pursuant to duly adopted criteria.
Sec. 26-231. Conflicting ordinances.
All ordinances or parts of ordinances that are in force when the provisions of this ordinance
become' effective, which are inconsistent or in conflict with the terms or provisions contained in
this ordinance, are hereby repealed to the extent of the conflict.
Sec. 26-232. Reserved.
15
. SECTION 4. That any person violating any provision of this Ordinance shall, upon
conviction, be fined a sum not exceeding $2,000. Each day that a provision of this Ordinance is
violated shall constitute a separate and diStinct offense.
SECTION 5. That~ if any section, subsection, paragraph, sentence, clause, phrase or
word in this Ordinance, or application thereof to any person .or circumstances is held invalid by
any court .of competent jurisdiction, such holding shall not affect the validity of the remaining
portions of this Ordinance, and the City Council of the City of Denton, Texas hereby declares it
would have enacted such remaining poi'tions, despite any such invalidity.
SECTION 6. That this Ordinance shall rePeal any cOnflicting ordinances and resolutions
to the contrary; it being the intention Of the City Council to fully amend all' provisions of Chapter
26 of the City of Dent0n, Texas Code of Ordinances dealing with Impact Fees.
SECTION 7. That this Ordinance shall become effective fourteen (14) days from the
date of its passage, and the City Secretary is hereby directed, to cause the caption of.this
Ordinance to be published twice in the Denton Record Chronicle, a daily newspaper published in
the City of Denton, Denton County, Texas, within ten (10) days of the date of its passage.
PASSED AND APPROVED this the~day of ~/--~, 2004.
EULINEBROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY' SECRETARY
By: ........
APPROVED AS TO LEGAL FORM: ·
HERBERT. L. PROUTY, CITY ATTORNEY
16¸
DO FEE WAIVERS, EXEMPTIONS
AND OTHER CLASSIFICATIONS
SATISFY EQUAL PROTECTION OF THE LAW?
Michael W. L. McCrory
{A0009041.DOC/}1
EXHIBIT 2
DO FEE WAIVERS, EXEMPTIONS AND OTHER CLASSIFICATIONS
SATISFY EQUAL PROTECTION OF THE LAW?
Impact fees are generally viewed by the courts as an exercise of the local
jurisdiction's police power. When challenged on equal protection grounds, fee statutes
are subject to the traditionally broad deference that allows jurisdictions wide latitude for
legislative acts that are reviewed only to determine if there is some plausible, rational
governmental purpose supporting the statute. City of Cleburne, Tex. v. Cleburne Living
Center. ~ Development impact fees are presumed to be a valid exercise of the
legislative authority to regulate land use.2
That judicial deference, however, decreases as challenges focus on more
precise classifications within impact fee regulations that may have discriminatory effects
and such deference may evaporate with classifications for waivers or exemptions that
are unrelated to the fundamental purpose of the impact fee, Different classifications
within an impact fee establish subclasses within the overall class. These are more likely
to be viewed in equal protection terms of whether the subclasses are treated equally
with respect to other subclasses rather than whether the classification serves a
legitimate governmental purpose.
Waivers, exemptions and other classifications which are applied to individual
cases create such subclasses and raise two additional equal protection challenges.
Such actions may lead to claims that individuals have been treated in an arbitrary and
irrational manner and therefore have an equal protection claim under Village of
Willowbrook v. Olech.3 Such actions may also become the type of individualized
determination that is subject to the stricter scrutiny of the Nollan and Dolan cases.4
At the broadest level of review, differences in how impact fees are applied are
reviewed to determine whether there is a rational basis for the classification. Thus the
application of fees to some, but not all, areas within a jurisdiction has been upheld5 as
have imprecise formulas for determining fees.6 In Home Builders Association of Central
Arizona v. City of Scottsdale, the court examined the nature of the governmental
purpose for the fees but deferred to the local jurisdiction on how to meet that purpose
and did not second guess the feasibility of the local jurisdictions plans.
~ 473 U.S. 432 (1985).
2 Home Builders Association of Central Arizona v. City of Scottsdale, 187 Ariz. 479, 930 P.2d 993 (1997);
San Remo Hotel L.P. v. City and County of San Francisco, 41 P.3d 87 (Cal. 2002); Home Builders
Association v. Des Moines, 644 N.W.2d 339 (Iowa, 2002); Home Builders and Contractors Association v.
Palm Beach County, 446 So.2d 140 (Fla. App., 1984).
3 526 U.S. 562 (2000)
4 Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374
1994).
Palm Beach County, supra.
6 Black v. Kileen, 78 S.W.3d 686 (Tex. App. 2002); Southport Development Group, Inc. v. Township of
Wall, 709 A.2d 226 (N.J. App. 1998); Agencia La Esperanza Corporation v. Orange County, 2002 WL
681798 (Ca. App. 2002) [Unpublished]
{A0009041.DOC/}2
In Black, the court upheld water and sewer connection fees that were in excess
of the actual connection costs. The court held that the City could include indirect costs
in its fee resulting in a fee that is higher than actual costs. Since the plaintiff had failed
to account for these indirect costs, and since the plaintiff bore the burden of proof, the
court could not determine that the fee was unreasonable.
The treatment of different uses also raises potential equal protection concerns.
In Home Builders Association v. City of West Des Moines, supra., upheld separate
classification of single family residence and multi-family residences and upheld the
exclusion commercial uses from the City's park fee.7 In Bogue Shores Homeowners
Association, Inc. v. Town of Atlantic Beach, 8 the court found that assessing water rates
for single family residences based upon the size of the water line and for multi-family
complexes based on the number of units was necessary to avoid discriminating against
single family residences. While the size of the line was an accurate measurement for
one family, the multi-family complexes would require far more usage which was not
accounted for in the size of the line?
Even the deferential standard for equal protection analysis has its limits. As
noted in Tyson Smith's presentation, fees that cannot provide any benefit will violate
equal protection. Thus in St. John's County,~° the application of the fee to cities that
would never receive any benefit was discriminatory and in Volusia,~ an adult mobile
home park that could not have children living on the premises could not be subjected to
a school impact fee without violating equal protection.
The cases applying the deferential standard focus on the broad and relatively
equal general application of impact fees. Waivers and exemptions provide exceptions
to those general, uniform applications and as such raise additional equal protection
issues. Often, waivers and exemptions are intended to achieve a governmental
objective that is distinct from the purpose of the fee such as excluding Iow
income/affordable housing from the cost of a road impact fee or excluding schools from
having to pay traffic or park impact fees.
The central problem with such waivers and exemptions is where the basis for this
sub-classification is not related to the purpose of the impact fee. Are such sub-
.............. ~!~.ific~.ti(~ns.Ju.dged on their g0vemmental purpose or the purpose of the fee? The
answer to that may well determine the validity'of the waiver bi"eXempti0n.
7West Des Moines applies a tax analysis rather than a regulatory fee analysis. Since tax statutes do not
have to provide the same benefit to the person paying the tax as a regulatory fee, such statutes may be
given more deference for equal protection purposes.
428 S.E.2d 258 (N.C. App. 1993).
~ See also: Ellis v. Clovis Unified School District, 2002 WL 1011515 (Cai App. 2002), an unpublished
case holding that a school impact fee did not have to distinguish between the impact of single famity
residences and multi-family projects.
lo St Johns County v. Northeast Florida Builders Ass'n, Inc., 583 So.2d 635 (Fla. 1991).
~ Volusia Co. v. Aberdeen at Ormand Beach, 760 So.2d 126 (Fla. 2000).
{A0009041 .DOC/}3
It is well accepted that providing Iow income housing is a legitimate governmental
function and impact fees may be designed to accomplish that goal?2 Thus, if a waiver
to a road or park fee for affordable housing units is viewed in terms of whether it furthers
a legitimate governmental purpose, there should be no doubt about it's validity.
As an'exception to an othenNise valid fee, however, the issue may become one
of whether it is related to the purpose of the fee. Affordable housing, whether privately
or publicly constructed, will essentially have the same effect on traffic and park use as
any other house of comparable size. Analyzed from this perspective, the fee is
"arbitrary and irrational".
The importance of the question of what to analyze is best exemplified by the
Brook Park case from Tyson Smith's presentation.~3 Brook Park I involves the
assessment of a parking tax at rate to the local exhibition center and at a lower rate to
the local airport. The trial court found "a legitimate difference in the number of vehicles
and people attending the exhibition center and the associated cost of necessary
municipal services .... ,,~4 The Court of Appeals rejected this analysis holding that none
of these factors effected the parking use. Since parking was the reason for the excise
tax, none of the factors cited by the trial court justified the different rates. The different
rates therefore were not supported by any rational basis and were invalid.
The Ohio Supreme Court rejected that analysis.~5 In Brook Park II, that court
returned to the deferential standard of review and an analysis of whether the different
classifications further legitimate state objectives. This allowed the court to examine the
objective of maintaining the economic viability of the airport through a preferential rate,
the guaranteed payout from the airport and the desire to aid development of the part of
the city that housed the airport. Since these are legitimate governmental interests, the
different tax rates were upheld? This case was, however, reviewed as a tax case
rather than a regulatory fee case and it is not at all clear that such reasons would be
accepted for different regulatory fees.
Waivers and exemptions that are provided to individual applicants raise
additional issues cogcerning how each individual is treated in the process. In Olech, the
United States Supreme Court made it clear that equal protection claims were not solely
the province of suspect classes and'fundamental rights. Olech establishes that an
e~Gai pr6~cti~n ~i~i~'m~ ii~'~l~i~e tli~'plaintiff'can ~f~51i-Sh f~at'it "'has ~ee~ ~
intentionally, treated differently from others similarly situated and that there is no rational
basis for the difference in treatment.''~7 Under this precedent, "an individual who does
not claim membership in any group narrower than the human race can still obtain a
~2 San Remo Hotel, supra.
~ Park Corp. v. Brook Park, 2002 WL 973082 (Brook Park I).
~4 Brook Park I, paracraph 31.
~ Park Corporationv. City of Brook Park, 807 N.E.2d 913 (Ohio, 2004) (Brook Park il).
