(a) Purpose
This section establishes an administrative process for the City to consider a claim that:
(1)
a project is entitled to
proceed under Chapter 245 of the Texas Local Government Code; or
(2)
a proposed land use is
entitled to proceed under Sec. 43.002(a)(2) of the Texas Local Government Code.
(b) Recognition process
(1) Initiation
A person who asserts a claim under subsection (a) shall file a completed application for recognition of rights with the Director of Development Services or his or her designee (the “Director”) on a form provided by the Director and shall pay the application review fee established by ordinance.
(2) Review
The Director shall review an application filed under this section and approve, deny, or make a written request to the applicant for specific additional information needed to complete the review no later than twenty (20) days after the date the application was filed. If the Director does not respond to an application within twenty (20) days, the application is denied. The Director may extend any time period established by this section for the review or appeal of an application at the written request of the applicant.
(3) Recognition
of Rights Under Chapter 245 of the Texas Local Government Code
If the Director determines the applicant has established
that an application for one or more permit(s) was filed to initiate, continue,
or complete a project, the Director shall issue a certificate addressed to the
applicant that acknowledges and recognizes the project is entitled to vested
rights under Chapter 245 of the Texas Local Government Code. The certificate
shall state the filing date of the application for the permit that initiated
the project, state that the City acknowledges that requirements in effect on
that date shall be the sole basis for consideration of all subsequent permits
required to complete the project, except as otherwise authorized by law, and
shall clearly and fully describe the project for which vested rights are
recognized by that certificate.
(4) Recognition
of Rights under Sec. 43.002 of the Texas Local Government Code
If the Director determines the applicant has established that a planned land use meets the criteria established by Sec. 43.002(a)(2) of the Texas Local Government Code, the Director shall issue a certificate addressed to the applicant that acknowledges and recognizes the project is entitled to vested rights under Sec. 43.002 of the Texas Local Government Code. The certificate shall state the filing date of the application for the permit required by law for the planned land use, state that the City acknowledges that its requirements may not prohibit a person from beginning to use land in the manner that was planned for the land before the 90th day before the effective date of annexation, and shall clearly and fully describe the planned land use for which vested rights are recognized by that certificate.
(5) Denial
If the Director determines that the applicant has failed to support a claim asserted under this section, the Director shall provide a written denial to the applicant and shall state the reason for the denial.
(c) Retention of Records
The Director shall retain a true copy of all certificates and denials issued under this section. Copies of these documents shall be retained in accordance with state law governing document retention and shall be available to the public for review during regular business hours and as otherwise provided by the Texas Public Information Act.
(d) Appeal
(1) Appeal to Planning Commission
The person asserting a claim under this section may appeal a
final decision on the claim by the Director to the Planning Commission by
filing a written appeal with the Director no later than fifteen (15) days after
the date the person is notified of the decision. The appeal shall identify the
specific decision of the Director that is appealed and the reason why the
decision should be reversed or modified. The Director shall place the appeal on
the agenda of the Planning Commission. and tThe
Planning Commission shall hold a hearing on the appeal and make its ruling no
later than fourteen (14) forty-five (45) days
after the date the appeal was filed, or at its first available meeting after the date
the appeal was filed, whichever date is later. The decision of the
Planning Commission is final on the tenth day after the vote on the decision
unless a review of the decision by the City Council is requested pursuant to
this subsection.
(2) Review by City Council
Because significant decisions establishing or affecting city policy are most properly made by elected officials, the decision by the Planning Commission on an appeal brought under this subsection (d) is not final if City Council review of that decision is requested by:
(a) the applicant; or
(b) the City Manager, in a request bearing the signature of the City Manager; or
(c) a Council Consideration Request (or an equivalent City Council agenda scheduling document) signed by the requisite number of members of the City Council to schedule a review of the decision.
A written request for City Council review shall be filed
with the City Clerk no later than ten days after the date of the Planning
Commission’s decision. A request filed by the applicant shall be accompanied by
payment of a City Council review fee in the amount established by ordinance.
