(a)
Purpose.
The purpose of these relief procedures is to
allow an applicant to differ from a particular standard or requirement
of this ordinance that would substantially limit the applicant’s
ability to utilize the land in a manner requested.
(1)
The rules and regulations of this subdivision ordinance are the standard
requirements of the city. Suspension of any of these rules and regulations
may be granted upon a good and sufficient showing by the applicant
that there are special circumstances or conditions affecting the property
in question, or that enforcement of the provisions of this division
will deprive the applicant of a substantial property right and that
such suspension, if granted, will not be materially detrimental to
the public welfare or injurious to other property or property rights
in the vicinity.
(2)
Each and every application for variance shall be decided solely and
entirely on its own merits and the disposition of any prior or pending
application for variance shall not be allowed to enter into or affect
any decision on the application in question.
(3)
Pecuniary interests (i.e. financial issues) standing alone shall
not be justification for the granting of a variance.
(b)
Definitions of levels of relief.
The director of development services shall be responsible for classifying any relief procedure as “minor” or “major.” Minor modifications may be acted upon by the director of development services or the director of engineering. Variances, as required by state law, and as defined in section 10.03.102, definitions, of this ordinance, require consideration by the board of adjustment.
(c)
Decision-makers and appeals.
(1)
Minor modifications.
A minor modification is acted upon
by the director of development services or the director of engineering.
An appeal to a decision on a minor modification by the director of
development services or the director of engineering (as applicable)
shall be considered by the board of adjustment. The board of adjustment
will be the final decision maker.
(2)
Variances.
A variance is acted upon by the board of
adjustment. An appeal to a variance decision by the board of adjustment
shall be considered by a district or county court.
(d)
Applicability.
(1)
An applicant may request relief from a particular standard or requirement
applicable to a conveyance plat, preliminary plat, construction plans,
final plat, or a replat. The relief petition shall be specific in
nature, and shall only involve relief consideration for one particular
standard or requirement. An applicant may, if desired, submit more
than one relief petition if there are several standards or requirements
at issue.
(2)
A petition for relief shall not be accepted in lieu of a vested rights petition (section 10.03.087, vested rights). If there is a question as to whether a vested rights petition is required instead of a petition for relief, such determination shall be made by the director of development services.
(e)
Variance submission procedure.
(1)
A request for relief shall be submitted in writing by the applicant
with the submittal of a conveyance plat, preliminary plat, construction
plans, final plat, or replat, as applicable. No relief may be considered
or granted unless the applicant has made such written request and
paid the applicable fee.
(2)
The applicant’s request shall state the grounds for the relief
request and all of the facts relied upon by the applicant. Failure
to do so will result in denial of the associated plat application.
(f)
Variance criteria.
(1)
A variance to regulations within this ordinance may be approved only
when, in the board of adjustment’s opinion, undue hardship will
result from strict compliance to the regulations.
(2)
The board of adjustment shall take into account the following factors:
(A)
The nature of the proposed land use involved and existing uses of
the land in the vicinity;
(B)
The number of persons who will reside or work in the proposed development;
and
(C)
The effect such variance might have upon traffic conditions and upon
the public health, safety, convenience and welfare in the vicinity.
(3)
No variance shall be granted unless the board of adjustment finds:
(A)
That there are special circumstances or conditions affecting the
land involved or other constraints such that the strict application
of the provisions of this ordinance would deprive the applicant of
the reasonable use of the land; and
(B)
That the variance is necessary for the preservation and enjoyment
of a substantial property right of the applicant, and that the granting
of the variance will not be detrimental to the public health, safety
or welfare or injurious to other property in the area; and
(C)
That the granting of the variance will not have the effect of preventing
the orderly subdivision of other lands in the area in accordance with
the provisions of this ordinance.
(4)
A variance may be granted only when in harmony with the general purpose
and intent of this ordinance so that the public health, safety and
welfare may be secured and substantial justice done. Financial hardship
to the applicant shall not be deemed to constitute undue hardship.
(5)
No variance shall be granted unless it represents the minimum degree
of variation of requirements necessary to meet the needs of the applicant.
