This section provides a methodology for the registration of permits, and permit applications, with the City Manager so that a determination can be made as to whether the permit, or permit application is one that would afford a project with the “vested rights” as provided in Chapter 245 and section 43.002 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 or section 43.002 to a particular project. This section shall not apply to a claim of right under common law, a federal or state statute, other than Chapter 245 or section 43.002, or the state or federal constitutions. Any claim of right made under any law or authority, other than Chapter 245 or section 43.002, shall be made to the City Manager in writing. The City Manager shall advise the City Attorney of the claim, and the City Attorney shall make a determination of the validity of the claim within twenty (20) days of its receipt by the City; provided, however, that the twenty (20) day period shall not begin to run until all requisite information to support the claim has been submitted. Additionally, as provided in Subsection 4.16.02(H), this section shall not apply to the types of ordinances, or other governmental action, enumerated in V.T.C.A. Local Government Code section 245.004 or exempt from the requirements of Local Government Code section 43.002.

4.16.02 Vested Rights Recognition Process.
 

A. Initiation. An application may be made to the City Manager for recognition of vested rights for a particular project by completion of a form provided by the City Manager that indicates which permit or permits are being relied upon by the applicant for establishment of vested rights. The applicant shall provide the City Manager with a completed application together with a permit application review fee required by the City and two (2) copies of any documents applicant is relying upon to establish vested rights.

B. Review and Approval. After receiving an application for recognition of vested rights, the City Manager shall review the application and approve, deny or request additional information to be provided by the applicant for consideration within twenty (20) working days. Should the permit, which is the basis for vested rights recognition, have been issued by a governmental agency other than the City, the City Manager shall request the City Attorney to determine whether the permit establishes rights under Chapter 245 of the Texas Local Government Code. In the event the City Manager does not respond to an application for vested 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 City Manager finds that the applicant has provided sufficient information to establish that one (1) or more legally sufficient and applicable permit(s) exists on a project, the City Manager shall issue a certificate to the applicant recognizing vested rights for the project which shall be dated and signed by the City Manager. The City Manager shall review all certificates prior to issuance to ensure it clearly indicates the term and conditions (indicated above) required for the continuation of the recognition of the vested rights. In the event the City Manager requests additional information for consideration of an application, the applicant shall be notified in writing within the required time period of specifically what information must be submitted in order to complete the review of the application.

C. Should the application be denied, the City Manager may enumerate in writing any and all reasons for such denial, which shall be delivered to the applicant within the time period allowed for review.

D. Recordation. The City Manager shall create a file of all certificates issued pursuant to this Section of the Code that will be available for the public’s review during regular business hours. At a minimum the file should contain all certificates issued for a three-calendar-year period and should be reviewed annually to remove certificates more than three (3) years old. Certificates more than three (3) years old may be made available in conformance with the Public Information Act.

E. Vested rights recognition process appeal. In the event an applicant for recognition of vested rights is denied recognition of a vested right by the City Manager and is aggrieved by such action or by the application of the above requirements, the applicant may appeal the decision of the City Manager to the City Council by filing a request for appeal with the City Manager within fifteen (15) calendar days from the date the applicant is notified of the adverse decision or action taken. The application for appeal shall be made in writing and shall contain the applicant’s factual and/or legal rationale for the appeal. The City Manager shall place the appeal on the next agenda of the City Council and the City Council shall hold a hearing on the appeal and make its ruling within thirty (30) days from the date the hearing is held by the City Council. The city clerk shall schedule the hearing of the final appeal at the earliest regularly scheduled meeting of the City Council and comply with the requirements of the Texas Open Meetings Act. The decision of the City Council shall be final.

F. Variance. An individual, or business entity, that has applied for a vested rights determination may request a variance from the time limit, required action, or term that would otherwise cause the vested rights to expire. An individual requesting a variance shall make written application to the City Manager and pay the required fee[.] A request for variance shall identify the specific provisions for which a variance is being requested and the reasons that justify granting the variance. The City Manager 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 City Council within thirty (30) days from the date the application for variance is filed. In the event the City Council 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 City Council 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 and diligently attempting to pursue and complete development of the project that is the subject of the vested rights; and
3. Compliance with rules and regulations that were enacted after the application for recognition of vested 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.

G. The City Manager shall schedule the hearing of the 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.

H. Exemption from vested rights. The types of ordinances enumerated in Local Government Code section 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 vested rights for the project.

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

J. Existing ordinances. This section shall not be applicable to any ordinance that concerns the development of real property; as adopted prior to the adoption of this chapter and is exempted by section 245.004 from the protection provided by Chapter 245.

K. Determination by City Attorney. Should a question arise as to whether an Ordinance is exempted from Local Government Code Chapter 245 the City Manager shall request an opinion from the City Attorney and the City Attorney shall render a decision.

L. 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.

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

N. Chapter 245 of Texas Local Government Code adopted. Chapter 245 of the Texas Local Government Code, as adopted in 2001 by the 77th 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 year from the date of such repeal. During said period City Council shall take action it deems necessary to provide municipal protection for ongoing projects from the adverse impact of unanticipated subsequent regulations.