Division 5 Vested Rights Petition

This Division 5 establishes criteria for determining whether a project is entitled to vested rights under Chapter 245 or Section 43.002 of the Texas Local Government Code. To the extent a project is entitled to vested rights, as determined under this Division 5, a permit necessary to initiate, continue, or complete a project may be exempt from current regulations.

Purpose.

The purpose of this Division 5 is to:

Establish a clear and consistent process for evaluating vested rights claims;

Ensure that vested rights determinations are based on accurate and complete information, including the nature and scope of the original project for which vested rights are asserted and actual development that has occurred over time; and

Recognize legitimate claims of vested rights under state law, while ensuring that new development complies to the greatest extent possible with current regulations.

Applicability.

A vested rights petition may be filed relating to a development application authorized under Chapter 2, Chapter 3 and/or Chapter 4 of this GDC, which has been filed in accordance with Chapter 245 of the Texas Local Government Code, or successor statute.

A vested rights petition must be filed prior to expiration of certain development applications pursuant to Chapter 1, Article 2, Division 4, of this GDC; and

A vested rights petition must not be filed with a petition for a text amendment, a zoning map amendment, or any other request for a legislative decision by the City Council.

Effect.

Upon the granting of a vested rights petition in whole or in part, the responsible official shall process the application and the applicable Initial Decision-Maker shall decide the application in accordance with the standards specified in the relief order, based on prior ordinance requirements or development standards.

(Ordinance 6773 adopted 5/19/15)

§ 5.15 Petition Requirements.

Who May Petition.

A vested rights petition may be filed with any application identified in this GDC by a property owner, or the owner’s duly authorized representative.

Form of Petition.

The vested rights petition must allege that the petitioner has a vested right relating to some, or all, of the land which is the subject of the application, under Texas Local Government Code, Chapter 245 or successor statute, or pursuant to Texas Local Government Code, Section 43.002 or successor statute, that requires the City to review and decide the application under standards in effect prior to the effective date of the currently applicable standards. The petition must include the following information and documents:

A narrative description providing a summary 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;

The date on which the applicant claims that vested rights accrued and a copy of each approved or pending application, permit, fair notice, or other document which is the basis for the contention that the City may not apply current standards to the application which is the subject of the petition;

The official submission date of the development application;

The date the project for which the development application was submitted was commenced;

(5)

Identification of all standards otherwise applicable to the application from which relief is sought;

(6)

Identification of any current standards which petitioner does not contest can be applied to the application at issue;

(7)

A narrative description of how the application of current standards affects the proposed use of the land, landscaping, tree preservation, open space, park dedication, lot size, lot dimensions, lot coverage, or building size shown on the application for which the petition is filed;

(8)

A copy of any prior vested rights determination involving the same land; and

(9)

Whenever the petitioner alleges that a development application which is subject to expiration under Chapter 1, Section 1.27 should not be terminated, a description of the events evidencing a progression toward completion of the project for which the development application was approved.

§ 5.16 Processing of Petitions and Decision.

Time for Filing Petition.

A vested rights petition must be filed at the same time as an application for which a vested right is claimed, except that the petition may also be filed before the date of expiration of any development application when filed pursuant to Chapter 1, Section 1.27. Where more than one application is authorized to be filed simultaneously by this GDC, the petition may be filed simultaneously with each application.

(Ordinance 6773 adopted 5/19/15)

Responsible Official.

The responsible official for a vested rights petition is the responsible official charged with processing the application associated with the petition, except where a petition is submitted pursuant to Chapter 1, Section 1.27.

In situations where multiple applications are submitted and there is more than one responsible official, the decision of each responsible official shall be coordinated with that of any other responsible official on the vested rights petition.

Where a vested rights petition asserts a vested right to an entire project, the Planning Director is the responsible official.

The responsible official shall promptly forward a copy of the vested rights petition to the City Attorney following the filing of the petition.

Initial Decision.

The Initial Decision-Maker on a vested rights petition, as provided in Table 5-1, 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 Initial Decision-Maker’s reasoning and setting forth the decision on the petition.

Appeal of Decision on Petition.

