81R5664 ATP-F

By: Bolton H.B. No. 1119

A BILL TO BE ENTITLED

AN ACT

relating to authorizing certain populous counties to adopt county planning regulations; providing criminal and civil penalties.

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

SECTION 1. Chapter 231, Local Government Code, is amended by adding Subchapter M to read as follows:

SUBCHAPTER M. COUNTY PLANNING REGULATORY AUTHORITY BY CERTAIN

POPULOUS COUNTIES

Sec. 231.271. PURPOSE. The powers granted under this subchapter are for the purpose of promoting the public health, safety, morals, or general welfare.

Sec. 231.272. APPLICABILITY. This subchapter applies only to a county with a population of more than 800,000.

Sec. 231.273. COUNTY PLANNING REGULATIONS GENERALLY. In the unincorporated area of a county, the commissioners court of the county may adopt zoning regulations to regulate noise levels and the location and use of buildings, other structures, and land for business, industrial, residential, or other purposes.

Sec. 231.274. COMPLIANCE WITH COMPREHENSIVE PLAN. Zoning regulations must be adopted in accordance with a comprehensive plan and must be designed to:

(1) reduce congestion in the streets;

(2) secure safety from fire, panic, and other dangers;

(3) promote health and the general welfare;

(4) provide adequate light and air;

(5) facilitate the adequate provision of transportation, water, sewers, schools, parks, and other public requirements; or

(6) promote the maintenance of noise levels that are compatible with the land use of an area or promote, to the greatest degree, the purpose of this subchapter.

Sec. 231.275. DISTRICTS. (a) The commissioners court of a county may divide the unincorporated area of the county into districts of a number, shape, and size the commissioners court considers best for carrying out this subchapter.

(b) Zoning regulations must be uniform for each class or kind of building in a district, but the regulations may vary from district to district. The regulations shall be adopted with reasonable consideration, among other factors, for the character of each district and its peculiar suitability for particular uses, with a view of conserving the value of buildings and encouraging the most appropriate use of land in the county.

Sec. 231.276. PROCEDURES GOVERNING ADOPTION OF COUNTY PLANNING REGULATIONS AND DISTRICT BOUNDARIES. (a) The commissioners court of a county wishing to exercise the authority relating to zoning regulations and zoning district boundaries shall establish procedures for adopting and enforcing the regulations and boundaries. 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 an official newspaper or a newspaper of general circulation in the county.

(b) In addition to the notice required by Subsection (a), a county without a county planning commission shall give notice of a proposed change in a zoning classification to each property owner who would be entitled to notice under Section 231.277(c) if the county had a county planning commission. That notice must be given in the same manner as required for notice to property owners under Section 231.277(c). The commissioners court may not adopt the proposed change until after the 30th day after the date the notice required by this subsection is given.

(c) If the commissioners court of a county conducts a hearing under Subsection (a), the commissioners court may, by a majority vote, prescribe the type of notice to be given of the time and place of the public hearing. Notice requirements prescribed under this subsection are in addition to the publication of notice required by Subsection (a).

(d) 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 75 percent of all members of the commissioners court. The protest must be written and signed by the owners of at least 20 percent of:

(1) the area of the lots or land covered by the proposed change; or

(2) the area of the lots or land immediately adjoining the area covered by the proposed change and extending 200 feet from that area.

(e) In computing the percentage of land area under Subsection (d), the area of streets and alleys shall be included.

Sec. 231.277. COUNTY PLANNING COMMISSION. (a) To exercise the powers authorized by this subchapter, the commissioners court of a county may appoint a county planning commission. The commission shall recommend boundaries for the original zoning districts and appropriate zoning regulations for each district.

(b) The county planning commission 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 until it receives the final report of the county planning commission unless the commissioners court by order provides that a public hearing is to be held, after the notice required by Section 231.276(a), jointly with a public hearing required to be held by the county planning commission. In either case, the commissioners court may not take action on the matter until it receives the final report of the county planning commission.

(c) Before the 10th day before the hearing date, written notice of each public hearing before the county planning commission on a proposed change in a zoning classification shall be sent to each owner, as indicated by the most recently approved county tax roll, of real property within 200 feet of the property on which the change in classification is proposed. The notice may be served by its deposit in the county, properly addressed with postage paid, in the United States mail.

(d) If a county exercises zoning authority without the appointment of a county planning commission, any reference in a law to a county planning commission means the commissioners court of the county.

Sec. 231.278. COMPLIANCE WITH OPEN MEETINGS LAW. A board or commission established by an order or resolution adopted by the commissioners court of a county to assist the commissioners court in developing an initial comprehensive zoning plan or initial zoning regulations for the county, or a committee of the board or commission that includes one or more members of the board or commission, is subject to Chapter 551, Government Code, regardless of whether the board, commission, or committee has rulemaking or quasi-judicial powers or functions only in an advisory capacity.

