Untitled Texas Attorney General Opinion ( 2010 )

GREG ABBOTT
July 28, 2010
The Honorable Tommy Williarns Opinion No. GA-0788
Chair, Committee on Transportation and
Homeland Security Re: Whether, under chapter 395, Local Govemment
Texas State Senate Code, a municipality may grant a credit for a Water
Post Office BoX 12068 line project on sewer impact fees (RQ-0860-GA)
Austin, Texas 78711
Dear Senator Williams:
ln your capacity as Chair of the Senate Committee on Administration and on behalf of
the City of Baytown (the “City”), you ask “[W]hether under chapter 395 a credit for a water line
project may be given on sewer impact fees[.]”] Local Government Code chapter 395 governs the
imposition of impact fees by cities and other political subdivisions See TEX. LOC. GOV’T CODE
ANN. §§ 395.001-.082 (Vernon 2005 & Supp. 2009). You inform us that the City has adopted
impact fees pursuant to chapter 395 and “entered into an agreement with a developer to give credit
of impact fees for certain costs associated with oversizing [of a water line ] . . . in the City’ s capital
improvement plan.” Request Letter at l. This agreement, you tell uS, “provided that the developer
would ‘receive a credit from the impact fees otherwise due from the new development for the costs
incurred [for oversizing the Water line]."’ Id.2 The developer, you explain, “now desires a credit for
not only its water impact fees but also its wastewater impact fees.” Id.3
Under chapter 395 , a political Subdivision may impose impact fees on a new development
to fund certain capital improvements “Impact fee” is defined as “a charge or assessment imposed
by a political subdivision against new development in order to generate revenue for funding or
recouping the costs of capital improvements or facility expansions4 necessitated by and attributable
lRequest Letter at 1 (available at http://Www.texasattorneygeneral.gov).
2You specifically note that the request “does not seek the Attorney General to consider the validity of such
agreement or the City’s ordinances[.]” Id. n.l.
3Yon inform us that the City’s impact fee ordinance has set “a combined rate of $2,243.46 per service unit and
. . . attributes $324.47 to water and $1,918.99 to wastewater services.” Id. at 1.
4We understand the issue here to involve a capital improvement rather than a facility expansion and limit our
discussion accordingly See id. at 1-2 (referencing generally “capital improvements”).
The Honorable Tommy Williams - Page 2 (GA-0788)
to the new developmen .” TEX. LOC. GOV’T CODE ANN. § 395.001(4) (Vernon 2005) (footnote
added).5 As indicated by this definition, a political subdivision may impose an impact fee for the
costs of constructing a “capital improvement.” Id. § 395.001(1), (4); see id § 395.012(a) (providing
that “[a]n impact fee may be imposed only to pay the costs of constructing capital improvements or
facility expansions”). “‘Capital improvement’ means any of the following facilities . . . : (A) water
supply, treatment, and distribution facilities; Wastewater collection and treatment facilities; . . . storm
water, drainage, and flood control facilities; . . . and (B) roadway facilities.” Id. § 395.001(1).6
__ impact fees for _S_u_e_h _.eepital improvements are eeleu_leted_end_ eeS_e$Sed_per S_el_'viee unit Whieh .i_S
defined as “a standardized measure of consumption, use, generation, or discharge attributable to an
individual unit of development.” Id. § 395.001(10); see id §§ 395.001(6) (defming “New
development”), 395.014(a)(4)-(7) (discussing requirements for a capital improvement plan with
reference to service units in a development), 395.01 5 (providing for calculation of maximum fee per
service unit), 395.016® (deiining “assessment”).
A political subdivision is also authorized to agree to a credit against impact fees. Section
395.019(2) addresses the collection of impact fees when services are not available and agreements
granting “credi ” for costs incurred by a developer for a capital improvement
Except for roadway facilities, impact fees may be assessed but
may not be collected in areas where services are not currently
available unless:
(2) the political subdivision agrees that the owner of a
new development may construct or linance the capital improvements
. . . and agrees that the costs incurred or funds advanced will be
credited against the impact fees otherwise due ji'om the new
development[.]
Id. § 395 .019(2) (emphasis added)."' The section 395.019(2) language, that the “costs incurred or
funds advanced Will be credited against the impact fees otherwise due from the new development,”
5See also 'l``ex. Att’y Gen. Op. No. GA-0577 (2007) at 2 (“An impact fee is generally described in one Texas
case as a charge ‘on new development to pay for new public facilities that become necessary as the result of city growth
in a particular area.”’) (citing DeSoto Wz``ldwood Dev., Inc. v. Cin of Lewisville, 184 S.W.3d 814, 820 n.3 (Tex.
