Web view · 2017-02-07In determining whether a governmental regulation unreasonably interferes with an owner's right to use and enjoy his property, a court must evaluate two factors:

TAKINGS IMPACT ASSESSMENTProposed 2016 Revisions to Hays County Development Regulations

PURPOSE AND INTENT

Hays County, Texas, acting through the Hays County Commissioners Court (hereafter "County") is proposing to amend its existing development regulations (hereafter "Proposed Regulations"). The Proposed Regulations amend the development regulations in the following general subject areas:

• Chapter 701 definitions and administrative procedures for applications processing;• Chapter 705 on subdivision platting requirements;• Chapter 721 on roadway standards;• Chapter 731 on construction and acceptance of maintenance for public infrastructure; • Chapter 735 on flood damage prevention.

This Takings Impact Assessment (hereafter "TIA") is intended to satisfy the statutory requirements of the Texas Private Real Property Rights Preservation Act (the “Act”) codified as Chapter 2007 of the Texas Government Code ("TGC") in regard to the Proposed Regulations.

REGULATORY BACKGROUND

Governmental Takings In General

A regulatory "taking" is a governmental action which regulates a private property interest to such a degree that it violates prohibitions on the taking of private property without just compensation, as outlined in either the United States Constitution or the Texas Constitution. One form of a taking is a "physical taking" where a governmental entity physically takes or occupies private property (e.g., a city condemning an easement to expand a roadway across private property).

A more difficult-to-define form of taking is a "regulatory taking" which is a governmental regulatory requirement which has the effect of reducing the economic usefulness and value of private property to such an extent that it constitutes a taking of private property. The Proposed Regulations do not propose any "physical taking" of any particular property, but the Proposed Regulations are evaluated to determine whether they may constitute a "regulatory taking".

General Principles in the Law of Regulatory Takings

The U.S. Supreme Court and the Texas Supreme Court have struggled to formulate a standard for determining when a governmental regulation of private property goes so far as to become a taking. At present the U.S. Supreme Court and Texas Supreme Court have adopted the following basic legal principles concerning the law of regulatory takings:

A compensable regulatory taking occurs when a land use regulation either (1) denies the landowner all economically viable uses of the property, or (2) unreasonably interferes with the owner's right to use and enjoy his property.1 The Texas Supreme Court has held that a land use regulation denies a landowner all economically viable uses of the property if the regulation renders the property valueless.2

1 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). In this case, the landowner was prohibited from using any part of his beachfront property for the construction of any structure and this was held to constitute a regulatory taking because of the extreme deprivation of the uses to which the property could be put.2 Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex. 1998).

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In determining whether a governmental regulation unreasonably interferes with an owner's right to use and enjoy his property, a court must evaluate two factors: (1) the economic impact of the regulation (i.e., comparing the value that has been taken from the property with the value that remains), and (2) the extent to which the regulation interferes with "distinct investment backed expectations" of the landowner.3 A regulation that interferes with existing or already-permitted land uses is more likely to be considered a regulatory taking than a regulation which interferes with speculative uses or the landowner's asserted entitlement to the highest and most valuable use of every piece of his property.

In the case of governmental exactions, the required dedication for public use or of public facilities must be roughly proportional to the actual need for those public facilities which is generated by the proposed development.4 For example, the amount of roadway required to be dedicated by the developer must be reasonably commensurate to the amount of traffic generated by the new development.

In defending a challenge to a regulation, the governmental entity must show that the regulation actually substantially advances a legitimate state interest.5 A legitimate state interest has been liberally interpreted to include even such things as protecting residents from the "ill effects of urbanization" and the preservation of desirable aesthetic features.6

Possible remedies for a regulatory taking are to invalidate the offending regulation or to make the governmental entity liable for monetary damages.7

The Texas Real Property Rights Preservation Act

In response to widespread concerns about governmental intrusions on private real property rights in the mid-1990's (sometimes referred to as the "Take Back Texas" movement), the Legislature enacted the Texas Real Property Rights Preservation Act. The overriding purpose of the Act was to ensure that governmental entities in Texas take a "hard look" at the effects on private real property rights of the regulations they adopt.

Definition of A Regulatory Taking

The following information is taken from the regulatory background on the issue of Regulatory Takings contained in a guidance document prepared by the Texas Office of the Attorney General (OAG).8 The Act [specifically TGC §2007.002(5)] defines a "taking" as follows:

(A) a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Article I, Texas Constitution; or

(B) a governmental action that:

(i) affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental

3 Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 936 (Tex. 1998).4 Dolan v. City of Tigard, 512 U.S. 374 (1994).5 Nollan v. California Coastal Commission, 483 U.S. 825 (1987).6 Agins v. City of Tiburon, 447 U.S. 255 (1980); Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978).7 First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).8 "Private Real Property Rights Preservation Act Guidelines", State of Texas, Office of the Attorney General, Internet Website, August 11, 2008. http://www.oag.state.tx.us/AG Publications/txts/propertyg:uide2005.shtml

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action; and

(ii) is the producing cause of a reduction of at least 25% in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect.

The Act, in TGC §2007.002, thus sets forth a definition of "taking" that (i) incorporates current jurisprudence on "takings" under the United States and Texas Constitutions, and (ii) sets forth a new statutory definition of "taking." Essentially, if a governmental entity takes some "action" covered by the Act and that action results in a devaluation of a person's private real property of 25% or more, then the affected party may seek appropriate relief under the Act. Such an action for relief would be predicated on the assumption that the affected real property was the subject of the governmental action.

TGC §2007.003(a) provides that the Act applies only to the following governmental actions:

(1) the adoption or issuance of an ordinance, rule, regulatory requirement, resolution,policy, guideline, or similar measure;

(2) an action that imposes a physical invasion or requires a dedication or exaction of private real property;

(3) an action by a municipality that has effect in the extraterritorial jurisdiction of the municipality, excluding annexation, and that enacts or enforces an ordinance, rule,regulation, or plan that does not impose identical requirements or restrictions in the entire extraterritorial jurisdiction of the municipality; and

(4) enforcement of a governmental action listed in Subdivisions (1)-(3), whether the enforcement of the governmental action is accomplished through the use of permitting, citations, orders, judicial or quasi-judicial proceedings, or other similar means.

