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       A BILL TO BE ENTITLED   AN ACT   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.