77R11877 PAM-F
By Harris S.B. No. 243
Substitute the following for S.B. No. 243:
By Krusee C.S.S.B. No. 243
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to financing capital improvements and facility expansions
1-3 through the assessment of impact fees; providing a civil penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 395.001(4), (8), (9), and (10), Local
1-6 Government Code, are amended to read as follows:
1-7 (4) "Impact fee" means a charge or assessment imposed
1-8 by a political subdivision against new development in order to
1-9 generate revenue for funding or recouping the costs of capital
1-10 improvements or facility expansions necessitated by and
1-11 attributable to the new development. The term includes amortized
1-12 charges, lump-sum charges, capital recovery fees, contributions in
1-13 aid of construction, and any other fee that functions as described
1-14 by this definition. The term does not include:
1-15 (A) dedication of land for public parks or
1-16 payment in lieu of the dedication to serve park needs;
1-17 (B) dedication of rights-of-way or easements or
1-18 construction or dedication of on-site or off-site water
1-19 distribution, wastewater collection or drainage facilities, or
1-20 streets, sidewalks, or curbs if the dedication or construction is
1-21 required by a valid ordinance and is necessitated by and
1-22 attributable to the new development; [or]
1-23 (C) lot or acreage fees to be placed in trust
1-24 funds for the purpose of reimbursing developers for oversizing or
2-1 constructing water or sewer mains or lines; or
2-2 (D) other pro rata fees for reimbursement of
2-3 water or sewer mains or lines extended by the political
2-4 subdivision.
2-5 However, an item included in the capital improvements plan
2-6 may not be required to be constructed except in accordance with
2-7 Section 395.019(2), and an owner may not be required to construct
2-8 or dedicate facilities and to pay impact fees for those facilities.
2-9 (8) "Roadway facilities" means arterial or collector
2-10 streets or roads that have been designated on an officially adopted
2-11 roadway plan of the political subdivision, together with all
2-12 necessary appurtenances. The term includes the political
2-13 subdivision's share of costs for [does not include any] roadways
2-14 and [or] associated improvements designated on the federal or Texas
2-15 highway system, including local matching funds and costs related to
2-16 utility line relocation and the establishment of curbs, gutters,
2-17 sidewalks, drainage appurtenances, and rights-of-way.
2-18 (9) "Service area" means the area within the corporate
2-19 boundaries or extraterritorial jurisdiction, as determined under
2-20 Chapter 42, of the political subdivision to be served by the
2-21 capital improvements or facilities expansions specified in the
2-22 capital improvements plan, except roadway facilities and storm
2-23 water, drainage, and flood control facilities. The service area,
2-24 for the purposes of this chapter, may include all or part of the
2-25 land within the political subdivision or its extraterritorial
2-26 jurisdiction, except for roadway facilities and storm water,
2-27 drainage, and flood control facilities. For roadway facilities,
3-1 the service area is limited to an area within the corporate
3-2 boundaries of the political subdivision and shall not exceed six [a
3-3 distance equal to the average trip length from the new development,
3-4 but in no event more than three] miles[, which service area shall
3-5 be served by the roadway facilities designated in the capital
3-6 improvements plan]. For storm water, drainage, and flood control
3-7 facilities, the service area may include all or part of the land
3-8 within the political subdivision or its extraterritorial
3-9 jurisdiction, but shall not exceed the area actually served by the
3-10 storm water, drainage, and flood control facilities designated in
3-11 the capital improvements plan and shall not extend across watershed
3-12 boundaries.
3-13 (10) "Service unit" means a standardized measure of
3-14 consumption, use, generation, or discharge attributable to an
3-15 individual unit of development calculated in accordance with
3-16 generally accepted engineering or planning standards and based on
3-17 historical data and trends applicable to the political subdivision
3-18 in which the individual unit of development is located during the
3-19 previous 10 years [for a particular category of capital
3-20 improvements or facility expansions].
