79R4577 MXM-D
By: Leibowitz H.B. No. 1727
A BILL TO BE ENTITLED
AN ACT
relating to zoning regulations in certain unincorporated areas of a
county; authorizing a tax and providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 231, Local Government Code, is amended
by adding Subchapter L to read as follows:
SUBCHAPTER L. LAND USE PLANNING DISTRICTS
Sec. 231.251. DEFINITION. In this subchapter, "district"
means a land use planning district created, or proposed to be
created, under this subchapter.
Sec. 231.252. ELECTION REQUIRED TO CREATE DISTRICT OR
AUTHORIZE TAX. (a) The commissioners court of a county may call an
election on whether:
(1) to create a land use planning district in an
unincorporated area of the county; and
(2) to impose an ad valorem tax on property in the
district.
(b) The order calling the election must:
(1) define the proposed district area; and
(2) set the tax rate.
(c) The ordered election shall be held in the territory of
the proposed district.
(d) At the election, the ballots shall be prepared to permit
voting for or against the proposition: "The creation of the _______
(name of district) Land Use Planning District in _______ (name of
county)." The district is created only if a majority of the votes
cast at the election approve the proposition.
(e) If an ad valorem tax is to be imposed on property in the
district, the ballot shall be prepared to permit voting for or
against a separate proposition: "Authorizing the _______ (name of
district) Land Use Planning District in _____ (name of county) to
assess and collect an ad valorem tax of _____ (rate of the tax)
cents per $100 valuation of taxable property in the district to
finance the operations of the district." The district tax may not
be imposed unless a majority of the votes cast at the election
approve the proposition authorizing the tax.
Sec. 231.253. DISTRICT AD VALOREM TAX. If approved at an
election held under this subchapter, the county may assess and
collect an ad valorem tax imposed in the district for district
purposes.
Sec. 231.254. ZONING REGULATIONS GENERALLY. If the
district is created, the commissioners court of the county may
regulate in the district:
(1) the height, number of stories, and size of
buildings and other structures;
(2) the percentage of a lot that may be occupied;
(3) the size of yards, courts, and other open spaces;
(4) population density;
(5) the location and use of buildings, other
structures, and land for business, industrial, residential, or
other purposes; and
(6) the placement of water and sewage facilities,
parks, and other public requirements.
Sec. 231.255. COMPLIANCE WITH COMPREHENSIVE PLAN. A zoning
regulation in the district must be adopted in accordance with a
comprehensive plan and must be designed to:
(1) lessen congestion in the streets and roads;
(2) secure safety from fire, panic, and other dangers;
(3) promote health and the general welfare;
(4) provide adequate light and air;
(5) prevent the overcrowding of land;
(6) avoid undue concentration of population;
(7) facilitate the adequate provision of
transportation, water, sewers, parks, and other public
requirements; and
(8) assist in developing the district into parks,
playgrounds, and recreational areas.
Sec. 231.256. PROCEDURES GOVERNING ADOPTION OF REGULATIONS
AND DISTRICT BOUNDARIES. (a) The commissioners court shall
establish procedures for adopting and enforcing zoning regulations
and zoning boundaries in the district. A regulation or boundary is
not effective until after a public hearing on the matter at which
parties in interest and citizens have an opportunity to be heard.
Before the 15th day before the date of the hearing, notice of the
time and place of the hearing must be published in a newspaper of
general circulation in the county.
(b) If a proposed change to a regulation or boundary is
protested in accordance with this subsection, the proposed change
must receive, in order to take effect, the affirmative vote of at
least three-fourths of all members of the commissioners court. The
protest must be written and signed by the owners of at least 20
percent of either:
(1) the area of the lots covered by the proposed change; or
(2) the lots immediately adjacent to the rear of the
lots covered by the proposed change and extending 200 feet from
those lots or from the street frontage of the opposite lots.
Sec. 231.257. LAND USE PLANNING BOARD. (a) The
commissioners court shall appoint a land use planning board
consisting of seven members, each of whom must reside in the
district. The board shall recommend boundaries for the original
zoning areas and appropriate zoning regulations for each area.
