Texas 2009 - 81st Regular

Texas Senate Bill SB2555 Compare Versions

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1	1	By: Hegar S.B. No. 2555
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to granting county zoning authority in Aransas County;
7	7	providing a criminal penalty.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Chapter 231, Local Government Code, is amended
10	10	by adding Subchapter N to read as follows:
11	11	SUBCHAPTER N. ZONING IN ARANSAS COUNTY
12	12	Sec. 231.301. LEGISLATIVE FINDINGS; PURPOSE. (a) The
13	13	legislature finds that:
14	14	(1) the parts of Aransas County that surround Aransas
15	15	Bay, Copano Bay, St. Charles Bay, Mesquite Bay, Carlos Bay, and Port
16	16	Bay are frequented for recreational purposes by residents from
17	17	every part of the state;
18	18	(2) orderly development and use of the area is of
19	19	concern to the entire state; and
20	20	(3) without adequate development regulations, Aransas
21	21	County would be developed in ways that endanger and interfere with
22	22	the proper use of the area as a place of tourism and recreation to
23	23	the detriment of the public health, safety, peace, morals, and
24	24	general welfare and the natural resources of the county.
25	25	(b) The powers granted under this subchapter are for the
26	26	purpose of promoting the public health, safety, peace, morals, and
27	27	general welfare and encouraging the recreational use of county
28	28	parks in Aransas County.
29	29	Sec. 231.302. AREAS SUBJECT TO REGULATION. This subchapter
30	30	applies only to the unincorporated areas of Aransas County located
31	31	within three miles of the shoreline of the Gulf of Mexico or a bay.
32	32	Sec. 231.303. ZONING REGULATIONS GENERALLY. The
33	33	Commissioners Court of Aransas County may, for the areas subject to
34	34	this subchapter, 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 by
38	38	buildings and structures;
39	39	(3) the size of yards, courts, and other open spaces;
40	40	(4) population density;
41	41	(5) the location and use of buildings, other
42	42	structures, and land for business, industrial, residential, or
43	43	other purposes;
44	44	(6) the placement of water and sewage facilities,
45	45	parks, and other public requirements; and
46	46	(7) the control, storage, preservation, and
47	47	distribution of storm and flood water.
48	48	Sec. 231.304. ELECTION TO APPROVE REGULATORY AUTHORITY
49	49	REQUIRED. (a) The regulatory authority granted under Section
50	50	231.303 is not effective unless it is approved by a majority of the
51	51	county residents voting in an election held under this section. The
52	52	commissioners court shall order the election to be held on a uniform
53	53	election date authorized by Section 41.001, Election Code.
54	54	(b) For an election under this section, the ballot shall be
55	55	prepared to permit voting for or against the proposition:
56	56	"Approving the authority granted to the Commissioners Court of
57	57	Aransas County to regulate land development in certain areas of the
58	58	county (insert description of general authority)."
59	59	(c) The regulatory authority approved under this section
60	60	includes the authority of the commissioners court to repeal,
61	61	revise, or amend a regulation of land development adopted under
62	62	this subchapter.
63	63	Sec. 231.305. COMPLIANCE WITH COMPREHENSIVE PLAN. Zoning
64	64	regulations must be adopted in accordance with a comprehensive plan
65	65	and must be designed to:
66	66	(1) lessen congestion in the streets and roads;
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;
72	72	(7) facilitate the adequate provision of
73	73	transportation, water, sewers, parks, and other public
74	74	requirements;
75	75	(8) control, store, preserve, and distribute storm and
76	76	flood water; and
77	77	(9) assist in developing the regulated area into
78	78	parks, playgrounds, and recreational areas.
79	79	Sec. 231.306. DISTRICTS. (a) The commissioners court may
80	80	divide the area of the county subject to this subchapter into
81	81	districts of a number, shape, and size the commissioners court
82	82	considers best for administering this subchapter. Within each
83	83	district, the commissioners court may regulate the erection,
84	84	construction, reconstruction, alteration, repair, or use of
85	85	buildings, other structures, or land.
86	86	(b) The zoning regulations must be uniform for each class or
87	87	kind of building in a district, but the regulations may vary from
88	88	district to district. The regulations shall be adopted with
89	89	reasonable consideration for, among other things, the character of
90	90	each district and its peculiar suitability for particular uses,
91	91	with a view of conserving the value of buildings and encouraging the
92	92	most appropriate use of land throughout the area.