App._Fort Worth 2006, no pet.)).
6Your request letter treats each of these groupings of capital improvements in subdivision 395.001(1)(A) as a
separate category For purposes of this opinion, we adopt this characterization
"'The City appears to have entered into the agreement with the developer for the impact fee credit pursuant to
section 395 .0 l 9(2). See Request Letter at 1 (asking second question); Brief from David Oliver, Allen Boone Humphries
Robinson LLP, at 6-7 (Apr. 23, 2010) (arguing that credit against future impact fees to reimburse the cost of the upsizing
is authorized by section 395.019) (0n file with the Opinion Committee).
The nonorabie rommy williams - rage 3 (oA-0738)
expressly requires that the credit be applied against impact fees due from the new development Id.
Your request suggests and we agree that the statute does not, on its face, limit application of the
credit to impact fees for the same category as the capital improvement expenditure See id.; see
Request Letter at l_2. As relevant here, section 395.019(2) does not expressly require the City to
limit application of a credit for oversizing a water line to water impact fees. '
You inform us that the City is concerned that another provision in chapter 395, section
_ _ _395_.024, might limit application of the credit__to_ water impeet_fe_es and thus preclude its application
to sewer impact fees. See Request Letter at 2. Section 395.024 requires a governmental entity to
account for all hinds collected through the adoption of an impact fee and provides in pertinent part
that:
(a) The order, ordinance, or resolution levying an impact fee must
provide that all funds collected through the adoption of an impact fee
shall be deposited in interest-bearing accounts clearly identi]j)ing the
category of capital improvements . . . W``ithin the service area for
which the fee was adopted.
(c) Impact fee funds may be spent only for the purposes for which
the impact fee was imposed as shown by the capital improvements
plan and as authorized by this chapter
TEX. LOC. GOV’T CODE ANN. § 395 .024(a), (c) (Vernon 2005) (emphasis added). Section 395.024
does not expressly require a political subdivision to limit the purposes for which a credit for a
developer’s cost of a capital improvement may be granted or applied See id.; see also Gall)raith -
Eng’g Consulrants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009) (explaining that, when .
construing a statute, the “prima_ry objective is to give effect to the Legislature’s intent as expressed
in the statute’s language”). The statute, by its terms, requires a governmental entity, first, to identify
for accounting purposes the category of capital improvement to which impact fee revenues relate
an``d, second, limit the expenditure of the impact fee revenue to the purposes_presumably the
identified category of capital improvement_for Which the fees were imposed See TEX. LOC. GOV ’T
CODE ANN. § 395 .024(a), (c) (Vernon 2005).
The issue presented here is Whether the section 395.024 accounting and expenditure
limitations with respect to a “category of capital improvements” implicitly limit the purposes for
which a political subdivision may grant impact fee credits under section 395.019(2). The section
395.019(2) credit for a developer’s cost of constructing a capital improvement is, on its face, (l) a
method to finance capital improvements in a new development without up-front expenditure of
governmental funds; and (2) a substitute for the impact fees that would otherwise be collected from
the developer and used to pay for, or reimburse the governmental entity for, the costs of the
improvements See id § 395.019(2). lt could be argued that, because the impact fee credit serves
the same function as the impact fees, the limitation on the expenditure of impact fee revenues in 7
The Honorable Tornmy Williams - Page 4 (GA-0788)
section 395.024 applies with equal force to the purposes for which an impact fee credit may be
granted and applied under section 395 .0 l 9(2). See id. ; see also Request Letter at 2 (because “impact
fees can only be spent for the purposes imposed, it could be argued that impact fee credits may only
be granted for the impact fees corresponding to the category of the capital improvement proj ect”).
ln other words, it could be argued that credit for the cost of a category of a capital
'improvement--such as oversizing of a water line-may be granted only to reduce impact fees for
the same category of capital improvement, i.e., water impact fees Otherwise, an impact fee imposed
__ for one category _o_f capital improvement _(Water_ impact fee_S)__Wpuld_ effectively housed to_p_er for a __
different category of capital improvement (Wastewater improvement), contrary to section 395.024.
