Bill Text: TX SB360 | 2015-2016 | 84th Legislature | Introduced


Bill Title: Relating to regulatory takings.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2015-02-02 - Referred to State Affairs [SB360 Detail]

Download: Texas-2015-SB360-Introduced.html
 
 
  By: Estes S.B. No. 360
 
 
 
   
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to 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) to read as follows:
               (5)  "Taking" means:
                     (A)  a governmental action or series of actions
  within a 10-year period 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
  within a 10-year period 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 either
                           (ii)  is the producing cause of a reduction
  of at least 20 [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
                           (iii)  is the producing cause of at least a
  20 percent reduction of revenue or income from the use or sale of
  the affected real private property, determined by comparing the
  revenue or income from the use or sale of the property as if the
  governmental action is not in effect and the revenue or income from
  the use or sale of the property determined as if the governmental
  action is in effect.
         SECTION 2.  Section 2007.003, Government Code, is amended by
  amending Subsections (a) and (b) 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, 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;
               (5) [(7)]  an action taken based on reasonable evidence
  [out of a reasonable good faith belief] that the action is necessary
  to prevent a grave and immediate threat to public health or safety,
  life, or property and does not impose a greater burden than is
  necessary to address the threat;
               (6) [(8)]  a formal exercise of the power of eminent
  domain;
               (7) [(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;
               (8) [(10)     a rule or proclamation adopted for the
  purpose of regulating water safety, hunting, fishing, or control of
  nonindigenous or exotic aquatic resources;
               [(11)]  an action taken by a political subdivision [:
                     [(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;
               (9) [(12)]  the appraisal of property for purposes of
  ad valorem taxation; or
               (10) [(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.
         SECTION 3.  Section 2007.021, Government Code, is amended by
  amending Subsection (b) and adding Subsection (c) 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; or
               (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 [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].
         (c)  A political subdivision may, in anticipation of or in
  response to a suit under this chapter, as part of a settlement
  agreement with a private real property owner or for any other
  legitimate purpose, issue a waiver of enforcement of a governmental
  action with regard to any parcel of land.
         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; or
               (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 [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 2007.023(b), Government Code, is amended
  to read as follows:
         (b)  If the trier of fact in a suit or contested case filed
  under this subchapter finds that the governmental action is a
  taking under this chapter, the private real property owner is only
  entitled to, and the governmental entity is only liable for:
               (1)  [,] invalidation of the governmental action or the
  part of the governmental action resulting in the taking; and
               (2)  damages determined under Section 2007.024(b).
         SECTION 6.  Section 2007.024, Government Code, is amended by
  amending Subsection (b) and adding Subsection (b-1) to read as
  follows:
         (b)  The judgment or final decision or order shall include a
  fact finding that determines the monetary damages suffered by the
  private real property owner as a result of the taking, including, if
  the governmental action has ceased or has been rescinded, amended,
  invalidated, or repealed, the temporary or permanent economic loss
  sustained by the private real property owner while the governmental
  action was in effect.
         (b-1)  The amount of damages under Subsection (b) is
  determined from the date of the taking.
         SECTION 7.  Section 2007.026(b), Government Code, is amended
  to read as follows:
         (b)  The court or the state agency shall award a governmental
  entity that prevails in a suit or contested case filed under this
  subchapter reasonable and necessary attorney's fees and court costs
  only if the court determines that the private real property owner
  knew that the suit or contested case had no merit at the time the
  owner filed the suit or contested case.
         SECTION 8.  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 Sections [Section]
  2007.003(a)(1) and (2) [through (3)] that may result in a taking.
         SECTION 9.  Section 2007.042(a), Government Code, is amended
  to read as follows:
         (a)  A political subdivision that proposes to engage in a
  governmental action described in Section 2007.003(a)(1) or (2)
  [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.
         SECTION 10.  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) or (2) 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 11.  The change in law made by this Act applies only
  to a governmental action or series of actions that commences on or
  after the effective date of this Act. A governmental action or
  series of actions that commences before the effective date of this
  Act is governed by the law in effect immediately before that date,
  and that law is continued in effect for that purpose.
         SECTION 12.  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, 2015.
feedback