Texas 2009 - 81st Regular

Texas House Bill HB2606 Compare Versions

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1	1	81R23029 NC-F
2	2	By: Hunter H.B. No. 2606
3	3	Substitute the following for H.B. No. 2606:
4	4	By: Thibaut C.S.H.B. No. 2606
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to granting county zoning authority in Aransas County;
10	10	providing a criminal penalty.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Chapter 231, Local Government Code, is amended
13	13	by adding Subchapter N to read as follows:
14	14	SUBCHAPTER N. ZONING IN ARANSAS COUNTY
15	15	Sec. 231.301. LEGISLATIVE FINDINGS; PURPOSE. (a) The
16	16	legislature finds that:
17	17	(1) the parts of Aransas County that surround Aransas
18	18	Bay, Copano Bay, St. Charles Bay, Mesquite Bay, Carlos Bay, and Port
19	19	Bay are frequented for recreational purposes by residents from
20	20	every part of the state;
21	21	(2) orderly development and use of the area is of
22	22	concern to the entire state; and
23	23	(3) without adequate development regulations, Aransas
24	24	County would be developed in ways that endanger and interfere with
25	25	the proper use of the area as a place of tourism and recreation to
26	26	the detriment of the public health, safety, peace, morals, and
27	27	general welfare and the natural resources of the county.
28	28	(b) The powers granted under this subchapter are for the
29	29	purpose of promoting the public health, safety, peace, morals, and
30	30	general welfare and encouraging the recreational use of county
31	31	parks in Aransas County.
32	32	Sec. 231.302. AREAS SUBJECT TO REGULATION. This subchapter
33	33	applies only to the unincorporated areas of Aransas County located
34	34	within three miles of the shoreline of the Gulf of Mexico or a bay.
35	35	Sec. 231.303. ZONING REGULATIONS GENERALLY. The
36	36	Commissioners Court of Aransas County may, for the areas subject to
37	37	this subchapter, regulate:
38	38	(1) the height, number of stories, and size of
39	39	buildings and other structures;
40	40	(2) the percentage of a lot that may be occupied by
41	41	buildings and structures;
42	42	(3) the size of yards, courts, and other open spaces;
43	43	(4) population density;
44	44	(5) the location and use of buildings, other
45	45	structures, and land for business, industrial, residential, or
46	46	other purposes;
47	47	(6) the placement of water and sewage facilities,
48	48	parks, and other public requirements; and
49	49	(7) the control, storage, preservation, and
50	50	distribution of storm and flood water.
51	51	Sec. 231.304. ELECTION TO APPROVE REGULATORY AUTHORITY
52	52	REQUIRED. (a) The regulatory authority granted under Section
53	53	231.303 is not effective unless it is approved by a majority of the
54	54	county residents voting in an election held under this section. The
55	55	commissioners court shall order the election to be held on a uniform
56	56	election date authorized by Section 41.001, Election Code.
57	57	(b) For an election under this section, the ballot shall be
58	58	prepared to permit voting for or against the proposition:
59	59	"Approving the authority granted to the Commissioners Court of
60	60	Aransas County to regulate land development in certain areas of the
61	61	county (insert description of general authority)."
62	62	(c) The regulatory authority approved under this section
63	63	includes the authority of the commissioners court to repeal,
64	64	revise, or amend a regulation of land development adopted under
65	65	this subchapter.
66	66	Sec. 231.305. COMPLIANCE WITH COMPREHENSIVE PLAN. Zoning
67	67	regulations must be adopted in accordance with a comprehensive plan
68	68	and must be designed to:
69	69	(1) lessen congestion in the streets and roads;
70	70	(2) secure safety from fire, panic, and other dangers;
71	71	(3) promote health and the general welfare;
72	72	(4) provide adequate light and air;
73	73	(5) prevent the overcrowding of land;
74	74	(6) avoid undue concentration of population;
75	75	(7) facilitate the adequate provision of
76	76	transportation, water, sewers, parks, and other public
77	77	requirements;
78	78	(8) control, store, preserve, and distribute storm and
79	79	flood water; and
80	80	(9) assist in developing the regulated area into
81	81	parks, playgrounds, and recreational areas.
