Texas 2009 - 81st Regular

Texas Senate Bill SB1180 Compare Versions

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

Old	New	Differences
1	1	81R4830 UM-F
2	2	By: Patrick, Dan S.B. No. 1180
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to regulatory takings.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 2007.002, Government Code, is amended by
10	10	amending Subdivision (5) and adding Subdivision (6) to read as
11	11	follows:
12	12	(5) "Taking" means:
13	13	(A) a governmental action or series of actions
14	14	that affects private real property, in whole or in part or
15	15	temporarily or permanently, in a manner that requires the
16	16	governmental entity to compensate the private real property owner
17	17	as provided by the Fifth and Fourteenth Amendments to the United
18	18	States Constitution or Section 17 or 19, Article I, Texas
19	19	Constitution; [or]
20	20	(B) a governmental action or series of actions
21	21	that:
22	22	(i) affects an owner's private real
23	23	property that is the subject of the governmental action, in whole or
24	24	in part or temporarily or permanently, in a manner that restricts or
25	25	limits the owner's right to the property that would otherwise exist
26	26	in the absence of the governmental action; and
27	27	(ii) is the producing cause of a reduction
28	28	of at least 25 percent in the market value of the affected private
29	29	real property, determined by comparing the market value of the
30	30	property as if the governmental action is not in effect and the
31	31	market value of the property determined as if the governmental
32	32	action is in effect; or
33	33	(C) a governmental action or series of actions
34	34	that has the effect of limiting the overall impervious cover of any
35	35	development or use of an owner's private real property to less than
36	36	35 percent of the surface area of the property, excluding any
37	37	portion of the property that is within the 100-year floodplain as
38	38	determined by the most recent maps published by the Federal
39	39	Emergency Management Agency or that slopes more than 35 percent.
40	40	(6) "Impervious cover" means impermeable surfaces,
41	41	including pavement and rooftops, that prevent the infiltration of
42	42	water into the soil. The term does not include a rainwater
43	43	collection system for a domestic water supply.
44	44	SECTION 2. Section 2007.003, Government Code, is amended to
45	45	read as follows:
46	46	Sec. 2007.003. APPLICABILITY. (a) This chapter applies
47	47	only to the following governmental actions:
48	48	(1) the adoption or issuance of an ordinance, rule,
49	49	regulatory requirement, resolution, policy, guideline, or similar
50	50	measure;
51	51	(2) an action that imposes a physical invasion or
52	52	requires a dedication or exaction of private real property; and
53	53	(3) [an action by a municipality that has effect in the
54	54	extraterritorial jurisdiction of the municipality, excluding
55	55	annexation, and that enacts or enforces an ordinance, rule,
56	56	regulation, or plan that does not impose identical requirements or
57	57	restrictions in the entire extraterritorial jurisdiction of the
58	58	municipality; and
59	59	[(4)] enforcement of a governmental action listed in
60	60	Subdivisions (1) and (2) [through (3)], whether the enforcement of
61	61	the governmental action is accomplished through the use of
62	62	permitting, citations, orders, judicial or quasi-judicial
63	63	proceedings, or other similar means.
64	64	(b) This chapter does not apply to the following
65	65	governmental actions:
66	66	(1) [an action by a municipality except as provided by
67	67	Subsection (a)(3);
68	68	[(2)] a lawful forfeiture or seizure of contraband as
69	69	defined by Article 59.01, Code of Criminal Procedure;
70	70	(2) [(3)] a lawful seizure of property as evidence of
71	71	a crime or violation of law;
72	72	(3) [(4) an action, including an action of a political
73	73	subdivision, that is reasonably taken to fulfill an obligation
74	74	mandated by federal law or an action of a political subdivision that
75	75	is reasonably taken to fulfill an obligation mandated by state law;
76	76	[(5)] the discontinuance or modification of a program
77	77	or regulation that provides a unilateral expectation that does not
78	78	rise to the level of a recognized interest in private real property;
79	79	(4) [(6)] an action taken to prohibit or restrict a
80	80	condition or use of private real property if the governmental
81	81	entity proves that the condition or use constitutes a public or
82	82	private nuisance as defined by background principles of nuisance
83	83	and property law of this state;
84	84	(5) [(7) an action taken out of a reasonable good faith
85	85	belief that the action is necessary to prevent a grave and immediate
86	86	threat to life or property;
87	87	[(8)] a formal exercise of the power of eminent
88	88	domain;
89	89	(6) [(9)] an action taken under a state mandate to
90	90	prevent waste of oil and gas, protect correlative rights of owners
91	91	of interests in oil or gas, or prevent pollution related to oil and
92	92	gas activities;
93	93	(7) [(10) a rule or proclamation adopted for the
94	94	purpose of regulating water safety, hunting, fishing, or control of
95	95	nonindigenous or exotic aquatic resources;
96	96	[(11)] an action taken by a political subdivision [:
97	97	[(A) to regulate construction in an area
98	98	designated under law as a floodplain;
99	99	[(B) to regulate on-site sewage facilities;
100	100	[(C) under the political subdivisions's
101	101	statutory authority to prevent waste or protect rights of owners of
102	102	interest in groundwater; or
103	103	[(D)] to prevent subsidence;
104	104	(8) [(12)] the appraisal of property for purposes of
105	105	ad valorem taxation; or
106	106	(9) [(13) an action that:
107	107	[(A) is taken in response to a real and
108	108	substantial threat to public health and safety;
109	109	[(B) is designed to significantly advance the
110	110	health and safety purpose; and
111	111	[(C) does not impose a greater burden than is
112	112	necessary to achieve the health and safety purpose; or
113	113	[(14)] an action or rulemaking undertaken by the
114	114	Public Utility Commission of Texas to order or require the location
115	115	or placement of telecommunications equipment owned by another party
116	116	on the premises of a certificated local exchange company.
