Texas 2009 - 81st Regular

Texas House Bill HB1119 Compare Versions

Only one version of the bill is available at this time.

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1	1	81R5664 ATP-F
2	2	By: Bolton H.B. No. 1119
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to authorizing certain populous counties to adopt county
8	8	planning regulations; providing criminal and civil penalties.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Chapter 231, Local Government Code, is amended
11	11	by adding Subchapter M to read as follows:
12	12	SUBCHAPTER M. COUNTY PLANNING REGULATORY AUTHORITY BY CERTAIN
13	13	POPULOUS COUNTIES
14	14	Sec. 231.271. PURPOSE. The powers granted under this
15	15	subchapter are for the purpose of promoting the public health,
16	16	safety, morals, or general welfare.
17	17	Sec. 231.272. APPLICABILITY. This subchapter applies only
18	18	to a county with a population of more than 800,000.
19	19	Sec. 231.273. COUNTY PLANNING REGULATIONS GENERALLY. In
20	20	the unincorporated area of a county, the commissioners court of the
21	21	county may adopt zoning regulations to regulate noise levels and
22	22	the location and use of buildings, other structures, and land for
23	23	business, industrial, residential, or other purposes.
24	24	Sec. 231.274. COMPLIANCE WITH COMPREHENSIVE PLAN. Zoning
25	25	regulations must be adopted in accordance with a comprehensive plan
26	26	and must be designed to:
27	27	(1) reduce congestion in the streets;
28	28	(2) secure safety from fire, panic, and other dangers;
29	29	(3) promote health and the general welfare;
30	30	(4) provide adequate light and air;
31	31	(5) facilitate the adequate provision of
32	32	transportation, water, sewers, schools, parks, and other public
33	33	requirements; or
34	34	(6) promote the maintenance of noise levels that are
35	35	compatible with the land use of an area or promote, to the greatest
36	36	degree, the purpose of this subchapter.
37	37	Sec. 231.275. DISTRICTS. (a) The commissioners court of a
38	38	county may divide the unincorporated area of the county into
39	39	districts of a number, shape, and size the commissioners court
40	40	considers best for carrying out this subchapter.
41	41	(b) Zoning regulations must be uniform for each class or
42	42	kind of building in a district, but the regulations may vary from
43	43	district to district. The regulations shall be adopted with
44	44	reasonable consideration, among other factors, for the character of
45	45	each district and its peculiar suitability for particular uses,
46	46	with a view of conserving the value of buildings and encouraging the
47	47	most appropriate use of land in the county.
48	48	Sec. 231.276. PROCEDURES GOVERNING ADOPTION OF COUNTY
49	49	PLANNING REGULATIONS AND DISTRICT BOUNDARIES. (a) The
50	50	commissioners court of a county wishing to exercise the authority
51	51	relating to zoning regulations and zoning district boundaries shall
52	52	establish procedures for adopting and enforcing the regulations and
53	53	boundaries. A regulation or boundary is not effective until after a
54	54	public hearing on the matter at which parties in interest and
55	55	citizens have an opportunity to be heard. Before the 15th day
56	56	before the date of the hearing, notice of the time and place of the
57	57	hearing must be published in an official newspaper or a newspaper of
58	58	general circulation in the county.
59	59	(b) In addition to the notice required by Subsection (a), a
60	60	county without a county planning commission shall give notice of a
61	61	proposed change in a zoning classification to each property owner
62	62	who would be entitled to notice under Section 231.277(c) if the
63	63	county had a county planning commission. That notice must be given
64	64	in the same manner as required for notice to property owners under
65	65	Section 231.277(c). The commissioners court may not adopt the
66	66	proposed change until after the 30th day after the date the notice
67	67	required by this subsection is given.
68	68	(c) If the commissioners court of a county conducts a
69	69	hearing under Subsection (a), the commissioners court may, by a
70	70	majority vote, prescribe the type of notice to be given of the time
71	71	and place of the public hearing. Notice requirements prescribed
72	72	under this subsection are in addition to the publication of notice
73	73	required by Subsection (a).
74	74	(d) If a proposed change to a regulation or boundary is
75	75	protested in accordance with this subsection, the proposed change
76	76	must receive, in order to take effect, the affirmative vote of at
77	77	least 75 percent of all members of the commissioners court. The
78	78	protest must be written and signed by the owners of at least 20
79	79	percent of:
80	80	(1) the area of the lots or land covered by the
81	81	proposed change; or
82	82	(2) the area of the lots or land immediately adjoining
83	83	the area covered by the proposed change and extending 200 feet from
84	84	that area.
