By: Cook of Colorado, et al. H.B. No. 2833
(Senate Sponsor - Staples)
(In the Senate - Received from the House May 11, 2005;
May 13, 2005, read first time and referred to Committee on Natural
Resources; May 21, 2005, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 7, Nays 2;
May 21, 2005, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 2833 By: Staples
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) except as provided by Section 2007.003(g), 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, platting, 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
under its statutory authority to prevent waste or protect rights of
owners in groundwater or[:
[(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, if the actions do
not affect impervious cover;
(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 regulate 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,
common, or private nuisance as defined by nuisance and property law
of this state;
(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;
(6) an action taken by a political subdivision
relating to the regulation of:
(A) sexually oriented businesses;
(B) fireworks;
(C) discharge of firearms;
(D) weeds or other unsanitary or unwholesome
matter on public or private property;
(E) junked or abandoned vehicles;
(F) noise;
(G) alcohol, including hours of sale;
(H) smoking in or on public or private property;
(I) plumbing, electrical, and building
construction codes;
(J) manufactured housing;
(K) multifamily housing; or
(L) barrier islands; or
(7) an action or rule related to protecting views of
the State Capitol. [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 governmental action or
series of actions by a municipality within the municipality's
corporate territorial limits. For the purposes of this subsection,
corporate territorial limits do not include areas within a
municipality's extraterritorial jurisdiction or annexed for
limited purposes [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 or approved by the Texas
Commission on Environmental Quality.
(g) For the purposes of the definition of "taking" in
Section 2007.002(5)(C), a home-rule municipality with a population
of more than 1.1 million that relies on a sole source aquifer for
more than 50 percent of the municipality's water supply may elect,
with respect to single family and duplex uses over an aquifer
recharge zone within the municipality's corporate and
extraterritorial jurisdiction, to define a taking as an action or
series of actions by the municipality 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 30 percent of the
surface area of the property, including 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.
(h) This chapter does not apply to the following
governmental actions unless the governmental action regulates
building size or lot size or 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:
(1) an ordinance or order adopted by the governing
body of a municipality or county under Subchapter I, Chapter 16,
Water Code;
(2) an ordinance or order adopted under a permit
issued under Section 402, Federal Water Pollution Control Act (33
U.S.C. Section 1342); or
(3) a water pollution control and abatement program
established under Section 26.177, Water Code.
(i) This chapter does not confer any new or additional
regulatory authority on a political subdivision with respect to the
items listed in Subsection (c)(6).
(j) This chapter does not apply to a governmental action
relating to the regulation of historical buildings.
(k) A political subdivision is not liable to a private real
property owner under this chapter for an action or series of actions
taken by another political subdivision. If jurisdiction over
private real property has changed, the owner may assert a claim or
bring a cause of action under this chapter against the political
subdivision that took the action or series of actions that resulted
in a taking.
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) [through
(3)] that may result in a taking.
SECTION 6. Section 2007.042, Government Code, is amended to
read as follows:
Sec. 2007.042. PUBLIC NOTICE. (a) A political subdivision
that proposes to engage in a governmental action described in
Section 2007.003(a)(1) [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.
(b) A state agency that proposes to engage in a governmental
action described in Section 2007.003(a)(1) [or (2)] that may result
in a taking shall:
(1) provide notice in the manner prescribed by Section
2001.023; and
(2) file with the secretary of state for publication
in the Texas Register in the manner prescribed by Chapter 2002 a
reasonably specific summary of the takings impact assessment that
was prepared by the agency as required by this subchapter.
SECTION 7. Section 2007.043(a), Government Code, is amended
to read as follows:
(a) A governmental entity shall prepare a written takings
impact assessment of a proposed governmental action described in
Section 2007.003(a)(1) [through (3)] that complies with the
evaluation guidelines developed by the attorney general under
Section 2007.041 before the governmental entity provides the public
notice required under Section 2007.042.
SECTION 8. 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) 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 9. Section 2007.045, Government Code, is amended to
read as follows:
Sec. 2007.045. UPDATING OF CERTAIN ASSESSMENTS REQUIRED. A
state agency that proposes to adopt a governmental action described
in Section 2007.003(a)(1) [or (2)] that may result in a taking as
indicated by the takings impact assessment shall update the
assessment if the action is not adopted before the 180th day after
the date the notice is given as required by Section 2001.023.
SECTION 10. (a) The change in law made by this Act applies
only to:
(1) a governmental action described by Section
2007.003(a)(1) or (2), Government Code, that commences on or after
April 1, 2005; or
(2) a governmental action described by Section
2007.003(a)(3), Government Code, that commences on or after April
1, 2005, to enforce or implement any ordinance, rule, regulatory
requirement, platting requirement, resolution, policy, guideline,
or similar measure in effect on or after April 1, 2005.
(b) The change in law made by this Act may not be construed
to create any claim or cause of action for:
(1) a governmental action described by Section
2007.003(a)(1) or (2), Government Code, that commences before April
1, 2005; or
(2) a governmental action described by Section
2007.003(a)(3), Government Code, that commences before April 1,
2005, to enforce or implement any ordinance, rule, regulatory
requirement, platting requirement, resolution, policy, guideline,
or similar measure in effect before April 1, 2005.
SECTION 11. 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.
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