1-1     By:  Harris                                            S.B. No. 243
 1-2           (In the Senate - Filed January 12, 2001; January 16, 2001,
 1-3     read first time and referred to Committee on Intergovernmental
 1-4     Relations; February 21, 2001, reported favorably by the following
 1-5     vote:  Yeas 7, Nays 0; February 21, 2001, 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; providing a civil penalty.
1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11           SECTION 1.  Subdivisions (4), (8), (9), and (10), Section
1-12     395.001, Local 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.  Subsection (a), Section 395.014, Local Government
2-15     Code, is 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; and
2-52                 (7)  a plan for awarding:
2-53                       (A)  a credit for the portion of ad valorem tax
2-54     and utility service revenues generated by new service units during
2-55     the program period that is used for the payment of improvements,
2-56     including the payment of debt, that are included in the capital
2-57     improvements plan; or
2-58                       (B)  in the alternative, a credit equal to 50
2-59     percent of the total projected cost of implementing the capital
2-60     improvements plan.
2-61           SECTION 3.  Subsection (a), Section 395.015, Local Government
2-62     Code, is amended to read as follows:
2-63           (a)  The impact fee per service unit may not exceed the
2-64     amount determined by subtracting the amount in Section
2-65     395.014(a)(7) from [dividing] the costs of the capital improvements
2-66     described by Section 395.014(a)(3) and dividing that amount by the
2-67     total number of projected service units described by Section
2-68     395.014(a)(5).
2-69           SECTION 4.  Subsection (d), Section 395.016, Local Government
 3-1     Code, is amended to read as follows:
 3-2           (d)  This subsection applies only to land platted in
 3-3     accordance with Subchapter A, Chapter 212, or the subdivision or
 3-4     platting procedures of a political subdivision after adoption of an
 3-5     impact fee adopted after June 20, 1987.  The political subdivision
 3-6     shall assess the impact fees before or at the time of recordation
 3-7     of a subdivision plat or other plat under Subchapter A, Chapter
 3-8     212, or the subdivision or platting ordinance or procedures of any
 3-9     political subdivision in the official records of the county clerk
3-10     of the county in which the tract is located.  Except as provided by
3-11     Section 395.019, if water and wastewater capacity is available, the
3-12     political subdivision may collect the fees [at either the time of
3-13     recordation of the subdivision plat or connection to the political
3-14     subdivision's water or sewer system or] at the time the political
3-15     subdivision issues a [either the] building permit [or the
3-16     certificate of occupancy].
3-17           SECTION 5.  Subchapter C, Chapter 395, Local Government Code,
3-18     is amended by adding Section 395.0411 and amending Sections 395.042
3-19     through 395.045, 395.047, 395.049, 395.050, and 395.051 to read as
3-20     follows:
3-21           Sec. 395.0411.  CAPITAL IMPROVEMENTS PLAN.  The political
3-22     subdivision shall provide for a capital improvements plan to be
3-23     developed by qualified professionals using generally accepted
3-24     engineering and planning practices in accordance with Section
3-25     395.014.
3-26           Sec. 395.042.  Hearing on Land Use Assumptions AND CAPITAL
3-27     IMPROVEMENTS PLAN.  To impose an impact fee, a political
3-28     subdivision must adopt an order, ordinance, or resolution
3-29     establishing a public hearing date to consider the land use
3-30     assumptions and capital improvements plan for [within] the
3-31     designated service area [that will be used to develop the capital
3-32     improvements plan].
3-33           Sec. 395.043.  INFORMATION ABOUT LAND USE ASSUMPTIONS AND
3-34     CAPITAL IMPROVEMENTS PLAN AVAILABLE TO PUBLIC.  On or before the
3-35     date of the first publication of the notice of the hearing on the
3-36     land use assumptions and capital improvements plan, the political
3-37     subdivision shall make available to the public its land use
3-38     assumptions, the time period of the projections, and a description
3-39     of [the general nature of] the capital improvement facilities that
3-40     may be proposed.
