Lead Opinion
delivered the opinion of the Court,
Municipalities must ensure that essential public facilities are available to their residents. To assist in accomplishing this goal, the Legislature has allowed municipalities under Chapter 212 of the Local Government Code to enact temporary moratoria on “property development” if they can demonstrate the moratoria are needed to prevent a shortage of essential public facilities. That right, however, is subject to certain limitations. One limitation is that a municipality may not enact such a moratorium unless it contains a summary of evidence showing that it is limited to property that has not been approved for development,
Here, the municipality approved a subdivision plat and subsequently enforced a moratorium against the property, citing the municipality’s additional sewage system capacity requirements. The landowner sued for a declaratory judgment that the moratorium did not apply against its approved development and for damages arising from a regulatory taking under an inverse condemnation claim. The trial court granted summary judgment in favor of the municipality on the declaratory judgment and inverse condemnation claims and awarded attorney’s fees to the municipality. The court of appeals reversed, holding that the moratorium could not apply to the property in question because it had been approved for development before the moratorium took effect. The court remanded the inverse condemnation and attorney’s fees claims. We hold that the moratorium cannot apply to the property because the municipality approved the property for subdivision before it enacted the moratorium, and the owner is therefore entitled to prevail on its declaratory judgment claim. We further conclude that, with respect to the inverse condemnation claim, the trial court must resolve factual disputes pertaining to the extent of the government’s interference with the owner’s use and enjoyment of its property before the merits of the takings claim are judicially addressed. Accordingly, we affirm the judgment of the court of appeals and remand this cause to the trial court for further proceedings.
I. Background
This appeal concerns a series of morato-ria on sewer connections the City of Lorena (City) applied to seven residential lots due to capacity issues with the municipal sewer system. Various statutes and regulations require municipalities to be proactive with regard to the capacity of their utilities. For example, Chapter 212 of the Local Government Code requires a municipality to confirm that when it approves a development plat, the plat conforms with the municipality’s plans and ordinances concerning current and future utilities. Tex. Loc. Gov’t Code § 212.047(1). Additionally, the Texas Commission on Environmental Quality (TCEQ) requires municipalities whose sewers reach 75% capacity to make plans to increase capacity and obtain TCEQ authorization to commence construction of that additional capacity when the system reaches 90% capacity. 30 Tex. Admin. Code § 305.126.
The TCEQ initiated enforcement proceedings against the City regarding its
BMTP Holdings, L.P. (BMTP) is a residential real estate developer operating in the City. As a developer, BMTP does not construct residences. Rather, it obtains municipal approval of plats to divide property into residential lots and build community infrastructure such as roads, storm drains, curbs, and taps into the municipality’s sewer system. BMTP then sells the subdivided property to builders who obtain municipal permits and construct houses on the lots. Prior to 2003, BMTP began subdividing the property at issue for a residential subdivision named South Meadows Estates. The project was divided into five phases, and this appeal concerns seven lots in the fourth and fifth phases.
In January 2006, the City Council approved the final plat for phase five of South Meadows Estates, having already granted final approval of phase four. The City Manager then executed the plat, indicating the City’s acceptance of it and its eligibility for filing with the county clerk’s office. In the spring of 2006, BMTP began building the infrastructure for the fifth phase of the development, which it completed in May 2006.
Also during the spring of 2006, engineers the City retained to evaluate its sewage system informed the City that the system was over capacity and could pose problems if the volume of sewage continued to increase. The engineers recommended a temporary moratorium on sewer tap permits to allow the City time to remedy the problem.
The City enacted a moratorium on June 5, 2006, which stated:
[N]o city employee ... shall accept for filing any applications for the issuance of one or more sewer taps. Applications, together with any documents or fees accompanying the applications, which are submitted during the duration of this ordinance, shall be returned to the applicant as unfiled.
The moratorium was to last 120 days and specifically exempted pending sewer tap applications and completed but inactive sewer tap construction. The moratorium also allowed aggrieved applicants to appeal to the City Manager or his designee, showing why the moratorium would deprive the applicant of vested property rights. Importantly, though the moratorium contained some of the written findings and a portion of the summary of the evidence required by Chapter 212 of the Local Government Code, it contained no findings or a summary showing that the moratorium was limited to property that had not been approved for development. See Tex. Loc. Gov’t Code § 212.135(b)(2)(B).
