81R5664 ATP-F
By: Bolton H.B. No. 1119
A BILL TO BE ENTITLED
AN ACT
relating to authorizing certain populous counties to adopt county
planning regulations; providing criminal and civil penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 231, Local Government Code, is amended
by adding Subchapter M to read as follows:
SUBCHAPTER M. COUNTY PLANNING REGULATORY AUTHORITY BY CERTAIN
POPULOUS COUNTIES
Sec. 231.271. PURPOSE. The powers granted under this
subchapter are for the purpose of promoting the public health,
safety, morals, or general welfare.
Sec. 231.272. APPLICABILITY. This subchapter applies only
to a county with a population of more than 800,000.
Sec. 231.273. COUNTY PLANNING REGULATIONS GENERALLY. In
the unincorporated area of a county, the commissioners court of the
county may adopt zoning regulations to regulate noise levels and
the location and use of buildings, other structures, and land for
business, industrial, residential, or other purposes.
Sec. 231.274. COMPLIANCE WITH COMPREHENSIVE PLAN. Zoning
regulations must be adopted in accordance with a comprehensive plan
and must be designed to:
(1) reduce congestion in the streets;
(2) secure safety from fire, panic, and other dangers;
(3) promote health and the general welfare;
(4) provide adequate light and air;
(5) facilitate the adequate provision of
transportation, water, sewers, schools, parks, and other public
requirements; or
(6) promote the maintenance of noise levels that are
compatible with the land use of an area or promote, to the greatest
degree, the purpose of this subchapter.
Sec. 231.275. DISTRICTS. (a) The commissioners court of a
county may divide the unincorporated area of the county into
districts of a number, shape, and size the commissioners court
considers best for carrying out this subchapter.
(b) Zoning regulations must be uniform for each class or
kind of building in a district, but the regulations may vary from
district to district. The regulations shall be adopted with
reasonable consideration, among other factors, for the character of
each district and its peculiar suitability for particular uses,
with a view of conserving the value of buildings and encouraging the
most appropriate use of land in the county.
Sec. 231.276. PROCEDURES GOVERNING ADOPTION OF COUNTY
PLANNING REGULATIONS AND DISTRICT BOUNDARIES. (a) The
commissioners court of a county wishing to exercise the authority
relating to zoning regulations and zoning district boundaries shall
establish procedures for adopting and enforcing the regulations and
boundaries. A regulation or boundary is not effective until after a
public hearing on the matter at which parties in interest and
citizens have an opportunity to be heard. Before the 15th day
before the date of the hearing, notice of the time and place of the
hearing must be published in an official newspaper or a newspaper of
general circulation in the county.
(b) In addition to the notice required by Subsection (a), a
county without a county planning commission shall give notice of a
proposed change in a zoning classification to each property owner
who would be entitled to notice under Section 231.277(c) if the
county had a county planning commission. That notice must be given
in the same manner as required for notice to property owners under
Section 231.277(c). The commissioners court may not adopt the
proposed change until after the 30th day after the date the notice
required by this subsection is given.
(c) If the commissioners court of a county conducts a
hearing under Subsection (a), the commissioners court may, by a
majority vote, prescribe the type of notice to be given of the time
and place of the public hearing. Notice requirements prescribed
under this subsection are in addition to the publication of notice
required by Subsection (a).
(d) If a proposed change to a regulation or boundary is
protested in accordance with this subsection, the proposed change
must receive, in order to take effect, the affirmative vote of at
least 75 percent of all members of the commissioners court. The
protest must be written and signed by the owners of at least 20
percent of:
(1) the area of the lots or land covered by the
proposed change; or
(2) the area of the lots or land immediately adjoining
the area covered by the proposed change and extending 200 feet from
that area.
(e) In computing the percentage of land area under
Subsection (d), the area of streets and alleys shall be included.
Sec. 231.277. COUNTY PLANNING COMMISSION. (a) To exercise
the powers authorized by this subchapter, the commissioners court
of a county may appoint a county planning commission. The
commission shall recommend boundaries for the original zoning
districts and appropriate zoning regulations for each district.
(b) The county planning commission shall make a preliminary
report and hold public hearings on that report before submitting a
final report to the commissioners court. The commissioners court
may not hold a public hearing until it receives the final report of
the county planning commission unless the commissioners court by
order provides that a public hearing is to be held, after the notice
required by Section 231.276(a), jointly with a public hearing
required to be held by the county planning commission. In either
case, the commissioners court may not take action on the matter
until it receives the final report of the county planning
commission.
(c) Before the 10th day before the hearing date, written
notice of each public hearing before the county planning commission
on a proposed change in a zoning classification shall be sent to
each owner, as indicated by the most recently approved county tax
roll, of real property within 200 feet of the property on which the
change in classification is proposed. The notice may be served by
its deposit in the county, properly addressed with postage paid, in
the United States mail.