(6)
The board of adjustment shall not authorize a variance that would
constitute a violation of, or conflict with, any other valid ordinance,
code, regulation, master plan, or comprehensive plan of the city.
(7)
Any falsification of information by the applicant shall be cause
for the variance request to be denied. If the variance request is
approved based upon false information, whether intentional or not,
discovery of such false information shall nullify prior approval of
the variance, and shall be grounds for reconsideration of the variance
request.
(g)
Burden of proof.
The applicant bears the burden of proof
to demonstrate that the requirement for which a variance is requested,
if uniformly applied, imposes an undue hardship or disproportionate
burden on the applicant. The applicant shall submit the burden of
proof with the original submittal.
(h)
Decision.
The decision-maker shall consider the variance petition and, based upon the criteria set forth in section 10.03.086(f), variance criteria, shall take one of the following actions:
(i)
Notification of decision on petition.
The applicant
shall be notified of the decision on the variance by the director
within fourteen (14) calendar days following the decision.
(j)
Appeal process.
(1)
Initiation of an appeal.
The applicant or city staff
may appeal a variance decision. A written letter of appeal shall be
submitted to the director of development services within fourteen
(14) calendar days following the decision by the board of adjustment,
as allowed by state law.
(2)
Appeal to district or county court.
The written appeal
petition shall be brought before the court of record for final decision.
(k)
Minor modification procedure.
The director of development
services shall determine what criteria apply for any relief petition
that is considered “minor” in nature on a case-by-case
basis. Appeals to his decision shall be heard by the board of adjustment.
(l)
Effect of approval.
Following the granting of a minor
modification or variance, the applicant may submit or continue the
processing of a plat or construction plans, as applicable. The minor
modification or variance granted shall remain in effect for the period
the plat, concept plan, or construction plans are in effect, and shall
expire upon expiration of any of those applications. Extension of
those applications shall also result in extension of the minor modification
or variance. The approval of a minor modification or variance relieves
the applicant of the imposition of the particular standard or requirement
for which a minor modification or variance was sought following the
finding of just cause for such minor modification or variance to be
allowed. A variance shall not be approved solely based on monetary
interests. Minor modifications or variances are heard on a case-by-case
basis and do not establish precedent.
(Ordinance 2020-95 adopted 10/13/20)
(a)
Purpose.
The purpose of a vested rights petition is
to determine whether an application should be processed under the
terms of a previous ordinance, to provide a process for determination
of possible vested status, and to determine when certain permits are
subject to expiration.
(b)
Applicability.
(1)
A vested rights petition may be submitted for any application authorized
under this ordinance.
(2)
A vested rights petition cannot be submitted by an applicant along
with submission of a request for a text amendment to this ordinance,
a zoning map amendment, or any other request for a legislative decision
by the city council.
(c)
Submission.
A vested rights petition shall be submitted to and officially filed with the city’s responsible official (see section 10.03.023(g) [section 10.03.023(c)], application submittal process in accordance with state law. Submission of a vested rights petition shall be deemed as an automatic variance of the applicant’s right, and the city’s obligation, to process and act upon applications as required by state law and as provided in section 10.03.087(e), form of petition, of this ordinance. Submission of such petition shall stay further proceedings on the related application until a final decision is reached on the vested rights petition.
(d)
Effect.
If a properly submitted vested rights petition
is approved in whole or in part, the responsible official shall then
process the original application and the decision-maker shall decide
the application in accordance with the standards specified in the
relief order based on prior ordinance requirements or development
standards existing at the date vesting is established, or shall extend
the validity of the original application that would otherwise be subject
to expiration pursuant to this ordinance.
(e)
Form of petition.
