By: Parker 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 that could result in a current
conforming use of a property becoming a nonconforming use if the
regulation or boundary were to be 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 at that 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 fourteen-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) Except as provided by this section, the operator of
property with 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 the property was used before the use
became nonconforming.
(c) If a nonconforming use on a property described by
Subsection (b) is required by a municipality to cease operation due
to being a nonconforming use, the owner or the lessee of the
property is entitled to receive either:
(1) a payment from the municipality composed of costs
that are directly attributable to the municipal requirement of
ceasing operation including demolition expenses, relocation
expenses, termination of leases, and discharge of mortgages, and
an amount equaling the diminution, if any, of the greater of, as
determined by the municipality, the market value of the property on
the day before:
(A) the notice under Section 211.006(a-1) was
required to be sent to the property's owner of the adoption of or
change to a zoning regulation or boundary that made the use
nonconforming and the property's market value as a result of the
use becoming nonconforming; or
(B) a person submits an application or request to
the municipality to require or the municipality otherwise requires
the nonconforming use to cease operation due to being a
nonconforming use and the property's market value as a result of a
municipal requirement that the use cease operation; or
(2) additional time to operate the nonconforming use
until the property owner or lessee has recovered, through its
business activities using generally accepted accounting
principles, the amount determined under Subsection (c)(1).
(d) A municipal requirement to cease operation due to
nonconformity under this section includes:
(1) an action of the governing body, board, commission,
department, or official of the municipality; and
(2) a determination by the municipality that must be
made before the nonconforming use is required to cease operation
such as determining the use has an adverse effect.
(e) The municipality must notify each owner of real or
business personal property, as indicated by the most recently
approved municipal tax roll, with a nonconforming use subject to a
municipal requirement to cease operation due to being a
nonconforming use and each occupant at that property in writing of
its requirement and the remedies described in Subsection (c) not
later than the 10th day after the date the municipality imposes the
requirement.
(f) The owner and any lessee of the real property must
notify the municipality in writing of the remedy chosen under
Subsection (c) not later than the 30th day after the date the
municipality sent the notice required by Subsection (e). If the
owner of real property and a lessee choose different remedies, the
owner's choice of remedy controls. If there is more than one owner
of the real property and they choose different remedies, the choice
of remedy by owners who have a greater ownership interest in the
property controls. If the property owner and lessee fail to provide
timely notice, the municipality may choose the remedy.
(g) A person receiving payment under Subsection (c)(1) must
cease operating the nonconforming use not later than the 10th day
after the date of the payment.
(h) A person receiving additional time to operate the
nonconforming use under Subsection (c)(2) must cease operating that
use immediately on the expiration of the additional time.
(i) If both the owner and lessee of the property seek a
payment from the municipality under Subsection (c)(1), the
municipality shall apportion the payment between each based on the
market value of their interests in the property. The municipality's
apportionment may be appealed by either the owner or lessee in the
same manner as other appeals allowed by this section.
(j) If the owner or lessee does not accept the
municipality's determination under Subsection (c)(1) or (2),
either person may appeal the determination 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) The municipality or a person aggrieved by the final
decision of the board of adjustment may seek judicial review of the
decision in the manner provided by Section 211.011 by filing suit
not later than the 20th day after the date the final decision is
made except that:
(1) the municipality has the burden of proving by clear
and convincing evidence that its determination was correct; and
(2) in reviewing the municipality's decision, the
court:
(A) may not use a deferential standard in the
municipality's favor; and
(B) is not limited to determining whether a
decision of the board is illegal.
(l) A person seeking additional time to operate under
Subsection (c)(2) who appeals the decision of the municipality or
board of adjustment may continue to use the property in the same
manner as before the use became nonconforming pending the appeal
unless an official of the body who made the decision certifies in
writing to the entity 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. In
that case, continued nonconforming use of the property may be
stayed only by a restraining order granted by the entity with
jurisdiction over the appeal, after notice to the official, if due
cause is shown.
(m) If following an appeal it is determined that the amount
of compensation that a person is ultimately entitled to under this
section is different from the amount initially received under
Subsection (c)(1), the entity with jurisdiction over the appeal
shall order additional compensation to the person or reimbursement
to the municipality, as appropriate.
(n) If following an appeal it is determined that the amount
of additional time to operate the nonconforming use that a person
is ultimately entitled to under this section is different from the
amount initially received under Subsection (c)(2), the entity with
jurisdiction over the appeal shall order additional or less time to
the person, as appropriate.
(o) An owner or lessee of the real property may waive the
rights and remedies provided by this section by notifying the
municipality in writing of the waiver.
(p) This section does not apply to a nonconforming use that
has been intentionally abandoned for six months or more.
(q) A municipality's or board of adjustment's immunity from
suit and liability is waived in an action brought by a property
owner or lessee to enforce the rights and remedies under this
section.
SECTION 3. (a) The changes in law made by this Act apply to
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 that could result in
a current conforming use of a property becoming 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 nonconforming use to cease operation due to its
nonconformity with the property's current zoning.
(b) Subsection (a)(2) of this section applies to a property
even if the governing body or a board, commission, department, or
official of the municipality is required to make a determination,
such as determining the nonconforming use has an adverse effect,
before the nonconforming use is required to cease operation.
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.