Property owner could challenge amendments to ETJ ordinance within three years, despite not challenging original ordinance

The City of Helotes, Tom Schoolcraft, Rick Schroder, and Ernest Cruz v. Continental Homes of Texas, LP, 04-15-00571-CV (Tex. App. – San Antonio, June 1, 2016).

This is a case where a property owner challenged a City’s extension of its extraterritorial jurisdiction .

San Antonio released its ETJ to Helotes and Helotes passed an ordinance accepting the expansion of its ETJ due to San Antonio’s release. The City of Helotes then extended its building regulations into the ETJ. Continental Homes owns property within the extraterritorial jurisdiction of the City of Helotes. Continental Homes sued to invalidate both the ETJ expansion and building regulation extension ordinances. The trial court granted Continental Homes’ summary judgment motion. The City appealed.

The court first disagreed with the City’s statute of limitations argument that a challenge must be brought within three years under Local Government Code §51.003.  The City argued Continental homes was precluded from challenging any amendments to the ordinances because it did not challenge the original ordinance (which was passed 20 years ago). However, the ordinance passed 20 years ago did not encompass the property. Continental homes could challenge any amendments to the ordinances within three years and did so here. Next the court held the City did not challenge Continental Homes’ request for attorney’s fees as being not equitable at the trial court level so could not do so on appeal. Additionally, the City failed to preserve a challenge to the trial court’s determination that the ETJ could not extend more than one mile. Since Continental Homes’ property exists outside  the one-mile limit, the remaining issues are moot.

If you would like to read this opinion click here. Panel: Justice Barnard, Justice Martinez and Justice Pulliam.  Memorandum Opinion by Justice Pulliam. The attorneys listed for Continental Homes are Sue Ellen Wall and John N. McClish. The attorney listed for the City is Keith A. Kendall.