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Ordinance 9960 Impact Fees (City of Midland Texas (TX))

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ORDINANCE NO. __________
AN ORDINANCE AMENDING TITLE XI, APLANNING
AND DEVELOPMENT
@, OF THE CITY CODE OF
MIDLAND, TEXAS, BY ESTABLISHING CHAPTER
14,
AIMPACT FEES@; ESTABLISHING WATER,
WASTEWATER, AND ROADWAY IMPACT FEES;
ESTABLISHING PROCEDURES FOR THE
ASSESSMENT, COMPUTATION, COLLECTION,
DEPOSIT, REFUND, EXPENDITURE AND GENERAL
ADMINISTRATION OF SAID IMPACT FEES;
ESTABLISHING AN APPEAL PROCEDURE;
ESTABLISHING AN EFFECTIVE DATE OF OCTOBER
1, 2019; CONTAINING A CUMULATIVE CLAUSE;
CONTAINING A SAVINGS AND SEVERABILITY
CLAUSE; AND ORDERING PUBLICATION
WHEREAS, Chapter 395, Tex. Loc. Gov=t Code (the AStatute@) provides the
requirements and procedures for the adoption of land use assumptions, a capital
improvements plan, and impact fees; and
WHEREAS, after notice of a public hearing was given as required by the Statute,
the City Council held a public hearing on March 26, 2019, and by Resolution No. 2019-
136 approved the land use assumptions and capital improvements plan; and
WHEREAS, the Capital Improvement Advisory Committee of the City of Midland,
created pursuant to Sec. 395.058, Tex. Loc. Gov=t Code, filed its written comments on the
proposed impact fees before the fifth business day before the date of the public hearing on
the imposition of the impact fees; and
WHEREAS, after notice of a public hearing was given as required by the Statute,
the City Council held a public hearing on July 23, 2019, to discuss the imposition of the
impact fees by this ordinance; and
WHEREAS, the City Council finds that the City has fully complied with the Statute
in adopting and imposing the impact fees in this ordinance; and
WHEREAS, the City Council finds it to be in the best interest of the citizens of the
City of Midland to adopt and approve the impact fees and related administrative processes
described herein;
9960
2
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF MIDLAND, TEXAS:
SECTION ONE. That the recitals stated above are hereby adopted and approved
and incorporated into the body of this ordinance as if fully set forth herein, and the impact
fees set forth in this ordinance are hereby approved.
SECTION TWO. That the Midland City Code Title XI, APlanning and
Development@, shall be amended by adding Chapter 14, AImpact Fees@, which shall read as
follows:
11-14-1. Purpose.
This Chapter is intended to assure the provision of adequate public facilities to serve new
development in the City by requiring each such development to pay its share of the costs
of such improvements necessitated by and attributable to such new development.
11-14-2. Definitions.
Terms defined herein are specific to this Chapter and shall not be construed as conflicting
with similar terms in other parts of the Municipal Code.
(A) Assessment means the determination of the amount of the maximum impact
fee per service unit which can be imposed on new development pursuant to
this Chapter.
(B) Capital improvement means any of the following facilities that have a life
expectancy of three or more years and are owned and operated by or on
behalf of the City:
(1) water supply, treatment, and distribution facilities; wastewater
collection and treatment facilities; and storm water, drainage, and
flood control facilities; whether or not they are located within the
service area; and
(2) roadway facilities.
(C) Capital improvements plan means a plan approved by the City Council that
identifies capital improvements or facility expansions for which impact fees
may be assessed.
(D) City means the City of Midland, Texas.
(E) City Council means the City Council of the City of Midland, Texas.
(F) City Manager means the City Manager of the City of Midland, Texas, or his
or her designee.
3
(G) Director means the Director of the Development Services Department of the
City of Midland, Texas, or his or her designee.
(H) Effective date means October 1, 2019.
(I) Facility expansion means the expansion of the capacity of an existing facility
that serves the same function as an otherwise necessary new capital
improvement, in order that the existing facility may serve new development.
The term does not include the repair, maintenance, modernization, or
expansion of an existing facility to better serve existing development.
(J) Impact fee means a charge or assessment imposed as set forth in this Chapter
against new development in order to generate revenue for funding or
recouping the costs of capital improvements or facility expansions
necessitated by and attributable to the new development. The term does not
include:
(1) dedication of land for public parks or payment in lieu of the dedication
to serve park needs;
(2) dedication of rights-of-way or easements or construction or dedication
of on-site or off-site water distribution, wastewater collection or
drainage facilities, or streets, sidewalks, or curbs if the dedication or
construction is required by a valid ordinance and is necessitated by
and attributable to the new development;
(3) lot or acreage fees to be placed in trust funds for the purpose of
reimbursing developers for oversizing or constructing water or sewer
mains or lines; or
(4) other pro rata fees for reimbursement of water or sewer mains or lines
extended by the political subdivision.