82	82	Sec. 231.306. DISTRICTS. (a) The commissioners court may
83	83	divide the area of the county subject to this subchapter into
84	84	districts of a number, shape, and size the commissioners court
85	85	considers best for administering this subchapter. Within each
86	86	district, the commissioners court may regulate the erection,
87	87	construction, reconstruction, alteration, repair, or use of
88	88	buildings, other structures, or land.
89	89	(b) The zoning regulations must be uniform for each class or
90	90	kind of building in a district, but the regulations may vary from
91	91	district to district. The regulations shall be adopted with
92	92	reasonable consideration for, among other things, the character of
93	93	each district and its peculiar suitability for particular uses,
94	94	with a view of conserving the value of buildings and encouraging the
95	95	most appropriate use of land throughout the area.
96	96	Sec. 231.307. PROCEDURES GOVERNING ADOPTION OF REGULATIONS
97	97	AND DISTRICT BOUNDARIES. (a) The commissioners court shall
98	98	establish procedures for adopting and enforcing zoning regulations
99	99	and zoning district boundaries. A regulation or district boundary
100	100	is not effective until it is adopted by the commissioners court
101	101	after a public hearing on the matter at which parties in interest
102	102	and citizens have an opportunity to be heard. Before the 15th day
103	103	before the date of the hearing, the commissioners court must
104	104	publish notice of the time and place of the hearing in a newspaper
105	105	of general circulation in the county.
106	106	(b) If a proposed change to a regulation or district
107	107	boundary is protested in accordance with this subsection, the
108	108	proposed change must receive, in order to take effect, the
109	109	affirmative vote of at least three-fourths of all members of the
110	110	commissioners court. The protest must be written and signed by the
111	111	owners of at least 20 percent of either:
112	112	(1) the area of the lots covered by the proposed
113	113	change; or
114	114	(2) the lots immediately adjacent to the rear of the
115	115	lots covered by the proposed change and extending 200 feet from
116	116	those lots or from the street frontage of the opposite lots.
117	117	Sec. 231.308. ZONING COMMISSION. (a) To exercise the
118	118	powers authorized by this subchapter, the commissioners court shall
119	119	appoint a zoning commission. The commission shall recommend
120	120	boundaries for the original zoning districts and appropriate zoning
121	121	regulations for each district. The commission must consist of
122	122	seven members, each of whom must be a resident of the county.
123	123	(b) The commission shall elect a presiding officer from
124	124	among its members. The presiding officer serves in that capacity
125	125	for a term set by the commission. The commission may at any time
126	126	choose for a particular meeting or occasion an acting presiding
127	127	officer as necessary from among its members. The commission may
128	128	employ a secretary and acting secretary and other technical or
129	129	clerical personnel.
130	130	(c) A member of the commission is not entitled to
131	131	compensation but is entitled to expenses actually incurred while
132	132	serving on the commission as provided by order of the commissioners
133	133	court.
134	134	(d) The zoning commission shall make a preliminary report
135	135	and hold public hearings on that report before submitting a final
136	136	report to the commissioners court. The commissioners court may not
137	137	hold a public hearing or take action until it receives the final
138	138	report of the zoning commission.
139	139	(e) Before the 10th day before the hearing date, written
140	140	notice of each public hearing before the zoning commission on a
141	141	proposed change in a zoning classification shall be sent to:
142	142	(1) each owner of affected property or to the person
143	143	who renders the property for county taxes; and
144	144	(2) each owner of property that is located within 200
145	145	feet of property affected by the change or to the person who renders
146	146	the property for county taxes.
147	147	(f) The notice may be served by depositing it in the United
148	148	States mail, postage paid and properly addressed to the address of
149	149	the property owner on file with the county tax assessor-collector.
150	150	Sec. 231.309. BOARD OF ADJUSTMENT. (a) The commissioners
151	151	court may provide for the appointment of a board of adjustment. In
152	152	the zoning regulations adopted under this subchapter, the
153	153	commissioners court may authorize the board of adjustment, in
154	154	appropriate cases and subject to appropriate conditions and
155	155	safeguards, to make special exceptions to the terms of the zoning
156	156	regulations that are consistent with the general purpose and intent
157	157	of the regulations and in accordance with any applicable rules
158	158	contained in the regulations.
159	159	(b) A board of adjustment must consist of five members to be
160	160	appointed for terms of two years. The appointing authority may
161	161	remove a board member for cause on a written charge after a public
162	162	hearing. The appointing authority shall fill a vacancy on the board
163	163	for the unexpired term.
