2012-335
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2012-335
ORDINANCE
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING SUBCHAPTER 35.3.8
OF THE DENTON DEVELOPMENT CODE BY REPEALING EXISTING PROVISIONS
AND SUBSTITUTING PROCEDURES FOR PROCESSING AND DECIDING VESTED
RIGHTS CLAIMS; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN
EFFECTIVE DATE.
WHEREAS, pursuant to Ordinance No. 2002-040 the City Council of the City of Denton,
Texas adopted the Denton Development Code (the "Development Code"); and
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WHEREAS, after providing notice and after conducting a public hearing on November 7,
2012, as required by law, the Planning and Zoning Commission recommended approval of
certain changes to Subchapter 35.3.8 of the Denton Development Code; and
WHEREAS, after providing notice and after conducting a public hearing on November
20, 2012, as required by law, the City Council finds that the subject changes to the Development
Code are consistent with the Denton Plan and are in the public interest; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance are
incorporated herein by reference as true.
SECTION 2. Section 35.3.8 ("Local Permit Procedure") of the Denton Development
Code is hereby amended by replacing it in its entirety with a new Section 35.3.8 ("Vested
Rights), to read as follows:
35.3.8. Vested Rights.
A. Introduction and purpose. Texas Local Government Code, Chapter 245 ("chapter
245"), commonly referred to as the state's "vested rights law," provides an
opportunity for persons to "freeze" or "vest" governmental regulations by filing a
permit application. Other laws, such as Texas Local Government Code, § 211.016
also provide certain vesting. To:
1. Ensure that the City recognizes and protects all vested rights created by Chapter
245 and other applicable laws;
2. Ensure that all vested rights are made by the City only after the City is in receipt
of all information necessary to allow the City to determine whether vested rights
are present ; and
3. Provide a method of administrative review of vested rights
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B. Vested rights. For purposes of this Chapter, any person who believes that he has
obtained a vested right under Chapter 245 or other applicable vested rights law shall
submit to the Director a petition explaining the factual and legal bases upon which the
person relies to support his contention that he has a particular vested right and, j
consequently, is exempt or not subject to a particular City order, regulation,
ordinance, rule, expiration date, or other properly adopted requirement otherwise
applicable to development of petitioner's property (hereinafter referred to collectively
as "regulations"). The petition shall be accompanied by an unconditional waiver of
any statutory time periods or time periods established by ordinance for review of any
filed applications which are the subject of the petition. The petition shall include, at a
minimum, the following:
1. The name, mailing address, phone number and fax number of the person (or the
person's duly authorized agent);
2. Identification of the property for which the person claims a vested right;
3. Identification of the permit applications for which the applicant seeks relief under
this Ordinance;
4. Identification of the "project," as that term is defined in Chapter 245 at §
245.001(3) and the permit application, permit or development plan giving rise to
the project;
5. Identification of the original application for the first permit in the series of permits
required for the project, as described in Chapter 245 at § 245.041(1) and §
245.002(a) and (b) and each subsequent permit application or permit constituting
the series of permits, by type of permit and dates filed or approved by the City;
6. Identification of any exemptions under the City's Development Code or
ordinances to which the petitioner believes are applicable to the project defined;
7. Identification of all pertinent City regulations in effect at the time the original
application for the permit was filed that (a) the Petitioner contends control the
approval, disapproval, or conditional approval of the application(s) for a permit
for which relief is sought, pursuant to Chapter 245 at § 245.002(a) and (b); and
8. Identification of all current City regulations that the petitioner contends do not
apply to the project due to the vested rights provided the person by Chapter 245 or
other applicable vested rights laws. Global references to a particular ordinance,
statute or set of criteria, may be deemed insufficient and the City may consider
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the request for a vested rights to be incomplete and, hence, not subject to a staff
determination at that time.
9. Identification of all current City regulations that the petitioner accepts as
applicable to the project.
C. Vested rights. The Director shall first determine whether the application is complete
pursuant to DDC section 35.16.8. Once the application has been determined or
deemed complete, the Director shall forward the vested rights petition, together with
the required supporting information or documentation, to the City Manager and City
Attorney for their respective reviews. Prior to rendering a final determination, the
City Manager may request a pre-determination conference with the person to discuss
the person's vested rights and to ensure that the nature of the claim is fully and
completely understood by the City Manager. The City Manager, after consultation
with the City Attorney, shall render a final administrative determination that grants
the relief requested in the petition in whole or in part, or denies the requested relief in
whole or in part within 30 days of the date the petition is complete. The City
Manager's determination shall include a statement of the nature and scope of the
project and the reasons for the decision, and shall identify those current regulations
that are applicable to the project, if any, and prior existing regulations that are
applicable to the project, if any.
D. Board of Adjustment appeal. If the petitioner believes that the City Manager's
vested rights determination is in error, the petitioner shall have the right to appeal
such determination to the City's Board of Adjustment pursuant to 35.3.6, which board
shall have jurisdiction to hear and decide the appeal pursuant to Section 35.4.2 and
Texas Local Government Code, Chapter 211.
E. Criteria for Deciding Petition. The City Manager, or the Board of Adjustment on
appeal, shall decide the vested rights petition based upon the following factors:
1. Whether the City received fair notice of the project and the nature of the permit
sought;
2. Whether the nature and scope of the project prevents the City from applying one
or more current regulations to the proposed or pending applications;
3. Whether any prior approved applications for the property have expired or have
been terminated in accordance with law;,
4. Whether any statutory exception to a right asserted pursuant to TLGC chapter 245
is applicable to one or more current regulations;
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5. Whether any exemption from one or more regulations under the DDC or City
ordinances is applicable to the project; and
6. Whether the project is dormant.
F. Binding determination. The City Manager's final determination, if not timely
appealed to the Board of Adjustment within fifteen (15) days after the decision is
rendered by the City Manager, shall be immediately filed in the City's files related to
the project and the determination shall be considered binding upon the City and the
petitioner for the duration of the project. If an appeal is taken to the Board of
Adjustment, the Board of Adjustment's decision shall be so filed and shall supersede
the decision of the City Manager. Similarly, any decision by the Board of
Adjustment regarding a vested rights petition, shall be filed in the City's files related
to the project and the determination shall be considered binding upon the City and the
petitioner for the life of the project. The City Manager's decision, or the Board of
Adjustment's decision on appeal, shall be deemed filed on the first business day
following the date on which action was taken by the City Manager or Board of
Adjustment. Notwithstanding the binding nature of the City's final determination, the
City and petitioner may, at any time, enter into an agreement that, to the extent
authorized by law, modifies the final determination and the applicable regulations to
be applied to the project.
G. Judicial Review. Should the petitioner or City be aggrieved by or dissatisfied with
the decision of the Board of Adjustment, the petitioner or City may pursue all legal
remedies to appeal the decision to a court of competent jurisdiction pursuant to Texas
Local Government Code, Chapter 211.
SECTION 3. If any provision of this ordinance or the application thereof to any person
or circumstance is held invalid by any court, such invalidity shall not affect the validity of other
provisions or applications, and to this end the provision of this ordinance are severable.
SECTION 4. Any person violating any provision of this ordinance shall, upon
conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance
is violated shall constitute a separate and distinct offense.
SECTION 5. 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, Texas, within ten (10) days of the date of its passage.
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PASSED AND APPROVED this the day of , 2012.
YX
MARK A. BURROUGHS, MAYOR
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ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: (~~w z -h ~?ai lzd ~
APPROVED AS TO LEGAL FORM:
ANITA RGESS, CITY AT . RNEY
BY:~
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