(K) Land use assumptions means a description of the service area and projections
of changes in land uses, densities, intensities, and population in the service
area over at least a 10-year period and approved by the City Council.
(L) New development means the subdivision of land; the construction,
reconstruction, redevelopment, conversion, structural alteration, relocation,
or enlargement of any structure; or any use or extension of the use of land;
any of which increases the number of service units.
(M) Owner means an owner of real property that is subject to this Chapter, or an
agent, employee, or representative thereof who is authorized to act of the real
property owner=s behalf, or a person who has paid an impact fee under this
Chapter.
(N) Roadway facilities means arterial or collector streets or roads that have been
designated on an officially adopted roadway plan of the City, together with
all necessary appurtenances. The term includes the City=s share of costs for
roadways and associated improvements designated on the federal or Texas
highway system, including local matching funds and costs related to utility
4
line relocation and the establishment of curbs, gutters, sidewalks, drainage
appurtenances, and rights-of-way.
(O) Service area means:
(1) for purposes of water and wastewater, the area within the corporate
boundaries of the City; and
(2) for purposes of roadways, an area within the corporate boundaries of
the City that does not exceed six miles within which roadway impact
fees for capital improvements will be collected for new development,
and within which fees so collected will be expended for those capital
improvements identified in the capital improvements plan to be
located therein. The roadway service areas are more fully described
in the study.
(P) Service unit means a standardized measure of consumption, use, generation,
or discharge attributable to an individual unit of development calculated in
accordance with generally accepted engineering or planning standards and
based on historical data and trends applicable to the City during the previous
10 years. The service units for purposes of roadways, water, and
wastewater are more fully described in the study.
(Q) Site-related facility means an improvement or facility which is for the
primary use or benefit of a new development or which is for the primary
purpose of safe and adequate provision of roadway, water, or wastewater
facilities to serve the new development, and which is not included in the
capital improvements plan and for which the owner is solely responsible
under subdivision or other applicable regulations or which is located at least
partially on the plat which is being considered for impact fee assessment.
This term includes that portion of an off-site water or wastewater main,
equivalent to a standard size water or wastewater main, which is necessary
to connect any new development with the City=s water or wastewater system,
the cost of which has not been included in the City’s impact fee capital
improvements plan.
(R) Study means, collectively, the roadway impact fee study and the water and
wastewater impact fee study that are on file in the office of the City’s
Development Services Department.
(S) System-related facility means a capital improvement or facility expansion
which is designated in the capital improvements plan and which is not a
site-related facility. This term may include a capital improvement which is
located off-site or within or on the perimeter of the development site.
(T) Wastewater facility means a wastewater interceptor or main, lift station or
other facility or improvement used for providing wastewater collection and
treatment included within the City=s collection system for wastewater. This
term includes land, easements or structures associated with such facilities.
This term excludes a site-related facility.
5
(U) Water facility means a water interceptor or main, pump station, storage tank
or other facility or improvement used for providing water supply, treatment
and distribution service included within the City=s water storage or
distribution system. This term includes, but is not limited to, land, easements
or structures associated with such facilities. This term excludes site-related
facilities.
11-14-3. Study Adopted.
The study is hereby approved and adopted for all purposes consistent with this Chapter.
11-14-4. Applicability.
The provisions of this Chapter apply to all new development within the corporate
boundaries of the City.
11-14-5. Impact Fees Adopted.
(A) A pre-credit water impact fee of $3,312.24 per service unit shall be assessed
and charged against new development in the service area as set forth below.
For final plats approved before the effective date and for final plats recorded
on or after the effective date:
Water Meter Size
Service Unit
Equivalents
Maximum Assessed
Impact Fee
Maximum Impact Fee
after Application of
Credit (see Section 11-
14-8(A))
1"
1.0
$3,312.24
$1,656.12
2"
4.0
$13,248.97
$6,624.48
3"
9.0
$29,810.18
$14,905.09
4"
20.0
$66,244.85
$33,122.42
6"
40.0
$132,489.70
$66,244.85
(B) A pre-credit wastewater impact fee of $1,676.82 per service unit shall be
assessed and charged against new development in the service area as set forth
below.
