Chambers-CS 930311 NICHOLS, JACKSON, KIRK & DILLARD,
_A~,-~,c~_.~-. ~.~.c~scu Attorneys & Counselors at Law
-,~, ~'~. 1800 Lincoln Plaza
~c~rn- _. o,_c~> ,~ 500 North A~rd
~[rss ~ s~.-. Dallas, Texas 75201
:.~.-.' c. ~ ~ (214) 954-3333
sqJ:[ ~ sTec4.a~: Facsimile (214) 954-3334
March 11, 1993
Via Facsimile
Mr. Kenneth M. Griffin, P.E.
City Engineer
City of Coppell %J'""'""~---'-~- ~ "~;~'"~--,;..)~,_.._ ....,"r'"~"~'.
P.O. Box 478 _
Coppell, Texas 75019
Re: Chambers Addition
Dear Mr. Griffin:
Pursuant to your request, the undersigned provides the following opinion
concerning the City's request to Chamber and Schaffer, Inc. for payment of substandard
roadway fees for the Chambers Addition. Specifically, you asked whether the City should
request payment of the escrow for the substandard roadway fees for the Chambers
Addition and withhold signing and filing the plat until the fees are paid or take other
action.
You advise that on or about January 8, 1993, you sent a letter to Chamber and
Schaffer, Inc. regarding payment of the substandard roadway fees for Bethel Road
adjacent to the Chambers Addition. Next, you advise that after the letter was mailed, you
received a note from the City Manager requesting that you contact the Ci~' Attorney
regarding payment of the substandard roadway fees. As a result, you advise that the
filing of the plat is being withheld until payment of the fees.
As our letter of March 8, 1993 indicates, it is our opinion that the Coppell
substandard roadway fee is an impact fee that does not comply with the requirements of
Chapter 395 of the Local Government Code. Chapter 395 of the Local Government Code
prohibits the imposition of any impact fee by a City unless specifically authorized by the
Act. The Act specifically applies to funding of off-site facilities. Although the definition of
on-site improvements is subject to different interpretations and has not been construed
by any court in Texas, we are of the opinion that an on-site facility means an improvement
Mr. Kenneth M. Griffin, P.E.
March 11, 1993
Page 2
located within the boundaries of a platted subdivision, or if the property has not been
platted, an improvement to be located within the boundaries of the property to be platted.
Thus, we concluded that the substandard roadway fee ordinance is an impact fee
ordinance since it relates to off-site roadway improvements which are adjacent to or
outside of a platted subdivision.
Since your letter of March 2, 1993 indicates the escrow is for substandard roadway
fees for Bethel Road adjacent to the Chambers Addition, the fees would be for an off-site
improvement pursuant to an ordinance not adopted in accordance with Chapter 395 of
the Local Government Code. Under Chapter 395 of the Local Government Code, the
substandard roadway fee ordinance should have been replaced on or before June 20,
1990. Since the Coppell substandard roadway fees have not been replaced by an impact
fee adopted pursuant to Chapter 395 of the Local Government Code, the City would be
liable to any party, including Chamber and Schaffer, Inc., who pays an impact fee that
exceeds the maximum permitted under subchapter B of Chapter 395 by more than 10%,
for an amount equal to two (2) times the difference between the maximum impact fee
allowed and the actual impact fee imposed, plus reasonable attorneys' fees and court
COSTS.
Whether or not the City desires to collect the substandard roadway fees for Bethel
Road adjacent to Chambers Addition from Chamber and Schaffer, Inc. will depend on
whether or not the City is willing to assume the risk of having to make a refund in double
the amount of any excess collections, plus reasonable attorneys' fees and court costs.
If challenged, the City could not lawfully require the payment. Whether the developer can
and will voluntarily participate and pay the substandard roadway fees is entirely another
matter. We do not recommend withholding the plat for filing until the substandard
roadway fees are paid. As we previously advised, the City should replace the
substandard roadway fees with an impact fee ordinance for roadway facilities adopted
pursuant to Chapter 395 of the Local Government Code.
AGG03C94
Mr. Kenneth M. Griffin, P.E.
March 11, 1993
Page 3
Thank you for your attention to this matter. If you have any questions in this
regard, please do not hesitate to contact me.
Very truly yours,
NICHOLS, JACKSON, KIRK & DILLARD
By: ~.~_~
PGS/mdm
cc: Mr. Alan Ratliff
City Manager
City of Coppell
P.O. Box 478
Coppell, Texas 75019
AGG03C94