Town of Annetta S. v. Seadrift Dev., L.P.

• Citation: 446 S.W.3d 823
• Decision Date: 25 September 2014
• Docket Number: No. 02–12–00171–CV.,02–12–00171–CV.
• Parties: The TOWN OF ANNETTA SOUTH, Texas; Gerhard Kleinschmidt; James Ablowich; Phillip Kuntz; and David Goolsby, Appellants/Appellees v. SEADRIFT DEVELOPMENT, L.P., Appellee/Appellant.
• Court: Court of Appeals of Texas

446 S.W.3d 823

The TOWN OF ANNETTA SOUTH, Texas; Gerhard Kleinschmidt; James Ablowich; Phillip Kuntz; and David Goolsby, Appellants/Appellees

v.SEADRIFT DEVELOPMENT, L.P., Appellee/Appellant.

No. 02–12–00171–CV.

Court of Appeals of Texas, Fort Worth.

Sept. 25, 2014.

Rehearing Overruled Oct. 30, 2014.

George A. Staples, Daniel R. Barrett, Fredrick ‘Fritz’ Quast, Taylor, Olson, Adkins, Sralla & Elam, L.L.P., Fort Worth, for Appellants.

James B. Harris, Scott P. Stolley, Thompson & Knight LLP, Dallas, for Appellee.

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

OPINION ¹

SUE WALKER, Justice.

I. Introduction

The primary issue in this appeal is whether Appellant The Town of Annetta South's Ordinance 011—which requires that all lots within the Town's extraterritorial jurisdiction (ETJ) must be at least two acres in size—violates Texas Local Government Code section 212.003(a)(4). See Tex. Loc. Gov't Code Ann. § 212.003(a) (West 2008); Annetta South, Tex., Ordinance 011 (Sept. 12, 1985). The trial court found that it did and granted a partial summary judgment for Appellee Seadrift Development, L.P. specifically on this ground. For the reasons set forth below, we will affirm the trial court's partial summary judgment for Seadrift.

II. Procedural and Factual Background

Seadrift brought a declaratory judgment action and a request for mandamus relief against the Town after the Town denied Seadrift's preliminary subdivision plat for an approximately 106–acre tract. A large portion of Seadrift's platted subdivision was located in the ninety-five acres of the Town's ETJ. While Seadrift's proposed subdivision lots within the Town's boundaries were two acres in size, the lots in the Town's ETJ were not.

At the time of Seadrift's plat application, the only Town ordinance provisions addressing density in the Town's ETJ were located in Town Ordinance 011. Ordinance 011 contains a provision requiring that all lots in the Town's ETJ be at least two acres in size. After the Town denied Seadrift's subdivision plat, Seadrift requested that the Town certify the reasons for the Town's denial. See Tex. Loc. Gov't Code Ann. § 212.009(e) (West 2008) (providing that a municipal authority responsible for approving plats shall certify the reasons for the action taken on a plat application upon request of the land owner). The Town responded, certifying that the reason for its denial of Seadrift's plat was that “the density of this development is excessive.” After receiving this certification, Seadrift filed suit against the Town seeking a declaratory judgment that Ordinance 011's provision requiring that all lots within the Town's ETJ must be at least two acres in size violates Texas Local Government Code section 212.003(a)(4). See id. § 212.003(a)(4). Seadrift also sought a writ of mandamus to compel the Town to engage in the ministerial act of approving the subdivision plat.

The parties filed competing motions for summary judgment on the issue of whether the provision in the Town's Ordinance 011 that required all lots in the Town's ETJ to be at least two acres in size violated Texas Local Government Code section 212.003(a)(4). See id. The trial court granted Seadrift's motion for partial summary judgment on its declaratory judgment claim but denied all other relief, including Seadrift's request for a mandamus, and denied the Town's motion for summary judgment. The Town perfected this appeal, raising three issues.

Seadrift filed a cross-appeal in this court, asserting that not only should we affirm the trial court's partial summary judgment for Seadrift on its declaratory judgment claim but also that we should reverse and render judgment for Seadrift on its request for mandamus relief because the Town possessed a ministerial duty to approve Seadrift's preliminary plat.