For final plats approved before the effective date and for final plats recorded
on or after the effective date:
Water Meter Size
Service Unit
Equivalents
Maximum Assessed
Impact Fee
Maximum Impact Fee
after Application of
Credit (see Section 11-
14-8(A))
1"
1.0
$1,676.82
$838.41
2"
4.0
$6,707.27
$3,353.63
3"
9.0
$15,091.35
$7,545.67
4"
20.0
$33,536.33
$16,768.16
6"
40.0
$67,072.66
$33,536.33
(C) A pre-credit roadway impact fee of:
(1) $2,034.00 per service unit in Service Area A;
(2) $1,562.00 per service unit in Service Area B;
(3) $1,410.00 per service unit in Service Area C;
(4) $2,052.00 per service unit in Service Area D; and
6
(5) $0.00 per service unit in Service Area E
shall be assessed and charged against new development in such service areas
as set forth below.
For final plats approved before the effective date and for final plats recorded
on or after the effective date:
ITE
Land
Us e
Code
V
e
h
-
M
Service
Area A
Service
Area B
Service
Area C
Service
Area D
Service
Area A
Service
Area B
Service
Area C
Service
Area D
Land Use Category
Maximum Assessed Impact Fee
Maximum Impact Fee after Application of Credit
(see Section 11-14-8(A))
7
11-14-6. Assessment of Impact Fees as a Condition of Development.
No final plat for new development shall be released for recordation and no building permit
shall be issued without the assessment of applicable impact fees pursuant to this Chapter.
Except as otherwise provided in this Chapter, no building permit shall be issued until the
owner has paid the applicable impact fees.
11-14-7. Assessment of Impact Fees.
(A) Assessment of the impact fees for any new development shall be based on
the applicable impact fees per service unit in effect at the time of assessment.
No specific act by the City is required to assess impact fees.
(B) For a new development which has received final plat approval before the
effective date, assessment of impact fees shall occur on the effective date.
(C) For a new development which has received final plat approval on or after the
effective date, assessment of impact fees shall occur at the time of
recordation of the final plat.
(D) After assessment of the impact fees attributable to a new development or
execution of an agreement for payment of impact fees, additional impact fees
or increases in fees may not be assessed against the tract unless the number
of service units to be developed on the tract increases. In the event of the
increase in the number of service units, the impact fees to be imposed are
limited to the amount attributable to the additional service units.
11-14-8. Credits Against Impact Fees.
(A) General credit. The City shall apply against assessed impact fees a credit
equal to 50 percent of the total projected cost of implementing the capital
improvements plan. The maximum impact fees after application of this
credit are identified in Section 11-14-5.
(B) Housing credit. If a new development is a single-family home, a
townhouse, or a duplex, the City shall apply against the impact fees for such
new development a credit equal to 25 percent of the impact fees after the
application of the credit described in (A) above. This subsection shall
expire and be of no further force or effect on the fifth anniversary of the
effective date.
(C) Roadway credit. Any construction of, contributions to, or dedications of
roadway facilities that are system-related facilities and that are agreed to or
required by the City as a condition of development approval shall be credited
against assessed roadway impact fees. To the extent that a credit under this
subsection exceeds the roadway impact fees for service units attributable to
an owner’s new development, the credit shall be applied against the roadway
impact fees for service units attributable to each other new development of
the owner that is located on a tract of land that was contained in the same
preliminary plat of the new development for which the credit was granted.
8
(D) Water credit. Any construction of, contributions to, or dedications of water
facilities that are system-related facilities and that are agreed to or required
by the City as a condition of development approval shall be credited against
assessed water impact fees. To the extent that a credit under this subsection
exceeds the water impact fees for service units attributable to an owner’s new
development, the credit shall be applied against the water impact fees for
service units attributable to each other new development of the owner that is
located on a tract of land that was contained in the same preliminary plat of
the new development for which the credit was granted.
(E) Wastewater credit. Any construction of, contributions to, or dedications of
wastewater facilities that are system-related facilities and that are agreed to
or required by the City as a condition of development approval shall be
credited against assessed wastewater impact fees. To the extent that a credit
under this subsection exceeds the wastewater impact fees for service units
attributable to an owner’s new development, the credit shall be applied
against the wastewater impact fees for service units attributable to each other
new development of the owner that is located on a tract of land that was
contained in the same preliminary plat of the new development for which the
credit was granted.
(F) Credit by agreement. The City and the owner of a new development may
agree in writing that the owner may construct or finance system-related
facilities and that the costs incurred or funds advanced will be credited
against the impact fees otherwise due from the new development. The City
Manager is authorized to negotiate and execute such an agreement.