The requirement to perform a Takings Impact Assessment only applies to actions described in TGC §2007.003(a)(1)-(3).Governmental Actions Exempted From the Act

There are certain governmental actions exempted by the Act. The following actions are exempted from coverage of the Act under §2007.003(b):

(1) an action by a municipality except as provided by subsection (a)(3);

(2) a lawful forfeiture or seizure of contraband as defined by Article 59. 01, Code of Criminal Procedure;

(3) a lawful seizure of property as evidence of a crime or violation of law;

(4) an action, including an action of a political subdivision, that is reasonably taken to fulfill an obligation mandated by federal law or an action of a political subdivision that is reasonably taken to fulfill an obligation mandated by state law;

(5) the discontinuance or modification of a program or regulation that provides a unilateral expectation that does not rise to the level of a recognized interest in private real property;

(6) an action taken to prohibit or restrict a condition or use of private real property if the governmental entity proves that the condition or use constitutes a public or private

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nuisance as defined by background principles of nuisance and property law of this state;

(7) an action taken out of a reasonable good faith belief that the action is necessary to prevent a grave and immediate threat to life or property;

(8) a formal exercise of the power of eminent domain;

(9) an action taken under a state mandate to prevent waste of oil and gas, protect correlative rights of owners of interests in oil or gas, or prevent pollution related to oil and gas activities;

(10) a rule or proclamation adopted for the purpose of regulating water safety, hunting,fishing, or control of nonindigenous or exotic aquatic resources;

(11) an action taken by a political subdivision:

(A) to regulate construction in an area designated under law as a floodplain;

(B) to regulate on-site sewage facilities;

(C) under the political subdivision's statutory authority to prevent waste or protect rights of owners of interest in groundwater; or

(D) to prevent subsidence;

(12) the appraisal of property for purposes of ad valorem taxation;

(13) an action that:

(A) is taken in response to a real and substantial threat to public health and safety ;

(B) is designed to significantly advance the health and safety purpose; and

(C) does not impose a greater burden than is necessary to achieve the health and safety purpose; or

(14) an action or rulemaking undertaken by the Public Utility Commission of Texas to order or require the location or placement of telecommunications equipment owned by another party on the premises of a certificated local exchange company.

Based on the types of actions in the Proposed Regulations, Hays County believes that certain proposed revisions are exempt, either because they do not constitute a “covered governmental action” or because they do not impose a burden on private real property rights; however a few of the proposed revisions may not be exempt and so require the County to prepare this Takings Impact Assessment.

Lawsuit to Invalidate a Governmental TakingThe Act allows landowners whose property is significantly impaired by governmental regulations to sue the governmental entity to invalidate the regulation.9 As an alternative to invalidation of the governmental action, the governmental entity may elect to pay the landowner compensation for the loss in value of the property interest.10 The Act is generally applicable to any governmental action (e.g., adoption of an ordinance, regulatory requirement or policy, or a governmental exaction) that restricts or limits the landowner's rights in the real property and that causes a reduction of 25% or more in the market value of the property. Any lawsuit by an affected real property owner against 9 TGC §2007.021 - §2007.02310 TGC §2007.024

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the governmental entity must be filed within 180 days after the owner knew or should have known of the governmental action.11 The prevailing party in the lawsuit against the governmental entity is entitled to recover reasonable and necessary attorney's fees and court costs from the losing party.12

Requirement to Prepare A Takings Impact AssessmentIn addition to a lawsuit to invalidate a taking by a governmental entity, all governmental entities in Texas (including the County) are required to prepare a Takings Impact Assessment evaluation of any proposed regulation that may impair private real property interests and to provide public notice of the takings impact assessment.13 If a governmental entity fails to prepare a required Takings Impact Assessment, an affected real property owner may bring suit to invalidate the governmental action and recover attorney's fees and court costs.14

EVALUATION PROCESS

Based on those items from the Proposed Regulations determined to be subject to the preparation of a Takings Impact Assessment, the County is evaluating these items using the guidelines prepared by the Texas Office of the Attorney General. These guidelines require each action be evaluated through a series of questions. These questions, with subsequent instructions, are:

Question 1: Is the Governmental Entity undertaking the proposed action a Governmental Entity covered by the Act, i.e., is it a "Covered Governmental Entity"? See the Act, §2007.002(1).

(1) If the answer to Question 1 is "No": No further compliance with the Act is necessary.(2) If the answer to Question 1 is "Yes": Go to Question 2.

TGC §2007.002(1)(B) indicates that "a political subdivision of this state" is a covered governmental entity. Article IX of the Texas Constitution indicates that Counties are political subdivisions of the State. Therefore the County would be a covered governmental entity, subject to the requirement to prepare a TIA where it would otherwise be required.

Question 2. Is the proposed action to be undertaken by the Covered Governmental Entity an action covered by the Act, i.e., a "Covered Governmental Action"? See §2 of these Guidelines; and Governmental Entity-Specific TIA Procedures for "Categorical Determinations" as developed by the respective Covered Governmental Entities.

(1) If the answer to Question 2 is "No": No further compliance with the Act is necessary.(2) If the answer to Question 2 is "Yes": Go to Question 3.

Based on the County's review of the Act, certain of the actions included in the Proposed Regulations qualify as Covered Governmental Actions while others do not. As outlined above, the Proposed Regulations do not propose any "physical taking" of any particular property, but certain actions are required to be evaluated as a "regulatory taking". Those actions determined to be Covered Governmental Actions will be further evaluated using subsequent questions.

11 TGC §2007.021(b)12 TGC §2007.02613 TGC §2007.041 - §2007.04514 TGC §2007.044

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Question 3. Does the Covered Governmental Action result in a burden on "Private Real Property" as that term is defined in the Act?

(1) If the answer to Question 3 is "No": A "No Private Real Property Impact" or NoPRPI Determination should be made. No further compliance with the Act is necessary if a NoPRPI Determinations is made. Logically, the initial critical issue regarding any proposed governmental action is whether there is any burden on private real property. If a governmental entity has not resolved this issue by reference to its preexisting list of Categorical Determinations, it can do so by quickly and concisely making a NoPRPI Determinations. (2) If the answer to Question 3 is "Yes": A TIA is required and the governmental entity must undertake evaluation of the proposed governmental action on private real property rights.

Based on the County's review of the Act, certain of the actions included in the Proposed Regulations may result in the imposition of a burden on "Private Real Property" as that term is defined in the Act. Those actions determined to impose a burden on "Private Real Property" will be further evaluated using subsequent questions and through the preparation of a Takings Impact Assessment.

Question 4. What is the Specific Purpose of the Proposed Covered Governmental Action? The TIA must clearly show how the proposed governmental action furthers its stated purpose. Thus, it is important that a governmental entity clearly state the purpose of its proposed action in the first place, and whether and how the proposed action substantially advances its stated purpose.

Question 5. How Does the Proposed Covered Governmental Action Burden Private Real Property?

Question 6. How Does the Proposed Covered Governmental Action Benefit Society?

Question 7. Does the Proposed Covered Governmental Action result in a "taking"?

