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0900 OFFICIAL RECORD ORDINANCE NO. 900 AN ORDINANCE OF THE CITY OF SOUTHLAKE, TEXAS, ESTABLISHING A MUNICIPAL STORMWATER (DRAINAGE) UTILITY SYSTEM; SETTING FORTH DEFINITIONS; ESTABLISHING STORMWATER CHARGES AND MONTHLY STORMWATER UTILITY SYSTEM FEES; ESTABLISHING THE BILLING AND PAYMENT OF STORMWATER (DRAINAGE) FEES; PROVIDING PENALTIES AND REMEDIES FOR FAILURE TO PAY FEES; PROVIDING EXEMPTIONS FROM AND ADJUSTMENT OF FEES; ESTABLISHING PROGRAM RESPONSIBILITIES AND A STORMW A TER UTILITY SYSTEM FUND; PROVIDING PROCEDURES FOR APPEALS; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, within the City of Southlake there is an existing stormwater system which has been developed over a number of years for the purpose of collecting and disposing of stormwater runoff; and WHEREAS, the present stormwater system IS inadequate to control and manage stormwater runoff within the City limits; and WHEREAS, it is necessary and essential to ensure that the collection of stormwater runoff and control of stormwater within the City limits adequately protects the health, safety, and welfare of the citizens of the City including, but not limited to, the protection from loss of life and damage to property caused by surface water overflows and surface water stagnation; and WHEREAS, it is necessary and essential that the City address the various water quality and environmental issues that may further burden its stormwater infrastructure requirements; and WHEREAS, notice of a hearing to consider this Ordinance was duly, properly and legally given; and WHEREAS, Chapter 402, Subchapter C, of the Texas Local Government Code, as amended, authorizes the City to establish a municipal drainage (stormwater) utility system within the boundaries of the City; and WHEREAS, the Act authorizes the City to provide rules for the use, operation and financing of a drainage (stormwater) utility system; and WHEREAS, the Act authorizes the City to prescribe bases upon which to fund a drainage (stormwater) utility system and to assess the fees and charges to support the system; and WHEREAS, the Act authorizes the City to provide exemptions of certain governmental and other entities or persons from the payment of these charges; and w: \Southlake\Ordinances\Storm Water\Stormwater.doc WHEREAS, the City desires to adopt the Act and establish a stormwater utility system as a public utility; and WHEREAS, in setting the schedule of charges for stormwater service, the calculations are based on an inventory of the lots and tracts within the City and the area of and type of development on the benefitted properties; and WHEREAS, it is the intent of the City to fund the stormwater utility system in a manner that fairly and equitably allocates the cost of stormwater control to properties in proportion to stormwater runoff potential for each class of property; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS: SECTION I. DEFINITIONS The following definitions apply to the establishment and the operation of the Stormwater Utility System: 1. Act: means Chapter 402, Subchapter C, of the Texas Local Government Code, as amended. 2. Allocated Portion of a Parcel: means that portion of a parcel which has been allocated to an owner or customer based on the area utilized by the owner or customer compared to the total area of a parcel. 3. Benefitted Property: means an improved parcel, lot or tract to which stormwater service is made available. 4. City: means the City of Southlake. 5. Customer: means the person(s) or entity(ies) recorded as the customer or user of utility services for a parcel as recorded in the records of the City's utility billing system. 6. Director: means the Director of Public Works of the City or the Director's designee. 7. Disabled Person: means any person who suffers from a disability as defined by the Americans with Disability Act of 1990,42 U.S.C. Sections 12101, et seq., as amended. 8. Dwelling Unit: means any building or portion thereof which contains living facilities, including provisions for sleeping, eating, cooking and sanitation, as required by applicable City codes, for not more than one family, or a congregate residence for 10 or less persons. A dwelling unit may be a single family house, a town home, a manufactured home or a portion of a duplex, triplex or quadplex. W: \Southlake\Ordinances\Storm Water\Stormwater.doc 9. Elderly Person: means any person who is over sixty-five (65) years of age. 10. Impervious Area (or Impervious Surface): means a surface that has been compacted or covered with a layer of material so that it is resistant to infiltration by water and does not have a natural state of vegetative cover. Impervious areas include, but are not limited to, compacted soils with a surface treatment, gravel or crushed stone surfaces, asphalt or concrete pavement, parking lots, driveways, sidewalks and private roadways, and buildings, and other man-made structures, surfaces, or uses that change the natural surface of the land and have the effect of increasing, concentrating, or otherwise altering stormwater runoff. 