~ Cf: Massachusetts Municipal Wholesale Electric Company v. City of Springfield, 726 N.E.2d 973 (Mass.
~pp. 2000) (differential utility rates to promote industrial users within citY was discriminatory).
Otech, supra., 528 U.S. at 564.
{A0009041.DOC/}4 .
remedy under the equal protection clause for 'irrational and wholly arbitrary'
treatment?8
The application of Olech to land use decision making and regulations is
described in the attached presentation of Michael S. Giaimo to the Georgetown
University Law Center Regulatory Takings Claims Seminar, October, 2003. As set forth
in that paper, there are no clear guidelines on the extent to which the "class of one"
claims require evidence of ill will, spite, and intentional acts of discrimination. As Mr.
Giaimo notes from the Seventh Circuit cases, there are potentially two subsets of the
"class of one" cases, one based on intentional treatment that is different from others
similarly situated and without any rational basis and one based on different treatment of
persons in identical circumstances based upon illegitimate animus. These two subsets
may represent distinct claims or the latter may be a variation of the former. 49
The central nature of the subjective intent behind government actions in an Olech
claim makes it significantly more difficult for government entities to dispose of such
claims on the pleadings or in summary judgments. Allegations of ill will from
government employees and determinations of what constitutes a "similarly situated"
party will be fact intensive and unique to each case. In Squaw Valley Development
Company v. Goldberg,2° a claim was allowed to proceed against an agency supervisor
who more strictly enforced rules in an effort to obtain compliance from a long term
violator of agency rules where there was an issue of material fact as to whether the
official acted fro~ personal animosity. By contrast, in Befl v. Duperrault,2~ allegations of
rude treatment were not sufficient to show a "deep seated animosity" that would sustain
an Olech claim.
Waivers and exemptions to impact fees ~vhich will inherently involve the review of
a individual facts may be particularly susceptible to such claims of "irrational and wholly
arbitrary" application. Some may involve claims that another applicant had more
favorable treatment or that a formula or data source was allowed in one instance but not
another. Others may argue that they are not producing any impact and therefore must
be exempted. Given that under Olech any individual may claim a denial of equal
protection for what is perceived to be "irrational and wholly arbitrary", these individual
decisions will involve greater scrutiny.
In addition to the equal treatment issues raised by potential Olech claims';
waivers and exemptions for individual cases may trigger greater scrutiny under the
Nollan and Dolan cases. Nollan clearly requires that the government exaction be
directly related to the purpose of the regulation as opposed to promoting an unrelated
governmental purpose. Dolan requires that the exaction be "roughly proportional" to the
actual impact of the development.
48 Indiana Land Company v. City of Greenwood, 378 F.3d 705, (2004)
~9 The more recent decision in Indiana Land Company, supra., confirms the "tension" between these
interpretations with a dissent asserting that no such tension exists.
20 375 F.3d 936 (9th Cir. 2004).
24 367 F.3d 703 (7th Cir. 2004).
{A0009041 .DOC/}5
LOCAL GOVERNMENT CODE
CHAPTER 395. FINANCING CAPITAL IMPROVEMENTS REQUIRED BY NEW
DEVELOPMENT IN MUNICIPALITIES, COUNTIES, AND CERTAIN OTHER LOCAL
GOVERNMENTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 395.001. DEFINITIONS. In this chapter:
(1) "Capital improvement" means any of the following
facilities that have a life expectancy of three or more years and
are owned and operated by or on behalf of a political subdivision:
(A) water supply, treatment, and distribution
facilities; wastewater collection and treatment facilities; and
storm water, drainage, and flood control facilities; whether or not
they are located within the service area; and
(B) roadway facilities.
(2) "Capital improvements plan" means a plan required by
this chapter that identifies capital improvements or facility
expansions for which impact fees may be assessed.
(3) "Facility expansion" means the expansion of the
capacity of an existing facility that serves the same function as
an otherwise necessary new capital improvement, in order that the
existing facility may serve new development. The term does not
include the repair, maintenance, modernization, or expansion of an
existing facility to better serve existing development.
(4) "Impact fee" means a charge or assessment imposed by
a political subdivision against new development in order to
generate revenue for funding or recouping the costs of capital
improvements or facility expansions necessitated by and
attributable to the new development. The term includes amortized
charges, lump-sum charges, capital recovery fees, contributions in
aid of construction, and any other fee that functions as described
by this definition. The term does not include:
(A) dedication of land for public parks or payment
in lieu of the dedication to serve park needs;
(B) dedication of rights-of-way or easements or
construction or dedication of on-site or off-site water
distribution, wastewater collection or drainage facilities, or
streets, sidewalks, or curbs if the dedication or construction is
required by a valid ordinance and is necessitated by and
attributable to the new development;
(C) lot or acreage fees to be placed in trust funds
for the purpose of reimbursing developers for oversizing or
constructing water or sewer mains or lines; or
(D) other pro rata fees for reimbursement of water
or sewer mains or lines extended by the political subdivision.
However, an item included in the capital improvements plan may
not be required to be constructed except in accordance with Section
395.019(2), and an owner may not be required to construct or
dedicate facilities and to pay impact fees for those facilities.
(5) "Land use assumptions" includes a description of the
service area and projections of changes in land uses, densities,
intensities, and population in the service area over at least a 10-
year period.
(6) "New development" means the subdivision of land; the
construction, reconstruction, redevelopment, conversion, structural
alteration, relocation, or enlargement of any structure; or any use
or extension of the use of land; any of which increases the number
of service units.
(7) "Political subdivision" means a municipality, a
district or authority created under Article III, Section 52, or
Article XVI, Section 59, of the Texas Constitution, or, for the
purposes set forth by Section 395.079, certain counties described
by that section.
(8) "Roadway facilities" means arterial or collector
streets or roads that have been designated on an officially adopted
roadway plan of the political subdivision, together with all
necessary appurtenances. The term includes the political
EXHIBIT 3
subdivision's share of costs for roadways and associated
improvements designated on the federal or Texas highway system,
including local matching funds and costs related to utility line
relocation and the establishment of curbs, gutters, sidewalks,
drainage appurtenances, and rights-of-way.
(9) "Service area" means the area within the corporate
boundaries or extraterritorial jurisdiction, as determined under
Chapter 42, of the political subdivision to be served by the
capital improvements or facilities expansions specified in the
capital improvements plan, except roadway facilities and storm
water, drainage, and flood control facilities. The service area,
for the purposes of this chapter, may include all or part of the
land within the political subdivision or its extraterritorial
jurisdiction, except for roadway facilities and storm water,
drainage, and flood control facilities. For roadway facilities,
the service area is limited to an area within the corporate
boundaries of the political subdivision and shall not exceed six
miles. For storm water, drainage, and flood control facilities, the
service area may include all or part of the land within the
political subdivision or its extraterritorial jurisdiction, but
shall not exceed the area actually served by the storm water,
drainage, and flood control facilities designated in the capital
improvements plan and shall not extend across watershed boundaries.
(10) "Service unit" means a standardized measure of
consumption, use, generation, or discharge attributable to an
individual unit of development calculated in accordance with
generally accepted engineering or planning standards and based on
historical data and trends applicable to the political subdivision
in which the individual unit of development is located during the
previous 10 years.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 1989, 71st Leg., ch. 566, Sec. l(e), off.
Aug. 28, 1989; Acts 2001, 77th Leg., ch. 345, Sec. 1, off. Sept.
1, 2001.
SUBCHAPTER B. AUTHORIZATION OF IMPACT FEE
Sec. 395.011. AUTHORIZATION OF FEE. (a) Unless otherwise
specifically authorized by state law or this chapter, a
governmental entity or political subdivision may not enact or
impose an impact fee.
(b) Political subdivisions may enact or impose impact fees on
land within their corporate boundaries or extraterritorial
jurisdictions only by complying with this chapter, except that
impact fees may not be enacted or imposed in the extraterritorial
jurisdiction for roadway facilities.
(c) A municipality may contract to provide capital
improvements, except roadway facilities, to an area outside its
corporate boundaries and extraterritorial jurisdiction and may
charge an impact fee under the contract, but if an impact fee is
charged in that area, the municipality must comply with this
chapter.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
(1) construction contract price;
(2) surveying and engineering fees;
(3) land acquisition costs, including land purchases,
court awards and costs, attorney's fees, and expert witness fees;
and
(4) fees actually paid or contracted to be paid to an
independent qualified engineer or financial consultant preparing or
updating the capital improvements plan who is not an employee of
the political subdivision.
(b) Projected interest charges and other finance costs may be
included in determining the amount of impact fees only if the
impact fees are used for the payment of principal and interest on
bonds, notes, or other obligations issued by or on behalf of the
political subdivision to finance the capital improvements or
facility expansions identified in the capital improvements plan and
are not used to reimburse bond funds expended for facilities that
are not identified in the capital improvements plan.
(c) Notwithstanding any other provision of this chapter, the
Edwards Underground Water District or a river authority that is
authorized elsewhere by state law to charge fees that function as
impact fees may use impact fees to pay a staff engineer who
prepares or updates a capital improvements plan under this chapter.
(e) A certification under Subsection (d) (2) is sufficient
evidence that an impact fee pledged will not be used or expended
for an improvement or expansion that is not identified in the
capital improvements plan.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), eff. Aug. 28,
1989. Amended by Acts 1995, 74th Leg., ch. 90, Sec. 1, eff. May
16, 1995.
Sec. 395.013. ITEMS NOT PAYABLE BY FEE. Impact fees may not
be adopted or used to pay for:
(1) construction, acquisition, or expansion of public
facilities or assets other than capital improvements or facility
expansions identified in the capital improvements plan;
(2) repair, operation, or maintenance of existing or new
capital improvements or facility expansions;
(3) upgrading, updating, expanding, or replacing
existing capital improvements to serve existing development in
order to meet stricter safety, efficiency, environmental, or
regulatory standards;
(4) upgrading, updating, expanding, or replacing
existing capital improvements to provide better service to existing
development;
(5) administrative and operating costs of the political
subdivision, except the Edwards Underground Water District or a
river authority that is authorized elsewhere by state law to charge
fees that function as impact fees may use impact fees to pay its
administrative and operating costs;
(6) principal payments and interest or other finance
charges on bonds or other indebtedness, except as allowed by
Section 395.012.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), eff. Aug. 28,
1989.
