81R10567 JTS-F

By: Rodriguez H.B. No. 4262

A BILL TO BE ENTITLED

AN ACT

relating to authorizing municipalities and counties to regulate land development in certain unincorporated areas; providing a penalty.

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

SECTION 1. The heading to Chapter 242, Local Government Code, is amended to read as follows:

CHAPTER 242. AUTHORITY OF MUNICIPALITY AND COUNTY TO REGULATE

SUBDIVISIONS AND LAND DEVELOPMENT IN AND OUTSIDE MUNICIPALITY'S

EXTRATERRITORIAL JURISDICTION

SECTION 2. Chapter 242, Local Government Code, is amended by designating Sections 242.001, 242.0015, and 242.002 as Subchapter A and adding a heading for Subchapter A to read as follows:

SUBCHAPTER A. AUTHORITY TO REGULATE SUBDIVISIONS IN AND OUTSIDE

MUNICIPALITY'S EXTRATERRITORIAL JURISDICTION

SECTION 3. Chapter 242, Local Government Code, is amended by adding Subchapter B to read as follows:

SUBCHAPTER B. AUTHORITY TO REGULATE LAND DEVELOPMENT IN

MUNICIPALITY'S EXTRATERRITORIAL JURISDICTION IN CERTAIN COUNTIES

Sec. 242.051. REGULATION OF LAND DEVELOPMENT IN EXTRATERRITORIAL JURISDICTION GENERALLY. (a) This subchapter applies only to a county with a population of 800,000 or more and a municipality with a population of 500,000 or more located within 60 miles of the Edwards Aquifer.

(b) For an area in a municipality's extraterritorial jurisdiction, as determined under Chapter 42, the governing bodies of a municipality and the county acting jointly may adopt and enforce a building code and regulate:

(1) the height, number of stories, and size of buildings and other structures;

(2) the percentage of a lot that may be occupied;

(3) the size of yards, courts, and other open spaces;

(4) population density;

(5) the location and use of buildings, other structures, and land for business, industrial, residential, or other purposes; and

(6) the pumping, extraction, and use of groundwater by persons other than retail public utilities, as defined by Section 13.002, Water Code, for the purpose of preventing the use or contact with groundwater that presents an actual or potential threat to human health.

(c) In the case of designated places and areas of historical, cultural, or architectural importance and significance in a municipality's extraterritorial jurisdiction, as determined under Chapter 42, the governing bodies of a municipality and the county acting jointly may regulate the construction, reconstruction, alteration, or razing of buildings and other structures.

(d) For an area in a municipality's extraterritorial jurisdiction, as determined under Chapter 42, the governing bodies of a municipality and the county may regulate the bulk of buildings.

(e) The municipality and the county may establish a joint zoning commission, joint rules for enforcing the zoning regulations and boundaries, and a joint board of adjustment under this subchapter.

(f) Zoning regulations described by Subsections (b)-(d) must be adopted in accordance with a comprehensive plan and zoning procedures approved by the governing bodies of the municipality and the county and must be designed to:

(1) lessen 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) prevent the overcrowding of land;

(6) avoid undue concentration of population; or

(7) facilitate the adequate provision of transportation, water, sewers, schools, parks, and other public requirements.

(g) The comprehensive plan of the county described by Subsection (f) may encompass areas outside the extraterritorial jurisdiction of a municipality.

Sec. 242.052. DISTRICTS. (a) The governing bodies of the municipality and the county may divide the extraterritorial jurisdiction of the municipality into districts of a number, shape, and size the governing bodies consider best for carrying out this subchapter. Within each district, the governing bodies may regulate the erection, construction, reconstruction, alteration, repair, or use of buildings, other structures, or land.

(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 things, 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 throughout the area.

Sec. 242.053. JOINT PROCEDURES GOVERNING ADOPTION OF ZONING REGULATIONS AND DISTRICT BOUNDARIES. (a) The governing bodies of the municipality and the county shall establish joint procedures for adopting and enforcing the regulations and district boundaries. A regulation or boundary is not effective until it is adopted by the governing bodies of the municipality and the county 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, the governing bodies of the municipality and the county must publish notice of the time and place of the hearing in an official newspaper or a newspaper of general circulation in the extraterritorial jurisdiction.

(b) A rule or regulation established under this section may be amended only if the amended rule is adopted by the governing bodies of the municipality and the county.

Sec. 242.054. JOINT ZONING COMMISSION. (a) To exercise the powers authorized by this subchapter, the governing bodies of the municipality and the county may appoint a zoning commission. The commission shall recommend boundaries for the original zoning districts and appropriate zoning regulations for each district.

(b) The zoning commission shall make a preliminary report and hold public hearings on that report before submitting a final report to the governing bodies of the municipality and the county. The governing bodies of the municipality and the county may not hold a public hearing until each receives the final report of the zoning commission.

