1-1     By:  Brimer (Senate Sponsor - Harris)                 H.B. No. 2045
 1-2           (In the Senate - Received from the House May 13, 1999;
 1-3     May 14, 1999, read first time and referred to Committee on
 1-4     Administration; May 14, 1999, reported favorably by the following
 1-5     vote:  Yeas 3, Nays 0; May 14, 1999, sent to printer.)
 1-6                            A BILL TO BE ENTITLED
 1-7                                   AN ACT
 1-8     relating to financing capital improvements and facility expansions
 1-9     through the assessment of impact fees.
1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11           SECTION 1.  Sections 395.001(4), (8), (9), and (10), Local
1-12     Government Code, are amended to read as follows:
1-13                 (4)  "Impact fee" means a charge or assessment imposed
1-14     by a political subdivision against new development in order to
1-15     generate revenue for funding or recouping the costs of capital
1-16     improvements or facility expansions necessitated by and
1-17     attributable to the new development.  The term includes amortized
1-18     charges, lump-sum charges, capital recovery fees, contributions in
1-19     aid of construction, and any other fee that functions as described
1-20     by this definition.  The term does not include:
1-21                       (A)  dedication of land for public parks or
1-22     payment in lieu of the dedication to serve park needs;
1-23                       (B)  dedication of rights-of-way or easements or
1-24     construction or dedication of on-site or off-site water
1-25     distribution, wastewater collection or drainage facilities, or
1-26     streets, sidewalks, or curbs if the dedication or construction is
1-27     required by a valid ordinance and is necessitated by and
1-28     attributable to the new development; [or]
1-29                       (C)  lot or acreage fees to be placed in trust
1-30     funds for the purpose of reimbursing developers for oversizing or
1-31     constructing water or sewer mains or lines; or
1-32                       (D)  other pro rata fees for reimbursement of
1-33     water or sewer mains or lines extended by the political
1-34     subdivision.
1-35           However, an item included in the capital improvements plan
1-36     may not be required to be constructed except in accordance with
1-37     Section 395.019(2), and an owner may not be required to construct
1-38     or dedicate facilities and to pay impact fees for those facilities.
1-39                 (8)  "Roadway facilities" means arterial or collector
1-40     streets or roads that have been designated on an officially adopted
1-41     roadway plan of the political subdivision, together with all
1-42     necessary appurtenances.  The term includes the political
1-43     subdivision's share of costs for [does not include any] roadways
1-44     and [or] associated improvements designated on the federal or Texas
1-45     highway system, including local matching funds and costs related to
1-46     utility line relocation and the establishment of curbs, gutters,
1-47     sidewalks, drainage appurtenances, and rights-of-way.
1-48                 (9)  "Service area" means the area within the corporate
1-49     boundaries or extraterritorial jurisdiction, as determined under
1-50     Chapter 42, of the political subdivision to be served by the
1-51     capital improvements or facilities expansions specified in the
1-52     capital improvements plan, except roadway facilities and storm
1-53     water, drainage, and flood control facilities.  The service area,
1-54     for the purposes of this chapter, may include all or part of the
1-55     land within the political subdivision or its extraterritorial
1-56     jurisdiction, except for roadway facilities and storm water,
1-57     drainage, and flood control facilities.  For roadway facilities,
1-58     the service area is limited to an area within the corporate
1-59     boundaries of the political subdivision and shall not exceed six [a
1-60     distance equal to the average trip length from the new development,
1-61     but in no event more than three] miles[, which service area shall
1-62     be served by the roadway facilities designated in the capital
1-63     improvements plan].  For storm water, drainage, and flood control
1-64     facilities, the service area may include all or part of the land
 2-1     within the political subdivision or its extraterritorial
 2-2     jurisdiction, but shall not exceed the area actually served by the
 2-3     storm water, drainage, and flood control facilities designated in
 2-4     the capital improvements plan and shall not extend across watershed
 2-5     boundaries.
 2-6                 (10)  "Service unit" means a standardized measure of
 2-7     consumption, use, generation, or discharge attributable to an
 2-8     individual unit of development calculated in accordance with
 2-9     generally accepted engineering or planning standards and based on
2-10     historical data and trends applicable to the political subdivision
2-11     in which the individual unit of development is located during the
2-12     previous 10 years [for a particular category of capital
2-13     improvements or facility expansions].
