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08/19/2019-CC-Agenda Packet-Work SessionAGENDA CITY COUNCIL WORK SESSION MONDAY, AUGUST 19, 2019 6:00 AM 502 ELM STREET SANGER, TEXAS 1.Call Meeting to Order 2.Economic Development Update Economic Development Quarterly Update. 3.Update on Public Works Projects Provide Update on the Peach Street Pipe Bursting Project and the Street Rehabilitation Project. 4.Legislative Update Discuss Recent House Bills Passed by the Eighty­Sixth Legislature as They Relate to Development Services. 5.Overview of Items on the Regular Agenda 6.Adjourn I, the undersigned authority, do hereby certify that this Notice of Meeting was posted on the City Website, and on the bulletin board, at the City Hall of the City of Sanger, Texas, a place convenient and readily accessible to the general public at all times. Said notice was posted on the following date and time, and remained posted continuously for at least 72 hours prior to the scheduled time of said meeting and shall remain posted until meeting is adjourned. August 16, 2019 at 11:30 AM Cheryl Price City Secretary City of Sanger, Texas Date/Time Posted This facility is wheelchair accessible and accessible parking spaces are available. Requests for additional accommodations or interpretive services must be made 48 hours prior to this meeting. Please contact the City Secretary's office at (940) 458­7930 for further information. Page 1 CITY COUNCIL AGENDA MEMO AGENDA ITEM NO. 2. AGENDA MEETING DATE: August 19, 2019 TO: Alina Ciocan, City Manager FROM: Shani Bradshaw, Director of Economic Development ITEM/CAPTION: Economic Development Update Economic Development Quarterly Update. AGENDA TYPE: Work Session ACTION REQUESTED:  Presentation  BACKGROUND: Staff provides a quarterly update to the City Council on economic activity. LEGAL/BOARD COMMISSION RECOMMENDATIONS/CITIZEN NOTICE FEEDBACK: N/A FINANCIAL SUMMARY ­ FUNDING/FISCAL IMPACT: N/A FUNDS: N/A STAFF RECOMMENDATION/ACTION DESIRED: N/A Page 2 CITY COUNCIL AGENDA MEMO AGENDA ITEM NO. 3. AGENDA MEETING DATE: August 19, 2019 TO: Alina Ciocan, City Manager FROM: James Berman, Public Works Director ITEM/CAPTION: Update on Public Works Projects Provide Update on the Peach Street Pipe Bursting Project and the Street Rehabilitation Project. AGENDA TYPE: Work Session, Presentation ACTION REQUESTED:  N/A BACKGROUND: N/A LEGAL/BOARD COMMISSION RECOMMENDATIONS/CITIZEN NOTICE FEEDBACK: N/A FINANCIAL SUMMARY ­ FUNDING/FISCAL IMPACT: N/A FUNDS: N/A STAFF RECOMMENDATION/ACTION DESIRED: N/A Page 3 CITY COUNCIL AGENDA MEMO AGENDA ITEM NO. 4. AGENDA MEETING DATE: August 19, 2019 TO: Alina Ciocan, City Manager FROM: Ramie Hammonds, Development Services Director ITEM/CAPTION: Legislative Update Discuss Recent House Bills Passed by the Eighty­Sixth Legislature as They Relate to Development Services. AGENDA TYPE: Work Session ACTION REQUESTED:   BACKGROUND: The State of Texas recently passed HB 2439 and HB 3167. These bills will go in effect on September 1, 2019. HB 2439 relates to materials used in construction of a building. HB 3167 limits the time a city has to approve a subdivision plan, subdivision construction plan, site plan, land development plan, site development plan, preliminary plat, general plat, final plat, and replat.  LEGAL/BOARD COMMISSION RECOMMENDATIONS/CITIZEN NOTICE FEEDBACK: N/A FINANCIAL SUMMARY ­ FUNDING/FISCAL IMPACT: N/A FUNDS: N/A STAFF RECOMMENDATION/ACTION DESIRED: N/A ATTACHMENTS: Description Upload Date Type Page 4 CITY COUNCIL AGENDA MEMOAGENDA ITEM NO. 4.AGENDA MEETING DATE: August 19, 2019TO: Alina Ciocan, City ManagerFROM: Ramie Hammonds, Development Services DirectorITEM/CAPTION:Legislative UpdateDiscuss Recent House Bills Passed by the Eighty­Sixth Legislature as They Relate to Development Services.AGENDA TYPE: Work SessionACTION REQUESTED:  BACKGROUND:The State of Texas recently passed HB 2439 and HB 3167. These bills will go in effect on September 1, 2019. HB2439 relates to materials used in construction of a building. HB 3167 limits the time a city has to approve a subdivisionplan, subdivision construction plan, site plan, land development plan, site development plan, preliminary plat, generalplat, final plat, and replat. LEGAL/BOARD COMMISSION RECOMMENDATIONS/CITIZEN NOTICE FEEDBACK:N/AFINANCIAL SUMMARY ­ FUNDING/FISCAL IMPACT:N/AFUNDS:N/ASTAFF RECOMMENDATION/ACTION DESIRED:N/A ATTACHMENTS: Description Upload Date Type House Bill 2439 8/15/2019 Cover Memo House Bill 2439 Legal Q&A 8/15/2019 Cover Memo House Bill 3167 8/15/2019 Cover Memo House Bill 3167 Q&A 8/15/2019 Cover Memo Page 5 Page - 1 - H.B. No. 2439 AN ACT relating to certain regulations adopted by governmental entities for the building products, materials, or methods used in the construction or renovation of residential or commercial buildings. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Title 10, Government Code, is amended by adding Subtitle Z to read as follows: SUBTITLE Z. MISCELLANEOUS PROVISIONS PROHIBITING CERTAIN GOVERNMENTAL ACTIONS CHAPTER 3000. GOVERNMENTAL ACTION AFFECTING RESIDENTIAL AND COMMERCIAL CONSTRUCTION Sec. 3000.001. DEFINITIONS. In this chapter: (1) "National model code" has the meaning assigned by Section 214.217, Local Government Code. (2) "Governmental entity" has the meaning assigned by Section 2007.002. Sec. 3000.002. CERTAIN REGULATIONS REGARDING BUILDING PRODUCTS, MATERIALS, OR METHODS PROHIBITED. (a) Notwithstanding any other law and except as provided by Subsection (d), a Page 6 H.B. No. 2439 Page -2 - governmental entity may not adopt or enforce a rule, charter provision, ordinance, order, building code, or other regulation that: (1) prohibits or limits, directly or indirectly, the use or installation of a building product or material in the construction, renovation, maintenance, or other alteration of a residential or commercial building if the building product or material is approved for use by a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building; or (2) establishes a standard for a building product, material, or aesthetic method in construction, renovation, maintenance, or other alteration of a residential or commercial building if the standard is more stringent than a standard for the product, material, or aesthetic method under a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building. (b) A governmental entity that adopts a building code governing the construction, renovation, maintenance, or other alteration of a residential or commercial building may amend a provision of the building code to conform to local concerns if the amendment does not conflict with Subsection (a). Page 7 H.B. No. 2439 Page -3 - (c) This section does not apply to: (1) a program established by a state agency that requires particular standards, incentives, or financing arrangements in order to comply with requirements of a state or federal funding source or housing program; (2) a requirement for a building necessary to consider the building eligible for windstorm and hail insurance coverage under Chapter 2210, Insurance Code; (3) an ordinance or other regulation that regulates outdoor lighting that is adopted for the purpose of reducing light pollution and that: (A) is adopted by a governmental entity that is certified as a Dark Sky Community by the International Dark-Sky Association as part of the International Dark Sky Places Program; or (B) applies to outdoor lighting within five miles of the boundary of a military base in which an active training program is conducted; (4) an ordinance or order that: (A) regulates outdoor lighting; and (B) is adopted under Subchapter B, Chapter 229, Local Government Code, or Subchapter B, Chapter 240, Local Government Code; Page 8 H.B. No. 2439 Page -4 - (5) a building located in a place or area designated for its historical, cultural, or architectural importance and significance that a municipality may regulate under Section 211.003(b), Local Government Code, if the municipality: (A) is a certified local government under the National Historic Preservation Act (54 U.S.C. Section 300101 et seq.); or (B) has an applicable landmark ordinance that meets the requirements under the certified local government program as determined by the Texas Historical Commission; (6) a building located in a place or area designated for its historical, cultural, or architectural importance and significance by a governmental entity, if designated before April 1, 2019; (7) a building located in an area designated as a historic district on the National Register of Historic Places; (8) a