The vested rights petition shall allege
in writing that the applicant has a vested right for some or all of
the land subject to the application under state law that requires
the city to review and decide the application under standards that
were in effect prior to the effective date of the currently applicable
standards. The petition shall include the following information and
documents:
(1)
A written vested rights petition form, with a notarized original
signature of the property owner;
(2)
A narrative description of the grounds for the petition, including
a statement as to whether the petition asserts a vested right related
to a specific standard or to an entire project;
(3)
A copy of each approved or pending application that is the basis
for the contention that the city may not apply current standards to
the application;
(4)
The official filing date of the application;
(5)
The date the subdivision for which the application was submitted
was commenced;
(6)
Identification of all standards otherwise applicable to the application
from which relief is sought;
(7)
Identification of any current standards which applicant agrees can
be applied to the application at issue;
(8)
A narrative description of how the application of current standards
affect proposed landscaping, open space or park dedication, shown
on the application for which the petition is filed;
(9)
A copy of any prior vested rights determination involving the same
land; and
(10)
Whenever the applicant alleges that an application subject to expiration
should not be terminated, a description of the events constituting
progress toward completion of the subdivision for which the application
was approved. The applicant shall reimburse the city for all related
legal costs for review of the vested rights petition. This reimbursement
shall be paid in full prior to any decision on the petition.
(f)
Timing for filing petition.
A vested rights petition shall be filed with an application for which a vested right is claimed, except that the petition may be filed before the date of expiration of any already approved application when filed pursuant to section 10.03.089, dormant projects. Where more than one (1) application is authorized to be filed simultaneously by this ordinance, the petition may be filed simultaneously for each application.
(g)
Processing and decision.
(1)
Responsible official.
The responsible official for a vested rights petition is the same as that for processing the application with which the petition is associated, except where a petition is submitted pursuant to section 10.03.026, expiration for projects approved prior to the adoption of subdivision ordinance. Where multiple applications are submitted, and there is more than one (1) responsible official, the decision of each responsible official shall be coordinated with that of any other responsible official on the vested rights petition. The city attorney shall also be notified of the vested rights petition following its filing and acceptance for processing. The applicant shall reimburse the city for all related legal costs for review of a vested rights petition. This reimbursement shall be paid in full prior to filing of the final plat.
(2)
Action and/or decision by responsible official.
(A)
If the responsible official is the decision-maker on the original
related application, that official shall determine whether the relief
requested in the vested rights petition should be granted in whole
or in part, and shall formulate a written report summarizing the official’s
reasoning and recommendation.
(B)
The applicant shall be notified of the decision within fourteen (14)
calendar days following the date the vested rights petition was filed
at the city.
(C)
The responsible official may defer making a decision on the vested rights petition and instead forward the petition to the commission for a decision, in accordance with the process outlined in section 10.03.087(g)(3), decision by planning and zoning commission.
(3)
Decision by planning and zoning commission.
If the original
application is to be decided by the commission, or if the responsible
official defers making a decision on a vested rights petition, the
responsible official for that type of application shall submit a report
in the form of a recommendation on the vested rights petition to the
planning and zoning commission. The commission shall render a decision
on the vested rights petition within thirty (30) calendar days following
the date the petition was filed with the city. The commission’s
decision on a vested rights petition shall be upon a simple majority
vote of the full commission’s voting members.
(4)
Decision by city council.
Where the city council is the final decision-maker on the related application, or for any petition submitted pursuant to section 10.03.089, dormant projects, the responsible official for that type of application shall submit a report in the form of a recommendation on the vested rights petition to the city council. The council shall render a decision on the vested rights petition within thirty (30) calendar days following the date the petition was filed with the city. The city council’s decision on a vested rights petition shall be upon a simple majority vote of the full council’s voting members, and shall be final.
(5)
Appeal of decision.
The applicant may appeal to city council the responsible official’s or commission’s decision on the vested rights petition by submitting written notice of appeal to the applicable responsible official within fourteen (14) calendar days following the date of such decision. The city council shall hear and decide the appeal within thirty (30) calendar days following receipt of the notice of appeal by the city. Approval of an appeal by the city council shall only be upon a favorable vote of at least four (4) of the council’s voting members, and shall be final (see section 10.03.087(k), appeal).
(6)
Effect on related applications.
A final decision on
the vested rights petition or appeal under this section must be achieved
prior to further processing, and prior to any consideration of, or
decision on, the related application. Upon such final resolution and
decision on a vested rights petition, the responsible official shall
commence processing, review and consideration for the related application
as provided in this ordinance.
