A. Purpose. The purpose of a petition for a Subdivision Waiver to a
standard or requirement under Section 2.5, Subdivision Design Standards,
is to determine whether an applicable standard or requirement constitutes
an undue hardship to a Developer or Subdivider and whether a waiver
of the standard or requirement is appropriate.
B. Decision-maker. After review and recommendation from Planning Director,
City Engineer, and the Planning and Zoning Commission, the City Council
shall decide a Subdivision Waiver.
C. Subdivision waiver applicability.
1.
Waiver of standard or requirement.
(i)
The Subdivider may request a Subdivision Waiver of a specific
standard or requirement applicable to a Preliminary Plat or Subdivision
Construction Plans; or where no Preliminary Plat application is required,
to a Development Plat, Final Plat, or a Replat.
(ii)
A Subdivision Waiver petition must be specific in nature and
only involve relief consideration for one specified standard or requirement.
(iii) A Subdivider may submit more than one Subdivision
Waiver petition if there are several standards or requirements at
issue and the petitions may be cross referenced as necessary.
(iv)
If the City and Subdivider determine there is a need for a waiver,
and no Waiver of Right to 30-Day Action has been submitted to the
City in accordance with subsection
2.2.1.D, the Plat or Construction Plan application listed in subsection
2.6.1.C.1(i), as applicable, will automatically
become forwarded to the Planning and Zoning Commission with a recommendation
for denial.
2.
Waiver petition acceptance.
(i)
The City will not accept petition for a Subdivision Waiver in
lieu of:
(1) A Subdivision Proportionality Appeal (subsection
2.6.2), or
(2) A Subdivision Vested Rights Petition (subsection
1.5.1).
(ii)
If there is a question as to whether a Subdivision Proportionality
Appeal or Subdivision Vested Rights Petition is required instead of
a Subdivision Waiver petition, the Planning Director will make the
determination. The Planning Director's decision may be appealed to
the City Council.
D. Subdivision waiver submission procedures.
1.
Written waiver request with application.
(i)
The Subdivider must submit a request for a Subdivision Waiver
in writing along with their Application for a Letter of Certification
Application, as applicable.
(ii)
The Planning Director may require that a Pre-Application Meeting
take place between the City and the Subdivider prior to submittal
of the written request.
(iii) The Planning and Zoning Commission will not make
a recommendation on a Subdivision Waiver unless the Subdivider has
made a written request.
(iv)
The City Council will not consider or grant a Subdivision Waiver
unless the Subdivider has made a written request.
2.
Grounds for waiver. The Subdivider's request must state the
grounds for the Subdivision Waiver request and the facts relied upon
by the Subdivider.
E. Subdivision waiver criteria.
1.
Undue hardship present. The Planning & Zoning Commission
may only make a recommendation for approval and the City Council may
only approve a Subdivision Waiver to regulations within this UDC when,
in the Council's opinion, undue hardship will result from strict compliance
to the regulations.
2.
Criteria. The Planning & Zoning Commission must base its
recommendation and the City Council must base its decision on the
following:
(i)
The nature of the proposed land use involved and existing uses
of the land in the vicinity;
(ii)
The number of persons who will reside or work in the proposed
development; and
(iii) The effect such Subdivision Waiver might have
upon traffic conditions and upon the public health, safety, convenience,
and welfare in the vicinity.
3.
Findings. The Planning & Zoning Commission may only make
a recommendation for approval and the City Council may only approve
a Subdivision Waiver to regulations within this UDC if the following
findings are made:
(i)
That there are special circumstances or conditions affecting
the land involved or other constraints such that the strict application
of the provisions of this UDC would deprive the Subdivider of the
reasonable use of the land; and
(ii)
That the Subdivision Waiver is necessary for the preservation
and enjoyment of a substantial property right; and
(iii) That the granting of the Subdivision Waiver will
not be detrimental to the public health, safety or welfare or injurious
to other property in the immediate vicinity; and
(iv)
That the granting of the Subdivision Waiver will not prevent
the orderly subdivision of other lands in the immediate vicinity in
accordance with the provisions of this UDC.
4.
Intent of subdivision regulations and development standards.
(i)
The City Council may grant a Subdivision Waiver only when the
Waiver is in harmony with the general purpose and intent of the UDC
and upon a finding that the public health, safety and welfare will
be secured and substantial justice be done.
(ii)
Financial hardship to the Subdivider does not constitute undue
hardship.
5.
Minimum degree of variation. No Subdivision Waiver will be granted
unless it represents the minimum degree of variation, in the opinion
of the Council, of requirements necessary to meet the needs of the
Subdivider.
6.
Violations and conflicts. The City Council will not authorize
a Subdivision Waiver that would constitute a violation of, or conflict
with, any other provision of this UDC, or any other ordinance, code,
regulation, master plan or Comprehensive Plan of the City.
7.