Shortly after the moratorium’s adoption, the City Manager delivered the final approved plat to a manager of BMTP. The City Manager informed BMTP’s manager that the City had adopted a moratorium on the issuance of sewer tap permits and intended to enforce that moratorium against South Meadows Estates.
The City Council voted to extend the moratorium seven times, each time for a 120-day period. The first extension contained substantially the same language as the original moratorium with two additions. First, at the request of BMTP, the extension exempted fifteen lots in South Meadows Estates that BMTP had contracted to sell prior to the moratorium. The City refused to exempt BMTP’s remaining seven unsold lots. Second, the extension contained a new finding that the City was taking steps to become a member
The second extension largely contained the terms of the first extension but changed the phrase “sewer taps” to “sewer connections.”
After the City enacted the fourth extension, BMTP sent a letter to the City Attorney asking the City to reconsider its application of the moratorium and extensions to BMTP’s seven remaining lots. Specifically, BMTP asserted that the City had already approved the plats for the seven lots, thus exempting them by law from any moratorium. The City Attorney responded that the seven lots would not be exempted because the City had only approved the lots for subdivision — not construction. The City’s fifth extension contained the same language as the previous extensions.
In its sixth extension, the City added a new finding that the exemptions set forth in the original moratorium and its extensions demonstrated that the moratorium was reasonably limited to property that had not been approved for the construction of residential or commercial buildings. The sixth extension also stated that the City had paid the equity cost to become a member of WMARSS and the cost of new treatment capacity to WMARSS but that such additional capacity would not be available until after the expiration of the extension.
Meanwhile, BMTP fielded inquiries about its seven non-exempt lots, but no potential buyer maintained interest in the lots once BMTP disclosed the moratorium. BMTP asserts that the value of these seven lots fell 83% while the moratorium and extensions were in effect. With the sixth extension still in effect, BMTP sought a declaratory judgment that the moratorium and its extensions could not be enforced against its remaining seven lots.
Subsequently, the City extended its 2006 moratorium for the seventh and final time, mirroring the language of the sixth extension. The City later re-initiated the moratorium process and adopted a new moratorium in November 2008, which was substantively similar to the sixth and seventh extensions.
In February 2009, BMTP amended its petition to include the new moratorium and added a claim for inverse condemnation, asserting that the wrongful application of the moratorium amounted to a regulatory taking. Both parties moved for summary judgment on the declaratory judgment claim, and the City also moved for summary judgment on the inverse condemnation claim. The trial court granted summary judgment to the City, first on the declaratory judgment claim and subsequently on the inverse condemnation claim, and awarded attorney’s fees and costs to the City.
The court of appeals reversed, holding that section 212.185 of the Local Government Code prohibits municipalities from enforcing moratoria against approved development. 359 S.W.3d 239, 245. The court of appeals also remanded the inverse condemnation claim, finding that the trial court’s summary judgment could have been based on its ruling on the declaratory judgment claim. Id. at 246. Finally, the court of appeals remanded the issue of attorney’s fees for a determination of whether the grant remained equitable and
II. Discussion
The City argues that BMTP’s claims are not ripe because BMTP failed to comply with the procedures set forth in the moratorium. Additionally, the City asserts the moratorium validly applies to BMTP’s seven lots and, therefore, BMTP’s inverse condemnation claim is meritless. We address each argument in turn.
A. Ripeness
Initially, the City contends that BMTP’s claims are not ripe because BMTP has not complied with the moratorium’s application, appeal, or waiver procedures. The City’s argument concerning the application process is unavailing because the process does not give rise to a mandatory requirement and, as structured, would nonetheless be futile. The moratorium provided that “no city employee ... shall accept for filing any applications for the issuance of one or more sewer connections,” and that the “[a]ppli-cations, together with any documents or fees accompanying the applications ... shall be returned to the applicant as un-filed.” We first note that this procedure does not impose a requirement that an aggrieved landowner file an application; rather, it is a process by which the City will return any applications to the owner as unfiled. Moreover, this process would effectively render futile any attempt by BMTP to file an application as it would have been summarily returned. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex.1998) (holding that “futile variance requests or re-applications are not required” to make regulatory takings claims ripe). Thus, the moratorium’s application process is not a bar to BMTP’s claims.
