§ 35-712. Recognition of Rights Derived From Texas Local Government Code Chapter 245.

(a)

Purpose.

(1)

This section provides a methodology for the registration of permits, and permit applications, with the department of development services so that a determination can be made as to whether the permit, or permit application is one that would afford a project with the rights provided in Chapter 245 of the Texas Local Government Code. The purpose for such registration and determination is to assist city staff in their review of the applicability of Chapter 245 to a particular project.

(2)

This section shall not apply to a claim of right under common law, a federal or state statute other than Chapter 245, the state or federal constitutions, or to the types of ordinances, or other governmental action, enumerated in Chapter 245, § 245.004. Any claim of right made under some law or authority, other than Chapter 245 must be made in writing to the director of development services in accordance with the provisions of section 35-711 or section 35-713. For such claims, the director of development services shall advise the city attorney of the claim. The city attorney may make a recommendation regarding the validity of the claim and the director shall make a determination within twenty (20) working days of its receipt.

(3)

No determination claiming entitlement to statutory rights under Chapter 245 shall be approved or issued unless the applicant has demonstrated compliance with all of the following criteria for statutory rights:

A.

The applicant has filed an application for a permit for a project which provides the city fair notice of that project, as provided in Chapter 245 prior to the adoption of the regulations against which rights are claimed; and

B.

The regulations against which rights are claimed are not subject to an exemption as provided in Chapter 245, § 245.004; and

C.

The project has not become dormant as defined in Chapter 245, § 245.005 and this chapter.

(b)

Recognition of Statutory Rights.

(1)

Initiation. An application may be made to the director of development services for a determination of rights for a particular project by completion of a form provided by the development services department. The application shall contain information describing the project to provide fair notice of the project to the city and which permit or permits are being relied upon by the applicant to establish rights. The applicant requesting recognition of rights shall provide the department of development services with two (2) copies of a completed application together with a permit application review fee in the amount established by ordinance as set forth in Appendix C and two (2) copies of any documents on which the applicant is relying to establish rights. Applications for a determination of rights shall be by tracts or phases and not by MDPs or POADPs. For these purposes, a tract may be comprised of multiple parcels or lots.

(2)

Review and Approval. After receiving an application, the department of development services shall review the application and approve, deny or request additional information to be provided for consideration of the application within twenty (20) working days. The director of development services may request a recommendation from the city attorney. If the permit that is the basis for the recognition of rights has been issued by a regulatory agency other than the city, the department of development services shall request the office of the city attorney to determine whether the permit establishes rights under Chapter 245. In the event that the department of development services does not respond to an application for a determination of rights within twenty (20) working days, the application will be considered denied. Provided, however, the time period may be extended upon the written request of the applicant. Upon review of the application, if the department of development services finds that the applicant has provided sufficient information to establish fair notice of the project and that one (1) or more permit(s) exists on a project, notice in writing shall be issued to the applicant recognizing rights for the project. The notification recognizing such rights shall be dated and signed by the director or his designee. The notification shall also clearly state the project being recognized and indicate the terms and conditions (indicated above) required for the continuance of the rights being recognized. In the event the department of development services requests additional information for consideration of an application, the applicant shall be notified in writing within the required time period that additional information must be submitted in order to complete the review of the application. Should the application be denied, the department of development services shall enumerate in writing the reason(s) for such denial, which shall be delivered to the applicant within the time period allowed for review.

(3)

Basis for Statutory Rights. The following criteria will be used by the city in determining the existence of rights for projects initiated after September 1, 1997. The following permits may be relied on by a property owner or developer to establish permit rights for a project that is the subject of the permit. Provided, however, a minor plat that plats only easements shall not confer any rights. The rights acquired in reliance on one (1) of the types of permits indicated below will expire in five (5) years unless the action required to maintain rights is taken within the time frame indicated for each permit type and the project does not become dormant in accordance with Chapter 245 and this chapter. A property owner or developer may take advantage of changes to this chapter that enhance or protect the project, including changes that lengthen the effective life of the permit after the date the application for the permit was made, without forfeiting any rights under this chapter.

A.

Master Development Plan (MDP) Rights under Chapter 245 will be recognized for the project that is the subject of a MDP that has been approved by the city and maintains validity in accordance with 35-412(i) .

B.

Preliminary overall area development plan (POADP). A property owner or developer may elect to continue a project under the City Code provisions in effect on September 1, 1997 or to take advantage of changes to this chapter that enhance or protect the project without forfeiting any rights under this chapter by requesting recognition of rights for an existing and valid POADP. The rights recognized for projects located within an approved POADP will expire unless a final plat is approved within two (2) years from the approval of the POADP that plats, at least eight (8) percent of the net area of the POADP area or an expenditure of at least five hundred thousand dollars ($500,000.00) in project expenses has been made if the POADP is one thousand (1,000) acres or less or an expenditure of at least one million dollars ($1,000,000.00) has been made if the POADP is more than one thousand (1,000) acres.