The City Clerk shall mail or hand-deliver copies of the request for City
Council review to the applicant, the City Manager, and each member of the City
Council no later than five days after the date the request is filed, and shall
schedule the review of the Planning Commission’s decision for a meeting of the
City Council to be held no later than the first available
meeting or fourteen (14) thirty days after
the date the request
for City Council review is filed with the City Clerk, whichever date is later. of the
Planning Commission’s decision. A decision
of the Planning Commission is final forty-five days after the date of the
decision unless modified on or before that date by a resolution passed by the
City Council. A City Council resolution enacted under this section
is effective immediately upon passage and shall be a final decision of the City
on an applicant’s claim brought under this section.
(e) Variance
The developer of a project or a planned land use who has vested rights acknowledged or recognized by official city action may request a variance from a time limit, required action, or any other term that would otherwise cause the vested rights to expire. An individual requesting a variance shall file a written application with the Director and pay a variance application fee in the amount established by ordinance. The application must identify the specific provisions for which a variance is being requested and the reasons supporting approval of the variance. The Director shall review the application and provide a written recommendation on the application to the Planning Commission no later than thirty days after the date the application was filed. If the Planning Commission fails to make a ruling on the variance no later than sixty days after the date the application was filed, the variance is denied. To grant a variance under this section, the Planning Commission must find that:
(1) The applicant would suffer a hardship in the absence of a variance that is not the result of the applicant's own negligence; and
(2) The applicant has been actively attempting to pursue and complete development of the project that is the subject of the vested rights; and
(3) Compliance with rules and regulations passed after the recognition of vested rights would cause a substantial economic hardship to the developer that would preclude the capability of completing the project in a reasonable and prudent manner.
(f) Variance appeal
A decision by the Planning Commission on a variance requested under subsection (e) of this section may be reviewed by the City Council in the same manner as a decision of the Planning Commission on the appeal of a claim brought under subsection (b) of this section, in accordance with the procedures and requirements established by subsection (d)(2) of this section.
(g) Duration
A right recognized under Chapter 245 or Section 43.002(a)(2) of the Texas Local Government Code shall not extend a time period, term, or other condition established for the validity of a permit submitted for recognition or subsequently issued by the city for a project, except as may be approved by the granting of a variance under subsection (e) or (f) of this section.
(a) Purpose
A project affidavit
is an administrative tool to provide information necessary for the City to
monitor and ensure compliance with its obligations under Chapter 245 or Section
43.002(a)(2) of the Texas Local Government Code. A person who files an
application for a permit issued by the City of San Antonio may file a project
affidavit with the Director on the a form
adopted as Section 35-B128 in Appendix B to
this codeprovided by the Director. As
provided by Section 35-B101, the Director shall
not accept a project affidavit for filing until
all information, data, and fees required
for filing the project affidavit
and the associated application for a
permit are included with the appropriate application.
(b)(a)Contents
of a project affidavit
A project affidavit
shall include the following information:
1.the
name, address, and telephone number of the owner of the property on which
project will be developed;
2.1.the
name, address, and telephone number of the applicant, if different than the
owner;
3.1.the
legal description of the property on which the project will be developed;
4.1.designation
of the project as a single-phase or multi-phase project, and a description of
each phase of a multi-phase project;
5.1.the
total acreage of the property on which the project will be developed;
6.1.the
number of acres within the project proposed for development and future use as
one of the following land uses, with each proposed land use identified and
separated from each other proposed land use by internal boundary lines shown on
a map of the project:
a.farm
and ranch;
b.a.residential;
c.a.multi-family
residential;
d.a.office;
e.a.commercial;
f.a.entertainmenthotel or
recreation;
g.a.industrial;
or
h.a.institutional.
7.1.a
copy of the application for a permit filed by the applicant concurrently with
the project affidavit;
8.1.if
the requested permit is not a permit issued by the City of San Antonio, the
name of the government agency with which the permit application was filed; and
9.1.the
expiration date, if any, of the permit if issued by the government agency.
(a)(b)
Concurrent filing with permit
Unless otherwise
specifically provided by this Code, a project affidavit may be filed only in
connection with filing an application for a permit required by the City of San
Antonio or some other government agency to initiate, continue, or complete a
project. The decision to file a project affidavit is optional and is not
required for the consideration or approval of a permit. Unless otherwise
specifically provided by this Code, a project affidavit may not be filed accepted
for filing unless on or after the date the project affidavit is
filed an application for a permit required to initiate, continue,
or complete the project is filed pending with the
City of San Antonio or another government agency with regulatory jurisdiction
over the project, but no later than [thirty
(30) days PERIOD OF TIME] after the date that application is filed.