(h)
Criteria for approval.
(1)
Factors.
The decision-maker shall decide the vested
rights petition based upon the following factors:
(A)
The nature and extent of prior applications filed for the land subject
to the petition;
(B)
Whether any prior vested rights determinations have been made with
respect to the property subject to the petition;
(C)
Whether any prior approved applications for the property have expired
or have been terminated in accordance with state law or local ordinances;
(D)
Whether current standards adopted after commencement of the project
affect proposed use of the land, landscaping or tree preservation,
open space or park dedication, lot size, lot dimensions, lot coverage
or building size based upon the proposed application;
(E)
Whether any statutory exception applies to the standards in the current
subdivision ordinance from which the applicant seeks relief;
(F)
Whether any prior approved applications relied upon by the applicant
have expired;
(H)
Any other applicable provisions of state law.
(2)
Conditions.
If the claim of vested rights is based upon
a pending application, subject to standards that have been superseded
by current standards of this ordinance, the decision-maker may condition
any relief granted on the vested rights petition on the approval of
the pending application.
(i)
Action and record of action.
(1)
Action.
The decision-maker may take any of the following
actions:
(A)
Deny the relief requested in the petition, and direct that the application
shall be reviewed and decided under currently applicable standards;
or
(B)
Grant the relief requested in the petition, and direct that the related
application be reviewed and decided in accordance with the standards
contained in identified prior regulations; or
(C)
Grant the relief requested in part, and direct that certain identified
current standards be applied to the related application, while standards
contained in identified prior regulations also shall be applied; or
(2)
Record.
The responsible official’s report and
the decision on the vested rights petition shall be recorded in writing
in an order identifying the following:
(A)
The nature of the relief granted, if any;
(B)
The related applications upon which relief is premised under the
petition;
(C)
Current standards which shall apply to the related application for
which relief is sought, if applicable;
(D)
Prior standards which shall apply to the related application for
which relief is sought, including any procedural standards, if applicable;
(E)
The statutory exception or other grounds upon which relief is denied
in whole or in part on the petition;
(F)
To the extent feasible, subsequent related applications that are
subject to the same relief granted on the petition; and
(j)
Associated applications following final decision.
(1)
Following the city’s final decision on the vested rights petition,
the applicant shall, if necessary, revise the related application
such that it conforms to the city’s decision on the vested rights
petition.
(2)
The decision-maker on the related application shall review and consider
the revised application in accordance with the procedures for deciding
that type of application, as outlined in this ordinance, and in conformity
with any relief granted.
(3)
If the relief granted on the vested rights petition is consistent
with the related application on file, no revisions shall be necessary,
and the related application shall be deemed officially filed at the
time of the final decision on the vested rights petition.
(k)
Appeal.
(1)
Initiation of an appeal.
The applicant may appeal the
decision of the commission by submitting a written notice of appeal
to the director of development services within fourteen (14) calendar
days following the date of the commission’s decision.
(A)
For a city council-initiated appeal, the council shall consider and
act on whether it will appeal the commission’s decision at its
first regular meeting (for which there is time to include such appeal
on its posted agenda, as required by state law) that occurs after
the commission meeting at which the decision was made.
(B)
Written notice of the city council’s vote to appeal shall be
submitted to the director of development services within seven (7)
calendar days following the city council’s vote to appeal the
decision.
(C)
For an applicant-initiated appeal, a letter stating the reasons for
the appeal, citing the specific applicable sections of the subdivision
ordinance, shall be submitted by the applicant.
(D)
The director of development services may, on his/her own initiative,
appeal the decision of the commission by scheduling an appeal on the
city council’s next regular meeting (for which there is time
to include such appeal on its posted agenda as required by state law)
that occurs after the commission meeting at which the decision was
made.
(2)
Council decision.
The city council shall consider the
appeal at a public meeting no later than thirty (30) calendar days
after the date on which the notice of appeal is submitted to the director
of development services. The city council may affirm, modify or reverse
the decision of the commission by simple majority vote. The decision
of the city council is final.
