Harry Bizios v. Town of Lakewood Village, Texas

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00143-CV
HARRY BIZIOS APPELLANT
V.
TOWN OF LAKEWOOD VILLAGE, APPELLEE
TEXAS
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 14-01991-431
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OPINION
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In this accelerated interlocutory appeal, Appellant Harry Bizios complains
of the trial court’s injunction requiring him to obtain permits from and allow
building inspections by Appellee the Town of Lakewood Village pursuant to the
Town’s ordinances. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (West
Supp. 2014). In his first of three issues, Bizios contends that the Town, as a
Type-A general-law municipality with approximately 620 inhabitants, does not
have constitutional or statutory authority to apply its building code to its
extraterritorial jurisdiction (ETJ). In his second issue, he argues that even if the
Town had such authority, it does not apply here because the Town is prohibited
from applying its subdivision regulations to his property under local government
code section 212.007. See Tex. Loc. Gov’t Code Ann. § 212.007 (West 2008).
The Town is surrounded by a half-mile ETJ1 that encompasses a portion of
the Sunrise Bay subdivision where Bizios started to build his home in March
2014.2 The Town does not provide any services to the subdivision; Little Elm, a
more populous home-rule city, provides water to the subdivision, each lot has an
individual septic system, and Denton County maintains the subdivision’s roads
outside of Little Elm’s city limits.3 Little Elm and Denton County approved the
subdivision’s final plat in 1995. No plat was filed with the Town.
Bizios bought his lot, which is located entirely in the Town’s ETJ, in 2013.
Bizios applied for and received a development permit from Denton County. It is
1
An ETJ is “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 municipality’s population. Tex. Loc. Gov’t Code
Ann. § 42.021 (West Supp. 2014).
2
The rest of the subdivision is located in Little Elm and Little Elm’s ETJ.
3
Linda Asbell, secretary for the Town, testified that the Town would charge
Bizios around $14,646 as a building permit fee for his house and that the only
services it would in turn supply would be “[b]uilding department services”
because Bizios was not within the Town’s city limits. Alan Hoffman, Bizios’s
homebuilder, testified that he did not see anything in the Town’s building permit
regulation process that would enhance the health, safety, or durability of the $1.2
million house he was building on Bizios’s two-acre lot.
2
undisputed that short of the Town’s building permit, Bizios had obtained all of the
permits required to build his home. The Town sought and received a temporary
injunction against Bizios to stop construction on his lot until he obtained the
Town’s building permit. The Town relied on local government code section
212.003 and “Chapter 212” to support its claim to relief in the trial court,
contending that Bizios had violated ordinance 11-16.
While we review a trial court’s grant of a temporary injunction for an abuse
of discretion, Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (op. on
reh’g), the temporary injunction’s validity here rests upon the trial court’s
construction of the local government code, which we review de novo. See City of
Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex. 2000); El Paso
Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999). In
construing a statute, our objective is to determine and give effect to the
legislature’s intent, looking first to the “‘plain and common meaning of the
statute’s words.’” State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (quoting
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.
1999)); see also Tex. Gov’t Code Ann. § 312.005 (West 2013) (“In interpreting a
statute, a court shall diligently attempt to ascertain legislative intent and shall
consider at all times the old law, the evil, and the remedy.”); Am. Home Prods.
Corp. v. Clark, 38 S.W.3d 92, 95 (Tex. 2000) (“When we construe a statute, our
objective is to determine and give effect to the Legislature’s intent.”). If a
statute’s meaning is unambiguous, we generally interpret the statute according to
3
its plain meaning. Gonzalez, 82 S.W.3d at 327. We determine legislative intent
from the entire act and not just its isolated portions. Id. (citing Jones v. Fowler,
969 S.W.2d 429, 432 (Tex. 1998)). Thus, we “‘read the statute as a whole and
interpret it to give effect to every part.’” Id. (quoting Jones, 969 S.W.2d at 432).