93	93	Sec. 231.307. PROCEDURES GOVERNING ADOPTION OF REGULATIONS
94	94	AND DISTRICT BOUNDARIES. (a) The commissioners court shall
95	95	establish procedures for adopting and enforcing zoning regulations
96	96	and zoning district boundaries. A regulation or district boundary
97	97	is not effective until it is adopted by the commissioners court
98	98	after a public hearing on the matter at which parties in interest
99	99	and citizens have an opportunity to be heard. Before the 15th day
100	100	before the date of the hearing, the commissioners court must
101	101	publish notice of the time and place of the hearing in a newspaper
102	102	of general circulation in the county.
103	103	(b) If a proposed change to a regulation or district
104	104	boundary is protested in accordance with this subsection, the
105	105	proposed change must receive, in order to take effect, the
106	106	affirmative vote of at least three-fourths of all members of the
107	107	commissioners court. The protest must be written and signed by the
108	108	owners of at least 20 percent of either:
109	109	(1) the area of the lots covered by the proposed
110	110	change; or
111	111	(2) the lots immediately adjacent to the rear of the
112	112	lots covered by the proposed change and extending 200 feet from
113	113	those lots or from the street frontage of the opposite lots.
114	114	Sec. 231.308. ZONING COMMISSION. (a) To exercise the
115	115	powers authorized by this subchapter, the commissioners court shall
116	116	appoint a zoning commission. The commission shall recommend
117	117	boundaries for the original zoning districts and appropriate zoning
118	118	regulations for each district. The commission must consist of
119	119	seven members, each of whom must be a resident of the county.
120	120	(b) The zoning commission shall elect a presiding officer
121	121	from among its members. The presiding officer serves in that
122	122	capacity for a term set by the commission. The commission may at
123	123	any time choose for a particular meeting or occasion an acting
124	124	presiding officer as necessary from among its members. The
125	125	commission may employ a secretary and acting secretary and other
126	126	technical or clerical personnel.
127	127	(c) A member of the zoning commission is not entitled to
128	128	compensation but is entitled to expenses actually incurred while
129	129	serving on the commission as provided by order of the commissioners
130	130	court.
131	131	(d) The zoning commission shall make a preliminary report
132	132	and hold public hearings on that report before submitting a final
133	133	report to the commissioners court. The commissioners court may not
134	134	hold a public hearing or take action until it receives the final
135	135	report of the zoning commission.
136	136	(e) Before the 10th day before the hearing date, written
137	137	notice of each public hearing before the zoning commission on a
138	138	proposed change in a zoning classification shall be sent to:
139	139	(1) each owner of affected property or to the person
140	140	who renders the property for county taxes; and
141	141	(2) each owner of property that is located within 200
142	142	feet of property affected by the change or to the person who renders
143	143	the property for county taxes.
144	144	(f) The notice may be served by depositing it in the United
145	145	States mail, postage paid and properly addressed to the address of
146	146	the property owner on file with the county tax assessor-collector.
147	147	Sec. 231.309. BOARD OF ADJUSTMENT. (a) The commissioners
148	148	court may provide for the appointment of a board of adjustment. In
149	149	the zoning regulations adopted under this subchapter, the
150	150	commissioners court may authorize the board of adjustment, in
151	151	appropriate cases and subject to appropriate conditions and
152	152	safeguards, to make special exceptions to the terms of the zoning
153	153	regulations that are consistent with the general purpose and intent
154	154	of the regulations and in accordance with any applicable rules
155	155	contained in the regulations.
156	156	(b) A board of adjustment must consist of five members to be
157	157	appointed for terms of two years. The appointing authority may
158	158	remove a board member for cause on a written charge after a public
159	159	hearing. The appointing authority shall fill a vacancy on the board
160	160	for the unexpired term.
161	161	(c) The board of adjustment shall adopt rules in accordance
162	162	with any order adopted under this subchapter. Meetings of the board
163	163	are held at the call of the presiding officer and at other times as
164	164	determined by the board. The presiding officer or acting presiding
165	165	officer may administer oaths and compel the attendance of
166	166	witnesses. All meetings of the board are open to the public.
