Milestone Potranco v. City of San Antonio

• Decision Date: 27 May 2009
• Docket Number: No. 04-08-00479-CV.,04-08-00479-CV.
• Citation: 298 S.W.3d 242
• Parties: MILESTONE POTRANCO DEVELOPMENT, LTD., Appellant, v. CITY OF SAN ANTONIO, Appellee.
• Court: Texas Court of Appeals

298 S.W.3d 242

MILESTONE POTRANCO DEVELOPMENT, LTD., Appellant, v. CITY OF SAN ANTONIO, Appellee.

No. 04-08-00479-CV.

Court of Appeals of Texas, San Antonio.

May 27, 2009.

Rehearing Overruled July 22, 2009.

John McClish, Sue Wall, Womack, McClish, Wall & Foster, P.C., Austin, TX, for Appellant.

Lea A. Ream, Frank J. Garza, Dalby Fleming, Davidson & Troilo, P.C., Michael D. Bernard, City Attorney, Jack Pasqual, Deputy City Attorney-Office of the City Attorney, Litigation Division, San Antonio, TX, for Appellee.

Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.

OPINION

Opinion by SANDEE BRYAN MARION, Justice.

Milestone Potranco Development, Ltd. appeals the trial court's judgment declaring that the City of San Antonio's Tree Preservation Ordinance and Streetscape Tree Planting Standards (the "Tree Ordinance") are enforceable against Milestone's property which is located in the City's extraterritorial jurisdiction ("ETJ"). Milestone asserts that the City's limited authority to enforce its ordinances beyond its corporate limits does not entitle the City to extend the Tree Ordinance to the City's ETJ. We affirm the trial court's judgment.

STANDARD OF REVIEW

The question presented by Milestone on appeal is whether sections 212.002 and 212.003 of the Texas Local Government Code ("Code") authorize the City to enforce the Tree Ordinance in the City's ETJ. Statutory construction is a legal question we review de novo. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). In construing statutes, our primary objective is to ascertain the Legislature's intent as expressed by the language of the statute. State, Texas Parks and Wildlife Dept. v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). "We use definitions prescribed by the Legislature and any technical or particular meaning the words have acquired." City of Rockwall, 246 S.W.3d at 625; see also TEX. GOV'T CODE ANN. § 311.011(b) (Vernon 2005). Otherwise, we use the plain language of the statute's words unless a contrary intention or absurd result is apparent from the context. City of Rockwall, 246 S.W.3d at 625-26. We presume the Legislature intended a just and reasonable result in enacting a statute. Id. at 626; see also TEX. GOV'T CODE ANN. § 311.021(3) (Vernon 2005).

DISCUSSION

The City contends it adopted the Tree Ordinance under the authority granted in section 212.002 of the Code, which states After a public hearing on the matter, the governing body of 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.

TEX. LOC. GOV'T CODE ANN. § 212.002 (Vernon 2008) (emphasis added). The City further asserts it has the authority to enforce the Tree Ordinance in the City's ETJ pursuant to section 212.003 of the Code, which states, in pertinent part, as follows:

(a) 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; ...

Id. at § 212.003 (emphasis added); see also City of Austin v. Jamail, 662 S.W.2d 779, 782 (Tex.App.-Austin 1983, writ dism'd) (noting municipality must have specific statutory authority to enforce ordinances in the municipality's ETJ).

Milestone argues the Tree Ordinance cannot be enforced in the City's ETJ because: (1) the Tree Ordinance is not a "rule governing plats and subdivisions of land" and, therefore, cannot be an ordinance adopted under section 212.002 of the Code; (2) the Tree Ordinance is overly broad in its application; or (3) the Tree Ordinance regulates the use of property which the City is prohibited from regulating in the City's ETJ by section 212.003(a)(1) of the Code.

A. "Rules Governing Plats and Subdivisions of Land"

We first must determine whether the Tree Ordinance can be characterized as a rule "governing plats and subdivisions of land" that a municipality can adopt under section 212.002 of the Code.

Milestone asserts the Tree Ordinance cannot be so categorized because tree preservation is not one of the purposes for requiring municipal approval of plats and subdivisions. Milestone contends platting and subdivision ordinances are limited to those ordinances that regulate "basic infrastructure." Based on its belief that the Tree Ordinance is "a purely aesthetic regulatory scheme" that does not regulate "basic infrastructure," Milestone argues that the Tree Ordinance is not a rule "governing plats and subdivisions of land." We disagree.