While this limiting effect of section 395.024 on section 395.019(2) has a certain logic, we
cannot say that the Legislature clearly intended to generally limit the grant or application of impact
fee credit to the same category of capital improvement Cf Galbraith Eng’g Consuliants, Inc., 290
S.W.3d at 867 (explaining that, when construing a statute, the “primary objective is to give effect
to the Legislature’s intent as expressed in the statute’s language”). Again, neither section 395.019(2)
nor section 395.024 or any other provision in chapter 395 expressly limits a governmental entity’s
grant of an impact fee credit with respect to capital improvements generally or with respect to the
categories of water and wastewater improvements specifically TEX. LOC. GOV’T CODE ANN. §§
395.019(2), .024 (Vernon 2005); see Firzgerald v. Advanced Spine Fixaiion Sj)s., Inc., 996 S.W.2d
864, 866 (Tex. 1999) (“[I]t is a fair assumption that the Legislature tries to say what it means, and
therefore the words it chooses should be the surest guide to legislative intent.”). In fact, section
395.019(2) authorizes developers’ costs to be credited against “impact fees otherwise due from the
new development” TEX. LOC. GOV’T CODE ANN. § 395 .01 9(2) (Vernon 2005). The impact fees
attributable and due from a new development are calculated and assessed as a single amount per
service unit in the development See id §§ 395.001(6), (10), .014(a)(4}-(7), .015. When the
Legislature has intended to limit the application of a credit for developer costs in chapter 395, it
appears to have done so expressly See id § 395.023 (providing that “[a]ny construction of,
contributions to, or dedications of off-site roadway facilities agreed to or required . . . shall be
credited against roadway facilities impact fees otherwise due from the development”) (emphasis
added).
lt is'an established principle of statutory construction that ‘“every word of a statute must be
presumed to have been used for a purpose. Likewise, . . . every word excluded from a statute must _
also be presumed to have been excluded for a purpose.”’ Laidlaw Wasie Sys. (Dallas), Inc. v. Cily
of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995) (quoting Canieron v. Terrell & Garrett, Inc., 618
S.W.2d 535, 540 (1981)). As explained by the Texas Supreme Court, this principle of statutory
construction “is related to a more general rule that courts should not insert words in a statute except
to give effect to clear legislative intent.” Id. (citing Hunrer v. Fort Worrh Capital Corp., 620 S.W.2d
547, 552 (Tex. 1981)). in chapter 395, we do not perceive a clear legislative intent, with the noted
exception above, to limit the grant or application of credits to any specific category of capital
improvements Therefore, we cannot effectively add such limiting words to the statute by construing l
section 395.019(2) to require a political subdivision to limit application of a credit to the same
category of impact fees
The Honorable Tommy Williams - Page 5 (GA-0788)
Accordingly, while a political subdivision may limit the application of a credit for developer
costs for a water project to water impact fees, we cannot conclude that chapter 395 requires a
political subdivision to do so. Thus, in answer to your first question, chapter 395 does not preclude
the City from applying a credit for a developer’s cost of a water line project to sewer impact fees due
h'om the development8 Because your second question is premised on a contrary conclusion, we
need not address it.9
3Whether in any particular instance, a city has granted a credit for a developer’s cost of a capital improvement
project that may be applied against a different category of impact fees than the credit will, of course, depend on the city’s
impact fee ordinance and agreement with the developer.
9Your second question asks “[if] not, whether the City can enter into an agreement under Section 395.019(2),
which would allow such credit[.]” Request Letter at l.
The Honorable Tommy Williams - Page 6 (GA-0788)
SUMMARY
Local Government Code chapter 395 governs the imposition
of impact fees by cities and other political subdivisions Chapter 395
does not evidence a clear legislative intent, with one exception
inapplicable here, to limit the grant or application of credit_for
costs incurred by a developer for constructing or financing a category
_____oi`` _ capital __ improvement-eto __a_r_ly_ __Speeifl_o ___eatesor¥_ __o_f __ eep_i_tel _
improvement Therefore, Local Govemment Code section
- 395.019(2) cannot be construed to require a political subdivision to
limit the application of a water project credit to water impact fees
Accordingly, while a governmental entity may limit the application
of a credit for developer costs for a water project to water impact fees,
we cannot conclude that chapter 395 requires a political subdivision
to do so. Thus, chapter 395 does not preclude a city from applying a
credit for a developer’s cost of a water line project in a city’ s capital
improvement plan to sewer impact fees due from the new
development
Very truly yours,
Attorney G neral of Texas
ANDREW WEBER
First Assistant Attomey General
NANCY S. FULLER
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General, Opinion Commi_ttee