Regarding the appeal procedure, the moratorium stated that an “applicant for a sewer connection application aggrieved by the City’s decision not to accept for filing or to further process such application may appeal for relief to the City Manager, or his designee.” We have recognized that “administrative bodies only have the powers conferred on them by clear and express statutory language or implied powers that are reasonably necessary to carry out the Legislature’s intent.” Thomas v. Long, 207 S.W.3d 334, 340 (Tex.2006). If the Legislature grants an administrative body sole authority to make a determination in a dispute, the municipality has exclusive jurisdiction over the dispute and “a party must exhaust all administrative remedies before seeking judicial review of the decision.” Id. Here, the parties have not cited to, nor are we aware of, any such Legislative grant of sole authority. Accordingly, we cannot say that failure to exhaust administrative remedies bars BMTP’s claims.
Lastly, we cannot agree with the City’s argument that BMTP’s claims must fail because it did not obtain a waiver as provided by the moratorium. The moratorium sets forth a waiver procedure for aggrieved applicants who “claim[ ] a right obtained under a development agreement” or “provid[e], at the applicant’s expense, the additional capacity to the City’s waste-water treatment plant....” This waiver procedure tracks the statutory requirement for a waiver procedure for rights obtained under a development agreement or for a landowner that will fund public facilities at its own cost. Tex. Loo. Gov’t Code § 212.137(a). But BMTP claims no right under a development agreement and has not volunteered to fund additional sewage system capacity; hence, the moratorium’s waiver procedure does not apply to BMTP. In sum, we conclude the City’s
B. Declaratory Judgment
Having resolved the City’s ripeness arguments, we now turn to whether the moratorium validly applies to BMTP’s seven lots. The crux of this case involves statutory construction. Our goal in interpreting any statute is to “ascertain and give effect to the Legislature’s intent as expressed by the language of the statute.” City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008). To determine that intent, we look first to the “plain and common meaning of the statute’s words.” State v. Gonzalez, 82 S.W.3d 822, 827 (Tex.2002). We examine statutes as a whole to contextually give meaning to every provision. Id. “Municipal ordinances must conform to the limitations imposed by the superior statutes, and only where the ordinance is consistent with them, and each of them, will it be enforced.” Bolton v. Sparks, 362 S.W.2d 946, 950 (Tex.1962); see also Quick v. City of Austin, 1 S.W.3d 109, 116 (Tex.1998) (“[I]n reviewing an ordinance, the court is to consider all the circumstances and determine as a matter of law whether the legislation is invalidated by a relevant statute or constitutional provision.”).
As an initial matter, we determine that the moratorium relevant to BMTP’s declaratory judgment claim is the November 2008 moratorium. BMTP filed its live pleading in March 2009, which sought “[a] declaration that under Chapter 212 of the Local Government Code, any and all existing moratoriums ... do not apply to any of the lots contained in South Meadows Estates-” (emphasis added). At the time of this amended pleading, only the November 2008 moratorium was in effect. Accordingly, any declaration must be in regard to the November 2008 moratorium.
We now turn to whether the November 2008 moratorium complied with Chapter 212 of the Local Government Code. Section 212.133 states that “[a] municipality may not adopt a moratorium on property development unless the municipality: ... makes written findings as provided by Section 212.135....” Tex. Loc. Gov’t Code § 212.133(2). Section 212.135 provides that “[a] moratorium is justified by demonstrating a need to prevent the shortage of essential public facilities. The municipality must issue written findings based on reasonably reliable information.” Id. § 212.135(a). One such required finding is “a summary of: ... evidence demonstrating that the moratorium is reasonably limited to ... property that has not been approved for development because of the insufficiency of existing essential public facilities.” Id. § 212.135(b)(2)(B). Thus, in context, the plain language of these statutes provides that a moratorium regarding a shortage of essential public facilities must not affect approved development. Id. §§ 212.133(2), 212.135. It therefore follows that a moratorium enacted to prevent a shortage of essential public facilities that affects approved development conflicts with the controlling statute and is invalid. Id. § 212.135; see Bolton, 362 S.W.2d at 950.