The issue here is whether the Town, as a general-law municipality, has the
authority to extend its building code to its ETJ.4 The Town argues that the
legislature has given it authority to regulate development and thus to extend its
building code to its ETJ under local government code sections 212.002 and
212.003; it also relies on sections 214.212, 214.904(a), and 233.153(c) to
support its argument. See Tex. Loc. Gov’t Code Ann. §§ 212.002–.003, 214.212,
214.904 (West 2008), § 233.153(c) (West Supp. 2014).
Because a municipality possesses authority to regulate land development
in its ETJ only to the extent it is legislatively granted that authority, legislatively-
created express limitations to that grant of authority—such as local government
code section 212.003—are construed strictly against the authority of the
municipality and in favor of the landowner. Town of Annetta S. v. Seadrift Dev.,
4
This is an issue of first impression in this court. See Rhino Real Estate
Invs., Inc. v. City of Runaway Bay, No. 02-08-00340-CV, 2009 WL 2196131, at
*1 n.4, *2 (Tex. App.—Fort Worth July 23, 2009, no pet.) (mem. op.) (disposing
appeal on another ground and not reaching city’s argument that it had authority
under section 212.002 to extend its building code ordinances to its ETJ); see also
Hartsell v. Town of Talty, 130 S.W.3d 325, 327–29 (Tex. App.—Dallas 2004, pet.
denied) (resolving case under local government code chapter 245 instead of
reaching whether town had authority to extend building code ordinance to its
ETJ).
4
L.P., No. 02-12-00171-CV, 2014 WL 5013292, at *2 (Tex. App.—Fort Worth
Sept. 25, 2014, pet. filed); see also FM Props. Operating Co. v. City of Austin, 22
S.W.3d 868, 902 (Tex. 2000) (“[A] city’s authority to regulate land development in
its ETJ is wholly derived from a legislative grant of authority.”); Milestone
Potranco Dev., Ltd. v. City of San Antonio, 298 S.W.3d 242, 247 (Tex. App.—
San Antonio 2009, pet. denied) (stating that the similarities between zoning
ordinances that a municipality may adopt under section 211.003 and the list of
items a municipality is prohibited from regulating under section 212.003 reveals
the legislature’s intent to prohibit a municipality from regulating zoning-type uses
in the ETJ).5
Local government code chapter 212, “Municipal Regulation of Subdivisions
and Property Development,” contains eight subchapters, most of which are not
5
A municipality’s power normally ends at the city limit and does not
automatically include the ETJ; rather, a city may only extend its authority to the
ETJ if authorized by the State. See Payne v. Massey, 145 Tex. 237, 240, 196
S.W.2d 493, 495 (1946) (“Municipalities . . . possess only such powers and
privileges as have been expressly or impliedly conferred upon them. All acts
done by them must find authority in the law of their creation.”); City of Lubbock v.
Phillips Petroleum Co., 41 S.W.3d 149, 159 (Tex. App.—Amarillo 2000, no pet.)
(noting that “a city may only exercise its powers within its corporate limits unless
its authority is expressly extended”); City of Sweetwater v. Hamner, 259 S.W.
191, 195 (Tex. Civ. App.—Fort Worth 1923, writ dism’d) (holding that all the
powers and privileges conferred on a municipality by the constitution and
legislature apply only within the municipality’s boundaries, and a municipality can
only extend its power outside city limits when granted express legislative
authority).
5
pertinent to the issue before us.6 Subchapter A, “Regulation of Subdivisions,”
contains section 212.002, “Rules,” which provides that “a municipality may adopt
rules governing plats and subdivisions of land within the municipality’s jurisdiction
to promote the health, safety, morals, or general welfare of the municipality and
the safe, orderly, and healthful development of the municipality.”7 Tex. Loc. Gov’t
Code Ann. § 212.002 (emphasis added).
