1-1 By: Kuempel, Bosse, et al. H.B. No. 1704 1-2 (Senate Sponsor - Shapiro) 1-3 (In the Senate - Received from the House April 22, 1999; 1-4 April 23, 1999, read first time and referred to Committee on State 1-5 Affairs; April 27, 1999, reported favorably by the following vote: 1-6 Yeas 6, Nays 0; April 27, 1999, sent to printer.) 1-7 A BILL TO BE ENTITLED 1-8 AN ACT 1-9 relating to the approval of certain permit applications by local 1-10 governments. 1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-12 SECTION 1. FINDINGS; INTENT. (a) The legislature finds 1-13 that the former Subchapter I, Chapter 481, Government Code, 1-14 relating to state and local permits, originally enacted by Section 1-15 1, Chapter 374, Acts of the 70th Legislature, Regular Session, 1-16 1987, and subsequently amended by Section 3.01, Chapter 4, Acts of 1-17 the 71st Legislature, Regular Session, 1989, Section 2, Chapter 1-18 118, Acts of the 71st Legislature, Regular Session, 1989, and 1-19 Section 1, Chapter 794, Acts of the 74th Legislature, Regular 1-20 Session, 1995, was inadvertently repealed by Section 51(b), Chapter 1-21 1041, Acts of the 75th Legislature, Regular Session, 1997. 1-22 (b) The legislature finds that the repeal of former 1-23 Subchapter I, Chapter 481, Government Code, which became effective 1-24 September 1, 1997, resulted in the reestablishment of 1-25 administrative and legislative practices that often result in 1-26 unnecessary governmental regulatory uncertainty that inhibits the 1-27 economic development of the state and increases the cost of housing 1-28 and other forms of land development and often resulted in the 1-29 repeal of previously approved permits causing decreased property 1-30 and related values, bankruptcies, and failed projects. 1-31 (c) The legislature finds that the restoration of 1-32 requirements relating to the processing and issuance of permits and 1-33 approvals by local governmental regulatory agencies is necessary to 1-34 minimize to the extent possible the effect of the inadvertent 1-35 repeal of the former Subchapter I, Chapter 481, Government Code, 1-36 and to safeguard the general economy and welfare of the state and 1-37 to protect property rights. 1-38 (d) It is the intent of the legislature that no project, 1-39 permit, or series of permits that was protected by former 1-40 Subchapter I, Chapter 481, Government Code, be prejudiced by or 1-41 required or allowed to expire because of the repeal of former 1-42 Subchapter I or an action taken by a regulatory agency after the 1-43 repeal. 1-44 SECTION 2. AMENDMENT. Subtitle C, Title 7, Local Government 1-45 Code, is amended by adding Chapter 245 to read as follows: 1-46 CHAPTER 245. ISSUANCE OF LOCAL PERMITS 1-47 Sec. 245.001. DEFINITIONS. In this chapter: 1-48 (1) "Permit" means a license, certificate, approval, 1-49 registration, consent, permit, or other form of authorization 1-50 required by law, rule, regulation, order, or ordinance that a 1-51 person must obtain to perform an action or initiate, continue, or 1-52 complete a project for which the permit is sought. 1-53 (2) "Political subdivision" means a political 1-54 subdivision of the state, including a county, a school district, or 1-55 a municipality. 1-56 (3) "Project" means an endeavor over which a 1-57 regulatory agency exerts its jurisdiction and for which one or more 1-58 permits are required to initiate, continue, or complete the 1-59 endeavor. 1-60 (4) "Regulatory agency" means the governing body of, 1-61 or a bureau, department, division, board, commission, or other 1-62 agency of, a political subdivision acting in its capacity of 1-63 processing, approving, or issuing a permit. 1-64 Sec. 245.002. UNIFORMITY OF REQUIREMENTS. (a) Each 2-1 regulatory agency shall consider the approval, disapproval, or 2-2 conditional approval of an application for a permit solely on the 2-3 basis of any orders, regulations, ordinances, rules, expiration 2-4 dates, or other properly adopted requirements in effect at the time 2-5 the original application for the permit is filed. 2-6 (b) If a series of permits is required for a project, the 2-7 orders, regulations, ordinances, rules, expiration dates, or other 2-8 properly adopted requirements in effect at the time the original 2-9 application for the first permit in that series is filed shall be 2-10 the sole basis for consideration of all subsequent permits required 2-11 for the completion of the project. All permits required for the 2-12 project are considered to be a single series of permits. 