At this juncture, the parties dispute what constitutes approved development under Chapter 212, which defines
Chapter 212 defines development as “the construction, ... of residential or commercial buildings or the subdivision ... of residential or commercial property.” Id. Under the plain language of the statute, subdivision constitutes development; thus, a moratorium may not affect property previously approved for subdivision (or construction). Id. The two types of development (subdivision and construction) have separate approval processes and often involve, as here, separate entities pursuing subdivision and construction for the same property. See id. § 212.001 et seq. (regulating municipal platting process for subdivisions); id. § 245.001 et seq. (regulating issuance of permits for construction). We have previously held that the Legislature’s use of the disjunctive word “or” is significant when interpreting statutes. See Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex.2000) (“This reading is supported by the use of the disjunctive conjunction ‘or’ between the two phrases, which signifies a separation between two distinct ideas.”). By using the word “or” in defining “development,” the Legislature indicated that these distinct aspects are brought within the singular scope of the term development. Id. (noting that the use of the word “or” signifies separation of distinct ideas).
Construing the definition of development to encompass both subdivision and construction also comports with the broader statute. See Gonzalez, 82 S.W.3d at 327. When a municipality approves a plat, Chapter 212 requires it to confirm that the plat conforms with its plans and ordinances concerning current and future utilities. Tex. Loc. Gov’t Code § 212.047(1). This requires the municipality to assess at the start of the development process the impact on utilities the development will have when completed. The Legislature’s requirement that the municipality engage in this assessment at the outset buttresses the conclusion that the Legislature intended Chapter 212 to prevent moratoria regarding shortages of essential public facilities from applying to either approved subdivision or approved construction.
The City responds that the difference between Chapters 212 and 245 of the Local Government Code compel the conclusion that Chapter 212 grants it the
Moreover, the City’s reading would yield a labyrinthine statutory framework. The definition of development uses the word “or” six times. See Tex. Loc. Gov’t Code § 212.131(3) (‘“Property development’ means the construction, reconstruction, or other alteration or improvement of residential or commercial buildings or the subdivision or replatting of a subdivision of residential or commercial property.” (emphases added)). We construe statutes to provide consistent meaning to the same word used throughout a statute. Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). Accepting the City’s interpretation yields a series of twelve subcategories of development subject to a municipality’s morato-ria regarding a shortage of essential public facilities. See id.
Amicus Texas Municipal League claims our interpretation will allow developers to delay developing their approved plats until municipalities pass moratoria (thereby insulating themselves from competition
Applying the plain language of Chapter 212 to the moratorium at issue, the City approved BMTP’s final plat in January 2006 — almost two years before it passed the moratorium at issue and four months before it passed any moratorium. Because the City approved the residential subdivision for the seven lots at issue, the property constitutes approved development under Chapter 212. Id. §§ 212.131(3), 212.135(b)(2)(B). Accordingly, the moratorium cannot validly apply against BMTP’s seven lots, and we therefore affirm the judgment of the court of appeals with respect to BMTP’s declaratory judgment claim. Id.; see Bolton, 362 S.W.2d at 950.
C. Inverse Condemnation
BMTP also seeks damages for the City’s application of the moratorium against its seven lots under an inverse condemnation claim for a regulatory taking. We have held that a regulatory taking occurs when the government has unreasonably interfered with a claimant’s use and enjoyment of its property. See Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 489 (Tex.2012). To determine whether such an interference has occurred, we follow the Penn Central inquiry, which requires us to consider all of the circumstances surrounding the alleged taking. Id. (citing Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)); Sheffield Dev. Co., Inc. v. City of Glenn Heights, 140 S.W.3d 660, 672-73 (Tex.2004). The United States Supreme Court has identified three key factors to guide our analysis: (1) the economic impact on the claimant; (2) the extent of interference with the claimant’s investment-backed expectations; and (3) the character of the government’s action. Penn Cent., 438 U.S. at 124, 98 S.Ct. 2646.
Here, the trial court granted the City’s motion for summary judgment on BMTP’s inverse condemnation claim, and we must determine whether that ruling was error in light of our holding that BMTP was entitled to prevail on its declaratory judgment claim. In its summary judgment motion on the inverse condemnation claim the City asserted that none of the three grounds for a regulatory taking existed here because: (1) the moratorium existed for a valid purpose; (2) some economic value remained in the property; and (3) the moratorium was a reasonable interference with BMTP’s use and enjoyment of its property. See Sheffield, 140 S.W.3d at 671-72.
