13-013RESOLUTION NO. 13-013
A RESOLUTION OF THE CITY OF SOUTHLAKE, TEXAS
FORMALLY OPPOSING HOUSE BILL 1496, A BILL WHICH
SEEKS TO SEVERELY LIMIT THE CITY'S AUTHORITY TO
REGULATE MINERAL EXPLORATION, PRODUCTION AND
DEVELOPMENT WITHIN ITS TERRITORIAL LIMITS; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Southlake, Texas, is a home -rule municipality acting
under its charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas
Constitution and Chapter 9 of the Local Government Code; and
WHEREAS, on February 19, 2013, Representative Van Taylor filed HB 1496,
which bill seeks to amend the Texas Private Real Property Rights Preservation Act (the
"Act") to include within its scope "an action by a political subdivision that imposes or
enforces a limitation that has the effect of preventing or prohibiting the development of
an oil or gas well that has been permitted by the Texas Railroad Commission under
Chapter 91, Natural Resources Code;" and
WHEREAS, in its application, H.B. 1496 would render any City action
governing mineral development (with the limited exception of visual aesthetics, noise
abatement and hours of operation) subject to extremely onerous limitations, which would
have the effect of undermining regulations designed to protect the public health, safety
and general welfare; and
WHEREAS, the Texas Private Real Property Rights Preservation Act was
adopted by the Legislature in 1995; and
WHEREAS, according to the Texas House Committee on Land and Resource
Management, Interim Report 1996 (1996) at 7-8, the passage of the Act was primarily in
response to: (1) the passage of Edwards Aquifer Authority Act in 1993 governing and
limiting the use of water from the Edwards Aquifer by private property owners; and (2)
plans, in 1994, by the United States Fish and Wildlife Service to designate all or portions
of thirty-three counties in Central Texas as critical habitat for the golden cheeked warbler
under the federal Endangered Species Act; and
WHEREAS, since its inception, the Act has never applied to municipal
regulations that affect activities occurring within the territorial limits of a City; and
WHEREAS, Section 2007.002 (5)(B)(ii) of the Act creates a statutory "takings"
scheme targeting any governmental action within its scope that "is the producing cause of
a reduction of at least 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;" and
WHEREAS, Section 2007.004 (a) of the Act provides that "sovereign immunity
to suit and liability is waived and abolished to the extent of liability created by this
chapter" thereby subjecting municipalities to liability for the application of legitimate
regulations designed to protect the public; and
WHEREAS, if a court concludes that the Act is violated, it is required, pursuant
to section 2007.024 of the Act, to order the governmental entity "to rescind the
governmental action, or the part of the governmental action resulting in the taking, as
applied to the private real property owner not later than the 30th day after the date the
judgment is rendered or the decision or order is issued" unless the governmental entity
elects to "pay the damages as compensation to the private real property owner" in the
amount of the diminution in value to the property attributable to the governmental
entity's action; and
WHEREAS, Section 2007.026 of the Act creates a mandatory award of
attorney's fees and court costs to the prevailing party, even where the governmental
entity elects to rescind the offending action; and
WHEREAS, the sole purpose of HB 1496 is to remove the current exemption
under the Act for municipal regulations affecting mineral development - for the exclusive
benefit of the mineral estate owner and the oil and gas industry; and
WHEREAS, f B 1496, which purports to increase private property rights
protection, confers no rights or benefits on surface estate owners and instead increases the
possibility that the property values of surface estate owners could be adversely affected;
and
WHEREAS, HB 1496, which purports to increase private property rights
protection, confers no rights or benefits on local commerce or industry, other than the oil
and gas industry; and
WHEREAS, the application of the Act to the municipal regulation of mineral
development will subject cities to the uncertainty of litigation and will unquestionably
have a chilling effect on future local regulation, leaving surface property owners and
neighboring businesses with no local forum within which to address their concerns or
grievances; and
WHEREAS, the United States and Texas Constitutions currently afford
aggrieved property owners a legitimate "takings" forum and the right to a redress of their
grievances caused by Texas municipalities; and
WHEREAS, Texas municipalities have been empowered by the Texas
Constitution and the Texas Legislature to promote public health, safety, morals and
general welfare through the adoption of reasonable regulations; and
WHEREAS, as early as 1935, courts have recognized the authority and
importance of Texas municipalities in regulating urban drilling within their boundaries
(see Tysco Oil Co. v. R.R. Comm'n (Tysco 1), 12 F. Supp. 195 (S.D. Tex 1935)); and
WHEREAS, during the 82nd regular session (2011) the Texas legislature
declined to adopt HB 3105, which bill mirrors the intent and purpose of HB 1496; and
WHEREAS, the City Council of the City of Southlake finds and determines that
the HB 1496: 1) is unnecessary given the right of property owners to seek a redress of
their grievances pursuant to the United States and Texas Constitutions; 2) would
undermine public health and safety protections by making it extremely expensive and
risky to implement new regulations; and 3) unfairly favors the mineral estate owner and
the oil and gas industry over other Texas property owners and businesses; and
WHEREAS, the City Council of the City of Southlake further finds and
determines that local elected officials are in the best position to fairly judge the impact of
local land uses occurring within their own communities, including mineral development,
and are in a unique position to regulate in a manner that best protects local property
values and the public health, safety, morals and general welfare.
NOW THEREFORE, BE IT RESOLVED BY THE CITY OF
SOUTHLAKE, TEXAS THAT:
SECTION 1.
In recognition of the foregoing recitals, the City Council of the City of Southlake,
Texas, respectfully expresses its staunch opposition to HB 1496 and urges the defeat of
this bill.
SECTION 2.
This Resolution shall be effective from its date of adoption.
PASSED AND APPROVED ON THIS 5" DAY OF MARCH, 2013.
MAYOR
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