HB2149 - Relating to nonconforming land uses after the adoption of or change to a zoning regulation or boundary.

      By: Tepper H.B. No. 2149       A BILL TO BE ENTITLED   AN ACT   relating to nonconforming land uses after the adoption of or change   to a zoning regulation or boundary.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Subtitle Z, Title 10, Government Code, is   amended by adding Chapter 3001 to read as follows:   CHAPTER 3001. RIGHT TO CONTINUE OR MODIFY NONCONFORMING LAND USE           Sec.   3001.001.     DEFINITION. In this chapter,   "nonconforming" means a structure or use of property that:                 (1)     exists on the date of the adoption of or change to   a state or local law or regulation; and                 (2)     is considered to be out of compliance with the   adopted or changed law or regulation after and because of the   adoption or change.           Sec.   3001.002.     RIGHT TO CONTINUE OR MODIFY NONCONFORMING   STRUCTURE OR LAND USE. Except as provided by Subchapter A, Chapter   211, Local Government Code, and federal law and federal   regulations, this state or a political subdivision of this state   may not prohibit or restrict:                 (1)  the repair of a nonconforming structure;                 (2)     a person from continuing a nonconforming use of a   property after the repair of a nonconforming structure or   construction of a new building or structure to replace a damaged   nonconforming structure; or                 (3)     modification or expansion of a nonconforming use   of a property if the modification or expansion is necessary to:                       (A)     continue the nonconforming use of the   property; or                       (B)     protect the health and safety of the property   or occupants.          SECTION 2.  The heading to Section 211.019, Local Government   Code, is amended to read as follows:          Sec. 211.019.  NONCONFORMING LAND USE ; REMEDY; AGREEMENT .          SECTION 3.  Section 211.019, Local Government Code, is   amended by amending Subsections (b), (d), (e), (f), (g), (h), (i),   and (l) and adding Subsections (b-1), (f-1), and (f-2) to read as   follows:          (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 the person agrees  [ required by a   municipality ] to stop the nonconforming use of the property   pursuant to an agreement with the municipality in which the   property is located under Subsection (b-1) .           (b-1)     A municipality may not require a person to stop a   nonconforming use of a property unless the municipality enters into   an agreement with the person to stop the nonconforming use.   Subject   to Section 211.020, a person may continue the nonconforming use of   the property unless the person enters into an agreement with the   municipality as provided by this subsection.   An agreement under   this subsection must stipulate:                 (1)     the amount of the payment from the municipality to   the person as prescribed by Subsection (d)(1); or                 (2)     the period during which the person may continue   the nonconforming use of the property as prescribed by Subsection   (d)(2).          (d)  If a municipality and  [ requires ] a property owner or   lessee enter into an agreement  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 municipality makes a determination that   the municipality seeks  [ 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 seeks to   require  [ 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 for a   period, as determined by the owner or lessee, sufficient for   [ until ] the owner or lessee to recover [ 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 makes a determination that the municipality seeks     [ 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 operating  [ required to   stop ] a nonconforming use of the property :                 (1)     that the municipality seeks to stop the   nonconforming use of the property;                 (2)     if the owner or lessee of the property agrees to   stop the nonconforming use,  of the [ requirement and of the ]   remedies to which an owner or lessee of the property is entitled   [ to ] under Subsection (d) ; and                 (3)     that the municipality is required to enter into an   agreement with the owner or lessee of the property for the purpose   of stopping the nonconforming use and deciding which remedy under   Subsection (d) the owner or lessee will choose .          (f)  The owner or lessee of a property that agrees  [ 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.           (f-1)     In the event of a conflict in the choice of remedy as   described by Subsection (f), an agreement under Subsection (b-1)   must incorporate the choice of remedy that controls under   Subsection (f).           (f-2)     In a timely manner after responding to the notice   given under Subsection (e), if the owner or lessee agrees to stop   the nonconforming use, the owner or lessee and the municipality   shall enter into an agreement to stop the nonconforming use of the   property as provided by this section.          (g)  A person receiving a payment under Subsection (d)(1)   pursuant to an agreement entered into under Subsection (b-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) pursuant to an agreement entered into under   Subsection (b-1) 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 :                 (1)   apportion the payment between each person based on   the market value of the person's interest in the property ; and                   (2)     explicitly state the apportionment in the   agreement entered into with the person under Subsection (b-1) .  [ A   person may appeal the apportionment in the manner provided by this   section. ]          (l)  A person seeking to continue a nonconforming use under   Subsection (d)(2) who brings an action for declaratory relief under   Section 211.0202 [ appeals the decision of the municipality or board   of adjustment ] may continue to use the property in the same manner   while the action is 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.          SECTION 4.  Subchapter A, Chapter 211, Local Government   Code, is amended by adding Sections 211.020, 211.0201, and 211.0202   to read as follows:           Sec.   211.020.     RIGHT TO RESUME NONCONFORMING LAND USE. (a)     This section does not apply to a person who changes or stops a   nonconforming use of a property and receives a payment or continues   the nonconforming use for a period of time, pursuant to an agreement   under Section 211.019(b-1).           (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 who changes the use of the property to   a conforming use or otherwise stops the nonconforming use of the   property may resume the nonconforming use of the property if the   person resumes the nonconforming use of the property before the   fifth anniversary of the date the person changed or stopped the   nonconforming use.           Sec.   211.0201.     RIGHT TO CONTINUE OR MODIFY NONCONFORMING   LAND USE. A municipality may not prohibit or restrict:                 (1)  the repair of a nonconforming structure;                 (2)     a person from continuing a nonconforming use of a   property in accordance with this subchapter after the repair of a   nonconforming structure or construction of a new building or   structure to replace a damaged nonconforming structure; or                 (3)     modification or expansion of a nonconforming use   [Text truncated for display. Full text available on Congress.gov.]