117	117	(c) This chapter does not apply to the following
118	118	governmental actions, if the actions do not affect building size,
119	119	lot size, or impervious cover:
120	120	(1) an action that is reasonably taken to fulfill an
121	121	obligation mandated by federal or state law;
122	122	(2) an action taken based on reasonable evidence that
123	123	the action is necessary to prevent a grave and immediate threat to
124	124	life or property;
125	125	(3) an action taken by a political subdivision to
126	126	regulate construction in an area designated under law as a
127	127	floodplain;
128	128	(4) an action that:
129	129	(A) is taken in response to a threat to public
130	130	health and safety;
131	131	(B) is designed to significantly advance the
132	132	health and safety purpose; and
133	133	(C) does not impose a greater burden than is
134	134	necessary to achieve the health and safety purpose; or
135	135	(5) an action taken to prevent waste or protect rights
136	136	of owners of an interest in groundwater [Sections 2007.021 and
137	137	2007.022 do not apply to the enforcement or implementation of a
138	138	statute, ordinance, order, rule, regulation, requirement,
139	139	resolution, policy, guideline, or similar measure that was in
140	140	effect September 1, 1995, and that prevents the pollution of a
141	141	reservoir or an aquifer designated as a sole source aquifer under
142	142	the federal Safe Drinking Water Act (42 U.S.C. Section
143	143	300h-3(e))].
144	144	(d) [This chapter applies to a governmental action taken by
145	145	a county only if the action is taken on or after September 1, 1997.
146	146	[(e)] This chapter does not:
147	147	(1) limit or otherwise affect the authority of a
148	148	municipality, a county, another political subdivision, the state,
149	149	or an agency of the state, with respect to the implementation or
150	150	enforcement of an ordinance, a rule, or a statutory standard of a
151	151	program, plan, or ordinance that was adopted under:
152	152	(A) the federal Coastal Zone Management Act of
153	153	1972 (16 U.S.C. Section 1451 et seq.); or
154	154	(B) Subtitle E, Title 2, Natural Resources Code;
155	155	(2) apply to a permit, order, rule, regulation, or
156	156	other action issued, adopted, or undertaken by a municipality, a
157	157	county, another political subdivision, the state, or an agency of
158	158	the state in connection with:
159	159	(A) the federal Coastal Zone Management Act of
160	160	1972 (16 U.S.C. Section 1451 et seq.); or
161	161	(B) Subtitle E, Title 2, Natural Resources Code;
162	162	or
163	163	(3) limit or otherwise affect [apply to] the
164	164	enforcement or implementation of Subchapter B, Chapter 61, Natural
165	165	Resources Code, as it existed on September 1, 1995, or to the
166	166	enforcement or implementation of any rule or similar measure that
167	167	was adopted under that subchapter and was in existence on September
168	168	1, 1995.
169	169	(e) This chapter does not apply to an action taken by a
170	170	political subdivision to ensure compliance with on-site sewage
171	171	facility regulations promulgated by the Texas Commission on
172	172	Environmental Quality.
173	173	SECTION 3. Section 2007.021(b), Government Code, is amended
174	174	to read as follows:
175	175	(b) A suit under this subchapter must be filed not later
176	176	than the second anniversary of the later of:
177	177	(1) the earliest date on which the ordinance, rule,
178	178	regulatory requirement, resolution, policy, guideline, or similar
179	179	measure on which the suit is based is enforced with respect to the
180	180	owner's private real property; or
181	181	(2) the earliest date on which the ordinance, rule,
182	182	regulatory requirement, resolution, policy, guideline, or similar
183	183	measure on which the suit is based is applied to the owner's private
184	184	real property with respect to any permit application affecting the
185	185	real property [180th day after the date the private real property
186	186	owner knew or should have known that the governmental action
187	187	restricted or limited the owner's right in the private real
188	188	property].
189	189	SECTION 4. Section 2007.022(b), Government Code, is amended
190	190	to read as follows:
191	191	(b) A contested case must be filed with the agency not later
192	192	than the second anniversary of the later of:
193	193	(1) the earliest date on which the ordinance, rule,
194	194	regulatory requirement, resolution, policy, guideline, or similar
195	195	measure on which the case is based is enforced with respect to the
196	196	owner's private real property; or
197	197	(2) the earliest date on which the ordinance, rule,
198	198	regulatory requirement, resolution, policy, guideline, or similar
199	199	measure on which the case is based is applied to the owner's private
200	200	real property with respect to any permit application affecting the
201	201	real property [the 180th day after the date the private real
202	202	property owner knew or should have known that the governmental
203	203	action restricted or limited the owner's right in the private real
204	204	property].
