Texas 2013 - 83rd Regular

Texas House Bill HB1130 Compare Versions

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1	1	By: M. Gonzalez of El Paso H.B. No. 1130
2	2	Substitute the following for H.B. No. 1130:
3	3	By: Nevarez C.S.H.B. No. 1130
4	4
5	5
6	6	A BILL TO BE ENTITLED
7	7	AN ACT
8	8	relating to development regulations for certain unincorporated
9	9	areas located near the Tornillo-Guadalupe Port of Entry; providing
10	10	a penalty.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Chapter 231, Local Government Code, is amended
13	13	by adding Subchapter M to read as follows:
14	14	SUBCHAPTER M. DEVELOPMENT REGULATIONS AROUND THE
15	15	TORNILLO-GUADALUPE PORT OF ENTRY
16	16	Sec. 231.271. LEGISLATIVE FINDINGS; PURPOSE. (a) The
17	17	legislature finds that:
18	18	(1) the Tornillo-Guadalupe Port of Entry will be one
19	19	of the largest on the international border between the United
20	20	States and the United Mexican States;
21	21	(2) the Tornillo-Guadalupe Port of Entry is essential
22	22	to:
23	23	(A) relieving congestion associated with other
24	24	crossing points on the international border; and
25	25	(B) facilitating trade between the United States
26	26	and the United Mexican States and between this state and the United
27	27	Mexican States;
28	28	(3) the Tornillo-Guadalupe Port of Entry and the
29	29	surrounding area located in El Paso County will be used by residents
30	30	from many parts of the state and the nation;
31	31	(4) the orderly development and use of the area
32	32	surrounding the Tornillo-Guadalupe Port of Entry is of concern to
33	33	the entire state; and
34	34	(5) without adequate development regulations, the
35	35	corridor will tend to become congested and to be used in a manner
36	36	that interferes with achieving the goals of the Tornillo-Guadalupe
37	37	Port of Entry described by Subdivision (2).
38	38	(b) The powers granted under this subchapter are for the
39	39	purpose of:
40	40	(1) promoting the public health, safety, peace,
41	41	morals, and general welfare; and
42	42	(2) encouraging the use of the area to facilitate
43	43	trade between the United States and the United Mexican States and
44	44	between this state and the United Mexican States.
45	45	Sec. 231.272. AREA SUBJECT TO REGULATION. (a) If
46	46	authorized at an election under Section 231.273 and except as
47	47	provided by Subsection (d), this subchapter applies to the
48	48	unincorporated area of El Paso County that is bounded by:
49	49	(1) the international border;
50	50	(2) a line beginning on the international border one
51	51	mile southeast of the Tornillo-Guadalupe Port of Entry and
52	52	extending to a point one-half mile northeast of State Highway 20;
53	53	(3) a line parallel to and one-half mile northeast of
54	54	State Highway 20; and
55	55	(4) a line beginning on the international border one
56	56	mile northwest of the Tornillo-Guadalupe Port of Entry and
57	57	extending to a point one-half mile northeast of State Highway 20.
58	58	(b) If authorized at an election under Section 231.273 and
59	59	except as provided by Subsection (d), this subchapter applies to
60	60	the unincorporated area of El Paso County that extends beyond the
61	61	area described by Subsection (a) and that is bounded by:
62	62	(1) the international border;
63	63	(2) the boundary of Hudspeth County;
64	64	(3) a line located one mile east of and parallel to
65	65	Interstate Highway 10; and
66	66	(4) a line extending one-half mile southeast of and
67	67	parallel to Fabens and Island Roads and extending southwest to the
68	68	international border and extending northeast to a point one mile
69	69	east of Interstate Highway 10.
70	70	(c) The remainder of a tract of land that is partly located
71	71	in the area described by Subsection (a) or (b) is subject to
72	72	regulation under this subchapter if a majority of the area of the
73	73	entire tract is located in the area described by Subsection (a) or,
74	74	if authorized by Section 231.273, Subsection (b).
