City of Austin v. Quick

• Decision Date: 31 July 1996
• Docket Number: No. 03-95-00164-CV,03-95-00164-CV
• Citation: 930 S.W.2d 678
• Parties: CITY OF AUSTIN, Save Our Springs Legal Defense Fund Inc., and Al St. Louis, Appellants, v. Jerry J. QUICK, Kaira G. Quick, John M. Bryant, Ruth E. Bryant, Joe Cox, Dolores Cox, Florence Turck, and Circle C Land Corp., Appellees.
• Court: Texas Court of Appeals

Page 678

930 S.W.2d 678

CITY OF AUSTIN, Save Our Springs Legal Defense Fund Inc. and Al St. Louis, Appellants, v. Jerry J. QUICK, Kaira G. Quick, John M. Bryant, Ruth E Bryant, Joe Cox, Dolores Cox, Florence Turck, and Circle C Land Corp., Appellees.

No. 03-95-00164-CV.

Court of Appeals of Texas Austin.

July 31, 1996.

Rehearing Overruled Nov. 6, 1996.

Elizabeth G. Bloch, Hilgers & Watkins, P.C., Austin, for City of Austin.

William G. Bunch, Austin, for Save Our Springs Legal Defense Fund Inc. and Al St. Louis.

Teresa L. Todd, Marfa, Dick DeGuerin, DeGuerin & Dickson, Houston, for Save Our Springs Legal Defense Fund Inc.

Roy Q. Minton, Minton, Burton, Foster & Collins, Austin, for appellees.

Before CARROLL, C.J., and ABOUSSIE and KIDD, JJ.

CARROLL, Chief Justice.

Appellees sued appellant City of Austin (the "City"), challenging the validity of the water pollution control measure known as the Save our Springs Ordinance (the "Ordinance"). Appellants/Intervenors Save Our Springs Legal Defense Fund, Inc. and Al St. Louis (collectively, the "Coalition") unsuccessfully attempted to intervene in the suit. The trial court submitted certain issues to the jury and, after making certain conclusions of law, rendered judgment striking down the Ordinance as invalid. We will affirm the trial court's judgment, as modified, in part, and will reverse in part and render judgment that the Ordinance is valid.

BACKGROUND

Through the initiative and referendum process, the Save Our Springs Coalition Steering Committee, a group of Austinites interested in environmental issues, placed the Ordinance on the Austin municipal ballot for a local referendum election. On August 8, 1992, the citizenry of Austin overwhelmingly voted to approve the Ordinance. After it was approved by the voters, the Austin As stated in its Declaration of Intent, the Ordinance seeks to insure water quality control in Barton Creek, Barton Springs, and the Barton Springs Edwards Aquifer. The Ordinance's provisions do not apply city-wide, but only to those areas containing watersheds contributing to Barton Springs. The Ordinance contains the following provisions pertinent to this appeal: In order to insure water quality control of the Barton Creek watershed, the Ordinance limits the percentage of a land tract devoted to "impervious," i.e., non-porous cover. The Ordinance also requires that new developments be set back from streams and not contribute to an increase in the amount of pollution constituents commonly found in urban rainfall runoff water. The Ordinance prohibits construction in the "critical water quality zone" of the Barton Creek watershed. The Ordinance provides for no waivers or exceptions except in very limited circumstances when necessary to avoid conflicting with state and federal laws. Finally, because the City has jurisdiction to enact ordinances affecting its extraterritorial jurisdiction ("ETJ"), the Ordinance affects property outside the Austin city limits, including areas of Hays County.

City Council enacted the Ordinance ¹ and integrated it into the City Code. The Ordinance became effective August 10, 1992.

Appellees own land in Hays County and claim its value has been adversely affected by the Ordinance. Appellees sued the City in Hays County, seeking a declaratory judgment that the Ordinance was void because it was illegally enacted. Additionally, they challenged the validity of the ordinance pursuant to section 26.177(d) of the Texas Water Code. Tex. Water Code Ann. § 26.177(d) (West Supp.1996) (authorizing party aggrieved by water pollution control ordinance to appeal to district court to review whether ordinance is invalid, arbitrary, unreasonable, inefficient, or ineffective).

The Coalition moved to intervene in the suit, claiming that the City was incapable of advocating their interests due to previous hostilities over the SOS Ordinance. See, e.g., City Council of Austin v. Save Our Springs Coalition, 828 S.W.2d 340 (Tex.App.--Austin 1992, no writ) (Coalition sued City Council to force election on SOS Ordinance).