Sec. 242.055. COMPLIANCE WITH OPEN MEETINGS LAW. A joint board of adjustment or joint zoning commission established by an ordinance or resolution adopted by the governing bodies of the municipality and the county to assist the governing bodies of the municipality and the county in developing an initial comprehensive zoning plan or initial zoning regulations, or a committee of the joint board of adjustment or joint zoning commission that includes one or more members of the board or commission, is subject to Chapter 551, Government Code.

Sec. 242.056. JOINT BOARD OF ADJUSTMENT. (a) The governing bodies of the municipality and the county may provide for the appointment of a joint board of adjustment. In the regulations adopted under this subchapter, the governing bodies of the municipality and the county may authorize the board of adjustment, in appropriate cases and subject to appropriate conditions and safeguards, to make special exceptions to the terms of a zoning regulation that are consistent with the general purpose and intent of the regulation and in accordance with any applicable rules contained in the regulation.

(b) A board of adjustment must consist of at least five members to be appointed for terms of two years. The governing bodies of the municipality and the county must provide the procedure for appointment. The governing bodies of the municipality and the county may authorize each member of each governing body to appoint one member to the board. The appointing governing body may remove a board member for cause, as found by the appointing governing body, on a written charge after a public hearing. A vacancy on the board shall be filled for the unexpired term.

(c) The appointing governing body 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 presiding officer of the appointing governing body. 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 of the board 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.

Sec. 242.057. 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 when the regulation requires the board to do so;

(3) authorize in specific cases a variance from the terms of a zoning regulation if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the regulation would result in unnecessary hardship, and so that 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 wholly or partly reverse or affirm 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, and for that purpose 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. 242.058. 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 municipality or 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 governing bodies of the municipality and the county who serves on the board of adjustment may not bring an appeal under this section.

Sec. 242.059. 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 municipality or 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 wholly or partly reverse or affirm 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 governing bodies of a municipality and a county than is applied to a decision of a board of adjustment that is not composed of members of the governing body of a municipality or a county.

Sec. 242.060. ENFORCEMENT; PENALTY; REMEDIES. (a) The governing bodies of the municipality and the county may adopt a regulation 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 governing bodies of the municipality and the county. The governing bodies of the municipality and the county may also provide civil penalties for a violation.

(c) If a building or other structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained or if a building, other structure, or land is used in violation of this subchapter or a regulation adopted under this subchapter, the appropriate municipal or county authority, in addition to other remedies, may institute appropriate action to:

(1) prevent the unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, or use;

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

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

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

Sec. 242.061. CONFLICT WITH OTHER LAWS; EXCEPTIONS. (a) If a zoning regulation adopted under this subchapter requires a greater width or size of a yard, court, or other open space, requires a lower building height or fewer number of stories for a building, requires a greater percentage of lot to be left unoccupied, or otherwise imposes higher standards than those required under another statute or local ordinance or regulation, the regulation adopted under this subchapter controls. If the other statute or local ordinance or regulation imposes higher standards, that statute, ordinance, or regulation controls.

(b) This subchapter does not authorize the governing bodies of the municipality and the county to require the removal or destruction of property that exists at the time the governing bodies of the municipality and the county implement this subchapter and that is actually and necessarily used in a public service business.

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

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

Sec. 242.062. CONTINUATION OF LAND USE. The governing bodies of the municipality and the county may not prohibit a person from 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.

SECTION 4. Section 212.003(a), Local Government Code, is amended to read as follows:

(a) The governing body of a municipality by ordinance may extend to the extraterritorial jurisdiction of the municipality the application of municipal ordinances adopted under Section 212.002 and other municipal ordinances relating to access to public roads or the pumping, extraction, and use of groundwater by persons other than retail public utilities, as defined by Section 13.002, Water Code, for the purpose of preventing the use or contact with groundwater that presents an actual or potential threat to human health. However, unless authorized by Subchapter B, Chapter 242, or otherwise authorized by state law, in its extraterritorial jurisdiction a municipality shall not regulate:

(1) the use of any building or property for business, industrial, residential, or other purposes;

(2) the bulk, height, or number of buildings constructed on a particular tract of land;

(3) the size of a building that can be constructed on a particular tract of land, including without limitation any restriction on the ratio of building floor space to the land square footage;

(4) the number of residential units that can be built per acre of land; or

(5) the size, type, or method of construction of a water or wastewater facility that can be constructed to serve a developed tract of land if:

(A) the facility meets the minimum standards established for water or wastewater facilities by state and federal regulatory entities; and

(B) the developed tract of land is:

(i) located in a county with a population of 2.8 million or more; and

(ii) served by:

(a) on-site septic systems constructed before September 1, 2001, that fail to provide adequate services; or

(b) on-site water wells constructed before September 1, 2001, that fail to provide an adequate supply of safe drinking water.

SECTION 5. 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, 2009.