The applicant/petitioner may appeal the Initial Decision-Maker’s decision on the vested rights petition to the Appellate Decision-Maker authority cited in Table 5-1. Such an appeal must be filed in accordance with the procedures set forth in Section 5.02. Any further appeal of such petition must be made to the applicable authority cited in Table 5-1 and filed within ten calendar days following the date of the decision being appealed.

Effect on Related Applications.

A copy of the final decision on the vested rights petition (or appeal) under this Section must be submitted as part of the application requirements for any related and subsequently filed plat or development application. No related application will be accepted as complete without such a final decision having been rendered, and without the submission of the final decision documentation having been included with the application.

(Ordinance 6773 adopted 5/19/15)

§ 5.17 Action on Petition and Order.

Action on the Petition.

Not later than fifteen business days after acceptance of a complete vested rights petition, the Initial Decision-Maker, as provided in Table 5-1, shall review the petition under Section 5.18 and render a determination consistent with the requirements of this Division 5. The Initial Decision-Maker may take any one of the following actions:

Grant the relief requested in the petition, and direct that the application be reviewed and decided in accordance with the standards contained in identified prior regulations;

Grant the relief requested in part, and direct that certain identified current standards be applied to the application, while standards contained in identified prior regulations also shall be applied;

Deny the relief requested in the petition, and direct that the application be reviewed and decided under currently applicable standards; or

For petitions filed pursuant to Chapter 1, Section 1.27, specify the expiration date or the conditions of expiration for the development application(s).

The Initial Decision-Maker may approve a petition in part if a project is legally entitled to some, but not all, of the rights asserted in the petition, or if a change in the scale or intensity of development is necessary to maintain conformity with the original project. A vested rights determination may not waive or modify applicable regulations or provide relief which is not provided for through Chapter 245 or Section 43.002 of the Texas Local Government Code.

Order on Petition.

The responsible official shall issue a written report and decision on the vested rights petition which shall include statements, findings, and determinations on the following:

The nature of the relief granted, if any;

The approved or filed application(s) upon which relief is premised under the petition;

Current standards which shall apply to the application for which relief is sought, if applicable;

Prior standards which shall apply to the application for which relief is sought, including any procedural standards, if applicable;

(5)

The statutory basis or other grounds upon which relief is denied in whole or in part on the petition;

(6)

To the extent feasible, subsequently filed related applications that are subject to the same relief granted on the petition; and

(7)

For petitions filed pursuant to Chapter 1, Section 1.27, the date of expiration of the development application.

(Ordinance 6773 adopted 5/19/15)

§ 5.18 Criteria for Approval.

Factors.

The decision-maker, whether the Initial Decision-Maker or Appellate Decision-Maker, shall decide a vested rights petition that alleges rights under Chapter 245 of the Texas Local Government Code pursuant to the criteria described in this Subsection.

General Standard.

A permit application may be approved and the project granted development rights under Chapter 245 of the Local Government Code if approval of the permit is required to initiate, continue, or complete a project for which a prior permit or fair notice application was submitted to the City. An application may not be approved, and a project granted development rights, if the permit is unrelated to or inconsistent with the original project or if the original project has been completed, changed, or expired.

Review Criteria.

In determining the relief to be granted, if any, on a vested rights petition that alleges rights under Chapter 245 of the Texas Local Government Code, the decision-maker shall consider the following factors, where applicable:

(a)

The nature and extent of proposed development shown on the prior permit or other application that initiated the project for which vested rights are claimed;

(b)

Whether the permit application submitted in connection with the vested rights petition is related to, and consistent with, the original project;

(c)

The nature and extent of prior development of the property, including any permitting or construction activity that occurred subsequent to the vesting date requested by the applicant;

(d)

Any prior vested rights determinations made for development of the property;

(e)

Whether current standards adopted after commencement of the project affect the proposed use of the land, landscaping, tree preservation, open space, park dedication, lot size, lot dimensions, lot coverage, or building size based upon the proposed application;

(f)

Whether any statutory exception applies to the standards in the current GDC from which the applicant seeks relief; and

(g)

Whether any prior approved applications relied upon by the petitioner have expired.

§ 5.19 Application Following Final Decision on Petition.

Conditions.

In the event that the claim of vested rights under a petition is based upon a pending application which is subject to standards that have been superseded by current standards of this GDC, the decision-maker may condition any relief granted upon the approval of the application under those previously superseded standards.

