79R12762 E
By: Cook of Colorado, Cook of Navarro H.B. No. 2833
Substitute the following for H.B. No. 2833:
By: Mowery C.S.H.B. No. 2833
A BILL TO BE ENTITLED
AN ACT
relating to the protection of private real property from regulatory
takings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2007.002, Government Code, is amended by
amending Subdivision (5) and adding Subdivision (6) to read as
follows:
(5) "Taking" means:
(A) a governmental action or series of actions
that affects private real property, in whole or in part or
temporarily or permanently, in a manner that requires the
governmental entity to compensate the private real property owner
as provided by the Fifth and Fourteenth Amendments to the United
States Constitution or Section 17 or 19, Article I, Texas
Constitution; [or]
(B) a governmental action or series of actions
that:
(i) affects an owner's private real
property that is the subject of the governmental action, in whole or
in part or temporarily or permanently, in a manner that restricts or
limits the owner's right to the property that would otherwise exist
in the absence of the governmental action; and
(ii) is the producing cause of a reduction
of at least 25 percent in the market value of the affected private
real property, determined by comparing the market value of the
property as if the governmental action is not in effect and the
market value of the property determined as if the governmental
action is in effect; or
(C) a governmental action or series of actions
that has the effect of limiting the overall impervious cover of any
development or use of an owner's private real property to less than
45 percent of the surface area of the property, excluding any
portion of the property that is within the 100-year floodplain as
determined by the most recent maps published by the Federal
Emergency Management Agency or that slopes more than 35 percent.
(6) "Impervious cover" means impermeable surfaces,
such as pavement or rooftops, that prevent the infiltration of
water into the soil. The term does not include a rainwater
collections system for a domestic water supply.
SECTION 2. Section 2007.003, Government Code, is amended to
read as follows:
Sec. 2007.003. APPLICABILITY. (a) This chapter applies
only to the following governmental actions:
(1) the adoption or issuance of an ordinance, rule,
regulatory requirement, resolution, policy, guideline, or similar
measure;
(2) an action that imposes a physical invasion or
requires a dedication or exaction of private real property; and
(3) [an action by a municipality that has effect in the
extraterritorial jurisdiction of the municipality, excluding
annexation, and that enacts or enforces an ordinance, rule,
regulation, or plan that does not impose identical requirements or
restrictions in the entire extraterritorial jurisdiction of the
municipality; and
[(4)] enforcement of a governmental action listed in
Subdivisions (1) and (2) [through (3)], whether the enforcement of
the governmental action is accomplished through the use of
permitting, citations, orders, judicial or quasi-judicial
proceedings, or other similar means.
(b) This chapter does not apply to the following
governmental actions:
(1) [an action by a municipality except as provided by
Subsection (a)(3);
[(2)] a lawful forfeiture or seizure of contraband as
defined by Article 59.01, Code of Criminal Procedure;
(2) [(3)] a lawful seizure of property as evidence of
a crime or violation of law;
(3) [(4) an action, including an action of a political
subdivision, that is reasonably taken to fulfill an obligation
mandated by federal law or an action of a political subdivision that
is reasonably taken to fulfill an obligation mandated by state law;
[(5)] the discontinuance or modification of a program
or regulation that provides a unilateral expectation that does not
rise to the level of a recognized interest in private real property;
(4) [(6) an action taken to prohibit or restrict a
condition or use of private real property if the governmental
entity proves that the condition or use constitutes a public or
private nuisance as defined by background principles of nuisance
and property law of this state;
[(7) an action taken out of a reasonable good faith
belief that the action is necessary to prevent a grave and immediate
threat to life or property;
[(8)] a formal exercise of the power of eminent
domain;
(5) [(9)] an action taken under a state mandate to
prevent waste of oil and gas, protect correlative rights of owners
of interests in oil or gas, or prevent pollution related to oil and
gas activities;
(6) [(10)] a rule or proclamation adopted for the
purpose of regulating water safety, hunting, fishing, or control of
nonindigenous or exotic aquatic resources;
(7) [(11)] an action taken by a political
subdivision[:
[(A) to regulate construction in an area
designated under law as a floodplain;
[(B) to regulate on-site sewage facilities;
[(C) under the political subdivisions's
statutory authority to prevent waste or protect rights of owners of
interest in groundwater; or
[(D)] to prevent subsidence;
(8) [(12)] the appraisal of property for purposes of
ad valorem taxation; or
(9) [(13) an action that:
[(A) is taken in response to a real and
substantial threat to public health and safety;
[(B) is designed to significantly advance the
health and safety purpose; and
[(C) does not impose a greater burden than is
necessary to achieve the health and safety purpose; or
[(14)] an action or rulemaking undertaken by the
Public Utility Commission of Texas to order or require the location
or placement of telecommunications equipment owned by another party
on the premises of a certificated local exchange company.
(c) This chapter does not apply to the following
governmental actions, if the actions do not affect building size,
lot size, or impervious cover:
(1) an action that is reasonably taken to fulfill an
obligation mandated by federal or state law;
(2) an action taken to prohibit or restrict a
condition or use of private real property if the governmental
entity proves that the condition or use constitutes a public or
private nuisance as defined by background principles of nuisance
and property law of this state as they existed on September 1, 2005;
(3) an action taken based on reasonable evidence that
the action is necessary to prevent a grave and immediate threat to
life or property;
(4) an action taken by a political subdivision to
regulate construction in an area designated under law as a
floodplain;
(5) an action that:
(A) is taken in response to a threat to public
health and safety;
(B) is designed to significantly advance the
health and safety purpose; and
(C) does not impose a greater burden than is
necessary to achieve the health and safety purpose; or
(6) an action taken to prevent waste or protect rights
of owners of an interest in groundwater. [Sections 2007.021 and
2007.022 do not apply to the enforcement or implementation of a
statute, ordinance, order, rule, regulation, requirement,
resolution, policy, guideline, or similar measure that was in
effect September 1, 1995, and that prevents the pollution of a
reservoir or an aquifer designated as a sole source aquifer under
the federal Safe Drinking Water Act (42 U.S.C. Section
300h-3(e)).]
