81R23029 NC-F
By: Hunter H.B. No. 2606
Substitute the following for H.B. No. 2606:
By: Thibaut C.S.H.B. No. 2606
A BILL TO BE ENTITLED
AN ACT
relating to granting county zoning authority in Aransas County;
providing a criminal penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 231, Local Government Code, is amended
by adding Subchapter N to read as follows:
SUBCHAPTER N. ZONING IN ARANSAS COUNTY
Sec. 231.301. LEGISLATIVE FINDINGS; PURPOSE. (a) The
legislature finds that:
(1) the parts of Aransas County that surround Aransas
Bay, Copano Bay, St. Charles Bay, Mesquite Bay, Carlos Bay, and Port
Bay are frequented for recreational purposes by residents from
every part of the state;
(2) orderly development and use of the area is of
concern to the entire state; and
(3) without adequate development regulations, Aransas
County would be developed in ways that endanger and interfere with
the proper use of the area as a place of tourism and recreation to
the detriment of the public health, safety, peace, morals, and
general welfare and the natural resources of the county.
(b) The powers granted under this subchapter are for the
purpose of promoting the public health, safety, peace, morals, and
general welfare and encouraging the recreational use of county
parks in Aransas County.
Sec. 231.302. AREAS SUBJECT TO REGULATION. This subchapter
applies only to the unincorporated areas of Aransas County located
within three miles of the shoreline of the Gulf of Mexico or a bay.
Sec. 231.303. ZONING REGULATIONS GENERALLY. The
Commissioners Court of Aransas County may, for the areas subject to
this subchapter, regulate:
(1) the height, number of stories, and size of
buildings and other structures;
(2) the percentage of a lot that may be occupied by
buildings and structures;
(3) the size of yards, courts, and other open spaces;
(4) population density;
(5) the location and use of buildings, other
structures, and land for business, industrial, residential, or
other purposes;
(6) the placement of water and sewage facilities,
parks, and other public requirements; and
(7) the control, storage, preservation, and
distribution of storm and flood water.
Sec. 231.304. ELECTION TO APPROVE REGULATORY AUTHORITY
REQUIRED. (a) The regulatory authority granted under Section
231.303 is not effective unless it is approved by a majority of the
county residents voting in an election held under this section. The
commissioners court shall order the election to be held on a uniform
election date authorized by Section 41.001, Election Code.
(b) For an election under this section, the ballot shall be
prepared to permit voting for or against the proposition:
"Approving the authority granted to the Commissioners Court of
Aransas County to regulate land development in certain areas of the
county (insert description of general authority)."
(c) The regulatory authority approved under this section
includes the authority of the commissioners court to repeal,
revise, or amend a regulation of land development adopted under
this subchapter.
Sec. 231.305. COMPLIANCE WITH COMPREHENSIVE PLAN. Zoning
regulations must be adopted in accordance with a comprehensive plan
and must be designed to:
(1) lessen congestion in the streets and roads;
(2) secure safety from fire, panic, and other dangers;
(3) promote health and the general welfare;
(4) provide adequate light and air;
(5) prevent the overcrowding of land;
(6) avoid undue concentration of population;
(7) facilitate the adequate provision of
transportation, water, sewers, parks, and other public
requirements;
(8) control, store, preserve, and distribute storm and
flood water; and
(9) assist in developing the regulated area into
parks, playgrounds, and recreational areas.
Sec. 231.306. DISTRICTS. (a) The commissioners court may
divide the area of the county subject to this subchapter into
districts of a number, shape, and size the commissioners court
considers best for administering this subchapter. Within each
district, the commissioners court may regulate the erection,
construction, reconstruction, alteration, repair, or use of
buildings, other structures, or land.
(b) The 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 for, among other things, 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 throughout the area.
Sec. 231.307. PROCEDURES GOVERNING ADOPTION OF REGULATIONS
AND DISTRICT BOUNDARIES. (a) The commissioners court shall
establish procedures for adopting and enforcing zoning regulations
and zoning district boundaries. A regulation or district boundary
is not effective until it is adopted by the commissioners court
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, the commissioners court must
publish notice of the time and place of the hearing in a newspaper
of general circulation in the county.
(b) If a proposed change to a regulation or district
boundary is protested in accordance with this subsection, the
proposed change must receive, in order to take effect, the
affirmative vote of at least three-fourths of all members of the
commissioners court. The protest must be written and signed by the
owners of at least 20 percent of either:
(1) the area of the lots covered by the proposed
change; or
(2) the lots immediately adjacent to the rear of the
lots covered by the proposed change and extending 200 feet from
those lots or from the street frontage of the opposite lots.
Sec. 231.308. ZONING COMMISSION. (a) To exercise the
powers authorized by this subchapter, the commissioners court shall
appoint a zoning commission. The commission shall recommend
boundaries for the original zoning districts and appropriate zoning
regulations for each district. The commission must consist of
seven members, each of whom must be a resident of the county.