75	75	(d) This subchapter does not apply to:
76	76	(1) for purposes of an area described by Subsection
77	77	(b), a residential property, including a single-family or
78	78	multifamily residence; and
79	79	(2) land in which the state has an interest, including
80	80	land dedicated to the permanent university fund, land dedicated to
81	81	the permanent school fund, or other land appropriated for specific
82	82	purposes by the constitution or laws of this state.
83	83	Sec. 231.273. ELECTION TO APPROVE REGULATORY AUTHORITY
84	84	REQUIRED. (a) The authority to regulate development under this
85	85	subchapter in an area described by Section 231.272(a) or (b)
86	86	applies only if a majority of the voters in El Paso County voting in
87	87	an election held under this section approve the grant of authority
88	88	to regulate in that area.
89	89	(b) The Commissioners Court of El Paso County:
90	90	(1) may, on its own motion, order and hold an election
91	91	in the county to approve a grant of authority under this subchapter
92	92	in an area described by Section 231.272(a) or (b); or
93	93	(2) shall order and hold an election in the county to
94	94	approve the grant of authority if the commissioners court receives
95	95	a petition requesting the election signed by registered voters of
96	96	the county in a number equal to 10 percent of the number of votes
97	97	received by all candidates for governor in the county in the most
98	98	recent gubernatorial election.
99	99	(c) Notwithstanding Section 277.002, Election Code:
100	100	(1) a petition must include each signer's zip code with
101	101	the signer's residence address; and
102	102	(2) a signature is not considered valid if the date of
103	103	signing is before the 90th day before the date the petition is
104	104	submitted to the commissioners court.
105	105	(d) Not later than the fifth day after the date a petition is
106	106	received by the commissioners court, the county judge shall submit
107	107	the petition for verification to the county clerk. The county clerk
108	108	shall determine whether the petition meets the requirements
109	109	prescribed by this section and Section 277.002, Election Code. Not
110	110	later than the 30th day after the date the petition is submitted to
111	111	the county clerk for verification, the county clerk shall certify
112	112	in writing to the commissioners court whether the petition is
113	113	valid. If the county clerk determines that the petition is invalid,
114	114	the county clerk shall state the reasons for that determination.
115	115	(e) If the county clerk certifies that a petition is valid,
116	116	the commissioners court shall order the election to be held on the
117	117	first November uniform election date authorized by Section 41.001,
118	118	Election Code, that occurs after the date the court receives the
119	119	county clerk's certification and allows for compliance with Section
120	120	3.005, Election Code.
121	121	(f) For an election under this section relating to an area
122	122	described by Section 231.272(a), the ballot shall be prepared to
123	123	permit voting for or against the proposition: "Approving the
124	124	authority granted to the Commissioners Court of El Paso County to
125	125	regulate land development in (insert description of the area
126	126	subject to regulation)."
127	127	(g) For an election under this section relating to an area
128	128	described by Section 231.272(b), the ballot shall be prepared to
129	129	permit voting for or against the proposition: "Approving the
130	130	authority granted to the Commissioners Court of El Paso County to
131	131	regulate land development, other than residential property, in
132	132	(insert description of the area subject to regulation)."
133	133	(h) The approval authority granted under this section
134	134	includes the authority to repeal, revise, or amend a previous
135	135	decision to operate under this subchapter.
136	136	Sec. 231.274. DEVELOPMENT REGULATIONS GENERALLY. The
137	137	Commissioners Court of El Paso County may regulate to the extent
138	138	authorized in the areas described by Section 231.272:
139	139	(1) the height, number of stories, and size of
140	140	buildings or other structures;
141	141	(2) the percentage of a lot that may be occupied or
142	142	developed;
143	143	(3) the size of yards, courts, and other open spaces;
144	144	(4) population density;
145	145	(5) the location and use of buildings, other
146	146	structures, and land for business, industrial, residential, or
147	147	other purposes;
148	148	(6) the standards applying to the construction,
149	149	reconstruction, alteration, or razing of buildings or other
150	150	structures;
151	151	(7) the location, size, and other characteristics of
152	152	signs;
153	153	(8) the location, design, construction, extension,
154	154	and size of water and sewage facilities, drainage facilities, and
155	155	other required public facilities;
156	156	(9) the abatement of harm from inadequate facilities
157	157	described by Subdivision (8); and
158	158	(10) the location, design, and construction of parks,
159	159	playgrounds, and recreational areas.