3-21 SECTION 2. Section 395.014(a), Local Government Code, is
3-22 amended to read as follows:
3-23 (a) The political subdivision shall use qualified
3-24 professionals to prepare the capital improvements plan and to
3-25 calculate the impact fee. The capital improvements plan must
3-26 contain specific enumeration of the following items:
3-27 (1) a description of the existing capital improvements
4-1 within the service area and the costs to upgrade, update, improve,
4-2 expand, or replace the improvements to meet existing needs and
4-3 usage and stricter safety, efficiency, environmental, or regulatory
4-4 standards, which shall be prepared by a qualified professional
4-5 engineer licensed to perform the professional engineering services
4-6 in this state;
4-7 (2) an analysis of the total capacity, the level of
4-8 current usage, and commitments for usage of capacity of the
4-9 existing capital improvements, which shall be prepared by a
4-10 qualified professional engineer licensed to perform the
4-11 professional engineering services in this state;
4-12 (3) a description of all or the parts of the capital
4-13 improvements or facility expansions and their costs necessitated by
4-14 and attributable to new development in the service area based on
4-15 the approved land use assumptions, which shall be prepared by a
4-16 qualified professional engineer licensed to perform the
4-17 professional engineering services in this state;
4-18 (4) a definitive table establishing the specific level
4-19 or quantity of use, consumption, generation, or discharge of a
4-20 service unit for each category of capital improvements or facility
4-21 expansions and an equivalency or conversion table establishing the
4-22 ratio of a service unit to various types of land uses, including
4-23 residential, commercial, and industrial;
4-24 (5) the total number of projected service units
4-25 necessitated by and attributable to new development within the
4-26 service area based on the approved land use assumptions and
4-27 calculated in accordance with generally accepted engineering or
5-1 planning criteria; [and]
5-2 (6) the projected demand for capital improvements or
5-3 facility expansions required by new service units projected over a
5-4 reasonable period of time, not to exceed 10 years; and
5-5 (7) a plan for awarding:
5-6 (A) a credit for the portion of ad valorem tax
5-7 and utility service revenues generated by new service units during
5-8 the program period that is used for the payment of improvements,
5-9 including the payment of debt, that are included in the capital
5-10 improvements plan; or
5-11 (B) in the alternative, a credit equal to 50
5-12 percent of the total projected cost of implementing the capital
5-13 improvements plan.
5-14 SECTION 3. Section 395.015(a), Local Government Code, is
5-15 amended to read as follows:
5-16 (a) The impact fee per service unit may not exceed the
5-17 amount determined by subtracting the amount in Section
5-18 395.014(a)(7) from [dividing] the costs of the capital improvements
5-19 described by Section 395.014(a)(3) and dividing that amount by the
5-20 total number of projected service units described by Section
5-21 395.014(a)(5).
5-22 SECTION 4. Section 395.016(d), Local Government Code, is
5-23 amended to read as follows:
5-24 (d) This subsection applies only to land platted in
5-25 accordance with Subchapter A, Chapter 212, or the subdivision or
5-26 platting procedures of a political subdivision after adoption of an
5-27 impact fee adopted after June 20, 1987. The political subdivision
6-1 shall assess the impact fees before or at the time of recordation
6-2 of a subdivision plat or other plat under Subchapter A, Chapter
6-3 212, or the subdivision or platting ordinance or procedures of any
6-4 political subdivision in the official records of the county clerk
6-5 of the county in which the tract is located. Except as provided by
6-6 Section 395.019, if the political subdivision has water and
6-7 wastewater capacity available:
6-8 (1) the political subdivision shall [may] collect the
6-9 fees [at either the time of recordation of the subdivision plat or
6-10 connection to the political subdivision's water or sewer system or]
6-11 at the time the political subdivision issues a [either the]
6-12 building permit; or
6-13 (2) for land platted outside the corporate boundaries
6-14 of a municipality, the municipality shall collect the fees at the
6-15 time an application for an individual meter connection to the
6-16 municipality's water or wastewater system is filed [the certificate
6-17 of occupancy].