Falsification of information.
(i)
Any falsification of information by the Subdivider shall be
cause for the Subdivision Waiver request to be denied.
(ii)
If the City Council approves the Subdivision Waiver request
based upon false information, whether intentional or not, discovery
of such false information nullifies prior approval of the Subdivision
Waiver, requires reconsideration of the Subdivision Waiver request,
and may cause the City to withhold issuing permits and filing the
Final Plat.
F. Burden of proof. The Subdivider bears the burden of proof to demonstrate
that the requirement for which a Subdivision Waiver is requested,
if uniformly applied, imposes an undue hardship or disproportionate
burden on the Subdivider. The Subdivider must submit the burden of
proof with the original request for the request to be considered complete.
G. Subdivision waiver decision.
1.
Decision process for a subdivision waiver.
(i)
Recommendation of the Planning and Zoning Commission.
(1) The Commission shall consider the Subdivision Waiver
request at a public meeting no later than thirty (30) calendar days
after the date on which the notice of Subdivision Waiver is submitted
to the Planning Director.
(2) The Commission will make a recommendation to approve,
deny, or approve with modifications or conditions the request for
Subdivision Waiver by majority vote.
(ii)
Decision by City Council.
(1) Within thirty (30) calendar days of the Planning
and Zoning Commission making a recommendation on the Waiver, the City
Council, based upon the criteria set forth in subsection
2.6.1.E, shall approve, deny, or approve
with modifications or conditions the request for Subdivision Waiver
by majority vote of members present.
(2) The decision of the City Council is final.
H. Notification of decision on petition - 14 days. The Subdivider shall
be notified of the decision on the Subdivision Waiver within fourteen
(14) calendar days following the decision.
I. Effect of approval.
1.
Submission and processing.
(i)
Following the granting of a Subdivision Waiver, the Subdivider
may submit or continue the processing of a Plat or Subdivision Construction
Plans, as applicable.
(ii)
The Planning Director or City Engineer may require a Pre-Application
Meeting prior to the filing of an application for Plat or Subdivision
Construction Plans so that staff can review the impact of the Subdivision
Waiver decision on the application.
2.
Expirations. The Subdivision Waiver will remain in effect for
the period the Plat or Subdivision Construction Plans are in effect
and will expire upon expiration of either or both of those applications.
3.
Extensions. Extension of the applications listed in subsection
2.6.1.I.2 will also result in extension
of the Subdivision Waiver (see subsection
2.4.1.H. Extension of Subdivision Construction Plans beyond
Expiration Date).
(Ordinance 475 adopted 6/28/22; Ordinance
534 adopted 5/28/2024)
A. Purpose and applicability.
1.
Purpose. The purpose of a Subdivision Proportionality Appeal
is to provide a means of relief from a requirement for dedication,
construction, payment of a fee, other than an impact fee authorized
by Chapter 395 of the Texas Local Government Code, while ensuring
that the imposition of uniform dedication, construction, and fee standards
to a proposed Subdivision does not result in a disproportionate burden
on the Subdivider, taking into consideration the nature and extent
of the demands created by the proposed development on the City's roadways
and Public Facilities systems.
2.
Applicability.
(i)
An applicant may file a petition for relief under this subsection
2.6.2 and TLGC Section 212.904 to contest any requirement to dedicate land or to construct Public Facilities as required by this UDC, other ordinance, or attached as a condition to approval of the application for Subdivision Construction Plans.
(ii)
A petition under this subsection
2.6.2 may not be used to waive standards on grounds applicable to any Subdivision Waiver application, as outlined in subsection
2.6.1, Petition for Subdivision Waiver.
B. Petition requirements.
1.
Form of petition. The petition for relief from a dedication,
construction, or fee requirement must demonstrate that the standard
relating to the requirement is not roughly proportional to the nature
and extent of the impacts created by the proposed development on the
City's storm drainage, parks or transportation system, or does not
reasonably benefit the proposed Subdivision.
2.
Study required. The Subdivider must provide a study in support
of the petition for relief that includes the following information:
(i)
Capacity utilized.
(1) An assessment of total capacity of the City's storm
drainage, parks or transportation system, including bicycle and pedestrian
facilities, to be utilized by the proposed Subdivision, employing
standard measures of capacity and equivalency tables relating the
type of development proposed to the quantity of system capacity to
be consumed by the Subdivision.
(2) If the Subdivision is to be developed in phases,
the information identified in subsection
2.6.2.B.2(i)(1) must be provided for the entire Subdivision
proposed, including any phases already developed.
(ii)
Capacity supplied.
(1) An assessment of total capacity to be supplied
to the City's storm drainage, parks, or roadway system by the proposed
dedication of an interest in land or construction of Public Facilities.
(2) If the application is part of a phased development,
the information must include any capacity supplied by prior dedications
or construction of Public Facilities.
(iii) Capacity comparison.
