Home-Rule City cannot extent building codes into ETJ says Dallas Court of Appeals

Collin County v City of McKinney, et.al.,  05-17-005460CV, (Tex. App. — Dallas, May 11, 2018). 

In this statutory construction case, the Dallas Court of Appeals held City of McKinney lacks authority to enforce its building codes in its extraterritorial jurisdiction, but it has authority to require a landowner to plat its property.

The City and County previously entered into an agreement designating the City as the exclusive authority for platting and related permits.  Custer Storage Center, LLC (“Custer”) owns land located in the County and within the City’s ETJ and uses the property for a self-storage business. During construction the City demanded Custer plat the property and obtain City building permits. When Custer refused, the City sought a declaratory judgment and injunction. All parties (City, County and Custer) filed summary judgment motions. The trial court concluded that the City’s and County’s respective authority to enforce platting and building permit requirements for property in the City’s ETJ is determined based on whether a property is subdivided and held the City could only require building permits if the property is subdivided.

The Dallas Court of Appeals analyzed the Texas Supreme Court’s opinion in  Town of Lakewood Village v. Bizios, 493 S.W.3d 527 (Tex. 2016) and held that while a home-rule municipality has authority under the Texas Constitution within its borders, it requires express authority to regulate in the ETJ. Such express authority applies to every municipality, regardless of type. Since no express authority allows extending building codes into the ETJ, the City cannot require building permits.  However, the Texas Local Government Code does expressly authorize a city and county to designate the city as the exclusive authority for plat and subdivision regulations. That does not allow tagging the building codes onto the plat or subdivision ordinances. However, Custer’s construction plans clearly trigger a requirement for platting, which they did not perform.  Since the court significantly modified the judgment, it remanded back to the trial court to determine the issue of attorney’s fees. 

If you would like to read this opinion click here. Panel consists of Justice Wright, Justice Lang, and Justice Stoddart.  Memorandum Opinion by Justice Stoddart. The attorneys listed for the County are J. Gregory Hudson and Robert Davis.  The attorney listed for the City is Robert Brown.

Leave a Reply