Bill Text: TX HB3490 | 2023-2024 | 88th Legislature | Comm Sub
Bill Title: Relating to the notice and compensation a municipality must provide before revoking the right to use property for a use that was allowed before the adoption of or change to a zoning regulation or boundary.
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Introduced - Dead) 2023-05-03 - Laid on the table subject to call [HB3490 Detail]
Download: Texas-2023-HB3490-Comm_Sub.html
88R16484 DRS-F | |||
By: Rogers | H.B. No. 3490 | ||
Substitute the following for H.B. No. 3490: | |||
By: Burns | C.S.H.B. No. 3490 |
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relating to the notice and compensation a municipality must provide | ||
before revoking the right to use property for a use that was allowed | ||
before the adoption of or change to a zoning regulation or | ||
boundary. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 211.006, Local Government Code, is | ||
amended by adding Subsection (a-1) to read as follows: | ||
(a-1) In addition to any notice required by this section or | ||
Section 211.007, the governing body of a municipality or a zoning | ||
commission, as applicable, shall provide written notice of each | ||
public hearing regarding any proposed adoption of or change to a | ||
zoning regulation or boundary under which a current conforming use | ||
of a property is a nonconforming use if the regulation or boundary | ||
is adopted or changed. The notice must: | ||
(1) be mailed by United States mail to each owner of | ||
real or business personal property where the proposed nonconforming | ||
use is located as indicated by the most recently approved municipal | ||
tax roll and each occupant of the property not later than the 10th | ||
day before the hearing date; | ||
(2) contain the time and place of the hearing; and | ||
(3) include the following text in bold 14-point type or | ||
larger: | ||
"THE [MUNICIPALITY NAME] IS HOLDING A HEARING THAT | ||
WILL DETERMINE WHETHER YOU MAY LOSE THE RIGHT TO | ||
CONTINUE USING YOUR PROPERTY FOR ITS CURRENT USE. | ||
PLEASE READ THIS NOTICE CAREFULLY." | ||
SECTION 2. Subchapter A, Chapter 211, Local Government | ||
Code, is amended by adding Section 211.019 to read as follows: | ||
Sec. 211.019. NONCONFORMING LAND USE. (a) In this section, | ||
"market value" means the price the sale of the property would bring | ||
in an arms-length transaction when offered for sale by one who | ||
wishes, but is not obliged, to sell and when bought by one who is | ||
under no necessity of buying it. | ||
(b) A person using a property in a manner considered to be a | ||
nonconforming use as a result of the adoption of or change to a | ||
zoning regulation or boundary may continue to use the property in | ||
the same manner unless required by a municipality to stop the | ||
nonconforming use of the property. | ||
(c) A requirement imposed by a municipality to stop a | ||
nonconforming use of a property under this section includes: | ||
(1) an official action by the governing body of the | ||
municipality or a board, commission, department, or official of | ||
the municipality; or | ||
(2) a determination by the municipality that a | ||
nonconforming use has an adverse effect or other necessary | ||
determination that a municipality must make before imposing a | ||
requirement to stop a nonconforming use under applicable law. | ||
(d) If a municipality requires a property owner or lessee to | ||
stop the nonconforming use of a property as described by Subsection | ||
(b), the owner or lessee of the property is entitled to: | ||
(1) payment from the municipality in an amount equal | ||
to the sum of: | ||
(A) the costs incurred by the owner or lessee of | ||
the property that are directly attributable to ceasing the | ||
nonconforming use of the property, including expenses related to | ||
demolition, relocation, termination of a lease, or discharge of a | ||
mortgage; and | ||
(B) an amount equal to the greater of, as | ||
determined by the municipality, the diminution in the market value | ||
of the property, computed by subtracting the current market value | ||
of the property after the imposition of a requirement to stop the | ||
nonconforming use of the property from: | ||
(i) the market value of the property on the | ||
day before the date the notice was given under Section | ||
211.006(a-1); or | ||
(ii) the market value of the property on the | ||
day before a person submits an application or request to the | ||
municipality to require or the municipality otherwise requires a | ||
person to stop using the property in a manner that is a | ||
nonconforming use as described by Subsection (b); or | ||
(2) continued nonconforming use of the property until | ||
the owner or lessee recovers the amount determined under | ||
Subdivision (1) through the owner or lessee's continued business | ||
activities according to generally accepted accounting principles. | ||
(e) Not later than the 10th day after the date a | ||
municipality imposes a requirement to stop a nonconforming use of a | ||
property under this section, the municipality shall give written | ||
notice to each owner or lessee of the property, as indicated by the | ||
most recently approved municipal tax roll, who is required to stop a | ||
nonconforming use of the property of the requirement and of the | ||
remedies which an owner or lessee of the property is entitled to | ||
under Subsection (d). | ||
(f) The owner or lessee of a property that is subject to a | ||
requirement to stop a nonconforming use of the property under this | ||
section shall not later than the 30th day after the date the | ||
municipality gives the notice required by Subsection (e) respond in | ||
writing to the municipality indicating the remedy under Subsection | ||