(d)(c) Filing
with application for utility service commitment
A project affidavit may be filed in connection with an application to obtain a service commitment for water, wastewater, gas, or electric utilities to initiate, continue, or complete a project. The decision to file a project affidavit is optional and is not required for the consideration or approval of a utility service commitment by the utility service provider. Failure to file a project affidavit with the City of San Antonio in connection with an application for a utility service commitment establishes a presumption that the application for a utility service commitment was not intended to initiate a specific or identifiable project and that the applicant does not intend to identify a project for purposes of this Division.
(e)(d) Effect
of filing project affidavit
The Director shall issue the certificate required by subsection (b)(3) or (b)(4) of Section 35-711, as applicable, to an applicant who files a completed project affidavit.
(f)(e) Failure
to file a project affidavit
Failure to file a
project affidavit in connection with a permit establishes a presumption that
the applicant for the permit is not initiating a specific or identifiable continuing project,
and that a permit application is sought to achieve only the action authorized
by the issuance of that permit.
(a) Applicability
This section applies
to a claim that a project was initiated by filing an application for a permit
to initiate the project before September 25, 1997, and that before [the
effective date of these proposed amendments] the City of San Antonio issued
a development rights permit or a vested rights permit for that project.
(b) Project affidavit to confirm project as of September 24, 1997
As an alternative to filing a claim for recognition of rights under Section 35-711, a person may file a project affidavit described by Section 35-712 no later than [eighteen months after the effective date of these proposed amendments]. If a project affidavit is filed under this section, the Director shall issue the certificate required by subsection (b)(3) or (b)(4) of Section 35-711. A certificate issued under this subsection shall state that the City acknowledges that requirements in effect on September 24, 1997, shall be the sole basis for consideration of all subsequent permits required to complete the project, except as otherwise authorized by law, and shall clearly and fully describe the project for which vested rights are recognized by that certificate.
(a) Applicability
This
section applies to a claim that a project was initiated by filing an
application for a permit to initiate the project on or after September 25, 1997
and before June 4, 2001.
(b) Application for plat
As an
alternative to filing a claim for recognition of rights under Section 35-711, a
person may file a project affidavit described by Section 35-712 for land
included in an application for a plat that was filed on or after September 25,
1997, and before June 4, 2001. The Director shall issue the certificate
required by subsection (b)(3) or (b)(4) of Section 35-711, as applicable, to
any applicant who files a completed project affidavit that describes the
project initiated by the application for the plat. A project affidavit filed to
satisfy the requirements of this subsection may be filed at any time.
(a) Applicability
This
section applies to a claim that a project was initiated by filing an
application for a permit to initiate the project on or after June 4, 2001 and
before [the effective date of
these proposed amendments].
(b) Recognition of project
A claim
made under this section shall be processed pursuant to Section 35-711;
provided, however, that upon request the Director shall issue the certificate
required by subsection (b)(3) or (b)(4) of Section 35-711, as applicable, to
any applicant who was issued a development rights permit or a vested rights
permit by the City of San Antonio for that project before [the effective date of these proposed amendments].
(a) Applicability
This
section applies to a project initiated after [the effective date of these proposed amendments] by filing an application
for a permit required to initiate a project.
(b) Recognition of project
The
Director shall issue the certificate required by subsection (b)(3) or (b)(4) of
Section 35-711, as applicable, to any applicant who files a project affidavit
in accordance with Section 35-712 of this Code.
(a) Limited change in acreage proposed for previously identified use
A project affidavit modification may be filed with the Director at any time to increase or decrease the number of acres within the project proposed for a use identified in the original project affidavit. A modification to the boundaries or acreage proposed for a use proposed in the original project affidavit is authorized if that modification does not cumulatively increase the number of acres proposed for the use by more than ten percent (10%) of the acreage proposed for that use in the original project application. The Director shall issue a revised certificate under subsection (b)(3) or (b)(4) of Section 35-711 to describe the revised project and acknowledge that the requirements in effect on the date identified on the original certificate shall be the sole basis for consideration of all subsequent permits required to complete the project, except as otherwise authorized by law.
