Town’s ETJ subdivision law on lot size violates state law says Fort Worth Court of Appeals

The Town of Annetta South, Texas, et al v. Seadrift Development, L.P., 02-12-00171-CV (Tex. App. – Fort Worth, September 25, 2014)

This is an ordinance challenge case where the Fort Worth Court of Appeals affirmed the granting of partial summary judgment for the developer invalidating a lot restriction within the Town’s extraterritorial jurisdiction (“ETJ”).

The Town of Annnetta South denied Seadrift Development’s preliminary subdivision plat citing a city ordinance requiring all lots to be at least two acres in size. Seadrift requested the Town certify the reasons for the denial pursuant to Tex. Loc. Gov’t Code Ann. § 212.009(e) (West 2008). Seadrift sought a declaration the ordinance violated Tex. Loc. Gov’t Code Ann §212.003(a)(4) (which prohibits regulating the number of residential units per acre in the ETJ) and the trial court granted Seadrifts partial summary judgment motion invalidating the ordinance. The Town appealed.

The court first went through several statutory construction principles and determined that the lot size restriction, as worded, did regulate the residential units per acre because it did not allow the sale of any lot subdivided in less than the two acre minimum. Citing the ordinance as circular and confusing, the court noted “although multiple duplexes, triplexes, and apartment complexes may technically be built on a single two-acre lot in the Town’s ETJ, they can never be individually sold. The result is that the entirety of each two-acre lot is required to share common ownership.”  A city cannot regulate in the ETJ unless given express authority and any such authority must be strictly construed against the city. As a result, the ordinance violates state law and is void to the extent it regulates in the ETJ. Based on the certified answer for the denial, the court concluded the City denied the plat because the lot size was not at least two acres. An interesting analysis, however, is the denial of the mandamus to require the approval of the plat. The court reasoned that the ministerial duty to approve the plat did not arise until after the court granted Seadrift’s declaratory judgment summary motion. So, the mandamus claim may be refiled after the County refuses to comply with the ministerial duty resulting from this opinion.

The dissent believes the legislature knows how to say “density” when it means density and it chose to use different wording in §212.003(a)(4), so it meant something different. Also, the ordinance does not limit the number of units in the ETJ, only the size of lots which can contained multiple units. Justice Dauphonot disagreed with the majority’s emphasis on buyers as opposed to residents and believed the ordinance conformed to state law.

If you would like to read this opinion click here. Panel: Justice Dauphinot, Justice Walker and Justice Meier. Opinion by Justice Walker. Dissenting Opinion by Justice Dauphinot found here. The attorney listed for the Town is Fredrick ‘Fritz’ Quast.  The attorneys listed for Seadrift are James B. Harris and John E. Westhoff.

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