Section 212.003(a), the first subsection under the heading, “Extension of
Rules to Extraterritorial Jurisdiction,” states,
The governing body of a municipality by ordinance may extend to
the extraterritorial jurisdiction of the municipality the application of
municipal ordinances adopted under Section 212.002 and other
municipal ordinances relating to access to public roads or the
pumping, extraction, and use of groundwater by persons other than
retail public utilities, as defined by Section 13.002, Water Code, for
the purpose of preventing the use or contact with groundwater that
presents an actual or potential threat to human health. However,
unless otherwise authorized by state law, in its extraterritorial
jurisdiction a municipality shall not regulate:
6
Chapter 212’s subchapters address not only the regulation of subdivisions
and property development but also enforcement of land-use restrictions in plats
and other instruments, developer sureties, school land development, county-
owned buildings, and apportionment of municipal infrastructure costs, among
others. See generally Tex. Loc. Gov’t Code Ann. §§ 212.001–.904 (West 2008 &
Supp. 2014).
7
Subchapter A does not define “development.” Subchapter B defines
“development” for that subchapter’s purposes. Tex. Loc. Gov’t Code Ann.
§ 212.043(1). Although the Town relies on “development” as mentioned in
section 212.002 to support its argument, nothing in subchapter B states that its
definitions apply to any other subchapter, and the Town states in its appellate
brief that subchapter B does not apply to it.
6
(1) the use of any building or property for business, industrial,
residential, or other purposes;
(2) the bulk, height, or number of buildings constructed on a
particular tract of land;
(3) the size of a building that can be constructed on a particular
tract of land, including without limitation any restriction on the
ratio of building floor space to the land square footage;
(4) the number of residential units that can be built per acre of
land; or
(5) the size, type, or method of construction of water or wastewater
facility that can be constructed to serve a developed tract of
land [upon various conditions not at issue here].
Id. § 212.003(a) (emphasis added).8 As we stated in Town of Annetta South,
“The purpose of these restrictions on a municipality’s authority to impose
regulations on land in the municipality’s ETJ is to prohibit the municipality’s
extension of zoning ordinances into its ETJ under the guise of cleverly drafted
rules ‘governing plats and subdivisions of land.’” 2014 WL 5013292, at *3.
Therefore, unless otherwise authorized by state law, per section 212.003(a)’s
plain language, a municipality cannot extend its ordinances as to the use of any
building or the bulk, height, or size of such buildings, among other things, into its
8
In comparison, local government code chapter 211 addresses general
zoning regulations within a municipality and permits the governing body of a
municipality to regulate the height, number of stories, and size of buildings and
other structures; the percentage of a lot that may be occupied; the size of yards,
courts, and other open spaces; and the location and use of buildings and land for
residential purposes, among other things. See Tex. Loc. Gov’t Code Ann.
§ 211.003 (West 2008).
7
ETJ, which is what the Town purports to do in ordinance 10-01.9 See id.; see
also Tex. Loc. Gov’t Code Ann. § 212.003(a)(1)–(2) (prohibiting regulation in the
ETJ of use of buildings or bulk, height, or number of buildings without express
authorization by other state law); Dallas Merchant’s & Concessionaire’s Ass’n v.
City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993) (stating that an ordinance that
attempts to regulate a subject matter preempted by a state statute is
unenforceable to the extent it conflicts with a state statute).
Further, section 212.007(a) provides that for “a tract located in the
extraterritorial jurisdiction of more than one municipality, the authority responsible
for approving a plat under this subchapter is the authority in the municipality with
9
Under ordinance 10-01, the Town seeks to apply its “uniform and
minimum standards for the construction, erection, and maintenance of buildings
and other structures in order to protect and promote the public health, safety, and
welfare of the citizens of the Town and the Extraterritorial Jurisdiction of the
Town.” Ordinance 10-01 contains the following new construction requirements,
among others: “[t]here shall be a garage size requirement on all new construction
of a minimum of 25 feet in width and 22 feet in depth,” “[t]here shall be no
buildings, residential or commercial, that exceed 35 foot in height,” and
“[s]econdary structures will be permitted as new construction with minimum
square footage requirements waived as long as secondary structure is contained
within the property lines of the primary residence lot(s) and required set backs
are met.” For this, and other services, the Town charges the following fees:
$1.25 for each square foot of the building in the ETJ for a building permit; $250
for flatwork, other than foundations, such as sidewalks, driveways, and patios for
the first two inspections, followed by $75 per inspection after the second
inspection; 65% of the building permit fee as a plan review fee, which “is a
separate fee from all other fees and is in addition to the permit fee”; annual
registration fees of $500 for a general contractor and $100 for subcontractors—
the Town requires contractors to submit to its registration process to work on the
construction job; $150 for a fence permit; $150 for a sprinkler permit; $150 for an
electrical permit; $150 for a plumbing permit; and $500 as a Board-of-Appeals
fee for structures over 5,001 square feet, among others.
