81R10567 JTS-F
By: Wentworth S.B. No. 2202
A BILL TO BE ENTITLED
AN ACT
relating to authorizing municipalities and counties to regulate
land development in certain unincorporated areas; providing a
penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 242, Local Government
Code, is amended to read as follows:
CHAPTER 242. AUTHORITY OF MUNICIPALITY AND COUNTY TO REGULATE
SUBDIVISIONS AND LAND DEVELOPMENT IN AND OUTSIDE MUNICIPALITY'S
EXTRATERRITORIAL JURISDICTION
SECTION 2. Chapter 242, Local Government Code, is amended
by designating Sections 242.001, 242.0015, and 242.002 as
Subchapter A and adding a heading for Subchapter A to read as
follows:
SUBCHAPTER A. AUTHORITY TO REGULATE SUBDIVISIONS IN AND OUTSIDE
MUNICIPALITY'S EXTRATERRITORIAL JURISDICTION
SECTION 3. Chapter 242, Local Government Code, is amended
by adding Subchapter B to read as follows:
SUBCHAPTER B. AUTHORITY TO REGULATE LAND DEVELOPMENT IN
MUNICIPALITY'S EXTRATERRITORIAL JURISDICTION IN CERTAIN COUNTIES
Sec. 242.051. REGULATION OF LAND DEVELOPMENT IN
EXTRATERRITORIAL JURISDICTION GENERALLY. (a) This subchapter
applies only to a county with a population of 800,000 or more and a
municipality with a population of 500,000 or more located within 60
miles of the Edwards Aquifer.
(b) For an area in a municipality's extraterritorial
jurisdiction, as determined under Chapter 42, the governing bodies
of a municipality and the county acting jointly may adopt and
enforce a building code and regulate:
(1) the height, number of stories, and size of
buildings and other structures;
(2) the percentage of a lot that may be occupied;
(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; and
(6) the pumping, extraction, and use of groundwater by
persons other than retail public utilities, as defined by Section
13.002, Water Code, for the purpose of preventing the use or contact
with groundwater that presents an actual or potential threat to
human health.
(c) In the case of designated places and areas of
historical, cultural, or architectural importance and significance
in a municipality's extraterritorial jurisdiction, as determined
under Chapter 42, the governing bodies of a municipality and the
county acting jointly may regulate the construction,
reconstruction, alteration, or razing of buildings and other
structures.
(d) For an area in a municipality's extraterritorial
jurisdiction, as determined under Chapter 42, the governing bodies
of a municipality and the county may regulate the bulk of buildings.
(e) The municipality and the county may establish a joint
zoning commission, joint rules for enforcing the zoning regulations
and boundaries, and a joint board of adjustment under this
subchapter.
(f) Zoning regulations described by Subsections (b)-(d)
must be adopted in accordance with a comprehensive plan and zoning
procedures approved by the governing bodies of the municipality and
the county and must be designed to:
(1) lessen 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) prevent the overcrowding of land;
(6) avoid undue concentration of population; or
(7) facilitate the adequate provision of
transportation, water, sewers, schools, parks, and other public
requirements.
(g) The comprehensive plan of the county described by
Subsection (f) may encompass areas outside the extraterritorial
jurisdiction of a municipality.
Sec. 242.052. DISTRICTS. (a) The governing bodies of the
municipality and the county may divide the extraterritorial
jurisdiction of the municipality into districts of a number, shape,
and size the governing bodies consider best for carrying out this
subchapter. Within each district, the governing bodies may
regulate the erection, construction, reconstruction, alteration,
repair, or use of buildings, other structures, or land.
(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 things, 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 throughout the area.
Sec. 242.053. JOINT PROCEDURES GOVERNING ADOPTION OF ZONING
REGULATIONS AND DISTRICT BOUNDARIES. (a) The governing bodies of
the municipality and the county shall establish joint procedures
for adopting and enforcing the regulations and district boundaries.
A regulation or boundary is not effective until it is adopted by the
governing bodies of the municipality and the county 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 governing bodies of the municipality and the
county must publish notice of the time and place of the hearing in
an official newspaper or a newspaper of general circulation in the
extraterritorial jurisdiction.
(b) A rule or regulation established under this section may
be amended only if the amended rule is adopted by the governing
bodies of the municipality and the county.
Sec. 242.054. JOINT ZONING COMMISSION. (a) To exercise the
powers authorized by this subchapter, the governing bodies of the
municipality and the county may appoint a zoning commission. The
commission shall recommend boundaries for the original zoning
districts and appropriate zoning regulations for each district.
(b) The zoning commission shall make a preliminary report
and hold public hearings on that report before submitting a final
report to the governing bodies of the municipality and the county.