building designated as a Recorded Texas Historic Landmark; (9) a building designated as a State Archeological Landmark or State Antiquities Landmark; (10) a building listed on the National Register of Historic Places or designated as a landmark by a governmental entity; Page 9 H.B. No. 2439 Page -5 - (11) a building located in a World Heritage Buffer Zone; and (12) a building located in an area designated for development, restoration, or preservation in a main street city under the main street program established under Section 442.014. (d) A municipality that is not a municipality described by Subsection (c)(5)(A) or (B) may adopt or enforce a regulation described by Subsection (a) that applies to a building located in a place or area designated on or after April 1, 2019, by the municipality for its historical, cultural, or architectural importance and significance, if the municipality has the voluntary consent from the building owner. (e) A rule, charter provision, ordinance, order, building code, or other regulation adopted by a governmental entity that conflicts with this section is void. Sec. 3000.003. INJUNCTION. (a) The attorney general or an aggrieved party may file an action in district court to enjoin a violation or threatened violation of Section 3000.002. (b) The court may grant appropriate relief. (c) The attorney general may recover reasonable attorney's fees and costs incurred in bringing an action under this section. (d) Sovereign and governmental immunity to suit is waived and abolished only to the extent necessary to enforce this chapter. Page 10 H.B. No. 2439 Page -6 - Sec. 3000.004. OTHER PROVISIONS NOT AFFECTED. This chapter does not affect provisions regarding the installation of a fire sprinkler protection system under Section 1301.551(i), Occupations Code, or Section 775.045(a)(1), Health and Safety Code. Sec. 3000.005. SEVERABILITY. If any provision of a rule, charter provision, ordinance, order, building code, or other regulation described by Section 3000.002(a) is held invalid under this chapter, the invalidity does not affect other provisions or applications of the rule, charter provision, ordinance, order, building code, or other regulation that can be given effect without the invalid provision or application, and to this end the provisions of the rule, charter provision, ordinance, order, building code, or other regulation are severable. SECTION 2. This Act takes effect September 1, 2019. Page 11 H.B. No. 2439 Page -7 - ______________________________ ______________________________ President of the Senate Speaker of the House I certify that H.B. No. 2439 was passed by the House on April 30, 2019, by the following vote: Yeas 124, Nays 21, 2 present, not voting; and that the House concurred in Senate amendments to H.B. No. 2439 on May 23, 2019, by the following vote: Yeas 133, Nays 9, 1 present, not voting. ______________________________ Chief Clerk of the House I certify that H.B. No. 2439 was passed by the Senate, with amendments, on May 19, 2019, by the following vote: Yeas 26, Nays 5. ______________________________ Secretary of the Senate APPROVED: __________________ Date __________________ Governor Page 12 Page 1 of 5 H.B. 2439 (2019) Legal Q&A Scott Houston 1. What is H.B. 2439? H.B. 2439 by Representative Dade Phelan (R – Beaumont) is effective September 1, 2019, and generally provides – with some exceptions – that a governmental entity, including a city, may not adopt or enforce a rule, charter provision, ordinance, order, building code, or other regulation that: (1) prohibits or limits, directly or indirectly, the use or installation of a building product or material in the construction, renovation, maintenance, or other alteration of a residential or commercial building if the building product or material is approved for use by a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building; or (2) establishes a standard for a building product, material, or aesthetic method in construction, renovation, maintenance, or other alteration of a residential or commercial building if the standard is more stringent than a standard for the product, material, or aesthetic method under a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building. See TEXAS GOV’T CODE Section 3000.002(a)(1) & (2). A rule, charter provision, ordinance, order, building code, or other regulation adopted by a city that conflicts with the bill is void. 3000.002(e). 2. Why was the bill needed? According to the Texas House Business and Commerce Committee Report: There have been concerns raised regarding the elimination of consumer and builder choice in construction through overly restrictive local municipal zoning ordinances, building codes, design guidelines, and architectural standards. Critics argue that these restrictive ordinances, codes, guidelines, and standards create monopolies, increase the cost of construction, and ultimately price thousands of Texans out of the housing market. C.S.H.B. 2439 seeks to address these concerns and eliminate the ability of a governmental entity to enact overly restrictive, vendor-driven building regulations. In other words, the undertone was that cities were enacting ordinances that required builders to use products available from only one or a few sources to benefit those vendors. Of course, the bill goes much, much further than that. Legislators are already hearing from city officials about the bill’s detrimental affects. 3. What is meant by a city regulation that “prohibits or limits, directly or indirectly, the use or installation of a building product or material in the construction, renovation, maintenance, or other alteration of a residential or commercial building if the building product or material is approved for use by a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building?” Page 13 Page 2 of 5 The best way to understand this core provision of the bill is to break it down into two elements: • The bill clearly applies only to residential or commercial “buildings.” 3000.002(a)(1). Those terms are not defined, so their normal meaning applies. 311.011. That means it is safe to say that single- and multi-family homes, as well apartments, are subject to the bill’s limitations. Commercial buildings typically include retail and warehouses, but not industrial or more intense uses. A city can define the terms by ordinance, but shouldn’t be unreasonable. In other words, it doesn’t make sense to classify a single-family home as an industrial use. “Construction, renovation, maintenance, or other alteration” appears to cover just about any type of change to a building. • A “building product or material [that] is approved for use by a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building.” 3000.002(a)(1). Most agree that the language above references the International Code Council model codes and a handful of others. Currently, cities should normally be operating under: (1) the International Residential Code (IRC) for residential construction; (2) the National Electrical Code (NEC) for electrical construction in both residential and commercial construction; and (3) the International Energy Conservation Code (IECC) and the International Building Code (IBC) for all construction other than single-family residential. With regard to plumbing codes, a city may be operating under the plumbing provisions of the IRC and/or either the plumbing provisions of the Uniform Plumbing Code (UPC) or International Plumbing Code (IPC). Other ICC Codes includes the International Fire Code (IFC), the International Fuel Gas Code (IFGS), the International Property Maintenance Code, and several more. The ICC code cycles update every three years. The last three code cycles as of 2019 are 2018, 2015, and 2012. Examples of materials allowed by the 2018 IRC for home exteriors include, among others: (1) concrete, stone, or masonry; (2) fiber cement siding; (3) horizontal aluminum; (4) vinyl siding; or (5) wood siding. See Table R703.3(1). A city that has, through an IRC amendment or any other regulation, mandated a percent masonry requirement is thus preempted. A builder can now use vinyl siding or wood siding if he or she chooses because those are a “building product or material [that] is approved for use by a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building.” The bills prohibitions aren’t limited to aesthetic building products or materials. Any city that has amended any ICC or other code should review those amendments with their building official and legal counsel to determine if an amendment runs afoul of the bill’s prohibitions. Page 14 Page 3 of 5 4. What is meant by a city regulation that “establishes a standard for a building product, material, or aesthetic method in construction, renovation, maintenance, or other alteration of a residential or commercial building if the standard is more stringent than a standard for the product, material, or aesthetic method under a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building?” Most agree that any city regulation requiring that a building look a certain way (i.e., above-and- beyond an appearance that comes about through compliance with minimum national model code standards) is prohibited. 