8
the largest population.”10 Tex. Loc. Gov’t Code Ann. § 212.007(a). As reflected
through the testimony at the hearing, Little Elm, not the Town, had the authority
to approve the plat for Bizios’s subdivision and did so in 1995.
Subchapter B of chapter 212, “Regulation of Property Development,”
grants a municipality the authority to adopt plans, rules, or ordinances governing
development plats of land within its limits and in its ETJ. Id. § 212.044.
“Development” under subchapter B means “the new construction or the
enlargement of any exterior dimension of any building, structure, or
improvement.” Id. § 212.043(1). Anyone who proposes to develop a tract of land
located in the municipality or its ETJ under this subchapter must have a
development plat of the tract prepared in accordance with the applicable plans,
rules, or ordinances of the municipality, id. § 212.045(a), but if a person is
required under subchapter A or another ordinance to file a subdivision plat, “a
development plat is not required in addition to the subdivision plat,” id.
§ 212.045(d) (emphasis added).
10
Although the Town argues that the “tract” at issue here was Bizios’s lot,
which was entirely within its ETJ, in the context of subchapter A of chapter 212,
which covers regulation of subdivisions, we understand the reference to “tract”
here to mean a larger tract that has been subdivided into lots, per the plat
requirement set out in section 212.004, which states, in pertinent part, “The
owner of a tract of land located within the limits or in the extraterritorial
jurisdiction of a municipality who divides the tract in two or more parts to lay out a
subdivision of the tract . . . must have a plat of the subdivision prepared.” Tex.
Loc. Gov’t Code Ann. § 212.004(a).
9
To obtain the authority to require a development plat under subchapter B,
the municipality must adopt subchapter B, and the Town has not done so. See
id. § 212.041. Any provisions of subchapter A that do not conflict with
subchapter B apply to subchapter B’s development plats. Id. § 212.042. While
the municipality, county, or other official who issues building or other
development permits may not issue a permit for lots or tracts subject to this
subchapter until a development plat is filed with and approved by the municipality
under section 212.047,11 id. § 212.046, “[t]his subchapter does not authorize the
municipality to require municipal building permits or otherwise enforce the
municipality’s building code in its extraterritorial jurisdiction,” id. § 212.049
(emphasis added). Because the subdivision plat of Bizios’s neighborhood was
already approved by the municipality with authority to approve it, and because
even if Little Elm had not previously approved the subdivision plat, the Town has
11
Section 212.047 provides that a municipality shall endorse approval on a
development plat filed with it if the plat conforms to the general plans, rules, and
ordinances of the municipality concerning its current and future streets,
sidewalks, alleys, parks, playgrounds, and public utility facilities, as well as the
general plans, rules and ordinances for the extension of the municipality or the
extension, improvement, or widening of its roads, streets, and public highways in
the municipality and its ETJ, taking into account access to and extension of
sewer and water mains and instrumentalities of public utilities, as well as any
general plans, rules, or ordinances adopted under section 212.044. Tex. Loc.
Gov’t Code Ann. § 212.047. Approval of a development plat is not considered an
acceptance of any proposed dedication for public use or use by persons other
than the owner of the property covered by the plat and does not impose on the
municipality any duty regarding the maintenance or improvement of any
purportedly dedicated parts until the municipality’s governing body makes an
actual appropriation of the dedicated parts by formal acceptance, entry, use, or
improvement. Id. § 212.048.
10
not adopted subchapter B, subchapter B does not apply here, but the existence
of subchapter B shows some evidence of the legislature’s intent that a
municipality not be authorized to enforce its building code in its ETJ.12 See id.