(G) No credit for rights-of-way or easements. Rights-of-way and easements are
not included in the study, and no credit shall be granted for the dedication of
rights-of-way or easements. Rights-of-way and easements are dedicated as
required by the ordinances of the City, necessitated by and attributable to a
new development, and do not exceed the amount required for infrastructure
improvements that are roughly proportionate to the new development.
11-14-9. Collection of Impact Fees.
(A) Impact fees shall be collected at the time of issuance of a building permit.
(B) For a new development that received final plat approval before the effective
date:
(1) Impact fees may not be collected on any service unit for which a valid
building permit is issued within one year after the effective date if the
new development is not a single-family home, a townhouse, or a duplex;
provided, however, that such a service unit shall be subject to the
collection of impact fees upon the submission of a subsequent application
for a building permit if the subsequent application is not submitted and
approved within one year after the effective date.
(2) Impact fees may not be collected on any service unit for which a valid
building permit is issued within two years after the effective date if the
new development is a single-family home, a townhouse, or a duplex;
9
provided, however, that such a service unit shall be subject to the
collection of impact fees upon the submission of a subsequent application
for a building permit if the subsequent application is not submitted and
approved within two years after the effective date.
11-14-10. Refund for Affordable Housing.
To the extent that the City collects an impact fee for a service unit that qualifies as
affordable housing under 42 U.S.C. Section 12745, as amended, the City may refund the
impact fee for such service unit following completion of construction. An owner who
seeks a refund under this Section shall provide to the Director sufficient proof that the
service unit qualifies as affordable housing under 42 U.S.C. Section 12745, as amended,
before the City may issue the refund.
11-14-11. Deposit; Interest; Expenditure of Funds.
(A) Deposit of funds. All funds collected through the adoption of an impact fee
shall be deposited in interest-bearing accounts clearly identifying the
category of capital improvements or facility expansions within the service
area for which the fee was adopted.
(B) Interest. Interest earned on impact fees is considered funds of the account
on which it is earned and is subject to all restrictions placed on use of impact
fees under Chapter 395 of the Texas Local Government Code.
(C) Expenditure of funds. Impact fee funds may be spent only for the purposes
for which the impact fee was imposed as shown by the capital improvements
plan and as authorized by Chapter 395 of the Texas Local Government Code.
11-14-12. Appeal Procedure; Remedies.
(A) Decisions subject to appeal. An owner may, in accordance with this
Section, appeal the following decisions:
(1) The applicability of an impact fee to the owner=s new development;
(2) The amount of an impact fee due;
(3) The availability of, the application of, or the amount of a credit against
an impact fee due;
(4) The amount of an impact fee due in proportion to the benefit of the
services for which the impact fee was assessed that are received by
the new development; or
(5) The amount of any refund due.
(B) Notice of appeal. Within 30 days following the decision being appealed,
the owner shall submit to the City Manager a written notice of appeal that
states the basis for the appeal with particularity. To the extent the owner
relies on any studies or other documents as evidence that the owner is entitled
to relief, the owner shall submit such studies and documents with the notice
10
of appeal. If the notice of appeal is accompanied by cash or a letter of credit
issued by a financial institution that has an office for presentment located in
in Midland, Texas, in an amount equal to the original determination of the
impact fee due, the building permit associated with the matter being appealed
may be issued while the appeal is pending.
(C) Burden of proof. The burden of proof shall be on the owner to demonstrate
that the owner is entitled to relief.
(D) Resolution of appeal by the City Manager.
(1) Within 10 days of receipt of the notice of appeal, the City Manager
shall issue a written decision granting relief, granting partial relief, or
denying relief and shall send the decision to the owner by certified
mail, return receipt requested, or by e-mail if the owner=s e-mail
address is provided on the notice of appeal or the building permit
application that gave rise to the matter being appealed. The City
Manager=s written decision shall ask the owner to respond in writing
within 10 days of the date of the written decision regarding whether
the owner agrees or disagrees with the City Manager=s decision.
(2) Upon issuing the written decision, the City Manager shall refer the
appeal to the City Council for a hearing. The owner shall be
provided written notice of the date, time, and location of the hearing.
(3) If prior to the City Council hearing the owner agrees in writing with
the City Manager=s written decision:
(a) the appeal shall be considered resolved;
(b) the City Manager=s referral of the notice of appeal to the City
Council for a hearing shall be withdrawn;
(c) to the extent that the City Manager=s decision grants relief or
partial relief to the owner, the City Manager shall ensure that
the owner receives such relief or partial relief; and
(d) to the extent that the City Manager=s decision requires the
owner to pay an impact fee, the owner shall promptly pay the
impact fee. The owner=s failure to pay the impact fee within
five business days after agreeing with the City Manager=s
decision shall serve as authority for the City to present the letter
of credit to the financial institution for performance with no
other or further notice or contact with the owner.