11. Improved Parcel: means a lot or parcel that has been changed from its natural state by construction of a structure or other improvement on it that causes an impervious surface or coverage of the soil on the property. 12. Non-Residential Property: means an improved parcel which is not a residential property. 13. Owner: means the person(s) or entity(ies) recorded as the owner of a parcel as recorded in the records of the Tarrant County Appraisal District or Denton County Appraisal District. 14. Parcel: means one or more lots or tracts, or portions oflots or tracts. 15. Residential Property: means an improved parcel upon which not more than four (4) dwelling units are constructed. 16. Service Area: means the area within the boundaries of the City of Southlake. 17. Stormwater Infrastructure or Drainage Infrastructure: means the property, real, personal or mixed, that is used in providing stormwater capacity to manage and control stormwater runoff for the stormwater utility system, including bridges, catch basins, channels, conduits, creeks, culverts, detention ponds, retention ponds, ditches, draws, flumes, pipes, pumps, sloughs, treatment works, and appurtenances to those items, whether natural or artificial, or using force or gravity, that are used to draw off surface water from land, carry the stormwater runoff away, collect, store, or treat the stormwater runoff, or divert the stormwater runoff into natural or artificial watercourses. Drainage infrastructure has the same meaning as stormwater infrastructure. 18. Stormwater Operations and Maintenance Expenditures: means any expenditures that are required to finance, operate and maintain stormwater infrastructure including debt service, equipment, personnel, educational and administrative expenditures. 19. Stormwater Only Account: means a utility billing account established for the sole purpose of billing applicable stormwater utility fees where other utility servIces are provided privately or through suppliers other than the City. W: \Southlake\Ordinances\Stonn Water\Stonnwater. doc 20. Stormwater Runoff Potential: means relative potential for causing stormwater runoff quantities or velocities from a parcel based on the type of development or land use on the parcel and the size of the parcel. 21. Stormwater Utility Fee or Drainage Utility Fee: means the charge, including interest and penalties, paid by the owner or customer of a benefitted property for stormwater services provided by the stormwater utility system, including, but not limited to, the items described in the definition of "cost-of-service" in Section 402.044(2) of the act. Stormwater utility fee has the same meaning as the drainage utility fee. 22. Stormwater Utility Fee Ordinance: means the ordinance establishing stormwater fees, Ordinance No. 901, as amended. 23. Stormwater Utility Ordinance: means this Ordinance, as amended from time to time. 24. Stormwater Utility System or Drainage Utility System: means the stormwater utility system owned or controlled, in whole or in part by the City, including the City's existing stormwater facilities, materials, and supplies and any stormwater facilities, materials, and supplies hereafter constructed or utilized, and dedicated to the service of benefitted property, and including provision for additions to the system. The stormwater utility system has the same meaning as the drainage utility system. 25. Wholly Sufficient and Privately Owned Stormwater System: means land and facilities owned and operated by a person or entity other than the City and from which stormwater does not discharge under any storm frequency event or conditions into a creek, river, slough, culvert, culvert, channel or other infrastructure that is part of the City's stormwater utility system. SECTION II. ESTABLISHMENT OF A STORMWATER UTILITY A. Creation within the Meaning of the Act. The City hereby adopts the prOVlSlons of Subchapter C of Chapter 402 of the Texas Local Government Code and hereby creates and establishes a stormwater utility system to serve the City, whose boundaries shall be the boundaries of the City. The City declares the stormwater utility system(s) to be a public utility and further finds that the City shall: 1. establish a schedule of drainage (stormwater) charges against all real property in the City subject to charges under Subchapter C of Chapter 402 of the Texas Local Government Code; and 2. provide