Further, the rights for projects within an approved POADP will expire unless fifty (50) percent of the net area within the approved POADP is the subject of final plats or development within ten (10) years from the date of approval of the POADP. For a POADP existing prior to September 1, 1997 that meets the requirements of subsection 35-1027(j) of the 1987 UDC, the rights for projects will expire ten (10) years from the date of approval of the POADP or September 25, 2007, whichever is later. Rights may continue to be recognized once the aforementioned criteria have been fulfilled provided a plat is recorded every five years thereafter. The filing of a minor amendment to a POADP, a plat, or a replat will not result in a loss of rights to the entire POADP provided that the required area of acreage within the POADP platted or the value of project expenses do not fall below the amounts indicated above as a result of the minor amendment, plat, or replat. A plat or replat that changes the project within a particular area of an POADP will cause rights for that area to terminate. An expired or invalid POADP may not be the basis for accrual of statutory rights under V.T.C.A. Local Government Code Ch. 245 or any other right of claim based on common law. Neither shall any endeavor of project that does not meet the requirements of section 35-1027 of the 1987 UDC as amended nor any permit that has expired in accordance with the dormancy provisions of any state statute or provision of the City Code be used as a basis for approval of permit rights, development rights, or statutory rights.

POADP is defined as a preliminary overall development plan that was submitted to the City prior to June 4, 2001

C.

Plat Applications. Rights under Chapter 245 will be recognized for the project that is the subject of an application for a plat identification number/letters of certification that has been filed with the department of development services, provided all necessary fees have been paid. The rights recognized for a project located within such a plat application will expire unless the plat application is heard by and approved by the director of development services or the planning commission within two (2) years from the date the initial application and information describing the project giving fair notice of the project to the city is provided with the plat application in accordance with this chapter. Neither an expired nor a withdrawn plat application may be relied upon as a permit application for the assertion of statutory rights under Chapter 245 or any other right or claim based on common law. If after the expiration or the withdrawal of a plat application the applicant wishes future plat approval of the subject property, a new plat application shall be filed, new application fees shall be required and a new plat number shall be assigned.

D.

Plats. Rights under Chapter 245 will be recognized for projects associated with the property which is the subject of a plat that has been approved by the city planning commission or director of development services if information describing the project giving fair notice of the project to the city is provided with the plat application in accordance with this chapter. The rights recognized for a project located within an approved plat will expire unless the plat is recorded in the Bexar County Deed Records within three (3) years from the date of approval by the city planning commission or director of development services.

E.

Building Permits. A building permit may be relied on as a basis for rights under Chapter 245 for projects identified in the site plan submitted to the city as part of the building permit application provided that information describing the project giving fair notice of the project to the city is provided with the permit application in accordance with this chapter. However, rights that are based on a building permit will expire unless construction authorized by the building permit is begun within six (6) months from the date the building permit is issued.

F.

Rights under Chapter 245. Rights accrued under this section shall not extend beyond the time periods prescribed herein except by the granting of a variance from the time limits as provided herein. Under no circumstances shall the extension of a time limit extend the rights conferred herein except through the variance provision of this section.

(c)

Recordation. The department of development services shall create a file of all written notices issued pursuant to this provision that will be available to the public during regular business hours. At a minimum the file will contain the original application and copies of all notices issued for a three calendar year-period. The file shall be reviewed annually to remove notices that have expired. Electronic copies of notices more than three (3) years old shall be maintained in accordance with statutory requirements and made available in conformance with the Public Information Act.

(d)

Rights Recognition Process Appeal. In the event an applicant for recognition of statutory rights is aggrieved by an action taken regarding the recognition of those rights or the application of the above requirements, the applicant may appeal the decision of the director of development services to the planning commission by filing a request for appeal with the director of development services within fifteen (15) calendar days from the date the applicant is notified of the adverse decision or action taken under these requirements. The application for appeal shall be made in writing and shall contain the applicant's rationale for requesting the appeal together with payment of an application review fee in the amount established by ordinance as set forth in Appendix C. The director of development services shall place the appeal on the agenda of the planning commission and the planning commission shall hold a hearing on the appeal and make its ruling within sixty (60) days from the date the request for appeal was filed. The planning commission's review of the director's decision shall be based solely upon the same information as was available to the director and as provided to the applicant when the decision was made. If the planning commission denies all or part of the relief requested in the appeal, the applicant may make a final appeal to the city council by filing a notice of final appeal in writing together with payment of an application review fee in the amount established by ordinance as set forth in Appendix C to offset the city's costs with the office of the city clerk no later than the tenth (10th) day following the party's receipt of the written decision of the planning commission from which the final appeal is brought. If the planning commission approves all or part of the relief requested in the appeal, the city manager or her/his designee may make a final appeal to the city council by filing a notice of final appeal in writing with the city clerk no later than the tenth (10th) day following the decision of the planning commission from which the final appeal is brought. The information in the appeal shall be limited to the information before the director when the decision was made. The development services director shall schedule the hearing of the final appeal at the earliest regularly scheduled meeting of the city council that will allow compliance with the requirements of the Texas Open Meetings Act. The decision of the city council shall be final.