3000.002(a)(2). Some have argued that architectural features, front elevation requirements, roof pitch, window size, and similar requirements may be preempted. Of course, those things may or may not be addressed by a base international model code. If they are not, they are not preempted. In any case, each city should consult its attorney on specifics. 5. Can a city continue to adopt amendments to its building codes? Yes, but they can’t conflict with the prohibitions in the bill. A city that adopts a building code governing the construction, renovation, maintenance, or other alteration of a residential or commercial building may amend a provision of the building code to conform to local concerns if the amendment does not conflict with the prohibitions discussed in questions 3 and 4, above. 3000.002(b). The prohibition against amendments that conflict with the bill overrides authority in other law to make amendments. See, e.g., TEX. LOC. GOV’T CODE 214.212(c); 214.214(b); 214.216(c). 6. May a city use private deed restrictions to require certain materials or methods? Probably not. State law authorizes the City of Houston and any city that doesn’t have zoning to enforce certain private deed restrictions. TEX. LOC. GOV’T CODE Subchapter F. (an authorized city may enforce a deed restriction that “regulates architectural features of a structure”). However, the language in H.B. 2439 arguably preempts such a regulation because it would be “establishing a standard or limiting a product.” Of course, private deed restrictions between property owners are still enforceable. 7. Does a city have any option at all with regard to controlling building materials or construction methods? That’s debatable, but the obvious method is by agreement. A city can enter into an agreement wherein a person voluntarily agrees to abide by certain standards. For commercial construction, the incentivizing tool would be a Local Government Code “Chapter 380 agreement.” For residential and commercial, it would be a “neighborhood empowerment zone” under Chapter Page 15 Page 4 of 5 378 of the Local Government Code. Property and/or sales tax abatements could be other options. 8. Are some structures exempt from the prohibitions in the bill? Yes. The prohibitions in questions 3 and 4, above, do not apply to: 1. a program established by a state agency that requires particular standards, incentives, or financing arrangements in order to comply with requirements of a state or federal funding source or housing program; 2. a requirement for a building necessary to consider the building eligible for windstorm and hail insurance coverage; 3. an ordinance or other regulation that: (i) regulates outdoor lighting for the purpose of reducing light pollution; and (ii) is adopted by a city that is certified as a Dark Sky Community by the International Dark-Sky Association as part of the International Dark Sky Places Program; 4. an ordinance or order that: (i) regulates outdoor lighting; and (ii) is adopted under the authority of state law; or 5. a building located in a place or area designated for its historical, cultural, or architectural importance and significance that a city may regulate through zoning, if the city: (i) is a certified local government under the National Historic Preservation Act; or (ii) has an applicable landmark ordinance that meets the requirements under the certified local government program as determined by the Texas Historical Commission (a city that doesn’t meet (i) or (ii) can adopt or enforce a regulation in questions 3 and 4, above, that applies to a building located in a place or area designated on or after April 1, 2019, by the city for its historical, cultural, or architectural importance and significance, if the city has the voluntary consent from the building owner); 6. a building located in a place or area designated for its historical, cultural, or architectural importance and significance by a city, if designated before April 1, 2019; 7. a building located in an area designated as a historic district on the National Register of Historic Places; 8. a building designated as a Recorded Texas Historic Landmark; 9. a building designated as a State Archeological Landmark or State Antiquities Landmark; 10. a building listed on the National Register of Historic Places or designated as a landmark by a city; 11. a building located in a World Heritage Buffer Zone; or 12. a building located in an area designated for development, restoration, or preservation in a main street city under the main street program. 3000.002(c)(1)-(12); 3000.002(d). In addition, the bill does not affect provisions regarding the installation of a fire sprinkler protection system under Section 1301.551(i), Occupations Code. 3000.004. Section 1301.551(i) provides that: Notwithstanding any other provision of state law, after January 1, 2009, a municipality may not enact an ordinance, bylaw, order, building code, or rule requiring the installation of a multipurpose residential fire protection sprinkler system or any other Page 16 Page 5 of 5 fire sprinkler protection system in a new or existing one- or two-family dwelling. A municipality may adopt an ordinance, bylaw, order, or rule allowing a multipurpose residential fire protection sprinkler specialist or other contractor to offer, for a fee, the installation of a fire sprinkler protection system in a new one- or two-family dwelling. 9. How are the bill’s prohibitions enforced? The attorney general or an aggrieved party may file an action in district court to enjoin a violation or threatened violation of the bill. 3000.003. The attorney general may recover reasonable attorney’s fees and costs incurred in bringing an action under the bill, and sovereign and governmental immunity to suit is waived and abolished to the extent necessary to enforce the bill. Id. Page 17 H.B.ANo.A3167 AN ACT relating to county and municipal approval procedure for land development applications. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTIONA1.AASection 212.001, Local Government Code, is amended by amending Subdivision (2) and adding Subdivision (3) to read as follows: (2)AA"Plan" means a subdivision development plan, including a subdivision plan, subdivision construction plan, site plan, land development application, and site development plan. (3)AA"Plat" includes a preliminary plat, general plan, final plat, and replat. SECTIONA2.AASubchapter A, Chapter 212, Local Government Code, is amended by adding Section 212.0085 to read as follows: Sec.A212.0085.AAAPPROVAL PROCEDURE: APPLICABILITY. The approval procedures under this subchapter apply to a municipality regardless of whether the municipality has entered into an interlocal agreement, including an interlocal agreement between a municipality and county under Section 242.001(d). SECTIONA3.AAThe heading to Section 212.009, Local Government Code, is amended to read as follows: Sec.A212.009.AAAPPROVAL PROCEDURE: INITIAL APPROVAL. SECTIONA4.AASection 212.009, Local Government Code, is amended by amending Subsections (a), (b), (c), and (d) and adding 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 Page 18 Subsections (b-1) and (b-2) to read as follows: (a)AAThe municipal authority responsible for approving plats shall approve, approve with conditions, or disapprove [act on] a plan or plat within 30 days after the date the plan or plat is filed. A plan or plat is [considered] approved by the municipal authority unless it is disapproved within that period and in accordance with Section 212.0091. (b)AAIf an ordinance requires that a plan or plat be approved by the governing body of the municipality in addition to the planning commission, the governing body shall approve, approve with conditions, or disapprove [act on] the plan or plat within 30 days after the date the plan or plat is approved by the planning commission or is [considered] approved by the