§ 35-721. Impact Fees.

(a)

Protection of Prior Rights. This section protects prior rights established for certain properties which have been platted or replatted and recorded prior to the effective date of this article. Such protection of prior rights in the form of an exemption from the requirement to pay an impact fee is applicable to properties which, prior to the effective date of this article, met all the following criteria:

(1)

The property had been platted/replatted and recorded in accordance with V.T.C.A. Local Government Code Ch. 212.

(2)

The property had met all City Code requirements applicable to sewer service in effect at the time sewer service was granted to the property.

(3)

The property had paid all sewer fees and/or impact fees in effect at the time sewer service was granted to the property.

(4)

If applicable, a sewer service contract had been executed covering such property.

(b)

Properties Replatted After Effective Date of This Chapter. This section protects prior rights established for certain properties which are to be replatted after the effective date of this article. Such protection of prior rights in the form of an exemption from the requirement to pay an impact fee is limited to the EDU equivalent of the amount of gallons of flow or the number of EDUs set out in the board's application for sewer service, or an amount not to exceed five (5) EDUs per acre, whichever is greater. Should the board's application for sewer service reflect an EDU amount less than five (5) EDUs per acre, the exemption shall equal the lesser amount. This exemption is applicable to properties which, prior to the effective date of this article, met all the following criteria:

(1)

The property had been platted/replatted and recorded in accordance with V.T.C.A. Local Government Code Ch. 212.

(2)

The property had met all City Code requirements applicable to sewer service in effect at the time sewer service was granted to the property.

(3)

The property had paid all sewer fees and/or impact fees in effect at the time sewer service was granted to the property.

(4)

If applicable, a sewer service contract had been executed covering such property.

If, after the effective date of this article, properties meeting such exemption requirements are replatted, resulting in the generation of flows in excess of the amount of EDUs for which an exemption was granted, such properties shall only be required to pay an impact fee amount equal to the number of EDUs generated in excess of the number of EDUs exempted.

(c)

Properties Located Within the Lackland City Water Company Medio Creek Plant. This section protects prior rights established for certain properties located within the Lackland City Water Company Medio Creek Plant permitted area for sewer service and for which sewer service collection and/or treatment from Lackland City Water Company had been formally committed prior to December 3, 1991. Such protection of prior rights in the form of an exemption from the requirement to pay an impact fee is applicable to properties which prior to December 3, 1991 met all the following criteria:

(1)

The property was located within the area covered by the Lackland City Water Company Certificate of Convenience and Necessity (CCN) No. 20274 issued by the Texas Water Commission and Texas Water Commission Permit No. 10827-03.

(2)

The property was covered by a contract with the Lackland City Water Company which was subsequently assumed in part by the City of San Antonio pursuant to an asset purchase agreement between the City of San Antonio and the Lackland City Water Company.

(3)

The property was designated to receive a certain amount of committed capacity in an off-site line pursuant to an assumed Lackland contract and such off-site line was constructed, completed and accepted (necessary for exemption to collection fee component) and/or was designated to receive a certain amount of committed treatment capacity from Lackland through the purchase of treatment certificates (necessary for exemption to treatment fee component). In order to receive an exemption the developer must provide the appropriate documentation indicating that he owns both the property and the accompanying capacity described in the contracts and certificates which are the subject of this section.

The board shall determine and keep records of properties eligible for an exemption under this section. The board's records shall reflect the amount of collection and/or treatment capacity committed to a property for which an impact fee is not required. Such exemptions may be utilized at the time of platting/replatting of the property. In the event the developer of such property may disagree with the records of the board, he may both examine the records of the board pursuant to the open records act and supply additional information to the CEO/president or his designated representative to show evidence that an exemption for additional capacity should be granted. In the event the CEO/president or his designated representative does not find such evidence sufficient to grant an additional exemption, the developer shall follow the variance procedures set forth herein.

Commentary: The purpose of this subsection (c) is to protect prior rights granted by the Lackland City Water Company and subsequently assumed by the board. The City of San Antonio entered into an asset purchase agreement with the Lackland City Water Company pursuant to Ordinance No. 74492 dated October 3, 1991. Such purchase was completed December 3, 1991. The city, and subsequently the board assumed certain obligations to provide sewer service under the following contracts:

• Contract for construction and conveyance of water and sanitary sewer facilities and for providing water and sewage service between Lackland City Water Company and J. H. Uptmore and Associates Inc. dated May 8, 1981.

• Contract for construction and dedication of sanitary sewer facilities and for providing sewage services between Lackland City Water Company and Southwest Ranch, Ltd. dated July 19, 1983 contract to provide wastewater treatment service between Lackland City Water Company and Westcreek Utility Company, Inc. dated August 24, 1984.

