Town of Lakewood Village v. Harry Bizios
15-0106
| Tex. App. | May 26, 2015Background
- Lakewood Village (a small general-law town in Denton County) attempted to require a building permit and pay associated fees for Harry Bizios’s construction of a house on a lot located in the town’s extraterritorial jurisdiction (ETJ). The lot was previously platted (final plat approved by Little Elm and Denton County in 1995).
- Bizios obtained county and federal approvals, inspections, and his construction complies with the International Residential Code (IRC); the Town provided no municipal services to the subdivision and cannot unilaterally annex the area.
- The Town charged approximately $14,646 in permit fees (netting a large profit) plus $1,200 in plan-review/inspection subcontractor fees; Bizios challenged the Town’s authority and the fee scheme.
- The trial court entered a temporary injunction requiring Bizios to obtain Town permits; Bizios appealed. The Fort Worth Court of Appeals held that a general-law town may not extend its building code/permit authority into the ETJ absent express statutory authorization and ruled for Bizios on the primary issues he raised.
- The Town petitioned the Texas Supreme Court for review, arguing conflict with other appellate decisions and asserting broader ETJ regulatory needs; Bizios responded urging denial of review and defending the court of appeals’ analysis.
Issues
| Issue | Plaintiff's Argument (Bizios) | Defendant's Argument (Lakewood Village) | Held |
|---|---|---|---|
| Whether a general-law town may extend its building code and require building permits in its ETJ | No — general-law towns have only expressly granted powers; Chapter 212 authorizes subdivision regulation but does not expressly authorize extending building codes/permit requirements into the ETJ | Yes — Chapter 212 (and other statutes) permit municipalities to extend development/subdivision-related regulations into the ETJ, and statutes like §214.904 and §233.153 imply authority | Court of Appeals: No — absent express statutory authorization, a general-law town cannot enforce its building code or require building permits in its ETJ; Subchapter B and §212.049 show the Legislature excluded such authority for ETJ building-permit enforcement |
| Whether a town can apply subdivision/development rules to a previously platted lot | Bizios: §212.007 prevents application of subdivision requirements to lots previously platted; the Town cannot re-plumb building-code requirements onto an already-platted lot | Town: Chapter 212 allows extension of subdivision regulations into ETJ; so related development controls may apply | Court of Appeals: Town conceded and did not appeal that holding; Town cannot apply subdivision/platting requirements to Bizios’s previously platted lot under §212.007 |
| Whether statutes cited by Town (§214.212, §214.904(a), §233.153(c), §212.002/.003) authorize ETJ building-permit enforcement | Bizios: These provisions either limit application to municipal limits, are merely permissive or are limiting (§212.049), and do not grant general-law towns authority to require building permits in ETJ; legislative history (failed HB 609) supports that conclusion | Town: These statutes, read together, permit municipalities to require permits and enforce codes in ETJ; counties’ and other statutes’ interplay supports municipal authority | Court of Appeals: Held no express grant exists; statutory text and structure (Subchapter A vs B and §212.049) show Legislature did not intend general-law towns to have the claimed power |
| Legality of the Town’s fees and equitable relief (temporary injunction) | Bizios: Fees greatly exceed actual plan-review/inspection costs (profit motive), possibly unlawful tax/economic burden; equity favors denying enforcement | Town: Fees and permit requirements are lawful exercises of municipal regulation to protect health and safety | On merits the Court of Appeals rejected Town’s ETJ building-code authority; in this particular factual record Bizios established lack of statutory authority and Town’s fee structure raised issues of excessiveness (trial-court injunction effectively reversed for lack of statutory basis) |
Key Cases Cited
- Bizios v. Town of Lakewood Village, 453 S.W.3d 598 (Tex. App.—Fort Worth 2014) (court of appeals holding: general-law town may not extend building-code/permit authority into ETJ absent express statutory authorization)
- City of Lucas v. N. Tex. Mun. Water Dist., 724 S.W.2d 811 (Tex. App.—Dallas 1986) (earlier appellate decision holding municipalities could regulate construction under predecessor statute; distinguished because Chapter 212 was later amended)
- City of Weslaco v. Carpenter, 644 S.W.2d 601 (Tex. App.—Corpus Christi 1985) (discussed in Lucas; concerned subdivision rules in mobile-home park context — not a direct authority for extending building codes into ETJ for single-family construction)
- Milestone Potranco Dev., Ltd. v. City of San Antonio, 298 S.W.3d 242 (Tex. App.—San Antonio 2009) (upholding city tree ordinance as applicable only to subdivision/platting process; used to distinguish development-only regulations from general building-code enforcement)
- City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995) (statutory interpretation principles and that legislative intent governs scope of municipal powers)