inaction of the commission. A plan or plat is [considered] approved by the governing body unless it is disapproved within that period and in accordance with Section 212.0091. (b-1)AANotwithstanding Subsection (a) or (b), if a groundwater availability certification is required under Section 212.0101, the 30-day period described by those subsections begins on the date the applicant submits the groundwater availability certification to the municipal authority responsible for approving plats or the governing body of the municipality, as applicable. (b-2)AANotwithstanding Subsection (a) or (b), the parties may extend the 30-day period described by those subsections for a period not to exceed 30 days if: (1)AAthe applicant requests the extension in writing to the municipal authority responsible for approving plats or the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 H.B.ANo.A3167 2 Page 19 governing body of the municipality, as applicable; and (2)AAthe municipal authority or governing body, as applicable, approves the extension request. (c)AAIf a plan or plat is approved, the municipal authority giving the approval shall endorse the plan or plat with a certificate indicating the approval. The certificate must be signed by: (1)AAthe authority ’s presiding officer and attested by the authority ’s secretary; or (2)AAa majority of the members of the authority. (d)AAIf the municipal authority responsible for approving plats fails to approve, approve with conditions, or disapprove [act on] a plan or plat within the prescribed period, the authority on the applicant ’s request shall issue a certificate stating the date the plan or plat was filed and that the authority failed to act on the plan or plat within the period. The certificate is effective in place of the endorsement required by Subsection (c). SECTIONA5.AASubchapter A, Chapter 212, Local Government Code, is amended by adding Sections 212.0091, 212.0093, 212.0095, 212.0096, 212.0097, and 212.0099 to read as follows: Sec.A212.0091.AAAPPROVAL PROCEDURE: CONDITIONAL APPROVAL OR DISAPPROVAL REQUIREMENTS. (a) A municipal authority or governing body that conditionally approves or disapproves a plan or plat under this subchapter shall provide the applicant a written statement of the conditions for the conditional approval or reasons for disapproval that clearly articulates each specific condition for the conditional approval or reason for disapproval. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 H.B.ANo.A3167 3 Page 20 (b)AAEach condition or reason specified in the written statement: (1)AAmust: (A)AAbe directly related to the requirements under this subchapter; and (B)AAinclude a citation to the law, including a statute or municipal ordinance, that is the basis for the conditional approval or disapproval, if applicable; and (2)AAmay not be arbitrary. Sec.A212.0093.AAAPPROVAL PROCEDURE: APPLICANT RESPONSE TO CONDITIONAL APPROVAL OR DISAPPROVAL. After the conditional approval or disapproval of a plan or plat under Section 212.0091, the applicant may submit to the municipal authority or governing body that conditionally approved or disapproved the plan or plat a written response that satisfies each condition for the conditional approval or remedies each reason for disapproval provided. The municipal authority or governing body may not establish a deadline for an applicant to submit the response. Sec.A212.0095.AAAPPROVAL PROCEDURE: APPROVAL OR DISAPPROVAL OF RESPONSE. (a) A municipal authority or governing body that receives a response under Section 212.0093 shall determine whether to approve or disapprove the applicant ’s previously conditionally approved or disapproved plan or plat not later than the 15th day after the date the response was submitted. (b)AAA municipal authority or governing body that conditionally approves or disapproves a plan or plat following the submission of a response under Section 212.0093: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 H.B.ANo.A3167 4 Page 21 (1)AAmust comply with Section 212.0091; and (2)AAmay disapprove the plan or plat only for a specific condition or reason provided to the applicant under Section 212.0091. (c)AAA municipal authority or governing body that receives a response under Section 212.0093 shall approve a previously conditionally approved or disapproved plan or plat if the response adequately addresses each condition of the conditional approval or each reason for the disapproval. (d)AAA previously conditionally approved or disapproved plan or plat is approved if: (1)AAthe applicant filed a response that meets the requirements of Subsection (c); and (2)AAthe municipal authority or governing body that received the response does not disapprove the plan or plat on or before the date required by Subsection (a) and in accordance with Section 212.0091. Sec.A212.0096.AAAPPROVAL PROCEDURE: ALTERNATIVE APPROVAL PROCESS. (a) Notwithstanding Sections 212.009, 212.0091, 212.0093, and 212.0095, an applicant may elect at any time to seek approval for a plan or plat under an alternative approval process adopted by a municipality if the process allows for a shorter approval period than the approval process described by Sections 212.009, 212.0091, 212.0093, and 212.0095. (b)AAAn applicant that elects to seek approval under the alternative approval process described by Subsection (a) is not: (1)AArequired to satisfy the requirements of Sections 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 H.B.ANo.A3167 5 Page 22 212.009, 212.0091, 212.0093, and 212.0095 before bringing an action challenging a disapproval of a plan or plat under this subchapter; and (2)AAprejudiced in any manner in bringing the action described by Subdivision (1), including satisfying a requirement to exhaust any and all remedies. Sec.A212.0097.AAAPPROVAL PROCEDURE: WAIVER PROHIBITED. A municipal authority responsible for approving plats or the governing body of a municipality may not request or require an applicant to waive a deadline or other approval procedure under this subchapter. Sec.A212.0099.AAJUDICIAL REVIEW OF DISAPPROVAL. In a legal action challenging a disapproval of a plan or plat under this subchapter, the municipality has the burden of proving by clear and convincing evidence that the disapproval meets the requirements of this subchapter or any applicable case law. The court may not use a deferential standard. SECTIONA6.AASection 212.014, Local Government Code, is amended to read as follows: Sec.A212.014.AAREPLATTING WITHOUT VACATING PRECEDING PLAT. A replat of a subdivision or part of a subdivision may be recorded and is controlling over the preceding plat without vacation of that plat if the replat: (1)AAis signed and acknowledged by only the owners of the property being replatted; (2)AAis approved[, after a public hearing on the matter at which parties in interest and citizens have an opportunity to be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 H.B.ANo.A3167 6 Page 23 heard,] by the municipal authority responsible for approving plats; and (3)AAdoes not attempt to amend or remove any covenants or restrictions. SECTIONA7.AASection 212.015, Local Government Code, is amended by adding Subsections (a-1), (f), and (g) and amending Subsection (b) to read as follows: (a-1)AAIf a proposed replat described by Subsection (a) requires a variance or exception, a public hearing must be held by the municipal planning commission or the governing body of the municipality. (b)AANotice of the hearing required under Subsection (a-1) [Section 212.014] shall be given before the 15th day before the date of the hearing by: (1)AApublication in an official newspaper or a newspaper of general circulation in the county in which the municipality is located; and (2)AAby written notice, with a copy of Subsection (c) attached, forwarded by the municipal authority responsible for approving plats to the owners of lots that are in the original subdivision and that are within 200 feet of the lots to be replatted, as indicated on the most recently approved municipal tax roll or in the case of a subdivision within the extraterritorial jurisdiction, the most recently approved county tax roll of the property upon which the replat is requested. The written notice may be delivered by depositing the notice, properly addressed with postage prepaid, in a post office or postal depository within the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 H.B.ANo.A3167 7 Page 24 boundaries of the municipality. (f)AAIf a proposed replat described by Subsection (a) does not require a variance