(b) The commission shall elect a presiding officer from
among its members. The presiding officer serves in that capacity
for a term set by the commission. The commission may at any time
choose for a particular meeting or occasion an acting presiding
officer as necessary from among its members. The commission may
employ a secretary and acting secretary and other technical or
clerical personnel.
(c) A member of the commission is not entitled to
compensation but is entitled to expenses actually incurred while
serving on the commission as provided by order of the commissioners
court.
(d) The zoning 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 or take action until it receives the final
report of the zoning commission.
(e) Before the 10th day before the hearing date, written
notice of each public hearing before the zoning commission on a
proposed change in a zoning classification shall be sent to:
(1) each owner of affected property or to the person
who renders the property for county taxes; and
(2) each owner of property that is located within 200
feet of property affected by the change or to the person who renders
the property for county taxes.
(f) The notice may be served by depositing it in the United
States mail, postage paid and properly addressed to the address of
the property owner on file with the county tax assessor-collector.
Sec. 231.309. BOARD OF ADJUSTMENT. (a) The commissioners
court may provide for the appointment of a board of adjustment. In
the zoning 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 five members to be
appointed for terms of two years. The appointing authority may
remove a board member for cause on a written charge after a public
hearing. The appointing authority shall fill a vacancy on the board
for the unexpired term.
(c) The board shall adopt rules in accordance with any order
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 are open to the public.
(d) The board shall keep minutes of its proceedings that
indicate the vote of each member on each question or indicate 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.
Sec. 231.310. 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
zoning regulation;
(2) hear and decide special exceptions to the terms of
a zoning regulation when the regulation requires the board to do so;
and
(3) authorize in specific cases a variance from the
terms of a zoning regulation if the variance is not contrary to the
public interest and, due to special conditions, a literal
enforcement of the regulation would result in unnecessary hardship,
and so that the spirit of the regulation is observed and substantial
justice is done.
(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, and for that
purpose the board has the same authority as the administrative
official.
(c) The concurring vote of four 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 in a zoning regulation.
Sec. 231.311. APPEAL TO BOARD. (a) 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) an officer, department, board, or bureau of the
county or of a municipality 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 board rule. 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 the date of the appeal hearing not
later than the 30th day after the date notice of appeal is filed 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.
Sec. 231.312. JUDICIAL REVIEW OF BOARD DECISION. (a) Any
of the following persons may present to a court of record a verified
petition stating that the decision of the board of adjustment is
illegal in whole or in part 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 or of the municipality.
(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 within 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. The court may not assess
costs against the board unless the court determines that the board
acted with gross negligence, in bad faith, or with malice in making
its decision.
Sec. 231.313. SPECIAL EXCEPTION. (a) If the commissioners
court does not provide for the appointment of a board of adjustment
under Section 231.309, a person aggrieved by a zoning regulation or
a zoning district boundary adopted under this subchapter may
petition the commissioners court.
(b) The commissioners court shall adopt procedures
governing applications, notice, hearings, and other matters
relating to the grant of a special exception.
Sec. 231.314. ENFORCEMENT; PENALTY; REMEDIES. (a) The
commissioners court may adopt orders to enforce this subchapter,
any order adopted under this subchapter, or a zoning regulation.
(b) A person commits an offense if the person violates this
subchapter, an order adopted under this subchapter, or a zoning
regulation. An offense under this subsection is a misdemeanor,
punishable by fine, as provided by the commissioners court. The
commissioners court may also provide civil penalties for a
violation.
(c) If a building or other structure is erected,
constructed, reconstructed, altered, repaired, converted, or
maintained or if a building, other structure, or land is used in
violation of this subchapter, an order adopted under this
subchapter, or a zoning regulation, the appropriate county
authority, in addition to other remedies, may institute appropriate
action to:
(1) prevent the unlawful erection, construction,
reconstruction, alteration, repair, conversion, maintenance, or
use;
(2) restrain, correct, or abate the violation;
(3) prevent the occupancy of the building, structure,
or land; or
(4) prevent any illegal act, conduct, business, or use
on or about the premises.
Sec. 231.315. CONFLICT WITH OTHER LAWS; EXCEPTIONS. (a) If
a zoning regulation adopted under this subchapter requires a
greater width or size of a yard, court, or other open space,
requires a lower building height or fewer stories for a building,
requires a greater percentage of lot to be left unoccupied, or
otherwise imposes higher standards than those required under
another statute or local order or regulation, the regulation
adopted under this subchapter controls. If the other statute or
local order or regulation imposes higher standards, that statute,
order, or regulation controls.
(b) This subchapter does not authorize the commissioners
court to require the removal or destruction of property that exists
at the time the court implements this subchapter.
(c) This subchapter, an order adopted under this
subchapter, or a zoning regulation does not apply to the location,
construction, maintenance, or use of central office buildings used
by a person engaging in providing telephone service to the public or
equipment used in connection with those buildings or as part of the
telephone system, as necessary to furnish telephone service to the
public.
SECTION 2. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.