Bizios v. Town of Lakewood Vill.

• Decision Date: 31 December 2014
• Docket Number: NO. 02–14–00143–CV,02–14–00143–CV
• Parties: Harry Bizios, Appellant v. Town of Lakewood Village, Texas, Appellee
• Court: Texas Court of Appeals

453 S.W.3d 598

Harry Bizios, Appellant
v.
Town of Lakewood Village, Texas, Appellee

NO. 02–14–00143–CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: December 31, 2014

David F. Johnson, Arthur J. Anderson, Winstead PC, Dallas, for Appellant.

William Andrew Messer, Jennifer W. Decurtis, Brenda N. McDonald, Messer, Rockefeller & Fort, PLLC, Frisco, for Appellee.

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

OPINION

BOB McCOY, JUSTICE

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 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

453 S.W.3d 600

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 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., LP., 446 S.W.3d 823, 826 (Tex.App.—Fort Worth 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

453 S.W.3d 601

Local government code chapter 212, “Municipal Regulation of Subdivisions and Property Development,” contains eight subchapters, most of which are not 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:

(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

453 S.W.3d 602

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.’ ” 446 S.W.3d 823, 827. 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 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 the largest...