drainage (stormwater) for all real property in the City on payment of drainage charges, except such real property which may be exempted therefrom as authorized by law; and w: \Southlake\Ordinances\Storm Water\Stormwater.doc 3. offer such drainage (stormwater) service on non-discriminatory, reasonable and equitable terms. B. Duty of Director. It shall be the duty of the Director to administer the stormwater utility system. The Director shall keep an accurate record of all properties benefitted or served by the stormwater utility system and the stormwater utility fee charged for each parcel or portion of a parcel. The record may be maintained within the City's utility billing system or in other record keeping systems that may be developed. C. Program Implementation. By the adoption of this Ordinance, the City makes no representation that all of the City's stormwater problems will be remedied; and the City Council is given full discretion in establishing the time and quantitative priorities in expending funds on a reasonable basis as the same become available to meet the stormwater needs of the City. The adoption of this Ordinance shall not be construed to relieve private land owners, developers or other individuals or entities from providing stormwater improvements pursuant to the ordinances of the City and the laws of this state which relate to stormwater or stormwater improvements. Further, the City does not waive any immunity granted under any law. SECTION III. ESTABLISHMENT OF A STORMWATER UTILITY FEE AND BILLING A. Stormwater Utility Rate Classes. A stormwater utility fee is established, and the fee shall be imposed on each benefitted property within the City for services and facilities provided by the stormwater utility system. For purposes of imposing the stormwater utility fee, all eligible parcels within the City are classified into the following categories: 1. Residential 2. Non-Residential B. Responsible Party. 1. The stormwater utility fee shall be billed monthly along with water, wastewater or solid waste (garbage) billing. 2. The bill imposing the stormwater utility fee will be mailed to either the owner or customer as is currently established as the responsible party for water, wastewater and solid waste service for the parcel; and, the owner or customer recorded in the utility billing system will be responsible for payment of the fee. 3. Where an improved parcel is not occupied by a customer that might use water, wastewater, solid waste or other utility service and considered by the City to be vacant, either on a temporary or permanent basis, the City may bill the owner ofthe parcel for the storm water utility fee. W: \Southlake\Ordinances\Storm W ater\Stormwater. doc 4. Where the City does not bill water, wastewater or solid waste service to an owner or customer, the City is hereby authorized to establish a "stormwater only account" and to bill the stormwater utility fee to either the owner or customer, as the Director determines is appropriate. C. Revision of Rates. The City Council shall establish the initial rates for the stormwater utility fee by ordinance. The City Council may review the schedule of rates at any time and may, by ordinance, increase or decrease the rates within the schedule, upon a determination that said increase or decrease is warranted. D. Billing Procedures and Policies. 1. Any partial payment of the stormwater utility fee will be applied against the amount due in accordance with the policies and procedures established by the City with regard to all utility services provided by the City. 2. A late charge may be imposed in accordance with the policies and procedures established by the City with regard to all utility services. E. Non Payment. The City may file suit to recover any charges due hereunder, together with maximum interest, attorney fees and other costs and charges that may be allowed by the act or other law, which is not paid when due. In addition to any other remedies or penalties provided at law or in this Ordinance, failure of a customer or owner of the stormwater utility system to pay the charges promptly when due shall subject such customer or owner to discontinuance of any utility services provided by the City and/or placement of a lien against the property. SECTION IV. CALCULATION OF STORMWATER UTILITY FEES A. Rates in Accordance with Act. The stormwater utility fee shall be established in accordance with the provisions of the act, including, but not limited to, Section 402.047. B. Fee Calculation. The stormwater utility fee shall be based on an inventory of parcels within the City which also evaluates the stormwater runoff potential on those parcels and establishes a rate for each class of property. The stormwater utility fee shall be set to