We review the trial court’s grant of summary judgment de novo. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 331 S.W.3d 419, 422 (Tex.2010). The ultimate determination of whether an ordinance constitutes a compensable taking is a question of law, but “we depend on the district court to resolve disputed facts regarding the extent of the governmental intrusion on the property.” Sheffield, 140 S.W.3d at 673 (quoting Mayhew, 964 S.W.2d at 933). Thus, we must determine whether any disputed issues of fact exist concerning the extent of the City’s intrusion on BMTP’s property — in which case we must remand to the trial court to resolve the dispute and determine the extent of the government’s intrusion. Id.
In the summary judgment context, we review the record “in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.2005). BMTP may defeat summary judgment by showing the existence of factual disputes regarding the extent of the moratorium’s intrusion on BMTP’s property, which the trial court must resolve. Sheffield, 140 S.W.3d at 673. In Sheffield, we found there was no taking under the Penn Central test when: (1) the record was devoid of evidence of the economic impact on the owner; (2) the record was devoid of evidence of frustration of the owner’s investment-backed expectations; and (3) the moratorium was validly enacted. Id. at 680.
By contrast, here BMTP has presented evidence that raises factual disputes with regard to the extent of the moratorium’s intrusion on BMTP’s property. Regarding the economic impact on the owner, the City asserts the seven lots have lost no value because BMTP never lowered the sales price of those lots when the moratorium was in effect and because BMTP’s manager testified that he hoped to sell the lots for approximately $25,000 each when the moratorium is lifted (compared to sale prices of approximately $20,000 for lots sold before the moratorium took effect). BMTP argues the value of the lots has diminished by as much as 83% due to the moratorium based on a comparison of the value of lots sold before the moratorium took effect to the tax appraisal value while the moratorium was in place.
Regarding the frustration of the owner’s investment-backed expectations, the City argues that BMTP’s manager testified he was expecting to sell the lots for approximately $25,000 each once the moratorium is lifted and that the lots will be some of the only developed lots available in the area. BMTP counters with testimony
And regarding the character of the government’s action, we held in Part II.B, supra, that the November 2008 moratorium could not be enforced against BMTP because the City had previously approved the subdivision of the seven lots in question. See Tex. Loc. Gov’t Code § 212.135(b)(2)(B). Likewise, the City enforced the June 2006 moratorium and its extensions against BMTP’s approved development. Id. We must also view the character of the government’s specific actions toward the landowner with the broader purpose of the government’s action, which here was to assure an adequate supply of necessary public facilities. See Sheffield, 140 S.W.3d at 680 (assessing poor character of governmental action with respect to delaying rezoning during moratorium with broader character of zoning for planned development).
These facts, viewed in the light most favorable to the nonmovant, indicate that the extent of the moratorium’s intrusion on BMTP’s property is still in dispute. City of Keller, 168 S.W.3d at 824. Thus, we cannot determine as a matter of law whether the moratorium’s intrusion on BMTP’s property went so far as to constitute a taking under Penn Central. See Hearts Bluff, 381 S.W.3d at 489. For this reason, the City has failed to meet its burden of establishing that no issues of material fact exist with respect to its interference with BMTP’s use and enjoyment of its property and that it is entitled to judgment as a matter of law. Sheffield, 140 S.W.3d at 673. We therefore conclude the trial court’s grant of summary judgment was error and remand for resolution of these factual disputes and to determine the extent of governmental intrusion before assessing whether a regulatory taking has occurred.
D. Attorney’s Fees
Finally, we must consider the trial court’s award of attorney’s fees. The trial court awarded the City attorney’s fees when it ruled in favor of the City on the declaratory judgment claim. Under the Declaratory Judgment Act, a “court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem.Code § 37.009. The decision of whether to award attorney’s fees is within the discretion of the trial court, but the question of whether attorney’s fees are equitable and just is a question of law. Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex.1998). The trial court’s grant of attorney’s fees here was based on its determination that BMTP was not entitled to a declaratory judgment that the moratorium could not apply to its seven lots. Because we have held the moratorium cannot apply against BMTP’s seven lots, we remand the issue of attorney’s fees to the trial court to determine whether its grant remains equitable and just in light of our holding.
The dissent laments that: (1) there will be “sewage in the streets;” (2) municipalities will be “out of luck” and have no mechanism to solve their problems; and (3) section 212.135(b)(2)(A) validates the moratorium here. All three assertions are misguided.