Sec. 395.014. CAPITAL IMPROVEMENTS PLAN. (a) The political
subdivision shall use qualified professionals to prepare the
capital improvements plan and to calculate the impact fee. The
capital improvements plan must contain specific enumeration of the
following items:
(1) a description of the existing capital improvements
within the service area and the costs to upgrade, update, improve,
expand, or replace the improvements to meet existing needs and
usage and stricter safety, efficiency, environmental, or regulatory
standards, which shall be prepared by a qualified professional
engineer licensed to perform the professional engineering services
in this state;
(2) an analysis of the total capacity, the level of
current usage, and commitments for usage of capacity of the
existing capital improvements, which shall be prepared by a
qualified professional engineer licensed to perform the
professional engineering services in this state;
(3) a description of all or the parts of the capital
improvements or facility expansions and their costs necessitated by
and attributable to new development in the service area based on
the approved land use assumptions, which shall be prepared by a
qualified professional engineer licensed to perform the
professional engineering services in this state;
(4) a definitive table establishing the specific level
or quantity of use, consumption, generation, or discharge of a
service unit for each category of capital improvements or facility
expansions and an equivalency or conversion table establishing the
ratio of a service unit to various types of land uses, including
residential, commercial, and industrial;
(5) the total number of projected service units
necessitated by and attributable to new development within the
service area based on the approved land use assumptions and
calculated in accordance with generally accepted engineering or
planning criteria;
(6) the projected demand for capital improvements or
facility expansions required by new service units projected over a
reasonable period of time, not to exceed 10 years; and
(7) a plan for awarding:
(A) a credit for the portion of ad valorem tax and
utility service revenues generated by new service units during the
program period that is used for the payment of improvements,
including the payment of debt, that are included in the capital
improvements plan; or
(B) in the alternative, a credit equal to 50
percent of the total projected cost of implementing the capital
improvements plan.
(b) The analysis required by Subsection (a) (3) may be
prepared on a systemwide basis within the service area for each
major category of capital improvement or facility expansion for the
designated service area.
(c) The governing body of the political subdivision is
responsible for supervising the implementation of the capital
improvements plan in a timely manner.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 345, Sec. 2, off. Sept.
1, 2001.
Sec. 395.015. MAXIMUM FEE PER SERVICE UNIT. (a) The impact
fee per service unit may not exceed the amount determined by
subtracting the amount in Section 395.014(a) (7) from the costs of
the capital improvements described by Section 395.014(a) (3) and
dividing that amount by the total number of projected service units
described by Section 395.014(a) (5) .
(b) If the number of new service units projected over a
reasonable period of time is less than the total number of new
service units shown by the approved land use assumptions at full
development of the service area, the maximum impact fee per service
unit shall be calculated by dividing the costs of the part of the
capital improvements necessitated by and attributable to projected
new service units described by Section 395.014(a) (6) by the
projected new service units described in that section.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 345, Sec. 3, off. Sept.
1, 2001.
Sec. 395.016. TIME FOR ASSESSMENT AND COLLECTION OF FEE. (a)
This subsection applies only to impact fees adopted and land
platted before June 20, 1987. For land that has been platted in
accordance with Subchapter A, Chapter 212, or the subdivision or
platting procedures of a political subdivision before June 20,
1987, or land on which new development occurs or is proposed
without platting, the political subdivision may assess the impact
fees at any time during the development approval and building
process. Except as provided by Section 395.019, the political
subdivision may collect the fees at either the time of recordation
of the subdivision plat or connection to the political
subdivision's water or sewer system or at the time the political
subdivision issues either the building permit or the certificate of
occupancy.
(b) This subsection applies only to impact fees adopted
before June 20, 1987, and land platted after that date. For new
development which is platted in accordance with Subchapter A,
Chapter 212, or the subdivision or platting procedures of a
political subdivision after June 20, 1987, the political
subdivision may assess the impact fees before or at the time of
recordation. Except as provided by Section 395.019, the political
subdivision may collect the fees at either the time of recordation
of the subdivision plat or connection to the political
subdivision's water or sewer system or at the time the political
subdivision issues either the building permit or the certificate of
occupancy.
(c) This subsection applies only to impact fees adopted after
June 20, 1987. For new development which is platted in accordance
with Subchapter A, Chapter 212, or the subdivision or platting
procedures of a political subdivision before the adoption of an
impact fee, an impact fee may not be collected on any service unit
for which a valid building permit is issued within one year after
the date of adoption of the impact fee.
(d) This subsection applies only to land platted in
accordance with Subchapter A, Chapter 212, or the subdivision or
platting procedures of a political subdivision after adoption of an
impact fee adopted after June 20, 1987. The political subdivision
shall assess the impact fees before or at the time of recordation
of a subdivision plat or other plat under Subchapter A, Chapter
212, or the subdivision or platting ordinance or procedures of any
political subdivision in the official records of the county clerk
of the county in which the tract is located. Except as provided by
Section 395.019, if the political subdivision has water and
wastewater capacity available:
(1) the political subdivision shall collect the fees at
the time the political subdivision issues a building permit;
(2) for land platted outside the corporate boundaries of
a municipality, the municipality shall collect the fees at the time
an application for an individual meter connection to the
municipality's water or wastewater system is filed; or
(3) a political subdivision that lacks authority to
issue building permits in the area where the impact fee applies
shall collect the fees at the time an application is filed for an
individual meter connection to the political subdivision's water or
wastewater system.
(e) For land on which new development occurs or is proposed
to occur without platting, the political subdivision may assess the
impact fees at any time during the development and building process
and may collect the fees at either the time of recordation of the
subdivision plat or connection to the political subdivision's water
or sewer system or at the time the political subdivision issues
either the building permit or the certificate of occupancy.
(f) An "assessment" means a determination of the amount of
the impact fee in effect on the date or occurrence provided in this
section and is the maximum amount that can be charged per service
unit of such development. No specific act by the political
subdivision is required.
(g) Notwithstanding Subsections (a)-(e) and Section 395.017,
the political subdivision may reduce or waive an impact fee for any
service unit that would qualify as affordable housing under 42
U.S.C. Section 12745, as amended, once the service unit is
constructed. If affordable housing as defined by 42 U.S.C. Section
12745, as amended, is not constructed, the political subdivision
may reverse its decision to waive or reduce the impact fee, and the
political subdivision may assess an impact fee at any time during
the development approval or building process or after the building
process if an impact fee was not already assessed.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 1997, 75th Leg., ch. 980, Sec. 52, off.
Sept. 1, 1997; Acts 2001, 77th Leg., ch. 345, Sec. 4, off. Sept.
1, 2001.
Sec. 395.017. ADDITIONAL FEE PROHIBITED; EXCEPTION. After
assessment of the impact fees attributable to the new development
or execution of an agreement for payment of impact fees, additional
impact fees or increases in fees may not be assessed against the
tract for any reason unless the number of service units to be
developed on the tract increases. In the event of the increase in
the number of service units, the impact fees to be imposed are
limited to the amount attributable to the additional service units.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.018. AGREEMENT WITH OWNER REGARDING PAYMENT. A
political subdivision is authorized to enter into an agreement with
the owner of a tract of land for which the plat has been recorded
providing for the time and method of payment of the impact fees.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.019. COLLECTION OF FEES IF SERVICES NOT AVAILABLE.
Except for roadway facilities, impact fees may be assessed but may
not be collected in areas where services are not currently
available unless:
(1) the collection is made to pay for a capital
improvement or facility expansion that has been identified in the
capital improvements plan and the political subdivision commits to
commence construction within two years, under duly awarded and
executed contracts or commitments of staff time covering
substantially all of the work required to provide service, and to
have the service available within a reasonable period of time
considering the type of capital improvement or facility expansion
to be constructed, but in no event longer than five years;
(2) the political subdivision agrees that the owner of a
new development may construct or finance the capital improvements
or facility expansions and agrees that the costs incurred or funds
advanced will be credited against the impact fees otherwise due
from the new development or agrees to reimburse the owner for such
costs from impact fees paid from other new developments that will
use such capital improvements or facility expansions, which fees
shall be collected and reimbursed to the owner at the time the
other new development records its plat; or
(3) an owner voluntarily requests the political
subdivision to reserve capacity to serve future development, and
the political subdivision and owner enter into a valid written
agreement.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.020. ENTITLEMENT TO SERVICES. Any new development
for which an impact fee has been paid is entitled to the permanent
use and benefit of the services for which the fee was exacted and
is entitled to receive immediate service from any existing
facilities with actual capacity to serve the new service units,
subject to compliance with other valid regulations.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.021. AUTHORITY OF POLITICAL SUBDIVISIONS TO SPEND
FUNDS TO REDUCE FEES. Political subdivisions may spend funds from
any lawful source to pay for all or a part of the capital
improvements or facility expansions to reduce the amount of impact
fees.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.022. AUTHORITY OF POLITICAL SUBDIVISION TO PAY FEES.
Political subdivisions and other governmental entities may pay
impact fees imposed under this chapter.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.023. CREDITS AGAINST ROADWAY FACILITIES FEES. Any
construction of, contributions to, or dedications of off-site
roadway facilities agreed to or required by a political subdivision
as a condition of development approval shall be credited against
roadway facilities impact fees otherwise due from the development.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.024. ACCOUNTING FOR FEES AND INTEREST. (a) The
order, ordinance, or resolution levying an impact fee must provide
that all funds collected through the adoption of an impact fee
shall be deposited in interest-bearing accounts clearly identifying
the category of capital improvements or facility expansions within
the service area for which the fee was adopted.
(b) Interest earned on impact fees is considered funds of the
account on which it is earned and is subject to all restrictions
placed on use of impact fees under this chapter.
(c) Impact fee funds may be spent only for the purposes for
which the impact fee was imposed as shown by the capital
improvements plan and as authorized by this chapter.
