§ 32-76. General design and construction requirements

(a) Ensure that improvement installed properly. The requirements of this chapter as set forth in this section are designed and intended to ensure that for all subdivisions of land within the scope of this chapter all improvements as required herein are installed properly prior to recording the final plat, and:

(1) The city can provide for the orderly and economical extension of public facilities and services;

(2) All purchasers of property within the subdivision shall have a usable, buildable parcel of land; and

(3) All required improvements are constructed in accordance with city standards.

(b) Adequate public facilities policy. The land to be divided or developed must be served adequately by essential public facilities and services. No subdivision shall be approved unless and until adequate public facilities exist or provision has been made for parks water facilities, wastewater facilities, drainage facilities, electricity and street facilities which are necessary to serve the development proposed, whether or not such facilities are to be located within the property being platted or off-site. This policy may be defined further and supplemented by other ordinances adopted by the city.

(1) Proportionality appeal.

a. Purpose. The purpose of a proportionality appeal is to ensure that the application of uniform dedication and construction standards to a proposed development projects does not result in a disproportionate burden on the property owner, taking into consideration the nature and extent of the demands created by the proposed development on the city's public facilities systems.

b. Applicability. An appeal under this chapter may be submitted by a property owner or applicant to contest any requirement to dedicate land or to construct public improvements for dedication to the public that is imposed to a plat application or to any related development application authorized by the city, whether the requirement is under uniform standards, or attached as a condition to approval of a permit. An appeal under this chapter shall not be used to waive standards on grounds applicable to any petition for an alternative subdivision designs, waiver, or exception as found in other chapters of this title.

c. Effect. If the relief requested under the appeal is granted in whole or in part by the city council, the dedication, fee or construction requirement initially imposed shall be modified accordingly. In the event the original application was denied by the city council based upon the property owner's failure to incorporate the dedication or construction requirement in the proposed permit or plat, the application shall be remanded to the original decision-maker for a decision consistent with the relief granted by the council.

(2) Appeal requirements.

a. Who may apply. A property owner or applicant may appeal when a dedication or construction requirement has been applied to development application, a plat, or is the basis for denying the plat application.

b. Form of appeal. The appeal shall allege that application of the standard relating to the dedication, fee or construction requirement is not roughly proportional to the nature and extent of the impacts created by the proposed development on the city's water, wastewater, stormwater, parks, or roadway system, as the case may be or does not reasonably benefit the proposed development.

c. Study required. The petitioner shall provide ten copies of a study in support of the petition for relief that at a minimum includes the following information:

1. Impact of the proposed development on the capacity of the city's water, wastewater, stormwater, parks, or roadway system to be utilized by the proposed development, employing standard measures of capacity and equivalency tables relating the type of development proposed to the quantity of system capacity to be consumed by the development. If the proposed development is to be developed in phases, such information also shall be provided for the entire development proposed, including any phases already developed.

2. Comparison of the capacity of the city's public facilities systems to be consumed by the proposed development with the capacity to be supplied to such systems by the proposed dedication of an interest in land or construction of capital improvements. In making this comparison, the impacts on the city's public facilities systems from the entire development shall be considered.

3. The study shall be prepared by a registered professional engineer demonstrating that the exaction being required is not roughly proportionate to those required of other development of a similar nature and extent within the city. Such study shall also demonstrate that a waiver or modification of the required exaction shall not result in inadequate public facilities to serve the proposed development.

4. Any other information that shows the alleged disproportionality between the impacts created by the proposed development and the dedication or construction requirement imposed by the city.

d. Time for filing appeal and study. An appeal shall be filed with the responsible official within ten business days from the date the requirement to dedicate land or to construct public improvements for dedication to the public is imposed on the applicant. The study in support of the petition shall be filed within 60 business days of the initial decision, unless the petitioner seeks an extension in writing. The responsible official may extend the time for submitting the study for a period not to exceed an additional 30 business days for good cause shown.