(E) Consideration of appeal by City Council.
(1) If the owner disagrees in writing with the City Manager=s written
decision or otherwise fails to agree in writing with the City Manager=s
written decision, the City Council shall hold a hearing to consider the
appeal and shall act on the appeal within 60 days of the City
Manager=s receipt of the notice of appeal.
11
(2) The City Council shall act on the appeal by granting relief, granting
partial relief, or denying relief.
(3) To the extent that the City Council grants relief or partial relief to the
owner, the City Manager shall ensure that the owner receives such
relief or partial relief.
(4) To the extent that the City Council=s action on the appeal requires the
owner to pay an impact fee, the owner shall promptly pay the impact
fee. The owner=s failure to pay the impact fee within five business
days after the date of the City Council=s action on the appeal shall
serve as authority for the City to present the letter of credit to the
financial institution for performance with no other or further notice or
contact with the owner.
(5) The City Council=s action on the appeal shall constitute the City=s final
decision on the matter appealed.
(F) Costs. An owner shall bear all costs of the owner=s appeal under this
Section.
11-14-13. Other Relief; Variance; Waiver.
(A) Failure to perform a duty.
(1) A person who has paid an impact fee or an owner of land on which an
impact fee has been paid may submit to the City Manager a written
request for the City Council to determine whether the City has failed
to perform a duty imposed under Chapter 395 of the Texas Local
Government Code within the prescribed period. The written request
must state the nature of the unperformed duty and request that it be
performed within 60 days after the date of the request.
(2) The City Council shall consider the request, and if the City Council
finds that the duty is required under Chapter 395 of the Texas Local
Government Code and is late in being performed, it shall cause the
duty to commence within 60 days after the date of the request and
continue until completion.
(B) Variance or waiver. The City Council may grant a variance or waiver from
any requirement of this Chapter, upon written request by an owner, following
a public hearing, and only upon finding that a strict application of such
requirement would, when regarded as a whole, result in confiscation or an
unconstitutional taking of the property.
SECTION THREE. The provisions of any ordinance which are inconsistent with
or in conflict with any of the provisions of this ordinance are hereby expressly repealed to
the extent of any such inconsistency or conflict.
12
SECTION FOUR. If any section, subsection, sentence, clause or phrase of this
ordinance is, for any reason, held to be unconstitutional or invalid, such holding shall not
affect the validity of the remaining portions of this ordinance. The Council of the City of
Midland hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause, or phrase hereof irrespective of the fact that any one or more
sections, subsections, sentences, clauses, or phrases be declared unconstitutional or invalid.
SECTION FIVE. The City Secretary is hereby authorized and directed to publish
the descriptive caption of this ordinance in the manner and for the length of time prescribed
by the law as an alternative method of publication.
The above and foregoing ordinance was duly proposed, read in full and adopted on
first reading, the ______ day of _____________, A.D., 2019; and passed to second reading
on motion of Council member _____________, seconded by Council member
_____________, by the following vote:
Council members voting "AYE":
Council members voting "NAY":
The above and foregoing ordinance was read in full and finally adopted by the
following vote upon motion of Council member _____________, seconded by Council
member _____________, on the ______ day of _____________, A.D., 2019, at a regular
meeting of the City Council:
Council members voting "AYE":
Council members voting "NAY":
PASSED AND APPROVED THIS ______ day of _____________, A.D., 2019.
23rd
July
Love
Hotchkiss
13th
August
13th
August
Trost, Hotchkiss, Love, Morales, Dufford, Robnett
Lacy
Trost, Hotchkiss, Love, Morales, Dufford, Lacy, Robnett
None
\\FILESRV01\City Attorney's Office$\Ordinances\Engineering\2019\Impact Fees\2019.06.06.Add 11-14 - Impact Fees corr.docx
13
____________________________
Jerry F. Morales, Mayor
ATTEST:
_________________________________
Amy M. Turner, City Secretary
APPROVED AS TO CONTENT
AND COMPLETENESS:
_________________________________
Robert Patrick, Assistant City Manager
_________________________________
Jose Ortiz, Engineering Services Director
_________________________________
Charles Harrington, Director of Development Services
APPROVED ONLY AS TO FORM:
_________________________________
John Ohnemiller, City Attorney
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Ordinance 9960 Impact Fees (City of Midland Texas (TX))

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Completed 13 July 2020

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