85	85	(e) In computing the percentage of land area under
86	86	Subsection (d), the area of streets and alleys shall be included.
87	87	Sec. 231.277. COUNTY PLANNING COMMISSION. (a) To exercise
88	88	the powers authorized by this subchapter, the commissioners court
89	89	of a county may appoint a county planning commission. The
90	90	commission shall recommend boundaries for the original zoning
91	91	districts and appropriate zoning regulations for each district.
92	92	(b) The county planning commission shall make a preliminary
93	93	report and hold public hearings on that report before submitting a
94	94	final report to the commissioners court. The commissioners court
95	95	may not hold a public hearing until it receives the final report of
96	96	the county planning commission unless the commissioners court by
97	97	order provides that a public hearing is to be held, after the notice
98	98	required by Section 231.276(a), jointly with a public hearing
99	99	required to be held by the county planning commission. In either
100	100	case, the commissioners court may not take action on the matter
101	101	until it receives the final report of the county planning
102	102	commission.
103	103	(c) Before the 10th day before the hearing date, written
104	104	notice of each public hearing before the county planning commission
105	105	on a proposed change in a zoning classification shall be sent to
106	106	each owner, as indicated by the most recently approved county tax
107	107	roll, of real property within 200 feet of the property on which the
108	108	change in classification is proposed. The notice may be served by
109	109	its deposit in the county, properly addressed with postage paid, in
110	110	the United States mail.
111	111	(d) If a county exercises zoning authority without the
112	112	appointment of a county planning commission, any reference in a law
113	113	to a county planning commission means the commissioners court of
114	114	the county.
115	115	Sec. 231.278. COMPLIANCE WITH OPEN MEETINGS LAW. A board or
116	116	commission established by an order or resolution adopted by the
117	117	commissioners court of a county to assist the commissioners court
118	118	in developing an initial comprehensive zoning plan or initial
119	119	zoning regulations for the county, or a committee of the board or
120	120	commission that includes one or more members of the board or
121	121	commission, is subject to Chapter 551, Government Code, regardless
122	122	of whether the board, commission, or committee has rulemaking or
123	123	quasi-judicial powers or functions only in an advisory capacity.
124	124	Sec. 231.279. BOARD OF ADJUSTMENT. (a) The commissioners
125	125	court of a county may provide for the appointment of a board of
126	126	adjustment. In the regulations adopted under this subchapter, the
127	127	commissioners court may authorize the board of adjustment, in
128	128	appropriate cases and subject to appropriate conditions and
129	129	safeguards, to make special exceptions to the terms of the zoning
130	130	regulations that are consistent with the general purpose and intent
131	131	of the regulations and in accordance with any applicable rules
132	132	contained in the regulations.
133	133	(b) A board of adjustment must consist of at least five
134	134	members to be appointed for terms of two years. The commissioners
135	135	court must provide the procedure for appointment. The
136	136	commissioners court may authorize each member of the commissioners
137	137	court to appoint one member to the board. The appointing authority
138	138	may remove a board member for cause, as found by the appointing
139	139	authority, on a written charge after a public hearing. The
140	140	appointing authority shall fill a vacancy on the board for the
141	141	unexpired term.
142	142	(c) The commissioners court by resolution may provide for
143	143	the appointment of alternate board members to serve in the absence
144	144	of one or more regular members when requested to do so by the county
145	145	judge. An alternate member serves for the same period as a regular
146	146	member and is subject to removal in the same manner as a regular
147	147	member. A vacancy among the alternate members is filled in the same
148	148	manner as a vacancy among the regular members.
149	149	(d) Each case before the board of adjustment must be heard
150	150	by at least 75 percent of the members.
151	151	(e) The board by majority vote shall adopt rules in
152	152	accordance with any regulation adopted under this subchapter.
153	153	Meetings of the board are held at the call of the presiding officer
154	154	and at other times as determined by the board. The presiding
155	155	officer or acting presiding officer may administer oaths and compel
156	156	the attendance of witnesses. All meetings of the board shall be
157	157	open to the public.
158	158	(f) The board shall keep minutes of its proceedings that
159	159	indicate the vote of each member on each question or the fact that a
160	160	member is absent or fails to vote. The board shall keep records of
161	161	its examinations and other official actions. The minutes and
162	162	records shall be filed immediately in the board's office and are
163	163	public records.
164	164	(g) The commissioners court of a county may grant the
165	165	members of the commissioners court the authority to act as a board
166	166	of adjustment under this subchapter.
