By Nelson S.B. No. 1634
76R6032 KKA-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to school development impact fees.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subtitle I, Title 2, Education Code, is amended
1-5 by adding Chapter 47 to read as follows:
1-6 CHAPTER 47. DEVELOPMENT FEE FOR PUBLIC SCHOOL FACILITIES
1-7 Sec. 47.001. DEFINITIONS. In this chapter:
1-8 (1) "Developer" means a person undertaking
1-9 development.
1-10 (2) "Development" means the construction or expansion
1-11 of a building or structure, or a change in the use of a building or
1-12 structure, or a change in the use of land, that creates additional
1-13 demand and need for public education facilities.
1-14 (3) "Development approval" means a written
1-15 authorization from a municipality or county that authorizes the
1-16 development to begin.
1-17 (4) "Development fee" means a payment of money imposed
1-18 on a project as a condition of development to pay for a
1-19 proportionate share of the cost of system improvements needed to
1-20 serve new growth or development.
1-21 (5) "Encumber" means to legally obligate by contract,
1-22 or to otherwise commit to use, by appropriation or other official
1-23 act.
1-24 (6) "Level of service" means a measure of the
2-1 relationship between service capacity and service demand for public
2-2 educational facilities in terms of demand-to-capacity ratios, the
2-3 comfort and convenience of use or service of the facilities, or
2-4 both.
2-5 (7) "Public educational facility" means land,
2-6 buildings, furnishings, fixtures, and equipment having a useful
2-7 life of at least 10 years and owned and operated by a school
2-8 district.
2-9 (8) "Present value" means the current value of past,
2-10 present, or future payments, of contributions or dedications of
2-11 goods, services, materials, or construction, or of money.
2-12 (9) "Project" means a particular development of an
2-13 identified parcel of land.
2-14 (10) "Proportionate share" means that portion of the
2-15 cost of system improvements that is reasonably related to the
2-16 service demands and needs of the project.
2-17 (11) "Service area" means a geographic area defined by
2-18 a school district in which a defined set of public facilities
2-19 provide service to development in the area. A service area may
2-20 include all or part of the land within a school district.
2-21 (12) "System improvement costs" means the costs
2-22 incurred to provide additional capacity of facilities needed to
2-23 serve new growth and development, including planning, design and
2-24 construction, land acquisition, land improvement, and related
2-25 engineering.
2-26 (13) "System improvement" means an improvement by new
2-27 construction or other action that increases the service capacity of
3-1 a public educational facility.
3-2 Sec. 47.002. DEVELOPMENT FEES AUTHORIZED. (a) The board of
3-3 trustees of a school district that has adopted a facilities master
3-4 plan as provided by Section 47.012 may by resolution impose a
3-5 development fee.
3-6 (b) A school district may impose a development fee for
3-7 previously incurred system improvement costs to the extent that new
3-8 growth and development will be served by previously constructed
3-9 system improvements.
3-10 Sec. 47.003. PUBLIC HEARING REQUIRED. Before finally
3-11 adopting a resolution imposing a development fee, a board of
3-12 trustees must hold two public hearings in regard to the resolution.
3-13 The second hearing must be held at least two weeks after the first
3-14 hearing.
3-15 Sec. 47.004. DETERMINATION OF AMOUNT OF FEE. (a) A
3-16 development fee must be:
3-17 (1) based on actual system improvement costs or
3-18 reasonable estimates of those costs;
3-19 (2) calculated and imposed on the basis of service
3-20 areas determined by the school district; and
3-21 (3) calculated to impose a proportionate share of the
3-22 costs of system improvements needed to serve new growth and
3-23 development.
3-24 (b) Before imposing a development fee, the school district
3-25 shall contract with qualified professionals to assist the district
3-26 in the preparation of a written study that recommends the amount of
3-27 the fee. The fee adopted by the district may not exceed the
4-1 amount recommended in that study.