(1) A comparison of the capacity of the City's Public
Facilities system(s) to be consumed by the proposed Subdivision with
the capacity to be supplied to such system(s) by the proposed dedication
of an interest in land, construction of Public Facilities, or payment
of a fee.
(2) In making this comparison, the impacts on the City's
Public Facilities system from the entire Subdivision will be considered.
(iv)
A determination of potential City participation in the costs
of oversizing the Public Improvement to be constructed in accordance
with the City's requirements, and the outcomes of such participation.
(v)
Any other information that shows the alleged disproportionality
between the impacts created by the proposed development and the dedication
or construction requirement imposed by the City.
3.
Time for filing petition and study.
(i)
The Subdivider must file the petition for relief from a dedication, construction, or fee requirement with the City Engineer within fifteen (15) business days following the decision to conditionally approve or deny an application under this Article
2.
(ii)
The Subdivider must file the study in support of the petition
within sixty (60) calendar days following the City Engineer's initial
decision, unless the Subdivider requests an extension in writing.
(iii) The City Engineer may extend the time for submitting
the study for a period not to exceed an additional thirty (30) calendar
days for good cause shown.
4.
Land in extraterritorial jurisdiction (ETJ). Where land or facilities
to be dedicated are located in the ETJ of the City and are to be dedicated
to the County, a petition for relief or study in support of the petition
will be accepted as complete for review by the City Engineer only
when such petition or study is accompanied by verification that a
copy has been delivered to, and accepted and approved by the County,
as applicable.
C. Processing of subdivision proportionality appeal petitions and decision.
1.
Responsible official. The City Engineer is the Responsible Official
for processing a petition for relief from a dedication or construction
requirement.
2.
Review and recommendation.
(i)
The City Engineer will review the petition and supporting study
and shall make a recommendation to:
(ii)
The City may participate in the costs of Public Facilities,
credit or offset the obligations against payment of fees, or relieve
the property owner any of the obligations in response to a petition
for relief from a dedication or construction requirement if participation
or credit will achieve proportionality between the demands created
by a proposed Subdivision on Public Facilities and the obligation
to provide Adequate Public Facilities.
3.
Decision-maker. The City Council will decide the Subdivision
Proportionality Appeal petition after receiving a recommendation from
the Planning and Zoning Commission.
4.
Burden of proof. The Subdivider bears the burden of proof to
demonstrate that the application of a dedication or construction requirement
that is uniformly applied imposes a disproportionate burden on the
applicant.
5.
Decision. The City Council will consider the petition for relief
from a dedication or construction requirement based upon the following
criteria:
(i)
The City Council must determine whether the application of the
standard or condition is roughly proportional to the nature and extent
of the impacts created by the proposed development on the City's storm
drainage, parks, pedestrian infrastructure, or roadway system, and
whether the application of the standard or condition reasonably benefits
the Subdivision.
(ii)
In making such determination, the City Council shall consider
the evidence submitted by the applicant, the report and recommendation
of the City Engineer, the recommendation of the Planning and Zoning
Commission and, where the property is located within the City's ETJ,
any recommendations from the County, as applicable.
6.
Action. Based on the criteria in subsection
2.6.2.C.5, the City Council will take one
of the following final actions:
(i)
Deny the petition for relief, and impose the dedication or construction
requirement as required by this Ordinance; or
(ii)
Grant the petition for relief, and waive any dedication or construction
requirement to the extent necessary to achieve proportionality; or
(iii) Grant the petition for relief, and direct that
the City participate in the costs of acquiring land for or constructing
the Public Improvement under standard participation policies.
7.
Notification of decision on petition. The City Engineer will
notify the Subdivider of the decision on the petition for relief within
fifteen (15) business days following the City Council's decision.
D. Expiration or failure to file application. Where an application was
denied based upon the imposition of the standard requiring dedication
of land or construction of a required Public Improvement and the City
Council's decision is to grant some level of relief, the Subdivider
must resubmit the application within sixty (60) business days following
the date the petition for relief is granted, in whole or in part,
showing conformity with the City Council's decision on the petition.
1.
If the application is not resubmitted within the sixty (60)
day period, the application and the relief granted by the City Council
on the petition shall expire.
2.
If the re-submittal of the application is modified in any other
way, a new petition for relief may be required by the City Engineer.
3.
If the application for which relief was granted is denied on
other grounds, a new petition for relief may be required by the City
Engineer.
E. Effect of relief.
1.
The Subdivider shall submit a modified application or supporting
materials to the City Engineer consistent with the relief granted
by the City Council on the petition.
2.
The relief granted on the petition shall remain in effect for
the period the application is in effect and will expire upon expiration
of the Subdivision Construction Plans or Plat (see subsection
2.4.1.H, Extension of Subdivision Construction
Plans beyond Expiration Date).
(Ordinance 475 adopted 6/28/22)