(e)

Variance. An individual, or business entity, that has rights may request an extension of the time limit that would otherwise cause the rights to expire. An individual requesting a variance must make written application to the director of development services and pay a variance application fee in the amount established by ordinance as set forth in Appendix C. The request for variance must identify the specific provisions for which a variance is being requested and the reasons the applicant feels justify the granting of the variance. The director of development services shall review the application for variance and provide a written recommendation with regard to whether the variance should be granted, conditionally granted or denied to the planning commission within thirty (30) days from the date the application or variance is filed. In the event the planning commission fails to make a ruling on the variance within sixty (60) days from the date the application for variance is filed, the application for variance shall be deemed denied. Provided, however, the time period may be extended upon the written request of the applicant. In order to grant a variance from the provisions of this section, the planning commission must find that:

(1)

The applicant would suffer a hardship in the absence of a variance that is not the result of the applicant's own negligence; and

(2)

The applicant has been actively attempting to pursue and complete development of the project that is the subject of the rights; and

(3)

Compliance with rules and regulations passed after the recognition of rights would cause a substantial economic hardship to the developer/property owner that would preclude the capability of completing the project in a reasonable and prudent manner.

(f)

Variance Appeal. If the planning commission denies all or part of the relief requested in a request for variance, the applicant may make an appeal to the city council by filing a notice of appeal in writing together with a payment established by ordinance as set forth in Appendix C to offset the city's costs with the office of the city clerk for the city no later than the tenth (10th) day following the party's receipt of the written decision of the planning commission from which the final appeal is brought. If the planning commission approves all or part of the relief requested in a request for variance, the city manager or her/his designee may make an appeal to the city council by filing a notice of appeal in writing with the city clerk no later than the tenth (10th) day following the decision of the planning commission from which the final appeal is brought. The information in the appeal shall be limited to the information before the director when the decision was made. The director of development services shall schedule the hearing of the appeal at the earliest regularly scheduled meeting of the city council which will allow compliance with the requirements of the Texas Open Meetings Act. The decision of the city council shall be final.

(g)

Exemption From Rights. The types of ordinances enumerated in Chapter 245, § 245.004 are exempt from this section and will apply to a project or development regardless of the effective date of the ordinance or the existence of rights for the project.

(1)

Future Ordinances: Any ordinance that concerns the development of real property and is adopted after the adoption of this chapter, which incorporates this section into the city code of ordinances, may specifically state whether it is the type of ordinance that is exempted by § 245.004. However, the absence of such a statement shall not be determinative as to whether the ordinance is or is not exempted.

(2)

Existing Ordinances: This section shall not be applicable to any ordinance that: a) concerns the development of real property; b) was adopted prior to the adoption of this chapter; and c) is exempted by § 245.004 from the protection provided by Chapter 245.

(3)

Determination By City Attorney: Should a question arise as to whether an ordinance is exempted from Chapter 245, the director of development services shall request an opinion from the office of the city attorney.

(h)

Duration. This section shall not extend the time of validity for any permit. Any rights recognized by the application of this section shall not extend beyond the time periods prescribed for the validity of the permit or permits that were submitted for recognition except by the granting of a variance from the time limit as provided herein. No determination of rights shall be recognized as valid beyond five (5) years from the date of issuance of said determination. Further, any permit that forms the basis of a rights determination that becomes invalid or expires shall result in a void determination in accordance with section 35-714.

(i)

Voluntary Compliance. Nothing herein would prohibit the voluntary compliance with any future ordinance, regulation or incentive.

(j)

Previously Issued Rights Determinations. Nothing herein shall affect the validity of any right that was recognized pursuant to section 35-1027 inserted into the UDC by Ordinance No. 86715, passed and approved September 25, 1997 provided such project has not lost such rights by operation of law.

(k)

Chapter 245 of Texas Local Government Code Adopted. Chapter 245 of the Texas Local Government Code, as adopted in 1999 by the 76th Legislature, regular session is hereby adopted and incorporated by reference herein. Should Chapter 245 be repealed by the Legislature it shall remain effective as part of this Code for one (1) year from the date of such repeal. During said period city council shall take any action it deems necessary to provide municipal protection for ongoing projects from the effects of unanticipated subsequent regulations.

(Ord. No. 98697 §§ 1 and 6) (Ord. No. 2006-02-16-0241, § 2, 2-16-06) (Ord. No. 2006-11-30-1333, § 2, 11-30-06) (Ord. No. 2009-01-15-0001, § 2, 1-15-09; Ord. No. 2009-08-20-0661, § 3, 8-20-09) (Ord. No. 2010-11-18-0985, § 2, 11-18-10) (Ord. No. 2014-08-14-0581, § 4, 8-14-14)(Ord. No. 2015-12-17-1077 , § 2, 12-17-15)