6-18 SECTION 5. Subchapter C, Chapter 395, Local Government Code,
6-19 is amended by adding Section 395.0411 and amending Sections
6-20 395.042-395.045, 395.047, and 395.049-395.051 to read as follows:
6-21 Sec. 395.0411. CAPITAL IMPROVEMENTS PLAN. The political
6-22 subdivision shall provide for a capital improvements plan to be
6-23 developed by qualified professionals using generally accepted
6-24 engineering and planning practices in accordance with Section
6-25 395.014.
6-26 Sec. 395.042. Hearing on Land Use Assumptions AND CAPITAL
6-27 IMPROVEMENTS PLAN. To impose an impact fee, a political
7-1 subdivision must adopt an order, ordinance, or resolution
7-2 establishing a public hearing date to consider the land use
7-3 assumptions and capital improvements plan for [within] the
7-4 designated service area [that will be used to develop the capital
7-5 improvements plan].
7-6 Sec. 395.043. INFORMATION ABOUT LAND USE ASSUMPTIONS AND
7-7 CAPITAL IMPROVEMENTS PLAN AVAILABLE TO PUBLIC. On or before the
7-8 date of the first publication of the notice of the hearing on the
7-9 land use assumptions and capital improvements plan, the political
7-10 subdivision shall make available to the public its land use
7-11 assumptions, the time period of the projections, and a description
7-12 of [the general nature of] the capital improvement facilities that
7-13 may be proposed.
7-14 Sec. 395.044. Notice of Hearing on Land Use Assumptions AND
7-15 CAPITAL IMPROVEMENTS PLAN. (a) Before the 30th day before the
7-16 date of the hearing on the land use assumptions and capital
7-17 improvements plan, the political subdivision shall send a notice of
7-18 the hearing by certified mail to any person who has given written
7-19 notice by certified or registered mail to the municipal secretary
7-20 or other designated official of the political subdivision
7-21 requesting notice of the hearing within two years preceding the
7-22 date of adoption of the order, ordinance, or resolution setting the
7-23 public hearing.
7-24 (b) The political subdivision shall publish notice of the
7-25 hearing [once a week for three consecutive weeks, the first notice
7-26 to appear] before the 30th day [but on or after the 60th day]
7-27 before the date set for the hearing, in one or more newspapers of
8-1 general circulation in each county in which the political
8-2 subdivision lies. However, a river authority that is authorized
8-3 elsewhere by state law to charge fees that function as impact fees
8-4 may publish the required newspaper notice only in each county in
8-5 which the service area lies. [The notice of public hearing may not
8-6 be in the part of the paper in which legal notices and classified
8-7 ads appear and may not be smaller than one-quarter page of a
8-8 standard-size or tabloid-size newspaper, and the headline on the
8-9 notice must be in 18-point or larger type.]
8-10 (c) The notice must contain:
8-11 (1) a headline to read as follows:
8-12 "NOTICE OF PUBLIC HEARING ON LAND USE
8-13 ASSUMPTIONS AND CAPITAL IMPROVEMENTS PLAN RELATING
8-14 TO POSSIBLE ADOPTION OF IMPACT FEES"
8-15 (2) the time, date, and location of the hearing;
8-16 (3) a statement that the purpose of the hearing is to
8-17 consider the land use assumptions and [that will be used to develop
8-18 a] capital improvements plan under which an impact fee may be
8-19 imposed; and
8-20 (4) [an easily understandable map of the service area
8-21 to which the land use assumptions apply; and]
8-22 [(5)] a statement that any member of the public has
8-23 the right to appear at the hearing and present evidence for or
8-24 against the land use assumptions and capital improvements plan.
8-25 Sec. 395.045. Approval of Land Use Assumptions AND CAPITAL
8-26 IMPROVEMENTS PLAN REQUIRED. (a) After the public hearing on the
8-27 land use assumptions and capital improvements plan, the political
9-1 subdivision shall determine whether to adopt or reject an
9-2 ordinance, order, or resolution approving the land use assumptions
9-3 and capital improvements plan.