(d) If a county exercises zoning authority without the
appointment of a county planning commission, any reference in a law
to a county planning commission means the commissioners court of
the county.
Sec. 231.278. COMPLIANCE WITH OPEN MEETINGS LAW. A board or
commission established by an order or resolution adopted by the
commissioners court of a county to assist the commissioners court
in developing an initial comprehensive zoning plan or initial
zoning regulations for the county, or a committee of the board or
commission that includes one or more members of the board or
commission, is subject to Chapter 551, Government Code, regardless
of whether the board, commission, or committee has rulemaking or
quasi-judicial powers or functions only in an advisory capacity.
Sec. 231.279. BOARD OF ADJUSTMENT. (a) The commissioners
court of a county may provide for the appointment of a board of
adjustment. In the regulations adopted under this subchapter, the
commissioners court may authorize the board of adjustment, in
appropriate cases and subject to appropriate conditions and
safeguards, to make special exceptions to the terms of the zoning
regulations that are consistent with the general purpose and intent
of the regulations and in accordance with any applicable rules
contained in the regulations.
(b) A board of adjustment must consist of at least five
members to be appointed for terms of two years. The commissioners
court must provide the procedure for appointment. The
commissioners court may authorize each member of the commissioners
court to appoint one member to the board. The appointing authority
may remove a board member for cause, as found by the appointing
authority, on a written charge after a public hearing. The
appointing authority shall fill a vacancy on the board for the
unexpired term.
(c) The commissioners court by resolution may provide for
the appointment of alternate board members to serve in the absence
of one or more regular members when requested to do so by the county
judge. An alternate member serves for the same period as a regular
member and is subject to removal in the same manner as a regular
member. A vacancy among the alternate members is filled in the same
manner as a vacancy among the regular members.
(d) Each case before the board of adjustment must be heard
by at least 75 percent of the members.
(e) The board by majority vote shall adopt rules in
accordance with any regulation adopted under this subchapter.
Meetings of the board are held at the call of the presiding officer
and at other times as determined by the board. The presiding
officer or acting presiding officer may administer oaths and compel
the attendance of witnesses. All meetings of the board shall be
open to the public.
(f) The board shall keep minutes of its proceedings that
indicate the vote of each member on each question or the fact that a
member is absent or fails to vote. The board shall keep records of
its examinations and other official actions. The minutes and
records shall be filed immediately in the board's office and are
public records.
(g) The commissioners court of a county may grant the
members of the commissioners court the authority to act as a board
of adjustment under this subchapter.
Sec. 231.280. AUTHORITY OF BOARD. (a) The board of
adjustment may:
(1) hear and decide an appeal that alleges error in an
order, requirement, decision, or determination made by an
administrative official in the enforcement of this subchapter or a
regulation adopted under this subchapter;
(2) hear and decide special exceptions to the terms of
a zoning regulation as authorized by the regulation;
(3) authorize in specific cases a variance from the
terms of a zoning regulation if:
(A) the variance is not contrary to the public
interest;
(B) due to special conditions, a literal
enforcement of the regulation would result in unnecessary hardship;
and
(C) by granting the variance, the spirit of the
regulation is observed and substantial justice is done; and
(4) hear and decide other matters authorized by a
regulation adopted under this subchapter.
(b) In exercising its authority under Subsection (a)(1),
the board may reverse or affirm, in whole or in part, or modify the
administrative official's order, requirement, decision, or
determination from which an appeal is taken and make the correct
order, requirement, decision, or determination. For purposes of
this subsection, the board has the same authority as the
administrative official.
(c) The concurring vote of 75 percent of the members of the
board is necessary to:
(1) reverse an order, requirement, decision, or
determination of an administrative official;
(2) decide in favor of an applicant on a matter on
which the board is required to pass under a zoning regulation; or
(3) authorize a variation from the terms of a zoning
regulation.
Sec. 231.281. APPEAL TO BOARD. (a) Except as provided by
Subsection (e), any of the following persons may appeal to the board
of adjustment a decision made by an administrative official:
(1) a person aggrieved by the decision; or
(2) any officer, department, board, or bureau of the
county affected by the decision.
(b) The appellant must file with the board and the official
from whom the appeal is taken a notice of appeal specifying the
grounds for the appeal. The appeal must be filed within a
reasonable time as determined by the rules of the board. On
receiving the notice, the official from whom the appeal is taken
shall immediately transmit to the board all the papers constituting
the record of the action that is appealed.
(c) An appeal stays all proceedings in furtherance of the
action that is appealed unless the official from whom the appeal is
taken certifies in writing to the board facts supporting the
official's opinion that a stay would cause imminent peril to life or
property. In that case, the proceedings may be stayed only by a
restraining order granted by the board or a court of record on
application, after notice to the official, if due cause is shown.
