Posted by: Patricia Salkin | January 22, 2015

TX Appeals Court Holds that a Municipality does not have the Authority to Extend its Building Code to its Extra Territorial Jurisdiction (ETJ)

Appellant Harry Bizios complained 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. Bizios contended 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 argued 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.

Addressing the issue here is whether the Town, as a general-law municipality, has the authority to extend its building code to its ETJ the court noted that 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. 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 population.” Therefore, Little Elm County, not the Town, had the authority to approve the plat for Bizios’s subdivision and did so in 1995.

While 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, To obtain the authority to require a development plat under subchapter B, the municipality must adopt subchapter B, and the Town had not done so. Finally, because 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. The court therefore reversed the trial court’s holding and remanded that case.

Bizios v Town of Lakewood Village, 2014 WL 7447699 (TX App. 12/31/2014)

The opinion can be accessed at: https://www.courtlistener.com/opinion/2766156/harry-bizios-v-town-of-lakewood-village-texas


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