Sec. 231.279. BOARD OF ADJUSTMENT. (a) The commissioners court of a county may provide for the appointment of a board of adjustment. In the regulations adopted under this subchapter, the commissioners court may authorize the board of adjustment, 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) A board of adjustment must consist of at least five members to be appointed for terms of two years. The commissioners court must provide the procedure for appointment. The commissioners court may authorize each member of the commissioners court to appoint one member to the board. The appointing authority may remove a board member for cause, as found by the appointing authority, on a written charge after a public hearing. The appointing authority shall fill a vacancy on the board for the unexpired term.

(c) The commissioners court by resolution may provide for the appointment of alternate board members to serve in the absence of one or more regular members when requested to do so by the county judge. An alternate member serves for the same period as a regular member and is subject to removal in the same manner as a regular member. A vacancy among the alternate members is filled in the same manner as a vacancy among the regular members.

(d) Each case before the board of adjustment must be heard by at least 75 percent of the members.

(e) The board by majority vote shall adopt rules in accordance with any regulation adopted under this subchapter. Meetings of the board 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. All meetings of the board shall be open to the public.

(f) 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.

(g) The commissioners court of a county may grant the members of the commissioners court the authority to act as a board of adjustment under this subchapter.

Sec. 231.280. AUTHORITY OF BOARD. (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 regulation adopted under this subchapter;

(2) hear and decide special exceptions to the terms of a zoning regulation as authorized by the regulation;

(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) due to special conditions, a literal enforcement of the regulation would result in unnecessary hardship; and

(C) by granting the variance, the spirit of the regulation is observed and substantial justice is done; and

(4) hear and decide other matters authorized by a regulation adopted under this subchapter.

(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. For purposes of this subsection, the board has the same authority as the administrative official.

(c) The concurring vote of 75 percent of the members of the board 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 from the terms of a zoning regulation.

Sec. 231.281. APPEAL TO BOARD. (a) Except as provided by Subsection (e), 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 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 the rules of the board. 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 be stayed only 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.

(e) A member of the county commissioners court who serves on the board of adjustment under Section 231.279(g) may not bring an appeal under this section.

Sec. 231.282. JUDICIAL REVIEW OF BOARD DECISION. (a) Any of the following persons may present to a district court, county court, or county court at law a verified petition stating that the decision of the board of adjustment is wholly or partly illegal and specifying the grounds of the illegality:

(1) a person aggrieved by a decision of the board;

(2) a taxpayer; or

(3) an officer, department, board, or bureau of the county.

(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 by 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.

(g) The court may not apply a different standard of review to a decision of a board of adjustment that is composed of members of the county commissioners court under Section 231.279(g) than is applied to a decision of a board of adjustment that does not contain members of the county commissioners court.

Sec. 231.283. ENFORCEMENT; PENALTY; REMEDIES. (a) The commissioners court of a county may adopt orders to enforce this subchapter or any regulation adopted under this subchapter.

(b) A person commits an offense if the person violates this subchapter or a regulation adopted under this subchapter. An offense under this subsection is a misdemeanor, punishable by fine, imprisonment, or both, as provided by the commissioners court. The commissioners court may also provide civil penalties for a violation.

(c) If a land use violates this subchapter or a regulation adopted under this subchapter, the appropriate county authority, in addition to other remedies, may institute appropriate action to:

(1) restrain, correct, or abate the violation;

(2) prevent the occupancy of the building, structure, or land; or

(3) prevent any illegal act, conduct, business, or use on or about the premises.

Sec. 231.284. CONFLICT WITH OTHER LAWS; EXCEPTIONS. (a) This subchapter does not authorize the commissioners court of a county to require the removal or destruction of property that exists at the time the commissioners court implements this subchapter and that is actually and necessarily used in a public service business.

(b) This subchapter does not apply to a building, other structure, or land under the control, administration, or jurisdiction of a state or federal agency.

(c) This subchapter applies to a privately owned building or other structure and privately owned land when leased to a state agency.

Sec. 231.285. CONTINUATION OF LAND USE IN CERTAIN AREAS. (a) A county may not prohibit a person from:

(1) continuing to use land in the manner in which the land was being used on January 1, 2010, if the land use was legal at that time; or

(2) beginning to use land in the manner that was planned for the land before September 1, 2009, if:

(A) one or more licenses, certificates, permits, approvals, or other forms of authorization by a governmental entity were required by law for the planned land use; and

(B) a completed application for the initial authorization was filed with the governmental entity before September 1, 2009.

(b) For purposes of this section, a completed application is filed if the application includes all documents and other information designated as required by the governmental entity in a written notice to the applicant.

(c) This section does not prohibit a county from imposing:

(1) a regulation relating to the location of sexually oriented businesses, as that term is defined by Section 243.002;

(2) a regulation or other requirement affecting colonias, as that term is defined by Section 2306.581, Government Code;

(3) a regulation relating to preventing imminent destruction of property or injury to persons;

(4) a regulation relating to public nuisances;

(5) a regulation relating to flood control;

(6) a regulation relating to the storage and use of hazardous substances;

(7) a regulation relating to the sale and use of fireworks;

(8) a regulation relating to the discharge of firearms; or

(9) a regulation relating to noise levels that does not prevent a person from continuing to use property for residential purposes.

(d) An order or regulation in conflict with this section is void.

SECTION 2. This Act takes effect September 1, 2009.