(b) Minor amendment to a Master Development Plan
A minor amendment to an approved Master Development Plan defined by Section 35-412(g)(2) of this Code that otherwise satisfies the criteria established by subsection (a) of this section does not affect a certificate issued under subsection (b)(3) or (b)(4) of Section 35-711 or the rights acknowledged and recognized by that certificate.
(c) Changes caused by government action
A modification to a project that is required to comply with or conform to an action taken by a government agency does not affect a certificate issued under subsection (b)(3) or (b)(4) of Section 35-711 or the rights acknowledged and recognized by that certificate. This subsection does not apply to a modification required or authorized by a change in zoning on all or a portion of the area in the project, except as otherwise provided by law.
(d) All other project changes
Any modification to a project that is not authorized by this section constitutes a new project with respect to the area of the project that is modified. Development of the remainder of a project that conforms to the original project affidavit or to a modified project affidavit authorized by this section is not a new project, and may continue to be developed in accordance with the certificate under subsection (b)(3) or (b)(4) of Section 35-711.
(a) Project completion
A project is complete when the underlying permit for the project expires. If there is no expiration date for that permit, a project is complete twenty years after the permit was approved; provided, however, that during that twenty year period progress towards development of the project must be equivalent to the progress required for the continuing validity of a Master Development Plan as established by Section 35-412(h) of this Code. If that progress is not demonstrated, the project is considered complete upon the failure of the developer to complete the requisite steps towards development after eighteen (18) months or ten (10) years, as applicable.
[OR]
A project is complete when the underlying permit for the project expires. If there is no expiration date for that permit, a project is complete twenty years after the permit was approved; provided, however, that during that twenty year period progress towards development of the project must be [demonstrated by the expenditure of infrastructure expenses (defined in the same manner as Ordinance 86715) equal to ______ percent (____%) of _____?_____].
(b) Effect of project completion
After a project is complete, the development or redevelopment of property included in a completed project is a new project for purposes of this Code.
(a) Purpose
This section implements the authority established by Texas Local Government Code § 245.005 to establish an expiration date for a permit that does not otherwise have an expiration date.
(b) Applicability
The provisions of this section apply to any permit that on May 11, 2000:
(1) had no expiration date; and
(2) was issued to begin or continue a project that is now dormant, as that term is defined by subsection (d) of this section.
(c) Expiration of a permit for a dormant project
A permit described by subsection (b) of this section expires on May 11, 2004 (the fifth anniversary of the effective date of Chapter 245 of the Local Government Code). A permit that expires pursuant to this section extinguishes any rights established by that permit.
(d) Dormant project; progress towards completion of a project
A project is dormant if there was no progress towards completion of the project before May 11, 2004. Progress towards completion of a project shall include any one or more of the following:
(1) an application for a final plat or plan is submitted to a regulatory agency;
(2) a good-faith attempt is made to file with a regulatory agency an application for a permit necessary to begin or continue towards completion of the project;
(3) costs have been incurred for developing the project including, without limitation, costs associated with roadway, utility, and other infrastructure facilities designed to serve, in whole or in part, the project (but exclusive of land acquisition) in the aggregate amount of five percent of the most recent appraised market value of the real property on which the project is located;
(4) fiscal security is posted with a regulatory agency to ensure performance of an obligation required by the regulatory agency; or
(5) utility connection fees or impact fees for the project have been paid to a regulatory agency.
(a) Applicability
The provisions of this Section apply to any claim to develop property in which the applicant asserts an exemption from any provision of this Chapter or any other city codes or ordinances based on:
(1)
a legal theory recognized by
Texas common law that authorizes that exemption (a “common law vested right”);
or
(2)
a right claimed under the
procedure established by Section 35-711 (a “statutory vested right”).
(b) Procedure for review and approval of a consent agreement
(1) Initiation
A person who asserts a claim under subsection (a) shall file a completed application for a consent agreement with the Director on a form provided by the Director and shall pay the application review fee established by ordinance.
(2) Consent agreement in connection with a common law vested right
An applicant for a consent agreement based on a claim asserting a common law vested right may file an application at any time before instituting judicial proceedings to assert that claim.
(3) Consent agreement in connection with a statutory vested right
An applicant under Section 35-711 may propose a consent
agreement concurrently with an application filed under Section 35-711 or at any
time prior to a final decision under Section 35-711.