164	164	(c) The board shall adopt rules in accordance with any order
165	165	adopted under this subchapter. Meetings of the board are held at
166	166	the call of the presiding officer and at other times as determined
167	167	by the board. The presiding officer or acting presiding officer may
168	168	administer oaths and compel the attendance of witnesses. All
169	169	meetings of the board are open to the public.
170	170	(d) The board shall keep minutes of its proceedings that
171	171	indicate the vote of each member on each question or indicate that a
172	172	member is absent or fails to vote. The board shall keep records of
173	173	its examinations and other official actions. The minutes and
174	174	records shall be filed immediately in the board's office and are
175	175	public records.
176	176	Sec. 231.310. AUTHORITY OF BOARD. (a) The board of
177	177	adjustment may:
178	178	(1) hear and decide an appeal that alleges error in an
179	179	order, requirement, decision, or determination made by an
180	180	administrative official in the enforcement of this subchapter or a
181	181	zoning regulation;
182	182	(2) hear and decide special exceptions to the terms of
183	183	a zoning regulation when the regulation requires the board to do so;
184	184	and
185	185	(3) authorize in specific cases a variance from the
186	186	terms of a zoning regulation if the variance is not contrary to the
187	187	public interest and, due to special conditions, a literal
188	188	enforcement of the regulation would result in unnecessary hardship,
189	189	and so that the spirit of the regulation is observed and substantial
190	190	justice is done.
191	191	(b) In exercising its authority under Subsection (a)(1),
192	192	the board may reverse or affirm, in whole or in part, or modify the
193	193	administrative official's order, requirement, decision, or
194	194	determination from which an appeal is taken and make the correct
195	195	order, requirement, decision, or determination, and for that
196	196	purpose the board has the same authority as the administrative
197	197	official.
198	198	(c) The concurring vote of four members of the board is
199	199	necessary to:
200	200	(1) reverse an order, requirement, decision, or
201	201	determination of an administrative official;
202	202	(2) decide in favor of an applicant on a matter on
203	203	which the board is required to pass under a zoning regulation; or
204	204	(3) authorize a variation in a zoning regulation.
205	205	Sec. 231.311. APPEAL TO BOARD. (a) Any of the following
206	206	persons may appeal to the board of adjustment a decision made by an
207	207	administrative official:
208	208	(1) a person aggrieved by the decision; or
209	209	(2) an officer, department, board, or bureau of the
210	210	county or of a municipality affected by the decision.
211	211	(b) The appellant must file with the board and the official
212	212	from whom the appeal is taken a notice of appeal specifying the
213	213	grounds for the appeal. The appeal must be filed within a
214	214	reasonable time as determined by board rule. On receiving the
215	215	notice, the official from whom the appeal is taken shall
216	216	immediately transmit to the board all the papers constituting the
217	217	record of the action that is appealed.
218	218	(c) An appeal stays all proceedings in furtherance of the
219	219	action that is appealed unless the official from whom the appeal is
220	220	taken certifies in writing to the board facts supporting the
221	221	official's opinion that a stay would cause imminent peril to life or
222	222	property. In that case, the proceedings may be stayed only by a
223	223	restraining order granted by the board or a court of record on
224	224	application, after notice to the official, if due cause is shown.
225	225	(d) The board shall set the date of the appeal hearing not
226	226	later than the 30th day after the date notice of appeal is filed and
227	227	shall give public notice of the hearing and due notice to the
228	228	parties in interest. A party may appear at the appeal hearing in
229	229	person or by agent or attorney. The board shall decide the appeal
230	230	within a reasonable time.
231	231	Sec. 231.312. JUDICIAL REVIEW OF BOARD DECISION. (a) Any
232	232	of the following persons may present to a court of record a verified
233	233	petition stating that the decision of the board of adjustment is
234	234	illegal in whole or in part and specifying the grounds of the
235	235	illegality:
236	236	(1) a person aggrieved by a decision of the board;
237	237	(2) a taxpayer; or
238	238	(3) an officer, department, board, or bureau of the
239	239	county or of the municipality.
240	240	(b) The petition must be presented within 10 days after the
241	241	date the decision is filed in the board's office.