205	205	SECTION 5. Section 2007.023(b), Government Code, is amended
206	206	to read as follows:
207	207	(b) If the trier of fact in a suit or contested case filed
208	208	under this subchapter finds that the governmental action is a
209	209	taking under this chapter, the private real property owner is only
210	210	entitled to, and the governmental entity is only liable for:
211	211	(1) [,] invalidation of the governmental action or the
212	212	part of the governmental action resulting in the taking; and
213	213	(2) damages determined under Section 2007.024(b).
214	214	SECTION 6. Section 2007.024, Government Code, is amended by
215	215	amending Subsection (b) and adding Subsection (b-1) to read as
216	216	follows:
217	217	(b) The judgment or final decision or order shall include a
218	218	fact finding that determines the monetary damages suffered by the
219	219	private real property owner as a result of the taking, including, if
220	220	the governmental action has ceased or has been rescinded, amended,
221	221	invalidated, or repealed, the temporary or permanent economic loss
222	222	sustained by the private real property owner while the governmental
223	223	action was in effect.
224	224	(b-1) The amount of damages under Subsection (b) is
225	225	determined from the date of the taking.
226	226	SECTION 7. Section 2007.026(b), Government Code, is amended
227	227	to read as follows:
228	228	(b) The court or the state agency shall award a governmental
229	229	entity that prevails in a suit or contested case filed under this
230	230	subchapter reasonable and necessary attorney's fees and court costs
231	231	only if the court determines that the private real property owner
232	232	knew that the suit or contested case had no merit at the time the
233	233	owner filed the suit or contested case.
234	234	SECTION 8. Section 2007.041(a), Government Code, is amended
235	235	to read as follows:
236	236	(a) The attorney general shall prepare guidelines to assist
237	237	governmental entities in identifying and evaluating those
238	238	governmental actions described in Sections [Section]
239	239	2007.003(a)(1) and (2) [through (3)] that may result in a taking.
240	240	SECTION 9. Section 2007.042(a), Government Code, is amended
241	241	to read as follows:
242	242	(a) A political subdivision that proposes to engage in a
243	243	governmental action described in Section 2007.003(a)(1) or (2)
244	244	[through (3)] that may result in a taking shall provide at least 30
245	245	days' notice of its intent to engage in the proposed action by
246	246	providing a reasonably specific description of the proposed action
247	247	in a notice published in a newspaper of general circulation
248	248	published in the county in which affected private real property is
249	249	located. If a newspaper of general circulation is not published in
250	250	that county, the political subdivision shall publish a notice in a
251	251	newspaper of general circulation located in a county adjacent to
252	252	the county in which affected private real property is located. The
253	253	political subdivision shall, at a minimum, include in the notice a
254	254	reasonably specific summary of the takings impact assessment that
255	255	was prepared as required by this subchapter and the name of the
256	256	official of the political subdivision from whom a copy of the full
257	257	assessment may be obtained.
258	258	SECTION 10. Section 2007.044, Government Code, is amended
259	259	by amending Subsection (a) and adding Subsection (d) to read as
260	260	follows:
261	261	(a) A governmental action requiring a takings impact
262	262	assessment is void if an assessment is not prepared in compliance
263	263	with the evaluation guidelines developed by the attorney general
264	264	under Section 2007.041. A private real property owner affected by a
265	265	governmental action taken without the preparation of a takings
266	266	impact assessment as required by this subchapter may bring suit for
267	267	a declaration of the invalidity of the governmental action.
268	268	(d) A proposed governmental action described by Section
269	269	2007.003(a)(1) or (2) that requires a takings impact assessment may
270	270	be stayed if an assessment is not prepared or if the assessment is
271	271	not in compliance with the evaluation guidelines developed by the
272	272	attorney general under Section 2007.041. A private real property
273	273	owner affected by the proposed governmental action may bring suit
274	274	to enforce the preparation of a takings impact assessment in
275	275	compliance with those guidelines. If the trier of fact in a suit
276	276	filed under this subchapter finds that the takings impact
277	277	assessment is not prepared or is not in compliance with the
278	278	evaluation guidelines, the court shall stay the proposed
279	279	governmental action.
280	280	SECTION 11. The change in law made by this Act applies only
281	281	to a governmental action or series of actions that commences on or
282	282	after the effective date of this Act. A governmental action or
283	283	series of actions that commences before the effective date of this
284	284	Act is governed by the law in effect immediately before that date,
285	285	and that law is continued in effect for that purpose.
286	286	SECTION 12. This Act takes effect immediately if it
287	287	receives a vote of two-thirds of all the members elected to each
288	288	house, as provided by Section 39, Article III, Texas Constitution.
289	289	If this Act does not receive the vote necessary for immediate
290	290	effect, this Act takes effect September 1, 2009.