(l)
Expiration and extension.
(1)
Expiration.
Relief granted on a vested rights petition
shall expire on occurrence of one of the following events:
(A)
The applicant fails to submit a revised application that is consistent
with the relief granted, if any, within sixty (60) calendar days following
the final decision on the vested rights petition;
(B)
The application for which relief was granted on the vested rights
petition is denied; or
(C)
The application for which relief was granted on the vested rights
petition expires.
(2)
Extension.
Extension of the date of expiration for the
application for which relief was granted on a vested rights petition
shall result in extension of the relief granted on the vested rights
petition for the same time period.
(Ordinance 2020-95 adopted 10/13/20)
(a)
Notwithstanding anything in this ordinance to the contrary, if the
city requires as a condition of approval for a property development
project that the developer bear a portion of the costs of municipal
infrastructure improvements by the making of dedications, the payment
of fees, or the payment of construction costs pursuant to this ordinance,
the developer’s portion may not exceed the amount required for
infrastructure improvements that are roughly proportionate to the
proposed development as approved by a professional engineer retained
by the city. Municipal infrastructure improvements have the meaning
set forth in the Texas Local Government Code section 212.904, as that
term is interpreted by the Texas Attorney General and Texas courts.
(b)
The dedication or construction of an infrastructure improvement imposed
by the city as a condition of plat or site plan approval in accordance
with the city’s adopted subdivision and development regulations
shall be deemed to be the city’s determination, upon the advice
of a professional engineer duly licensed in this state and retained
by the city, that such requirements, together with any impact fees
due for the development, are roughly proportionate to the impacts
created by the development on the city’s municipal infrastructure.
(c)
A developer who disputes the determination made under subsection (b) above, may appeal to the city council. Prior to filing the appeal, the developer shall notify the director of development services, in writing, of the pending dispute. The director shall send the developer their written response, reviewed and approved by the engineering division or other professional engineer on behalf of the city, to the proportionality issues raised by the developer and in so doing may revise the dedication or construction requirement(s) at issue. If the developer is not satisfied with the engineering division’s response, they may file an appeal to the city council with the city secretary. At the appeal, the developer may present evidence and testimony under procedures adopted by the city council.
(d)
The city may not require a developer to waive the right of appeal
authorized by this section as a condition of approval for a development
project.
(e)
For municipal infrastructure improvements for which the city has
enacted impact fees, the measure of rough proportionality shall be
the maximum impact fee per service unit then in effect for that category
of infrastructure improvements, as may be amended from time to time,
unless an alternative measure is approved by the director of engineering
or his designee. To the extent that the impact fee charged against
a new development, as may be amended from time to time, is less than
the maximum impact fee per service unit, such difference is hereby
declared to be founded on policies unrelated to measurement of the
impacts of the new development on the city’s infrastructure
systems. The maximum impact fee per service unit may be used in evaluating
any claim by a property owner that the dedication of land for right-of-way
or construction of an infrastructure improvement within an impact
fee service area, which is imposed as a condition of development approval
pursuant to the city’s subdivision or development regulations,
together with the imposition of an impact fee, is disproportionate
to the impacts created by the development on the city’s infrastructure
system for that category of infrastructure improvements.
(f)
After hearing any testimony and reviewing the evidence, the city council shall make its determination within thirty (30) days following the final submission of any testimony or evidence by the developer. The council shall decide whether requirements imposed by this ordinance is roughly proportional to the nature and extent of the development proposed. In reaching such determination, the council shall take into account the information in the evidence supplied by the applicant, the measure of proportionality in subsection (e) or any alternative measure proposed by the director of engineering or his designee, the total costs to the city for supplying infrastructure capacity to the proposed development and all developments associated with the original plat of which the proposed development is a part, and the extent to which requirements imposed by the city benefit the proposed development.
