By Walker                                             H.B. No. 2117
         77R3401 PAM-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the imposition by a municipality of a moratorium on
 1-3     property development in certain circumstances.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1. Chapter 212, Local Government Code, is amended by
 1-6     adding Subchapter E to read as follows:
 1-7        SUBCHAPTER E.  MORATORIUM ON PROPERTY DEVELOPMENT IN CERTAIN
 1-8                                CIRCUMSTANCES
 1-9           Sec. 212.131.  DEFINITION. In this subchapter, "essential
1-10     public facilities" means water or sewer facilities or street
1-11     improvements provided by a municipality or private utility.
1-12           Sec. 212.132.  MORATORIUM ON PROPERTY DEVELOPMENT. (a)  For
1-13     purposes of this subchapter, a municipality is considered to have
1-14     imposed a moratorium on property development if the municipality
1-15     routinely delays the issuance of or stops issuing permits,
1-16     authorizations, or approvals necessary for the subdivision of, site
1-17     planning of, or construction on real property.
1-18           (b)  A municipality is not considered to have imposed a
1-19     moratorium on property development if the municipality denies or
1-20     delays a permit, authorization, or approval because the permit,
1-21     authorization, or approval is inconsistent with applicable
1-22     statutes, rules, or ordinances, including zoning ordinances.
1-23           Sec. 212.133.  PROCEDURE FOR ADOPTING MORATORIUM.  A
1-24     municipality may not adopt a moratorium on property development
 2-1     unless the municipality:
 2-2                 (1)  complies with the notice and hearing procedures
 2-3     prescribed by Section 212.134; and
 2-4                 (2)  makes written findings as provided by Section
 2-5     212.135.
 2-6           Sec. 212.134.  NOTICE AND PUBLIC HEARING REQUIREMENTS. (a)
 2-7     Before a moratorium on property development may be imposed, a
 2-8     municipality must conduct public hearings as provided by this
 2-9     section.
2-10           (b)  A public hearing must provide municipal residents and
2-11     affected parties an opportunity to be heard.  The municipality must
2-12     publish notice of the time and place of a hearing in a newspaper of
2-13     general circulation in the municipality before the 15th day before
2-14     the date of the hearing.
2-15           (c)  One public hearing must be held before the governing
2-16     body of the municipality.  Another public hearing must be held
2-17     before the municipal zoning commission, if the municipality has a
2-18     zoning commission.
2-19           (d)  If a general-law municipality does not have a zoning
2-20     commission, two public hearings separated by at least 14 days must
2-21     be held before the governing body of the municipality.
2-22           (e)  Before an ordinance adopting a moratorium may be
2-23     imposed, the ordinance must be given at least two readings by the
2-24     governing body of the municipality.  The readings must be separated
2-25     by at least seven days.
2-26           Sec. 212.135.  JUSTIFICATION FOR MORATORIUM; WRITTEN FINDINGS
2-27     REQUIRED. (a)  If a municipality adopts a moratorium on property
 3-1     development, the moratorium may be justified by demonstrating a
 3-2     need to prevent a shortage of essential public facilities that
 3-3     would otherwise occur during the effective period of the
 3-4     moratorium.  The municipality must issue written findings based on
 3-5     reasonably available information.  The written findings must
 3-6     include a summary of:
 3-7                 (1)  evidence demonstrating the extent of need beyond
 3-8     the estimated capacity of existing essential public facilities that
 3-9     is expected to result from new property development, including
3-10     identifying:
3-11                       (A)  any essential public facilities currently
3-12     operating beyond capacity;
3-13                       (B)  the portion of that capacity committed to
3-14     development; and
3-15                       (C)  the impact fees allocated to address the
3-16     need;
3-17                 (2)  evidence demonstrating that the moratorium is
3-18     reasonably limited to:
3-19                       (A)  areas of the municipality where a shortage
3-20     of essential public facilities would otherwise occur; and
3-21                       (B)  property that has not been approved for
3-22     development because of the insufficiency of existing essential
3-23     public facilities; and
3-24                 (3)  evidence demonstrating that the housing and
3-25     economic development needs of the affected area have been
3-26     accommodated as much as possible by any programs that allocate
3-27     remaining essential public facilities capacity.