or exception, the municipality shall, not later than the 15th day after the date the replat is approved, provide written notice by mail of the approval of the replat to each owner of a lot in the original subdivision that is within 200 feet of the lots to be replatted according to the most recent municipality or county tax roll. This subsection does not apply to a proposed replat if the municipal planning commission or the governing body of the municipality holds a public hearing and gives notice of the hearing in the manner provided by Subsection (b). (g)AAThe notice of a replat approval required by Subsection (f) must include: (1)AAthe zoning designation of the property after the replat; and (2)AAa telephone number and e-mail address an owner of a lot may use to contact the municipality about the replat. SECTIONA8.AASubchapter A, Chapter 232, Local Government Code, is amended by adding Section 232.0023 to read as follows: Sec.A232.0023.AAAPPROVAL PROCEDURE: APPLICABILITY. The plat application approval procedures under this subchapter apply to a county regardless of whether the county has entered into an interlocal agreement, including an interlocal agreement between a municipality and county under Section 242.001(d). SECTIONA9.AAThe heading to Section 232.0025, Local Government Code, is amended to read as follows: Sec.A232.0025.AAAPPROVAL PROCEDURE: TIMELY APPROVAL OF PLATS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 H.B.ANo.A3167 8 Page 25 AND PLANS. SECTIONA10.AASection 232.0025, Local Government Code, is amended by amending Subsections (d), (f), (g), (h), and (i), and adding Subsection (d-1) to read as follows: (d)AAExcept as provided by Subsection (f), the commissioners court or the court ’s designee shall approve, approve with conditions, or disapprove [take final action on] a plat application[, including the resolution of all appeals,] not later than the 30th [60th] day after the date the [a] completed [plat] application is received by the commissioners court or the court ’s designee.An application is approved by the commissioners court or the court ’s designee unless the application is disapproved within that period and in accordance with Section 232.0026. (d-1)AANotwithstanding Subsection (d), if a groundwater availability certification is required under Section 232.0032, the 30-day period described by that subsection begins on the date the applicant submits the groundwater availability certification to the commissioners court or the court ’s designee, as applicable. (f)AAThe 30-day [60-day] period under Subsection (d): (1)AAmay be extended for a [reasonable] period not to exceed 30 days, if: (A)AArequested and agreed to in writing by the applicant and approved by the commissioners court or the court ’s designee;or (B)AA[(2) may be extended 60 additional days if] Chapter 2007, Government Code, requires the county to perform a takings impact assessment in connection with the [a] plat 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 H.B.ANo.A3167 9 Page 26 application; and (2)A[(3)]AAapplies only to a decision wholly within the control of the commissioners court or the court ’s designee. (g)AAThe commissioners court or the court ’s designee shall make the determination under Subsection (f)(1) [(f)(2)] of whether the 30-day [60-day] period will be extended not later than the 20th day after the date a completed plat application is received by the commissioners court or the court ’s designee. (h)AAThe commissioners court or the court ’s designee may not require [compel] an applicant to waive the time limits or approval procedure contained in this subchapter [section]. (i)AAIf the commissioners court or the court ’s designee fails to approve, approve with conditions, or disapprove a plat application [take final action on the plat] as required by this subchapter [Subsection (d)]: (1)AAthe commissioners court shall refund the greater of the unexpended portion of any [plat] application fee or deposit or 50 percent of an [a plat] application fee or deposit that has been paid; (2)AAthe [plat] application is granted by operation of law; and (3)AAthe applicant may apply to a district court in the county where the tract of land is located for a writ of mandamus to compel the commissioners court to issue documents recognizing the plat application ’s [plat ’s] approval. SECTIONA11.AASubchapter A, Chapter 232, Local Government Code, is amended by adding Sections 232.0026, 232.0027, 232.0028, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 H.B.ANo.A3167 10 Page 27 232.00285, and 232.0029 to read as follows: Sec.A232.0026.AAAPPROVAL PROCEDURE: CONDITIONAL APPROVAL OR DISAPPROVAL REQUIREMENTS. (a) A commissioners court or designee that conditionally approves or disapproves of a plat application under this subchapter shall provide the applicant a written statement of the conditions for the conditional approval or the reasons for disapproval that clearly articulates each specific condition for the conditional approval or reason for disapproval. (b)AAEach condition or reason specified in the written statement: (1)AAmust: (A)AAbe directly related to the requirements of this subchapter; and (B)AAinclude a citation to the law, including a statute or order, that is the basis for the conditional approval or disapproval, if applicable; and (2)AAmay not be arbitrary. Sec.A232.0027.AAAPPROVAL PROCEDURE: APPLICANT RESPONSE TO CONDITIONAL APPROVAL OR DISAPPROVAL. After the conditional approval or disapproval of a plat application under Section 232.0026, the applicant may submit to the commissioners court or designee that conditionally approved or disapproved the application a written response that satisfies each condition for the conditional approval or remedies each reason for disapproval provided. The commissioners court or designee may not establish a deadline for an applicant to submit the response. Sec.A232.0028.AAAPPROVAL PROCEDURE: APPROVAL OR DISAPPROVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 H.B.ANo.A3167 11 Page 28 OF RESPONSE. (a) A commissioners court or designee that receives a response under Section 232.0027 shall determine whether to approve or disapprove the applicant ’s previously conditionally approved or disapproved plat application not later than the 15th day after the date the response was submitted under Section 232.0027. (b)AAA commissioners court or designee that conditionally approves or disapproves a plat application following the submission of a response under Section 232.0027: (1)AAmust comply with Section 232.0026; and (2)AAmay disapprove the application only for a specific condition or reason provided to the applicant for the original application under Section 232.0026. (c)AAA commissioners court or designee that receives a response under Section 232.0027 shall approve a previously conditionally approved or disapproved plat application if the applicant ’s response adequately addresses each condition for the conditional approval or each reason for the disapproval. (d)AAA previously conditionally approved or disapproved plat application is approved if: (1)AAthe applicant filed a response that meets the requirements of Subsection (c); and (2)AAthe commissioners court or designee that received the response does not disapprove the application on or before the date required by Subsection (a) and in accordance with Section 232.0026. Sec.A232.00285.AADEVELOPMENT PLAN REVIEW. (a) In this section, "development plan" includes a preliminary plat, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 H.B.ANo.A3167 12 Page 29 preliminary subdivision plan, subdivision construction plan, site plan, general plan, land development application, or site development plan. (b)AAUnless explicitly authorized by another law of this state, a county may not require a person to submit a development plan during the plat approval process required by this subchapter. If a county is authorized under another law of this state to require approval of a development plan, the county must comply with the approval procedures under this subchapter during the approval process. Sec.A232.0029.AAJUDICIAL REVIEW OF DISAPPROVAL. In a legal action challenging a disapproval of a plat application under this subchapter, the county has the burden of proving by clear and convincing evidence that the disapproval meets the requirements of this subchapter or any applicable case law. The court may not use a deferential standard. SECTIONA12.AASection 232.0025(e), Local Government Code, is repealed. SECTIONA13.AAThe change in law made by this Act applies only to a plat application filed on or after the effective date of this Act. A development or plan application filed before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose. SECTIONA14.AAThis Act takes effect September 1, 2019. