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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. s:\our documents\ordinances\09\dca08-001 l.doc PASSED AND APPROVED this the ~g day of ATTEST: JENNIFER WALTERS, CITY SECRETARY a, 2009. APPROVED AS TO LEGAL FORM: sAour documents\ordinances\08\amend 3 & 16 exhibit a 010609 final.doc 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 1 sAour documents\ordinances\08\amend 3 & 16 exhibit a 010609 final.doc 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. 2 sAour documentslordinanceMMamend 3 & 16 exhibit a 010609 final.doc 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 3 sAour documents\ordinances\08\amend 3 & 16 exhibit a 010609 final.doc 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 4 sAour documents\ordinances\08\amend 3 & 16 exhibit a 010609 final.doc 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. 5 s:\our documents\ordinances\08\amend 3 & 16 exhibit a 010609 final.doc 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. 6