160	160	Sec. 231.275. COMPLIANCE WITH COMPREHENSIVE PLAN. The
161	161	regulations must be adopted in accordance with a comprehensive plan
162	162	and must be designed to:
163	163	(1) lessen congestion in the streets and roads;
164	164	(2) secure safety from fire, panic, and other dangers;
165	165	(3) promote health and the general welfare;
166	166	(4) provide adequate light and air;
167	167	(5) prevent the overcrowding of land;
168	168	(6) avoid undue concentration of population; or
169	169	(7) facilitate the adequate provision of
170	170	transportation, water, sewers, parks, and other public
171	171	requirements.
172	172	Sec. 231.276. DISTRICTS. (a) The commissioners court may
173	173	divide the areas described by Section 231.272 into districts of a
174	174	number, shape, and size the commissioners court considers best for
175	175	carrying out this subchapter. Within each district, the
176	176	commissioners court may regulate development as provided by Section
177	177	231.274.
178	178	(b) The regulations must be uniform for each class or kind
179	179	of building in a district, but the regulations may vary from
180	180	district to district. The regulations shall be adopted with
181	181	reasonable consideration for, among other things, the character of
182	182	each district and its peculiar suitability for particular uses,
183	183	with a view of conserving the value of buildings, protecting
184	184	historic landmarks and structures, and encouraging the most
185	185	appropriate use of land throughout the area.
186	186	Sec. 231.277. COMMISSION. (a) To exercise the powers
187	187	authorized by this subchapter, the commissioners court shall create
188	188	a commission. The commission shall recommend boundaries for the
189	189	original districts and appropriate regulations for each district.
190	190	Unless the commissioners court makes a designation under Subsection
191	191	(e), the commission is composed of seven members appointed as
192	192	follows:
193	193	(1) one member appointed by each county commissioner;
194	194	(2) one member appointed by the county judge;
195	195	(3) one member appointed by the board of directors of
196	196	the El Paso County Tornillo Water Improvement District; and
197	197	(4) one member appointed by the board of directors of
198	198	the Lower Valley Water District.
199	199	(b) The members of a commission appointed under Subsection
200	200	(a) are appointed for two-year terms that expire February 1 of each
201	201	odd-numbered year, except as provided by this subsection. The
202	202	terms of the initial members of the commission appointed under
203	203	Subsection (a) expire on February 1 of the first February in an
204	204	odd-numbered year following their appointment. A vacancy in the
205	205	commission is filled in the same manner as the original
206	206	appointment.
207	207	(c) The commission shall elect a presiding officer from
208	208	among its members. The presiding officer serves in that capacity
209	209	for a term set by the commission. The commission may at any time
210	210	choose for a particular meeting or occasion an acting presiding
211	211	officer as necessary from among its members. The commission may
212	212	employ a secretary, an acting secretary, and other technical or
213	213	clerical personnel.
214	214	(d) A member of the commission is not entitled to
215	215	compensation but is entitled to expenses actually incurred while
216	216	serving on the commission as provided by order of the commissioners
217	217	court.
218	218	(e) If the county has a planning commission or historic
219	219	commission, the commissioners court may designate either of those
220	220	commissions to serve as the commission required by this section.
221	221	Sec. 231.278. COMMISSION REPORT; HEARING. (a) The
222	222	commission shall make a preliminary report regarding
223	223	recommendations under Section 231.277(a) and hold public hearings
224	224	on that report before submitting a final report to the
225	225	commissioners court. The commissioners court may not hold a public
226	226	hearing or take final action until it has received the final report
227	227	of the commission.
228	228	(b) Before the 10th day before the hearing date, written
229	229	notice of each public hearing before the commission on a proposed
230	230	change in a classification in the district shall be sent to:
231	231	(1) each owner of affected property or to the person
232	232	who renders the property for county taxes; and
233	233	(2) each owner of property that is located within 200
234	234	feet of property affected by the change or to the person who renders
235	235	the property for county taxes.
236	236	(c) The notice may be served by depositing it, postage paid
237	237	and properly addressed, in the United States mail.
