This article shall be commonly cited as the “grandfathered development status ordinance.”
(Ordinance 162, sec. 1.1, adopted 5/27/09)
Texas Local Government Code chapter 245 (“LGC 245”), sometimes referred to as the state’s “freeze law,” H.B. 1704, provides an opportunity for landowners or developers to “lock-in” certain government regulations that apply to a particular development by filing a specific permit application. Other laws, such as sections 43.002 and 211.016 of the Texas Local Government Code, also convey certain “grandfathered” status.
(Ordinance 162, sec. 1.2, adopted 5/27/09)
This article provides standards and procedures for municipal determination of the alleged grandfathered development status of development projects. Specifically, this article is enacted to:
(1) 
Provide increased certainty and predictability in the city’s regulatory process;
(2) 
Guarantee that all grandfathered development status determinations are made by the city only after the city is in receipt of all necessary information;
(3) 
Provide a method of administrative review of grandfathered development status project decisions in accordance with LGC 245 or other applicable vesting laws; and
(4) 
Ensure that the city recognizes and protects all grandfathered development status projects created by LGC 245.
(Ordinance 162, sec. 1.3, adopted 5/27/09)
(a) 
This article applies to the city limits and the extraterritorial jurisdiction (“ETJ”).
(b) 
This article shall only govern applications and permits covered by LGC 245.
(c) 
This article shall not apply to permits or regulations listed as exemptions in LGC 245.004.
(d) 
This article shall only govern situations involving a land use or development project for which the owner or builder requests city approval(s), yet seeks to avoid the application of current municipal regulations by asserting grandfathered development status, as provided by LGC 245.
(e) 
This article shall not create any property rights in any application, project, property, or person. This article shall not enlarge or expand any property right granted by LGC 245.
(Ordinance 162, sec. 1.4, adopted 5/27/09)
There shall be a bias in the city against dormant or new land development projects being constructed pursuant to outdated regulations previously repealed by the city council. It is the preferred policy of the city that all land development projects, for which municipal permits and approvals are needed, be constructed in accordance with current municipal regulations. Limited exceptions to this general rule shall only be allowed when mandated by state law, as procedurally implemented through this article.
(Ordinance 162, sec. 1.5, adopted 5/27/09)
It is the policy of the city that construction/development or land use permit applications filed today are presumed to be governed by today’s regulations.
(Ordinance 162, sec. 1.6, adopted 5/27/09)
(a) 
General.
Words and phrases used in this article shall have the meanings set forth in this section. Terms that are not defined below, but are defined elsewhere in this code, shall be given the meanings set forth in this code. Words and phrases not defined in this code shall be given their common, ordinary meaning unless the context clearly requires otherwise. When not inconsistent with the context, words used in the present tense shall include the future tense; words in the plural number shall include the singular number (and vice versa); and words in the masculine gender shall include the feminine gender (and vice versa). The word “shall” is always mandatory, while the word “may” is merely directory. Headings and captions are for reference purposes only.
(b) 
Specific.
Applicant.
A person or entity who submits an application for an approval required by the city. The term shall be restricted to include only property owner(s), or a duly authorized agent and representative of the property owner, as demonstrated in writing to the city in the form of a notarized agency letter or power of attorney.
Application for a permit.
The term as referenced in Texas Local Government Code chapter 245, as may be amended. The term does not include an application to rezone property.
Board of adjustment (“BOA”).
Six members, who are members of the governing body of the city, form a commission to perform the functions established by Texas Local Government Code chapter 211, and other duties assigned by ordinance. As the governing body of a type A general-law municipality, the city council is statutorily authorized to perform this function and serve in this capacity. Information about the city’s board of adjustment may be found in the city’s zoning ordinance.
City administrator.
The city’s chief administrative officer, as appointed by the city council. The term also includes the city administrator’s designee.
City attorney.
The individual or law firm appointed by the city council to render legal services and advice in relation to the administration, interpretation, and enforcement of this article.
City engineer.
The individual or entity appointed by the city council to render engineering services to the city.
City inspector.
The city official, also referred to as the building inspector, appointed by the city administrator with the duty of processing all building permit applications, including inspections of construction, the duty of sanitary inspections in accordance with article 18.03, division 3, and such other duties as may be assigned.
City limits.
The incorporated municipal boundaries of the city.
City planner.
The individual or entity appointed by the city administrator to administer land development ordinances and advise the city in relation to the administration, interpretation, and enforcement of the city’s development code.