recover the cost- of-service that has been established for the stormwater utility system in a fair and equitable manner, and if so determined by the City Council, an amount to establish one or more funds to provide financing for future stormwater system construction and for implementing programs to improve stormwater quality. The proportional stormwater runoff potential for each class shall be distributed equitably between classes and among the parcels in each class in proportion to the relative contribution of stormwater runoff from each class. C. Stormwater Runoff Potential. For purposes of establishing the stormwater runoff potential on parcels between and within each rate class, the impervious area for parcels shall be inventoried from information established by Tarrant County and Denton County Appraisal W: \Southlake\Ordinances\Storm Water\Stormwater. doc Districts, from Geographic Information System records, from aerial photography and from site plans or plats available for properties within the City. The impervious area measured in square feet as obtained from these database sources, site plans or other surveyor engineering calculations shall be used to establish the relative stormwater runoff potential for each rate class and among parcels within each rate class. SECTION v. APPEAL A. Appeal of Stormwater Utility Fees to the Director. An owner or customer who has been charged a stormwater utility fee and believes that the calculation or determination of the stormwater utility fee is incorrect may appeal the fee determination to the Director. The Director shall evaluate all appeals based on the methodologies for calculating the stormwater utility fee set forth in the Stormwater Utility Fee Ordinance. B. Process. 1. The appeal shall be in writing and set forth in detail the grounds upon which relief is sought. The Director shall decide the appeal based upon a preponderance of the evidence. 2. Until October 2007, the Director shall issue a decision on the appeal within four (4) months from the date that the Director receives the appeal. If the Director determines an adjustment is warranted, he shall authorize an adjustment retroactive to the beginning of billings of the appealed fee, but the adjustment period shall not exceed one (1) year. 3. After October 2007, the Director shall issue a decision on the appeal within thirty (30) days from the date that the Director receives the appeal. An adjustment resulting from such a request shall be prospective and applied to future billings and may also be retroactive for no more than three (3) months prior to the receipt ofthe appeal. 4. The Director shall issue a written decision on an appeal. B. Supporting Information for Appeal. The person filing the appeal may be required, at the person's cost, to provide supplemental information to the Director, including but not limited to survey data sealed by a Texas licensed professional land surveyor, engineering reports sealed by a Texas licensed professional engineer qualified in civil engineering, or other documentation that the Director deems necessary to properly evaluate the appeal. Failure to provide requested information in a timely manner may result in the denial of the appeal. C. Appeal of Stormwater Utility Fees to the City Council. 1. An owner or customer may appeal the following decisions of the Director to the City Council: a. the applicability of a stormwater utility fee to a parcel; w: \Southlake\Ordinances\Storm Water\Stormwater.doc b. the calculation of applicable stormwater runoff potential for a parcel; c. the calculation of the stormwater utility fee for a parcel; or d. the discontinuance of utility service, filing of a lien or other legal actions for non- payment of stormwater utility fees. 2. The owner or customer shall file a written appeal to the City Council with the City Secretary within thirty (30) days following receipt of the Director's decision. The City Council shall hear the appeal within sixty (60) days of receipt of the appeal by the City Secretary. Notice of the hearing shall be mailed to the address given in the appeal form or, if no address is given, to the address on the utility billing statement at least fourteen (14) days prior to the hearing. 3. The burden of proof shall be on the owner or customer to demonstrate that the fee is not applicable or that the determination of the value of the fee was not calculated according to the applicable stormwater fee schedule or the methodologies established in the Stormwater Utility Fee Ordinance. If applicable, and if not previously submitted to the Director, the owner or customer shall submit, with the appeal, a report describing the basis for the appeal. The report shall be prepared by a Texas licensed professional engineer qualified in civil engineering. The failure to submit such a report shall be considered in determining whether the applicant has met the burden of proof. 