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H.B.ANo.A3167 13 Page 30 ______________________________ ______________________________ AAAAPresident of the Senate Speaker of the HouseAAAAAA I certify that H.B. No. 3167 was passed by the House on May 2, 2019, by the following vote:AAYeas 119, Nays 18, 1 present, not voting. ______________________________ Chief Clerk of the HouseAAA I certify that H.B. No. 3167 was passed by the Senate on May 21, 2019, by the following vote:AAYeas 27, Nays 3, 1 present, not voting. ______________________________ Secretary of the SenateAAAA APPROVED:AA_____________________ AAAAAAAAAAAAAAAAAAAADateAAAAAAAAAA AAAAAAAAAAA_____________________ AAAAAAAAAAAAAAAAAAGovernorAAAAAAA H.B.ANo.A3167 14 Page 31 Page 1 of 9 H.B. 3167 (2019) Legal Q&A Scott Houston 1. What is H.B. 3167? House Bill 3167 by Rep. Tom Oliverson (R – Houston) is legislation that becomes effective on September 1, 2019. The bill makes numerous changes to the site plan and subdivision platting approval process, and it will require most cities to make changes to their subdivision ordinance, zoning ordinance, and/or unified development code approval processes. A chart of the process required by the bill is included at the end of this Q&A. 2. Why was the bill needed? The Texas House Land and Resource Management Committee Report states that: Concerns have been raised regarding the process for plat and land development application approval by political subdivisions. It has been suggested that some political subdivisions circumvent statutory timelines for approving an application by simply denying the application with generic comments that do not fully address specific deficiencies with the application. C.S.H.B. 3167 seeks to provide greater certainty and clarity for the process by setting out provisions relating to county and municipal approval procedures for land development applications. In other words, the bill is meant to force cities to speed up the site plan/subdivision plat approval process, and to provide more information when a plan or plat isn’t approved. In reality, it may create red tape that slows the process down and/or results in substandard planning. A list of witnesses for and against the bill is available at: https://capitol.texas.gov/tlodocs/86R/witlistbill/pdf/HB03167H.pdf#navpanes=0. 3. What types of development applications are subject to H.B. 3167? The bill applies to plans and plats. It defines a “plan” to mean a subdivision development plan, including a subdivision plan, subdivision construction plan, site plan, land development application, and site development plan. TEX. LOC. GOV’T CODE § 212.001(2). It defines “plat” to include a preliminary plat, general plan, final plat, and replat. Id. § 212.001(3). Many have questioned the meaning of these terms. Does the reference to “site plan” only refer to that term as used in Chapter 212, Subchapter B? And what does the term “general plan” refer to? That term is mentioned in current law in a handful of places. Id. §§ 212.010; 212.044; 212.047. As mentioned in those sections, the term may be referring to the city’s comprehensive plan. In the context of H.B. 3167, the term is included in the definition of “plat.” The City of Houston’s ordinance, which was praised by some developers, defines the term “general plan” as “a site plan submitted for the purpose of establishing a street system for a large tract to be developed in sections. The General Plan is submitted with the subdivision plat for the first section being platted. The General Plan is valid for 4 years and can be extended by planning commission Page 32 Page 2 of 9 action. Upon planning commission approval, the General Plan establishes the street system for future development.” Thus, it appears that the term “general plan” in H.B. 3167 means something different than where it appears in other places in Chapter 212. The bill also provides that the approval procedures as amended by the bill apply to a city regardless of whether it has entered into an interlocal agreement, including an interlocal agreement between the city and county relating to extraterritorial jurisdiction subdivision platting agreement as required by state law. Id. § 212.0085. 4. What application materials are included in the definition of “plan?” Looking at the definitions in the question above, some say that essentially any type of plan that shows the layout of a project is subject to the bill. The bill uses some terms that aren’t common in planning, such as including “general plan” in the definition of “plan.” No one is certain what a “general plan” means, so each city should decide and define that term in its ordinance(s). The bill amends Local Government Code Chapter 212, which relates to subdivision platting. It seems to insert a “site plan” and “site development plan” into the subdivision plat approval process, but those are traditionally based on the zoning authority in Chapter 211. As such, most attorneys argue that a zoning site plan isn’t subject to the bill’s requirements. Because of the ambiguity, each city may wish to define certain term(s) in its ordinance for clarity. 5. How does H.B. 3167 change the plan/plat approval timeline? The bill requires the municipal authority responsible for approving plats to take the following action with regard to the “initial approval” of a plan or plat within 30 days after the date the plan or plat is filed: (1) approve, (2) approve with conditions, or (3) disapprove with explanation. Id. § 212.009(a). Current law defines “the municipal authority responsible for approving plats” as the municipal planning commission or, if the city has no planning commission, the governing body of the city. Also under current law, the governing body by ordinance may require the approval of the governing body in addition to that of the municipal planning commission. Id. § 212.006(a). If an ordinance requires that a plan or plat be approved by the governing body of the city in addition to the planning commission, the governing body shall approve, approve with conditions, or disapprove the plan or plat within 30 days after the date the plan or plat is approved by the planning commission or is approved by the inaction of the commission, and a plan or plat is approved by the governing body unless it is approved with conditions or disapproved within that period. 6. May the city and applicant agree to extend the deadline in the question above? Page 33 Page 3 of 9 Yes, but only if the applicant (not the city) requests the extension. The parties may extend the 30-day period described above for a period not to exceed 30 days if: (1) the applicant requests the extension in writing to the municipal authority responsible for approving plats or the governing body of the municipality, as applicable; and (2) the municipal authority or governing body, as applicable, approves the extension request. Id. § 212.009(b-2). 7. What does a city do when it approves a plan or plat? If a plan or plat is approved, the municipal authority giving the approval shall endorse the plan or plat with a certificate indicating the approval. Id. § 212.009(c). 8. What if the municipal authority responsible for approving plats fails to approve, approve with conditions, or disapprove with explanation a plan or plat within the prescribed period? A plan or plat is approved by the municipal authority unless it is disapproved within the periods described above and in accordance with the bill’s procedures. Id. § 212.009(b). If that happens, the authority on the applicant’s request shall issue a certificate stating the date the plan or plat was filed and that the authority failed to act on the plan or plat within the period. Id. § 212.009(d). 9. What must a city do with regard to approval, approval with conditions, or disapproval with explanation? A municipal authority or governing body that conditionally approves or disapproves a plan or plat shall provide the applicant a written statement of the conditions for the conditional approval or reasons for disapproval that clearly articulates each specific condition for the conditional approval or reason for disapproval. Id. § 212.0091(a). Each condition or reason specified in the written statement: (1) must be directly related to the requirements under the subdivision platting law and include a citation to the law, including a statute or municipal ordinance, that is the basis for the conditional approval or disapproval, if applicable; and (2) may not be arbitrary. Id. § 212.0091(b). 