Development review committee.
A group consisting of the city inspector, city planner, city engineer, and city attorney.
ETJ.
The extraterritorial jurisdiction of the city.
Grandfathered development status.
A recognition by the city of an applicant’s ability to process permit applications under pre-existing regulations in accordance with LGC 245.
LGC.
The Texas Local Government Code.
LGC 245.
Texas Local Government Code chapter 245.
New project.
A land development endeavor over which the city’s municipal regulatory jurisdiction exists, that has not previously been formally considered or approved by the city, and for which one or more permits are required to initiate, continue or complete the endeavor. The term can refer to substantial changes made to an otherwise prior project.
Permit.
The term as defined by Texas Local Government Code chapter 245, as may be amended.
Project.
The term as defined by Texas Local Government Code chapter 245, as may be amended. The term refers to a specific property use and/or improvement undertaken on a particular tract of land as documented in a manner that provides the city with fair notice.
ZAPCO.
The zoning and planning commission of the city.
(Ordinance 162, sec. 2, adopted 5/27/09; Ordinance 265 adopted 1/9/13; Ordinance 307 adopted 7/22/15)
(a) 
Submission.
(1) 
An applicant seeking grandfathered development status with the city in accordance with LGC 245 shall submit to the ZAPCO secretary a letter explaining the factual and legal bases upon which the applicant relies.
(2) 
The ZAPCO secretary may prescribe a form application.
(3) 
Applications may be sought prior or concurrent to the permitting process.
(4) 
Such written submission shall include the following:
(A) 
The name, mailing address, phone number and fax number of the applicant.
(B) 
The name, mailing address, phone number and fax number of the property owner, if different than the applicant.
(C) 
Identification of the property for which the applicant claims grandfathered development status, including a clear legal description of the exact boundaries of the property encompassed by the project.
(D) 
Identification of the “project,” as that term is defined in LGC section 245.001(3), as may be amended.
(E) 
Narrative description of the development/construction project or proposed land use for which a permit is being sought.
(F) 
Layout of the site, including locations of buildings, streets, utilities and drainage facilities.
(G) 
Identification of the original application for the first permit in the series of permits required for the project, as described in LGC section 245.001(1) and section 245.002(a) and (b), as may be amended.
(H) 
The date that the first permit in the series of permits required for the project was filed with the city.
(I) 
A chronology of the history of the project, with special emphasis on facts establishing that the project was in progress on or commenced after September 1, 1997, as required by LGC 245 section 245.003, as may be amended.
(J) 
Identification of each city regulation in effect at the time the original application for the permit was filed that applies to the project and:
(i) 
The applicant contends is grandfathered; and
(ii) 
The applicant contends controls the approval, disapproval, or conditional approval of an application for a permit, pursuant to LGC 245.002(a) and (b), as may be amended.
(K) 
Identification of each city regulation for which the applicant seeks an exemption due to the grandfathered development status provided the property owner by LGC 245 or other applicable vesting laws.
(L) 
Explanation of applicability of any approval expirations and related requests for extension of approvals.
(M) 
Photographs, drawings, maps, and previous approvals that would assist the development review committee in making its determination regarding the application.
(N) 
Any other information or supportive materials deemed necessary by the ZAPCO secretary and requested in writing; and
(O) 
Notwithstanding the above, an applicant may subsequently seek grandfathered development status for other regulations once an initial determination has been made by the city.
(5) 
If an applicant contends that certain city regulations do not apply to the project, the applicant is expected to identify, with particularity, all requirements that the applicant contends do not apply to the current application. Global references to a particular ordinance, or set of criteria, may be deemed insufficient and the city may consider the request for grandfathered development status determination to be incomplete and, hence, not subject to a staff determination at that time.
(6) 
The applicant is responsible for demonstrating to the city that the project for which approval is sought is the same project for which grandfathered development status attached.
(7) 
An application for recognition of grandfathered development status shall not be considered to have been filed with the city, for purposes of this article or LGC 245, until such time as the application is administratively complete. In order to be administratively complete, the application must:
(A) 
Contain all materials required by this article;
(B) 
Be presented within the time specified by this article; and
(C) 
Be accompanied by a check payable to the city for the full amount of the application review fee established by the city council, as codified in the city’s fee schedule.
(b) 
Determination.
(1) 
The ZAPCO secretary shall promptly forward the application for grandfathered development status, along with any supporting information or documentation provided, to the development review committee for review.