4. If the appeal is accompanied by a bond or other sufficient security satisfactory to the City Attorney in an amount equal to the original determination of the stormwater utility fee due, any discontinued utility services may be reinstated while the appeal is pending. 5. At the hearing, the City Council shall allow testimony from the applicant, City employees and other interested persons relevant to the appeal. The hearing may be continued from time to time. 6. Following the hearing, the City Council shall consider all evidence and determine whether the appeal should be granted (in whole or in part) or denied. 7. The City Council shall complete its review and make a decision about the appeal within thirty (30) days of the hearing. The City Council shall apply the standards and review criteria contained in this Section. 8. The City Council's decision shall be final. D. Imposition and Ap-peal of Lien. 1. Before imposing a lien for delinquent stormwater utility charges, the City shall send notice to the owner of the amount of the charges owed and any penalties or interest accrued, and of the owner's right to appeal the imposition of the lien. The notice must provide a time, place and means by which the charges causing the lien may be paid or disputed. The notice shall be sent to the address shown on the tax rolls if the Owner has not notified the City of a different address. w: \Southlake\Ordinances\Storm Water\Stormwater.doc 2. Within ten (10) working days of the postmark of the notice sent to the owner, the owner may appeal the decision to impose the lien on the property to the Director. 3. The owner shall present evidence at a meeting with the Director. Within five (5) working days after the date of the meeting, the Director shall direct that the lien not be filed if he finds the customer or the owner does not owe a fee, and shall give the owner written notice of the decision. 4. If warranted, the Director may modify the lien to reflect the true amount of delinquency in payment for services to the property. 5. When a person pays all principal, interest and all other charges allowed by law that are secured by a lien filed pursuant to this Ordinance, the Director shall execute a release of that lien. SECTION VI. TERMINATION OF DISTRICT If, after at least five (5) years of substantially continuous operation of the stormwater utility system, the City Council determines that the stormwater utility system should be discontinued, the powers under the act should be revoked, and the provision for financing municipal stormwater costs should be made by using other revenues, the City Council may adopt an ordinance that in effect, after providing notice and a public hearing as required by the act, discontinues the stormwater utility system. SECTION VII. STORMW A TER UTILITY FUND A. Stormwater Fund. A stormwater utility fund is established and may consist of one or more accounts. All stormwater utility fees shall be deposited as collected and received into this fund, and shall be used exclusively for stormwater services as stated in Section 402.044(2) of the act, including, but not limited to the following: 1. The cost of the acquisition of land, rights-of-way, options to purchase land, easements, and interests in land relating to structures, equipment, and facilities used in draining the benefitted property; 2. The cost of the acquisition, construction, repair, and maintenance of structures, equipment, and facilities used in draining the benefitted property; 3. The cost of architectural, engineering, legal, and related services, plans and specifications, studies, surveys, estimates of cost and of revenue, and all other expenses necessary or incident to planning, designing, providing, or determining the feasibility and capability of structures, equipment, and facilities used in draining the benefitted property; w: \Southlake\Ordinances\Stonn Water\Stonnwater.doc 4. The cost of all machinery, equipment, furniture, and facilities necessary or incident to the provision and operation of draining the benefitted property; 5. The prorated cost of funding and financing charges and interest arising from construction projects and the start-up cost of a stormwater facility used in draining the benefitted property; 6. The prorated cost of debt service and reserve requirements for funding of stormwater infrastructure paid with revenue bonds or other securities or obligations issued by the City and supported by pledge of stormwater revenues; 7. To the extent permitted by law, the cost of constructing, sampling, monitoring, building, inspecting and maintaining structures needed for the City's regulations and permitting requirements for stormwater quality; and 8. The administrative costs of the stormwater utility system. B. Stormwater Fund Accounting. 