After having submitted several special issues to the jury, the court rendered judgment that the Ordinance was null and void. Additionally, within the final judgment, the trial court incorporated several conclusions of law which, in part, adopted several of the jury findings on the special issues. The court below concluded that (1) the Ordinance was void under Water Code section 26.177(d) because it was unreasonable, arbitrary, and inefficient; (2) the Ordinance was void because it was enacted without a public hearing in violation of section 212.002 of the Texas Local Government Code. Tex.Loc. Gov't Code Ann. § 212.002 (West 1988); (3) the Ordinance was void because it regulated the number, use, and size of buildings in the City's extraterritorial jurisdiction in violation of section 212.003 of the Texas Local Government Code. Id. § 212.003; (4) the Ordinance becomes effective, if at all, only after the Texas Natural Resources Conservation Commission ("TNRCC") approves it; and (5) that any permit required by Circle C Land Corp. for the development of its property shall be subject only to the law in effect at the time the original application for preliminary subdivision approval was filed. Furthermore, the court awarded appellees attorney's fees. Finally, all relief prayed for by any other party, if not expressly granted, was denied by the trial court.

DISCUSSION

Intervention by the Coalition

Before trial, appellees successfully moved to strike the Coalition's plea in intervention. In their first point of error, the Coalition claims that the trial court abused its discretion in striking its motion to intervene.

Texas Rule of Civil Procedure 60 allows parties to intervene subject to being stricken by the court for good cause. Tex.R.Civ.P. 60. The party opposed to the intervention has the burden of challenging it by a motion to strike. Guaranty Fed. Savs. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.1990). Once a motion to strike has been filed, the trial court has broad discretion in its decision to strike the plea in intervention. The trial court abuses its discretion when (1) the intervenor, in its own name, could have either brought, or defended and defeated, the same action, or any part thereof; (2) the intervention will not complicate the case by an excessive multiplication of the issues; and (3) the intervention is almost essential to effectively protect the intervenor's interest. Id.

Addressing the third standard above, the Coalition argues that the City cannot effectively protect its interest because, in the past, the City opposed the Ordinance. Notably, the Coalition does not argue that the Ordinance, as enacted by the City, does not conform to the version ratified by the voters. Instead, the Coalition argues that past hostilities with the City demonstrate that it is presumably incapable of protecting the Coalition's interests at trial.

While the Coalition and the City may have disagreed in the past, the relevant inquiry is whether the City could have effectively represented the Coalition's interests at the time of trial. The trial court was not required to presume that past disagreements rendered the City, per se, an ineffective advocate for the Coalition. Therefore, we conclude that the trial court did not abuse its discretion in striking the Coalition's plea in intervention. We overrule the Coalition's first point of error.

The Coalition also raises numerous points of error challenging the trial court's judgment on the merits. Generally, only parties of record may exercise the right to appeal. Continental Cas. Co. v. Huizar, 740 S.W.2d 429, 430 (Tex.1987). The trial court struck the Coalition's plea in intervention in a pretrial ruling on March 15, 1993. Therefore, the Coalition never became a proper party to the trial and cannot attack the final judgment on appeal. See Central Mut. Ins. Co. v. Dunker, 799 S.W.2d 334, 336 (Tex.App.--Houston [14th Dist.] 1990, writ denied). Accordingly, we dismiss the Coalition's remaining points of error.

The City

Separation of Powers

In its first point of error, the City argues that the trial court erred in rendering judgment that the Ordinance was unreasonable, arbitrary, and inefficient pursuant to section 26.177(d) of the Texas Water Code. Tex. Water Code Ann. § 26.177(d) (West Supp.1996). Section 26.177(d) provides in pertinent part:

Any person affected by any ... ordinance relating to water pollution control and abatement outside the corporate city limits of such city adopted pursuant to this section or any other statutory authorization may appeal such action to the [Texas Natural Resource Conservation Commission] or district court.... The issue on appeal is whether the action or program is invalid, arbitrary, unreasonable, inefficient, or ineffective in its attempt to control water quality. The Commission or district court may overturn or modify the action of the city....

Id. The City contends that, in the instant cause, section 26.177(d) allowed the court to conduct a de novo review of the policy considerations behind a legislative act. To this extent, the City argues that the statute runs afoul of the separation of powers doctrine and is therefore unconstitutional.

Before addressing the statute's constitutionality, we shall address appellees' claim that the City has no standing to raise such an argument. Citing McGregor v. Clawson, 506 S.W.2d 922 (Tex.Civ.App.--Waco 1974, no writ), appellees argue that a municipality, created by the Legislature, has no constitutional rights that it can invoke against its creator. See id. at 929. Furthermore, citing Boyett v. Calvert, 467 S.W.2d 205 (Tex.Civ.App.--Austin 1971, writ ref'd n.r.e.), cert. dism'd, 405 U.S. 1035, 92 S.Ct. 1316, 31 L.Ed.2d 577 (1972), appellees argue The cases upon which appellees rely base their rationale on federal cases holding that cities cannot raise federal...