238	238	Sec. 231.279. PROCEDURES GOVERNING ADOPTION OF REGULATIONS
239	239	AND DISTRICT BOUNDARIES. (a) The commissioners court shall
240	240	establish procedures for adopting and enforcing regulations and
241	241	district boundaries. A regulation or district boundary is not
242	242	effective until it is adopted by the commissioners court after a
243	243	public hearing on the matter at which parties in interest and
244	244	citizens have an opportunity to be heard. Before the 15th day
245	245	before the date of the hearing, the commissioners court must
246	246	publish notice of the hearing in a newspaper of general circulation
247	247	in the county.
248	248	(b) The commissioners court may amend or reject a regulation
249	249	or boundary proposed by the commission:
250	250	(1) by a majority vote if no protest is made under
251	251	Subsection (c); or
252	252	(2) by an affirmative vote of at least four members of
253	253	the commissioners court if a protest is made under Subsection (c).
254	254	(c) A protest to a proposed change to a regulation or
255	255	boundary must be written and signed by the owners of at least 20
256	256	percent of:
257	257	(1) the area of the lots or land covered by the
258	258	proposed change; or
259	259	(2) the area of the lots or land immediately adjoining
260	260	the area covered by the proposed change and extending 200 feet from
261	261	that area.
262	262	(d) After the commissioners court receives a protest, the
263	263	court shall hold a public hearing. The court shall publish notice
264	264	in the manner provided by Subsection (a).
265	265	Sec. 231.280. BOARD OF ADJUSTMENT. (a) The commissioners
266	266	court may provide for the appointment of a board of adjustment. In
267	267	regulations adopted under this subchapter, the commissioners court
268	268	may authorize the board of adjustment, in appropriate cases and
269	269	subject to appropriate conditions and safeguards, to make special
270	270	exceptions to the terms of the regulations that are consistent with
271	271	the general purpose and intent of the regulations and in accordance
272	272	with any applicable rules contained in the regulations.
273	273	(b) A board of adjustment must consist of five members to be
274	274	appointed for staggered terms of two years. The appointing
275	275	authority may remove a board member for cause on a written charge
276	276	after a public hearing. The appointing authority shall fill a
277	277	vacancy on the board for the unexpired term.
278	278	(c) The board shall adopt rules in accordance with any order
279	279	adopted under this subchapter. Meetings of the board are held at
280	280	the call of the presiding officer and at other times as determined
281	281	by the board. The presiding officer or acting presiding officer may
282	282	administer oaths and compel the attendance of witnesses. All
283	283	meetings of the board shall be open to the public.
284	284	(d) The board shall keep minutes of its proceedings that
285	285	indicate the vote of each member on each question or indicate that a
286	286	member is absent or fails to vote. The board shall keep records of
287	287	its examinations and other official actions. The minutes and
288	288	records shall be filed immediately in the board's office and are
289	289	public records.
290	290	Sec. 231.281. AUTHORITY OF BOARD. (a) The board of
291	291	adjustment may:
292	292	(1) hear and decide an appeal that alleges error in an
293	293	order, requirement, decision, or determination made by an
294	294	administrative official in the enforcement of this subchapter or a
295	295	regulation adopted under this subchapter;
296	296	(2) hear and decide special exceptions to the terms of
297	297	a regulation adopted under this subchapter when the regulation
298	298	requires the board to do so; and
299	299	(3) authorize in specific cases a variance from the
300	300	terms of a regulation adopted under this subchapter if:
301	301	(A) the variance is not contrary to the public
302	302	interest;
303	303	(B) a literal enforcement of the regulation, due
304	304	to special conditions, would result in unnecessary hardship; and
305	305	(C) the granting of the variance would allow the
306	306	spirit of the regulation to be observed and substantial justice to
307	307	be done.
308	308	(b) In exercising its authority under Subsection (a)(1),
309	309	the board may reverse or affirm, in whole or in part, or modify the
310	310	administrative official's order, requirement, decision, or
311	311	determination from which an appeal is taken and make the correct
312	312	order, requirement, decision, or determination, and for that
313	313	purpose the board has the same authority as the administrative
314	314	official.
