| 1 | 1 | | By: Fraser S.B. No. 1741 |
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| 2 | 2 | | (In the Senate - Filed March 11, 2011; March 23, 2011, read |
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| 3 | 3 | | first time and referred to Committee on Natural Resources; |
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| 4 | 4 | | April 13, 2011, reported favorably by the following vote: Yeas 7, |
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| 5 | 5 | | Nays 0; April 13, 2011, sent to printer.) |
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| 6 | 6 | | |
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| 7 | 7 | | |
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| 8 | 8 | | A BILL TO BE ENTITLED |
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| 9 | 9 | | AN ACT |
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| 10 | 10 | | relating to tree mitigation fees imposed by municipalities. |
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| 11 | 11 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 12 | 12 | | SECTION 1. Chapter 212, Local Government Code, is amended |
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| 13 | 13 | | by adding Subchapter H to read as follows: |
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| 14 | 14 | | SUBCHAPTER H. MUNICIPAL TREE MITIGATION FEE |
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| 15 | 15 | | Sec. 212.191. APPLICABILITY. This subchapter applies to a |
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| 16 | 16 | | municipality that requires as a condition for approval of a permit |
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| 17 | 17 | | that an applicant pay the municipality or a third party a tree |
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| 18 | 18 | | mitigation fee. |
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| 19 | 19 | | Sec. 212.192. AMOUNT OF MUNICIPAL TREE MITIGATION FEE. A |
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| 20 | 20 | | municipality that requires a tree mitigation fee to offset the |
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| 21 | 21 | | impact of an activity that a municipal permit authorizes must set |
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| 22 | 22 | | the fee in an amount that is roughly proportionate to the impact |
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| 23 | 23 | | that the activity will have on the public. |
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| 24 | 24 | | Sec. 212.193. FILING OF APPEAL WITH MUNICIPALITY. A permit |
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| 25 | 25 | | applicant may appeal the amount of a tree mitigation fee set by a |
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| 26 | 26 | | municipality under this subchapter by filing an appeal with the |
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| 27 | 27 | | governing body of the municipality. The appeal must be in writing |
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| 28 | 28 | | and specify the grounds for the appeal. |
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| 29 | 29 | | Sec. 212.194. HEARING ON APPEAL TO MUNICIPALITY. (a) Not |
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| 30 | 30 | | later than the 30th day after the date the notice of appeal is filed |
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| 31 | 31 | | under Section 212.193, the governing body of the municipality shall |
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| 32 | 32 | | set a hearing for the appeal. |
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| 33 | 33 | | (b) At the hearing the permit applicant may present evidence |
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| 34 | 34 | | and witness testimony that is relevant to the tree mitigation fee |
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| 35 | 35 | | determination. |
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| 36 | 36 | | (c) The permit applicant may appear at the hearing in person |
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| 37 | 37 | | or by agent or attorney. |
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| 38 | 38 | | (d) Not later than the 30th day after the date the hearing |
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| 39 | 39 | | concludes, the governing body shall make a final determination |
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| 40 | 40 | | regarding the amount of the tree mitigation fee. |
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| 41 | 41 | | Sec. 212.195. APPEAL TO COUNTY OR DISTRICT COURT. (a) Not |
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| 42 | 42 | | later than the 30th day after the date the final determination is |
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| 43 | 43 | | made under Section 212.194, a permit applicant may appeal the |
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| 44 | 44 | | determination to a county or district court in the county in which |
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| 45 | 45 | | the activity to be permitted will occur. |
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| 46 | 46 | | (b) The municipality shall have the burden of proof to |
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| 47 | 47 | | establish that the amount of the tree mitigation fee is roughly |
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| 48 | 48 | | proportionate to the impact that the activity to be permitted will |
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| 49 | 49 | | have on the public. |
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| 50 | 50 | | (c) The court shall award attorney's fees and costs of court |
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| 51 | 51 | | to a permit applicant who prevails in a suit under this section. |
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| 52 | 52 | | Sec. 212.196. NO WAIVER OF RIGHT TO APPEAL. (a) A |
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| 53 | 53 | | municipality may not require a permit applicant to waive a right of |
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| 54 | 54 | | appeal under this subchapter as a condition for approval of a |
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| 55 | 55 | | permit. |
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| 56 | 56 | | (b) A permit applicant who pays a contested tree mitigation |
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| 57 | 57 | | fee does not waive a right of appeal under this subchapter by taking |
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| 58 | 58 | | an action authorized by a permit issued by the municipality. |
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| 59 | 59 | | Sec. 212.197. APPLICATION OF LAW RELATED TO CAPITAL |
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| 60 | 60 | | IMPROVEMENTS. This subchapter does not diminish the authority or |
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| 61 | 61 | | modify the procedures specified by Chapter 395. |
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| 62 | 62 | | SECTION 2. (a) Except as provided by Subsection (b) of |
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| 63 | 63 | | this section, the changes in law made by Subchapter H, Chapter 212, |
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| 64 | 64 | | Local Government Code, as added by this Act, apply only to a tree |
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| 65 | 65 | | mitigation fee assessed by a municipality on or after the effective |
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| 66 | 66 | | date of this Act. |
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| 67 | 67 | | (b) The changes in law made by Subchapter H, Chapter 212, |
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| 68 | 68 | | Local Government Code, as added by this Act, apply to a contested |
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| 69 | 69 | | tree mitigation fee assessed by a municipality before the effective |
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| 70 | 70 | | date of this Act if an appeal of the amount of the fee has not been |
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| 71 | 71 | | finally determined or adjudicated on the effective date of this |
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| 72 | 72 | | Act. |
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| 73 | 73 | | SECTION 3. This Act takes effect immediately if it receives |
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| 74 | 74 | | a vote of two-thirds of all the members elected to each house, as |
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| 75 | 75 | | provided by Section 39, Article III, Texas Constitution. If this |
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| 76 | 76 | | Act does not receive the vote necessary for immediate effect, this |
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| 77 | 77 | | Act takes effect September 1, 2011. |
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| 78 | 78 | | * * * * * |
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