Texas 2015 - 84th Regular

Texas Senate Bill SB360 Compare Versions

Only one version of the bill is available at this time.

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1	1	By: Estes S.B. No. 360
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to regulatory takings.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Section 2007.002, Government Code, is amended by
9	9	amending Subdivision (5) to read as follows:
10	10	(5) "Taking" means:
11	11	(A) a governmental action or series of actions
12	12	within a 10-year period that affects private real property, in
13	13	whole or in part or temporarily or permanently, in a manner that
14	14	requires the governmental entity to compensate the private real
15	15	property owner as provided by the Fifth and Fourteenth Amendments
16	16	to the United States Constitution or Section 17 or 19, Article I,
17	17	Texas Constitution; [or]
18	18	(B) a governmental action or series of actions
19	19	within a 10-year period that:
20	20	(i) affects an owner's private real
21	21	property that is the subject of the governmental action, in whole or
22	22	in part or temporarily or permanently, in a manner that restricts or
23	23	limits the owner's right to the property that would otherwise exist
24	24	in the absence of the governmental action; and either
25	25	(ii) is the producing cause of a reduction
26	26	of at least 20 [25] percent in the market value of the affected
27	27	private real property, determined by comparing the market value of
28	28	the property as if the governmental action is not in effect and the
29	29	market value of the property determined as if the governmental
30	30	action is in effect; or
31	31	(iii) is the producing cause of at least a
32	32	20 percent reduction of revenue or income from the use or sale of
33	33	the affected real private property, determined by comparing the
34	34	revenue or income from the use or sale of the property as if the
35	35	governmental action is not in effect and the revenue or income from
36	36	the use or sale of the property determined as if the governmental
37	37	action is in effect.
38	38	SECTION 2. Section 2007.003, Government Code, is amended by
39	39	amending Subsections (a) and (b) to read as follows:
40	40	Sec. 2007.003. APPLICABILITY. (a) This chapter applies
41	41	only to the following governmental actions:
42	42	(1) the adoption or issuance of an ordinance, rule,
43	43	regulatory requirement, resolution, policy, guideline, or similar
44	44	measure;
45	45	(2) an action that imposes a physical invasion or
46	46	requires a dedication or exaction of private real property; and
47	47	(3) [an action by a municipality that has effect in the
48	48	extraterritorial jurisdiction of the municipality, excluding
49	49	annexation, and that enacts or enforces an ordinance, rule,
50	50	regulation, or plan that does not impose identical requirements or
51	51	restrictions in the entire extraterritorial jurisdiction of the
52	52	municipality; and
53	53	[(4)] enforcement of a governmental action listed in
54	54	Subdivisions (1) and (2) [through (3)], whether the enforcement of
55	55	the governmental action is accomplished through the use of
56	56	permitting, citations, orders, judicial or quasi-judicial
57	57	proceedings, or other similar means.
58	58	(b) This chapter does not apply to the following
59	59	governmental actions:
60	60	(1) [an action by a municipality except as provided by
61	61	Subsection (a)(3);
62	62	[(2)] a lawful forfeiture or seizure of contraband as
63	63	defined by Article 59.01, Code of Criminal Procedure;
64	64	(2) [(3)] a lawful seizure of property as evidence of
65	65	a crime or violation of law;
66	66	(3) [(4) an action, including an action of a political
67	67	subdivision, that is reasonably taken to fulfill an obligation
68	68	mandated by federal law or an action of a political subdivision that
69	69	is reasonably taken to fulfill an obligation mandated by state law;
70	70	[(5)] the discontinuance or modification of a program
71	71	or regulation that provides a unilateral expectation that does not
72	72	rise to the level of a recognized interest in private real property;
73	73	(4) [(6)] an action taken to prohibit or restrict a
74	74	condition or use of private real property if the governmental
75	75	entity proves that the condition or use constitutes a public or
76	76	private nuisance as defined by background principles of nuisance
77	77	and property law of this state;
78	78	(5) [(7)] an action taken based on reasonable evidence
79	79	[out of a reasonable good faith belief] that the action is necessary
80	80	to prevent a grave and immediate threat to public health or safety,