2-14           SECTION 2.  Section 395.014(a), Local Government Code, is
2-15     amended to read as follows:
2-16           (a)  The political subdivision shall use qualified
2-17     professionals to prepare the capital improvements plan and to
2-18     calculate the impact fee.  The capital improvements plan must
2-19     contain specific enumeration of the following items:
2-20                 (1)  a description of the existing capital improvements
2-21     within the service area and the costs to upgrade, update, improve,
2-22     expand, or replace the improvements to meet existing needs and
2-23     usage and stricter safety, efficiency, environmental, or regulatory
2-24     standards, which shall be prepared by a qualified professional
2-25     engineer licensed to perform the professional engineering services
2-26     in this state;
2-27                 (2)  an analysis of the total capacity, the level of
2-28     current usage, and commitments for usage of capacity of the
2-29     existing capital improvements, which shall be prepared by a
2-30     qualified professional engineer licensed to perform the
2-31     professional engineering services in this state;
2-32                 (3)  a description of all or the parts of the capital
2-33     improvements or facility expansions and their costs necessitated by
2-34     and attributable to new development in the service area based on
2-35     the approved land use assumptions, which shall be prepared by a
2-36     qualified professional engineer licensed to perform the
2-37     professional engineering services in this state;
2-38                 (4)  a definitive table establishing the specific level
2-39     or quantity of use, consumption, generation, or discharge of a
2-40     service unit for each category of capital improvements or facility
2-41     expansions and an equivalency or conversion table establishing the
2-42     ratio of a service unit to various types of land uses, including
2-43     residential, commercial, and industrial;
2-44                 (5)  the total number of projected service units
2-45     necessitated by and attributable to new development within the
2-46     service area based on the approved land use assumptions and
2-47     calculated in accordance with generally accepted engineering or
2-48     planning criteria; [and]
2-49                 (6)  the projected demand for capital improvements or
2-50     facility expansions required by new service units projected over a
2-51     reasonable period of time, not to exceed 10 years;
2-52                 (7)  a credit for the portion of ad valorem tax revenue
2-53     generated by new service units identified in the land use
2-54     assumptions that is used for the payment of construction costs,
2-55     including the debt service on bonds to pay for the construction
2-56     costs, for the political subdivision's construction projects; and
2-57                 (8)  a credit for the portion of the monthly water and
2-58     wastewater service charges received from new service units
2-59     identified in the land use assumptions that is used for the payment
2-60     of construction costs for water and wastewater infrastructure to
2-61     serve new development, including the debt service on bonds to pay
2-62     for the water and wastewater infrastructure.
2-63           SECTION 3.  Section 395.015(a), Local Government Code, is
2-64     amended to read as follows:
2-65           (a)  The impact fee per service unit may not exceed the
2-66     amount determined by subtracting the amounts described by Sections
2-67     395.014(a)(7) and (8) from  [dividing] the costs of the capital
2-68     improvements described by Section 395.014(a)(3) and dividing that
2-69     amount by the total number of projected service units described by
 3-1     Section 395.014(a)(5).
 3-2           SECTION 4.  Section 395.016(d), Local Government Code, is
 3-3     amended to read as follows:
 3-4           (d)  This subsection applies only to land platted in
 3-5     accordance with Subchapter A, Chapter 212, or the subdivision or
 3-6     platting procedures of a political subdivision after adoption of an
 3-7     impact fee adopted after June 20, 1987.  The political subdivision
 3-8     shall assess the impact fees before or at the time of recordation
 3-9     of a subdivision plat or other plat under Subchapter A, Chapter
3-10     212, or the subdivision or platting ordinance or procedures of any
3-11     political subdivision in the official records of the county clerk
3-12     of the county in which the tract is located.  Except as provided by
3-13     Section 395.019, if water and wastewater capacity is available, the
3-14     political subdivision may collect the fees [at either the time of
3-15     recordation of the subdivision plat or connection to the political
3-16     subdivision's water or sewer system or] at the time the political
3-17     subdivision issues a [either the] building permit [or the
3-18     certificate of occupancy].
3-19           SECTION 5.  Subchapter C, Chapter 395, Local Government Code,
3-20     is amended by adding Section 395.0411 and amending Sections
3-21     395.042-395.045, 395.047, and 395.049-395.051 to read as follows:
3-22           Sec. 395.0411.  CAPITAL IMPROVEMENTS PLAN.  The political
3-23     subdivision shall provide for a capital improvements plan to be
3-24     developed by qualified professionals using generally accepted
3-25     engineering and planning practices in accordance with Section
3-26     395.014.
3-27           Sec. 395.042.  Hearing on Land Use Assumptions AND CAPITAL
3-28     IMPROVEMENTS PLAN.  To impose an impact fee, a political
3-29     subdivision must adopt an order, ordinance, or resolution
3-30     establishing a public hearing date to consider the land use
3-31     assumptions and capital improvements plan for [within] the
3-32     designated service area [that will be used to develop the capital
3-33     improvements plan].
