2009-017sAour documents\ordinances\09\dca08-001 l.doc
ORDINANCE NO. D/ I
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING SUBCHAPTERS 3
AND 16 OF THE DENTON DEVELOPMENT CODE, CONFORMING PROCEDURES TO
STATUTORY PROVISIONS RELATING TO PROPORTIONALITY OF DEVELOPMENT
EXACTIONS; PROVIDING FOR A PENALTY IN THE MAXEVIUM AMOUNT OF $2,000.00
FOR VIOLATIONS THEREOF, SEVERABILITY AND AN EFFECTIVE DATE. (DCA08-
0011)
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
WHEREAS, after providing notice and after conducting a public hearing as required by
law, the Planning and Zoning Commission recommended approval of certain changes to
Subchapters 3 and 16 of the Denton Development Code to conform procedures to statutory
provisions relating to proportionality of development exactions; and
WHEREAS, after providing notice and after conducting a public hearing as required by
law, the City Council finds that the subject changes to the Development Code are consistent with
the Comprehensive 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. Subchapters 3 and 16 are amended to reflect the changes outlined in
Exhibit "A", attached and incorporated fully herein by reference; all provisions not changed
therein to remain as written.
SECTION 3. 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 4. 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 provisions of this ordinance are severable.
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 ~g day of
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
a,
2009.
APPROVED AS TO LEGAL FORM:
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EIIMIT A
Sections 35.3.4.A.4 and 35.3.4.B.2.d of the Denton Development Code are deleted in their
entirety.
A new Section 35.3.12 is hereby created to read as follows:
35.3.12 Exaction Proportionality Determination and Appeal Procedure.
A. Definitions. For purposes of this section:
1. Permit shall carry the meaning defined for that term by Chapter 245 of
the Texas Local Government Code, as amended.
2. Public facilities system means the collection of public infrastructure
facilities owned or operated by or in behalf of the City for the purpose of
providing services to the public, including existing and new developments.
3. Public infrastructure improvement means an improvement to a
component part of the above-defined public facilities system, required in
whole or in part as a consequence of development, excluding those public
infrastructure improvements funded by development impact fees under
procedures authorized by Chapter 395 of the Texas Local Government
Code
B. Purpose, Applicability & Designation
1. Purpose. The purpose of a proportionality appeal is to assure that a
requirement to dedicate, construct or pay a fee for a public infrastructure
improvement imposed on a proposed plat or development permit as a
condition of approval does not result in a disproportionate cost burden on
the property owner, taking into consideration the nature and extent of the
demands created by the proposed development on the City's public
facilities systems.
2. Applicability. An appeal under this section may be filed by a property
owner to contest any requirement to dedicate land, to construct
improvements or to pay development fees, other' than impact fees, for a
public infrastructure improvement, which requirement is imposed under
the City's Subdivision Regulations to a plat application pursuant to this
Code, whether the requirement is applicable under uniform standards, or is
imposed pursuant to an individual evaluation of the proposed subdivision.
3. Designation. The City Manager may designate and retain another licensed
professional engineer to perform the duties assigned to the City Engineer
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by this section, as needed to adjust workflow or to provide specific
expertise.
C Proportionality determination by City Engineer. Prior to consideration and
approval of a final plat application or other requested permit requiring dedication
or construction of a public infrastructure improvement, and upon receipt of a
written request by applicant or platting entity, the City Engineer shall prepare a
report affirming that each public infrastructure improvement to be imposed as a
condition of plat or permit approval is roughly proportionate to the demand
created by the development on the City's public facilities systems, taking into
consideration the nature and extent of the development proposed.
In making his proportionality determination, the City Engineer may rely
upon data submitted by the developer in satisfaction of Section 35.16.8.1,
as well as: findings pertaining to on-site improvements; the proposed or
potential use of the land; the timing and sequence of development in
relation to availability of adequate levels of public facilities; impact fee
studies or other studies that measure the demand for services created by
the development and the impact on the City's public facilities systems; the
function of the public infrastructure improvements in serving the proposed
development; the degree to which public infrastructure improvements to
serve the subdivision are supplied by other developments; the anticipated
participation by the City in the costs of such improvements; any
reimbursements for the costs of public infrastructure improvements for
which the proposed development is eligible; or any other information
relating to the mitigating effects of the public infrastructure improvements
on the impacts created by the development on the City's public facilities
systems.