81	81	life, or property and does not impose a greater burden than is
82	82	necessary to address the threat;
83	83	(6) [(8)] a formal exercise of the power of eminent
84	84	domain;
85	85	(7) [(9)] an action taken under a state mandate to
86	86	prevent waste of oil and gas, protect correlative rights of owners
87	87	of interests in oil or gas, or prevent pollution related to oil and
88	88	gas activities;
89	89	(8) [(10) a rule or proclamation adopted for the
90	90	purpose of regulating water safety, hunting, fishing, or control of
91	91	nonindigenous or exotic aquatic resources;
92	92	[(11)] an action taken by a political subdivision [:
93	93	[(A) to regulate construction in an area
94	94	designated under law as a floodplain;
95	95	[(B) to regulate on-site sewage facilities;
96	96	[(C) under the political subdivisions's
97	97	statutory authority to prevent waste or protect rights of owners of
98	98	interest in groundwater; or
99	99	[(D)] to prevent subsidence;
100	100	(9) [(12)] the appraisal of property for purposes of
101	101	ad valorem taxation; or
102	102	(10) [(13) an action that:
103	103	[(A) is taken in response to a real and
104	104	substantial threat to public health and safety;
105	105	[(B) is designed to significantly advance the
106	106	health and safety purpose; and
107	107	[(C) does not impose a greater burden than is
108	108	necessary to achieve the health and safety purpose; or
109	109	[(14)] an action or rulemaking undertaken by the
110	110	Public Utility Commission of Texas to order or require the location
111	111	or placement of telecommunications equipment owned by another party
112	112	on the premises of a certificated local exchange company.
113	113	SECTION 3. Section 2007.021, Government Code, is amended by
114	114	amending Subsection (b) and adding Subsection (c) to read as
115	115	follows:
116	116	(b) A suit under this subchapter must be filed not later
117	117	than the second anniversary of the later of:
118	118	(1) the earliest date on which the ordinance, rule,
119	119	regulatory requirement, resolution, policy, guideline, or similar
120	120	measure on which the suit is based is enforced with respect to the
121	121	owner's private real property; or
122	122	(2) the earliest date on which the ordinance, rule,
123	123	regulatory requirement, resolution, policy, guideline, or similar
124	124	measure on which the suit is based is applied to the owner's private
125	125	real property with respect to any permit application affecting the
126	126	real property [180th day after the date the private real property
127	127	owner knew or should have known that the governmental action
128	128	restricted or limited the owner's right in the private real
129	129	property].
130	130	(c) A political subdivision may, in anticipation of or in
131	131	response to a suit under this chapter, as part of a settlement
132	132	agreement with a private real property owner or for any other
133	133	legitimate purpose, issue a waiver of enforcement of a governmental
134	134	action with regard to any parcel of land.
135	135	SECTION 4. Section 2007.022(b), Government Code, is amended
136	136	to read as follows:
137	137	(b) A contested case must be filed with the agency not later
138	138	than the second anniversary of the later of:
139	139	(1) the earliest date on which the ordinance, rule,
140	140	regulatory requirement, resolution, policy, guideline, or similar
141	141	measure on which the case is based is enforced with respect to the
142	142	owner's private real property; or
143	143	(2) the earliest date on which the ordinance, rule,
144	144	regulatory requirement, resolution, policy, guideline, or similar
145	145	measure on which the case is based is applied to the owner's private
146	146	real property with respect to any permit application affecting the
147	147	real property [the 180th day after the date the private real
148	148	property owner knew or should have known that the governmental
149	149	action restricted or limited the owner's right in the private real
150	150	property].
151	151	SECTION 5. Section 2007.023(b), Government Code, is amended
152	152	to read as follows:
153	153	(b) If the trier of fact in a suit or contested case filed
154	154	under this subchapter finds that the governmental action is a
155	155	taking under this chapter, the private real property owner is only
156	156	entitled to, and the governmental entity is only liable for:
157	157	(1) [,] invalidation of the governmental action or the
158	158	part of the governmental action resulting in the taking; and
159	159	(2) damages determined under Section 2007.024(b).