9-4 (b) The political subdivision, within 30 days after the date
9-5 of the public hearing, shall approve or disapprove the land use
9-6 assumptions and capital improvements plan.
9-7 (c) An ordinance, order, or resolution approving the land
9-8 use assumptions and capital improvements plan may not be adopted as
9-9 an emergency measure.
9-10 Sec. 395.047. HEARING ON [CAPITAL IMPROVEMENTS PLAN AND]
9-11 IMPACT FEE. On adoption of the land use assumptions and
9-12 [completion of the] capital improvements plan, the governing body
9-13 shall adopt an order or resolution setting a public hearing to
9-14 discuss the [adoption of the plan and] imposition of the impact
9-15 fee. The public hearing must be held by the governing body of the
9-16 political subdivision to discuss the proposed ordinance, order, or
9-17 resolution [adopting a capital improvements plan and] imposing an
9-18 impact fee.
9-19 Sec. 395.049. NOTICE OF HEARING ON [CAPITAL IMPROVEMENTS
9-20 PLAN AND] IMPACT FEE. (a) Before the 30th day before the date of
9-21 the hearing on the imposition of an [capital improvements plan and]
9-22 impact fee, the political subdivision shall send a notice of the
9-23 hearing by certified mail to any person who has given written
9-24 notice by certified or registered mail to the municipal secretary
9-25 or other designated official of the political subdivision
9-26 requesting notice of the hearing within two years preceding the
9-27 date of adoption of the order or resolution setting the public
10-1 hearing.
10-2 (b) The political subdivision shall publish notice of the
10-3 hearing [once a week for three consecutive weeks, the first notice
10-4 to appear] before the 30th day [but on or after the 60th day]
10-5 before the date set for the hearing, in one or more newspapers of
10-6 general circulation in each county in which the political
10-7 subdivision lies. However, a river authority that is authorized
10-8 elsewhere by state law to charge fees that function as impact fees
10-9 may publish the required newspaper notice only in each county in
10-10 which the service area lies. [The notice of public hearing may not
10-11 be in the part of the paper in which legal notices and classified
10-12 ads appear and may not be smaller than one-quarter page of a
10-13 standard-size or tabloid-size newspaper, and the headline on the
10-14 notice must be in 18-point or larger type.]
10-15 (c) The notice must contain the following:
10-16 (1) a headline to read as follows:
10-17 "NOTICE OF PUBLIC HEARING ON ADOPTION OF IMPACT FEES"
10-18 (2) the time, date, and location of the hearing;
10-19 (3) a statement that the purpose of the hearing is to
10-20 consider the adoption of an impact fee;
10-21 (4) [an easily understandable map of the service area
10-22 on which the proposed fee will be levied;]
10-23 [(5)] the amount of the proposed impact fee per
10-24 service unit; and
10-25 (5) [(6)] a statement that any member of the public
10-26 has the right to appear at the hearing and present evidence for or
10-27 against the plan and proposed fee.
11-1 Sec. 395.050. ADVISORY COMMITTEE COMMENTS ON [CAPITAL
11-2 IMPROVEMENTS PLAN AND] IMPACT FEES. The advisory committee created
11-3 under Section 395.058 shall file its written comments on the
11-4 proposed [capital improvements plan and] impact fees before the
11-5 fifth business day before the date of the public hearing on the
11-6 imposition of the [plan and] fees.
11-7 Sec. 395.051. APPROVAL OF [CAPITAL IMPROVEMENTS PLAN AND]
11-8 IMPACT FEE REQUIRED. (a) The political subdivision, within 30
11-9 days after the date of the public hearing on the imposition of an
11-10 [capital improvements plan and] impact fee, shall approve or
11-11 disapprove the [adoption of the capital improvements plan and]
11-12 imposition of an impact fee.
11-13 (b) An ordinance, order, or resolution approving the
11-14 [capital improvements plan and] imposition of an impact fee may not
11-15 be adopted as an emergency measure.