The actions determined to be Covered Governmental Actions which also impose a burden on "Private Real Property" as that term is defined in the Act have been proposed to accomplish several different purposes. Each of those actions determined to be both a Covered Governmental Action and which impose a burden on "Private Real Property" will be further evaluated using Questions 4 through 7 through in the Takings Impact Assessment. The Office of Attorney General guidance also provides the following sub-questions for items determined to be Covered Governmental Actions:

(1) Does the Proposed Covered Governmental Action Result Indirectly or Directly in a Permanent or Temporary Physical Occupation of Private Real Property?

(2) Does the Proposed Covered Governmental Action Require a Property Owner to Dedicate a Portion of Private Real Property or to Grant an Easement?

(3) Does the Proposed Covered Governmental Action Deprive the Owner of all Economically Viable Uses of the Property?

(4) Does the Proposed Covered Governmental Action have a Significant Impact on the Landowner's Economic Interest?

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(5) Does the Covered Governmental Action Decrease the Market Value of the Affected Private Real Property by 25% or More? Is the Affected Private Real Property the subject of the Covered Governmental Action? See the Act, §2007.002(5)(B).

(6) Does the Proposed Covered Governmental Action Deny a Fundamental Attribute of Ownership?

In addition to these questions to be addressed for each proposed action, the Office of Attorney General guidance also recommends an alternatives evaluation:

Question 8. What are the Alternatives to the Proposed Covered Governmental Action?

For each of the Covered Governmental Actions which also impose a burden on "Private Real Property", an alternatives evaluation will be provided.

Actions in the Proposed RegulationsDetermined to Not Be “Covered Governmental Actions”

(“No” to OAG Question 2)

Table 721.02. Gives the County discretion to require turn lanes on minor collector roadways. The County proposes to change the automatic exemption from turn lanes for minor roadways to a case-by-case determination by the County engineer. Because this revision would give the County Engineer discretion to require turn lanes on a case-by-case basis, it is possible that in a given case, there could be an additional burden on private real property interests. However, the requirement to install turn lanes on minor collector roadways will enhance the safety of drivers waiting to make a turn off of minor collector roadways and help ensure unrestricted access by emergency vehicles using minor collector roadways to respond to calls. The County believes that failure to have adequate turn lanes on minor collector roadways creates constitutes a “real and substantial threat to public health and safety” and that the proposed revision will significantly advance this health and safety purpose. Furthermore, the proposed revision does not impose a greater burden than is necessary to achieve this health and safety purpose. See Tx. Gov’t Code §2007.003(b)(13). Therefore this revision is not a “covered governmental action” under the Private Real Property Rights Preservation Act and is not subject to the requirement to prepare a TIA.

Table 721.02. Requires all driveways to be constructed a minimum distance from property or easement lines. The County proposes to establish a minimum five feet separation distance between a residential driveway and a property or easement line, and a minimum 15 feet separation distance for commercial driveways. The requirement for minimum separation distances between driveways and property or easement lines will avoid the dangers inherent in situating driveways so close to each other that it creates the potential for collisions between vehicles entering and exiting a driveway. The County believes that the potential for such collisions is a “real and substantial threat to public health and safety” and that the proposed revision will significantly advance this health and safety purpose. Furthermore, the proposed revision does not impose a greater burden than is necessary to achieve this health and safety purpose. See Tx. Gov’t Code §2007.003(b)(13). Therefore this revision is not a “covered

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governmental action” under the Private Real Property Rights Preservation Act and is not subject to the requirement to prepare a TIA.

Sections 721.3.02. and 721.4.01. Requires that regulated private roadways meet the same requirements as for public roadways under Chapter 731 (except for Subchapter 3 of Chapter 731). The County proposes to subject regulated private roadways to the same public infrastructure construction requirements as public roadways under Chapter 731 except for Subchapter 3 (Acceptance of Public Infrastructure for Maintenance). Regulated private roadway construction must also be tested and inspected by the County under the Specifications for Paving and Drainage Improvements. The requirement that regulated private roadways meet most of the requirements applicable to public roadways reflects the County’s belief that the same threats to public safety that exist for public roadways also exist for regulated private roadways. This revision will enhance the safety of drivers using regulated private roadways and help ensure unrestricted access by emergency vehicles using regulated private roadways to respond to calls. The County believes that subjecting regulated private roadways to the normal County process for inspecting and testing public roadways is needed to avoid a “real and substantial threat to public health and safety” and that the proposed revision will significantly advance this health and safety purpose. Furthermore, the proposed revision does not impose a greater burden than is necessary to achieve this health and safety purpose. See Tx. Gov’t Code §2007.003(b)(13). Therefore this revision is not a “covered governmental action” under the Private Real Property Rights Preservation Act and is not subject to the requirement to prepare a TIA.

Section 721.5.02. Requires that all regulated roadway construction be inspected by the County. The County proposes to add a requirement that all regulated roadways be inspected by the Hays County Transportation Department. The County believes that inspection of all roadway projects is the most important factor in ensuring uniform and proper quality of roadway construction work. Where poor roadway construction workmanship and shoddy materials have been used in the past, it has resulted in a “real and substantial threat to public health and safety”. This revision will enhance the safety of drivers and the general public using roadways by avoiding cases where poor construction workmanship and shoddy materials are used in the construction of a roadway. The County believes that the proposed revision will significantly advance this health and safety purpose. Furthermore, the proposed revision does not impose a greater burden than is necessary to achieve this health and safety purpose. See Tx. Gov’t Code §2007.003(b)(13). Therefore this revision is not a “covered governmental action” under the Private Real Property Rights Preservation Act and is not subject to the requirement to prepare a TIA.

Section 721.5.05(C). Requires that all residential driveways comply with the spacing requirements in Table 721.02 and that residential driveway requirements also apply to driveways in private subdivisions that access regulated private roadways. The County proposes to impose the driveway spacing requirements in Table 721.02 on residential driveways and to clarify that residential driveway requirements apply to driveways in private subdivisions even if the driveway only accesses a regulated private roadway. In this section, the County also proposes to clarify that the construction and maintenance of all driveways is the responsibility of the property owner. The County believes that the same threats to public safety that exist for commercial driveways also exist for residential driveways including those within a private subdivision with access only to a regulated private roadway. This revision will enhance the safety of drivers using regulated private roadways and help ensure unrestricted access by emergency vehicles using regulated private roadways to respond to calls. The County believes that subjecting residential

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driveways to the same paving and drainage requirements as for commercial driveways is needed to avoid a “real and substantial threat to public health and safety” and that the proposed revision will significantly advance this health and safety purpose. Furthermore, the proposed revision does not impose a greater burden than is necessary to achieve this health and safety purpose. See Tx. Gov’t Code §2007.003(b)(13). Therefore this revision is not a “covered governmental action” under the Private Real Property Rights Preservation Act and is not subject to the requirement to prepare a TIA.

