By Kuempel, Bosse, et al. H.B. No. 1704 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the approval of certain permit applications by local 1-3 governments. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. FINDINGS; INTENT. (a) The legislature finds 1-6 that the former Subchapter I, Chapter 481, Government Code, 1-7 relating to state and local permits, originally enacted by Section 1-8 1, Chapter 374, Acts of the 70th Legislature, Regular Session, 1-9 1987, and subsequently amended by Section 3.01, Chapter 4, Acts of 1-10 the 71st Legislature, Regular Session, 1989, Section 2, Chapter 1-11 118, Acts of the 71st Legislature, Regular Session, 1989, and 1-12 Section 1, Chapter 794, Acts of the 74th Legislature, Regular 1-13 Session, 1995, was inadvertently repealed by Section 51(b), Chapter 1-14 1041, Acts of the 75th Legislature, Regular Session, 1997. 1-15 (b) The legislature finds that the repeal of former 1-16 Subchapter I, Chapter 481, Government Code, which became effective 1-17 September 1, 1997, resulted in the reestablishment of 1-18 administrative and legislative practices that often result in 1-19 unnecessary governmental regulatory uncertainty that inhibits the 1-20 economic development of the state and increases the cost of housing 1-21 and other forms of land development and often resulted in the 1-22 repeal of previously approved permits causing decreased property 1-23 and related values, bankruptcies, and failed projects. 1-24 (c) The legislature finds that the restoration of 2-1 requirements relating to the processing and issuance of permits and 2-2 approvals by local governmental regulatory agencies is necessary to 2-3 minimize to the extent possible the effect of the inadvertent 2-4 repeal of the former Subchapter I, Chapter 481, Government Code, 2-5 and to safeguard the general economy and welfare of the state and 2-6 to protect property rights. 2-7 (d) It is the intent of the legislature that no project, 2-8 permit, or series of permits that was protected by former 2-9 Subchapter I, Chapter 481, Government Code, be prejudiced by or 2-10 required or allowed to expire because of the repeal of former 2-11 Subchapter I or an action taken by a regulatory agency after the 2-12 repeal. 2-13 SECTION 2. AMENDMENT. Subtitle C, Title 7, Local Government 2-14 Code, is amended by adding Chapter 245 to read as follows: 2-15 CHAPTER 245. ISSUANCE OF LOCAL PERMITS 2-16 Sec. 245.001. DEFINITIONS. In this chapter: 2-17 (1) "Permit" means a license, certificate, approval, 2-18 registration, consent, permit, or other form of authorization 2-19 required by law, rule, regulation, order, or ordinance that a 2-20 person must obtain to perform an action or initiate, continue, or 2-21 complete a project for which the permit is sought. 2-22 (2) "Political subdivision" means a political 2-23 subdivision of the state, including a county, a school district, or 2-24 a municipality. 2-25 (3) "Project" means an endeavor over which a 2-26 regulatory agency exerts its jurisdiction and for which one or more 2-27 permits are required to initiate, continue, or complete the 3-1 endeavor. 3-2 (4) "Regulatory agency" means the governing body of, 3-3 or a bureau, department, division, board, commission, or other 3-4 agency of, a political subdivision acting in its capacity of 3-5 processing, approving, or issuing a permit. 3-6 Sec. 245.002. UNIFORMITY OF REQUIREMENTS. (a) Each 3-7 regulatory agency shall consider the approval, disapproval, or 3-8 conditional approval of an application for a permit solely on the 3-9 basis of any orders, regulations, ordinances, rules, expiration 3-10 dates, or other properly adopted requirements in effect at the time 3-11 the original application for the permit is filed. 3-12 (b) If a series of permits is required for a project, the 3-13 orders, regulations, ordinances, rules, expiration dates, or other 3-14 properly adopted requirements in effect at the time the original 3-15 application for the first permit in that series is filed shall be 3-16 the sole basis for consideration of all subsequent permits required 3-17 for the completion of the project. All permits required for the 3-18 project are considered to be a single series of permits. 