• Contract for construction and conveyance of sanitary sewer facilities and providing sewage services between Lackland City Water Company and Homecraft Land Development Inc. and Oak Creek Environmental Management Inc., as developer dated August 8, 1985.

• Wastewater Utility Service Contract between Lackland City Water Company and United States of America Lackland Air Force Base Training Annex dated August 1, 1988, as amended.

Former section 35-4262 of this chapter which provided for the extension of sewer mains to single-family residential lots platted prior to July 6, 1970, is not altered by this article.

(d)

Vested Rights.

(1)

Creation. Vested rights to sanitary sewer treatment and/or collection capacity shall be granted by the board for developments which have met the requirements either under the provisions of this article or under the regulations which were in effect prior to the effective date of this article. Once the board accepts an impact fee, a vested right in sanitary sewer facilities is created for the purchasing developer and that vested right becomes an appurtenance to the property being served.

(2)

Minimum Capacity. Vested rights for up to four (4) equivalent dwelling units (EDUs) per net acre may only be transferred or assigned as part of a real estate transaction in which the property being served is itself transferred. Vested rights as represented by sewer capacity in excess of four (4) EDUs per net acre may be either transferred or assigned as part of a real estate transaction in which the property being served is itself transferred, or, with the approval of the city council, assigned for use by another property.

(3)

Fee Payment. While vested rights to either treatment or collection capacity will be recognized under the conditions set forth herein, the developer must pay (either in the form of cash or credits) the fully assessed impact fee, or sewer platting fee levied prior to the effective date of this article, before the board shall allow wastewater flows from the on-site system of a development to be discharged into the off-site sewer system.

(4)

Board Recognition. The board recognizes vested sewer rights as follows:

A.

Collection System Capacity. A developer has a vested right to the sanitary sewer collection system capacity in an off-site sewer line serving his development if the developer has paid the collection component of the sewer platting fee or impact fee, or its equivalent, either in the form of a direct payment to the board or by earning impact fee credits; by having paid for the equivalent of the estimated construction cost of the off-site sanitary sewer capacity at a cost which at least equals the collection fee component he otherwise would have paid at the time of plat approval; or by having paid an acreage fee.

B.

Treatment System Capacity. A developer has a vested right to the sanitary sewer treatment system capacity at a wastewater treatment plant serving his development if the developer has paid the treatment component of the sewer platting fee or impact fee, or its equivalent, either in the form of a direct payment to the board or by earning impact fee credits; or by having paid for the equivalent of the estimated construction cost of treatment facilities at a cost which at least equals the treatment component he otherwise would have paid at the time such payment is required under this article.

(5)

Flows From Other Developments. The board reserves the right to connect wastewater flows from other developments to on-site and/or off-site sanitary sewer systems which serve existing developments, regardless of whether such systems were oversized to accommodate the additional wastewater flows. However, in order to preserve the vested rights of the existing development, the board commits to the following:

A.

The board shall maintain records regarding a developer's vested rights in sanitary sewer systems. In the event the developer would exceed those rights as a result of any subsequent platting or replatting of property, the board shall have the right to refuse to accept the excessive flows into the board's sanitary sewer system or to assess the developer the appropriate additional impact fee.

B.

The board retains exclusive ownership of the capacity in all sanitary sewer facilities under its control. The board shall, however, continue to serve a development for which impact fees or platting fees have been paid by recognizing the vested rights of the developer. The developer shall not be denied service solely on the basis that the remaining sanitary sewer capacity for a given development is insufficient to accommodate the flows of anticipated development when such insufficiency is the result of the board connecting other development generated flows to the sanitary sewer system serving the developer's property.

C.

The board acknowledges its obligation to guarantee a developer's vested right to on-site and/or off-site sanitary sewer capacity serving his property in order that the developer may achieve reasonable, timely, and complete platted development of his property.

(6)

Use of Another's Vested Right. When a subsequent developer wishes to utilize sanitary sewer capacity which has already been recognized as a vested right in accordance with this article, the board may permit the developer to utilize that capacity only if the developer meets all of the conditions listed below. The subsequent developer shall enter into a reserve capacity agreement with the board agreeing that the board shall reserve capacity in a future capital improvements project, with the added provision that the capital improvement would serve his development at such time as the board determines sanitary sewer demand in the service area warrants the construction of additional treatment and/or collection capacity. The subsequent developer shall further agree not to require the board to construct the additional treatment and/or collection capacity in accordance with the timing requirements specified in V.T.C.A. Local Government Code Ch. 395. Prior to the execution of the agreement by the board, the subsequent developer shall pay the required collection and/or treatment component of the impact fee in accordance with the rate schedule in Appendix "C."

(7)

Transferability. Vested rights, once established in accordance with this subsection (d), are not transferable but may be assigned subject to the limitations set out in subsection (d)(2), above.

(Ord. No. 98697 § 6)