10. If the municipal authority approves with conditions or disapproves with explanation, what is the applicant entitled to do? After the conditional approval or disapproval with explanation of a plan or plat, the applicant may submit to the municipal authority or governing body a written response that satisfies each condition for the conditional approval or remedies each reason for disapproval provided, and the municipal authority or governing body may not establish a deadline for an applicant to submit the response. Id. § 212.0093. 11. What must the city do with regard to the applicant’s written response? Page 34 Page 4 of 9 A municipal authority or governing body that receives a written response shall determine whether to “approve” or “disapprove [with explanation]” the applicant’s previously conditionally-approved or disapproved plan or plat not later than the 15th day after the date the response was submitted. Id. § 212.0095(a). Again, a city may not establish a deadline before which the applicant must submit the response. Id. § 212.0093 A municipal authority or governing body that receives a response shall approve a previously conditionally approved or disapproved plan or plat if the response adequately addresses each condition of the conditional approval or each reason for the disapproval. Id. § 212.0095(c). A previously conditionally-approved or disapproved plan or plat is approved if: (1) the applicant files a response that adequately addresses each condition of the conditional approval or each reason for disapproval, and (2) the municipal authority or governing body that receives the response does not disapprove the plan or plat on or before the 15th day the response was submitted. Id. § 212.0095(d). The two paragraphs above mean the plan or plat must be approved if: (1) the applicant’s written response addresses all the issues raised in the city’s prior approval with conditions or disapproval with explanation; and (2) no new issues are raised by the applicant’s written response. Id. § 212.0095(d)(2). What to do when new issues are raised by the applicant’s written response is the subject of some debate and is addressed in question 12, below. 12. What if the applicant’s written response changes the plan or plat in a way that creates new issues? At least two schools of thought exist in relation to what happens once the city receives the applicant’s written response: (1) the written response and 15-day decision period of the city continues repeatedly in relation to new issues raised by corrections; or (2) the city must disapprove with explanation a submission that creates new issues, which starts the process from the beginning. Under the first process, it appears that – if the applicant’s written response raises new issues – a city may, once again, “approve” or “disapprove with explanation” the plan or plat on or before the 15th day the response was submitted. Section 212.0095(d) supports that conclusion: (d) A previously conditionally approved or disapproved plan or plat is approved if: (1) the applicant filed a response that meets the requirements of Subsection (c); and (2) the municipal authority or governing body that received the response does not disapprove the plan or plat on or before the date required by Subsection (a) and in accordance with Section 212.0091. Disapproval must follow the process spelled out previously: • A municipal authority or governing body that conditionally approves or disapproves a plan or plat shall provide the applicant a written statement of the conditions for the conditional approval or reasons for disapproval that clearly articulates each specific Page 35 Page 5 of 9 condition for the conditional approval or reason for disapproval. Id. §§ 212.0095(b); 212.0091(a) (Note that (a) includes the “conditional approval” option, but a city can’t use that. It can only disapprove with explanation because it is limited to doing so by Section 212.0095(d)(2)). • Each condition or reason specified in the written statement: (1) must be directly related to the requirements under the subdivision platting law and include a citation to the law, including a statute or municipal ordinance, that is the basis for the conditional approval or disapproval, if applicable; and (2) may not be arbitrary. Id. §§ 212.0095(b); 212.0091(b) (Again, only disapproval with conditions is allowed at this stage). Presumably, the approval or disapproval with explanation for new issues within 15 days allows the applicant to once again submit a written response, which once again triggers the 15 day deadline. That process could conceivably continue until all issues have been addressed. The second process presumes that the applicant’s written submission and the city’s response to it within 15 days is a “one-and-done” proposition. That process interprets Sections 212.0095(b)(2) and (c)-(d) to allow approval if all of the items are corrected or disapproved with explanation if not. The disapproval with explanation would mean that the applicant starts again at the beginning by resubmitting the plan or plat. 13. Does the bill provide for an alternative plan or plat approval procedure? Yes, but only if they applicant agrees. An applicant may elect at any time to seek approval for a plan or plat under an alternative approval process adopted by a city if the process allows for a shorter approval period than the approval process described in the questions above. Id. § 212.0096. An applicant that elects to seek approval under the alternative approval process described above is not: (1) required to satisfy the requirements of the statutory approval process in the bill above before bringing an action challenging a disapproval of a plan or plat; or (2) prejudiced in any manner in bringing the action described by (1), including satisfying a requirement to exhaust any and all remedies. Id. § 212.0096(b). This alternative approval procedure may be a way to grant more authority to staff and speed up internal processes. An applicant would usually have nothing to lose by trying a city’s alternative process because the applicant could always opt back in to the procedures in the bill. 14. May a city require an applicant to waive any deadlines or procedures in the bill? Maybe, but only with regard to a plan, not a plat. A municipal authority responsible for approving plats or the governing body of a city may not request or require an applicant to waive a deadline or other approval procedure. Id. § 212.0097. The waiver prohibition applies only to “plats” and not to “plans,” which could allow a city to require a waiver for anything other than an actual plat, which is defined in the bill as a preliminary plat, general plan, final plat, and Page 36 Page 6 of 9 replat. Of course, the prohibition against establishing a deadline by which the applicant must submit a written response remains in place. Id. § 212.0093. 15. What is the burden of proof in a legal action challenging the disapproval of a plan or plat? In a legal action challenging a disapproval of a plan or plat, the city has the burden of proving by clear and convincing evidence that the disapproval meets the requirements of the subdivision platting law or any applicable case law, and the court may not use a “deferential standard.” Id. § 212.0099. 16. May a city require a plan or plat to meet administrative completeness requirements before being considered “filed?” May a city have a submittal calendar that corresponds to the city’s internal meetings process? The bill doesn’t appear to modify the authority of a city to require an administrative completeness review (i.e., meet a checklist of requirements) prior to being accepted for filing. A city could also continue to have a submittal calendar that corresponds, for example, to planning and zoning commission meetings. In other words, the bill doesn’t make any additions related to acceptance for filing requirements. Thus, if a city believes it had the authority to do so prior to the bill, it should be able to continue those practices. One exception is that, if a groundwater availability certification is required, the 30-day period begins on the date the applicant submits the groundwater availability certification to the municipal authority responsible for approving plats or the governing body, as applicable. Id. § 212.009(b-1). 