(d) chosen by the owner or lessee. In the event of a conflict in the | ||
choice of remedy by the owner and a lessee of the property, the | ||
owner's choice of remedy shall control. In the event of a conflict | ||
in the choice of remedy by the owners of a property that has more | ||
than one owner, the choice of remedy made by an owner or owners | ||
holding the greater ownership interest in the property shall | ||
control. If the municipality does not receive timely notice from an | ||
owner or lessee, the municipality may choose the remedy provided | ||
under this section. | ||
(g) A person receiving a payment under Subsection (d)(1) | ||
must stop the nonconforming use not later than the 10th day after | ||
the date of the payment. | ||
(h) A person who continues the nonconforming use under | ||
Subsection (d)(2) must stop the nonconforming use immediately on | ||
the recovery of the amount determined under Subsection (d)(1). | ||
(i) If more than one person seeks a payment from the | ||
municipality under Subsection (d)(1), the municipality shall | ||
apportion the payment between each person based on the market value | ||
of the person's interest in the property. A person may appeal the | ||
apportionment in the manner provided by this section. | ||
(j) A person entitled to a remedy under this section may | ||
appeal a determination under Subsection (d)(1) or (2) to the board | ||
of adjustment of the municipality not later than the 20th day after | ||
the date the determination is made. At the hearing before the board | ||
of adjustment, the municipality has the burden of proof to | ||
establish the correctness of its determination. | ||
(k) A municipality or a person aggrieved by the final | ||
decision of the board of adjustment under Subsection (j) may seek | ||
judicial review of the decision by filing suit as provided by | ||
Section 211.011 not later than the 20th day after the date the final | ||
decision is made. The court shall review the decision in the manner | ||
provided by Section 211.011 except that: | ||
(1) the municipality has the burden of proving by clear | ||
and convincing evidence that its determination was correct; and | ||
(2) the court: | ||
(A) in reviewing the municipality's decision may | ||
not use a deferential standard in the municipality's favor; and | ||
(B) is not limited to determining whether a | ||
decision of the board meets the requirements of this chapter or | ||
other applicable law. | ||
(l) A person seeking to continue a nonconforming use under | ||
Subsection (d)(2) who appeals the decision of the municipality or | ||
board of adjustment may continue to use the property in the same | ||
manner pending the appeal unless an official of the body that made | ||
the decision shows cause to stay the nonconforming use by | ||
certifying in writing to the board of adjustment or court with | ||
jurisdiction over the appeal facts supporting the official's | ||
opinion that continued nonconforming use of the property would | ||
cause imminent peril to life or property. On a showing of cause the | ||
board of adjustment or court with jurisdiction over the appeal may, | ||
after notice to the official, grant a restraining order to stay | ||
continued nonconforming use of the property. | ||
(m) If the board of adjustment or court with jurisdiction | ||
over an appeal determines that an owner or lessee is entitled to: | ||
(1) a payment under this section in an amount | ||
different than the amount determined by the municipality under | ||
Subsection (d)(1), the board of adjustment or court shall order, as | ||
applicable: | ||
(A) additional payment to the owner or lessee; or | ||
(B) the owner or lessee to reimburse the | ||
municipality; or | ||
(2) an amount of time to operate the nonconforming use | ||
that is different than the amount of time initially received under | ||
Subsection (d)(2), the board of adjustment or court shall order the | ||
municipality to allow an owner or lessee to continue the | ||
nonconforming use for additional or less time. | ||
(n) An owner or lessee may waive the rights and remedies | ||
provided by this section by providing to the municipality a written | ||
waiver. | ||
(o) This section does not apply to a nonconforming use that | ||
has been intentionally abandoned for at least six months. | ||
(p) A municipality's immunity from suit and governmental | ||
immunity from liability are waived for purposes of an action | ||
brought by a property owner or lessee to enforce the rights and | ||
remedies under this section. | ||
SECTION 3. (a) Section 211.006, Local Government Code, as | ||
amended by this Act, and Section 211.019, Local Government Code, as | ||
added by this Act, apply to a property for which: | ||
(1) on or after June 1, 2023, the governing body or | ||
zoning commission of a municipality considers a proposed adoption | ||
of or change to a zoning regulation or boundary under which a | ||
current conforming use of the property is a nonconforming use; or | ||
(2) on or after February 1, 2023, the governing body or | ||
a board, commission, department, or official of a municipality | ||
requires, by ordinance or otherwise, or receives an application or | ||
request to require a person to stop nonconforming use of the | ||
property due to its nonconformity with the property's current | ||
zoning. | ||
(b) Subsection (a)(2) of this section applies to a property | ||
regardless of whether the governing body or a board, commission, | ||
department, or official of the municipality is required by | ||
applicable law to make a determination that the nonconforming use | ||
has an adverse effect or other determination before the | ||
nonconforming use is required to stop. | ||
SECTION 4. 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, 2023. |