2. The proportionality assessment must be based upon an individualized
determination, related both in nature and extent to the impact of the
proposed development, but no precise mathematical calculation is
required. Wherever feasible and appropriate, the determination may
incorporate or consider: applicable Federal, State, local or regional data,
statistics, guidelines, standards, methodologies or studies; or generally
accepted best practices of the profession.
3. Based upon his proportionality determination, the City Engineer shall
affirm that the developer's portion of the costs required for infrastructure
improvements does not exceed the amount that is roughly proportionate to
the impacts of the proposed development.
4. The City Engineer may promulgate any application requirements that may
assist in making the proportionality determination required by this
subsection.
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D. Commission Determination. The City Planning and Zoning Commission or other
permitting authority shall take into account the City Engineer's report concerning
the proportionality of public infrastructure improvement requirements to be
applied to a proposed final plat application or permit approval, as the case may be,
in making its decision on the plat application or permit approval, and shall
identify any variation to the requirements that are to be included as conditions to
plat or permit approval.
E. Appeals.
1. Who May Appeal. An appeal to the City Council under this section may
be filed by a property owner or the applicant for a final plat or permit, in
which a requirement to dedicate land for, construct or pay a fee (other than
an impact fee) for a public infrastructure improvement has been applied or
attached as a condition of approval by the Development Review
Committee, or as grounds for recommending denial of the pending plat
application.
2. Time for Filing and Request for Extension of Time. The appeal shall be
filed in writing within ten (10) days of the date the applicant receives the
City Engineer's proportionality determination. The appeal shall be filed
with the City Engineer, who shall place the item for consideration at an
upcoming meeting of the City Council. Upon filing an appeal, the
applicant is thereby requesting the postponement of consideration of a
pending plat application by the Planning and Zoning Commission, or
permit, as discussed under Subsection 35.3.12.C, pending preparation of
the study required by subsection (4) below, and completion of the appeal
process, in which case the applicant shall also waive the statutory period
for deciding plats for the time needed to decide the appeal by the City
Council.
3. Form of Appeal. An appeal under this section shall allege that application
of the standard or the imposition of conditions relating to the dedication,
construction or fee requirement is not roughly proportional to the nature
and extent of the impacts created by the proposed development on the
City's public facilities systems, or does not reasonably benefit the
proposed development.
4. Study Required. The appellant shall provide a study in support of the
appeal that includes the following information, within 30 days of the date
of appeal, unless a longer time is requested in writing, not to exceed 60
days total:
a. Total capacity of the City's roadway, drainage or park system to
be utilized by the proposed development, employing standard
measures of capacity and equivalency tables relating the type of
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development proposed to the quantity of system capacity to be
consumed by the development. If the proposed development is to
be developed in phases, such information also shall be provided
for the entire development proposed, including any phases already
developed.
b. Total capacity to be supplied to the City's roadway, drainage or
park facilities system by the dedication of an interest in land,
construction of improvements or fee contribution. If the plat
application is proposed as a phased development, the information
shall include any capacity supplied by prior dedication,
construction or fee payments.
C. Comparison of the capacity of the City's public facilities
system(s) to be consumed by the proposed development with the
capacity to be supplied to such system(s) by the proposed
dedication of an interest in land, construction of improvements, or
fee payment. In making this comparison, the impacts on the
City's public facilities system(s) from the entire development shall
be considered.
d. The amount of any City participation in the costs of oversizing the
public infrastructure improvement to be constructed in accordance
with the City's requirements.
e. Any other information that shows the alleged disproportionality
between the impacts created by the proposed development and the
dedication, construction or fee requirement imposed by the City.
F. Processing Application.
1. Responsible Official. The City Engineer is the responsible official for
evaluation and processing of an appeal under this section.
2. Evaluation, Recommendation. The City Engineer shall evaluate the
appeal and supporting study and shall make a recommendation to the City
Council based upon the information contained in the study, and the City
Engineer's analysis based upon the same factors considered in making his
original proportionality determination.