4-2 (c) The development fee must be calculated on a basis that
4-3 is net of any credits for the present value of revenues, including
4-4 taxes, assessments, user fees, and intergovernmental transfers,
4-5 that:
4-6 (1) will be generated by new growth and development
4-7 based on historical funding patterns; and
4-8 (2) are anticipated to be available to pay for system
4-9 improvements.
4-10 (d) The resolution imposing a development fee must include a
4-11 schedule specifying the fee by various land uses per unit of
4-12 development and by service area.
4-13 (e) The school district shall certify the amount of a fee to
4-14 the developer of a project. The certification must be effective
4-15 for not less than 180 days, during which period the district may
4-16 not change the amount of the fee.
4-17 (f) The school district shall permit the individual
4-18 assessment and payment of development fees at the option of an
4-19 applicant for development approval.
4-20 Sec. 47.005. CONDITION OF PLAT APPROVAL OR PERMIT ISSUANCE.
4-21 A county or municipality may not grant final approval under Chapter
4-22 212 or 232, Local Government Code, as applicable, to a plat or
4-23 replat of a development or issue permits required for development
4-24 unless the developer presents evidence of having:
4-25 (1) paid or otherwise satisfied the obligation of any
4-26 applicable development fee imposed under this chapter; or
4-27 (2) been determined by the school district imposing
5-1 the development fee to be exempt from that fee.
5-2 Sec. 47.006. CREDITS. (a) If a development is abandoned,
5-3 the school district shall credit the present value of a development
5-4 fee paid against future development fees on the same land.
5-5 (b) A developer may agree with the school district to
5-6 construct, fund, or contribute system improvements as a credit
5-7 against a development fee. If the amount of the credit exceeds the
5-8 development fee, the school district shall reimburse the developer
5-9 for the excess. The reimbursement shall be paid from other
5-10 development fees paid by developments located in the service area
5-11 benefitted by the improvement.
5-12 Sec. 47.007. REFUNDS FOR FAILURE TO CONSTRUCT. (a) The
5-13 owner of property on which a development fee has been paid is
5-14 entitled to a refund of the fee if the school district has failed
5-15 to encumber the fee for construction or begin construction before
5-16 the sixth anniversary of the date the fee was paid. In determining
5-17 whether the fee has been encumbered, fees are considered encumbered
5-18 on a first-in, first-out basis.
5-19 (b) If a right to a refund exists, the school district shall
5-20 give written notice of that right to the person who paid the
5-21 development fee, at the address shown on the records of the school
5-22 district relating to the fee, unless a successor in interest has
5-23 given notice to the school district of a transfer or assignment of
5-24 the right and has provided a mailing address, in which case the
5-25 notice shall be sent to the successor in interest. In addition to
5-26 the mailed notice, if a right to a refund exists the school
5-27 district shall publish notice in a newspaper of general circulation
6-1 in the school district. The notice must be published before the
6-2 31st day after the date the right comes into existence and must be
6-3 published under the heading: "Notice of Entitlement to Public
6-4 Educational Facilities Development Fee Refund."
6-5 (c) If no express transfer or assignment of a right to a
6-6 refund under this section exists, the right to the refund does not
6-7 run with the land.
6-8 (d) An application for a refund under this section must be
6-9 filed with the school district before the first anniversary of the
6-10 date on which newspaper notice of the right was published.
6-11 (e) The amount of a refund includes the pro rata share of
6-12 interest actually earned on the fee.
6-13 Sec. 47.008. EXEMPTIONS. (a) A school district may exempt
6-14 from the development fee:
6-15 (1) a project that will create extraordinary economic
6-16 development and employment growth; or
6-17 (2) a project for affordable housing.
6-18 (b) The revenue lost by a school district from the exemption
6-19 of a project may not be recovered through an increase in the amount
6-20 of development fees.
6-21 (c) The portion of a project for which a valid building
6-22 permit has been issued before the effective date of a resolution
6-23 imposing a development fee is exempt from the development fee if
6-24 the building permit remains valid and construction is begun and
6-25 pursued according to the terms of the permit.