(b) The board shall choose a board member to serve as
presiding officer for a term set by the board. The board may at any
time choose for a particular meeting or occasion an acting
presiding officer as necessary from among its members. The board
may employ a secretary and other technical or clerical personnel.
(c) A board member is not entitled to compensation for
service on the board but may be entitled to expenses actually
incurred while serving on the board if authorized by order of the
commissioners court.
(d) The board shall make a preliminary report and hold
public hearings on that report before submitting a final report to
the commissioners court. The commissioners court may not hold a
public hearing or take action until it receives the final report.
(e) Before the 10th day before the hearing date, written
notice of each public hearing before the board on a proposed change
in a zoning classification shall be sent to:
(1) each owner of affected property or to the person
who renders the property for county taxes; and
(2) each owner of property that is located within 200
feet of property affected by the change or to the person who renders
the property for county taxes.
(f) The notice may be served by depositing it, postage paid
and properly addressed, in the United States mail.
Sec. 231.258. BOARD OF ADJUSTMENT. (a) The commissioners
court may provide for the appointment of a board of adjustment
consisting of five members. In the zoning regulations adopted
under this subchapter, the commissioners court may authorize the
board, in appropriate cases and subject to appropriate conditions
and safeguards, to make special exceptions to the terms of the
zoning regulations that are consistent with the general purpose and
intent of the regulations and in accordance with any applicable
rules contained in the regulations.
(b) Each board member is appointed to a two-year term and
must reside in the district. The commissioners court may remove a
board member for cause on a written charge after a public hearing.
A vacancy on the board shall be filled for the unexpired term.
(c) The board shall adopt rules in accordance with any order
adopted under this subchapter. Board meetings are held at the call
of the presiding officer and at other times as determined by the
board. The presiding officer or acting presiding officer may
administer oaths and compel the attendance of witnesses. The board
shall open all board meetings to the public.
(d) The board shall keep minutes of its proceedings that
indicate the vote of each member on each question or the fact that a
member is absent or fails to vote. The board shall keep records of
its examinations and other official actions. The minutes and
records shall be filed immediately in the board's office and are
public records.
Sec. 231.259. AUTHORITY OF BOARD OF ADJUSTMENT. (a) The
board of adjustment may:
(1) hear and decide an appeal that alleges error in an
order, requirement, decision, or determination made by an
administrative official in the enforcement of this subchapter or a
zoning regulation;
(2) hear and decide special exceptions to the terms of
a zoning regulation as required by the regulation; and
(3) authorize in specific cases a variance from the
terms of a zoning regulation if:
(A) the variance is not contrary to the public
interest;
(B) because of special conditions, a literal
enforcement of the regulation would result in unnecessary hardship;
and
(C) the spirit of the regulation is observed and
substantial justice is done.
(b) In exercising its authority under Subsection (a)(1),
the board may reverse or affirm, in whole or in part, or modify the
administrative official's order, requirement, decision, or
determination from which an appeal is taken and make the correct
order, requirement, decision, or determination, and for that
purpose the board has the same authority as the administrative
official.
(c) The concurring vote of four board members is necessary
to:
(1) reverse an order, requirement, decision, or
determination of an administrative official;
(2) decide in favor of an applicant on a matter on
which the board is required to pass under a zoning regulation; or
(3) authorize a variation in a zoning regulation.
Sec. 231.260. APPEAL TO BOARD OF ADJUSTMENT. (a) Any of
the following persons may appeal to the board of adjustment a
decision made by an administrative official:
(1) a person aggrieved by the decision; or
(2) any officer, department, board, or bureau of the
county or of a municipality affected by the decision.
(b) The appellant must file with the board and the official
from whom the appeal is taken a notice of appeal specifying the
grounds for the appeal. The appeal must be filed within a
reasonable time as determined by board rules. On receiving the
notice, the official from whom the appeal is taken shall
immediately transmit to the board all the papers constituting the
record of the action that is appealed.
(c) An appeal stays all proceedings in furtherance of the
action that is appealed unless the official from whom the appeal is
taken certifies in writing to the board facts supporting the
official's opinion that a stay would cause imminent peril to life or
property. In that case, the proceedings may only be stayed by a
restraining order granted by the board or a court of record on
application, after notice to the official, if due cause is shown.