As previously noted, section 212.002 of the Code authorizes a municipality to adopt certain "rules governing plats and subdivisions of land." TEX. LOC. GOV'T CODE ANN. § 212.002 (Vernon 2008). Section 212.002 describes the "rules governing plats and subdivisions of land" that a municipality is authorized to adopt as rules that "promote the health, safety, morals, or general welfare of the municipality and the safe, orderly, and healthful development of the municipality." Id. Moreover, the Texas Supreme Court has noted that the purpose of platting and subdivision regulations is to "ensure that subdivisions are safely constructed and to promote the orderly development of the community." City of Round Rock v. Smith, 687 S.W.2d 300, 302 (Tex.1985). Platting ensures "adequate provisions have been made for streets, alleys, parks and other facilities indispensable to the particular community affected." Lacy v. Hoff, 633 S.W.2d 605, 609 (Tex.App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.).

In this case, the Tree Ordinance contains a statement of purpose explaining the objectives or purposes the ordinance is intended to accomplish. SAN ANTONIO, TEX., UNIFIED DEVELOPMENT CODE, § 35.523 (2006). These purposes or objectives include:

• To preserve trees as an important public resource enhancing the quality of life and the general welfare of the city and enhancing its unique character and physical, historical and aesthetic environment.

• To encourage the preservation of trees for the enjoyment of future generations.

• To encourage the preservation of trees to provide health benefits by the cleansing and cooling of the air and contributing to psychological wellness.

• To encourage the preservation of trees to provide environmental elements by adding value to property, and reduction of energy costs through passive solar design utilizing trees.

• To encourage the preservation of trees to provide environmental elements necessary to reduce the amount of pollutants entering streams and to provide elements crucial to establishment of the local ecosystem.

• To provide tree preservation requirements and incentives to exceed those requirements that encourage the maximum preservation of trees.

• To promote and protect the health, safety and welfare of the public by creating an urban environment that is aesthetically pleasing and that promotes economic development through an enhanced quality of life.

Id. We believe the Tree Ordinance is more than simply an aesthetic regulation. Instead, the Tree Ordinance was intended to, and does, regulate tree preservation to promote the health of the municipality and the orderly and healthful development of the community. See TEX. LOC. GOV'T CODE ANN. § 212.002 (Vernon 2008); City of Round Rock, 687 S.W.2d at 302. Therefore, we conclude that the Tree Ordinance is a rule "governing plats and subdivisions of land" that the City was authorized to adopt under section 212.002 of the Code.

B. Overly Broad

In the alternative, Milestone claims that even if the Tree Ordinance is a rule "governing plats and subdivisions of land," the Tree Ordinance is overly broad because it contains provisions unrelated to the activities of platting and subdividing land. Milestone asserts the Tree Ordinance applies not only to those wishing to plat and subdivide property but also to every person who simply wants to reduce the number of trees on his or her property. To support this contention, Milestone quotes language from the Tree Ordinance that states the Tree Ordinance "regulates all activities that result or may result in the removal of protected or heritage trees."

In reviewing the Tree Ordinance, however, we are required to consider the ordinance as a whole and in the context of the entire Unified Development Code. Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004). Reviewing the Tree Ordinance under this standard, we conclude the Tree Ordinance does not extend as broadly as Milestone contends.

All of the City of San Antonio's ordinances are codified in the Code of Ordinances. The former Chapter 35 of the Code of Ordinances is now codified separately as the Unified Development Code. The Tree Ordinance is located in Article V, Division 5 of the Unified Development Code. SAN ANTONIO, TEX., UNIFIED DEVELOPMENT CODE, § 35.523 (2006).

The Executive Summary to the Unified Development Code states, "The San Antonio Unified Development Code ("UDC") establishes standards and procedures for new development in the city." SAN ANTONIO, TEX., UNIFIED DEVELOPMENT CODE, vii (2006). The Executive Summary notes that Article III of the UDC relates to zoning regulations and emphasizes, "It is important to note that the zoning restrictions in Article III...