1. The City shall clearly account for revenues and expenditures authorized for operation of the stormwater utility system. 2. The revenues collected from stormwater utility fees shall be segregated and completely identifiable from other City funds and accounts. 3. Funds and revenues in the stormwater utility fund may be transferred to the City's general fund as allowed by law. C. Stormwater Service Deposit. A deposit shall not be charged for initiation or continuation of stormwater utility service. SECTION VIII. EXEMPTIONS The following entities or persons shall be exempt from this Ordinance: A. Any property to which a mandatory exemption under Section 402.053 of the act applies, including without limitation: 1. property with proper construction and maintenance of a wholly sufficient and privately owned stormwater system that does not discharge under any storm frequency events or conditions to waterways controlled or maintained by the City; and 2. property held and maintained in its natural state, until such time that the property is developed and all of the public infrastructure constructed has been accepted by the City for maintenance; and W: \Southlake\Ordinances\Storm Water\Stormwater. doc 3. a subdivided parcel or lot, until a structure has been built on the lot and a certificate of occupancy has been issued, or the City has taken another official action to release the property for occupancy; and B. Any property to which a mandatory exemption under Section 430.003 of the Local Government Code applies; C. Any of the following described or identified entities and property owned by such entities: 1. Tarrant County; 2. a state agency; 3. a public institution of higher education; 4. Carroll Independent School District; and 5. Keller Independent School District; and D. elderly and disabled individuals residing in the City, provided such residents have a household income which is less than two hundred percent (200%) of the Federal Poverty Level; and E. the City and property owned by the City; If the owner of property asserts that such property is exempt pursuant to this Section or any other applicable law, such property owner has the burden to assert such exemption by filing notice of eligibility for such exemption and sufficient evidence of entitlement to such exemption with the Director. If the exemption is not granted, the owner may appeal using the procedures for appeal provided in Section V. above. SECTION IX. CUMULATIVE CLAUSE This Ordinance shall be cumulative of all provisions of ordinances and of the Code of Ordinances of the City of Southlake, Texas, as amended, except where the provisions are in direct conflict with the provisions of other ordinances, in which event the conflicting provisions of the other ordinances are hereby repealed. SECTION X. SAVINGS AND SEVERABILITY CLAUSE It is hereby declared to be the action of the City Council that the phrases, clauses, sentences, paragraphs and sections of this Ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared unconstitutional or invalid due to conflict with superior statute by the valid judgment or decree of any court of competent W: \Southlake\Ordinances\Storm W ater\Stormwater. doc jurisdiction, such phrases, clauses, sentences, paragraphs and sections shall be deemed to be reformed to the minimum extent necessary to conform with such constitutional and superior statutory provisions; furthermore, any such unconstitutionality or invalidity shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this Ordinance, since the same would have been enacted by the City Council without the incorporation in this Ordinance of any such unconstitutional phrase, clause, sentence, phrase, paragraph or section. SECTION XI. EFFECTIVE DATE This Ordinance shall be in full force and effect after its passage, and it is so ordained. PASSED AND APPROVED on First Reading on this ~rJ day of !kfubm 2006. ~~ A -d~ W am~~~ss, Mayor ATTEST: "Ht...."" ",,"'oU THI ~"'" ~ ~ /~;:........:z;;~\ - : ~ l ~'--, ~ rJ ~5i,* }~~ Lon Farwell, City Secretary ~ \ l CI) f lIP ~c .-.: ~ Go .-" ~, .$...... .....' PASSED AND APPROVED on S~oorlH~::t~g on this }f)t. II mil 17th day of {QclnbvU 2006. -/~~C=J Andy W am~anss, Mayor ~l~~ Lori Farwell, City Secretary ~~l ,'l;,'~t ~.,. \.. ~ ij ':i'",,~ .....;..O\JTHI ~ "" ...." /~ <:;, ......"'...~~~ " " ~ e- o. '\.' ~ ~ 0 s.- ..... """"'~ E~: '* if": :/-0',' o~: - -. . - -C,)o 0 - ; \ /cn! .,. liI ..... ~ -41' .-.: '#'.. 60.$"....11.. .......::- " ..' '-" *** "" Jl/"""II1'\" ATTEST: Approved as to fo City Attorney / w: \Southlake\Ordinances\Storm Water\Stormwater. doc