3-34           Sec. 395.043.  INFORMATION ABOUT LAND USE ASSUMPTIONS AND
3-35     CAPITAL IMPROVEMENTS PLAN AVAILABLE TO PUBLIC.  On or before the
3-36     date of the first publication of the notice of the hearing on the
3-37     land use assumptions and capital improvements plan, the political
3-38     subdivision shall make available to the public its land use
3-39     assumptions, the time period of the projections, and a description
3-40     of [the general nature of] the capital improvement facilities that
3-41     may be proposed.
3-42           Sec. 395.044.  Notice of Hearing on Land Use Assumptions AND
3-43     CAPITAL IMPROVEMENTS PLAN.  (a)  Before the 30th day before the
3-44     date of the hearing on the land use assumptions and capital
3-45     improvements plan, the political subdivision shall send a notice of
3-46     the hearing by certified mail to any person who has given written
3-47     notice by certified or registered mail to the municipal secretary
3-48     or other designated official of the political subdivision
3-49     requesting notice of the hearing within two years preceding the
3-50     date of adoption of the order, ordinance, or resolution setting the
3-51     public hearing.
3-52           (b)  The political subdivision shall publish notice of the
3-53     hearing [once a week for three consecutive weeks, the first notice
3-54     to appear] before the 30th day [but on or after the 60th day]
3-55     before the date set for the hearing, in one or more newspapers of
3-56     general circulation in each county in which the political
3-57     subdivision lies.  However, a river authority that is authorized
3-58     elsewhere by state law to charge fees that function as impact fees
3-59     may publish the required newspaper notice only in each county in
3-60     which the service area lies.  [The notice of public hearing may not
3-61     be in the part of the paper in which legal notices and classified
3-62     ads appear and may not be smaller than one-quarter page of a
3-63     standard-size or tabloid-size newspaper, and the headline on the
3-64     notice must be in 18-point or larger type.]
3-65           (c)  The notice must contain:
3-66                 (1)  a headline to read as follows:
3-67                    "NOTICE OF PUBLIC HEARING ON LAND USE
3-68             ASSUMPTIONS AND CAPITAL IMPROVEMENTS PLAN RELATING
3-69                    TO POSSIBLE ADOPTION OF IMPACT FEES"
 4-1                 (2)  the time, date, and location of the hearing;
 4-2                 (3)  a statement that the purpose of the hearing is to
 4-3     consider the land use assumptions and [that will be used to develop
 4-4     a] capital improvements plan under which an impact fee may be
 4-5     imposed; and
 4-6                 (4)  [an easily understandable map of the service area
 4-7     to which the land use assumptions apply; and]
 4-8                 [(5)]  a statement that any member of the public has
 4-9     the right to appear at the hearing and present evidence for or
4-10     against the land use assumptions and capital improvements plan.
4-11           Sec. 395.045.  Approval of Land Use Assumptions AND CAPITAL
4-12     IMPROVEMENTS PLAN REQUIRED.  (a)  After the public hearing on the
4-13     land use assumptions and capital improvements plan, the political
4-14     subdivision shall determine whether to adopt or reject an
4-15     ordinance, order, or resolution approving the land use assumptions
4-16     and capital improvements plan.
4-17           (b)  The political subdivision, within 30 days after the date
4-18     of the public hearing, shall approve or disapprove the land use
4-19     assumptions and capital improvements plan.
4-20           (c)  An ordinance, order, or resolution approving the land
4-21     use assumptions and capital improvements plan may not be adopted as
4-22     an emergency measure.
4-23           Sec. 395.047.  HEARING ON [CAPITAL IMPROVEMENTS PLAN AND]
4-24     IMPACT FEE.  On adoption of the land use assumptions and
4-25     [completion of the] capital improvements plan, the governing body
4-26     shall adopt an order or resolution setting a public hearing to
4-27     discuss the [adoption of the plan and] imposition of the impact
4-28     fee.  The public hearing must be held by the governing body of the
4-29     political subdivision to discuss the proposed ordinance, order, or
4-30     resolution [adopting a capital improvements plan and] imposing an
4-31     impact fee.
4-32           Sec. 395.049.  NOTICE OF HEARING ON [CAPITAL IMPROVEMENTS
4-33     PLAN AND] IMPACT FEE.  (a)  Before the 30th day before the date of
4-34     the hearing on the imposition of an [capital improvements plan and]
4-35     impact fee, the political subdivision shall send a notice of the
4-36     hearing by certified mail to any person who has given written
4-37     notice by certified or registered mail to the municipal secretary
4-38     or other designated official of the political subdivision
4-39     requesting notice of the hearing within two years preceding the
4-40     date of adoption of the order or resolution setting the public
4-41     hearing.