Section 721.5.07(E). Requires that a shared access driveway accessing a lot greater than 5 acres must have a minimum width of 60 feet. The County proposes to establish a minimum roadway width of 60 feet for shared access driveways serving any lot greater than 5 acres in size. The minimum driveway width requirement will enhance the safety of drivers and help ensure unrestricted access by emergency vehicles serving a 5-acre or greater size lot where there is a potential for more intense development following a future subdivision of such large size lot. Accordingly the County is also proposing that any smaller size lots currently being served by a shared access driveway should be prohibited from further subdivision. The County believes that it is a “real and substantial threat to public health and safety” to have shared access driveways of less than 60 feet when one or more of the lots served by the driveway may undergo more intense development. It is also a “real and substantial threat to public health and safety” to have emergency vehicles utilize a shared access need driveway of less than 60 feet in width due to the impairment of the ability of the emergency vehicles to perform their duties. The County believes that the proposed revision will significantly advance this health and safety purpose and that the proposed revision does not impose a greater burden than is necessary to achieve this health and safety purpose. See Tx. Gov’t Code §2007.003(b)(13). Therefore this revision is not a “covered governmental action” under the Private Real Property Rights Preservation Act and is not subject to the requirement to prepare a TIA.

Section 721.5.10. Requires all roadway inspection and laboratory tests to be witnessed by a County Transportation Department representative upon 48 hours advance notification and all deficiencies corrected before roadway construction work may commence. The County proposes a revision to its Regulated Roadway rules to require a roadway Permittee to notify the County at least 48 hours in advance of scheduled testing and to have a Transportation Department representative present to witness all required inspections and tests. Moreover, no construction work may proceed until all noted deficiencies have been corrected. The County believes that it is a “real and substantial threat to public health and safety” to have roadway Construction Quality Assurance testing completed without the oversight of the Transportation Department and without verification that all noted deficiencies have been corrected. The County believes that the proposed revision will significantly advance this health and safety purpose and that the proposed revision does not impose a greater burden than is necessary to achieve this health and safety purpose. See Tx. Gov’t Code §2007.003(b)(13). Therefore this revision is not a “covered governmental action” under the Private Real Property Rights Preservation Act and is not subject to the requirement to prepare a TIA.

Section 735.2.(52). Revises definition of “Recreational Vehicle” in flood damage prevention regulations. The County is proposing to revise the definition of “Recreational Vehicle” (“RV”) to conform to Texas Dept. of Motor Vehicles specifications for size and weight for RVs to travel on Texas roads. The County has experienced situations where people essentially build “tiny houses” weighing up to 20,000 pounds and up to 20 feet wide but wish to classify them as RVs

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merely because they have wheels. The 2015 flood demonstrated that it is infeasible to get such oversized “RVs” away from destructive flooding quickly enough. Therefore this revision is needed to regulate construction in an area designated under law as a floodplain under Tx. Gov’t Code §2007.003(b)(11) and is taken in response to a “real and substantial threat to public health and safety” under Tx. Gov’t Code §2007.003(b)(13). The County believes that the proposed revision will significantly advance this health and safety purpose and that the proposed revision does not impose a greater burden than is necessary to achieve this health and safety purpose. See Tx. Gov’t Code §2007.003(b)(13). Therefore this revision is not a “covered governmental action” under the Private Real Property Rights Preservation Act and is not subject to the requirement to prepare a TIA.

Section 735.5.02(D)(1). Requires that the lowest floor of a manufactured home in Flood Zone A be elevated at least one foot above the base flood elevation. The County is proposing to revise its flood damage prevention regulations for manufactured homes located in Flood Zone A to require elevation of the home at least one foot above base flood elevation. The County believes that the current wording of the regulation could be interpreted to allow for location of a manufactured home below the 100-year floodplain level. The proposed revision will clarify the regulation to ensure that the manufactured home is entirely located above the base flood elevation. Therefore this revision is needed to regulate construction in an area designated under law as a floodplain under Tx. Gov’t Code §2007.003(b)(11). Therefore this revision is not a “covered governmental action” under the Private Real Property Rights Preservation Act and is not subject to the requirement to prepare a TIA.

Section 735.5.02(D)(2) and (3). Requires that all new manufactured homes in the 100-year floodplain be elevated above base flood level regardless of whether they are located in or out of a manufactured home park or subdivision. The County is proposing to revise its flood damage prevention regulations for manufactured homes located in Flood Zones A1-30, AH and AE so that they are required to be elevated at least one foot above base flood elevation regardless of whether or not the home is located in a manufactured home park or subdivision and regardless of whether the park or subdivision has been expanded or experienced substantial flood damage in the past. Therefore this revision is needed to regulate construction in an area designated under law as a floodplain under Tx. Gov’t Code §2007.003(b)(11). Therefore this revision is not a “covered governmental action” under the Private Real Property Rights Preservation Act and is not subject to the requirement to prepare a TIA.

Section 735.5.02(E). Subjects RVs placed in Flood Zone A to comply with the flood damage prevention regulations currently applicable in Flood Zones A1 – 30, AH and AE. The County is proposing to add Flood Zone A to the current group of 100-year flood zones in which RVs are located that must comply with the flood damage regulations in Section 735.02(E). Flood Zone A should have been included in the flood damage regulations for RVs but apparently was inadvertently omitted. This revision will correct that oversight by expressly including a reference to Flood Zone A. Therefore this revision is needed to regulate construction in an area designated under law as a floodplain under Tx. Gov’t Code §2007.003(b)(11). Therefore this revision is not a “covered governmental action” under the Private Real Property Rights Preservation Act and is not subject to the requirement to prepare a TIA.

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Actions in the Proposed RegulationsDetermined to Not Place a Burden on Private Real Property

(“No” to OAG Question 3)

Section 701.3.02(F). Adds definition for “Condominium Development”. The County is proposing to include a definition for the term “Condominium Development” in Section 701.3.02(F). The definition of “Condominium Development” is taken directly from Chapter 82 of the Texas Property Code (the Uniform Condominium Act). Having this definition will clarify what type of projects are regulated as condominium developments under the County’s development regulations and how the County will administer its development regulations. As stated in Section 1.13 of the OAG guidance:

TIAs must concentrate on the truly significant real property issues. No need exists to amass needless detail and meaningless data. The public is entitled to governmental conformance with legislative will, not a mass of unnecessary paperwork.