§ 212.049.
12
The Town argues that under section 212.003, it can adopt a building
code in its ETJ because of the use of the word “development” in section 212.002
and that subchapter A authorizes the extension because extending its building
code promotes development. However, when the legislature enacts a statute, it
is presumed that “the entire statute is intended to be effective.” Tex. Gov’t Code
Ann. § 311.021(2) (West 2013). If the Town’s interpretation were correct and
section 212.002 included the regulation of development of housing under
subchapter A, then there would be no reason for Subchapter B.
Before the legislature added subchapter B, the Dallas Court of Appeals
held that “subdivision of land suggests development.” City of Lucas v. N. Tex.
Mun. Water Dist., 724 S.W.2d 811, 818 (Tex. App.—Dallas 1986, writ ref’d n.r.e.)
(op. on reh’g). This case was decided under article 970a, section 4 of the
revised civil statutes, which became section 212.003. Id. at 817–18, 820. Article
970a, section 4 provided, in pertinent part, “The governing body of any city may
extend by ordinance to all of the area under its extraterritorial jurisdiction the
application of such city’s ordinance establishing rules and regulations governing
plats and the subdivision of land.” Act of April 25, 1963, 58th Leg., R.S., ch. 160,
§ 4, 1963 Tex. Gen. Laws 449, 449, repealed by Act of April 30, 1987, 70th Leg.,
R.S., ch. 149, § 49, 1987 Tex. Gen. Laws 1306, 1306–08. As set out above,
section 212.003 contains substantially more limitations on a municipality’s
authority to extend its subdivision rules into its ETJ. See Tex. Loc. Gov’t Code
Ann. § 212.003(a). In Lucas, on rehearing, the court clarified that the city’s
requirement of a building permit before construction in its ETJ was supported by
article 970a because “use of the term [subdivision] is not restricted to the division
itself but also encompasses the development of the divided tracts.” Id. at 823.
The court concluded that the power over subdivisions conferred by article 970a
“necessarily or fairly implies a right to issue regulations governing construction of
housing, buildings, and the components thereof.” Id. at 823–24. When the court
decided Lucas, it might have been logical to infer this meaning because the
legislature had not spoken otherwise; after Lucas, however, the legislature added
restrictions to section 212.003(a) and added subchapter B, distinguishing
“development” as separate from “subdivision and plats.” See Tex. Loc. Gov’t
Code Ann. § 212.043(1) (defining “development”); City of Austin v. Jamail, 662
11
We have also reviewed chapter 214, which governs municipal regulation of
housing and other structures, and chapter 233, which governs the same as to
counties. See id. §§ 214.001–.906 (West 2008), §§ 233.001–.901 (West 2005 &
Supp. 2014). Subchapter G of chapter 214, “Building and Rehabilitation Codes,”
provides that the International Residential Code “is adopted as a municipal
residential building code in this state.” Id. §§ 214.211–.212(a). However, the
legislature restricted its application to “all construction, alteration, remodeling,
enlargement, and repair of residential structures in a municipality.” Id.
§ 214.212(b) (emphasis added). Although section 214.904, “Time for Issuance
of Municipal Building Permit,” states that “[t]his section applies only to a permit
required by a municipality to erect or improve a building or other structure in the
municipality or its extraterritorial jurisdiction,” id. § 214.904, we read this section
in conjunction with the rest of the subchapter to apply to the municipalities
granted such capacity, i.e., home-rule municipalities, see, e.g., id. § 214.901
(stating that a home-rule municipality may require that the construction of
buildings comply with the energy conservation standards in the municipal
building code), and in the context of other specific local government code
provisions that expressly grant authority to extend a regulation into an ETJ. See
S.W.2d 779, 781 (Tex. App.—Austin 1983, writ dism’d) (noting that the court
must give effect to the more specific statute so as not to make it superfluous);
see also Tex. Gov’t Code Ann. § 311.026(a) (West 2013) (“If a general provision
conflicts with a special or local provision, the provisions shall be construed, if
possible, so that effect is given to both.”).