4-42           (b)  The political subdivision shall publish notice of the
4-43     hearing [once a week for three consecutive weeks, the first notice
4-44     to appear] before the 30th day [but on or after the 60th day]
4-45     before the date set for the hearing, in one or more newspapers of
4-46     general circulation in each county in which the political
4-47     subdivision lies.  However, a river authority that is authorized
4-48     elsewhere by state law to charge fees that function as impact fees
4-49     may publish the required newspaper notice only in each county in
4-50     which the service area lies.  [The notice of public hearing may not
4-51     be in the part of the paper in which legal notices and classified
4-52     ads appear and may not be smaller than one-quarter page of a
4-53     standard-size or tabloid-size newspaper, and the headline on the
4-54     notice must be in 18-point or larger type.]
4-55           (c)  The notice must contain the following:
4-56                 (1)  a headline to read as follows:
4-57            "NOTICE OF PUBLIC HEARING ON ADOPTION OF IMPACT FEES"
4-58                 (2)  the time, date, and location of the hearing;
4-59                 (3)  a statement that the purpose of the hearing is to
4-60     consider the adoption of an impact fee;
4-61                 (4)  [an easily understandable map of the service area
4-62     on which the proposed fee will be levied;]
4-63                 [(5)]  the amount of the proposed impact fee per
4-64     service unit; and
4-65                 (5) [(6)]  a statement that any member of the public
4-66     has the right to appear at the hearing and present evidence for or
4-67     against the plan and proposed fee.
4-68           Sec. 395.050.  ADVISORY COMMITTEE COMMENTS ON [CAPITAL
4-69     IMPROVEMENTS PLAN AND] IMPACT FEES.  The advisory committee created
 5-1     under Section 395.058 shall file its written comments on the
 5-2     proposed [capital improvements plan and] impact fees before the
 5-3     fifth business day before the date of the public hearing on the
 5-4     imposition of the [plan and] fees.
 5-5           Sec. 395.051.  APPROVAL OF [CAPITAL IMPROVEMENTS PLAN AND]
 5-6     IMPACT FEE REQUIRED.  (a)  The political subdivision, within 30
 5-7     days after the date of the public hearing on the imposition of an
 5-8     [capital improvements plan and] impact fee, shall approve or
 5-9     disapprove the [adoption of the capital improvements plan and]
5-10     imposition of an impact fee.
5-11           (b)  An ordinance, order, or resolution approving the
5-12     [capital improvements plan and] imposition of an impact fee may not
5-13     be adopted as an emergency measure.
5-14           SECTION 6.  Section 395.052(a), Local Government Code, is
5-15     amended to read as follows:
5-16           (a)  A political subdivision imposing an impact fee shall
5-17     update the land use assumptions and capital improvements plan at
5-18     least every five [three] years.  The initial five-year [three-year]
5-19     period begins on the day the capital improvements plan is adopted.
5-20           SECTION 7.  Subchapter D, Chapter 395, Local Government Code,
5-21     is amended by adding Section 395.082 to read as follows:
5-22           Sec. 395.082.  CERTIFICATION OF COMPLIANCE REQUIRED.  (a)  A
5-23     political subdivision that imposes an impact fee shall submit a
5-24     written certification verifying compliance with this chapter to the
5-25     attorney general each year not later than the last day of the
5-26     political subdivision's fiscal year.
5-27           (b)  The certification must be signed by the presiding
5-28     officer of the governing body of a political subdivision and
5-29     include a statement that reads substantially similar to the
5-30     following:  "This statement certifies compliance with Chapter 395,
5-31     Local Government Code."
5-32           (c)  A political subdivision that fails to submit a
5-33     certification as required by this section is liable to the state
5-34     for a civil penalty in an amount equal to 10 percent of the amount
5-35     of the impact fees erroneously charged.  The attorney general shall
5-36     collect the civil penalty and deposit the amount collected to the
5-37     credit of the housing trust fund.
5-38           SECTION 8.  Sections 395.025(b), 395.046, 395.048, and
5-39     395.0515, Local Government Code, are repealed.
5-40           SECTION 9.  This Act takes effect September 1, 1999.
5-41           SECTION 10.  The importance of this legislation and the
5-42     crowded condition of the calendars in both houses create an
5-43     emergency and an imperative public necessity that the
5-44     constitutional rule requiring bills to be read on three several
5-45     days in each house be suspended, and this rule is hereby suspended.
5-46                                  * * * * *