(d) The records of the accounts into which impact fees are
deposited shall be open for public inspection and copying during
ordinary business hours.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.025. REFUNDS. (a) On the request of an owner of
the property on which an impact fee has been paid, the political
subdivision shall refund the impact fee if existing facilities are
available and service is denied or the political subdivision has,
after collecting the fee when service was not available, failed to
commence construction within two years or service is not available
within a reasonable period considering the type of capital
improvement or facility expansion to be constructed, but in no
event later than five years from the date of payment under Section
395.019(1).
(b) Repealed by Acts 2001, 77th Leg., ch. 345, Sec. 9, off.
Sept. 1, 2001.
(c) The political subdivision shall refund any impact fee or
part of it that is not spent as authorized by this chapter within
10 years after the date of payment.
(d) Any refund shall bear interest calculated from the date
of collection to the date of refund at the statutory rate as set
forth in Section 302.002, Finance Code, or its successor statute.
(e) Ail refunds shall be made to the record owner of the
property at the time the refund is paid. However, if the impact
fees were paid by another political subdivision or governmental
entity, payment shall be made to the political subdivision or
governmental entity.
(f) The owner of the property on which an impact fee has been
paid or another political subdivision or governmental entity that
paid the impact fee has standing to sue for a refund under this
section.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 1997, 75th Leg., ch. 1396, Sec. 37, off.
Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 7.82, off. Sept.
1, 1999; Acts 2001, 77th Leg., ch. 345, Sec. 9, off. Sept. 1,
2001.
SUBCHAPTER C. PROCEDURES FOR ADOPTION OF IMPACT FEE
Sec. 395.041. COMPLIANCE WITH PROCEDURES REQUIRED. Except as
otherwise provided by this chapter, a political subdivision must
comply with this subchapter to levy an impact fee.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.0411. CAPITAL IMPROVEMENTS PLAN. The political
subdivision shall provide for a capital improvements plan to be
developed by qualified professionals using generally accepted
engineering and planning practices in accordance with Section
395.014.
Added by Acts 2001, 77th Leg., ch. 345, Sec. 5, off. Sept. 1, 2001.
Sec. 395.042. HEARING ON LAND USE ASSUMPTIONS AND CAPITAL
IMPROVEMENTS PLAN. To impose an impact fee, a political
subdivision must adopt an order, ordinance, or resolution
establishing a public hearing date to consider the land use
assumptions and capital improvements plan for the designated
service area.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 345, Sec. 5, off. Sept.
1, 2001.
Sec. 395.043. INFORMATION ABOUT LAND USE ASSUMPTIONS AND
CAPITAL IMPROVEMENTS PLAN AVAILABLE TO PUBLIC. On or before the
date of the first publication of the notice of the hearing on the
land use assumptions and capital improvements plan, the political
subdivision shall make available to the public its land use
assumptions, the time period of the projections, and a description
of the capital improvement facilities that may be proposed.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 345, Sec. 5, off. Sept.
1, 2001.
Sec. 395.044. NOTICE OF HEARING ON LAND USE ASSUMPTIONS AND
CAPITAL IMPROVEMENTS PLAN. (a) Before the 30th day before the
date of the hearing on the land use assumptions and capital
improvements plan, the political subdivision shall send a notice of
the hearing by certified mail to any person who has given written
notice by certified or registered mail to the municipal secretary
or other designated official of the political subdivision
requesting notice of the hearing within two years preceding the
date of adoption of the order, ordinance, or resolution setting the
public hearing.
(b) The political subdivision shall publish notice of the
hearing before the 30th day before the date set for the hearing, in
one or more newspapers of general circulation in each county in
which the political subdivision lies. However, a river authority
that is authorized elsewhere by state law to charge fees that
function as impact fees may publish the required newspaper notice
only in each county in which the service area lies.
(c) The notice must contain:
(1) a headline to read as follows:
"NOTICE OF PUBLIC HEARING ON LAND USE ASSUMPTIONS AND CAPITAL
IMPROVEMENTS PLAN RELATING TO POSSIBLE ADOPTION OF IMPACT FEES"
(2) the time, date, and location of the hearing;
(3) a statement that the purpose of the hearing is to
consider the land use assumptions and capital improvements plan
under which an impact fee may be imposed; and
(4) a statement that any member of the public has the
right to appear at the hearing and present evidence for or against
the land use assumptions and capital improvements plan.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 345, Sec. 5, off. Sept.
1, 2001.
Sec. 395.045. APPROVAL OF LAND USE ASSUMPTIONS AND CAPITAL
IMPROVEMENTS PLAN REQUIRED. (a) After the public hearing on the
land use assumptions and capital improvements plan, the political
subdivision shall determine whether to adopt or reject an
ordinance, order, or resolution approving the land use assumptions
and capital improvements plan.
(b) The political subdivision, within 30 days after the date
of the public hearing, shall approve or disapprove the land use
assumptions and capital improvements plan.
(c) An ordinance, order, or resolution approving the land use
assumptions and capital improvements plan may not be adopted as an
emergency measure.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 345, Sec. 5, off. Sept.
1, 2001.
Sec. 395.0455. SYSTEMWIDE LAND USE ASSUMPTIONS. (a) In lieu
of adopting land use assumptions for each service area, a political
subdivision may, except for storm water, drainage, flood control,
and roadway facilities, adopt systemwide land use assumptions,
which cover all of the area subject to the jurisdiction of the
political subdivision for the purpose of imposing impact fees under
this chapter.
(b) Prior to adopting systemwide land use assumptions, a
political subdivision shall follow the public notice, hearing, and
other requirements for adopting land use assumptions.
(c) After adoption of systemwide land use assumptions, a
political subdivision is not required to adopt additional land use
assumptions for a service area for water supply, treatment, and
distribution facilities or wastewater collection and treatment
facilities as a prerequisite to the adoption of a capital
improvements plan or impact fee, provided the capital improvements
plan and impact fee are consistent with the systemwide land use
assumptions.
Added by Acts 1989, 71st Leg., ch. 566, Sec. l(b), off. Aug. 28,
1989.
Sec. 395.047. HEARING ON IMPACT FEE. On adoption of the land
use assumptions and capital improvements plan, the governing body
shall adopt an order or resolution setting a public hearing to
discuss the imposition of the impact fee. The public hearing must
be held by the governing body of the political subdivision to
discuss the proposed ordinance, order, or resolution imposing an
impact fee.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 345, Sec. 5, off. Sept.
1, 2001.
Sec. 395.049. NOTICE OF HEARING ON IMPACT FEE. (a) Before
the 30th day before the date of the hearing on the imposition of an
impact fee, the political subdivision shall send a notice of the
hearing by certified mail to any person who has given written
notice by certified or registered mail to the municipal secretary
or other designated official of the political subdivision
requesting notice of the hearing within two years preceding the
date of adoption of the order or resolution setting the public
hearing.
(b) The political subdivision shall publish notice of the
hearing before the 30th day before the date set for the hearing, in
one or more newspapers of general circulation in each county in
which the political subdivision lies. However, a river authority
that is authorized elsewhere by state law to charge fees that
function as impact fees may publish the required newspaper notice
only in each county in which the service area lies.
(c) The notice must contain the following:
(1) a headline to read as follows:
"NOTICE OF PUBLIC HEARING ON ADOPTION OF IMPACT FEES" (2) the time, date, and location of the hearing;
(3) a statement that the purpose of the hearing is to
consider the adoption of an impact fee;
(4) the amount of the proposed impact fee per service
unit; and
(5) a statement that any member of the public has the
right to appear at the hearing and present evidence for or against
the plan and proposed fee.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 345, Sec. 5, off. Sept.
1, 2001.
Sec. 395.050. ADVISORY COMMITTEE COMMENTS ON IMPACT FEES.
The advisory committee created under Section 395.058 shall file its
written comments on the proposed impact fees before the fifth
business day before the date of the public hearing on the
imposition of the fees.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 345, Sec. 5, off. Sept.
1, 2001.
Sec. 395.051. APPROVAL OF IMPACT FEE REQUIRED. (a) The
political subdivision, within 30 days after the date of the public
hearing on the imposition of an impact fee, shall approve or
disapprove the imposition of an impact fee.
(b) An ordinance, order, or resolution approving the
imposition of an impact fee may not be adopted as an emergency
measure.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 345, Sec. 5, off. Sept.
1, 2001.
Sec. 395.052. PERIODIC UPDATE OF LAND USE ASSUMPTIONS AND
CAPITAL IMPROVEMENTS PLAN REQUIRED. (a) A political subdivision
imposing an impact fee shall update the land use assumptions and
capital improvements plan at least every five years. The initial
five-year period begins on the day the capital improvements plan is
adopted.
(b) The political subdivision shall review and evaluate its
current land use assumptions and shall cause an update of the
capital improvements plan to be prepared in accordance with
Subchapter B.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 345, Sec. 6, off. Sept.
1, 2001.
Sec. 395.053. HEARING ON UPDATED LAND USE ASSUMPTIONS AND
CAPITAL IMPROVEMENTS PLAN. The governing body of the political
subdivision shall, within 60 days after the date it receives the
update of the land use assumptions and the capital improvements
plan, adopt an order setting a public hearing to discuss and review
the update and shall determine whether to amend the plan.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.054. HEARING ON AMENDMENTS TO LAND USE ASSUMPTIONS,
CAPITAL IMPROVEMENTS PLAN, OR IMPACT FEE. A public hearing must be
held by the governing body of the political subdivision to discuss
the proposed ordinance, order, or resolution amending land use
assumptions, the capital improvements plan, or the impact fee. On
or before the date of the first publication of the notice of the
hearing on the amendments, the land use assumptions and the capital
improvements plan, including the amount of any proposed amended
impact fee per service unit, shall be made available to the public.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.055. NOTICE OF HEARING ON AMENDMENTS TO LAND USE
ASSUMPTIONS, CAPITAL IMPROVEMENTS PLAN, OR IMPACT FEE. (a) The
notice and hearing procedures prescribed by Sections 395.044(a) and
(b) apply to a hearing on the amendment of land use assumptions, a
capital improvements plan, or an impact fee.
