79R7908 AJA-F
By: Cook of Colorado H.B. No. 2833
A BILL TO BE ENTITLED
AN ACT
relating to regulatory takings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2007.002(5), Government Code, is amended
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 flood plain as
determined by the most recent maps published by the Federal
Emergency Management Agency or that slopes more than 35 degrees.
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;
[(12)] the appraisal of property for purposes of ad
valorem taxation; or
(8) [(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, impervious cover, or the timing of the development or
improvement of private real property:
(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:
(A) to regulate construction in an area
designated under law as a flood plain;
(B) to regulate on-site sewage facilities;
(C) under the political subdivision's statutory
authority to prevent waste or protect rights of owners of interest
in groundwater; or
(D) to prevent subsidence; or
(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. [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 results
in a taking under Section 2007.002(5)(C) [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 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) Subsection (d) does not apply to a governmental action
affecting the zoning classification of an owner's private real
property that 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.
SECTION 3. 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 4. 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 5. 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 6. The change in law made by this Act applies only
to a governmental action or series of actions that commences on or
after the effective date of this Act. A governmental action or
series of actions that commences before the effective date of this
Act is governed by the law in effect immediately before that date,
and that law is continued in effect for that purpose.
SECTION 7. 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.