160	160	SECTION 6. Section 2007.024, Government Code, is amended by
161	161	amending Subsection (b) and adding Subsection (b-1) to read as
162	162	follows:
163	163	(b) The judgment or final decision or order shall include a
164	164	fact finding that determines the monetary damages suffered by the
165	165	private real property owner as a result of the taking, including, if
166	166	the governmental action has ceased or has been rescinded, amended,
167	167	invalidated, or repealed, the temporary or permanent economic loss
168	168	sustained by the private real property owner while the governmental
169	169	action was in effect.
170	170	(b-1) The amount of damages under Subsection (b) is
171	171	determined from the date of the taking.
172	172	SECTION 7. Section 2007.026(b), Government Code, is amended
173	173	to read as follows:
174	174	(b) The court or the state agency shall award a governmental
175	175	entity that prevails in a suit or contested case filed under this
176	176	subchapter reasonable and necessary attorney's fees and court costs
177	177	only if the court determines that the private real property owner
178	178	knew that the suit or contested case had no merit at the time the
179	179	owner filed the suit or contested case.
180	180	SECTION 8. Section 2007.041(a), Government Code, is amended
181	181	to read as follows:
182	182	(a) The attorney general shall prepare guidelines to assist
183	183	governmental entities in identifying and evaluating those
184	184	governmental actions described in Sections [Section]
185	185	2007.003(a)(1) and (2) [through (3)] that may result in a taking.
186	186	SECTION 9. Section 2007.042(a), Government Code, is amended
187	187	to read as follows:
188	188	(a) A political subdivision that proposes to engage in a
189	189	governmental action described in Section 2007.003(a)(1) or (2)
190	190	[through (3)] that may result in a taking shall provide at least 30
191	191	days' notice of its intent to engage in the proposed action by
192	192	providing a reasonably specific description of the proposed action
193	193	in a notice published in a newspaper of general circulation
194	194	published in the county in which affected private real property is
195	195	located. If a newspaper of general circulation is not published in
196	196	that county, the political subdivision shall publish a notice in a
197	197	newspaper of general circulation located in a county adjacent to
198	198	the county in which affected private real property is located. The
199	199	political subdivision shall, at a minimum, include in the notice a
200	200	reasonably specific summary of the takings impact assessment that
201	201	was prepared as required by this subchapter and the name of the
202	202	official of the political subdivision from whom a copy of the full
203	203	assessment may be obtained.
204	204	SECTION 10. Section 2007.044, Government Code, is amended
205	205	by amending Subsection (a) and adding Subsection (d) to read as
206	206	follows:
207	207	(a) A governmental action requiring a takings impact
208	208	assessment is void if an assessment is not prepared in compliance
209	209	with the evaluation guidelines developed by the attorney general
210	210	under Section 2007.041. A private real property owner affected by a
211	211	governmental action taken without the preparation of a takings
212	212	impact assessment as required by this subchapter may bring suit for
213	213	a declaration of the invalidity of the governmental action.
214	214	(d) A proposed governmental action described by Section
215	215	2007.003(a)(1) or (2) that requires a takings impact assessment may
216	216	be stayed if an assessment is not prepared or if the assessment is
217	217	not in compliance with the evaluation guidelines developed by the
218	218	attorney general under Section 2007.041. A private real property
219	219	owner affected by the proposed governmental action may bring suit
220	220	to enforce the preparation of a takings impact assessment in
221	221	compliance with those guidelines. If the trier of fact in a suit
222	222	filed under this subchapter finds that the takings impact
223	223	assessment is not prepared or is not in compliance with the
224	224	evaluation guidelines, the court shall stay the proposed
225	225	governmental action.
226	226	SECTION 11. The change in law made by this Act applies only
227	227	to a governmental action or series of actions that commences on or
228	228	after the effective date of this Act. A governmental action or
229	229	series of actions that commences before the effective date of this
230	230	Act is governed by the law in effect immediately before that date,
231	231	and that law is continued in effect for that purpose.
232	232	SECTION 12. This Act takes effect immediately if it
233	233	receives a vote of two-thirds of all the members elected to each
234	234	house, as provided by Section 39, Article III, Texas Constitution.
235	235	If this Act does not receive the vote necessary for immediate
236	236	effect, this Act takes effect September 1, 2015.