The governing bodies of the municipality and the county may not hold
a public hearing until each receives the final report of the zoning
commission.
Sec. 242.055. COMPLIANCE WITH OPEN MEETINGS LAW. A joint
board of adjustment or joint zoning commission established by an
ordinance or resolution adopted by the governing bodies of the
municipality and the county to assist the governing bodies of the
municipality and the county in developing an initial comprehensive
zoning plan or initial zoning regulations, or a committee of the
joint board of adjustment or joint zoning commission that includes
one or more members of the board or commission, is subject to
Chapter 551, Government Code.
Sec. 242.056. JOINT BOARD OF ADJUSTMENT. (a) The
governing bodies of the municipality and the county may provide for
the appointment of a joint board of adjustment. In the regulations
adopted under this subchapter, the governing bodies of the
municipality and the county may authorize the board of adjustment,
in appropriate cases and subject to appropriate conditions and
safeguards, to make special exceptions to the terms of a zoning
regulation that are consistent with the general purpose and intent
of the regulation and in accordance with any applicable rules
contained in the regulation.
(b) A board of adjustment must consist of at least five
members to be appointed for terms of two years. The governing
bodies of the municipality and the county must provide the
procedure for appointment. The governing bodies of the
municipality and the county may authorize each member of each
governing body to appoint one member to the board. The appointing
governing body may remove a board member for cause, as found by the
appointing governing body, on a written charge after a public
hearing. A vacancy on the board shall be filled for the unexpired
term.
(c) The appointing governing body 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 presiding
officer of the appointing governing body. 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 of the board 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.
Sec. 242.057. 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 when the regulation requires the board to do so;
(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; 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 wholly or partly reverse or affirm 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 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. 242.058. 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
municipality or 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 governing bodies of the municipality and
the county who serves on the board of adjustment may not bring an
appeal under this section.
Sec. 242.059. 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
municipality or 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 wholly or partly reverse or affirm 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 governing bodies of a municipality and a county than is
applied to a decision of a board of adjustment that is not composed
of members of the governing body of a municipality or a county.
Sec. 242.060. ENFORCEMENT; PENALTY; REMEDIES. (a) The
governing bodies of the municipality and the county may adopt a
regulation 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 governing bodies of the
municipality and the county. The governing bodies of the
municipality and the county 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 or a regulation adopted under this
subchapter, the appropriate municipal or 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. 242.061. 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 number
of 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 ordinance or
regulation, the regulation adopted under this subchapter controls.
If the other statute or local ordinance or regulation imposes
higher standards, that statute, ordinance, or regulation controls.
(b) This subchapter does not authorize the governing bodies
of the municipality and the county to require the removal or
destruction of property that exists at the time the governing
bodies of the municipality and the county implement this subchapter
and that is actually and necessarily used in a public service
business.
(c) This subchapter does not apply to a building, other
structure, or land under the control, administration, or
jurisdiction of a state or federal agency.
(d) This subchapter applies to a privately owned building or
other structure and privately owned land when leased to a state
agency.
Sec. 242.062. CONTINUATION OF LAND USE. The governing
bodies of the municipality and the county may not prohibit a person
from 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.
SECTION 4. Section 212.003(a), Local Government Code, is
amended to read as follows:
(a) The governing body of a municipality by ordinance may
extend to the extraterritorial jurisdiction of the municipality the
application of municipal ordinances adopted under Section 212.002
and other municipal ordinances relating to access to public roads
or the pumping, extraction, and use of groundwater by persons other
than retail public utilities, as defined by Section 13.002, Water
Code, for the purpose of preventing the use or contact with
groundwater that presents an actual or potential threat to human
health. However, unless authorized by Subchapter B, Chapter 242,
or otherwise authorized by state law, in its extraterritorial
jurisdiction a municipality shall not regulate:
(1) the use of any building or property for business,
industrial, residential, or other purposes;
(2) the bulk, height, or number of buildings
constructed on a particular tract of land;
(3) the size of a building that can be constructed on a
particular tract of land, including without limitation any
restriction on the ratio of building floor space to the land square
footage;
(4) the number of residential units that can be built
per acre of land; or
(5) the size, type, or method of construction of a
water or wastewater facility that can be constructed to serve a
developed tract of land if:
(A) the facility meets the minimum standards
established for water or wastewater facilities by state and federal
regulatory entities; and
(B) the developed tract of land is:
(i) located in a county with a population of
2.8 million or more; and
(ii) served by:
(a) on-site septic systems
constructed before September 1, 2001, that fail to provide adequate
services; or
(b) on-site water wells constructed
before September 1, 2001, that fail to provide an adequate supply of
safe drinking water.
SECTION 5. 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.