Texas 2023 - 88th Regular

Texas House Bill HB3490 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	88R16484 DRS-F
2	2	By: Rogers H.B. No. 3490
3	3	Substitute the following for H.B. No. 3490:
4	4	By: Burns C.S.H.B. No. 3490
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the notice and compensation a municipality must provide
10	10	before revoking the right to use property for a use that was allowed
11	11	before the adoption of or change to a zoning regulation or
12	12	boundary.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. Section 211.006, Local Government Code, is
15	15	amended by adding Subsection (a-1) to read as follows:
16	16	(a-1) In addition to any notice required by this section or
17	17	Section 211.007, the governing body of a municipality or a zoning
18	18	commission, as applicable, shall provide written notice of each
19	19	public hearing regarding any proposed adoption of or change to a
20	20	zoning regulation or boundary under which a current conforming use
21	21	of a property is a nonconforming use if the regulation or boundary
22	22	is adopted or changed. The notice must:
23	23	(1) be mailed by United States mail to each owner of
24	24	real or business personal property where the proposed nonconforming
25	25	use is located as indicated by the most recently approved municipal
26	26	tax roll and each occupant of the property not later than the 10th
27	27	day before the hearing date;
28	28	(2) contain the time and place of the hearing; and
29	29	(3) include the following text in bold 14-point type or
30	30	larger:
31	31	"THE [MUNICIPALITY NAME] IS HOLDING A HEARING THAT
32	32	WILL DETERMINE WHETHER YOU MAY LOSE THE RIGHT TO
33	33	CONTINUE USING YOUR PROPERTY FOR ITS CURRENT USE.
34	34	PLEASE READ THIS NOTICE CAREFULLY."
35	35	SECTION 2. Subchapter A, Chapter 211, Local Government
36	36	Code, is amended by adding Section 211.019 to read as follows:
37	37	Sec. 211.019. NONCONFORMING LAND USE. (a) In this section,
38	38	"market value" means the price the sale of the property would bring
39	39	in an arms-length transaction when offered for sale by one who
40	40	wishes, but is not obliged, to sell and when bought by one who is
41	41	under no necessity of buying it.
42	42	(b) A person using a property in a manner considered to be a
43	43	nonconforming use as a result of the adoption of or change to a
44	44	zoning regulation or boundary may continue to use the property in
45	45	the same manner unless required by a municipality to stop the
46	46	nonconforming use of the property.
47	47	(c) A requirement imposed by a municipality to stop a
48	48	nonconforming use of a property under this section includes:
49	49	(1) an official action by the governing body of the
50	50	municipality or a board, commission, department, or official of
51	51	the municipality; or
52	52	(2) a determination by the municipality that a
53	53	nonconforming use has an adverse effect or other necessary
54	54	determination that a municipality must make before imposing a
55	55	requirement to stop a nonconforming use under applicable law.
56	56	(d) If a municipality requires a property owner or lessee to
57	57	stop the nonconforming use of a property as described by Subsection
58	58	(b), the owner or lessee of the property is entitled to:
59	59	(1) payment from the municipality in an amount equal
60	60	to the sum of:
61	61	(A) the costs incurred by the owner or lessee of
62	62	the property that are directly attributable to ceasing the
63	63	nonconforming use of the property, including expenses related to
64	64	demolition, relocation, termination of a lease, or discharge of a
65	65	mortgage; and
66	66	(B) an amount equal to the greater of, as
67	67	determined by the municipality, the diminution in the market value
68	68	of the property, computed by subtracting the current market value
69	69	of the property after the imposition of a requirement to stop the
70	70	nonconforming use of the property from:
71	71	(i) the market value of the property on the
72	72	day before the date the notice was given under Section
73	73	211.006(a-1); or
74	74	(ii) the market value of the property on the
75	75	day before a person submits an application or request to the
76	76	municipality to require or the municipality otherwise requires a
77	77	person to stop using the property in a manner that is a
78	78	nonconforming use as described by Subsection (b); or
79	79	(2) continued nonconforming use of the property until
80	80	the owner or lessee recovers the amount determined under
81	81	Subdivision (1) through the owner or lessee's continued business
82	82	activities according to generally accepted accounting principles.
83	83	(e) Not later than the 10th day after the date a
84	84	municipality imposes a requirement to stop a nonconforming use of a
85	85	property under this section, the municipality shall give written
86	86	notice to each owner or lessee of the property, as indicated by the
87	87	most recently approved municipal tax roll, who is required to stop a
88	88	nonconforming use of the property of the requirement and of the
89	89	remedies which an owner or lessee of the property is entitled to
90	90	under Subsection (d).
91	91	(f) The owner or lessee of a property that is subject to a
92	92	requirement to stop a nonconforming use of the property under this
93	93	section shall not later than the 30th day after the date the
94	94	municipality gives the notice required by Subsection (e) respond in
95	95	writing to the municipality indicating the remedy under Subsection
96	96	(d) chosen by the owner or lessee. In the event of a conflict in the
97	97	choice of remedy by the owner and a lessee of the property, the
98	98	owner's choice of remedy shall control. In the event of a conflict
99	99	in the choice of remedy by the owners of a property that has more
100	100	than one owner, the choice of remedy made by an owner or owners
101	101	holding the greater ownership interest in the property shall
102	102	control. If the municipality does not receive timely notice from an
103	103	owner or lessee, the municipality may choose the remedy provided
104	104	under this section.