As a revision which merely standardizes administrative processing procedures, the addition of this definition will assist members of the public and will not place a direct burden on private real property. Therefore this revision qualifies for a “No Private Real Property Impact” determination (hereafter, a “No PRPI Determination”) as provided in the OAG guidelines and would not be subject to the requirement to prepare a TIA.

Section 701.3.02(OO). Revises definition for “Regulated Roadways” to include “Existing Private Roadways” but not shared access easements and shared access driveways. The County is proposing to revise its definition of “Regulated Roadways” in Section 701.3.02(OO) to exclude “shared access easements” and “shared access driveways” from classification as a regulated “existing private roadway”. Revising this definition will clarify how the County will administer its development regulations. To the extent removing “shared access easements” and “shared access driveways” from classification as a regulated existing private roadway, this revision results in less of a burden on landowners. As a revision that merely standardizes administrative processing procedures and as one that lessens the burden on landowners, this revision qualifies for a No PRPI Determination as provided in the OAG guidelines and would not be subject to the requirement to prepare a TIA.

Section 701.3.02(RR). Adds definition for “Shared Access Driveway”. The County is proposing to include a definition for the term “Shared Access Driveway” in Section 701.3.02(RR). Having this definition will clarify what type of lot access roadways are regulated as shared access driveways under the County’s development regulations. As a revision which merely clarifies and standardizes administrative processing procedures, the addition of this definition will assist members of the public and will not place a direct burden on private real property. Therefore this revision qualifies for a No PRPI Determination as provided in the OAG guidelines and would not be subject to the requirement to prepare a TIA.

Section 701.8.01(B)(2). Removes the requirement for a written report to the Commissioners Court identifying all administrative approvals during the past month. The County is proposing to delete Paragraph (2) from Subsection (B) of Section 701.8.01. which requires the Department to forward a written report to Commissioners Court identifying all administrative approvals issued

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during a particular calendar month. This report has not been utilized for some time and the County has determined that it is an obsolete requirement. Because this revision addresses requirements applicable only to the Department, it does not affect private real property rights. Therefore this revision qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA. [Note: Paragraph (B)(2) should be shown in the proposed regulations as a deletion.]

Section 701.8.05(F). Establishes new variance for minimum lot size when there is no net increase in density. The County is proposing to add a new variance for minimum lot size when there is no net increase in density in cases of lot consolidation or lot line relocations. The new variance will allow the County’s Development Services Department to approve amended plats that do not meet minimum lot size requirements so long as there is no increased density. Adding this new variance provides more flexibility to the Department in the way it administers its development regulations and provides an additional avenue for a landowner to obtain plat approval that would not be authorized under the existing development regulations. As a revision that provides more flexibility to landowners in cases of lot consolidation or lot line relocations, this new variance definition will assist members of the public and will not place a direct burden on private real property. Therefore this revision qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA.

Section 705.2.01. Clarifies that a condominium style development requires platting. The County is proposing to add a clause to Section 705.2.01 to expressly require platting for a “condominium style development”. Such revision conforms the development regulations to current County policy that all condominium regime projects require platting. This policy has been reviewed and accepted by the Texas Attorney General’s Office (see A.G. Op. No. GA-223 (2004)). Because this revision merely clarifies and restates current County policy which complies with existing state law, it qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA.

Section 705.3.01. Establishes an additional class of subdivisions that are not subject to platting. The County proposes to add a new Paragraph (C) to Section 705.3.01 to create a new category of subdivisions that is not subject to platting requirements (though subject to the requirement for registration). The new exempted class is a subdivision resulting in three or fewer parcels utilizing a minimum 50-foot wide single access easement where all resulting parcels are at least 10 acres in size. This revision will provide a greater measure of clarity both for County staff as well as property owners so as not to leave the issue open for interpretation. Because this revision merely clarifies how these types of subdivisions will be regulated and because it relieves landowners of this type of subdivision from platting requirements, it qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA.

Section 705.4.03(F). Requires submittal of an initial plat in a PDF file format. The County proposes to establish a new requirement for initial plat applicants to submit the application as a PDF file. This will assist the County in meeting its objective of moving toward a “paperless” plat application system for purposes of administrative efficiency. Because this revision merely standardizes administrative processing procedures in the interest of administrative efficiency and does not impact private real property rights, it qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA.

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Section 705.5.01(N). Requires submittal of roadway geometric design parameters complying with the standards in Table 721.02. The County proposes to establish a new requirement that information submitted for preliminary and final plats include roadway geometric design parameters that comply with the standards set forth in Table 721.02. This revision will make the plat administrative submittal requirements for preliminary and final plats consistent with the roadway design standards in Table 721.02. Because this revision merely standardizes administrative processing procedures and does not impact private real property rights, it qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA. To the extent this revision incorporates Chapter 721 requirements that help ensure adequate minimum roadway widths and help ensure unrestricted access by emergency vehicles, it is not a “covered governmental action” under the OAG guidelines.

Section 705.5.02(F). Requires that all utilities be located outside of County right-of-way unless specifically allowed in a development agreement. The County proposes to clarify an existing policy that all utility lines and facilities must be located outside of County roadway right-of-way unless otherwise authorized in a development agreement. Because this revision merely standardizes administrative processing procedures and clarifies and restates current County policy, it qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA. [Note: If this is not existing County policy, then it would impose a burden on plat applicants to secure additional utility easement rights adjacent to existing County right-of-way.]

Section 705.5.03(I) and (J). Requires that a plat application include a Traffic Impact Analysis as required by Section 721.6.03 and a certification that all lots have adequate frontage to comply with Chapter 721 driveway spacing requirements. The County proposes to establish a requirement that information submitted with plat applications include a Traffic Impact Analysis and certification of adequate frontage to meet driveway spacing requirements as set forth in the Chapter 721 roadway standards. This revision will make the plat application administrative submittal requirements consistent with the requirements in Chapter 721. Because this revision merely standardizes administrative processing procedures and does not impact private real property rights, it qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA. To the extent this revision incorporates Chapter 721 requirements that help ensure adequate minimum roadway widths and help ensure unrestricted access by emergency vehicles, it is not a “covered governmental action” under the OAG guidelines.

Section 705.5.04. Exempts subdivisions with five or fewer lots that meet minimum lot size requirements exempt from the stormwater management requirements of Paragraphs (E), (F) and (G) of Section 705.5.04. The County proposes to make Section 705.5.04 consistent with the stormwater standards in Chapters 725 and 735 by exempting small subdivisions that meet minimum lot size requirements from the stormwater requirements of Paragraphs (E), (F) and (G). Because this revision merely standardizes administrative processing procedures and exempts small subdivisions from certain stormwater requirements, it does not impact private real property rights and would not be subject to the requirement to prepare a TIA. To the extent this revision addresses flood damage prevention measures, it is not a “covered governmental action” under the OAG guidelines. [Note: The proposed wording of the revision actually narrows the scope of the exemption. Also, the word “subchapter” should be “section”.]