(2) 
The development review committee shall make a written response within fourteen (14) [days] after an application for determination of grandfathered development status has been filed. If the committee does not provide a written response to the applicant within fourteen (14) days after the application was filed, the application is automatically deemed to have been denied. The ZAPCO secretary may extend the time period established by this article upon receipt of a written request from the applicant.
(3) 
If the development review committee requests for more information from the applicant, the fourteen-day time period will be tolled.
(4) 
The committee shall issue a written administrative determination approving the application, disapproving the application, or requesting additional information from the applicant. If the application is approved, the determination shall identify, with particularity, which claims for grandfathered development status have been recognized and which claims have been rejected.
(5) 
Prior to rendering a determination, the city or the applicant may request a pre-determination conference to discuss the applicant’s claim and to ensure that the nature of the claim is fully and completely understood prior to a determination being rendered. The ZAPCO secretary and/or the development review committee may participate.
(6) 
A determination recognizing grandfathered development status shall state the date the application for the original permit was filed, if the date can be determined with reasonable accuracy.
(7) 
The ZAPCO secretary is signatory and spokesperson for the development review committee.
(Ordinance 162, secs. 3.1, 3.2, adopted 5/27/09)
In determining whether a project is grandfathered, the city shall consider the following:
(1) 
Pre-existing: Did the improvements/use pre-date the city regulations in question?
(2) 
Progress: Did construction of the improvements/use commence prior to enactment of the city regulations in question?
(3) 
Fair notice: Did the applicant give the city fair notice of what the applicant proposed to do prior to the enactment of the city regulations in question?
(4) 
Health and safety: Do the rules in question protect the public’s health and safety?
(5) 
City code: Any other factors established by this code?
(6) 
State law: Any other factors established by LGC 245?
(Ordinance 162, sec. 3.3, adopted 5/27/09)
The city shall consider the approval, disapproval, or conditional approval of an application for a permit covered by LGC 245 solely on the basis of any municipal regulations in effect at the time the original application for the permit is filed, with the exception of those exemptions listed in LGC 245, as may be amended.
(1) 
The extent and scope of what constitutes a project for purposes of this article and LGC 245 shall be determined by the city based upon the information provided by the applicant and those documents filed among the city’s records.
(2) 
The city shall not bestow any form of grandfathered development status on a hypothetical undertaking that is not expressly illustrated or demonstrated to the city at the time of submission of a completed application for a permit.
(3) 
Endeavors not submitted for consideration by the applicant to the city when a prior permit application for a project was filed with the city shall be considered new projects subject to the current regulations. The burden rests on the applicant to establish that the project for which approval is sought is the same project to which grandfathered development status allegedly attached.
(Ordinance 162, sec. 3.4, adopted 5/27/09)
To grandfather a project for which a substantial change is proposed would deny the city, and the public, of fair notice. Consequently, a substantial change results in a new project for which grandfathered development status shall be denied. Factors that can result in a new project determination include, but are not limited to, the following modifications:
(1) 
Gross surface area or acreage;
(2) 
Gross floor area;
(3) 
Gross number of buildings;
(4) 
Density;
(5) 
Living unit equivalents;
(6) 
Land use classification (rezoning or special use permit);
(7) 
Impervious cover;
(8) 
Drainage pattern or volumes; or
(9) 
Street layouts.
(Ordinance 162, sec. 3.5, adopted 5/27/09)
(a) 
If any person believes that the development review committee’s determination under this article is in error, the person shall have the right to request reconsideration.
(b) 
To be actionable, a request for reconsideration by the development review committee must:
(1) 
Be filed with the ZAPCO secretary in writing within fourteen (14) days of the date of the development review committee’s previous determination or the date of automatic denial.
(2) 
State the reasons why the previous determination should be reversed or modified.
(3) 
Present information that has not previously been presented for consideration by the development review committee.
(4) 
Provide an explanation of the legal and factual grounds of the request; and
(5) 
Be accompanied by payment of the reconsideration fee established by the city council, as codified in the city’s fee schedule.
(c) 
The development review committee shall, within fourteen (14) days of receipt of a request for reconsideration that conforms to this article, issue an administrative determination, or a statement declining reconsideration. If the development review committee fails to make a written determination within fourteen (14) days after an application has been received at city hall, the application is deemed to have automatically been denied.
(d) 
No person may appeal the development review committee’s determination under this article without first seeking reconsideration.
(Ordinance 162, sec. 3.6, adopted 5/27/09)
(a) 
If any person believes that the development review committee’s determination under this article is in error, the person shall have the right to appeal such determination to the city administrator.
