80R6259 JPL-F

By: Hegar S.B. No. 1677

A BILL TO BE ENTITLED

AN ACT

relating to conservation easements created by governmental action.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 2007, Government Code, is amended by adding Subchapter D to read as follows: SUBCHAPTER D. CONDEMNATION OF CONSERVATION EASEMENTS

Sec. 2007.101. DEFINITIONS. In this subchapter:

(1) "Buffer zone" means an area within which buildings and other water impermeable improvements are prohibited.

(2) "Governmental action" includes an action by any governmental entity to enforce or implement any ordinance, rule, regulation, resolution, policy, guideline, or similar measure that affects the use or development of privately owned property, including:

(A) subdivision and platting;

(B) site development;

(C) building construction;

(D) stormwater management and stormwater quality;

(E) environmental controls;

(F) provision of utility services through service agreements and other methods;

(G) incorporation of land into the jurisdictional boundaries of a governmental entity, by annexation or other method;

(H) zoning classifications requiring a particular lot size or open space or limiting impervious cover; and

(I) flood or drainage management outside the boundaries of the 100-year floodplain.

(3) "100-year floodplain" means an area in the 100-year floodplain that is susceptible to being inundated by water from any source as identified by the Federal Emergency Management Agency under the National Flood Insurance Act of 1968 (42 U.S.C. Sections 4001-4127).

(4) "Impervious cover" means surface improvements constructed on land that prevent the infiltration of rainwater into the soil, excluding an area in a natural or undeveloped state.

(5) "Natural or undeveloped state" means an area of private real property that is permeable to water, including:

(A) an undeveloped area, buffer zone, building setback area, stormwater detention facility, pond, vegetated landscaped surface, or irrigated or nonirrigated natural turf sports field or golf course;

(B) an area paved with water permeable concrete; and

(C) a roofing area incorporated into a rainwater collection system that collects and stores at least 1.1 inches of rainfall in a one-hour period.

Sec. 2007.102. GENERAL PROVISIONS. (a) A governmental action by a governmental entity creates a conservation easement if the governmental action has the effect of:

(1) requiring that more than 55 percent of the surface area of any parcel or lot of an owner's property remain in a natural or undeveloped state, excluding the portion of the property located in the 100-year floodplain; or

(2) requiring a buffer zone adjacent to the portion of the property located in the 100-year floodplain or adjacent to an inundation easement of a man-made lake, impoundment, or reservoir.

(b) If an owner affected by a governmental action that creates a conservation easement does not consent to or is not a party to an instrument creating a conservation easement as required by Section 183.002(e), Natural Resources Code, a conservation easement on the affected real property may be created only by a proceeding under this subchapter.

Sec. 2007.103. APPLICABILITY. (a) Except as provided by Subsection (b), this subchapter applies to a governmental action that affects the use or development of privately owned real property.

(b) This subchapter does not apply to the following governmental actions:

(1) a lawful forfeiture or seizure of contraband as defined by Article 59.01, Code of Criminal Procedure;

(2) a lawful seizure of property as evidence of a crime or violation of law;

(3) the authority of a governmental entity with respect to implementing or enforcing an ordinance, rule, or statutory standard of a program, plan, or ordinance that was adopted under:

(A) the Coastal Zone Management Act of 1972 (16 U.S.C. Section 1451 et seq.); or

(B) Subtitle E, Title 2, Natural Resources Code;

(4) a permit, order, rule, regulation, or other action issued, adopted, or undertaken by a governmental entity in connection with:

(A) the Coastal Zone Management Act of 1972 (16 U.S.C. Section 1451 et seq.); or

(B) Subtitle E, Title 2, Natural Resources Code;

(5) the enforcement or implementation of Subchapter B, Chapter 61, Natural Resources Code, or to the enforcement or implementation of any rule or similar measure adopted under that subchapter;

(6) an action taken by a governmental entity to ensure compliance with on-site sewage facility regulations adopted by the Texas Commission on Environmental Quality; or

(7) an action taken by a governmental entity to zone a particular use of a building structure or building height, excluding a zoning classification relating to lot size, open-space requirements, or impervious cover limitations.

(c) Section 2007.003 does not apply to this subchapter.

Sec. 2007.104. ENFORCEMENT. (a) An owner may bring suit under this subchapter to determine whether a governmental action creates a conservation easement on the owner's property.

(b) An owner is not required to pursue or exhaust administrative remedies against a governmental entity before bringing suit under this subchapter.

(c) A suit under this subchapter must be filed in a district court in the county in which the affected property is located.

(d) If the affected property is located in more than one county, the owner may file suit in any county in which any portion of the affected property is located.

(e) A suit under this subchapter must be filed not later than the second anniversary of the later of:

(1) the date the owner knew or reasonably should have known that the governmental action created a conservation easement on the owner's property; or

(2) the date a land use permit is denied because of a conservation easement created by a governmental action.

(f) If the court determines that a conservation easement has been created:

(1) the judge shall:

(A) include a finding that determines the value of the conservation easement in the manner provided by Section 21.042, Property Code, as of the effective date of the governmental action; and

(B) grant the governmental entity the option to modify the governmental action not later than the 30th day after the date of the order to void the creation of the conservation easement; and

(2) the governmental entity may elect to:

(A) modify the governmental action to void the creation of the conservation easement; or

(B) compensate the owner for the conservation easement in accordance with the determination provided by the court judgment.

(g) If the governmental entity elects to pay compensation to the owner for the creation of a conservation easement:

(1) the governmental entity shall pay the owner the amount determined by the court not later than the 30th day after the date of the judgment; and

(2) the owner shall execute and deliver to the governmental entity an instrument in recordable form consenting to the creation of a conservation easement as determined by the judgment and in accordance with Section 183.002, Natural Resources Code.

(h) A person aggrieved by a judgment rendered in a suit filed under this subchapter may appeal as provided by law.

(i) If a governmental entity appeals a judgment in a suit filed under this subchapter, the district court shall enjoin the governmental entity from enforcing the governmental action that created the conservation easement pending the appeal of the suit.

(j) The court shall award an owner who prevails in a suit under this subchapter reasonable and necessary attorney's fees and court costs.

(k) Sovereign immunity to liability is waived to the extent the governmental entity elects to pay compensation under this subchapter.

SECTION 2. This Act applies only to a governmental action that commences on or after the effective date of this Act. A governmental action that commences before the effective date of this Act is governed by the law that existed at the time the governmental action commenced, and the former law is continued in effect for that purpose.

SECTION 3. 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, 2007.