242	242	(c) On the presentation of the petition, the court may grant
243	243	a writ of certiorari directed to the board to review the board's
244	244	decision. The writ must indicate the time within which the board's
245	245	return must be made and served on the petitioner's attorney, which
246	246	must be after 10 days and may be extended by the court. Granting of
247	247	the writ does not stay the proceedings on the decision under appeal,
248	248	but on application and after notice to the board, the court may
249	249	grant a restraining order if due cause is shown.
250	250	(d) The board's return must be verified and must concisely
251	251	state any pertinent and material facts that show the grounds of the
252	252	decision under appeal. The board is not required to return the
253	253	original documents on which the board acted but may return
254	254	certified or sworn copies of the documents or parts of the documents
255	255	as required by the writ.
256	256	(e) If at the hearing the court determines that testimony is
257	257	necessary for the proper disposition of the matter, it may take
258	258	evidence or appoint a referee to take evidence as directed. The
259	259	referee shall report the evidence to the court with the referee's
260	260	findings of fact and conclusions of law. The referee's report
261	261	constitutes a part of the proceedings on which the court shall make
262	262	its decision.
263	263	(f) The court may reverse or affirm, in whole or in part, or
264	264	modify the decision that is appealed. The court may not assess
265	265	costs against the board unless the court determines that the board
266	266	acted with gross negligence, in bad faith, or with malice in making
267	267	its decision.
268	268	Sec. 231.313. SPECIAL EXCEPTION. (a) If the commissioners
269	269	court does not provide for the appointment of a board of adjustment
270	270	under Section 231.309, a person aggrieved by a zoning regulation or
271	271	a zoning district boundary adopted under this subchapter may
272	272	petition the commissioners court.
273	273	(b) The commissioners court shall adopt procedures
274	274	governing applications, notice, hearings, and other matters
275	275	relating to the grant of a special exception.
276	276	Sec. 231.314. ENFORCEMENT; PENALTY; REMEDIES. (a) The
277	277	commissioners court may adopt orders to enforce this subchapter,
278	278	any order adopted under this subchapter, or a zoning regulation.
279	279	(b) A person commits an offense if the person violates this
280	280	subchapter, an order adopted under this subchapter, or a zoning
281	281	regulation. An offense under this subsection is a misdemeanor,
282	282	punishable by fine, as provided by the commissioners court. The
283	283	commissioners court may also provide civil penalties for a
284	284	violation.
285	285	(c) If a building or other structure is erected,
286	286	constructed, reconstructed, altered, repaired, converted, or
287	287	maintained or if a building, other structure, or land is used in
288	288	violation of this subchapter, an order adopted under this
289	289	subchapter, or a zoning regulation, the appropriate county
290	290	authority, in addition to other remedies, may institute appropriate
291	291	action to:
292	292	(1) prevent the unlawful erection, construction,
293	293	reconstruction, alteration, repair, conversion, maintenance, or
294	294	use;
295	295	(2) restrain, correct, or abate the violation;
296	296	(3) prevent the occupancy of the building, structure,
297	297	or land; or
298	298	(4) prevent any illegal act, conduct, business, or use
299	299	on or about the premises.
300	300	Sec. 231.315. CONFLICT WITH OTHER LAWS; EXCEPTIONS. (a) If
301	301	a zoning regulation adopted under this subchapter requires a
302	302	greater width or size of a yard, court, or other open space,
303	303	requires a lower building height or fewer stories for a building,
304	304	requires a greater percentage of lot to be left unoccupied, or
305	305	otherwise imposes higher standards than those required under
306	306	another statute or local order or regulation, the regulation
307	307	adopted under this subchapter controls. If the other statute or
308	308	local order or regulation imposes higher standards, that statute,
309	309	order, or regulation controls.
310	310	(b) This subchapter does not authorize the commissioners
311	311	court to require the removal or destruction of property that exists
312	312	at the time the court implements this subchapter.
313	313	(c) This subchapter, an order adopted under this
314	314	subchapter, or a zoning regulation does not apply to the location,
315	315	construction, maintenance, or use of central office buildings used
316	316	by a person engaging in providing telephone service to the public or
317	317	equipment used in connection with those buildings or as part of the
318	318	telephone system, as necessary to furnish telephone service to the
319	319	public.
320	320	SECTION 2. This Act takes effect immediately if it receives
321	321	a vote of two-thirds of all the members elected to each house, as
322	322	provided by Section 39, Article III, Texas Constitution. If this
323	323	Act does not receive the vote necessary for immediate effect, this
324	324	Act takes effect September 1, 2009.