the Town of Annetta South, Texas Gerhard Kleinschmidt James Ablowich Phillip Kuntz And David Goolsby v. Seadrift Development, L.P. ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00171-CV
THE TOWN OF ANNETTA SOUTH, APPELLANTS/APPELLEES
TEXAS; GERHARD
KLEINSCHMIDT; JAMES
ABLOWICH; PHILLIP KUNTZ; AND
DAVID GOOLSBY
V.
SEADRIFT DEVELOPMENT, L.P. APPELLEE/APPELLANT
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CV11-0220
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DISSENTING OPINION
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This cross-appeal requires this court to determine whether a municipality’s
minimum lot size requirement, when applied to property within the municipality’s
extraterritorial jurisdiction (ETJ), 1 violates a local government provision that
prohibits a municipality from regulating the number of residential units that can be
built per acre of land within its ETJ. Because I conclude that the ordinance at
issue does not violate the local government code, I respectfully dissent.
Local government code section 212.002 provides that a municipality may
adopt rules governing plats and subdivisions of land within its jurisdiction. 2 When
a municipality adopts rules under section 212.002, section 212.003 authorizes it
to apply those rules to the territory in its ETJ. 3 Not every municipal ordinance
adopted under section 212.002 may be extended into the ETJ, however, and
section 212.003 also includes a list of what municipalities may not regulate in
their ETJ. 4 And under that section, unless otherwise authorized by state law, a
municipality may not regulate “the number of residential units that can be built
per acre of land.” 5
1
See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 26 (Tex. 2003)
(“Extraterritorial jurisdiction refers to ‘the unincorporated area that is contiguous
to the corporate boundaries of the municipality’ and is located within a specified
distance of those boundaries, depending upon the number of inhabitants within
the municipality.”).
2
Tex. Loc. Gov’t Code Ann. § 212.002 (West 2008).
3
Id. § 212.003(a).
4
Id.
5
Id. § 212.003(a)(4).
2
Seadrift argued in its summary judgment motion that by adopting the
limitations in 212.003(a), “the Legislature was prohibiting municipalities from
limiting residential density in a town’s extraterritorial jurisdiction.” It contended
that the Town’s ordinance would prohibit it from putting more than one detached
single-family home on a single lot. It then asserted that because this ordinance
requires two-acre lots and because other ordinances of the Town prohibit putting
more than one detached single-family home on each lot, the Town’s ordinance
was merely a method for it to do what was otherwise prohibited by state law:
limit the density of residential development. The trial court agreed with Seadrift,
as does the majority of this panel.
I see two problems with Seadrift’s density argument. First, the local
government code shows that the legislature knows how to say “density” when it
means density. As the Town points out, in the local government code section
setting out generally what zoning regulations a municipality may make, it states
that a municipality may regulate “population density.” 6 And while the zoning
regulations allowed under section 211.003 are remarkably similar to the
regulations not allowed to be imposed in the municipality’s ETJ under section
212.003, the legislature chose not to make these provisions identical. It did not
transfer the “population density” language of section 211.003 to the restrictions in
section 212.003. If the legislature had intended to prohibit under section 212.003
6
Id. § 211.003(a)(4).
3
all of the regulations discussed in section 211.003, it could have easily done so.
Instead, it chose to prohibit under 212.003 only some of the kinds of regulations
listed in section 211.003. It could have used the term “population density” in
section 212.003, as it did in section 211.003, but it chose not to.
The second problem with Seadrift’s density argument is that this ordinance
does not regulate population density. That is, even if section 212.003 contained
a prohibition on regulating density, the ordinance would not violate it. Texas law
treats a condominium unit, a townhouse, and an apartment unit as a “residential
unit.” 7 As Seadrift conceded at oral argument, nothing in the Town’s ordinances
stopped it from putting multifamily homes on its property. Thus, as Seadrift
concedes, the lot-size ordinance does not regulate how many residential units
Seadrift may put on each acre.
Perhaps in adopting section 212.003, the legislature intended to prevent
municipalities from regulating lot size or building density in its ETJ. But that is
not what the statute says, and that is not what the context of the statute
7
See, e.g., Tex. Loc. Gov’t Code Ann. § 214.1955(a) (West 2008) (“A
municipality may not refuse to issue an alarm system permit for a residential
location solely because the residential location is an individual residential unit
located in a multiunit housing facility.”); Tex. Prop. Code Ann. § 12.017(b)(1)
(West Supp. 2014) (“This section applies only to a mortgage on: (1) property
consisting exclusively of a one-to-four-family residence, including a residential
unit in a condominium regime.”), § 62.003(2)(A)(B) (West 2007) (stating that the
term “[c]ommercial real estate” does not include “real estate improved with one to
four residential units” or “a single-family residential unit, including a
condominium, townhouse, or home in a subdivision, if the unit is . . . conveyed on
a unit-by-unit basis and regardless of whether the unit is part of a larger building
or located on real estate containing more than four residential units”).
4
suggests. The plain language of section 212.003 prohibits regulation of the
number of residential units per lot. 8 The plain language of the Town’s ordinance
regulates lot size.
The ordinance stops Seadrift from developing the property in the way it
would prefer. Section 212.003, however, does not give a developer carte
blanche to develop land in an ETJ for whatever use it would prefer. The limit on
the number of residential units that Seadrift may put on its property is the result
of Seadrift’s own choice to build only single-family homes. I would hold that the
trial court erred by declaring that the Town’s ordinance setting out a minimum lot
size in its ETJ violated state law and by granting summary judgment for Seadrift
on that basis.
The majority opinion states that “although multiple duplexes, triplexes, and
apartment complexes may technically be built on a single two-acre lot in the
Town’s ETJ, they can never be individually sold.” 9 I disagree with the majority’s
emphasis on buyers as opposed to residents. If a developer may put apartments
on a two-acre lot, then the ordinance is not limiting density just because the
apartment units all have the same owner. Density does not depend on how
many individual properties can be sold from a two-acre tract. Density depends
8
See Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex. 2012)
(looking at a statute’s plain and common meaning of the statute’s words to
discern the intent of the statute).
9
Majority op. at 10.
5
on how many residents could live there. Because nothing in the ordinance limits
the number of residents who may reside on a two-acre lot, the ordinance does
not regulate density. I would sustain the Town’s first issue and render judgment
that Seadrift take nothing on its suit.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
DELIVERED: September 25, 2014
6