11-16 SECTION 6. Section 395.052(a), Local Government Code, is
11-17 amended to read as follows:
11-18 (a) A political subdivision imposing an impact fee shall
11-19 update the land use assumptions and capital improvements plan at
11-20 least every five [three] years. The initial five-year [three-year]
11-21 period begins on the day the capital improvements plan is adopted.
11-22 SECTION 7. Section 395.055, Local Government Code, is
11-23 amended to read as follows:
11-24 Sec. 395.055. Notice of Hearing on Amendments to Land Use
11-25 Assumptions, Capital Improvements Plan, or Impact Fee. (a) The
11-26 notice and hearing procedures prescribed by Sections 395.044(a) and
11-27 (b) apply to a hearing on the amendment of land use assumptions, a
12-1 capital improvements plan, or an impact fee. [Before the 30th day
12-2 before the date of the hearing on amendments to the land use
12-3 assumptions, capital improvements plan, or impact fee, the
12-4 political subdivision shall send a notice of the hearing by
12-5 certified mail to any person who has given written notice by
12-6 certified or registered mail to the municipal secretary or other
12-7 designated official of the political subdivision requesting notice
12-8 of the hearing within two years preceding the date of adoption of
12-9 the order or resolution setting the public hearing.]
12-10 (b) [The political subdivision shall publish notice of the
12-11 hearing once a week for three consecutive weeks, the first notice
12-12 to appear before the 30th day but on or after the 60th day before
12-13 the date set for the hearing, in one or more newspapers of general
12-14 circulation in each county in which the political subdivision lies.
12-15 However, a river authority that is authorized elsewhere by state
12-16 law to charge fees that function as impact fees may publish the
12-17 required newspaper notice only in each county in which the service
12-18 area lies. The notice of public hearing may not be in the part of
12-19 the paper in which legal notices and classified ads appear and may
12-20 not be smaller than one-quarter page of a standard-size or
12-21 tabloid-size newspaper, and the headline on the notice must be in
12-22 18-point or larger type.]
12-23 [(c)] The notice of a hearing under this section must
12-24 contain the following:
12-25 (1) a headline to read as follows:
12-26 "NOTICE OF PUBLIC HEARING ON AMENDMENT OF IMPACT FEES"
12-27 (2) the time, date, and location of the hearing;
13-1 (3) a statement that the purpose of the hearing is to
13-2 consider the amendment of land use assumptions and a capital
13-3 improvements plan and the imposition of an impact fee; and
13-4 (4) [an easily understandable description and map of
13-5 the service area on which the update is being prepared; and]
13-6 [(5)] a statement that any member of the public has
13-7 the right to appear at the hearing and present evidence for or
13-8 against the update.
13-9 SECTION 8. Subchapter D, Chapter 395, Local Government Code,
13-10 is amended by adding Section 395.082 to read as follows:
13-11 Sec. 395.082. CERTIFICATION OF COMPLIANCE REQUIRED. (a) A
13-12 political subdivision that imposes an impact fee shall submit a
13-13 written certification verifying compliance with this chapter to the
13-14 attorney general each year not later than the last day of the
13-15 political subdivision's fiscal year.
13-16 (b) The certification must be signed by the presiding
13-17 officer of the governing body of a political subdivision and
13-18 include a statement that reads substantially similar to the
13-19 following: "This statement certifies compliance with Chapter 395,
13-20 Local Government Code."
13-21 (c) A political subdivision that fails to submit a
13-22 certification as required by this section is liable to the state
13-23 for a civil penalty in an amount equal to 10 percent of the amount
13-24 of the impact fees erroneously charged. The attorney general shall
13-25 collect the civil penalty and deposit the amount collected to the
13-26 credit of the housing trust fund.
13-27 SECTION 9. Sections 395.025(b), 395.046, 395.048, and
14-1 395.0515, Local Government Code, are repealed.
14-2 SECTION 10. This Act takes effect September 1, 2001.