2-13 Preliminary plans and related subdivision plats, site plans, and 2-14 all other development permits for land covered by the preliminary 2-15 plans or subdivision plats are considered collectively to be one 2-16 series of permits for a project. 2-17 (c) After an application for a project is filed, a 2-18 regulatory agency may not shorten the duration of any permit 2-19 required for the project. 2-20 (d) Notwithstanding any provision of this chapter to the 2-21 contrary, a permit holder may take advantage of recorded 2-22 subdivision plat notes, recorded restrictive covenants required by 2-23 a regulatory agency, or a change to the laws, rules, regulations, 2-24 or ordinances of a regulatory agency that enhance or protect the 2-25 project, including changes that lengthen the effective life of the 2-26 permit after the date the application for the permit was made, 2-27 without forfeiting any rights under this chapter. 2-28 Sec. 245.003. APPLICABILITY OF CHAPTER. This chapter 2-29 applies only to a project in progress on or commenced after 2-30 September 1, 1997. For purposes of this chapter a project was in 2-31 progress on September 1, 1997, if: 2-32 (1) before September 1, 1997: 2-33 (A) a regulatory agency approved or issued one 2-34 or more permits for the project; or 2-35 (B) an application for a permit for the project 2-36 was filed with a regulatory agency; and 2-37 (2) on or after September 1, 1997, a regulatory agency 2-38 enacts, enforces, or otherwise imposes: 2-39 (A) an order, regulation, ordinance, or rule 2-40 that in effect retroactively changes the duration of a permit for 2-41 the project; 2-42 (B) a deadline for obtaining a permit required 2-43 to continue or complete the project that was not enforced or did 2-44 not apply to the project before September 1, 1997; or 2-45 (C) any requirement for the project that was not 2-46 applicable to or enforced on the project before September 1, 1997. 2-47 Sec. 245.004. EXEMPTIONS. This chapter does not apply to: 2-48 (1) a permit that is at least two years old, is issued 2-49 for the construction of a building or structure intended for human 2-50 occupancy or habitation, and is issued under laws, ordinances, 2-51 procedures, rules, or regulations adopting only: 2-52 (A) uniform building, fire, electrical, 2-53 plumbing, or mechanical codes adopted by a recognized national code 2-54 organization; or 2-55 (B) local amendments to those codes enacted 2-56 solely to address imminent threats of destruction of property or 2-57 injury to persons; 2-58 (2) municipal zoning regulations that do not affect 2-59 lot size, lot dimensions, lot coverage, or building size or that do 2-60 not change development permitted by a restrictive covenant required 2-61 by a municipality; 2-62 (3) regulations that specifically control only the use 2-63 of land in a municipality that does not have zoning and that do not 2-64 affect lot size, lot dimensions, lot coverage, or building size; 2-65 (4) regulations for sexually oriented businesses; 2-66 (5) municipal or county ordinances, rules, 2-67 regulations, or other requirements affecting colonias; 2-68 (6) fees imposed in conjunction with development 2-69 permits; 3-1 (7) regulations for annexation; 3-2 (8) regulations for utility connections; 3-3 (9) regulations to prevent imminent destruction of 3-4 property or injury to persons, including regulations effective only 3-5 within a flood plain established by a federal flood control program 3-6 and enacted to prevent the flooding of buildings intended for 3-7 public occupancy; or 3-8 (10) construction standards for public works located 3-9 on public lands or easements. 