167	167	(d) The board of adjustment shall keep minutes of its
168	168	proceedings that indicate the vote of each member on each question
169	169	or indicate that a member is absent or fails to vote. The board
170	170	shall keep records of its examinations and other official actions.
171	171	The minutes and records shall be filed immediately in the board's
172	172	office and are public records.
173	173	Sec. 231.310. AUTHORITY OF BOARD. (a) The board of
174	174	adjustment may:
175	175	(1) hear and decide an appeal that alleges error in an
176	176	order, requirement, decision, or determination made by an
177	177	administrative official in the enforcement of this subchapter or a
178	178	zoning regulation;
179	179	(2) hear and decide special exceptions to the terms of
180	180	a zoning regulation when the regulation requires the board to do so;
181	181	and
182	182	(3) authorize in specific cases a variance from the
183	183	terms of a zoning regulation if the variance is not contrary to the
184	184	public interest and, due to special conditions, a literal
185	185	enforcement of the regulation would result in unnecessary hardship,
186	186	and so that the spirit of the regulation is observed and substantial
187	187	justice is done.
188	188	(b) In exercising its authority under Subsection (a)(1),
189	189	the board of adjustment may reverse or affirm, in whole or in part,
190	190	or modify the administrative official's order, requirement,
191	191	decision, or determination from which an appeal is taken and make
192	192	the correct order, requirement, decision, or determination, and for
193	193	that purpose the board has the same authority as the administrative
194	194	official.
195	195	(c) The concurring vote of four members of the board of
196	196	adjustment is necessary to:
197	197	(1) reverse an order, requirement, decision, or
198	198	determination of an administrative official;
199	199	(2) decide in favor of an applicant on a matter on
200	200	which the board is required to pass under a zoning regulation; or
201	201	(3) authorize a variation in a zoning regulation.
202	202	Sec. 231.311. APPEAL TO BOARD. (a) Any of the following
203	203	persons may appeal to the board of adjustment a decision made by an
204	204	administrative official:
205	205	(1) a person aggrieved by the decision; or
206	206	(2) an officer, department, board, or bureau of the
207	207	county or of a municipality affected by the decision.
208	208	(b) The appellant must file with the board of adjustment and
209	209	the official from whom the appeal is taken a notice of appeal
210	210	specifying the grounds for the appeal. The appeal must be filed
211	211	within a reasonable time as determined by board rule. On receiving
212	212	the notice, the official from whom the appeal is taken shall
213	213	immediately transmit to the board all the papers constituting the
214	214	record of the action that is appealed.
215	215	(c) An appeal stays all proceedings in furtherance of the
216	216	action that is appealed unless the official from whom the appeal is
217	217	taken certifies in writing to the board of adjustment facts
218	218	supporting the official's opinion that a stay would cause imminent
219	219	peril to life or property. In that case, the proceedings may be
220	220	stayed only by a restraining order granted by the board or a court
221	221	of record on application, after notice to the official, if due cause
222	222	is shown.
223	223	(d) The board of adjustment shall set the date of the appeal
224	224	hearing not later than the 30th day after the date notice of appeal
225	225	is filed and shall give public notice of the hearing and due notice
226	226	to the parties in interest. A party may appear at the appeal
227	227	hearing in person or by agent or attorney. The board shall decide
228	228	the appeal within a reasonable time.
229	229	Sec. 231.312. JUDICIAL REVIEW OF BOARD DECISION. (a) Any
230	230	of the following persons may present to a court of record a verified
231	231	petition stating that the decision of the board of adjustment is
232	232	illegal in whole or in part and specifying the grounds of the
233	233	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	county or of the municipality.
238	238	(b) The petition must be presented within 10 days after the
239	239	date the decision is filed in the board of adjustment'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 of adjustment to review
242	242	the board's decision. The writ must indicate the time within which
243	243	the board's return must be made and served on the petitioner's
244	244	attorney, which must be after 10 days and may be extended by the
245	245	court. Granting of the writ does not stay the proceedings on the
246	246	decision under appeal, but on application and after notice to the
247	247	board, the court may grant a restraining order if due cause is
248	248	shown.
249	249	(d) The board of adjustment's return must be verified and
250	250	must concisely state any pertinent and material facts that show the
251	251	grounds of the decision under appeal. The board is not required to
252	252	return the original documents on which the board acted but may
253	253	return certified or sworn copies of the documents or parts of the
254	254	documents as required by the writ.