Simply put, the Legislature in Chapter 212 requires municipalities to be proactive and assess the impact of development on utilities when they approve the development. Tex. Loc. Gov’t Code § 212.047(1). If utility issues nonetheless persist, municipalities may place moratoria on new development in affected areas in accordance with the procedural requirements of Chapter 212. Id. §§ 212.133, .135. If issues still persist and threaten the public safety and welfare, municipalities have police powers and powers to abate nuisances at their disposal. See supra notes 5, 8. Thus, the Legislature has weighed the competing interests of developers and municipalities and resolved the conflict by allowing developers to continue building approved development and equipping municipalities with mechanisms at the various stages of utility issues to adequately address such problems. By using the mechanisms at their disposal, municipalities may avoid “sewage in the streets” and are never “out of luck” when addressing a shortage of public facilities.
The dissent also relies heavily on section 212.135(b)(2)(A) as a basis for validating the moratorium. Section 212.135 requires the moratorium to contain a summary of evidence demonstrating the moratorium is reasonably limited to:
(A) areas of the municipality where a shortage of essential public facilities would otherwise occur; and
(B) property that has not been approved for development because of the insufficiency of existing essential public facilities.
Tex. Log. Gov’t Code § 212.135(b)(2). The dissent reasons that “(B) is a complete subset of (A): the areas of town where shortages will occur include every area where development has not been approved because of existing shortages.” 409 S.W.3d at 651 (Hecht, J., dissenting). The dissent concludes that under our interpretation, “only (B) must be met,” and subsection (A) is rendered meaningless. Id. at 651.
Aside from the fact that no party or judge has claimed that subsection (A) is in any way relevant to this moratorium, the premise that subsection (B) is wholly subsumed by subsection (A) is flawed. There will undoubtedly be occurrences when a shortage of essential public facilities only affects part of a municipality. In such a circumstance, the municipality may impose a moratorium only on the affected area under subsection (A) and only on new development in that area under subsection (B). Subsection (A) is not rendered meaningless. It prevents municipalities from imposing moratoria on new development in unaffected areas. Because one sewer served the entire City here, no party has argued that subsection (A) has any bearing on the validity of the moratorium at issue.
III. Conclusion
Chapter 212 of the Local Government Code prevents moratoria regarding a
Justice LEHRMANN filed a concurring opinion.
. Tex. Loc. Gov't Code § 212.135(b)(2)(B).
. There is some dispute in the record regarding the nature of this change from "sewer taps” to "sewer connections." For the reasons explained in Part II.B, infra, we need not reach this issue.
. As explained in Part II.C, infra, the prior ordinances, while irrelevant to the declaratory judgment claim, are relevant to the inverse condemnation claim because they involve the character of the government’s action during the time it was applying the moratoria against BMTP.
. See also Cherokee Water Co. v. Freeman, 33 S.W.3d 349, 354 (Tex.App.-Texarkana 2000, no pet.) (holding that the word “or” in the phrase "living or visiting with them” was intended to allow either "living” or "visiting” to modify the pronoun "them,” thereby making either a viable way of fulfilling the requirements of the clause).
. We note that municipalities are not encumbered by the strictures of Chapter 212 in every situation affecting essential public utilities. For example, municipalities may use police powers when necessary to safeguard the public safety and welfare. Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 635 (Tex.1996). The City does not claim that its circumstances were exigent enough to justify use of the police power.
. Treating "or" in the discrete manner the City suggests results in the following twelve subcategories of development: (1) construction of residential buildings; (2) construction of commercial buildings; (3) reconstruction of residential buildings; (4) reconstruction of commercial buildings; (5) other alteration of residential buildings; (6) other alteration of commercial buildings; (7) improvement of residential buildings; (8) improvement of commercial buildings; (9) subdivision of residential property; (10) subdivision of commercial property; (11) replatting of a subdivision of residential property; and (12) replatting of a subdivision of commercial property. See Tex. Loc. Gov't Code § 212.131(3).
. In light of our holding, we need not reach the issues of whether the moratorium met the technical requirements of Chapter 212 or whether the moratorium violated vested rights under Chapter 245.
. We have also held that in certain circumstances a municipality "commits no talcing when it abates what is, in fact, a public nuisance.” City of Dallas v. Stewart, 361 S.W.3d 562, 569 (Tex.2012). The City did not assert this theory in its motion, so that ground is not at issue here.
. When BMTP protested the tax assessed value of its land due to the moratorium, the appraisal review board adjusted the assessed value to $23,124 for all seven lots (and average value of $3,303 per lot).