17. How does the bill interact with Chapter 245 (the “permit vesting statute”)? Chapter 245, in sections 245.001(a) and (b), provides in relevant part that: Each regulatory agency shall consider the approval, disapproval, or conditional approval of an application for a permit solely on the basis of any orders, regulations, ordinances, rules, expiration dates, or other properly adopted requirements in effect at the time: (1) the original application for the permit is filed for review for any purpose, including review for administrative completeness; or (2) a plan for development of real property or plat application is filed with a regulatory agency. Rights to which a permit applicant is entitled under this chapter accrue on the filing of an original application or plan for development or plat application that gives the regulatory agency fair notice of the project and the nature of the permit sought. An application or plan is considered filed on the date the applicant delivers the application or plan to the regulatory agency or deposits the application or plan with the United States Postal Service by certified mail addressed to the regulatory agency. A certified mail receipt obtained by the applicant at the time of deposit is prima facie evidence of the date the application or plan was deposited with the United States Postal Service. Page 37 Page 7 of 9 The above means that an applicant could submit something for approval that would trigger vesting, but that doesn’t necessarily mean that the application is “filed” for purposes of H.B. 3167. However, Section 245.001(e) provides that: (e) A regulatory agency may provide that a permit application expires on or after the 45th day after the date the application is filed if: (1) the applicant fails to provide documents or other information necessary to comply with the agency's technical requirements relating to the form and content of the permit application; (2) the agency provides to the applicant not later than the 10th business day after the date the application is filed written notice of the failure that specifies the necessary documents or other information and the date the application will expire if the documents or other information is not provided; and (3) the applicant fails to provide the specified documents or other information within the time provided in the notice. The subsection above provides additional authority for a city to require “administrative completeness” prior to an application being considered as “filed” for purposes of H.B. 3167. 18. What are best practices and practical tips for compliance with the bill? The following suggestions were provided by planners and land use attorneys: • Review ordinances to make sure they: (1) include all grounds for approval with conditions or denial with explanation; and (2) specifically reference/cross-reference the development code, municipal code, charter, criterial manuals, and other rules that may be cited as a result of H.B. 3167. • Conduct a study of the cost to provide service for the required staffing levels necessary to meet H.B. 3167 timelines. For instance, a city may need additional engineering services. Adopt new fees that require development to cover the associated costs. • Establish a detailed internal review process with internal deadlines. • If a city doesn’t have both the planning commission and governing body approval process (as allowed in Local Government Code Section 212.006), it should consider adopting such a process so that if one misses something (e.g., an item that needs to be conditionally approved), the other one can address it. • Define “filed” in the city’s ordinance to mean the day the administrative review process is finished and the plan or plat is placed on the planning and zoning commission agenda. • Create a waiver form and make it available to applicants. The city can’t request a waiver for plats, but it arguably can for plans (see question 14, above), and staff could point out that the process may actually be longer without one. • Develop standard forms with fill-in-the-blanks and have a comment bank that includes citations to point out frequent errors. Page 38 Page 8 of 9 • Establish a detailed quality control checklist (with code citations) and require it to be submitted, and stamped by the submitting engineer, as part of the completeness review. • Host meeting/informational sessions for the development community to roll out process changes. • Require pre-application conferences before applicants can submit. • Limit filing to a schedule or certain day(s) of week. • Consider whether you need to add dates to the planning and zoning commission meeting schedule, and consider what happens to the application if the commission is unable to meet within the 30-day timeframe (e.g., because of a lack of quorum). • Delegate any applications to staff rather than the “authority responsible for approving plats” to avoid the 30-day provisions. • Require supporting “studies” (i.e. traffic impact analysis, drainage study, etc.) be submitted prior to the first application for development. • Consider requiring submission and approval of preliminary utility plans, potentially as part of a service availability determination, separate and prior to any submission of the actual preliminary plan or plat. Consider the same regarding: utility evaluations (city and third party); TxDOT or county road approvals (curb cuts/driveways); traffic impact analysis; variance approvals; and any other submissions that need to be made to the county and ESD (or any other governmental entity that needs to review) prior to filing. • Do not accept a final plat for review until subdivision construction plans are approved and either a fiscal surety is filed or the infrastructure improvements are constructed. • Call responses “notices of code deficiency” that state “your submission fails to comply with section ________ regarding ____________” or “does not adequately address section ___________ regarding ___________.” 19. Does the bill contain any beneficial provisions? Yes. With regard to the approval of replats, the bill provides that: 1. a replat of a subdivision or part of a subdivision may be recorded and is controlling over the preceding plat without vacation of that plat if the replat: (a) is signed and acknowledged by only the owners of the property being replatted; (b) is approved by the municipal authority responsible for approving plats; and (c) does not attempt to amend or remove any covenants or restrictions (Id. § 212.014); and 2. for a replat that, during the preceding five years, any of the area to be replatted was limited by an interim or permanent zoning classification to residential use for not more than two residential units per lot or any lot in the preceding plat was limited by deed restrictions to residential use for not more than two residential units per lot: (a) if the proposed replat requires a variance or exception, a public hearing must be held by the municipal planning commission or the governing body of the city and; (b) if a proposed replat does not require a variance or exception, the city shall, not later than the 15th day after the date the replat is approved, provide written notice by mail of the approval of the replat to each owner of a lot in the original subdivision that is within 200 feet of the lots to be replatted according to the most recent municipality or county tax roll; (c) sections (a) and (b) do not apply to a proposed replat if the municipal planning commission or the governing body of the city holds a public hearing and gives notice of the hearing in the Page 39 Page 9 of 9 manner provided by section (b); (d) the notice of a replat approval required by section (b) must include: (i) the zoning designation of the property after the replat; and (ii) a telephone number and e-mail address an owner of a lot may use to contact the city about the replat (Id. § 212.015). Page 40 H.B. 3167 Development Approval Process Plat/Plan Submission Completeness review? Day 1 Filed Day 30 - Deemed approved if miss deadline 212.009(d) - Can be extended by agreement 212.009(b-2) 1. Approve; 2. Approve w/conditions; or 3. Disapprove w/conditions. 212.009 If governing body approval is required, 30 days to 1, 2, or 3. 212.009(b) Issue endorsement certificate 212.009(c) Applicant written response (no deadline) 212.0093 Day 15 212.0095(a) 1. Approve 212.0093; 212.0095(b) & (c); or 2. Disapprove w/explanation. (ONLY NEW ISSUES) 212.0095(d)(2) Continuous loop until all new issues are resolved? 212.0095(c) Applicant-optional alternate approval process 212.0096 Page 41