III. Standards of Review

A. Statutory Construction

Courts use the same rules to construe statutes and to construe municipal ordinances. Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex.2002). Thus, our objective in construing the Town's Ordinance 011 is to discern the Town's intent, and our objective in construing local government code section 212.003(a) is to discern the legislature's intent. See id. (citing Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999) ). In making this determination, we look first to the plain meaning of the words of the provisions, using any definitions provided. Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex.2012). In giving effect to the statute or ordinance as a whole, we should not assign a meaning to a provision that would be inconsistent with other provisions of the statute or ordinance. See Wende, 92 S.W.3d at 430.

Statutes and ordinances in derogation of the common law are strictly construed.

Tex. Co. v. Grant, 143 Tex. 145, 182 S.W.2d 996, 1000 (1944) ; accord 3 Sutherland Statutes and Statutory Construction § 61:1 (7th ed.) (“Statutes in derogation of a property owner's right at common law to build what she pleases upon her own property must be strictly construed in favor of the owner.”). 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 land owner. See Tex. Loc. Gov't Code Ann. § 212.003 ; 3 Sutherland Statutes and Statutory Construction § 64:1 (7th ed.) (“The legislative grant of authority must be construed, whenever possible, so that it is no broader than that which the separation of powers permits.”).

When reviewing the validity of a city ordinance, we begin with the presumption that the ordinance is valid. City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex.), cert. denied, 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982) ; RCI Entm't, Inc. v. City of San Antonio, 373 S.W.3d 589, 595 (Tex.App.-San Antonio 2012, no pet.). The party challenging the ordinance bears the burden to establish its invalidity. RCI Entm't, 373 S.W.3d at 595. 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. Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex.1993).

B. Summary Judgment

We review a trial court's summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156–57 (Tex.2004) ; City of San Antonio v. En Seguido, Ltd., 227 S.W.3d 237, 240 (Tex.App.-San Antonio 2007, no pet.). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Joe, 145 S.W.3d at 156–57 ; En Seguido, 227 S.W.3d at 240. The party moving for a “traditional” summary judgment bears the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Joe, 145 S.W.3d at 156–57 ; En Seguido, 227 S.W.3d at 240 ; Tex.R. Civ. P. 166a(c).

IV. The Town's First Issue: Does Ordinance 011 Violate Local Government Code Section 212.003 ?

In its first issue, the Town contends that Ordinance 011's two-acre-minimum-lot-size subdivision rule is not equivalent to a restriction on the number of residential units that can be built per acre as prohibited by Texas Local Government Code section 212.003(a)(4). Accordingly, the Town argues that the trial court erred by granting partial summary judgment for Seadrift on this basis.

A. The Town's Powers to Regulate in Its Extraterritorial Jurisdiction

A city's authority to regulate land development in its ETJ is wholly derived from a legislative grant of authority. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 902 (Tex.2000) ; accord Ex parte Ernest, 138 Tex.Crim. 441, 136 S.W.2d 595, 597 (1939) (“As a general rule a municipal corporation's powers cease at municipal boundaries and cannot, without plain manifestation of legislative intention, be exercised beyond its limits.”). If no municipal ordinances are legislatively authorized to be extended to a municipality's ETJ, then only county land-use regulations apply. FM Props. Operating Co., 22 S.W.3d at 876, 902. A city is authorized to apply municipal ordinances “governing plats and subdivisions of land ... to promote the health, safety, morals, or general welfare of the municipality and the safe, orderly, and healthful development of the municipality” to property within its ETJ. See Tex. Loc. Gov't Code Ann. §§ 212.002, .003 (West 2008). The municipality is also authorized to apply in its ETJ other city ordinances relating to access to public roads or the pumping, extraction, and use of groundwater by persons other than retail public utilities. Id. § 212.003(a). But, unless otherwise authorized by state law, a municipality “shall not regulate” the following within the municipality's ETJ:

(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;

(4) the number of residential units that can be built per acre of land; or

(5) the size, type, or method of construction of a water or wastewater facility that can be constructed to serve a developed tract of land if [certain other facts apply].

Id. § 212.003(a)(1)-(5). 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 subdivision of land.” See id. § 212.002; Quick v. City of Austin, 7 S.W.3d 109, 121 (Tex.1998) (noting section 212.003 prohibits the application of zoning...