3-41           Sec. 395.044.  Notice of Hearing on Land Use Assumptions AND
3-42     CAPITAL IMPROVEMENTS PLAN.  (a)  Before the 30th day before the
3-43     date of the hearing on the land use assumptions and capital
3-44     improvements plan, the political subdivision shall send a notice of
3-45     the hearing by certified mail to any person who has given written
3-46     notice by certified or registered mail to the municipal secretary
3-47     or other designated official of the political subdivision
3-48     requesting notice of the hearing within two years preceding the
3-49     date of adoption of the order, ordinance, or resolution setting the
3-50     public hearing.
3-51           (b)  The political subdivision shall publish notice of the
3-52     hearing [once a week for three consecutive weeks, the first notice
3-53     to appear] before the 30th day [but on or after the 60th day]
3-54     before the date set for the hearing, in one or more newspapers of
3-55     general circulation in each county in which the political
3-56     subdivision lies.  However, a river authority that is authorized
3-57     elsewhere by state law to charge fees that function as impact fees
3-58     may publish the required newspaper notice only in each county in
3-59     which the service area lies.  [The notice of public hearing may not
3-60     be in the part of the paper in which legal notices and classified
3-61     ads appear and may not be smaller than one-quarter page of a
3-62     standard-size or tabloid-size newspaper, and the headline on the
3-63     notice must be in 18-point or larger type.]
3-64           (c)  The notice must contain:
3-65                 (1)  a headline to read as follows:
3-66                    "NOTICE OF PUBLIC HEARING ON LAND USE
3-67             ASSUMPTIONS AND CAPITAL IMPROVEMENTS PLAN RELATING
3-68                    TO POSSIBLE ADOPTION OF IMPACT FEES"
3-69                 (2)  the time, date, and location of the hearing;
 4-1                 (3)  a statement that the purpose of the hearing is to
 4-2     consider the land use assumptions and [that will be used to develop
 4-3     a] capital improvements plan under which an impact fee may be
 4-4     imposed; and
 4-5                 (4)  [an easily understandable map of the service area
 4-6     to which the land use assumptions apply; and]
 4-7                 [(5)]  a statement that any member of the public has
 4-8     the right to appear at the hearing and present evidence for or
 4-9     against the land use assumptions and capital improvements plan.
4-10           Sec. 395.045.  Approval of Land Use Assumptions AND CAPITAL
4-11     IMPROVEMENTS PLAN REQUIRED.  (a)  After the public hearing on the
4-12     land use assumptions and capital improvements plan, the political
4-13     subdivision shall determine whether to adopt or reject an
4-14     ordinance, order, or resolution approving the land use assumptions
4-15     and capital improvements plan.
4-16           (b)  The political subdivision, within 30 days after the date
4-17     of the public hearing, shall approve or disapprove the land use
4-18     assumptions and capital improvements plan.
4-19           (c)  An ordinance, order, or resolution approving the land
4-20     use assumptions and capital improvements plan may not be adopted as
4-21     an emergency measure.
4-22           Sec. 395.047.  HEARING ON [CAPITAL IMPROVEMENTS PLAN AND]
4-23     IMPACT FEE.  On adoption of the land use assumptions and
4-24     [completion of the] capital improvements plan, the governing body
4-25     shall adopt an order or resolution setting a public hearing to
4-26     discuss the [adoption of the plan and] imposition of the impact
4-27     fee.  The public hearing must be held by the governing body of the
4-28     political subdivision to discuss the proposed ordinance, order, or
4-29     resolution [adopting a capital improvements plan and] imposing an
4-30     impact fee.
4-31           Sec. 395.049.  NOTICE OF HEARING ON [CAPITAL IMPROVEMENTS
4-32     PLAN AND] IMPACT FEE.  (a)  Before the 30th day before the date of
4-33     the hearing on the imposition of an [capital improvements plan and]
4-34     impact fee, the political subdivision shall send a notice of the
4-35     hearing by certified mail to any person who has given written
4-36     notice by certified or registered mail to the municipal secretary
4-37     or other designated official of the political subdivision
4-38     requesting notice of the hearing within two years preceding the
4-39     date of adoption of the order or resolution setting the public
4-40     hearing.