(b) 
To be actionable, an appeal must be filed with the city administrator in writing within fourteen (14) days of the date of the development review committee’s determination or the date of automatic denial. The written request for an appeal must include:
(1) 
A statement that the appellant has requested reconsideration by the development review committee, and that the request for reconsideration:
(A) 
Was denied; or
(B) 
Yielded an erroneous determination regarding the project’s eligibility for grandfathered development status.
(2) 
A statement of the reasons why the determination should be reversed or modified;
(3) 
An explanation of the legal and factual grounds of the appeal; and
(4) 
Be accompanied by payment of the appeal fee established by the city council, as codified in the city’s fee schedule.
(c) 
The city administrator shall act upon an appeal within fourteen (14) days of receipt of a written request for appeal that conforms to this section. If the city administrator fails to make a written determination within fourteen (14) days after an appeal has been received, then the appeal is deemed to have automatically been denied.
(Ordinance 162, sec. 4, adopted 5/27/09)
(a) 
If any person believes that the city administrator’s determination under this article is in error, the person shall have the right to appeal such determination to the city’s board of adjustment (“BOA”).
(b) 
To be actionable, an appeal must be filed with the BOA in writing within fourteen (14) days of the date of the city administrator’s determination or the date of the city administrator’s automatic denial. The written request for an appeal must include:
(1) 
A statement that the appellant sought an appeal from the city administrator, and that the appeal:
(A) 
Was denied; or
(B) 
Yielded an erroneous determination regarding the project’s eligibility for grandfathered development status.
(2) 
A statement of the reasons why the determination should be reversed or modified;
(3) 
An explanation of the legal and factual grounds of the appeal; and
(4) 
Be accompanied by payment of the appeal fee established by the city council, as codified in the city’s fee schedule.
(c) 
The applicant may also request the BOA to grant a variance from the regulations at issue under the same standards governing variances for other matters, as set forth in the city’s development code, as amended.
(d) 
The BOA shall convene a meeting and act upon an appeal within thirty (30) days of receipt of a written appeal that conforms to this article. If the board of adjustment fails to make a written determination within thirty (30) days after an appeal has been received, then the appeal is deemed to have automatically been denied.
(e) 
Notice and a public hearing shall be provided for as established in the code for variance requests.
(Ordinance 162, sec. 5, adopted 5/27/09)
Any time period established under this article may be extended to a date certain, upon receipt of a written request from the applicant.
(Ordinance 162, sec. 6, adopted 5/27/09)
Should the applicant be dissatisfied with the actions of the BOA, the applicant may pursue all legal remedies to review the BOA’s decision as set forth in LGC section 211.011.
(Ordinance 162, sec. 7, adopted 5/27/09)
(a) 
The city’s determinations under this article, if not timely appealed, shall be immediately filed in the city’s files related to the project and the determination shall be considered binding upon the city, the applicant, and the property owner (if different from the applicant) for the duration of the project.
(b) 
Notwithstanding the binding nature of a determination issued by the development review committee or city administrator, and any ruling by the BOA, the city and the property owner may, at any time, enter into a development agreement or negotiate the enactment of a planned development district that, to the extent authorized by law, modifies the determination and the applicable development regulations to be applied to the project. The issue of which rules apply to a permit application may be resolved by mutual agreement. The agreement may contain special terms and conditions, as deemed necessary to protect the public interest.
(c) 
The city’s recognition of grandfathered development status does not prevent the city from requiring the submission of updated engineering reports, site plans, or landscape plans, as may be applicable under current regulations.
(Ordinance 162, sec. 8, adopted 5/27/09)
(a) 
Permits issued by the city that are subject to LGC 245, but do not expressly contain an expiration date, shall expire by operation of law two (2) years after issuance. This section shall not apply to permits pursuant to which progress has been made toward the completion of the project, as determined by LGC 245.005(c), as may be amended.
(b) 
Projects subject to LGC 245 shall expire by operation of law five (5) years after an application was filed for the first permit necessary for the project. This section shall not apply to permits for which progress has been made toward the completion of the project, as determined by LGC 245.005(c), as may be amended.
(Ordinance 162, sec. 9, adopted 5/27/09)
Grandfathered development status, as recognized by the city pursuant to this article, runs with the land. Thus, grandfathered development status is transferable to subsequent owners/occupants.
(Ordinance 162, sec. 10, adopted 5/27/09)