Section 705.10.05. Requires a plat applicant to submit an affidavit to document differences between surveyed acreages and acreages shown in tax office records. The County proposes to

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require submission of an affidavit with a record plat to attest to any differences between surveyed acreages and acreage figures shown in tax office records. Typically this situation arises when there is a new survey of property under an existing plat and the acreage figures do not always match. The requirement to submit an affidavit attesting to the acreage difference will help eliminate resulting legal and title issues and conform tax office records with new survey information. Because this revision merely standardizes administrative processing procedures and does not impact private real property rights, it qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA.

Section 721.5.03. Requires that building setbacks be measured from the established right-of-way line. The County proposes to clarify the point on a lot from which required building setback lines are determined. Because this revision merely standardizes administrative processing procedures and does not impact private real property rights, it qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA.

Section 721.5.05(B). Deletes the word “generally” with respect to the prohibition on flag lots. The County proposes to change the general prohibition against flag lots to an unqualified prohibition. However, because the proposed revision does not alter the requirement that the Commissioners Court make the final determination as to whether a lot is a “flag lot”, regardless of whether the prohibition is stated as a general prohibition or as an unqualified prohibition, essentially there is no significant change in the burdens on private real property rights. Therefore it qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA.

Section 721.5.07(C). Reduction from 200 feet to 120 feet as the minimum distance between a Shared Access Driveway and any other driveway entering on a Regulated Roadway. The County proposes to reduce the minimum required distance between a Shared Access Driveway and any other driveway entering on a Regulated Roadway from 200 feet to 120 feet. Because this is a relaxation of existing impacts on private real property rights, it qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA.

Section 721.6.01. Changes the dedication of right-of-way in accordance with transportation planning authorities from a mandatory requirement to a discretionary requirement. The County proposes to revise the current mandatory obligation for a roadway permit applicant to dedicate right-of-way in accordance with County and CAMPO transportation plans to a requirement that is discretionary with the County. Changing this from a requirement applicable in all cases to a requirement applicable only in cases as determined by the County is a relaxation of impacts on private real property rights. Therefore it qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA.

Section 731.2.04. Requires that all utility lines under an existing paved roadway be both bored and sleeved to a point four feet beyond the edge of the pavement. The County proposes to clarify that utility lines and other infrastructure installed under an existing paved roadway must be both bored and sleeved to a point four feet past the edge of the pavement. Because this revision merely clarifies existing County policy and standardizes administrative processing procedures, it qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA.

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Section 735.2.(61). Revises definition of “Substantial Improvement” in flood damage prevention regulations. The County is proposing to revise the definition of “Substantial Improvement” in its flood damage prevention regulations to delete “repetitive loss” as a criterion for determining which structures are deemed to have undergone substantial improvement. The deletion of this criterion allows homeowners to decide if they want to continue living in a house that has been flooded more than once. The County believes this revision is needed because of the subjective nature of flood damage repair estimates (e.g., from the 2015 floods, the County has seen repair estimates to houses that vary by 50% even though the houses are located adjacent to each other). Because this revision gives more discretion to house owners, it lessens any existing burden on private real property rights. Therefore it qualifies for a No PRPI Determination and would not be subject to the requirement to prepare a TIA.

Actions in the Proposed Regulations Determined to Be “Covered Governmental Actions”

That Place a “Burden” on Private Real Property The following proposed revisions to the County’s development regulations have been determined to be “Covered Governmental Actions” that may place a “burden” on Private Real Property. Each of these proposed revisions has been evaluated using the additional questions in OAG guidelines (specifically Questions 4 through 8, and where necessary, the sub-questions).Section 705.5.08. Requires preliminary and final plats for new subdivisions with at least 25 lots to have ADA-compliant sidewalks on at least one side of all streets. Under its authority to establish reasonable specifications for the construction of subdivision streets and roads under Tx. Local Gov’t Code §232.003, the County is proposing to require that new subdivisions with 25 or more lots (with a size of one acre or less) have an ADA-compliant sidewalk on at least one side of all streets. Any sidewalks located within proposed County right-of-way must be maintained by the homeowners association (“HOA”) or utility district (or as otherwise specified in the development agreement). This revision potentially burdens private real property rights because of the increased acreage required to be dedicated and used for sidewalks. However, the fact that the requirement only applies to new subdivisions with at least 25 lots lessens the potential burden since sidewalks will not be required for old subdivisions or small rural subdivisions. Accordingly, the County evaluates this proposed change to its development regulations under the various questions suggested by the OAG Guidelines as follows:

OAG Question 4 – What is the Specific Purpose of the Proposed CGA?

The purpose of the proposed requirement for sidewalks on new subdivision roads is to enhance the safety and ease of pedestrians, to regulate traffic flow on subdivision roads, and to facilitate rainfall and stormwater drainage.

OAG Question 5 – How Does the Proposed CGA Burden Private Real Property?

The proposed revision potentially burdens private real property by requiring the landowner plat applicant to dedicate to the public the land comprising the sidewalks.

OAG Question 6 – How Does the Proposed CGA Benefit Society?

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The proposed revision benefits society by enhancing the safety and ease of pedestrians, by regulating traffic flow on subdivision roads, and by facilitating rainfall and stormwater drainage.

OAG Question 7 – Does the Proposed CGA Result in a “Taking”?

OAG Sub-question 1 – Does the Proposed CGA Result Indirectly or Directly in a Permanent or Temporary Physical Occupation of Private Real Property?

Yes, the dedication of the area comprising the sidewalk is a permanent dedication of the land to the public.

OAG Sub-question 2 – Does the Proposed CGA Require a Property Owner to Dedicate a Portion of Private Real Property or to Grant an Easement?

Yes, the portion of the land comprising the sidewalks would be permanently dedicated to the public.

OAG Sub-question 3 – Does the Proposed CGA Deprive the Owner of All Economically Viable Uses of the Property?

No, the landowner as a member of the general public may utilize the sidewalks for their intended purpose.

OAG Sub-question 4 – Does the Proposed CGA Have a Significant Impact on the Landowner’s Economic Interest?

No, requiring at least one sidewalk on a new subdivision road does not have an adverse economic impact on a subdivision applicant, and in fact sidewalks generally enhance the marketability and value of adjoining lots.

OAG Sub-question 5 – Does the CGA Decrease the Market Value of the Affected Private Real Property by 25% or More? Is the Affected Private Real Property the subject of the Covered Governmental Action? See the Act, §2007.002(5)(B).