(4) Analysis and Recommendation by Director
The Director, after consulting with the City Attorney, may recommend to the Planning Commission the approval of a consent agreement to resolve a dispute concerning a common law or statutory vested right. Before making a decision to recommend approval of a consent agreement, the Director shall require the applicant to provide credible evidence sufficient to support all required elements of a judicial finding of the common law vested right or to support a judicial finding that the applicant has a protected statutory vested right. A request for a consent agreement must include all documents that support the criteria established by this subsection. The Director shall review an application filed under this section and approve, deny, or make a written request to the applicant for specific additional information needed to complete the review no later than twenty (20) days after the date the application was filed. If the Director does not respond to an application within twenty (20) days, the application is denied. The Director may extend any time period established by this section for the review or appeal of an application at the written request of the applicant. The Director may request additional relevant material prior to making his or her recommendation to the Planning Commission.
(5) Denial by Director
The Director may deny a request for a consent agreement if
the Director, after consulting with the City Attorney, determines the applicant
has not provided the credible evidence required by subsection (4) of this
section. A denial under this subsection is a final action
with no further administrative review. The applicant may appeal to the
Planning Commission the decision of the Director to deny the
application for a Consent Agreement in accordance with the appeal procedures
established by Section 35-711(d).
(6) Review and approval by Planning Commission
The Planning Commission, in its sole discretion, may approve a consent agreement if it determines, after consultation with the City Attorney, that the applicant has provided credible evidence sufficient to support all required elements of a judicial finding of the common law vested right or to support a judicial finding that the applicant has a protected statutory vested right, and that a consent agreement to resolve the dispute is in the public interest after considering the cost and uncertainty of litigation. The decision of the Planning Commission is final on the tenth day after the vote on the decision unless a review of the decision by the City Council is requested pursuant to this subsection (b).
(7) Review and approval by City Council
The decision by the Planning Commission to approve a consent
agreement under this subsection (b) is not final if a City Council review of
that decision is requested by a Council Consideration Request (or an equivalent
City Council agenda scheduling document) signed by the requisite number of
members of the City Council to schedule a review of the decision. A written
request for City Council review shall be filed with the City Clerk no later
than ten days after the date of the Planning Commission’s decision. The City
Clerk shall mail or hand-deliver copies of the request to the applicant, the
City Manager, and each member of the City Council no later than five days after
the date the request is filed. The City Clerk shall schedule the review of the
Planning Commission’s decision for a meeting of the City Council to be held no
later than the first available meeting or fourteen (14) thirty days
after the date the request for City Council review is filed with
the City Clerk, whichever date is later.of the Planning Commission’s
decision. A decision of the Planning Commission is final forty-five days after
the date of the decision unless modified on or before that date by a
resolution passed by the City Council. A City Council resolution
enacted under this section is effective immediately upon passage and shall be a
final decision of the City on an applicant’s claim brought under this section.
(8) Terms and conditions of a consent agreement
A consent agreement shall be approved as to form by the City Attorney and signed by the Director and the applicant. A consent agreement shall include the following:
(a) a legal description of the subject property and the names of all legal and equitable owners;
(b) the duration of the consent agreement and the conditions that may result in its termination;
(c) a description of the development project authorized by the consent agreement, including all proposed uses to be permitted on the property;
(d) a listing of all city regulations to be applied to development of the project;
(e) a finding that the consent agreement is intended to resolve a good-faith dispute concerning development rights and applicable regulations without the cost and uncertainty to both parties of litigation; and
(f) a description of any other conditions, terms, restrictions, or requirements determined to be necessary for the preservation and protection of the public health, safety, or welfare.
NOTE: The ordinance will also include appropriate
amendments to the Streetscape Landscape Standards that will clearly establish
that requirements for landscaping public right-of-way are not intended
to be applied to a project that began before those landscaping standards were
adopted. I will forward that language as soon as it is completed.
STILL TO BE DRAFTED:
1. List of ordinances/code provisions exempted by
Texas Local Gov’t Code Sec. 245.004 and therefore
will be applied to all development projects (no vesting).
2. Notice procedure to those who previously received a formal vested rights determination or development rights permit and who may be affected by this change in the code.