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)
The City will not issue a Certificate of Completeness (see subsection 1.4.2.E) for any application considered under this Article 2 until the City Council grants a Waiver requested under this subsection 2.6.1.
(v)
If the City and Subdivider determine there is a need for a waiver
following the issuance of a Certificate of Completeness, 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 & Zoning Commission with a recommendation
for denial.
2.
Waiver petition acceptance.
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)
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.
(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)
