By: Fraser S.B. No. 1741
(In the Senate - Filed March 11, 2011; March 23, 2011, read
first time and referred to Committee on Natural Resources;
April 13, 2011, reported favorably by the following vote: Yeas 7,
Nays 0; April 13, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to tree mitigation fees imposed by municipalities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 212, Local Government Code, is amended
by adding Subchapter H to read as follows:
SUBCHAPTER H. MUNICIPAL TREE MITIGATION FEE
Sec. 212.191. APPLICABILITY. This subchapter applies to a
municipality that requires as a condition for approval of a permit
that an applicant pay the municipality or a third party a tree
mitigation fee.
Sec. 212.192. AMOUNT OF MUNICIPAL TREE MITIGATION FEE. A
municipality that requires a tree mitigation fee to offset the
impact of an activity that a municipal permit authorizes must set
the fee in an amount that is roughly proportionate to the impact
that the activity will have on the public.
Sec. 212.193. FILING OF APPEAL WITH MUNICIPALITY. A permit
applicant may appeal the amount of a tree mitigation fee set by a
municipality under this subchapter by filing an appeal with the
governing body of the municipality. The appeal must be in writing
and specify the grounds for the appeal.
Sec. 212.194. HEARING ON APPEAL TO MUNICIPALITY. (a) Not
later than the 30th day after the date the notice of appeal is filed
under Section 212.193, the governing body of the municipality shall
set a hearing for the appeal.
(b) At the hearing the permit applicant may present evidence
and witness testimony that is relevant to the tree mitigation fee
determination.
(c) The permit applicant may appear at the hearing in person
or by agent or attorney.
(d) Not later than the 30th day after the date the hearing
concludes, the governing body shall make a final determination
regarding the amount of the tree mitigation fee.
Sec. 212.195. APPEAL TO COUNTY OR DISTRICT COURT. (a) Not
later than the 30th day after the date the final determination is
made under Section 212.194, a permit applicant may appeal the
determination to a county or district court in the county in which
the activity to be permitted will occur.
(b) The municipality shall have the burden of proof to
establish that the amount of the tree mitigation fee is roughly
proportionate to the impact that the activity to be permitted will
have on the public.
(c) The court shall award attorney's fees and costs of court
to a permit applicant who prevails in a suit under this section.
Sec. 212.196. NO WAIVER OF RIGHT TO APPEAL. (a) A
municipality may not require a permit applicant to waive a right of
appeal under this subchapter as a condition for approval of a
permit.
(b) A permit applicant who pays a contested tree mitigation
fee does not waive a right of appeal under this subchapter by taking
an action authorized by a permit issued by the municipality.
Sec. 212.197. APPLICATION OF LAW RELATED TO CAPITAL
IMPROVEMENTS. This subchapter does not diminish the authority or
modify the procedures specified by Chapter 395.
SECTION 2. (a) Except as provided by Subsection (b) of
this section, the changes in law made by Subchapter H, Chapter 212,
Local Government Code, as added by this Act, apply only to a tree
mitigation fee assessed by a municipality on or after the effective
date of this Act.
(b) The changes in law made by Subchapter H, Chapter 212,
Local Government Code, as added by this Act, apply to a contested
tree mitigation fee assessed by a municipality before the effective
date of this Act if an appeal of the amount of the fee has not been
finally determined or adjudicated on the effective date of this
Act.
SECTION 3. 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, 2011.
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