(3) Processing of appeals and decision.

a. Responsible official. The city manager is the responsible official for processing a proportionality appeal.

b. Evaluation, recommendation. The city manager shall evaluate the appeal and supporting study and shall make a recommendation to the city council based upon the information contained in the study, any comments received from staff or an engineer retained by the city to evaluate the appeal application submitted to the city. The petitioner shall be responsible for all costs of an engineer retained by the city to evaluate the appeal materials.

c. Decision maker. The city council shall decide the appeal.

d. Hearing. The city council shall conduct a hearing in accordance within 60 business days after the study supporting the petition is submitted to the city manager.

e. Burden of proof. The petitioner bears the burden of proof to demonstrate that the application of a dedication or construction requirement that is uniformly applied imposes a disproportionate burden on the petitioner.

f. Decision. The city council shall consider the petition for relief from a dedication, fee or construction requirement based upon the following criteria:

1. The city council shall determine whether the application of the standard or condition requiring dedication of an interest in land for public improvements or construction of capital improvements is roughly proportional to the nature and extent of the impacts created by the proposed development on such city's water, wastewater, stormwater, parks or roadway system, and reasonably benefits the development.

2. In making such determination, the council shall consider the evidence submitted by the applicant, any testimony submitted by the applicant, the city manager, the city engineer or engineer retained by the city and, where the property is located within the city's extraterritorial jurisdiction, any recommendations from the county.

g. Action. Based on the criteria in subsection (e) of this section, the city council shall, within 30 days following the final submission of any testimony or evidence from the petitioner, take one of the following actions:

1. Deny the petition for relief, and impose the standard or condition in accordance with the initial decision; or

2. Grant the petition for relief, and waive any dedication or construction requirement to the extent necessary to achieve proportionality.

h. Notification of decision on petition. The petitioner shall be notified of the decision on the petition in writing within ten business days of the decision.

i. Effect. The relief granted on the petition shall remain in effect for the period the plat or related approved development application is in effect, and shall expire upon expiration of the plat or related application. The developer shall be responsible for the following to ensure the facilities provided are adequate:

1. Phasing of development or improvements in order to ensure the provision of adequate public facilities;

2. Extensions of public facilities and roadways (including any necessary on-site and off-site facilities) to connect to existing public facilities or roadways;

3. Providing and/or procuring all necessary property interests, including rights-of-way and easements, for the facilities (whether on site or off site);

4. Providing proof to the city of adequate public facilities;

5. Making provisions for future expansion of the public facilities as needed to serve future developments, subject to the city's oversize participation regulations (e.g., when the city will provide for the cost of oversizing facilities), if applicable;

6. Providing for all operations and maintenance of the public facilities, or if the city is not the provider, providing proof that a separate entity will be responsible for the operations and maintenance of the facilities;

7. Providing all fiscal security, if required, for the construction of the public facilities;

8. Obtaining approvals from any applicable utility providers other than the city; and

9. Complying with all requirements of utility providers, including the city or other applicable providers.

(c) Responsibilities of the developer to conform to adopted plans. The developer shall ensure that facilities provided are in conformance with the city's adopted plans, ordinances and regulations.

(1) Proposed facilities serving new development shall conform to and be properly related to the public facility elements of the city's adopted comprehensive plan; other adopted master plans for public facilities and services, and applicable capital improvements plans, and shall meet the service levels specified in such plans.

(2) The design and construction of all water and wastewater facilities to serve the subdivision shall be in conformance with the city's master plans for water and wastewater facilities and with the city's technical specifications.

(3) Public improvements that may be required by the city prior to the acceptance of the subdivision by the city shall include, but not be limited to, the following:

a. Water and wastewater facilities;

b. Stormwater drainage, collection or conveyance facilities;

c. Water quality controls;

d. Streets;

e. Streetlights;

f. Street signs;

g. Walkways (sidewalks);

h. Traffic control devices required as part of the project;

i. Parks or open space; and

j. Appurtenances to the public improvements set forth in this subsection (c)(3), and any other public facilities required as part of the proposed subdivision.

(4) All aspects of the design and implementation of public improvements shall comply with the city's current design standards and any other applicable city ordinances, including preparation and submittal of engineering plans and construction inspection. The construction of all of the improvements required in this chapter shall conform to the latest edition of the DCM manual.

(5) Changes or amendments to the DCM manual and other construction or design documents. The DCM manual will, from time to time, require revisions and updates to allow for changing construction technology. When changes are required, the DCM manual may be amended by separate action, as provided for in section 32-39(c)(2).

(Ord. No. 549, § 10.224, 12-22-2009)