(a) Water, sanitary sewer, storm sewer, drainage, and
recreational facilities easements. All easements required within a
district's boundaries for water lines; sanitary sewer lines; storm
sewer lines; sanitary control at water plants; noise and odor control
at wastewater treatment plants; the right-of-way necessary for a drainage
swale or ditch constructed generally along a street or road in lieu
of a storm sewer; recreational facilities; and the right-of-way area
required by governmental jurisdictions for streets that are used for
recreational facilities, shall be dedicated to the district or the
public by the developer without payment or reimbursement from the
district. If any easements are required for such facilities on land
not owned by a developer in the district, the district may acquire
such land at its appraised market value, and may also pay legal, engineering,
surveying, or court fees and expenses incurred in acquiring such land,
and §293.47 of this title (relating to Thirty Percent of District
Construction Costs to be Paid by Developer) shall not apply to such
acquisition.
(b) Land acquisition. A district may acquire the following
in fee simple from any person, including the developer, in accordance
with this section, and §293.47 of this title shall not apply
to such acquisition:
(1) plant sites, including required sanitary control
at water plants and noise and odor control at wastewater treatment
plants;
(2) lift or pump station sites;
(3) drainage channels other than those described in
subsection (a) of this section and other than those which are natural
waterways with defined bed and banks;
(4) detention/retention pond sites;
(5) levees;
(6) mitigation sites for compliance with flood plain
regulation and wetlands regulation or payments in lieu of mitigation;
(7) mitigation sites for compliance with endangered
species permits or payments in lieu of mitigation, the cost of which
shall be shared between the district and the developer as provided
in §293.44(a)(22) of this title (relating to Special Considerations);
or
(8) recreational facility sites that are outside of
the right-of-way required by governmental jurisdictions to be dedicated
for streets and roads.
(c) Price of land acquisition.
(1) If a district acquires such a site, as described
in subsection (b) of this section, which is outside of the 100-year
floodplain, from a developer within the district or subsequent owner
of developer reimbursables, the price shall be determined by adding
to the price paid by the developer for such land or easement in a
bona fide transaction between unrelated parties the developer's actual
taxes and interest paid to the date of acquisition by the district.
The interest rate shall not exceed the net effective interest rate
on the bonds sold, or the interest rate actually paid by the developer
for loans obtained for this purpose, whichever is less. If a developer
uses its own funds rather than borrowed funds, the net effective interest
rate on the bonds sold shall be applied. Provided, however, if the
executive director determines that such price appears to exceed the
fair market value of such land or easement, the executive director
may require an appraisal to be obtained by the district from a qualified
independent appraiser and payment to the seller may be limited to
the fair market value of such land as shown by the appraisal; if the
seller acquired the land after the improvements to be financed by
the district were constructed, the price shall be limited to the fair
market value of such land or easement established without the improvements
being constructed; or if the seller acquired the land more than five
years before the creation of the district and the records relating
to the actual price paid and the taxes and interest costs are impossible
or difficult to obtain, the district, upon executive director approval,
may purchase such site at fair market value based on an appraisal
prepared by a qualified, independent appraiser. If the land or easement
needed by the district is being acquired based on the appraised value,
the application to the commission for approval to purchase such a
site must contain a request by the district to acquire the site in
such manner and must explain the reason that the seller is unable
to provide the price and carrying cost records.
(2) If a district acquires such a site, as described
in subsection (b) of this section, which is within the 100-year floodplain,
from a developer within the district or subsequent owner of developer
reimbursables, the price shall be the lesser of the amount as determined
by paragraph (1) of this subsection or fair market value based on
an appraisal prepared by a qualified, independent appraiser hired
by the district's board upon their initiative.
(3) If the land or easement needed by the district
is being acquired from an entity other than a developer or subsequent
owner of developer reimbursables in the district, the district may
pay the fair market value established by a qualified, independent
appraiser, and may also pay legal, engineering, surveying, or court
fees and expenses incurred in acquiring such land or easement.
(d) Joint storm water detention/water amenity facilities.
If a detention or retention pond is also being used as an amenity
by the developer or as a recreational facility as described in §293.44(a)(24)
of this title, payment to the developer shall be limited to that cost
that is associated only with the drainage or recreational function
of the facility. The land costs of combined water amenity and detention
facilities should be shared with the developer on the basis of the
volume of water storage attributable to each use, with the water amenity
portion subject to reimbursement as a recreational facility in the
percentage described in §293.44(a)(24) of this title.
(e) Land or easements outside the district's boundaries.
Land or easements needed for any district facilities outside the district's
boundaries may be purchased by the district as part of the district
project at a price not to exceed the fair market value thereof. The
district may also pay legal, engineering, surveying, or court fees
and expenses spent in acquiring such land. If the land or easements
are purchased from a developer who owns land within the district,
the price paid by the district shall be determined in accordance with
subsection (c) of this section and such purchase price shall be subject
to the provisions of §293.47 of this title unless the facilities
constructed in, on, or over such land, easements, or rights-of-way
are exempt from such contribution or the district is exempt from such
contribution under the terms of §293.47 of this title. Districts
operating under Texas Water Code (TWC), Chapter 54, except one affected
by House Bill 2965, 76th Legislature, 1999, are prohibited from exercising
the power of eminent domain outside the district's boundaries to acquire:
(1) a site for a water treatment plant, water storage
facility, wastewater treatment plant, or wastewater disposal plant;
(2) a site for a park, swimming pool, or other recreational
facility, as defined by TWC, §49.462;
(3) an exclusive easement through a county regional
park; or
(4) a site or easement for a road project.
(f) Shared land or easements outside the district's
boundaries. If the out-of-district land or easement is required for
a drainage channel downstream of the district and a portion of such
land or easement is or will be needed by another district(s), whether
upstream or downstream, for development, the district shall only pay
for its proportionate share of the land costs based upon the acreage
of the drainage area contributing drainage to such drainage channel
at full development. However, in the event there is no developer in
another district(s) to dedicate the district's pro rata share of the
required land, the district may pay the entire cost to acquire such
land, but the commission shall order the other district(s) to reimburse
the district at such time as development occurs in the other district
that requires such drainage right-of-way.
(g) Regional facilities. A district may use bond proceeds
to acquire the entire site for any regional plant, lift or pump station,
detention pond, drainage channel, levee, or recreational facility
if the commission determines that regionalization will be promoted
and the district will recover the appropriate pro rata share of the
site costs, carrying costs, and bond issuance costs from future participants.
The district may pay the fair market value based on an appraisal for
such regional site and also may pay legal, engineering, surveying,
or court fees and expenses incurred in acquiring such land. The commission
shall, by separate order, order other districts participating in such
regional facility to reimburse the acquiring district a proportionate
share of such site costs, carrying costs, and bond issuance costs
at such time as development occurs in such other districts requiring
such regional site.
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