255	255	(e) If at the hearing the court determines that testimony is
256	256	necessary for the proper disposition of the matter, it may take
257	257	evidence or appoint a referee to take evidence as directed. The
258	258	referee shall report the evidence to the court with the referee's
259	259	findings of fact and conclusions of law. The referee's report
260	260	constitutes a part of the proceedings on which the court shall make
261	261	its decision.
262	262	(f) The court may reverse or affirm, in whole or in part, or
263	263	modify the decision that is appealed. The court may not assess
264	264	costs against the board of adjustment unless the court determines
265	265	that the board acted with gross negligence, in bad faith, or with
266	266	malice in making its decision.
267	267	Sec. 231.313. SPECIAL EXCEPTION. (a) If the commissioners
268	268	court does not provide for the appointment of a board of adjustment
269	269	under Section 231.309, a person aggrieved by a zoning regulation or
270	270	a zoning district boundary adopted under this subchapter may
271	271	petition the commissioners court.
272	272	(b) The commissioners court shall adopt procedures
273	273	governing applications, notice, hearings, and other matters
274	274	relating to the grant of a special exception.
275	275	Sec. 231.314. ENFORCEMENT; PENALTY; REMEDIES. (a) The
276	276	commissioners court may adopt orders to enforce this subchapter,
277	277	any order adopted under this subchapter, or a zoning regulation.
278	278	(b) A person commits an offense if the person violates this
279	279	subchapter, an order adopted under this subchapter, or a zoning
280	280	regulation. An offense under this subsection is a misdemeanor,
281	281	punishable by fine, as provided by the commissioners court. The
282	282	commissioners court may also provide civil penalties for a
283	283	violation.
284	284	(c) If a building or other structure is erected,
285	285	constructed, reconstructed, altered, repaired, converted, or
286	286	maintained or if a building, other structure, or land is used in
287	287	violation of this subchapter, an order adopted under this
288	288	subchapter, or a zoning regulation, the appropriate county
289	289	authority, in addition to other remedies, may institute appropriate
290	290	action to:
291	291	(1) prevent the unlawful erection, construction,
292	292	reconstruction, alteration, repair, conversion, maintenance, or
293	293	use;
294	294	(2) restrain, correct, or abate the violation;
295	295	(3) prevent the occupancy of the building, structure,
296	296	or land; or
297	297	(4) prevent any illegal act, conduct, business, or use
298	298	on or about the premises.
299	299	Sec. 231.315. CONFLICT WITH OTHER LAWS; EXCEPTIONS.
300	300	(a) If a zoning regulation adopted under this subchapter requires
301	301	a greater width or size of a yard, court, or other open space,
302	302	requires a lower building height or fewer stories for a building,
303	303	requires a greater percentage of lot to be left unoccupied, or
304	304	otherwise imposes higher standards than those required under
305	305	another statute or local order or regulation, the regulation
306	306	adopted under this subchapter controls. If the other statute or
307	307	local order or regulation imposes higher standards, that statute,
308	308	order, or regulation controls.
309	309	(b) This subchapter does not authorize the commissioners
310	310	court to require the removal or destruction of property that exists
311	311	at the time the court implements this subchapter.
312	312	(c) This subchapter, an order adopted under this
313	313	subchapter, or a zoning regulation does not apply to the location,
314	314	construction, maintenance, or use of central office buildings used
315	315	by a person engaging in providing telephone service to the public or
316	316	equipment used in connection with those buildings or as part of the
317	317	telephone system, as necessary to furnish telephone service to the
318	318	public.
319	319	(d) This subchapter, or an order or zoning regulation
320	320	adopted under this subchapter, does not apply to the facilities or
321	321	operations of an electric utility as defined by Section 31.002,
322	322	Utilities Code, or a gas utility as defined by Section 101.003 or
323	323	121.001, Utilities Code.
324	324	SECTION 2. This Act takes effect immediately if it receives
325	325	a vote of two-thirds of all the members elected to each house, as
326	326	provided by Section 39, Article III, Texas Constitution. If this
327	327	Act does not receive the vote necessary for immediate effect, this
328	328	Act takes effect September 1, 2009.