No. Having at least one sidewalk on every new subdivision street generally does not decrease, but rather enhances, the market value of subdivision lots.

OAG Sub-question 6 – Does the Proposed CGA Deny a Fundamental Attribute of Ownership?

Yes, the requirement to dedicate land for sidewalks denies the landowner the fundamental right to exclude others from use of the property.

OAG Sub-question 8 – What Are the Alternatives to the Proposed CGA?

The only alternative would be to not require sidewalks. However, the requirement for a sidewalk on only one side of a new subdivision street is less of a burden than if the development regulations required sidewalks on both sides of the street.

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Conclusion: The County’s proposed action of requiring sidewalks on at least one side of each new subdivision of 25 lots or more does not constitute a Regulatory Taking. Although the plat applicant is required to dedicate land to the public for use as a sidewalk, the absence of any sidewalks would fail to achieve the objective of public safety and drainage performed by sidewalks and would fail to meet the expectations of the subdivision lot buying public. The requirement to require a sidewalk on only one side of a subdivision street is a reasonable balancing between the need to protect private property rights and the value and enhancement of property values associated with sidewalks.

Section 705.8.03(F). Requires the owner of a driveway on a subdivision lot that accesses only private roads to obtain a Chapter 751 permit for use of County right-of-way. Under its authority to establish reasonable specifications for the construction of subdivision streets and roads under Tx. Local Gov’t Code §232.003, the County is proposing to require a Chapter 751 permit for use of County right-of-way to authorize a driveway accessing only a private roadway. Currently the County only requires a permit for driveways accessing a public roadway, but the proposed revision would expand that to include driveways accessing both public and private roadways. This revision potentially burdens private real property rights because of the increased time and expense of acquiring a County right-of-way permit under Chapter 751. Accordingly, the County evaluates this proposed change to its development regulations under the various questions suggested by the OAG Guidelines as follows:


The purpose of the proposed requirement is to subject all subdivision driveways to the requirement to have a Chapter 751 County right-of-way permit, regardless of whether the driveway accesses a public or private roadway.


The proposed revision potentially burdens private real property by requiring a lot owner to apply for and obtain a Chapter 751 County right-of-way permit for a driveway that only accesses a private roadway.


The proposed revision benefits society by subjecting all driveways to County Transportation Department review to ensure that the driveway is properly designed and constructed in accordance with Chapter 751 requirements for protection of public health, safety and the environment.



No.


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No.


No, the proposed revision would only require the lot owner to obtain a County right-of-way permit under Chapter 751.


No. The only economic impacts would be the time and expense of acquiring the Chapter 751 permit.


No.


No.


The only alternatives would be to not require a permit for a driveway accessing only private roadways, or to only require registration (instead of permitting) of private roadway driveways. However, neither of those alternatives would enable the County to ensure that the public health, safety and environment is protected as when a Chapter 751 permit is required.

Conclusion: The County’s proposed action of requiring a Chapter 751 County right-of-way permit for all subdivision driveways regardless of whether the driveway accesses a public or private roadway does not constitute a Regulatory Taking. The requirement to obtain a permit does not place significant economic burdens on an affected lot owner in comparison to the public health and safety and environmental interests served by the proposed regulation.

Section 705.10.04. Requires a record plat to be recorded within 12 months of final approval or else it will have to be submitted for re-approval by the County Commissioners Court. Under its authority to establish expiration dates for plats under Tx. Local Gov’t §245.005, the County is proposing to set 12 months as the expiration date of a record plat if it is not recorded in the County deed records within such time period. If a record plat is not recorded within 12 months of final approval, it must be submitted for re-approval by the Commissioners Court. This revision potentially burdens private real property rights because of the loss of rights obtained under an approved record plat if it is not recorded within 12 months. Accordingly, the County evaluates this proposed change to its development regulations under the various questions suggested by the OAG Guidelines as follows:

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OAG Question 4 - What is the Specific Purpose of the Proposed CGA?

The purpose of the proposed revision is to minimize the number of projects that are constructed under older, and generally less protective standards, to the extent allowed by law.

OAG Question 5 - How Does the Proposed CGA Burden Private Real Property?

The proposed revision may create a burden on Private Real Property by loss of rights to construct a platted project if the final plat is not recorded within 12 months.

OAG Question 6 - How Does the Proposed CGA Benefit Society?

In general, the County believes that older plat standards are generally not as protective of the public as newer standards. By implementing the proposed 12-month expiration period for final plats, the County intends to minimize the number of projects constructed under older, generally less protective standards. The proposed revision will benefit the residents of Hays County by minimizing the number of projects using old or outdated standards.

OAG Question 7 - Does the Proposed CGA result in a "taking"?

OAG Sub-question 1 - Does the Proposed CGA Result Indirectly or Directly in a Permanent or Temporary Physical Occupation of Private Real Property?

No.

OAG Sub-question 2 - Does the Proposed CGA Require a Property Owner to Dedicate a Portion of Private Real Property or to Grant an Easement?

No.

OAG Sub-question 3 - Does the Proposed CGA Deprive the Owner of all Economically Viable Uses of the Property?

In the event that a final plat expired, the landowner would be deprived of the right to develop the property in accordance with the plat. However, other non-subdivision uses of the property would remain available, or the landowner could submit the final plat for re-approval by Commissioners Court. Given these alternative actions, the proposed revision will not deprive a landowner of all economically viable use of the property.

OAG Sub-question 4 - Does the Proposed CGA have a Significant Impact on the Landowner's Economic Interest?

As described in the response to OAG Sub-question 3, in the event that a final plat expired, the proposed revision could result in the loss of the right to develop the proposed subdivision. However, because the landowner has the right to submit the plat for re-approval by the Commissioners Court, the impact on the landowner’s economic interest is not considered significant.

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OAG Sub-question 5 - Does the CGA Decrease the Market Value of the Affected Private Real Property by 25% or More? Is the Affected Private Real Property the subject of the Covered Governmental Action? See the Act, §2007.002(5)(B).

Given the fact that the cost of remedying an expired plat would be to submit it for re-approval, it is very doubtful that there would be a permanent loss of 25% or more in market value.

OAG Sub-question 6 - Does the Proposed Covered Governmental Action Deny a Fundamental Attribute of Ownership?

No.

OAG Question 8 - What are the Alternatives to the Proposed CGA?

The proposed revision is based on authority granted to counties by the Texas Legislature to establish expiration dates for development approvals. The only alternative to the proposed revision is to not implement this authority. The County believes that the proposed revision provides significant public benefits at relatively small risk of adverse impact to property owners.