G. Decision. The City Council shall decide the appeal based on the criteria listed in
subsection 35.3.12.1-1, and may take one of the following actions.
1. Deny the appeal, and impose the standard or condition on the plat or
permit application in accordance with the City Engineer's
recommendation or the Planning and Zoning Commission's decision on
the plat; or
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2. Deny the appeal, upon finding that the proposed dedication, construction
or fee requirements are inadequate to offset the impacts of the subdivision
on the public facilities system for water, wastewater, roadway, drainage or
park improvements, and either deny the plat or permit application, or
require that additional public infrastructure improvements be made as a
condition of approval of the application; or
3. Grant the appeal, and waive in whole or in part any dedication,
construction or fee requirement for public infrastructure improvements to
the extent necessary to achieve proportionality; or
4. Grant the appeal, and direct that the City participate in the costs of
acquiring land for or constructing the public infrastructure improvement
under standard participation policies.
H. Criteria for Approval. In deciding an appeal under this section, the City Council
shall determine whether the application of the standard or condition requiring
dedication of an interest in land for, construction of, or payment of a fee for
public infrastructure improvements is roughly proportional to the nature and
extent of the impacts created by the proposed subdivision on the City's public
facilities systems for water, wastewater, roadway, drainage or park facilities, and
reasonably benefits the development. In making such determination, the Council
shall consider the evidence submitted by the appellant, the City Engineer's report
and recommendation, considering in particular the factors identified in
Subsection 35.3.12.C.
I. Action Following Decision. If the relief requested under the proportionality
appeal is granted in whole or in part by the City Council, the dedication,
construction or fee requirement initially recommended by the development
review committee as a condition of plat or permit approval shall be modified
accordingly, and the standards applied or the conditions attached to approval of
the plat or permit application shall be conformed to the relief granted.
J. If the plat or permit application is modified to increase the number of residential
units or the intensity of non-residential uses, the responsible official may require a
new study to validate the relief granted by the City Council.
K. Expiration of Relief. If an applicant for plat or permit approval prevails on a
proportionality appeal, but fails to conform the plat or permit application to the
relief granted by the City Council within the ninety-day period provided, the relief
granted by the City Council on the appeal shall expire.
1. The Council may extend the time for filing the revised plat or permit
application for good cause shown, but in any event, the expiration date for
the relief granted shall not be extended beyond one year from the date
relief was granted on the appeal.
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2. If the plat application for which relief was granted is denied on other
grounds, a new petition for relief shall be required on any subsequent
application.
Section 35.16.8 of the Denton Development Code is hereby amended to add a new
subsection I, to read as follows:
35.16.8.1. Exaction Proportionality Data. Every Application submitted under this Section
shall include data requested by the DRC chair or City Engineer to permit apportionment of costs
of required public infrastructure improvements, pursuant to section 35.3.12.C.
Section 35.16A.B. of the Denton Development Code is hereby amended to read as follows:
B. Expiration of Dormant Projects.
1. Any general development plan, preliminary plats, final plats, replats,
amending plats, conveyance plats or development plats that are dormant
according to the provisions of Tex. Loc. Gov't. Code §245.005, as
amended, shall expire on May 11, 2004.
2. For the purposes of this subsection, the terms "permit" and "project" shall
carry the meaning defined for those terms in Chapter 245 of the Texas
Local Government Code, as amended.
a. Unless otherwise specifically provided in this subchapter, any
permit associated with a development project shall automatically
expire within two years of its approval, if:
i No progress has been made towards completion of the
project, as defined by Tex. Loc. Gov't Code §245.005(c);
and
ii At least five years have elapsed since the first permit for
the project was filed.
b. Any application for a new development permit, or application to
modify an existing development permit, shall be deemed to
commence a new development project, as of the date it was filed, if
the new or modified permit application is incompatible with the
permits preceding it.
Section 35.16.20.D of the Denton Development Code is hereby amended to read as follows:
The applicant shall make all required improvements, at his expense, according to City
regulations, without reimbursement by the City, except for certain reimbursable costs as
provided in Subsections 35.21.9 and 35.21.10, or as determined as a result of an Exaction
Proportionality Determination and Appeal under Subsection 35.3.12.
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