(b) The notice of a hearing under this section must contain
the following:
(1) a headline to read as follows:
"NOTICE OF PUBLIC HEARING ON AMENDMENT OF IMPACT FEES"
(2) the time, date, and location of the hearing;
(3) a statement that the purpose of the hearing is to
consider the amendment of land use assumptions and a capital
improvements plan and the imposition of an impact fee; and
(4) a statement that any member of the public has the
right to appear at the hearing and present evidence for or against
the update.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 345, Sec. 7, off. Sept.
1, 2001.
Sec. 395.056. ADVISORY COMMITTEE COMMENTS ON AMENDMENTS. The
advisory committee created under Section 395.058 shall file its
written comments on the proposed amendments to the land use
assumptions, capital improvements plan, and impact fee before the
fifth business day before the date of the public hearing on the
amendments.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.057. APPROVAL OF AMENDMENTS REQUIRED. (a) The
political subdivision, within 30 days after the date of the public
hearing on the amendments, shall approve or disapprove the
amendments of the land use assumptions and the capital improvements
plan and modification of an impact fee.
(b) An ordinance, order, or resolution approving the
amendments to the land use assumptions, the capital improvements
plan, and imposition of an impact fee may not be adopted as an
emergency measure.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.0575. DETERMINATION THAT NO UPDATE OF LAND USE
ASSUMPTIONS, CAPITAL IMPROVEMENTS PLAN OR IMPACT FEES IS NEEDED.
(a) If, at the time an update under Section 395.052 is required,
the governing body determines that no change to the land use
assumptions, capital improvements plan, or impact fee is needed, it
may, as an alternative to the updating requirements of Sections
395.052-395.057, do the following:
(1) The governing body of the political subdivision
shall, upon determining that an update is unnecessary and 60 days
before publishing the final notice under this section, send notice
of its determination not to update the land use assumptions,
capital improvements plan, and impact fee by certified mail to any
person who has, within two years preceding the date that the final
notice of this matter is to be published, give written notice by
certified or registered mail to the municipal secretary or other
designated official of the political subdivision requesting notice
of hearings related to impact fees. The notice must contain the
information in Subsections (b) (2)-(5) .
(2) The political subdivision shall publish notice of
its determination once a week for three consecutive weeks in one or
more newspapers with general circulation in each county in which
the political subdivision lies. However, a river authority that is
authorized elsewhere by state law to charge fees that function as
impact fees may publish the required newspaper notice only in each
county in which the service area lies. The notice of public
hearing may not be in the part of the paper in which legal notices
and classified ads appear and may not be smaller than one-quarter
page of a standard-size or tabloid-size newspaper, and the headline
on the notice must be in 18-point or larger type.
(b) The notice must contain the following:
(1) a headline to read as follows:
"NOTICE OF DETERMINATION NOT TO UPDATE
LAND USE ASSUMPTIONS, CAPITAL IMPROVEMENTS
PLAN, OR IMPACT FEES";
(2) a statement that the governing body of the political
subdivision has determined that no change to the land use
assumptions, capital improvements plan, or impact fee is necessary;
(3) an easily understandable description and a map of
the service area in which the updating has been determined to be
unnecessary;
(4) a statement that if, within a specified date, which
date shall be at least 60 days after publication of the first
notice, a person makes a written request to the designated official
of the political subdivision requesting that the land use
assumptions, capital improvements plan, or impact fee be updated,
the governing body must comply with the request by following the
requirements of Sections 395.052-395.057; and
(5) a statement identifying the name and mailing address
of the official of the political subdivision to whom a request for
an update should be sent.
(c) The advisory committee shall file its written comments on
the need for updating the land use assumptions, capital
improvements plans, and impact fee before the fifth business day
before the earliest notice of the government's decision that no
update is necessary is mailed or published.
(d) If, by the date specified in Subsection (b) (4), a person
requests in writing that the land use assumptions, capital
improvements plan, or impact fee be updated, the governing body
shall cause an update of the land use assumptions and capital
improvements plan to be prepared in accordance with Sections
395.052-395.057.
(e) An ordinance, order, or resolution determining the need
for updating land use assumptions, a capital improvements plan, or
an impact fee may not be adopted as an emergency measure.
Added by Acts 1989, 71st Leg., ch. 566, Sec. l(d), off. Aug. 28,
1989.
Sec. 395.058. ADVISORY COMMITTEE. (a) On or before the date
on which the order, ordinance, or resolution is adopted under
Section 395.042, the political subdivision shall appoint a capital
improvements advisory committee.
(b) The advisory committee is composed of not less than five
members who shall be appointed by a majority vote of the governing
body of the political subdivision. Not less than 40 percent of the
membership of the advisory committee must be representatives of the
real estate, development, or building industries who are not
employees or officials of a political subdivision or governmental
entity. If the political subdivision has a planning and zoning
commission, the commission may act as the advisory committee if the
commission includes at least one representative of the real estate,
development, or building industry who is not an employee or
official of a political subdivision or governmental entity. If no
such representative is a member of the planning and zoning
commission, the commission may still act as the advisory committee
if at least one such representative is appointed by the political
subdivision as an ad hoc voting member of the planning and zoning
commission when it acts as the advisory committee. If the impact
fee is to be applied in the extraterritorial jurisdiction of the
political subdivision, the membership must include a representative
from that area.
(c) The advisory committee serves in an advisory capacity and
is established to:
(1) advise and assist the political subdivision in
adopting land use assumptions;
(2) review the capital improvements plan and file
written comments;
(3) monitor and evaluate implementation of the capital
improvements plan;
(4) file semiannual reports with respect to the progress
of the capital improvements plan and report to the political
subdivision any perceived inequities in implementing the plan or
imposing the impact fee; and
(5) advise the political subdivision of the need to
update or revise the land use assumptions, capital improvements
plan, and impact fee.
(d) The political subdivision shall make available to the
advisory committee any professional reports with respect to
developing and implementing the capital improvements plan.
(e) The governing body of the political subdivision shall
adopt procedural rules for the advisory committee to follow in
carrying out its duties.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), eff. Aug. 28,
1989.
SUBCHAPTER D. OTHER PROVISIONS
Sec. 395.071. DUTIES TO BE PERFORMED WITHIN TIME LIMITS. If
the governing body of the political subdivision does not perform a
duty imposed under this chapter within the prescribed period, a
person who has paid an impact fee or an owner of land on which an
impact fee has been paid has the right to present a written request
to the governing body of the political subdivision stating the
nature of the unperformed duty and requesting that it be performed
within 60 days after the date of the request. If the governing
body of the political subdivision finds that the duty is required
under this chapter and is late in being performed, it shall cause
the duty to commence within 60 days after the date of the request
and continue until completion.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), eff. Aug. 28,
1989.
Sec. 395.072. RECORDS OF HEARINGS. A record must be made of
any public hearing provided for by this chapter. The record shall
be maintained and be made available for public inspection by the
political subdivision for at least 10 years after the date of the
hearing.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), eff. Aug. 28,
1989.
Sec. 395.073. CUMULATIVE EFFECT OF STATE AND LOCAL
RESTRICTIONS. Any state or local restrictions that apply to the
imposition of an impact fee in a political subdivision where an
impact fee is proposed are cumulative with the restrictions in this
chapter.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), eff. Aug. 28,
1989.
Sec. 395.074. PRIOR IMPACT FEES REPLACED BY FEES UNDER THIS
CHAPTER. An impact fee that is in place on June 20, 1987, must be
replaced by an impact fee made under this chapter on or before June
20, 1990. However, any political subdivision having an impact fee
that has not been replaced under this chapter on or before June 20,
1988, is liable to any party who, after June 20, 1988, pays an
impact fee that exceeds the maximum permitted under Subchapter B by
more than 10 percent for an amount equal to two times the
difference between the maximum impact fee allowed and the actual
impact fee imposed, plus reasonable attorney's fees and court
costs.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), eff. Aug. 28,
1989.
Sec. 395.075. NO EFFECT ON TAXES OR OTHER CHARGES. This
chapter does not prohibit, affect, or regulate any tax, fee,
charge, or assessment specifically authorized by state law.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), eff. Aug. 28,
1989.
Sec. 395.076. MORATORIUM ON DEVELOPMENT PROHIBITED. A
moratorium may not be placed on new development for the purpose of
awaiting the completion of all or any part of the process necessary
to develop, adopt, or update land use assumptions, a capital
improvements plan, or an impact fee.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), eff. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 441, Sec. 2, eff. Sept.
1, 2001.
Sec. 395.077. APPEALS. (a) A person who has exhausted all
administrative remedies within the political subdivision and who is
aggrieved by a final decision is entitled to trial de novo under
this chapter.
(b) A suit to contest an impact fee must be filed within 90
days after the date of adoption of the ordinance, order, or
resolution establishing the impact fee.
(c) Except for roadway facilities, a person who has paid an
impact fee or an owner of property on which an impact fee has been
paid is entitled to specific performance of the services by the
political subdivision for which the fee was paid.
(d) This section does not require construction of a specific
facility to provide the services.
(e) Any suit must be filed in the county in which the major
part of the land area of the political subdivision is located. A
successful litigant shall be entitled to recover reasonable
attorney's fees and court costs.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.078. SUBSTANTIAL COMPLIANCE WITH NOTICE
REQUIREMENTS. An impact fee may not be held invalid because the
public notice requirements were not complied with if compliance was
substantial and in good faith.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989.
Sec. 395.079. IMPACT FEE FOR STORM WATER, DRAINAGE, AND FLOOD
CONTROL IN POPULOUS COUNTY. (a) Any county that has a population
of 3.3 million or more or that borders a county with a population
of 3.3 million or more, and any district or authority created under
Article XVI, Section 59, of the Texas Constitution within any such
county that is authorized to provide storm water, drainage, and
flood control facilities, is authorized to impose impact fees to
provide storm water, drainage, and flood control improvements
necessary to accommodate new development.
(b) The imposition of impact fees authorized by Subsection
(a) is exempt from the requirements of Sections 395.025, 395.052-
395.057, and 395.074 unless the political subdivision proposes to
increase the impact fee.
(c) Any political subdivision described by Subsection (a) is
authorized to pledge or otherwise contractually obligate all or
part of the impact fees to the payment of principal and interest on
bonds, notes, or other obligations issued or incurred by or on
behalf of the political subdivision and to the payment of any other
contractual obligations.