6-26 Sec. 47.009. APPEALS AND PROTESTS. (a) A school district
6-27 that imposes a development fee shall provide for an administrative
7-1 appeal of the determination of the development fee for a particular
7-2 project.
7-3 (b) A developer may pay a development fee under protest in
7-4 order to obtain approval of a plat or building permit, as
7-5 applicable. A developer paying under protest may not be estopped
7-6 from exercising any right of appeal or from receiving a refund of
7-7 amounts ultimately determined to have been improperly imposed.
7-8 Sec. 47.010. ACCOUNTING; INTEREST-BEARING ACCOUNTS. (a) A
7-9 school district shall deposit and maintain development fees in an
7-10 interest-bearing account. Interest earned on development fees may
7-11 be spent only for the purposes for which development fees may be
7-12 spent.
7-13 (b) The annual financial report of the school district shall
7-14 account for, by service area, development fees collected,
7-15 encumbered, and spent during the preceding year.
7-16 Sec. 47.011. PERMITTED USES OF DEVELOPMENT FEES. (a)
7-17 Development fees may be spent only on public educational system
7-18 improvement costs benefitting the service area within which the
7-19 fees were collected.
7-20 (b) System improvement costs include the costs of:
7-21 (1) construction;
7-22 (2) surveying and engineering;
7-23 (3) land acquisition, including purchase costs, court
7-24 awards and costs, attorney's fees, and expert witness fees;
7-25 (4) staff, including engineers, planners, architects,
7-26 landscape architects, and financial consultants; and
7-27 (5) administration of the imposition and collection of
8-1 development fees, not to exceed three percent of total development
8-2 fee revenue.
8-3 (c) In addition to the costs listed in Subsection (b),
8-4 system improvement costs include projected interest and other costs
8-5 of financing if the development fees are to be used for the payment
8-6 of the principal of and interest on bonds, notes, or other evidence
8-7 of indebtedness used to finance public educational facilities.
8-8 (d) System improvement costs do not include the cost of
8-9 routine and periodic maintenance, personnel training, or other
8-10 operating expenses.
8-11 Sec. 47.012. FACILITIES MASTER PLAN. (a) Before imposing a
8-12 development fee, a school district must adopt a facilities master
8-13 plan.
8-14 (b) The plan must be prepared in consultation with qualified
8-15 professionals and must include:
8-16 (1) the projected student enrollment over a 10-year
8-17 period;
8-18 (2) an inventory of existing public educational
8-19 facilities, including land, classroom space, portable classroom
8-20 space, and administration facilities;
8-21 (3) level of service measures, such as maximum
8-22 classroom size, to be used in projecting future facility needs; and
8-23 (4) a list of identified needed improvements,
8-24 including the relative priority, estimated cost, and anticipated
8-25 source of funding for each needed improvement.
8-26 Sec. 47.013. ADVISORY COMMITTEE. (a) A school district
8-27 planning to impose a development fee shall appoint an advisory
9-1 committee to advise the district in the preparation of the
9-2 development fee study under Section 47.004(b) and in the
9-3 development of the terms of the resolution imposing the fee.
9-4 (b) The advisory committee must include at least five but
9-5 not more than 10 members, and at least 40 percent of the membership
9-6 must represent the development, building, or real estate industry.
9-7 Sec. 47.014. INTERGOVERNMENTAL AGREEMENTS. In accordance
9-8 with Chapter 791, Government Code, a school district and a
9-9 municipality or county may enter into an interlocal contract for
9-10 the performance of any functions and services related to the
9-11 imposition, collection, enforcement, and expenditure of development
9-12 fees imposed by the school district or the applicable municipality
9-13 or county.
9-14 SECTION 2. The importance of this legislation and the
9-15 crowded condition of the calendars in both houses create an
9-16 emergency and an imperative public necessity that the
9-17 constitutional rule requiring bills to be read on three several
9-18 days in each house be suspended, and this rule is hereby suspended,
9-19 and that this Act take effect and be in force from and after its
9-20 passage, and it is so enacted.