12
id. § 216.902 (West 2008) (authorizing municipality to extend outdoor sign
regulation to ETJ), § 372.003 (West Supp. 2014) (authorizing municipality to
undertake improvement project in ETJ), § 377.002 (West 2005) (authorizing
municipality to create municipal development district in ETJ), § 382.109 (West
Supp. 2014) (requiring road projects to meet all applicable standards of each
municipality in whose ETJ a district improvement project is located), § 395.011
(West 2005) (authorizing municipality to impose impact fee in ETJ).
Subchapter F of chapter 233, “Residential Building Code Standards
Applicable to Unincorporated Areas of Certain Counties,” was adopted by order
of the Denton County Commissioners Court in January 2010 to apply to “certain
residential construction in unincorporated areas of Denton County.” See id.
§ 233.152. This subchapter requires new residential construction in an area of
the county to which the subchapter applies to conform with the International
Residential Code unless “a municipality located within a county to which this
subchapter applies has adopted a building code in the municipality’s
extraterritorial jurisdiction,” in which case the municipality’s building code controls
“and building code standards under this subchapter have no effect in the
municipality’s extraterritorial jurisdiction.” Id. § 233.153(a), (c). Again, as nothing
in the local government code explicitly authorizes a general law municipality to
extend its building code to its ETJ, we read this section as applying to home-rule
municipalities because a general-law municipality can exercise only those
powers that the legislature confers on it by law. See City of W. Lake Hills v.
13
Westwood Legal Defense Fund, 598 S.W.2d 681, 683 (Tex. Civ. App.—Waco
1980, no writ.).13 Because none of the statutes referenced by the Town
expressly grant a general-law municipality the authority to extend its building
code into its ETJ, and because we have otherwise found none that does so, the
trial court abused its discretion by granting the injunction. See Tex. Dep’t of
Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004) (“General-law
municipalities . . . are political subdivisions created by the State and, as such,
possess those powers and privileges that the State expressly confers upon
them.”); cf. Tex. Loc. Gov’t Code Ann. § 51.072 (West 2008) (stating that a
home-rule municipality “has full power of local self-government”); Proctor v.
Andrews, 972 S.W.2d 729, 733 (Tex. 1998) (op. on reh’g) (“While a home rule
city . . . has all the powers of the state not inconsistent with the Constitution, the
general laws, or the city’s charter, Tex. Const. art. XI, § 5, these broad powers
may be limited by statute when the Legislature’s intention to do so appears ‘with
13
That is, we read these sections to mean that if a municipality—i.e., a
home-rule municipality—already has the authority to extend its building code to
its ETJ, then it is subject to these sections. See id. § 214.901 (allowing a home-
rule municipality to require that building construction comply with its municipal
building code’s energy conservation standards), § 214.904(b)–(d) (setting out
timing requirements for the issuance of a permit). In order for power to be
implicitly granted, it should be “reasonably incident to those expressly granted,”
see City of W. Lake Hills, 598 S.W.2d at 683, and as set out above, the local
government code does not expressly grant to a general law municipality the
authority to extend any portion of its building code to the ETJ. If the legislature
had intended for a general-law municipality to extend its building code into the
ETJ, it would have expressly granted that authority. Cf. Tex. Loc. Gov’t Code
Ann. §§ 216.902, 372.003, 377.002, 382.109, 395.011.
14
unmistakable clarity.’”); Forwood v. City of Taylor, 147 Tex. 161, 167, 214
S.W.2d 282, 286 (1948) (explaining that a home rule municipality has full
authority to do anything the legislature could have authorized it to do). We
sustain Bizios’s first and second issues and, based on our disposition here, we
do not reach his remaining issue pertaining to vested rights under local
government code chapter 245. See Tex. R. App. P. 47.1.
Having sustained Bizios’s dispositive issues, we reverse the trial court’s
order and remand the case to the trial court for further proceedings.
/s/ Bob McCoy
BOB MCCOY
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DELIVERED: December 31, 2014
15