(d) An impact fee adopted by a political subdivision under
Subsection (a) may not be reduced if:
(1) the political subdivision has pledged or otherwise
contractually obligated all or part of the impact fees to the
payment of principal and interest on bonds, notes, or other
obligations issued by or on behalf of the political subdivision;
and
(2) the political subdivision agrees in the pledge or
contract not to reduce the impact fees during the term of the
bonds, notes, or other contractual obligations.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 2001, 77th Leg., ch. 669, Sec. 107, off.
Sept. 1, 2001.
Sec. 395.080. CHAPTER NOT APPLICABLE TO CERTAIN WATER-RELATED
SPECIAL DISTRICTS. (a) This chapter does not apply to impact
fees, charges, fees, assessments, or contributions:
(1) paid by or charged to a district created under
Article XVI, Section 59, of the Texas Constitution to another
district created under that constitutional provision if both
districts are required by law to obtain approval of their bonds by
the Texas Natural Resource Conservation Commission; or
(2) charged by an entity if the impact fees, charges,
fees, assessments, or contributions are approved by the Texas
Natural Resource Conservation Commission.
(b) Any district created under Article XVI, Section 59, or
Article III, Section 52, of the Texas Constitution may petition the
Texas Natural Resource Conservation Commission for approval of any
proposed impact fees, charges, fees, assessments, or contributions.
The commission shall adopt rules for reviewing the petition and
may charge the petitioner fees adequate to cover the cost of
processing and considering the petition. The rules shall require
notice substantially the same as that required by this chapter for
the adoption of impact fees and shall afford opportunity for all
affected parties to participate.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 82(a), off. Aug. 28,
1989. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.257, off.
Sept. 1, 1995.
Sec. 395.081. FEES FOR ADJOINING LANDOWNERS IN CERTAIN
MUNICIPALITIES. (a) This section applies only to a municipality
with a population of 105,000 or less that constitutes more than
three-fourths of the population of the county in which the majority
of the area of the municipality is located.
(b) A municipality that has not adopted an impact fee under
this chapter that is constructing a capital improvement, including
sewer or waterline or drainage or roadway facilities, from the
municipality to a development located within or outside the
municipality's boundaries, in its discretion, may allow a landowner
whose land adjoins the capital improvement or is within a specified
distance from the capital improvement, as determined by the
governing body of the municipality, to connect to the capital
improvement if:
(1) the governing body of the municipality has adopted a
finding under Subsection (c); and
(2) the landowner agrees to pay a proportional share of
the cost of the capital improvement as determined by the governing
body of the municipality and agreed to by the landowner.
(c) Before a municipality may allow a landowner to connect to
a capital improvement under Subsection (b), the municipality shall
adopt a finding that the municipality will benefit from allowing
the landowner to connect to the capital improvement. The finding
shall describe the benefit to be received by the municipality.
(d) A determination of the governing body of a municipality,
or its officers or employees, under this section is a discretionary
function of the municipality and the municipality and its officers
or employees are not liable for a determination made under this
section.
Added by Acts 1997, 75th Leg., ch. 1150, Sec. 1, off. June 19,
1997.
Sec. 395.082. CERTIFICATION OF COMPLIANCE REQUIRED. (a) A
political subdivision that imposes an impact fee shall submit a
written certification verifying compliance with this chapter to the
attorney general each year not later than the last day of the
political subdivision's fiscal year.
(b) The certification must be signed by the presiding officer
of the governing body of a political subdivision and include a
statement that reads substantially similar to the following: "This
statement certifies compliance with Chapter 395, Local Government
Code."
(c) A political subdivision that fails to submit a
certification as required by this section is liable to the state
for a civil penalty in an amount equal to 10 percent of the amount
of the impact fees erroneously charged. The attorney general shall
collect the civil penalty and deposit the amount collected to the
credit of the housing trust fund.
Added by Acts 2001, 77th Leg., ch. 345, Sec. 8, off. Sept. 1, 2001.
Impact Fees and Housing Affordability
One of the most common arguments against impact fees is that they increase the cost of
housing? ,Higher housing costs act like a regressive tax on lower income households.
Higher home prices also reduce the number of households that can afford to become
homeowners. Homebuilder associations and other developer groups often become ardent
advocates of affordable housing when local governments begin pursuing impact fees.
What they usually fail to mention is that the alternatives are generally higher property
taxes or utility rates, which also function as regressive taxes on lower-income households
and can also pose barriers to home ownership.
There are two principal ways to mitigate the effect of impact fees on housing affordability.
One is to waive impact fees or to have the local government pay the fees for qualified
affordable housing projects from another funding source. The other method is to design
the fees so that they are lower for smaller, more affordable units (sometimes referred to
as "variable-rate" impact fees).
Affordable Housing Waivers
One approach to mitigating the negative effect of impact fees on housing affordability is to
waive or reduce impact fees for affordable housing projects. :In general, this is to be
avoided, since waivers weaken the fundamental characteristic of impact fees, which is that
all new development pays in proportion to its impact on capital facilities. Waivers can also
result in the impact fee account having insufficient funds to construct the improvements
needed to serve growth. :In some states, waivers are not allowed under the impact fee
enabling statute. In other states, where there is no enabling act, local governments may
need to be cautious to ensure that the courts do not see waivers as evidence that the
impact fee is not a regulatory fee at all but an illegal tax.
However, some state enabling acts specifically authorize waivers for affordable housing or
other reasons. New Mexico, for example, recently amended its enabling act to specifically
authorize waivers for affordable housing projects. The City of Santa Fe is currently
considering an impact fee ordinance that would waive impact fees for housing projects
affordable to households earning less than 50 percent of the median income of the area,
and reimburse impact fees for projects affordable to households earning less than 80
percent of the median income.
:In many cases it is preferable for the local government to pay the fees for affordable
housing projects from some other funding source. This approach ensures that the impact
fee account has sufficient funds to construct the improvements for which the fee was
enacted. The major problem with this approach is that in many cases it is difficult for the
1Prepared by Clancy Mullen, AICP, Senior Associate of Duncan Associates, Austin, Texas, for the "Impact
Fees and Housing Affordability" session at the National Conference of the American Planning Association held n
Denver on April 1, 2003 (512-258-7347 ext. 204; clancy@duncanplan.com)
2Impact fees do not always increase housing prices. Impact fees may be wholly or partially absorbed by
landowners who, depending on market conditions, may have to accept less for their land. The issue of the effect of
impact fees on housing prices is a complex one. For the purposes of this discussion, however, let's assume that
impact fees do affect housing prices.
EXHIBIT 4
local government to come up with funding from other sources. Several communities have
come up with innovative solutions to this problem.
Sacramento Regional County Sanitation District, a regional wastewater provider in
Sacramento, California, issued bonds and used the proceeds to purchase rights to
wastewater generation from some major industries that were in decline but for which the
District had promised to set aside a certain amount of treatment capacity, zt purchased
these capacity rights at the cost of the wastewater impact fee then in effect. Shortly after
that it revised the impact fees, significantly increasing the amount of the fees. Tt then
allocated these wastewater "credits" to its member jurisdictions to give to affordable
housing and other locally-desired projects. The users of the credits pay the old impact fee,
and the District uses the revenue to repay the bonds.
A similar concept was included in Lincoln, Nebraska's recently-adooted impact fee
ordinance, fn the case of a redevelopment project, impact fees generally give credit for
the traffic or other impact that was generated by the previous development. Lincoln took
that concept further, and is giving itself credit when it demo ishes structures for road
widening and other projects. :It plans to use these credits to pay the fees for affordable
housing and economic development projects. The relevant language of the ordinance3 is
reproduced below.
In the case of a demolition or termination of an existing use or structure, the
impact fee for future redevelopment of that site shall be based upon the net
increase in the impact fee for the new or proposed land use as compared to
the previous use. Credit for the prior use shall not be transferable to another
location, except that if the old location was acquired by the City for use for
an Impact Fee Facility and will not be redeveloped, the City will receive a
credit against future impact fees equal to the impact fee that would have
been assessed against the relocated use which may be transferred by the
City to a community redevelopment project in another location within the
same benefit area.
3Sec. 27.82.050(c)(7) of the Lincoln Municipal Code
2
Variable :Impact Fees by Unit Size
The concept of waiving or reducing fees for affordable housing projects address the cost of
housing only for some lower-income households. The broader '~ssue is that typical impact
fees charge a flat rate per dwelling unit, regardless of size. Because smaller units tend to
cost less and house families with lower incomes, the one-size-fits-all approach taken by
most impact fee systems imposes a much larger burden, proportionately, on smaller units.
Figure 1: Two-bedroom, 960-square-foot house built in Denver
in 2000, selling for $160,000
Figure 2: Five-bedroom. 3,926-square-foot house built in
Littleton. CO in 2000. selling for $625,000
The regressive nature of one-size-fits-all impact fees was clearly demonstrated in a
seminal :L992 article by Dr. ]im Nicholas of the University of Florida.4 The 1985 data he
presented in that article have been updated with 200:[ data in Table :[ below. These data
reveal the strong correlation between the size of the dwelling unit, whether measured by
the number of bedrooms or square footage, the number of persons living in the unit, which
is a measure of the demand on facilities, and the value of the unit and the income of the
household (see Figure 3), which is a measure of the ability to pay.
Census data is the source of much of our information about housing and household
characteristics, but the census does not record dwelling size in square feet. The available
indicators of dwelling size in the census are number of bedrooms and number of rooms.
National housing data, however, reveal a strong
correlation between the number of bedrooms and the
square footage of the dwelling unit (see Table 1).