(d) This chapter does not apply to a municipality's exercise
of zoning authority unless the exercise of zoning authority:
(1) results in a taking under Section 2007.002(5)(C);
or
(2) is undertaken without the owner's consent within
the three–year period following the date of the filing of an
application pertaining to an owner's private real property under
Chapter 242 or 245, Local Government Code [applies to a
governmental action taken by a county only if the action is taken on
or after September 1, 1997].
(e) This chapter does not:
(1) limit or otherwise affect the authority of a
municipality, a county, another political subdivision, the state,
or an agency of the state, with respect to the implementation or
enforcement of an ordinance, a rule, or a statutory standard of a
program, plan, or ordinance that was adopted under:
(A) the federal Coastal Zone Management Act of
1972 (16 U.S.C. Section 1451 et seq.); or
(B) Subtitle E, Title 2, Natural Resources Code;
(2) apply to a permit, order, rule, regulation, or
other action issued, adopted, or undertaken by a municipality, a
county, another political subdivision, the state, or an agency of
the state in connection with:
(A) the federal Coastal Zone Management Act of
1972 (16 U.S.C. Section 1451 et seq.); or
(B) Subtitle E, Title 2, Natural Resources Code;
or
(3) limit or otherwise affect [apply to] the
enforcement or implementation of Subchapter B, Chapter 61, Natural
Resources Code, as it existed on September 1, 1995, or to the
enforcement or implementation of any rule or similar measure that
was adopted under that subchapter and was in existence on September
1, 1995.
(f) This chapter does not apply to an action taken by a
political subdivision to ensure compliance with on-site sewage
facility regulations promulgated by the Texas Commission on
Environmental Quality.
SECTION 3. Section 2007.021(b), Government Code, is amended
to read as follows:
(b) A suit under this subchapter must be filed not later
than the second anniversary of the later of:
(1) the earliest date on which the ordinance, rule,
regulatory requirement, resolution, policy, guideline, or similar
measure on which the suit is based is enforced with respect to the
owner's private real property;
(2) the earliest date on which the ordinance, rule,
regulatory requirement, resolution, policy, guideline, or similar
measure on which the suit is based is applied to the owner's private
real property with respect to any permit application affecting the
real property; or
(3) September 1, 2005 [180th day after the date the
private real property owner knew or should have known that the
governmental action restricted or limited the owner's right in the
private real property].
SECTION 4. Section 2007.022(b), Government Code, is amended
to read as follows:
(b) A contested case must be filed with the agency not later
than the second anniversary of the later of:
(1) the earliest date on which the ordinance, rule,
regulatory requirement, resolution, policy, guideline, or similar
measure on which the case is based is enforced with respect to the
owner's private real property;
(2) the earliest date on which the ordinance, rule,
regulatory requirement, resolution, policy, guideline, or similar
measure on which the case is based is applied to the owner's private
real property with respect to any permit application affecting the
real property; or
(3) September 1, 2005 [the 180th day after the date the
private real property owner knew or should have known that the
governmental action restricted or limited the owner's right in the
private real property].
SECTION 5. Section 2007.041(a), Government Code, is amended
to read as follows:
(a) The attorney general shall prepare guidelines to assist
governmental entities in identifying and evaluating those
governmental actions described in Section 2007.003(a)(1) and (2)
[through (3)] that may result in a taking.
SECTION 6. Section 2007.042(a), Government Code, is amended
to read as follows:
(a) A political subdivision that proposes to engage in a
governmental action described in Section 2007.003(a)(1) or (2)
[through (3)] that may result in a taking shall provide at least 30
days' notice of its intent to engage in the proposed action by
providing a reasonably specific description of the proposed action
in a notice published in a newspaper of general circulation
published in the county in which affected private real property is
located. If a newspaper of general circulation is not published in
that county, the political subdivision shall publish a notice in a
newspaper of general circulation located in a county adjacent to
the county in which affected private real property is located. The
political subdivision shall, at a minimum, include in the notice a
reasonably specific summary of the takings impact assessment that
was prepared as required by this subchapter and the name of the
official of the political subdivision from whom a copy of the full
assessment may be obtained.
SECTION 7. Section 2007.044, Government Code, is amended by
amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) A governmental action requiring a takings impact
assessment is void if an assessment is not prepared in compliance
with the evaluation guidelines developed by the attorney general
under Section 2007.041. A private real property owner affected by a
governmental action taken without the preparation of a takings
impact assessment as required by this subchapter may bring suit for
a declaration of the invalidity of the governmental action.
(d) A proposed governmental action described by Section
2007.003(a)(1) or (2) that requires a takings impact assessment may
be stayed if an assessment is not prepared or if the assessment is
not in compliance with the evaluation guidelines developed by the
attorney general under Section 2007.041. A private real property
owner affected by the proposed governmental action may bring suit
to enforce the preparation of a takings impact assessment in
compliance with those guidelines. If the trier of fact in a suit
filed under this subchapter finds that the takings impact
assessment is not prepared or is not in compliance with the
evaluation guidelines, the court shall stay the proposed
governmental action.
SECTION 8. 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.