3-19 Preliminary plans and related subdivision plats, site plans, and 3-20 all other development permits for land covered by the preliminary 3-21 plans or subdivision plats are considered collectively to be one 3-22 series of permits for a project. 3-23 (c) After an application for a project is filed, a 3-24 regulatory agency may not shorten the duration of any permit 3-25 required for the project. 3-26 (d) Notwithstanding any provision of this chapter to the 3-27 contrary, a permit holder may take advantage of recorded 4-1 subdivision plat notes, recorded restrictive covenants required by 4-2 a regulatory agency, or a change to the laws, rules, regulations, 4-3 or ordinances of a regulatory agency that enhance or protect the 4-4 project, including changes that lengthen the effective life of the 4-5 permit after the date the application for the permit was made, 4-6 without forfeiting any rights under this chapter. 4-7 Sec. 245.003. APPLICABILITY OF CHAPTER. This chapter 4-8 applies only to a project in progress on or commenced after 4-9 September 1, 1997. For purposes of this chapter a project was in 4-10 progress on September 1, 1997, if: 4-11 (1) before September 1, 1997: 4-12 (A) a regulatory agency approved or issued one 4-13 or more permits for the project; or 4-14 (B) an application for a permit for the project 4-15 was filed with a regulatory agency; and 4-16 (2) on or after September 1, 1997, a regulatory agency 4-17 enacts, enforces, or otherwise imposes: 4-18 (A) an order, regulation, ordinance, or rule 4-19 that in effect retroactively changes the duration of a permit for 4-20 the project; 4-21 (B) a deadline for obtaining a permit required 4-22 to continue or complete the project that was not enforced or did 4-23 not apply to the project before September 1, 1997; or 4-24 (C) any requirement for the project that was not 4-25 applicable to or enforced on the project before September 1, 1997. 4-26 Sec. 245.004. EXEMPTIONS. This chapter does not apply to: 4-27 (1) a permit that is at least two years old, is issued 5-1 for the construction of a building or structure intended for human 5-2 occupancy or habitation, and is issued under laws, ordinances, 5-3 procedures, rules, or regulations adopting only: 5-4 (A) uniform building, fire, electrical, 5-5 plumbing, or mechanical codes adopted by a recognized national code 5-6 organization; or 5-7 (B) local amendments to those codes enacted 5-8 solely to address imminent threats of destruction of property or 5-9 injury to persons; 5-10 (2) municipal zoning regulations that do not affect 5-11 lot size, lot dimensions, lot coverage, or building size or that do 5-12 not change development permitted by a restrictive covenant required 5-13 by a municipality; 5-14 (3) regulations that specifically control only the use 5-15 of land in a municipality that does not have zoning and that do not 5-16 affect lot size, lot dimensions, lot coverage, or building size; 5-17 (4) regulations for sexually oriented businesses; 5-18 (5) municipal or county ordinances, rules, 5-19 regulations, or other requirements affecting colonias; 5-20 (6) fees imposed in conjunction with development 5-21 permits; 5-22 (7) regulations for annexation; 5-23 (8) regulations for utility connections; 5-24 (9) regulations to prevent imminent destruction of 5-25 property or injury to persons, including regulations effective only 5-26 within a flood plain established by a federal flood control program 5-27 and enacted to prevent the flooding of buildings intended for 6-1 public occupancy; or 6-2 (10) construction standards for public works located 6-3 on public lands or easements. 