Figure 3
INCOME BY BEDROOMS
A flat $2,000 impact fee per dwelling unit, regaroless
of size or type, would constitute :[3 percent of the
annual income of the median household living in an
efficiency apartment, but only 3 percent of the median
income of a dwelling unit with four or more bedrooms
(see Table i). Aisc, since the demand on public
facilities is often a function of the number of people
living in a community, a four-bedroom or larger house
tends to have about three times the demand for
services as an efficiency apartment. Consequently,
4Nicholas, James C., "On the Progression of Impact Fees," Journal of the American Planning Association,
Vol. 58, No. 4, Autumn 1992, p. 5:[7-525
not only is a one-size-fits-all fee regressive, it tends to overcharge smaller units and
undercharge larger units,
Bedrooms
Table 1
DWELLING CHARACTERISTICS BY NUMBER OF BEDROOMS
Median Median $2,000 fee
Median Mean Unit Family as percent
Sq. Ft. Persons Value Income of income
0 500 1.2 n/a $14,956 13%
1 828 1.5 $73,740 $21.716 9%
2 1,248 2.2 $83,655 $28,343 7%
3 1,692 2.8 $119,539 $44,649 4%
4+ 2,406 3.5 $188,052 $68.834 3%
Source: U.S. Bureau ofthe Census, 2001 American Housing Survey (median square feet. mean persons
and median family income based on all dwelling units; median unit value based on owner-occupied units
only).
While most impact fees do acknowledge the difference between housing types, such as
single-family and multi-family units, few of them vary by unit size. This is changing,
however. For example, one-third of the 18 Florida counties that assess school impact fees
currently base the fees on some measure of dwelling unit size. Three of the counties
(Lake, Broward, and Hillsborough) base fees on the number of bedrooms in combination
with housing type. Two counties (Martin and Palm Beach) have translated bedrooms into
four or five size categories (e.g., a one-bedroom unit is on average less than 800 square
feet, etc.). Finally, one county (Miami/Dade) charges school fees on a per square foot
basis.
ASSESSMENT BASIS
Assessment Basis
Figure 4
FOR FLORIDA SCHOOL IMPACT FEES
Counties
Flat Rate per Dwelling
Housing Type
Housing Type & Bedrooms
Size Categories
Square Footage
Volusia
Citrus, Collier, Hernando, Lee. Manatee, Orange,
Osceola, Pasco, St. Lucie, St. Johns, Seminole
Broward, Hillsborough, Lake
Martin, Palm Beach
Miami/Dade
;ource: Survey by Duncan Associates, July 2002
There are several reasons for the continuing predominance of impact fees that do not vary
by unit size. One obvious reason is that a flat fee per dwelling unit is easier to calculate
and has fewer data requirements. While this is still the case, the data requirements are
not insurmountable, and greater resources are now available. The other principal reason
for the predominance of one-size-fits-all residential impact fees was legal in nature. In the
early days of the development of impact fees in the late 1970s and early :[980s, there
were no state impact fee enabling acts, and impact fees were based on the "police power"
of local governments to regulate development in order to advance the health and welfare
of the community. Great care had to be taken to ensure that impact fees would not be
struck down by the courts as an illegal tax. Even today, there is a residual feel by some
attorneys that a fee per square foot for residential development may appear more like a
tax than a regulatory fee. However, this should no longer be a major concern. Impact
fees are explicitly authorized by enabling legislation in 26 states, and are based on well-
established case law in most others. In addition, impact fees for nonresidential uses have
always been assessed on a square footage basis.
Data on which to base variable rate impact fees is now widely available, much of it on the
internet. Data on the relationship between the size of the unit (measured in bedrooms or
rooms) and the number of people or public school students living in the unit is available
from U.S. census sample data for areas with a population of 100,000 or more. Data on the
relationship between the number of bedrooms in a unit and the square footage of the unit
is available from real estate and property appraiser data in most communities. These
readily-available data are sufficient to develop variable-rate impact fees for those types of
facilities that are typically charged only on residential
uses on a per capita or per student basis, such as Figure 5
park, school and library impact fees. TRIPS BY HOUSEHOLD SIZE
To date, few road impact fees have been adopted that
vary by the size of the dwelling unit. This is largely
because road impact fees are generally based on ~. 12
national trip generation rate data, and the :[TE manual
does not provide rates by dwelling unit size. However,
the fact that trip generation rates for residential uses
vary by the size (and even the income) of the
household is actually well documented in the
transportation planning literature. As shown in Table 2
2
below and the accompanying Figure 5, the average
number of vehicle trips generated per day is almost 0
directly proportional to the number of people living in
the dwelling unit, which as we saw earlier is strongly
related to the size of the dwelling unit.
Persot~s in Household
Table 2
DALLY TRIPS BY HOUSEHOLD SIZE
Household Size Daily Trips
One Person 3.2
Two Persons 6.5
Three Persons 9.4
Four Persons 11.8
Five Persons or More 14.0
Weighted Avg. 8.1
Source: Transportation Research Board, NCHRP
Report 365, "Travel Estimation Techniques for Urban
Planning," Washington, D.C.: National Academy Press.
1998 (for urban areas with populations of 50,000 to
200,00O).
For the City of Santa Fe, we combined these national data on trip generation by household
size with local census data on household size by number of bedrooms and realtor data on
S]nstitute of Transportation Engineers ([TE), Trip Generation, 6th ed., 1997.
number of bedrooms by square footage to determine trip rates by four dwelling unit size
categories for single-family units, as shown in Table 3.
Table 3
SINGLE-FAMILY TRIP GENERATION RATES
Avg. Unit Avg. House- Average
Number of Bedrooms Size (sq. ft.) hold Size Trip Rate
2 Bedrooms or fewer 1,829 2.07 6.70
3 Bedrooms 2,470 2.80 8.82
4 Bedrooms 3,250 3.44 10.46
5 Bedrooms or more 4,985 4.06 11.93
All Sin.qle-Family Units
2.47 7.86
Source: Duncan Associates, Capital lmprovements P/an for Water, Wastewater, Road, Park,
Fire and Police Development Impact Fees for the City of Santa Fe, March 2003 draft.
Regression analysis was used to determine the
curve that best fits the four data points
(corresponding to the average two-bedroom,
three-bedroom, four-bedroom and five-or-more-
bedroom house, which are shown as squares in
Eigure 6). The resulting equation (shown as the
dashed line in Figure 6) explained 97 percent of
the variance.
While permit clerks cannot be expected to
calculate fees at the counter using a logarithmic
equation, it is a simple matter to develop a fee
schedule using 100 square foot or other
intervals. An example of such a schedule using
500 square foot intervals is shown in Table 4
below.
Figure 6
ROAD FEES BY UNIT SIZE, SANTA FE
$3
~t,00e
$500
/
4,000
lt.)
Table 4
PROPOSED ROAD FEES, SANTA FE
Dwellin~l Sq. Ft. Fee
0- 1,500 $1.015
1,501 - 2,000 $1.367
2,001 - 2,500 $1.630
2,501 - 3,000 $1,840
3,001 - 3,500 $2.014
3,501 - 4,000 $2.164
4,001 - 4,500 $2.295
Source: Duncan Associates, Capita/Improvements P/an for
Water, Wastewater, Road, Park, Fire and Pofice Development
Impact Fees for the City of Santa Fe, March 2003 draft.
Like road impact fees, water and wastewater impact fees are seldom varied by unit size.
:In the vast majority of cases, fees are charged based on the size of the water meter,
although a sizable minority charge residential fees on a per dwelling unit basis. :In a few
communities, residential fees are charged on the basis of the number of water fixtures.
While the author is unaware of any national statistics on the relationship between water
consumption and wastewater generation by dwelling unit size, that there is a relationship
certainly makes intuitive sense. Larger units tend to house more people, and water and
wastewater demand forecasts are mostly a function of the projected increase in population.
One would expect larger households, who tend to occupy larger homes, to have greater
demand for water and wastewater services than smaller
households. Tn fact, there is some limited data from
Denton, Texas, which tends to support this conclusion.
Water Utility provided data on
The
Denton
Hunicipal
water and wastewater demand for single-family units
between 1,O00 and 2,000 square feet in lO0-square-
foot blocks for the years 1998 and 1999. Census data
information was available for Denton County on the
average household size for two-bedroom, three-
bedroom, four-bedroom and five-bedroom or more
single-family units for 1990. Finally, the average
square footage of single-family units was determined
for each bedroom category from realtor listings for
January, 2003. All of these data are plotted in Figure
7.
Figure 7
UTILITY DATA, DENTON, TX
While the utility demand data are only available for smaller units (the average apartment
in Denton used 203 gallons per day during this same period), they indicate that utility
demand increases with dwelling size even more strongly than household s~ze increases
with dwelling size. These data support the reasonableness of using average household size
as an indicator of water and wastewater demand. Several communities have used this
relationship to base utility fees on the basis of the square footage of the residential
dwelling unit, including Orange County, North Carolina and Collier County, Florida.
Figure 8
WATER USAGE, SANTA FE
~0
o
Some water impact fees are based, not on the size of
the dwelling unit, but on the size of the lot, due to the
fact that larger lots require more water for
landscaping, which is the biggest use of water during
the peak summer months. Communities with water
fees that vary by ot size include Basalt, Colorado, Fort
Collins, Colorado, and Scottsdale, Arizona. Santa re,
New Mexico is considering water impact fees that vary
by lot size, based on a recent study of water use
records that found water usage is strongly re ated to
lot size, as shown in Figure 8.
Lot Size (square feet)
Figure 9
PROPOSED FIRE FEES, SANTA FE
$600
$500
WOO
$300
$200
$100
$0
0 t~000 2~000 3,000
Square Fee~ of B~tt~l~ Floor Area
Most fire and police impact fees are based on calls-
for-service data. Unfortunately, emergency call
data are seldom available by the size of the
dwelling unit. Another drawback is that calls for
individual land uses can fluctuate significantly from
one year to the next. An alternative approach is to
use call data only to determine a cost allocation
between residential and nonresidential
development. Based on the reasonable assumption
that the cost to serve development will increase
proportionately to the square footage of new
development, the residential cost per square foot
can be determined by dividing the cost to serve
residential development by the amount of
residential square footage (the same can be done
for nonresidential). This was the approach used in
developing draft fire impact fees for Santa Fe,
shown in Figure 9.
While many communities have adopted variable-rate impact fees for individual facilities,
few have implemented variable fees by dwelling unit size for a broad array of facilities.
One community that is currently contemplating such a set of impact fees is Santa Fe, New
Hexico. The sum of that City's proposed water, wastewater, road, park, police and fire
impact fees is illustrated in Figure 10.
