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 * * * * *