(d) The board shall set a reasonable time for the appeal
hearing and shall give public notice of the hearing and due notice
to the parties in interest. A party may appear at the appeal
hearing in person or by agent or attorney. The board shall decide
the appeal within a reasonable time.
Sec. 231.261. JUDICIAL REVIEW OF BOARD OF ADJUSTMENT
DECISION. (a) Any of the following persons may present to a court a
verified petition stating that the decision of the board of
adjustment is illegal in whole or in part and specifying the grounds
of the illegality:
(1) a person aggrieved by a board decision;
(2) a taxpayer; or
(3) an officer, department, board, or bureau of the
county or of a municipality.
(b) The petition must be presented within 10 days after the
date the decision is filed in the board's office.
(c) On the presentation of the petition, the court may grant
a writ of certiorari directed to the board to review the board's
decision. The writ must indicate the time within which the board's
return must be made and served on the petitioner's attorney, which
must be after 10 days and may be extended by the court. Granting of
the writ does not stay the proceedings on the decision under appeal,
but on application and after notice to the board the court may grant
a restraining order if due cause is shown.
(d) The board's return must be verified and must concisely
state any pertinent and material facts that show the grounds of the
decision under appeal. The board is not required to return the
original documents on which the board acted but may return
certified or sworn copies of the documents or parts of the documents
as required by the writ.
(e) If at the hearing the court determines that testimony is
necessary for the proper disposition of the matter, it may take
evidence or appoint a referee to take evidence as directed. The
referee shall report the evidence to the court with the referee's
findings of fact and conclusions of law. The referee's report
constitutes a part of the proceedings on which the court shall make
its decision.
(f) The court may reverse or affirm, in whole or in part, or
modify the decision that is appealed. Costs may not be assessed
against the board unless the court determines that the board acted
with gross negligence, in bad faith, or with malice in making its
decision.
Sec. 231.262. ENFORCEMENT; PENALTY; REMEDIES. (a) The
commissioners court may adopt orders to enforce this subchapter, an
order adopted under this subchapter, or a zoning regulation.
(b) A person commits an offense if the person violates this
subchapter, an order adopted under this subchapter, or a zoning
regulation. An offense under this subsection is a Class B
misdemeanor.
(c) A person who violates this subchapter, an order adopted
under this subchapter, or a zoning regulation is liable to the
county for a civil penalty in an amount not to exceed $1,000 for
each violation. Each day a violation occurs is a separate
violation.
(d) If a building or other structure is erected,
constructed, reconstructed, altered, repaired, converted, or
maintained or if a building, other structure, or land is used in
violation of this subchapter, an order adopted under this
subchapter, or a zoning regulation, the appropriate county
authority, in addition to other remedies, may institute an action
to:
(1) prevent the unlawful erection, construction,
reconstruction, alteration, repair, conversion, maintenance, or
use;
(2) restrain, correct, or abate the violation;
(3) prevent the occupancy of the building, structure,
or land; or
(4) prevent any illegal act, conduct, business, or use
on or about the premises.
Sec. 231.263. CONFLICT WITH OTHER LAWS; EXCEPTIONS. (a) If
a zoning regulation adopted under this subchapter requires a
greater width or size of a yard, court, or other open space,
requires a lower building height or fewer number of stories for a
building, requires a greater percentage of lot to be left
unoccupied, or otherwise imposes higher standards than those
required under another statute or local order or regulation, the
regulation adopted under this subchapter controls. If the other
statute or local order or regulation imposes higher standards, that
statute, order, or regulation controls.
(b) This subchapter does not authorize a commissioners
court to require the removal or destruction of property that exists
at the time the court implements this subchapter.
(c) This subchapter, an order adopted under this
subchapter, or a zoning regulation does not apply to the location,
construction, maintenance, or use of central office buildings used
by a person engaging in providing telephone service to the public or
equipment used in connection with those buildings or as part of the
telephone system as necessary to furnish telephone service to the
public.
SECTION 2. 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, 2005.