09/03/2019-CC-Agenda Packet-Work SessionAGENDA
CITY COUNCIL WORK SESSION
TUESDAY, SEPTEMBER 3, 2019
6:00 PM
502 ELM STREET
SANGER, TEXAS
1.Call Meeting to Order
2.Legislative Update
Discuss Recent House Bills Passed by the EightySixth Legislature as They Relate to Development
Services.
3.Update on Public Works Projects
Provide Update on the Peach Street Pipe Bursting Project and the Street Rehabilitation Project.
4.Mobile Food Unit Requirements
Staff Presentation and Discussion on the City of Sanger Mobile Food Unit Requirements.
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.
Thursday, August 29, 2019 at
3:45 PM
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.
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CITY COUNCIL AGENDA MEMO
AGENDA ITEM NO. 2.
AGENDA MEETING DATE: September 3, 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
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CITY COUNCIL AGENDA MEMOAGENDA ITEM NO. 2.AGENDA MEETING DATE: September 3, 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
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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
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H.B. No. 2439
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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).
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(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;
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(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;
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(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.
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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.
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______________________________ ______________________________
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
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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?”
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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.
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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
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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
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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.
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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
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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
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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.
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(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:
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(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
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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
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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
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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
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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
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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,
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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
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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,
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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.
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______________________________ ______________________________
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
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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
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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?
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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?
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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
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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
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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.
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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.
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• 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
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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).
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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
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CITY COUNCIL AGENDA MEMO
AGENDA ITEM NO. 3.
AGENDA MEETING DATE: September 3, 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
ACTION REQUESTED: Presentation
BACKGROUND:
Presentation providing an update on the Peach Street pipe bursting project and the street rehabilitation project.
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
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CITY COUNCIL AGENDA MEMO
AGENDA ITEM NO. 4.
AGENDA MEETING DATE: September 3, 2019
TO: Alina Ciocan, City Manager
FROM: Ramie Hammonds, Development Service Director
ITEM/CAPTION:
Mobile Food Unit Requirements
Staff Presentation and Discussion on the City of Sanger Mobile Food Unit Requirements.
AGENDA TYPE: Work Session
ACTION REQUESTED: Other: Presentation
BACKGROUND:
The City of Sanger currently regulates mobile food units under Chapter 6 Section 6.422. With the popularity of food
trucks as a food service option, staff would seek feedback from Council regarding how the the City wishes to address
the growing demand of this industry.
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
Requirements for Mobile Units 8/27/2019 Cover Memo
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Sec. 6.422 Requirements for Mobile Units
(a) A mobile unit must have a commissary as a base of operations. Said commissary must meet all
requirements of state law and:
(1) Be inspected and permitted by the health officer of the City of Sanger;
(2) Provide a copy of its most recent inspection report performed by the Texas Department of Health
or the local health authority with competent jurisdiction over the commissary or base of operations; and
(3) Provide any other documentation deemed necessary by the administrator to enable the
administrator to enforce this article or otherwise protect the public health and safety.
(b) All mobile units originating from or serving food within the city must have a valid food service
permit, which must be kept in the vehicle at all times. The permit must bear the name of the registered
owner of the truck and truck license plate number.
(c) The operator of a truck must protect food from contamination and keep truck clean and free of
rust and corrosion.
(d) All trucks must be identified using the same name that is on the permit.
(e) All condiments and spices, such as salt, pepper, sugar, catsup, mustard, mayonnaise, sauces,
non-dairy creamer, etc., must be served in single-serving containers. No bulk dispensers, bottles or
cans shall be permitted.
(f) All single-service tableware must be individually wrapped in plastic.
(g) The applicant for a food permit for a mobile unit shall present an inspection report to the
consumer health division. This inspection shall have been made by the regulatory authority with
jurisdiction or the Texas Department of Health, if the location of the commissary is outside the corporate
limits of Sanger, Texas.
(h) Sewage, wastewater and solid waste must be disposed of according to law.
(i) The wastewater tank outlet must be lower than the inlet to the potable water supply.
(j) Mobile units shall provide a route plan upon request.
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