167	167	Sec. 231.280. AUTHORITY OF BOARD. (a) The board of
168	168	adjustment may:
169	169	(1) hear and decide an appeal that alleges error in an
170	170	order, requirement, decision, or determination made by an
171	171	administrative official in the enforcement of this subchapter or a
172	172	regulation adopted under this subchapter;
173	173	(2) hear and decide special exceptions to the terms of
174	174	a zoning regulation as authorized by the regulation;
175	175	(3) authorize in specific cases a variance from the
176	176	terms of a zoning regulation if:
177	177	(A) the variance is not contrary to the public
178	178	interest;
179	179	(B) due to special conditions, a literal
180	180	enforcement of the regulation would result in unnecessary hardship;
181	181	and
182	182	(C) by granting the variance, the spirit of the
183	183	regulation is observed and substantial justice is done; and
184	184	(4) hear and decide other matters authorized by a
185	185	regulation adopted under this subchapter.
186	186	(b) In exercising its authority under Subsection (a)(1),
187	187	the board may reverse or affirm, in whole or in part, or modify the
188	188	administrative official's order, requirement, decision, or
189	189	determination from which an appeal is taken and make the correct
190	190	order, requirement, decision, or determination. For purposes of
191	191	this subsection, the board has the same authority as the
192	192	administrative official.
193	193	(c) The concurring vote of 75 percent of the members of the
194	194	board is necessary to:
195	195	(1) reverse an order, requirement, decision, or
196	196	determination of an administrative official;
197	197	(2) decide in favor of an applicant on a matter on
198	198	which the board is required to pass under a zoning regulation; or
199	199	(3) authorize a variation from the terms of a zoning
200	200	regulation.
201	201	Sec. 231.281. APPEAL TO BOARD. (a) Except as provided by
202	202	Subsection (e), any of the following persons may appeal to the board
203	203	of adjustment a decision made by an administrative official:
204	204	(1) a person aggrieved by the decision; or
205	205	(2) any officer, department, board, or bureau of the
206	206	county affected by the decision.
207	207	(b) The appellant must file with the board and the official
208	208	from whom the appeal is taken a notice of appeal specifying the
209	209	grounds for the appeal. The appeal must be filed within a
210	210	reasonable time as determined by the rules of the board. On
211	211	receiving the notice, the official from whom the appeal is taken
212	212	shall immediately transmit to the board all the papers constituting
213	213	the record of the action that is appealed.
214	214	(c) An appeal stays all proceedings in furtherance of the
215	215	action that is appealed unless the official from whom the appeal is
216	216	taken certifies in writing to the board facts supporting the
217	217	official's opinion that a stay would cause imminent peril to life or
218	218	property. In that case, the proceedings may be stayed only by a
219	219	restraining order granted by the board or a court of record on
220	220	application, after notice to the official, if due cause is shown.
221	221	(d) The board shall set a reasonable time for the appeal
222	222	hearing and shall give public notice of the hearing and due notice
223	223	to the parties in interest. A party may appear at the appeal
224	224	hearing in person or by agent or attorney. The board shall decide
225	225	the appeal within a reasonable time.
226	226	(e) A member of the county commissioners court who serves on
227	227	the board of adjustment under Section 231.279(g) may not bring an
228	228	appeal under this section.
229	229	Sec. 231.282. JUDICIAL REVIEW OF BOARD DECISION. (a) Any
230	230	of the following persons may present to a district court, county
231	231	court, or county court at law a verified petition stating that the
232	232	decision of the board of adjustment is wholly or partly illegal and
233	233	specifying the grounds of the illegality:
234	234	(1) a person aggrieved by a decision of the board;
235	235	(2) a taxpayer; or
236	236	(3) an officer, department, board, or bureau of the
237	237	county.
238	238	(b) The petition must be presented within 10 days after the
239	239	date the decision is filed in the board's office.
240	240	(c) On the presentation of the petition, the court may grant
241	241	a writ of certiorari directed to the board to review the board's
242	242	decision. The writ must indicate the time by which the board's
243	243	return must be made and served on the petitioner's attorney, which
244	244	must be after 10 days and may be extended by the court. Granting of
245	245	the writ does not stay the proceedings on the decision under appeal,
246	246	but on application and after notice to the board the court may grant
247	247	a restraining order if due cause is shown.
