By: Parker, Flores S.B. No. 929
A BILL TO BE ENTITLED
AN ACT
relating to the notice and compensation a municipality must provide
before revoking the right to use property for a use that was allowed
before the adoption of or change to a zoning regulation or boundary.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 211.006, Local Government Code, is
amended by adding Subsection (a-1) to read as follows:
(a-1) In addition to any notice required by this section or
Section 211.007, the governing body of a municipality or a zoning
commission, as applicable, shall provide written notice of each
public hearing regarding any proposed adoption of or change to a
zoning regulation or boundary under which a current conforming use
of a property is a nonconforming use if the regulation or boundary
is adopted or changed. The notice must:
(1) be mailed by United States mail to each owner of
real or business personal property where the proposed nonconforming
use is located as indicated by the most recently approved municipal
tax roll and each occupant of the property not later than the 10th
day before the hearing date;
(2) contain the time and place of the hearing; and
(3) include the following text in bold 14-point type or
larger:
"THE [MUNICIPALITY NAME] IS HOLDING A HEARING THAT
WILL DETERMINE WHETHER YOU MAY LOSE THE RIGHT TO
CONTINUE USING YOUR PROPERTY FOR ITS CURRENT USE.
PLEASE READ THIS NOTICE CAREFULLY."
SECTION 2. Subchapter A, Chapter 211, Local Government
Code, is amended by adding Section 211.019 to read as follows:
Sec. 211.019. NONCONFORMING LAND USE. (a) In this section,
"market value" means the price the sale of the property would bring
in an arms-length transaction when offered for sale by one who
wishes, but is not obliged, to sell and when bought by one who is
under no necessity of buying it.
(b) A person using a property in a manner considered to be a
nonconforming use as a result of the adoption of or change to a
zoning regulation or boundary may continue to use the property in
the same manner unless required by a municipality to stop the
nonconforming use of the property.
(c) A requirement imposed by a municipality to stop a
nonconforming use of a property under this section includes:
(1) an official action by the governing body of the
municipality or a board, commission, department, or official of
the municipality; or
(2) a determination by the municipality that a
nonconforming use has an adverse effect or other necessary
determination that a municipality must make before imposing a
requirement to stop a nonconforming use under applicable law.
(d) If a municipality requires a property owner or lessee to
stop the nonconforming use of a property as described by Subsection
(b), the owner or lessee of the property is entitled to:
(1) payment from the municipality in an amount equal
to the sum of:
(A) the costs incurred by the owner or lessee of
the property that are directly attributable to ceasing the
nonconforming use of the property, including expenses related to
demolition, relocation, termination of a lease, or discharge of a
mortgage; and
(B) an amount equal to the greater of, as
determined by the municipality, the diminution in the market value
of the property, computed by subtracting the current market value
of the property after the imposition of a requirement to stop the
nonconforming use of the property from:
(i) the market value of the property on the
day before the date the notice was given under Section
211.006(a-1); or
(ii) the market value of the property on the
day before a person submits an application or request to the
municipality to require or the municipality otherwise requires a
person to stop using the property in a manner that is a
nonconforming use as described by Subsection (b); or
(2) continued nonconforming use of the property until
the owner or lessee recovers the amount determined under
Subdivision (1) through the owner or lessee's continued business
activities according to generally accepted accounting principles.
(e) Not later than the 10th day after the date a
municipality imposes a requirement to stop a nonconforming use of a
property under this section, the municipality shall give written
notice to each owner or lessee of the property, as indicated by the
most recently approved municipal tax roll, who is required to stop a
nonconforming use of the property of the requirement and of the
remedies which an owner or lessee of the property is entitled to
under Subsection (d).
(f) The owner or lessee of a property that is subject to a
requirement to stop a nonconforming use of the property under this
section shall not later than the 30th day after the date the
municipality gives the notice required by Subsection (e) respond in
writing to the municipality indicating the remedy under Subsection
(d) chosen by the owner or lessee. In the event of a conflict in the
choice of remedy by the owner and a lessee of the property, the
owner's choice of remedy shall control. In the event of a conflict
in the choice of remedy by the owners of a property that has more
than one owner, the choice of remedy made by an owner or owners
holding the greater ownership interest in the property shall
control. If the municipality does not receive timely notice from an
owner or lessee, the municipality may choose the remedy provided
under this section.