105	105	(g) A person receiving a payment under Subsection (d)(1)
106	106	must stop the nonconforming use not later than the 10th day after
107	107	the date of the payment.
108	108	(h) A person who continues the nonconforming use under
109	109	Subsection (d)(2) must stop the nonconforming use immediately on
110	110	the recovery of the amount determined under Subsection (d)(1).
111	111	(i) If more than one person seeks a payment from the
112	112	municipality under Subsection (d)(1), the municipality shall
113	113	apportion the payment between each person based on the market value
114	114	of the person's interest in the property. A person may appeal the
115	115	apportionment in the manner provided by this section.
116	116	(j) A person entitled to a remedy under this section may
117	117	appeal a determination under Subsection (d)(1) or (2) to the board
118	118	of adjustment of the municipality not later than the 20th day after
119	119	the date the determination is made. At the hearing before the board
120	120	of adjustment, the municipality has the burden of proof to
121	121	establish the correctness of its determination.
122	122	(k) A municipality or a person aggrieved by the final
123	123	decision of the board of adjustment under Subsection (j) may seek
124	124	judicial review of the decision by filing suit as provided by
125	125	Section 211.011 not later than the 20th day after the date the final
126	126	decision is made. The court shall review the decision in the manner
127	127	provided by Section 211.011 except that:
128	128	(1) the municipality has the burden of proving by clear
129	129	and convincing evidence that its determination was correct; and
130	130	(2) the court:
131	131	(A) in reviewing the municipality's decision may
132	132	not use a deferential standard in the municipality's favor; and
133	133	(B) is not limited to determining whether a
134	134	decision of the board meets the requirements of this chapter or
135	135	other applicable law.
136	136	(l) A person seeking to continue a nonconforming use under
137	137	Subsection (d)(2) who appeals the decision of the municipality or
138	138	board of adjustment may continue to use the property in the same
139	139	manner pending the appeal unless an official of the body that made
140	140	the decision shows cause to stay the nonconforming use by
141	141	certifying in writing to the board of adjustment or court with
142	142	jurisdiction over the appeal facts supporting the official's
143	143	opinion that continued nonconforming use of the property would
144	144	cause imminent peril to life or property. On a showing of cause the
145	145	board of adjustment or court with jurisdiction over the appeal may,
146	146	after notice to the official, grant a restraining order to stay
147	147	continued nonconforming use of the property.
148	148	(m) If the board of adjustment or court with jurisdiction
149	149	over an appeal determines that an owner or lessee is entitled to:
150	150	(1) a payment under this section in an amount
151	151	different than the amount determined by the municipality under
152	152	Subsection (d)(1), the board of adjustment or court shall order, as
153	153	applicable:
154	154	(A) additional payment to the owner or lessee; or
155	155	(B) the owner or lessee to reimburse the
156	156	municipality; or
157	157	(2) an amount of time to operate the nonconforming use
158	158	that is different than the amount of time initially received under
159	159	Subsection (d)(2), the board of adjustment or court shall order the
160	160	municipality to allow an owner or lessee to continue the
161	161	nonconforming use for additional or less time.
162	162	(n) An owner or lessee may waive the rights and remedies
163	163	provided by this section by providing to the municipality a written
164	164	waiver.
165	165	(o) This section does not apply to a nonconforming use that
166	166	has been intentionally abandoned for at least six months.
167	167	(p) A municipality's immunity from suit and governmental
168	168	immunity from liability are waived for purposes of an action
169	169	brought by a property owner or lessee to enforce the rights and
170	170	remedies under this section.
171	171	SECTION 3. (a) Section 211.006, Local Government Code, as
172	172	amended by this Act, and Section 211.019, Local Government Code, as
173	173	added by this Act, apply to a property for which:
174	174	(1) on or after June 1, 2023, the governing body or
175	175	zoning commission of a municipality considers a proposed adoption
176	176	of or change to a zoning regulation or boundary under which a
177	177	current conforming use of the property is a nonconforming use; or
178	178	(2) on or after February 1, 2023, the governing body or
179	179	a board, commission, department, or official of a municipality
180	180	requires, by ordinance or otherwise, or receives an application or
181	181	request to require a person to stop nonconforming use of the
182	182	property due to its nonconformity with the property's current
183	183	zoning.
184	184	(b) Subsection (a)(2) of this section applies to a property
185	185	regardless of whether the governing body or a board, commission,
186	186	department, or official of the municipality is required by
187	187	applicable law to make a determination that the nonconforming use
188	188	has an adverse effect or other determination before the
189	189	nonconforming use is required to stop.
190	190	SECTION 4. This Act takes effect immediately if it receives
191	191	a vote of two-thirds of all the members elected to each house, as
192	192	provided by Section 39, Article III, Texas Constitution. If this
193	193	Act does not receive the vote necessary for immediate effect, this
194	194	Act takes effect September 1, 2023.