 4-1           (b)  A moratorium that is not based on a shortage of
 4-2     essential public facilities may be justified only by demonstrating
 4-3     a compelling need for other public facilities, including police and
 4-4     fire facilities.  For purposes of this subsection, a compelling
 4-5     need for public facilities is established if the failure to provide
 4-6     those public facilities would result in a clear and imminent danger
 4-7     to public health and safety.  The municipality must issue written
 4-8     findings based on reasonably available information.  The written
 4-9     findings must include a summary of:
4-10                 (1)  evidence demonstrating that applying existing
4-11     development ordinances or regulations and other applicable law is
4-12     inadequate to prevent irrevocable public harm from development in
4-13     affected geographical areas;
4-14                 (2)  evidence demonstrating that the moratorium is
4-15     sufficiently limited to ensure that a needed supply of affected
4-16     housing types and the supply of commercial and industrial
4-17     facilities within or in proximity of the municipality are not
4-18     unreasonably restricted by the adoption of the moratorium;
4-19                 (3)  evidence demonstrating that alternative methods of
4-20     achieving the objectives of the moratorium are unsatisfactory;
4-21                 (4)  evidence demonstrating that the public harm
4-22     resulting from failing to impose a moratorium outweighs the adverse
4-23     impact on other affected local governments resulting from imposing
4-24     the moratorium, including public harm resulting from:
4-25                       (A)  shifts in demand for housing, economic
4-26     development, public facilities and services, and property suitable
4-27     for development; and
 5-1                       (B)  the overall impact of the moratorium on
 5-2     population distribution; and
 5-3                 (5)  evidence demonstrating that the municipality has
 5-4     developed a working plan and time schedule for achieving the
 5-5     objectives of the moratorium.
 5-6           Sec. 212.136.  EXPIRATION OF MORATORIUM; EXTENSION. (a)  A
 5-7     moratorium adopted under this subchapter expires on the 120th day
 5-8     after the date the moratorium is adopted unless the municipality
 5-9     extends the moratorium by:
5-10                 (1)  holding a public hearing on the proposed extension
5-11     of the moratorium; and
5-12                 (2)  adopting written findings that:
5-13                       (A)  identify the problem requiring the need for
5-14     extending the moratorium;
5-15                       (B)  describe the reasonable progress made to
5-16     alleviate the problem; and
5-17                       (C)  specify a definite duration for the renewal
5-18     period of the moratorium.
5-19           (b)  A municipality proposing an extension of a moratorium
5-20     must publish notice in a newspaper of general circulation in the
5-21     municipality not later than the 30th day before the date of the
5-22     hearing required by Subsection (a).
5-23           Sec. 212.137.  WAIVER PROCEDURES REQUIRED. A moratorium
5-24     adopted under this subchapter must provide a procedure that permits
5-25     a landowner to apply for a waiver from the moratorium relating to
5-26     the landowner's property by:
5-27                 (1)  claiming a right obtained under a development
 6-1     agreement;
 6-2                 (2)  claiming a protected or vested right; or
 6-3                 (3)  providing the public facilities that are the
 6-4     subject of the moratorium at the landowner's cost.
 6-5           Sec. 212.138.  JUDICIAL REVIEW. (a)  A landowner aggrieved by
 6-6     a municipality's adoption of a moratorium under this subchapter may
 6-7     file an action in district court to contest the adoption of the
 6-8     moratorium not later than the 30th day after the date the ordinance
 6-9     imposing the moratorium is adopted.
6-10           (b)  The court shall award  to the prevailing party in an
6-11     action under this section reasonable attorney's fees incurred in
6-12     the trial and appeal of the action.
6-13           Sec. 212.139.  EFFECT ON OTHER LAW. A moratorium adopted
6-14     under this subchapter does not affect the rights acquired under
6-15     Chapter 245.
6-16           SECTION 2. Section 395.076, Local Government Code, is amended
6-17     to read as follows:
6-18           Sec. 395.076.  MORATORIUM ON DEVELOPMENT PROHIBITED. A
6-19     moratorium may not be placed on new development for the purpose of
6-20     awaiting the completion of all or any part of the process necessary
6-21     to develop, adopt, or update land use assumptions, a capital
6-22     improvements plan, or an [the] impact fee.
6-23           SECTION 3.  This Act takes effect immediately if it receives
6-24     a vote of two-thirds of all the members elected to each house, as
6-25     provided by Section 39, Article III, Texas Constitution.  If this
6-26     Act does not receive the vote necessary for immediate effect, this
6-27     Act takes effect September 1, 2001.