248	248	(d) The board's return must be verified and must concisely
249	249	state any pertinent and material facts that show the grounds of the
250	250	decision under appeal. The board is not required to return the
251	251	original documents on which the board acted but may return
252	252	certified or sworn copies of the documents or parts of the documents
253	253	as required by the writ.
254	254	(e) If at the hearing the court determines that testimony is
255	255	necessary for the proper disposition of the matter, it may take
256	256	evidence or appoint a referee to take evidence as directed. The
257	257	referee shall report the evidence to the court with the referee's
258	258	findings of fact and conclusions of law. The referee's report
259	259	constitutes a part of the proceedings on which the court shall make
260	260	its decision.
261	261	(f) The court may reverse or affirm, in whole or in part, or
262	262	modify the decision that is appealed. Costs may not be assessed
263	263	against the board unless the court determines that the board acted
264	264	with gross negligence, in bad faith, or with malice in making its
265	265	decision.
266	266	(g) The court may not apply a different standard of review
267	267	to a decision of a board of adjustment that is composed of members
268	268	of the county commissioners court under Section 231.279(g) than is
269	269	applied to a decision of a board of adjustment that does not contain
270	270	members of the county commissioners court.
271	271	Sec. 231.283. ENFORCEMENT; PENALTY; REMEDIES. (a) The
272	272	commissioners court of a county may adopt orders to enforce this
273	273	subchapter or any regulation adopted under this subchapter.
274	274	(b) A person commits an offense if the person violates this
275	275	subchapter or a regulation adopted under this subchapter. An
276	276	offense under this subsection is a misdemeanor, punishable by fine,
277	277	imprisonment, or both, as provided by the commissioners court. The
278	278	commissioners court may also provide civil penalties for a
279	279	violation.
280	280	(c) If a land use violates this subchapter or a regulation
281	281	adopted under this subchapter, the appropriate county authority, in
282	282	addition to other remedies, may institute appropriate action to:
283	283	(1) restrain, correct, or abate the violation;
284	284	(2) prevent the occupancy of the building, structure,
285	285	or land; or
286	286	(3) prevent any illegal act, conduct, business, or use
287	287	on or about the premises.
288	288	Sec. 231.284. CONFLICT WITH OTHER LAWS; EXCEPTIONS. (a)
289	289	This subchapter does not authorize the commissioners court of a
290	290	county to require the removal or destruction of property that
291	291	exists at the time the commissioners court implements this
292	292	subchapter and that is actually and necessarily used in a public
293	293	service business.
294	294	(b) This subchapter does not apply to a building, other
295	295	structure, or land under the control, administration, or
296	296	jurisdiction of a state or federal agency.
297	297	(c) This subchapter applies to a privately owned building or
298	298	other structure and privately owned land when leased to a state
299	299	agency.
300	300	Sec. 231.285. CONTINUATION OF LAND USE IN CERTAIN AREAS.
301	301	(a) A county may not prohibit a person from:
302	302	(1) continuing to use land in the manner in which the
303	303	land was being used on January 1, 2010, if the land use was legal at
304	304	that time; or
305	305	(2) beginning to use land in the manner that was
306	306	planned for the land before September 1, 2009, if:
307	307	(A) one or more licenses, certificates, permits,
308	308	approvals, or other forms of authorization by a governmental entity
309	309	were required by law for the planned land use; and
310	310	(B) a completed application for the initial
311	311	authorization was filed with the governmental entity before
312	312	September 1, 2009.
313	313	(b) For purposes of this section, a completed application is
314	314	filed if the application includes all documents and other
315	315	information designated as required by the governmental entity in a
316	316	written notice to the applicant.
317	317	(c) This section does not prohibit a county from imposing:
318	318	(1) a regulation relating to the location of sexually
319	319	oriented businesses, as that term is defined by Section 243.002;
320	320	(2) a regulation or other requirement affecting
321	321	colonias, as that term is defined by Section 2306.581, Government
322	322	Code;
323	323	(3) a regulation relating to preventing imminent
324	324	destruction of property or injury to persons;
325	325	(4) a regulation relating to public nuisances;
326	326	(5) a regulation relating to flood control;
327	327	(6) a regulation relating to the storage and use of
328	328	hazardous substances;
329	329	(7) a regulation relating to the sale and use of
330	330	fireworks;
331	331	(8) a regulation relating to the discharge of
332	332	firearms; or
333	333	(9) a regulation relating to noise levels that does
334	334	not prevent a person from continuing to use property for
335	335	residential purposes.
336	336	(d) An order or regulation in conflict with this section is
337	337	void.
338	338	SECTION 2. This Act takes effect September 1, 2009.