(d) The board shall set a reasonable time for the appeal
hearing and shall give public notice of the hearing and due notice
to the parties in interest. A party may appear at the appeal
hearing in person or by agent or attorney. The board shall decide
the appeal within a reasonable time.
(e) A member of the county commissioners court who serves on
the board of adjustment under Section 231.279(g) may not bring an
appeal under this section.
Sec. 231.282. JUDICIAL REVIEW OF BOARD DECISION. (a) Any
of the following persons may present to a district court, county
court, or county court at law a verified petition stating that the
decision of the board of adjustment is wholly or partly illegal and
specifying the grounds of the illegality:
(1) a person aggrieved by a decision of the board;
(2) a taxpayer; or
(3) an officer, department, board, or bureau of the
county.
(b) The petition must be presented within 10 days after the
date the decision is filed in the board's office.
(c) On the presentation of the petition, the court may grant
a writ of certiorari directed to the board to review the board's
decision. The writ must indicate the time by which the board's
return must be made and served on the petitioner's attorney, which
must be after 10 days and may be extended by the court. Granting of
the writ does not stay the proceedings on the decision under appeal,
but on application and after notice to the board the court may grant
a restraining order if due cause is shown.
(d) The board's return must be verified and must concisely
state any pertinent and material facts that show the grounds of the
decision under appeal. The board is not required to return the
original documents on which the board acted but may return
certified or sworn copies of the documents or parts of the documents
as required by the writ.
(e) If at the hearing the court determines that testimony is
necessary for the proper disposition of the matter, it may take
evidence or appoint a referee to take evidence as directed. The
referee shall report the evidence to the court with the referee's
findings of fact and conclusions of law. The referee's report
constitutes a part of the proceedings on which the court shall make
its decision.
(f) The court may reverse or affirm, in whole or in part, or
modify the decision that is appealed. Costs may not be assessed
against the board unless the court determines that the board acted
with gross negligence, in bad faith, or with malice in making its
decision.
(g) The court may not apply a different standard of review
to a decision of a board of adjustment that is composed of members
of the county commissioners court under Section 231.279(g) than is
applied to a decision of a board of adjustment that does not contain
members of the county commissioners court.
Sec. 231.283. ENFORCEMENT; PENALTY; REMEDIES. (a) The
commissioners court of a county may adopt orders to enforce this
subchapter or any regulation adopted under this subchapter.
(b) A person commits an offense if the person violates this
subchapter or a regulation adopted under this subchapter. An
offense under this subsection is a misdemeanor, punishable by fine,
imprisonment, or both, as provided by the commissioners court. The
commissioners court may also provide civil penalties for a
violation.
(c) If a land use violates this subchapter or a regulation
adopted under this subchapter, the appropriate county authority, in
addition to other remedies, may institute appropriate action to:
(1) restrain, correct, or abate the violation;
(2) prevent the occupancy of the building, structure,
or land; or
(3) prevent any illegal act, conduct, business, or use
on or about the premises.
Sec. 231.284. CONFLICT WITH OTHER LAWS; EXCEPTIONS. (a)
This subchapter does not authorize the commissioners court of a
county to require the removal or destruction of property that
exists at the time the commissioners court implements this
subchapter and that is actually and necessarily used in a public
service business.
(b) This subchapter does not apply to a building, other
structure, or land under the control, administration, or
jurisdiction of a state or federal agency.
(c) This subchapter applies to a privately owned building or
other structure and privately owned land when leased to a state
agency.
Sec. 231.285. CONTINUATION OF LAND USE IN CERTAIN AREAS.
(a) A county may not prohibit a person from:
(1) continuing to use land in the manner in which the
land was being used on January 1, 2010, if the land use was legal at
that time; or
(2) beginning to use land in the manner that was
planned for the land before September 1, 2009, if:
(A) one or more licenses, certificates, permits,
approvals, or other forms of authorization by a governmental entity
were required by law for the planned land use; and
(B) a completed application for the initial
authorization was filed with the governmental entity before
September 1, 2009.
(b) For purposes of this section, a completed application is
filed if the application includes all documents and other
information designated as required by the governmental entity in a
written notice to the applicant.
(c) This section does not prohibit a county from imposing:
(1) a regulation relating to the location of sexually
oriented businesses, as that term is defined by Section 243.002;
(2) a regulation or other requirement affecting
colonias, as that term is defined by Section 2306.581, Government
Code;
(3) a regulation relating to preventing imminent
destruction of property or injury to persons;
(4) a regulation relating to public nuisances;
(5) a regulation relating to flood control;
(6) a regulation relating to the storage and use of
hazardous substances;
(7) a regulation relating to the sale and use of
fireworks;
(8) a regulation relating to the discharge of
firearms; or
(9) a regulation relating to noise levels that does
not prevent a person from continuing to use property for
residential purposes.
(d) An order or regulation in conflict with this section is
void.
SECTION 2. This Act takes effect September 1, 2009.