(g) A person receiving a payment under Subsection (d)(1)
must stop the nonconforming use not later than the 10th day after
the date of the payment.
(h) A person who continues the nonconforming use under
Subsection (d)(2) must stop the nonconforming use immediately on
the recovery of the amount determined under Subsection (d)(1).
(i) If more than one person seeks a payment from the
municipality under Subsection (d)(1), the municipality shall
apportion the payment between each person based on the market value
of the person's interest in the property. A person may appeal the
apportionment in the manner provided by this section.
(j) A person entitled to a remedy under this section may
appeal a determination under Subsection (d)(1) or (2) to the board
of adjustment of the municipality not later than the 20th day after
the date the determination is made. At the hearing before the board
of adjustment, the municipality has the burden of proof to
establish the correctness of its determination.
(k) A municipality or a person aggrieved by the final
decision of the board of adjustment under Subsection (j) may seek
judicial review of the decision by filing suit as provided by
Section 211.011 not later than the 20th day after the date the final
decision is made. The court shall review the decision in the manner
provided by Section 211.011 except that:
(1) the municipality has the burden of proving by clear
and convincing evidence that its determination was correct; and
(2) the court:
(A) in reviewing the municipality's decision may
not use a deferential standard in the municipality's favor; and
(B) is not limited to determining whether a
decision of the board meets the requirements of this chapter or
other applicable law.
(l) A person seeking to continue a nonconforming use under
Subsection (d)(2) who appeals the decision of the municipality or
board of adjustment may continue to use the property in the same
manner pending the appeal unless an official of the body that made
the decision shows cause to stay the nonconforming use by
certifying in writing to the board of adjustment or court with
jurisdiction over the appeal facts supporting the official's
opinion that continued nonconforming use of the property would
cause imminent peril to life or property. On a showing of cause the
board of adjustment or court with jurisdiction over the appeal may,
after notice to the official, grant a restraining order to stay
continued nonconforming use of the property.
(m) If the board of adjustment or court with jurisdiction
over an appeal determines that an owner or lessee is entitled to:
(1) a payment under this section in an amount
different than the amount determined by the municipality under
Subsection (d)(1), the board of adjustment or court shall order, as
applicable:
(A) additional payment to the owner or lessee; or
(B) the owner or lessee to reimburse the
municipality; or
(2) an amount of time to operate the nonconforming use
that is different than the amount of time initially received under
Subsection (d)(2), the board of adjustment or court shall order the
municipality to allow an owner or lessee to continue the
nonconforming use for additional or less time.
(n) An owner or lessee may waive the rights and remedies
provided by this section by providing to the municipality a written
waiver.
(o) This section does not apply to a nonconforming use that
has been intentionally abandoned for at least six months.
(p) A municipality's immunity from suit and governmental
immunity from liability are waived for purposes of an action
brought by a property owner or lessee to enforce the rights and
remedies under this section.
SECTION 3. (a) Section 211.006, Local Government Code, as
amended by this Act, and Section 211.019, Local Government Code, as
added by this Act, apply to a property for which:
(1) on or after June 1, 2023, the governing body or
zoning commission of a municipality considers a proposed adoption
of or change to a zoning regulation or boundary under which a
current conforming use of the property is a nonconforming use; or
(2) on or after February 1, 2023, the governing body or
a board, commission, department, or official of a municipality
requires, by ordinance or otherwise, or receives an application or
request to require a person to stop nonconforming use of the
property due to its nonconformity with the property's current
zoning.
(b) Subsection (a)(2) of this section applies to a property
regardless of whether the governing body or a board, commission,
department, or official of the municipality is required by
applicable law to make a determination that the nonconforming use
has an adverse effect or other determination before the
nonconforming use is required to stop.
SECTION 4. 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, 2023.