3-10 Sec. 245.005. DORMANT PROJECTS. Notwithstanding any other 3-11 provision of this chapter, after the first anniversary of the 3-12 effective date of this chapter, a regulatory agency may enact an 3-13 ordinance, rule, or regulation that places an expiration date on a 3-14 permit if as of the first anniversary of the effective date of this 3-15 chapter: (i) the permit does not have an expiration date; and (ii) 3-16 no progress has been made towards completion of the project. Any 3-17 ordinance, rule, or regulation enacted pursuant to this section 3-18 shall place an expiration date of no earlier than the fifth 3-19 anniversary of the effective date of this chapter. Progress 3-20 towards completion of the project shall include any one or more of 3-21 the following: 3-22 (1) an application for a final plat or plan is 3-23 submitted to a regulatory agency; 3-24 (2) a good-faith attempt is made to file with a 3-25 regulatory agency an application for a permit necessary to begin or 3-26 continue towards completion of the project; 3-27 (3) costs have been incurred for developing the 3-28 project including, without limitation, costs associated with 3-29 roadway, utility, and other infrastructure facilities designed to 3-30 serve, in whole or in part, the project (but exclusive of land 3-31 acquisition) in the aggregate amount of five percent of the most 3-32 recent appraised market value of the real property on which the 3-33 project is located; 3-34 (4) fiscal security is posted with a regulatory agency 3-35 to ensure performance of an obligation required by the regulatory 3-36 agency; or 3-37 (5) utility connection fees or impact fees for the 3-38 project have been paid to a regulatory agency. 3-39 Sec. 245.006. ENFORCEMENT OF CHAPTER. This chapter may be 3-40 enforced only through mandamus or declaratory or injunctive relief. 3-41 SECTION 3. EFFECT OF PRIOR LAW. (a) The repeal of 3-42 Subchapter I, Chapter 481, Government Code, by Section 51(b), 3-43 Chapter 1041, Acts of the 75th Legislature, Regular Session, 1997, 3-44 and any actions taken by a regulatory agency for the issuance of a 3-45 permit, as those terms are defined by Section 245.001, Local 3-46 Government Code, as added by Section 2 of this Act, after that 3-47 repeal and before the effective date of this Act, shall not cause 3-48 or require the expiration or termination of a project, permit, or 3-49 series of permits to which Section 2 of this Act applies. An 3-50 action by a regulatory agency that violates this section is void to 3-51 the extent necessary to give effect to this section. 3-52 (b) This Act does not affect the rights or remedies of any 3-53 person or entity under a final judgment rendered by a court before 3-54 the effective date of this Act, or in any litigation pending in a 3-55 court on the effective date of this Act, involving an 3-56 interpretation of Subchapter I, Chapter 481, Government Code, as it 3-57 existed before its repeal by the 75th Legislature. 3-58 SECTION 4. CONSTRUCTION OF ACT. Nothing in this Act shall 3-59 be construed to apply to a condition or provision of an ordinance, 3-60 rule, or regulation that is enacted by a regulatory agency, as that 3-61 term is defined by Section 245.001, Local Government Code, as added 3-62 by Section 2 of this Act, which is specifically required by 3-63 uniformly applicable regulations adopted by a state agency after 3-64 the effective date of this Act. 3-65 SECTION 5. EFFECT ON COASTAL ZONE MANAGEMENT ACT. Nothing 3-66 in this Act shall be construed to: 3-67 (1) limit or otherwise affect the authority of a 3-68 municipality, a county, another political subdivision, the state, 3-69 or an agency of the state, with respect to the implementation or 4-1 enforcement of an ordinance, a rule, or a statutory standard of a 4-2 program, plan, or ordinance that was adopted under the federal 4-3 Coastal Zone Management Act of 1972 (16 U.S.C. Section 1451 et 4-4 seq.) or its subsequent amendments or Subtitle E, Title 2, Natural 4-5 Resources Code; or 4-6 (2) apply to a permit, order, rule, regulation, or 4-7 other action issued, adopted, or undertaken by a municipality, a 4-8 county, another political subdivision, the state, or an agency of 4-9 the state in connection with the federal Coastal Zone Management 4-10 Act of 1972 (16 U.S.C. Section 1451 et seq.) or its subsequent 4-11 amendments or Subtitle E, Title 2, Natural Resources Code. 4-12 SECTION 6. EMERGENCY. The importance of this legislation 4-13 and the crowded condition of the calendars in both houses create an 4-14 emergency and an imperative public necessity that the 4-15 constitutional rule requiring bills to be read on three several 4-16 days in each house be suspended, and this rule is hereby suspended, 4-17 and that this Act take effect and be in force from and after its 4-18 passage, and it is so enacted. 4-19 * * * * *