4-41           (b)  The political subdivision shall publish notice of the
4-42     hearing [once a week for three consecutive weeks, the first notice
4-43     to appear] before the 30th day [but on or after the 60th day]
4-44     before the date set for the hearing, in one or more newspapers of
4-45     general circulation in each county in which the political
4-46     subdivision lies.  However, a river authority that is authorized
4-47     elsewhere by state law to charge fees that function as impact fees
4-48     may publish the required newspaper notice only in each county in
4-49     which the service area lies.  [The notice of public hearing may not
4-50     be in the part of the paper in which legal notices and classified
4-51     ads appear and may not be smaller than one-quarter page of a
4-52     standard-size or tabloid-size newspaper, and the headline on the
4-53     notice must be in 18-point or larger type.]
4-54           (c)  The notice must contain the following:
4-55                 (1)  a headline to read as follows:
4-56            "NOTICE OF PUBLIC HEARING ON ADOPTION OF IMPACT FEES"
4-57                 (2)  the time, date, and location of the hearing;
4-58                 (3)  a statement that the purpose of the hearing is to
4-59     consider the adoption of an impact fee;
4-60                 (4)  [an easily understandable map of the service area
4-61     on which the proposed fee will be levied;]
4-62                 [(5)]  the amount of the proposed impact fee per
4-63     service unit; and
4-64                 (5) [(6)]  a statement that any member of the public
4-65     has the right to appear at the hearing and present evidence for or
4-66     against the plan and proposed fee.
4-67           Sec. 395.050.  ADVISORY COMMITTEE COMMENTS ON [CAPITAL
4-68     IMPROVEMENTS PLAN AND] IMPACT FEES.  The advisory committee created
4-69     under Section 395.058 shall file its written comments on the
 5-1     proposed [capital improvements plan and] impact fees before the
 5-2     fifth business day before the date of the public hearing on the
 5-3     imposition of the [plan and] fees.
 5-4           Sec. 395.051.  APPROVAL OF [CAPITAL IMPROVEMENTS PLAN AND]
 5-5     IMPACT FEE REQUIRED.  (a)  The political subdivision, within 30
 5-6     days after the date of the public hearing on the imposition of an
 5-7     [capital improvements plan and] impact fee, shall approve or
 5-8     disapprove the [adoption of the capital improvements plan and]
 5-9     imposition of an impact fee.
5-10           (b)  An ordinance, order, or resolution approving the
5-11     [capital improvements plan and] imposition of an impact fee may not
5-12     be adopted as an emergency measure.
5-13           SECTION 6.  Subsection (a), Section 395.052, Local Government
5-14     Code, is amended to read as follows:
5-15           (a)  A political subdivision imposing an impact fee shall
5-16     update the land use assumptions and capital improvements plan at
5-17     least every five [three] years.  The initial five-year [three-year]
5-18     period begins on the day the capital improvements plan is adopted.
5-19           SECTION 7.  Subchapter D, Chapter 395, Local Government Code,
5-20     is amended by adding Section 395.082 to read as follows:
5-21           Sec. 395.082.  CERTIFICATION OF COMPLIANCE REQUIRED.  (a)  A
5-22     political subdivision that imposes an impact fee shall submit a
5-23     written certification verifying compliance with this chapter to the
5-24     attorney general each year not later than the last day of the
5-25     political subdivision's fiscal year.
5-26           (b)  The certification must be signed by the presiding
5-27     officer of the governing body of a political subdivision and
5-28     include a statement that reads substantially similar to the
5-29     following:  "This statement certifies compliance with Chapter 395,
5-30     Local Government Code."
5-31           (c)  A political subdivision that fails to submit a
5-32     certification as required by this section is liable to the state
5-33     for a civil penalty in an amount equal to 10 percent of the amount
5-34     of the impact fees erroneously charged.  The attorney general shall
5-35     collect the civil penalty and deposit the amount collected to the
5-36     credit of the housing trust fund.
5-37           SECTION 8.  Subsection (b), Section 395.025, and Sections
5-38     395.046, 395.048, and 395.0515, Local Government Code, are
5-39     repealed.
5-40           SECTION 9.  This Act takes effect September 1, 2001.
5-41                                  * * * * *