Figure 10
PROPOSED FEES, SANTA FE
$4,000
$~
AGENDA INFORMATION SHEET
AGENDA DATE:
DEPARTMENT:
ACM:
January 25, 2005
Fiscal Operations
Kathy DuBose
Questions concerning this
report may be directed to
Scott Payne, 349-7836
SUBJECT
Receive a report, hold a discussion and give staff direction regarding the City of DeMon's
employee health benefits program.
BACKGROUND
Since 1989, the City of DeNon has offered health insurance benefits to its full-time employees,
retirees and eligible dependems on a fully insured basis. Prior to that time the City's health plan
was self-insured. Depending on the contract term and the proposed renewal rate, and due to the
constantly changing health care environment, the City has gone out to the market every one to
two years to seek competitive bids for both fully insured and self-insured programs. During the
last bid in 2003, the fully insured proposal offered through UnitedHealthcare (UHC) was the
most cost effective for the City. UHC is one of the nation's largest health plan providers in the
U.S. and the largest provider in the DFW area. The City curremly has 1,119 employees and 56
retirees enrolled for coverage with a total of approximately 2,694 individuals insured through
UHC.
The City of DeNon utilizes an Employee Insurance Committee (EIC) to assist in evaluating the
City's health and benefits programs. The EIC is made up of employee represematives from the
various City departments, as well as one retiree representative. The EIC meets on a monthly
basis to review benefit changes, discuss employee benefit issues and to provide input and
feedback regarding benefit levels and plan design.
The City's currem insurance program is a Preferred Provider Organization (PPO) program. This
plan provides the lowest cost of health coverage if the covered person stays within the PPO's
network of approved and credemialed medical providers and facilities, much like a Health
Maimenance Organization (HMO). Unlike an HMO, the City's PPO still offers covered medical
care if the covered person seeks medical treatment outside of the network. Furthermore, unlike
an HMO, the City's plan does not mandate the use of a primary care physician (PCP) and does
not restrict access to specialists by requiring referrals from the PCP. A covered person has direct
access to all medical providers and facilities in the PPO network.
The City's PPO includes coverage for all the standard types of medical care such as family
physician and specialist office visits; out-patient procedures; in-patient hospital admissions;
emergency room and minor emergency access; lab, x-ray and other diagnostic procedures;
surgical and transplant benefits; wellness exams; and immunizations.
Agenda Information Sheet
January 25, 2005
Page 2
In addition the City's plan provides coverage for prescription medications on a three-tiered basis.
This provides a $7.00 co-payment amount for generic medications, a $20.00 co-payment for
those name brand medications that are on the PPO's preferred drug list or formulary, and a
$50.00 co-payment for all other medications that are not generic and not on the formulary. In
this way the City's plan allows access to almost all medications currently on the market while
cost sharing with the covered person when they must utilize the higher cost, third tier
medications. The City also offers a mail-order prescription program alternative for those
covered people who utilize "maintenance medication" such as blood pressure, cholesterol or
hormones. The mail-order program has copayments of $17.50 (generic), $50.00 (preferred) and
$125.00 (non-formulary) for a 90-day supply of medication. A complete summary of the City's
PPO plan design is provided in Attachment 1.
Attachment 2 illustrates a detailed comparison between the plan costs and benefit structures of
several Metroplex cities that were surveyed. The first page compares in-network benefits and
the second page compares out-of-network benefits. Additionally, Attachment 3 provides a
breakdown of the health plan by Fund as a percentage.
FISCAL INFORMATION
Funds for the health benefits program are budgeted in the FY 04/05 budget in 911001.6714.
EXHIBITS
Attachment 1 -Preferred Provider Organization (PPO) Plan Benefits Summary
Attachment 2A -Health Plan Comparison with Other Metroplex Cities In Network
Attachment 2B -Health Plan Comparison with Other Metroplex Cities Out-of-Network
Attachment 3 -Health Plan by Fund as a Percentage
Respectfully submitted:
Diana G. Ortiz
Director of Fiscal Operations
Benefit
Attachment 1'
Preferred Provider Organization (PPO)
Plan Benefits Summary
Out-of Network
Premiums:
E m plo ye e + C h il d (re n ) $96 $ 96
Deductible
$1000 individual
$2000 family
Out of Pocket Max.
$5000 individual
$10,000 family
Medication:
Preferred $~ $20
Non-formulary
I* - after deductible is met
0
o ~ o o o ~ o o > >
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~ m o ° ~ o o ~ ~ o
·
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= ~ o o o o ~ ~ ~ o ~ o o
~ o o o ~ ~ c
~ ~ ~ ~ ~ ~ ~ ~ 0 0 0 -~
~ ~ o
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E~o -~
~ ~ E ~ ~ o ~ _ ~ o
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oo=
Attachment 3:
Health Plan by Fund as a %
Attachment 3 - Health Plan by Fund
GENERAL FUND
UTILITY/SOLID WASTE FUNDS
OTHER FUNDS
61.5574%
32.2951%
6.1476%
Health Plan by Fund
BI GENERAL FUND
[] UTILITY/SOLID WASTE
FUNDS
BOTHER FUNDS
AGENDA INFORMATION SHEET
AGENDA DATE:
DEPARTMENT:
January 25, 2005
Fiscal Operations
Questions concerning this
report may be directed to
Scott Payne at 349-7836
ACM: Kathy DuBose
SUBJECT
Receive a report, hold a discussion, and give staff direction regarding the City of DeMon's
workers' compensation program.
BACKGROUND
The City of Denton is required by statute to provide workers' compensation benefits to our
employees as prescribed in the Workers' Compensation Act (the Act). The Act specifies that, in
addition to lifetime reasonable and necessary medical expenses, injured workers are emitled to
receive either 70% or 75% (depending on their hourly wage) of their average weekly wage while
they are losing time due to a work related injury, in addition, Chapter 143.073 (a) of the Local
Governmem Code specifies, "A municipality shall provide to a fire fighter or police officer a
leave of absence for an illness or injury related to the person's line of duty. The leave is with full
pay for a period commensurate with the nature of the line of duty illness or injury, if necessary,
the leave shall continue for at least one year." Our Local Civil Service Rules go on to say that,
"if receiving full pay, the police officer or fire fighter must sign over any worker's compensation
or other wage replacement benefit checks to the City."
The City of DeNon administers a self-insured program for workers' compensation benefits. In
other words, we do not pay premiums to an insurance company to transfer the risk of our
workers' compensation exposure, instead, we comract with a Third-Party Administrator (TPA)
to adjust our workers' compensation claims. The City pays the actual cost of the adjusted claims
(medical and wage benefits) plus a quarterly fee of $9,450 to the TPA for claim handling. The
use of a TPA is common among self-insured emities as they provide specialized expertise as well
as economies of scale to their multiple clients. Furthermore, the practice of using self-insurance
as a mechanism to fund workers' compensation claims is fairly standard among public emities
our size.
As shown on Attachment 1, while the number of workers' compensation claims has steadily
decreased since FY 00/01, the cost of those claims has increased over the same time period.
There are many contributing factors to this effect. Since workers' compensation benefits include
medical treatment and prescription medication, they are impacted by the continued double-digit
medical inflation rate. The total cost of medical care, as well as the length that weekly benefits
are received and the amount of permanent impairment, is also dependent upon the severity of the
injury. One severe claim may be much more costly than several less severe claims.
Agenda Information Sheet
January 25, 2005
Page 2
For example, of FY 03/04 total workers' compensation expenses, approximately $265,000 is due
to one large claim. It should also be noted that expenses paid in any given fiscal period will be
for claims that occurred in that year as well as claims from previous years that are still open and
receiving benefits of some kind.
For the City's non-Civil Service employees there is no requirement that the City supplement
their workers' compensation benefits in any way. However, it has been the City's policy to
supplement the non-Civil Service employees' benefits, although for a shorter period of time.
The City supplements non-Civil Service employees for up to 120 working days instead of up to
one year as required by Chapter 143 for Civil Service. After that period the employee may
choose to use any accrued vacation or sick time to supplement workers' compensation benefits.
Additionally, instead of exchanging workers' compensation checks for full paychecks as
required by Local Rules, the City issues a second check to the injured employee for the
difference between the injured employee's regular salary and his or her workers' compensation
benefits.
FISCAL INFORMATION
Funds for workers' compensation claims expenses are budgeted in the FY2005 budget in
860002.6720. Funds for workers' compensation adjusting expenses are budgeted in
860002.6721.
EXHIBITS
Attachment 1- Workers' Compensation Historical Data
Attachment 2- Workers' Compensation Claims Cost by Fund
Respectfully submitted:
Diana G. Ortiz
Director of Fiscal Operations
Attachment 1
City of Denton
Workers' Compensation
Historical Data
Workers' Comp # of Claims
200
180
160
140
.E~ 120
100
80
60
40
20
0
99/00 00/01 01/02 02/03 03/04
Year
Workers' Comp Claim Cost
$1,000,000
$900,000
$800,000
$700,000
$600,000
$5OO,OOO
$4OO,OOO
$3oo,ooo
$2OO,OOO
$100,OO0
$o
99/00 00/01 01/02 02/03
Year
03/04
Note: Approximately $265,000 of the total cost in FY 03/04 was due to one claim.
Attachment 2
Workers' Compensation Claims Cost by Fund
Department Name
Human Resources
Fiscal Operations
Building Inspections
Facility Management
Library
Police
Fire
Streets & Traffic
Airport
Parks & Recreation
Consumer Health - Admin
Electric
Water
Wastewater
Solid Waste
Materials Mgmt - Admin
Procurement
Tech Services
Fund Name
General Fund
Internal Service
Electric
Water
Wastewater
Solid Waste
3-yr av,q %
0.0144%
0.9499%
0.0603%
O.9566%
0.1180%
19.3338%
11.0260%
16.0961%
0.0779%
18.1615%
0.4411%
6.6602%
6.3265%
2.6505%
15.6678%
0.9444%
0.3106%
0.2043%
100.00%
3-yr av,q %
67.2356%
1.4593%
6.6602%
6.3265%
2.6505%
15.6678%
100.00%
Workers' Compensation Costs by Fund
[]General Fund
[] Internal Service
[] Electric
[] Water
[] Wastewater
[] Solid Waste