Conclusion: The County's proposed revision of establishing an expiration date for final plats that are not recorded within 12 months does not constitute a Regulatory Taking. Any loss of a landowner’s right to develop the property as a subdivision would be the landowner’s failure to record the final plat within 12 months of approval, not the expiration of the final plat. Since the proposed revision would not be the producing cause of the loss of the right to develop the property, it would not constitute a regulatory taking.

Section 721.6.02. Establishes standards for location of mail kiosks and sets minimum vehicle parking requirements around mail kiosks. Under its authority to establish reasonable specifications for the construction of subdivision streets and roads under Tx. Local Gov’t Code §232.003, the County is proposing to establish standards for the location of mail kiosks and associated parking. Under the proposed revision, an ADA-complaint mail kiosk must be located adjacent to and off of the right hand shoulder of a subdivision entrance road and not closer than 500 feet from the entrance. Stacking and parking space for at least ten vehicles must be provided adjacent to the kiosk, and additional parking for five vehicles must be provided on the opposite side of the subdivision entrance road with a signed pedestrian crosswalk to the mail kiosk. This revision potentially burdens private real property rights because of the obligation to dedicate property for mail kiosks and associated parking. Accordingly, the County evaluates this proposed change to its development regulations under the various questions suggested by the OAG Guidelines as follows:


The purpose of the proposed standards for mail kiosks and associated parking is to enhance the safety and ease of pedestrians and to regulate traffic flow on subdivision roads in and around mail kiosks.


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The proposed revision potentially burdens private real property by requiring the landowner to dedicate to the public certain land for locating a mail kiosk and for associated parking and stacking of vehicles.


The proposed revision benefits society by enhancing the safety and ease of pedestrians and by regulating traffic flow on subdivision roads around mail kiosks.



Yes, the dedication of the area comprising the mail kiosk and associated vehicle parking and stacking areas is a permanent dedication of the land to the public.


Yes, the portion of the land comprising the mail kiosk and associated vehicle parking and stacking areas would be permanently dedicated to the public.


No, the landowner as a member of the general public may utilize the mail kiosk and vehicle parking areas for their intended purpose.


No, requiring mail kiosks to be conveniently located off the right hand shoulder of a subdivision entrance road and requiring adequate vehicle parking and stacking areas adjacent to the kiosk does not have an adverse economic impact on a subdivision applicant, and in fact those features generally enhance the marketability and value of the subdivision lots.


No. Having conveniently located mail kiosks and adequate adjacent parking generally does not decrease, but rather enhances, the market value of the subdivision lots.


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Yes, the requirement to dedicate land for mail kiosks and associated vehicle parking and stacking denies the landowner the fundamental right to exclude others from use of the property.


The only alternative would be to not establish standards for mail kiosks and associated parking. However, the proposed requirement for parking or stacking of up to 15 total vehicles is less burdensome on private real property rights than a rule revision requiring parking for more vehicles.

Conclusion: The County’s proposed action of requiring mail kiosks to be conveniently located off the right hand shoulder of subdivision entrance roads and requiring adequate space for parking and stacking of vehicles around a mail kiosk does not constitute a Regulatory Taking. Although the plat applicant is required to dedicate certain land to the public for use as a mail kiosk and associated parking, the absence of a dedicated convenient area for mail kiosks and associated parking would fail to achieve the objective of public safety and convenience and would fail to meet the expectations of the subdivision lot buying public. The rule revision to require convenient and safely located mail kiosks with adequate nearby parking for 15 vehicles is a reasonable balancing between the need to protect private property rights and the value and enhancement of property values associated with the mail kiosks.

Section 721.6.03. Requires submission of a Traffic Impact Analysis for all developments expected to generate at least 100 peak hour vehicle trips per day in order to assess the need for turn lanes or other roadway improvements. Under its authority to establish reasonable specifications for the construction of subdivision streets and roads under Tx. Local Gov’t Code §232.003, the County is proposing to require the submission of a Traffic Impact Analysis by an applicant for a Development Approval in order to assess the need for turn lanes or other roadway improvements if a proposed development will generate at least 100 peak hour vehicle trips per day. The scope and nature of the required Traffic Impact Analysis will be determined in a pre-application meeting with the County’s Director of Development Services and Transportation Director. This revision potentially burdens private real property rights because of the costs and time needed to perform a Traffic Impact Analysis and make the roadway improvements (e.g., extra turn lanes) recommended by the Traffic Impact Analysis. Accordingly, the County evaluates this proposed change to its development regulations under the various questions suggested by the OAG Guidelines as follows:


The purpose of the proposed requirement to submit a Traffic Impact Analysis is to ensure that all turn lanes and other roadway improvements needed for safe and efficient travel on subdivision roadways are constructed.


The proposed revision potentially burdens private real property by requiring the landowner to incur the cost and time associated with obtaining a Traffic Impact Analysis and constructing

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whatever turn lanes and other roadway improvements are determined by the County based on the results of the Traffic Impact Analysis.


The proposed revision benefits society by enhancing the safety of drivers and pedestrians by facilitating traffic flow on subdivision roads.



No, except to the extent any roadway improvements recommended by the Traffic Impact Analysis requires dedication to the public of additional land for roadway turn lanes or other improvements.


No, except to the extent any roadway improvements recommended by the Traffic Impact Analysis requires dedication to the public of additional land for roadway turn lanes or other roadway improvements.


No, the requirement to obtain a Traffic Impact Analysis and potentially make roadway improvements does not prevent the landowner from utilizing the roadway as a member of the public or as an economically beneficial amenity for the landowner’s proposed subdivision.


No, the economic impact on the landowner of the proposed requirement to obtain a Traffic Impact Analysis and potentially make roadway improvements is insignificant in comparison to the beneficial economic impacts realized through development as an approved subdivision.


No, the economic impact on the landowner of the proposed requirement to obtain a Traffic Impact Analysis and potentially make roadway improvements would not amount to anywhere near 25% of the total value of approved subdivision development.


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No.


The only alternative would be to not require a Traffic Impact Analysis but this would not accomplish the public safety objectives of constructing needed turn lanes and other roadway improvements.

Conclusion: The County’s proposed action of requiring a Traffic Impact Analysis to determine needed turn lanes and other roadway improvements does not constitute a Regulatory Taking. Although the plat applicant will be required to incur the cost and time of obtaining a Traffic Impact Analysis, the failure to identify needed turn lanes and other roadway improvements would fail to achieve the objective of traffic safety which the rule revision is intended to achieve. The rule revision to require a Traffic Impact Analysis to identify needed turn lanes and other roadway improvements is a reasonable requirement in view of the public safety benefits achieved.

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Documents

Web view · 2017-02-07In determining whether a governmental regulation unreasonably interferes with an owner's right to use and enjoy his property, a court must evaluate two factors: