Texas 2009 - 81st Regular

Texas House Bill HB4262 Compare Versions

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

Old	New	Differences
1	1	81R10567 JTS-F
2	2	By: Rodriguez H.B. No. 4262
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to authorizing municipalities and counties to regulate
8	8	land development in certain unincorporated areas; providing a
9	9	penalty.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. The heading to Chapter 242, Local Government
12	12	Code, is amended to read as follows:
13	13	CHAPTER 242. AUTHORITY OF MUNICIPALITY AND COUNTY TO REGULATE
14	14	SUBDIVISIONS AND LAND DEVELOPMENT IN AND OUTSIDE MUNICIPALITY'S
15	15	EXTRATERRITORIAL JURISDICTION
16	16	SECTION 2. Chapter 242, Local Government Code, is amended
17	17	by designating Sections 242.001, 242.0015, and 242.002 as
18	18	Subchapter A and adding a heading for Subchapter A to read as
19	19	follows:
20	20	SUBCHAPTER A. AUTHORITY TO REGULATE SUBDIVISIONS IN AND OUTSIDE
21	21	MUNICIPALITY'S EXTRATERRITORIAL JURISDICTION
22	22	SECTION 3. Chapter 242, Local Government Code, is amended
23	23	by adding Subchapter B to read as follows:
24	24	SUBCHAPTER B. AUTHORITY TO REGULATE LAND DEVELOPMENT IN
25	25	MUNICIPALITY'S EXTRATERRITORIAL JURISDICTION IN CERTAIN COUNTIES
26	26	Sec. 242.051. REGULATION OF LAND DEVELOPMENT IN
27	27	EXTRATERRITORIAL JURISDICTION GENERALLY. (a) This subchapter
28	28	applies only to a county with a population of 800,000 or more and a
29	29	municipality with a population of 500,000 or more located within 60
30	30	miles of the Edwards Aquifer.
31	31	(b) For an area in a municipality's extraterritorial
32	32	jurisdiction, as determined under Chapter 42, the governing bodies
33	33	of a municipality and the county acting jointly may adopt and
34	34	enforce a building code and regulate:
35	35	(1) the height, number of stories, and size of
36	36	buildings and other structures;
37	37	(2) the percentage of a lot that may be occupied;
38	38	(3) the size of yards, courts, and other open spaces;
39	39	(4) population density;
40	40	(5) the location and use of buildings, other
41	41	structures, and land for business, industrial, residential, or
42	42	other purposes; and
43	43	(6) the pumping, extraction, and use of groundwater by
44	44	persons other than retail public utilities, as defined by Section
45	45	13.002, Water Code, for the purpose of preventing the use or contact
46	46	with groundwater that presents an actual or potential threat to
47	47	human health.
48	48	(c) In the case of designated places and areas of
49	49	historical, cultural, or architectural importance and significance
50	50	in a municipality's extraterritorial jurisdiction, as determined
51	51	under Chapter 42, the governing bodies of a municipality and the
52	52	county acting jointly may regulate the construction,
53	53	reconstruction, alteration, or razing of buildings and other
54	54	structures.
55	55	(d) For an area in a municipality's extraterritorial
56	56	jurisdiction, as determined under Chapter 42, the governing bodies
57	57	of a municipality and the county may regulate the bulk of buildings.
58	58	(e) The municipality and the county may establish a joint
59	59	zoning commission, joint rules for enforcing the zoning regulations
60	60	and boundaries, and a joint board of adjustment under this
61	61	subchapter.
62	62	(f) Zoning regulations described by Subsections (b)-(d)
63	63	must be adopted in accordance with a comprehensive plan and zoning
64	64	procedures approved by the governing bodies of the municipality and
65	65	the county and must be designed to:
66	66	(1) lessen congestion in the streets;
67	67	(2) secure safety from fire, panic, and other dangers;
68	68	(3) promote health and the general welfare;
69	69	(4) provide adequate light and air;
70	70	(5) prevent the overcrowding of land;
71	71	(6) avoid undue concentration of population; or
72	72	(7) facilitate the adequate provision of
73	73	transportation, water, sewers, schools, parks, and other public
74	74	requirements.
75	75	(g) The comprehensive plan of the county described by
76	76	Subsection (f) may encompass areas outside the extraterritorial
77	77	jurisdiction of a municipality.
78	78	Sec. 242.052. DISTRICTS. (a) The governing bodies of the
79	79	municipality and the county may divide the extraterritorial
80	80	jurisdiction of the municipality into districts of a number, shape,
81	81	and size the governing bodies consider best for carrying out this
82	82	subchapter. Within each district, the governing bodies may
83	83	regulate the erection, construction, reconstruction, alteration,
84	84	repair, or use of buildings, other structures, or land.
85	85	(b) Zoning regulations must be uniform for each class or
86	86	kind of building in a district, but the regulations may vary from
87	87	district to district. The regulations shall be adopted with
88	88	reasonable consideration, among other things, for the character of
89	89	each district and its peculiar suitability for particular uses,
90	90	with a view of conserving the value of buildings and encouraging the
91	91	most appropriate use of land throughout the area.
92	92	Sec. 242.053. JOINT PROCEDURES GOVERNING ADOPTION OF ZONING
93	93	REGULATIONS AND DISTRICT BOUNDARIES. (a) The governing bodies of
94	94	the municipality and the county shall establish joint procedures
95	95	for adopting and enforcing the regulations and district boundaries.
96	96	A regulation or boundary is not effective until it is adopted by the
97	97	governing bodies of the municipality and the county after a public
98	98	hearing on the matter at which parties in interest and citizens have
99	99	an opportunity to be heard. Before the 15th day before the date of
100	100	the hearing, the governing bodies of the municipality and the
101	101	county must publish notice of the time and place of the hearing in
102	102	an official newspaper or a newspaper of general circulation in the
103	103	extraterritorial jurisdiction.
104	104	(b) A rule or regulation established under this section may
105	105	be amended only if the amended rule is adopted by the governing
106	106	bodies of the municipality and the county.
107	107	Sec. 242.054. JOINT ZONING COMMISSION. (a) To exercise the
108	108	powers authorized by this subchapter, the governing bodies of the
109	109	municipality and the county may appoint a zoning commission. The
110	110	commission shall recommend boundaries for the original zoning
111	111	districts and appropriate zoning regulations for each district.
112	112	(b) The zoning commission shall make a preliminary report
113	113	and hold public hearings on that report before submitting a final
114	114	report to the governing bodies of the municipality and the county.
115	115	The governing bodies of the municipality and the county may not hold
116	116	a public hearing until each receives the final report of the zoning
117	117	commission.
118	118	Sec. 242.055. COMPLIANCE WITH OPEN MEETINGS LAW. A joint
119	119	board of adjustment or joint zoning commission established by an
120	120	ordinance or resolution adopted by the governing bodies of the
121	121	municipality and the county to assist the governing bodies of the
122	122	municipality and the county in developing an initial comprehensive
123	123	zoning plan or initial zoning regulations, or a committee of the
124	124	joint board of adjustment or joint zoning commission that includes
125	125	one or more members of the board or commission, is subject to
126	126	Chapter 551, Government Code.
127	127	Sec. 242.056. JOINT BOARD OF ADJUSTMENT. (a) The
128	128	governing bodies of the municipality and the county may provide for
129	129	the appointment of a joint board of adjustment. In the regulations
130	130	adopted under this subchapter, the governing bodies of the
131	131	municipality and the county may authorize the board of adjustment,
132	132	in appropriate cases and subject to appropriate conditions and
133	133	safeguards, to make special exceptions to the terms of a zoning
134	134	regulation that are consistent with the general purpose and intent
135	135	of the regulation and in accordance with any applicable rules
136	136	contained in the regulation.
137	137	(b) A board of adjustment must consist of at least five
138	138	members to be appointed for terms of two years. The governing
139	139	bodies of the municipality and the county must provide the
140	140	procedure for appointment. The governing bodies of the
141	141	municipality and the county may authorize each member of each
142	142	governing body to appoint one member to the board. The appointing
143	143	governing body may remove a board member for cause, as found by the
144	144	appointing governing body, on a written charge after a public
145	145	hearing. A vacancy on the board shall be filled for the unexpired
146	146	term.
147	147	(c) The appointing governing body may provide for the
148	148	appointment of alternate board members to serve in the absence of
149	149	one or more regular members when requested to do so by the presiding
150	150	officer of the appointing governing body. An alternate member
151	151	serves for the same period as a regular member and is subject to
152	152	removal in the same manner as a regular member. A vacancy among the
153	153	alternate members is filled in the same manner as a vacancy among
154	154	the regular members.
155	155	(d) Each case before the board of adjustment must be heard
156	156	by at least 75 percent of the members.
157	157	(e) The board by majority vote shall adopt rules in
158	158	accordance with any regulation adopted under this subchapter.
159	159	Meetings of the board are held at the call of the presiding officer
160	160	and at other times as determined by the board. The presiding
161	161	officer of the board or acting presiding officer may administer
162	162	oaths and compel the attendance of witnesses. All meetings of the
163	163	board shall be open to the public.
164	164	(f) The board shall keep minutes of its proceedings that
165	165	indicate the vote of each member on each question or the fact that a
166	166	member is absent or fails to vote. The board shall keep records of
167	167	its examinations and other official actions. The minutes and
168	168	records shall be filed immediately in the board's office and are
169	169	public records.
170	170	Sec. 242.057. AUTHORITY OF BOARD. (a) The board of
171	171	adjustment may:
172	172	(1) hear and decide an appeal that alleges error in an
173	173	order, requirement, decision, or determination made by an
174	174	administrative official in the enforcement of this subchapter or a
175	175	regulation adopted under this subchapter;
176	176	(2) hear and decide special exceptions to the terms of
177	177	a zoning regulation when the regulation requires the board to do so;
178	178	(3) authorize in specific cases a variance from the
179	179	terms of a zoning regulation if the variance is not contrary to the
180	180	public interest and, due to special conditions, a literal
181	181	enforcement of the regulation would result in unnecessary hardship,
182	182	and so that the spirit of the regulation is observed and substantial
183	183	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 wholly or partly reverse or affirm 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, and for that
191	191	purpose the board has the same authority as the administrative
192	192	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. 242.058. 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	municipality or 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 governing bodies of the municipality and
227	227	the county who serves on the board of adjustment may not bring an
228	228	appeal under this section.
229	229	Sec. 242.059. 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	municipality or 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 wholly or partly reverse or affirm 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 governing bodies of a municipality and a county than is
269	269	applied to a decision of a board of adjustment that is not composed
270	270	of members of the governing body of a municipality or a county.
271	271	Sec. 242.060. ENFORCEMENT; PENALTY; REMEDIES. (a) The
272	272	governing bodies of the municipality and the county may adopt a
273	273	regulation to enforce this subchapter or any regulation adopted
274	274	under this subchapter.
275	275	(b) A person commits an offense if the person violates this
276	276	subchapter or a regulation adopted under this subchapter. An
277	277	offense under this subsection is a misdemeanor, punishable by fine,
278	278	imprisonment, or both, as provided by the governing bodies of the
279	279	municipality and the county. The governing bodies of the
280	280	municipality and the county may also provide civil penalties for a
281	281	violation.
282	282	(c) If a building or other structure is erected,
283	283	constructed, reconstructed, altered, repaired, converted, or
284	284	maintained or if a building, other structure, or land is used in
285	285	violation of this subchapter or a regulation adopted under this
286	286	subchapter, the appropriate municipal or county authority, in
287	287	addition to other remedies, may institute appropriate action to:
288	288	(1) prevent the unlawful erection, construction,
289	289	reconstruction, alteration, repair, conversion, maintenance, or
290	290	use;
291	291	(2) restrain, correct, or abate the violation;
292	292	(3) prevent the occupancy of the building, structure,
293	293	or land; or
294	294	(4) prevent any illegal act, conduct, business, or use
295	295	on or about the premises.
296	296	Sec. 242.061. CONFLICT WITH OTHER LAWS;
297	297	EXCEPTIONS. (a) If a zoning regulation adopted under this
298	298	subchapter requires a greater width or size of a yard, court, or
299	299	other open space, requires a lower building height or fewer number
300	300	of stories for a building, requires a greater percentage of lot to
301	301	be left unoccupied, or otherwise imposes higher standards than
302	302	those required under another statute or local ordinance or
303	303	regulation, the regulation adopted under this subchapter controls.
304	304	If the other statute or local ordinance or regulation imposes
305	305	higher standards, that statute, ordinance, or regulation controls.
306	306	(b) This subchapter does not authorize the governing bodies
307	307	of the municipality and the county to require the removal or
308	308	destruction of property that exists at the time the governing
309	309	bodies of the municipality and the county implement this subchapter
310	310	and that is actually and necessarily used in a public service
311	311	business.
312	312	(c) This subchapter does not apply to a building, other
313	313	structure, or land under the control, administration, or
314	314	jurisdiction of a state or federal agency.
315	315	(d) This subchapter applies to a privately owned building or
316	316	other structure and privately owned land when leased to a state
317	317	agency.
318	318	Sec. 242.062. CONTINUATION OF LAND USE. The governing
319	319	bodies of the municipality and the county may not prohibit a person
320	320	from continuing to use land in the manner in which the land was
321	321	being used on January 1, 2010, if the land use was legal at that
322	322	time.
323	323	SECTION 4. Section 212.003(a), Local Government Code, is
324	324	amended to read as follows:
325	325	(a) The governing body of a municipality by ordinance may
326	326	extend to the extraterritorial jurisdiction of the municipality the
327	327	application of municipal ordinances adopted under Section 212.002
328	328	and other municipal ordinances relating to access to public roads
329	329	or the pumping, extraction, and use of groundwater by persons other
330	330	than retail public utilities, as defined by Section 13.002, Water
331	331	Code, for the purpose of preventing the use or contact with
332	332	groundwater that presents an actual or potential threat to human
333	333	health. However, unless authorized by Subchapter B, Chapter 242,
334	334	or otherwise authorized by state law, in its extraterritorial
335	335	jurisdiction a municipality shall not regulate:
336	336	(1) the use of any building or property for business,
337	337	industrial, residential, or other purposes;
338	338	(2) the bulk, height, or number of buildings
339	339	constructed on a particular tract of land;
340	340	(3) the size of a building that can be constructed on a
341	341	particular tract of land, including without limitation any
342	342	restriction on the ratio of building floor space to the land square
343	343	footage;
344	344	(4) the number of residential units that can be built
345	345	per acre of land; or
346	346	(5) the size, type, or method of construction of a
347	347	water or wastewater facility that can be constructed to serve a
348	348	developed tract of land if:
349	349	(A) the facility meets the minimum standards
350	350	established for water or wastewater facilities by state and federal
351	351	regulatory entities; and
352	352	(B) the developed tract of land is:
353	353	(i) located in a county with a population of
354	354	2.8 million or more; and
355	355	(ii) served by:
356	356	(a) on-site septic systems
357	357	constructed before September 1, 2001, that fail to provide adequate
358	358	services; or
359	359	(b) on-site water wells constructed
360	360	before September 1, 2001, that fail to provide an adequate supply of
361	361	safe drinking water.
362	362	SECTION 5. This Act takes effect immediately if it receives
363	363	a vote of two-thirds of all the members elected to each house, as
364	364	provided by Section 39, Article III, Texas Constitution. If this
365	365	Act does not receive the vote necessary for immediate effect, this
366	366	Act takes effect September 1, 2009.