6-4 Sec. 245.005. DORMANT PROJECTS. Notwithstanding any other 6-5 provision of this chapter, after the first anniversary of the 6-6 effective date of this chapter, a regulatory agency may enact an 6-7 ordinance, rule, or regulation that places an expiration date on a 6-8 permit if as of the first anniversary of the effective date of this 6-9 chapter: (i) the permit does not have an expiration date; and (ii) 6-10 no progress has been made towards completion of the project. Any 6-11 ordinance, rule, or regulation enacted pursuant to this section 6-12 shall place an expiration date of no earlier than the fifth 6-13 anniversary of the effective date of this chapter. Progress 6-14 towards completion of the project shall include any one or more of 6-15 the following: 6-16 (1) an application for a final plat or plan is 6-17 submitted to a regulatory agency; 6-18 (2) a good-faith attempt is made to file with a 6-19 regulatory agency an application for a permit necessary to begin or 6-20 continue towards completion of the project; 6-21 (3) costs have been incurred for developing the 6-22 project including, without limitation, costs associated with 6-23 roadway, utility, and other infrastructure facilities designed to 6-24 serve, in whole or in part, the project (but exclusive of land 6-25 acquisition) in the aggregate amount of five percent of the most 6-26 recent appraised market value of the real property on which the 6-27 project is located; 7-1 (4) fiscal security is posted with a regulatory agency 7-2 to ensure performance of an obligation required by the regulatory 7-3 agency; or 7-4 (5) utility connection fees or impact fees for the 7-5 project have been paid to a regulatory agency. 7-6 Sec. 245.006. ENFORCEMENT OF CHAPTER. This chapter may be 7-7 enforced only through mandamus or declaratory or injunctive relief. 7-8 SECTION 3. EFFECT OF PRIOR LAW. (a) The repeal of 7-9 Subchapter I, Chapter 481, Government Code, by Section 51(b), 7-10 Chapter 1041, Acts of the 75th Legislature, Regular Session, 1997, 7-11 and any actions taken by a regulatory agency for the issuance of a 7-12 permit, as those terms are defined by Section 245.001, Local 7-13 Government Code, as added by Section 2 of this Act, after that 7-14 repeal and before the effective date of this Act, shall not cause 7-15 or require the expiration or termination of a project, permit, or 7-16 series of permits to which Section 2 of this Act applies. An 7-17 action by a regulatory agency that violates this section is void to 7-18 the extent necessary to give effect to this section. 7-19 (b) This Act does not affect the rights or remedies of any 7-20 person or entity under a final judgment rendered by a court before 7-21 the effective date of this Act, or in any litigation pending in a 7-22 court on the effective date of this Act, involving an 7-23 interpretation of Subchapter I, Chapter 481, Government Code, as it 7-24 existed before its repeal by the 75th Legislature. 7-25 SECTION 4. CONSTRUCTION OF ACT. Nothing in this Act shall 7-26 be construed to apply to a condition or provision of an ordinance, 7-27 rule, or regulation that is enacted by a regulatory agency, as that 8-1 term is defined by Section 245.001, Local Government Code, as added 8-2 by Section 2 of this Act, which is specifically required by 8-3 uniformly applicable regulations adopted by a state agency after 8-4 the effective date of this Act. 8-5 SECTION 5. EFFECT ON COASTAL ZONE MANAGEMENT ACT. Nothing 8-6 in this Act shall be construed to: 8-7 (1) limit or otherwise affect the authority of a 8-8 municipality, a county, another political subdivision, the state, 8-9 or an agency of the state, with respect to the implementation or 8-10 enforcement of an ordinance, a rule, or a statutory standard of a 8-11 program, plan, or ordinance that was adopted under the federal 8-12 Coastal Zone Management Act of 1972 (16 U.S.C. Section 1451 et 8-13 seq.) or its subsequent amendments or Subtitle E, Title 2, Natural 8-14 Resources Code; or 8-15 (2) apply to a permit, order, rule, regulation, or 8-16 other action issued, adopted, or undertaken by a municipality, a 8-17 county, another political subdivision, the state, or an agency of 8-18 the state in connection with the federal Coastal Zone Management 8-19 Act of 1972 (16 U.S.C. Section 1451 et seq.) or its subsequent 8-20 amendments or Subtitle E, Title 2, Natural Resources Code. 8-21 SECTION 6. EMERGENCY. The importance of this legislation 8-22 and the crowded condition of the calendars in both houses create an 8-23 emergency and an imperative public necessity that the 8-24 constitutional rule requiring bills to be read on three several 8-25 days in each house be suspended, and this rule is hereby suspended, 8-26 and that this Act take effect and be in force from and after its 8-27 passage, and it is so enacted.