(g)
If the city council finds that the requirement is not roughly proportional
to the nature and extent of the development being proposed, it may
take any of the following actions:
(1)
Waive in whole or in part a dedication or construction requirement
imposed by the city’s development regulations and/or reduce
the amount of impact fees due; or
(2)
Direct that the city participate in the costs of acquiring or constructing
such a municipal infrastructure improvement pursuant to standard participation
policies; or
(3)
Require some combination of such measures.
(Ordinance 2020-95 adopted 10/13/20)
(a)
Definitions.
For purposes of this chapter only:
(1)
Initial permit.
Any of the following
types of approvals granted under this subdivision ordinance, or any
predecessor subdivision or development-related ordinance that was
in effect prior to the adoption of this ordinance: preliminary plat,
construction plans, construction release, variances to any requirement
in this subdivision ordinance, or any other application that was approved
subject to a schematic drawing illustrating the location, arrangement,
orientation or design of development, lots or improvements on a site
intended for development.
(2)
Final permit.
A final plat approved
under this subdivision ordinance, or any predecessor subdivision or
development-related ordinance that was in effect prior to the adoption
of this ordinance.
(b)
Expiration of permits.
Any application for an initial
permit that was approved or filed before, but that was not subject
to an expiration date, two (2) years prior to the adoption date of
this subdivision ordinance shall expire on the effective date of this
subdivision ordinance.
(c)
Reinstatement.
The property owner of the land subject to an initial permit that expires under section 10.03.089, dormant projects, may petition the commission to reinstate such permit by filing a written petition within sixty (60) calendar days following the effective date of this subdivision ordinance. The petition shall clearly state the grounds for reinstatement, and shall be accompanied by documentation of one of the following:
(1)
As of two (2) years prior to the effective date of this subdivision
ordinance, one of the following events had occurred:
(A)
A final permit to continue toward completion of the project was submitted
to the city for all or part of the land subject to the approved initial
permit and was approved by the city, or was filed and was subsequently
approved by the city;
(B)
An application for a final permit to continue toward completion of
the project was submitted to the city for all or part of the land
subject to the expired initial permit, but such application was rejected
on grounds of incompleteness consistent with state law.
(C)
Costs for development of the land subject to the initial permit,
including costs associated with roadway, utility and other infrastructure
facilities designed to serve the land in whole or in part, but exclusive
of land acquisition costs, were incurred in the aggregate amount of
five percent (5%) of the most recent appraised market value of the
land;
(D)
Fiscal security was posted with the city to guarantee performance
of obligations required under this subdivision ordinance, including
the construction of required improvements associated with the proposed
development, for all or a part of the land subject to the approved
initial permit; or
(E)
Utility connection fees or impact fees for all or part of the land
subject to the approved initial permit were paid to the city.
(2)
After two (2) years prior to the adoption date of this subdivision ordinance, but before the expiration date specified in section 10.03.089(b), expiration of permits, one of the following events had occurred:
(A)
A final permit was approved for all or part of the land subject to
the approved application, and remained in effect for such land on
such expiration date; or
(B)
A complete application for approval of a final permit for all or
part of the land subject to the approved initial permit was pending
for decision on such expiration date.
(d)
Commission action on reinstatement.
The commission may
take one of the following actions:
(1)
Reinstate the expired initial permit without an expiration date, if it finds that the applicant has met any of the criteria listed in section 10.03.089(c), reinstatement;
(2)
Reinstate the initial permit for all or part of the land subject thereto, if it finds that the applicant has met any of the criteria listed in section 10.03.089(c), reinstatement, subject to such expiration dates or other conditions that ensure that the remaining land that is not subject to an approved or pending final permit application will be developed in a timely fashion. In granting relief under this provision, the commission may require that development of such remaining land is subject to standards enacted after approval of the initial permit;
(3)
Deny the reinstatement petition, if it finds that the applicant has failed to meet any of the criteria in section 10.03.089(c), reinstatement, or
(4)
Reinstate the permit for only that part of the land subject to a pending final permit application, if it finds that the applicant has met the criteria in section 10.03.089(c), reinstatement and the pending application subsequently was approved, and deny the reinstatement petition for the remaining land subject to the expired initial permit.
(Ordinance 2020-95 adopted 10/13/20)