315	315	(c) The concurring vote of four members of the board is
316	316	necessary to:
317	317	(1) reverse an order, requirement, decision, or
318	318	determination of an administrative official;
319	319	(2) decide in favor of an applicant on a matter on
320	320	which the board is required to pass under a regulation adopted under
321	321	this subchapter; or
322	322	(3) authorize a variance in a regulation adopted under
323	323	this subchapter.
324	324	Sec. 231.282. APPEAL TO BOARD. (a) Any of the following
325	325	persons may appeal to the board of adjustment a decision made by an
326	326	administrative official:
327	327	(1) a person aggrieved by the decision; or
328	328	(2) any officer, department, board, or bureau of the
329	329	county or of a municipality affected by the decision.
330	330	(b) The appellant must file with the board and the official
331	331	from whom the appeal is taken a notice of appeal specifying the
332	332	grounds for the appeal. The appeal must be filed within a
333	333	reasonable time as determined by board rule. On receiving the
334	334	notice, the official from whom the appeal is taken shall
335	335	immediately transmit to the board all the papers constituting the
336	336	record of the action that is appealed.
337	337	(c) An appeal stays all proceedings in furtherance of the
338	338	action that is appealed unless the official from whom the appeal is
339	339	taken certifies in writing to the board facts supporting the
340	340	official's opinion that a stay would cause imminent peril to life or
341	341	property. In that case, the proceedings may be stayed only by a
342	342	restraining order granted by the board or a court of record on
343	343	application, after notice to the official, if due cause is shown.
344	344	(d) The board shall set a reasonable time for the appeal
345	345	hearing and shall give public notice of the hearing and due notice
346	346	to the parties in interest. A party may appear at the appeal
347	347	hearing in person or by agent or attorney. The board shall decide
348	348	the appeal within a reasonable time.
349	349	Sec. 231.283. JUDICIAL REVIEW OF BOARD DECISION. (a) Any
350	350	of the following persons may present to a court of record a verified
351	351	petition stating that the decision of the board of adjustment is
352	352	illegal in whole or in part and specifying the grounds of the
353	353	illegality:
354	354	(1) a person aggrieved by a decision of the board;
355	355	(2) a taxpayer; or
356	356	(3) an officer, department, board, or bureau of the
357	357	county or of the municipality affected by the decision.
358	358	(b) The petition must be presented within 10 days after the
359	359	date the decision is filed in the board's office.
360	360	(c) On the presentation of the petition, the court may grant
361	361	a writ of certiorari directed to the board to review the board's
362	362	decision. The writ must indicate the period within which the
363	363	board's reply must be made and served on the petitioner's attorney,
364	364	which must be after the 10th day after the date the petition is
365	365	presented to the board under Subsection (b). The court may extend
366	366	the period for reply described by this subsection. A grant of the
367	367	writ does not stay the proceedings on the decision under appeal. On
368	368	application and after notice to the board, the court may grant a
369	369	restraining order if due cause is shown.
370	370	(d) The board's reply must be verified and must concisely
371	371	state any pertinent and material facts that show the grounds of the
372	372	decision under appeal. The board is not required to return the
373	373	original documents on which the board acted but may return
374	374	certified or sworn copies of the documents or parts of the documents
375	375	as required by the writ.
376	376	(e) If at the hearing the court determines that testimony is
377	377	necessary for the proper disposition of the matter, the court may
378	378	take evidence or appoint a referee to take evidence as directed.
379	379	The referee shall report the evidence to the court with the
380	380	referee's findings of fact and conclusions of law. The referee's
381	381	report constitutes a part of the proceedings on which the court
382	382	shall make its decision.
383	383	(f) The court may reverse or affirm, in whole or in part, or
384	384	modify the decision that is appealed. The court may not assess
385	385	costs against the board unless the court determines that the board
386	386	acted with gross negligence, in bad faith, or with malice in making
387	387	its decision.
388	388	Sec. 231.284. ENFORCEMENT; PENALTY; REMEDIES. (a) The
389	389	commissioners court may adopt orders to enforce this subchapter or
390	390	an order or a regulation adopted under this subchapter.