(Ordinance 6773 adopted 5/19/15)

After the City has reached a final decision on a vested rights petition, the property owner must revise the application for which relief was sought to conform said application to the final decision, unless the relief granted on the vested rights petition is consistent with the application on file.

The decision-maker on the application shall consider any application revised under this Subsection in accordance with the procedures for deciding the initial application under this GDC and in conformity with the relief granted on the petition.

If the relief granted on the vested rights petition is consistent with the application on file, no revisions are necessary.

If proceedings have been stayed on the application pending referral of the vested rights petition to the City Council, proceedings on the application shall resume after the City Council’s decision on the vested rights petition.

(Ordinance 6773 adopted 5/19/15)

§ 5.20 Expiration and Extension.

Expiration.

Any relief which may have been granted on a vested rights petition expires on occurrence of any one of the following events:

The petitioner or property owner fails to submit a required revised application consistent with the relief granted within sixty calendar days following the final decision on the petition;

The application for which relief was granted on the vested rights petition is denied; or

The application for which relief was granted on the vested rights petition expires.

Extension.

Any extension of the expiration date for the application for which relief was granted on a vested rights petition also extends the relief granted on the petition for a like period.

(Ordinance 6773 adopted 5/19/15)

§ 5.21 Dormant Projects.

Definitions.

For purposes of this section only:

Initial Permit

means any of the following types of applications or approvals granted under the Garland Comprehensive Zoning Ordinance or subdivision regulations (including Chapter 31 of the City Code), as amended, or any predecessor zoning, subdivision or development-related ordinance that was in effect prior to the effective date of this GDC: any Site Plan, Concept Plan, Detail Plan, Specific Use Permit/Provision, any type of plat, or any other application that was approved subject to a schematic drawing illustrating the location, arrangement, orientation, or design of land uses, lots, or improvements on a site intended for development.

Final Permit means a Building Permit, Certificate of Occupancy, or Final Plat approved under the Garland Comprehensive Zoning Ordinance or subdivision regulations (including Chapter 31 of the City Code), as amended, or any predecessor zoning, subdivision, or development-related ordinance that was in effect prior to the effective date of this GDC.

Expiration of Permits.

Any application or permit that was approved or filed at least five years prior to September 1, 2015 or the effective date of this GDC, whichever is later, and was not previously subject to an expiration date, expires on the effective date of this GDC where no progress has been made toward completion of the project.

Reinstatement.

The owner of the land subject to an initial permit that expires under Subsection (B) above may petition the City Council to reinstate such permit by filing a written petition within sixty calendar days following the effective date of this GDC. The petition must clearly state the grounds for reinstatement, and must be accompanied by documentation providing evidence of one of the following:

More than five years prior to the effective date of this GDC, one of the following events had occurred:

(a)

A final permit for all or part of the land subject to the approved initial permit was approved, or was filed and was subsequently approved;

(b)

An application for a final permit was submitted for all or part of the land subject to the expired initial permit, but such application was rejected on grounds of incompleteness (consistent with Texas Local Government Code, Chapter 245.005(c)(2));

(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 of the most recent appraised market value of the land;

(d)

Fiscal security was posted to ensure performance of an obligation required for all or a part of the land subject to the approved initial permit; or

(e)

Utility connection fees or other fees for all or part of the land subject to the approved initial permit were paid.

During the time period beginning five years prior to the effective date of this GDC, but ending before the expiration date specified in Subsection (B) above, one of the following events had occurred:

(a)

A final permit was approved for all or part of the land subject to the approved zoning application, and remained in effect for such land on the 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 the expiration date.

City Council Action on Reinstatement.

When considering a petition to reinstate an expired permit under this Section, the City Council may take any one of the following actions:

Reinstate the expired initial permit without an expiration date, if it finds that the petitioner has met any one of the criteria listed in Subsection (C)(1) above;

Reinstate the initial permit for all or part of the land subject thereto, if it finds that the petitioner has met any one of the criteria listed in Subsection (C)(2) above, subject to such expiration dates or other conditions that assure 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 City Council may require that development of such remaining land be subject to standards enacted after approval of the initial permit;

Deny the petition, if it finds that the petitioner has failed to meet any of the criteria in Subsection (C); or