391	391	(b) A person commits an offense if the person violates this
392	392	subchapter or an order or a regulation adopted under this
393	393	subchapter. An offense under this subsection is a Class B
394	394	misdemeanor. Each day that a violation occurs constitutes a
395	395	separate offense. Trial shall be in a county court.
396	396	(c) A person who violates this subchapter or an order or a
397	397	regulation adopted under this subchapter is liable to the county
398	398	for a civil penalty in an amount not to exceed $1,000 for each day
399	399	the violation exists. The appropriate attorney representing the
400	400	county in civil actions may file a civil action in court to recover
401	401	the civil penalty. If the attorney for the county prevails in the
402	402	civil action, the person shall reimburse the attorney for the costs
403	403	of the civil action, including court costs and attorney's fees. In
404	404	determining the amount of the penalty, the court shall consider the
405	405	seriousness of the violation. A penalty recovered under this
406	406	subsection shall be deposited in the county treasury to the credit
407	407	of the general fund.
408	408	(d) If a building or other structure is erected,
409	409	constructed, reconstructed, altered, repaired, converted, razed,
410	410	or maintained or if a building, other structure, or land is used in
411	411	violation of this subchapter or an order or a regulation adopted
412	412	under this subchapter, the appropriate county authority, in
413	413	addition to other remedies, may institute appropriate action to:
414	414	(1) prevent or remove the unlawful action or use,
415	415	including an unlawful erection, construction, reconstruction,
416	416	alteration, repair, conversion, razing, or maintenance;
417	417	(2) enjoin, restrain, correct, or abate the violation;
418	418	(3) prevent the occupancy of the building, structure,
419	419	or land; or
420	420	(4) prevent any illegal act, conduct, business, or use
421	421	on or about the premises.
422	422	Sec. 231.285. CONFLICT WITH OTHER LAWS; EXCEPTIONS. (a) If
423	423	a regulation adopted under this subchapter imposes a more stringent
424	424	standard than a standard required under another statute or local
425	425	order or regulation, the regulation adopted under this subchapter
426	426	controls. If the other statute or local order or regulation imposes
427	427	a more stringent standard, that statute, order, or regulation
428	428	controls.
429	429	(b) The commissioners court may require the removal,
430	430	destruction, or change of any structure or use of any property that
431	431	does not conform to an order or a regulation adopted under this
432	432	subchapter only if:
433	433	(1) the court permits the owner's investment in the
434	434	structure or property to be amortized over a period determined by
435	435	the court; or
436	436	(2) the court determines the nonconforming structure
437	437	or property has been permanently abandoned.
438	438	(c) This subchapter or a regulation adopted under this
439	439	subchapter does not apply to:
440	440	(1) structures or facilities owned or used by an
441	441	electric utility as defined by Section 31.002, Utilities Code; or
442	442	(2) real property, central office buildings,
443	443	facilities, signs, or other structures, or equipment owned or used
444	444	by a telecommunications provider.
445	445	(d) This subchapter does not authorize the commissioners
446	446	court to:
447	447	(1) require the removal or destruction of property
448	448	that exists at the time the court implements this subchapter; or
449	449	(2) restrict the right of a landowner, acting on the
450	450	owner's behalf, to construct improvements for agriculture and
451	451	ranching operations or to otherwise use the land for agriculture
452	452	and ranching operations.
453	453	(e) For purposes of Subsection (d)(2), "agriculture and
454	454	ranching operations" includes:
455	455	(1) cultivating the soil;
456	456	(2) producing crops for human food, animal feed,
457	457	planting seed, or fiber;
458	458	(3) floriculture, viticulture, or horticulture;
459	459	(4) raising or keeping livestock or poultry; or
460	460	(5) planting cover crops or leaving land idle for the
461	461	purpose of participating in any governmental program or normal crop
462	462	or livestock rotation procedure.
463	463	SECTION 2. This Act takes effect immediately if it receives
464	464	a vote of two-thirds of all the members elected to each house, as
465	465	provided by Section 39, Article III, Texas Constitution. If this
466	466	Act does not receive the vote necessary for immediate effect, this
467	467	Act takes effect September 1, 2013.