. Though the City does not raise the argument, in certain circumstances a municipality commits no taking when it validly exercises its police power to protect the public safety and welfare. City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 804 (Tex.1984).
. In light of our disposition, we need not address the City’s arguments that its moratorium was based on a valid public purpose and that some economic value remained in the property.
. Relatedly, the dissent decries that municipalities will be forced to spend resources defending suits rather than building public facilities. On the contrary, complying with Chapter 212 would avoid litigation altogether because the municipality would plan for the needed sewage capacity when approving a development plat and not impose a moratorium on approved development.
Concurrence Opinion
concurring.
In the spring of 2006, the City of Lorena was informed by retained engineers that its sewage system was over capacity. The City was further warned that, if the sewage volume continued to increase, excess sewage could contaminate nearby water sources. Needless to say, the receipt of this information put the City on notice that it needed to take action to protect its citizens. Title 7 of the Texas Local Government Code provides municipalities with authority to regulate the development of property, including the imposition of mora-toria in certain circumstances. See Tex. Loc. Gov’t Code §§ 212.131-.139. Today we are presented with the question of whether the statute at issue prohibited the City from using this form of protective action— the adoption of a moratorium — to protect its residents under the circumstances of this case.
While the conclusion the Court reaches today may seem harsh, in my view, the plain language of the statute leaves no plausible alternative. Section 212.135 clearly requires municipalities to issue written findings summarizing evidence demonstrating both “the extent of the need beyond estimated capacity of existing essential public facilities” and “that the moratorium is reasonably limited to: (A) areas of the municipality where a shortage of essential public facilities would otherwise occur; and (B) property that has not been approved for development because of the insufficiency of existing essential public facilities.” Id. § 212.135(b). The definition of “property development” in section 212.131 unambiguously includes not only building construction, but also the subdivision of residential or commercial property. Id. § 212.131(3). In other words, property that has been approved for subdivision has necessarily been approved for development and is therefore not properly subject to a moratorium under section 212.135.
I agree with the dissent that, if the purpose of a moratorium is to prevent a shortage of essential public facilities, restricting the moratorium to only those properties that have not been approved for development is arguably insufficient to accomplish that goal. After all, exempting property that has been approved for development will necessarily lead to an increase
All of this is not to say that cities are powerless to protect their citizens. To the contrary, municipalities must have an effective mechanism to do so in the event of a public threat. And while I agree with the dissent that reliance on the police power may not be the preferred method of accomplishing such a necessary goal, that is not for this Court to decide. Because this option allows municipalities to take protective action when necessary and proper, without rising to the level of a constitutional taking, I concur in the Court’s opinion and judgment.
Dissenting Opinion
dissenting.
The way the Court begins its opinion— “[mjunicipalities must ensure that essential public facilities are available to their residents”
What can a city do to prevent continuing development from depriving residents of essential public facilities? Two things. It can waste tax revenues on buying out the developer or litigating with him (probably unsuccessfully, as I will explain, but nevertheless expensively), instead of spending the funds to improve facilities so that development can continue without threatening public health and safety, thereby bene-fitting both the developer and the public. Or it can just let matters run their course, polluting the environment and endangering the public. The Court’s solution to this predicament is for cities to be very careful — reluctant, even — in approving development — a wonderful irony in a case won by a developer. Which is all well and good, except that nothing suggests the city in this case was promiscuous in approving development, and in any event, the unexpected may occur — it may have in this case — and facilities that seemed adequate when development was approved prove insufficient before construction is begun or completed. There will be times when a city is just ... out of luck.
It would be bad enough if all this were the Court’s concoction, but what is worse, the Court blames it on the Legislature. Requiring cities to risk either public revenue or public health, or both, in approving development is all the Legislature’s idea. And this, says the Court, is clear from “the plain language” of Sections 212.133 and 212.135 of the Local Government Code.
Fidelity to text is achieved more by discerning its purpose than by parsing its grammar. In my view, the Court misreads the statutory text in this case, but its error is not merely grammatical. The Court refuses to be guided in its interpretation by legislative purpose, and that systemic failing will affect — is affecting — other cases.
The essential facts of this case are simple. Several months after the Lorena City Council approved BMTP Holdings’ plat for the latest phase of its residential development, the City’s engineering firm reported that if the sewage volume continued to increase, the system could become overloaded, violate state regulations, and send excess sewage into nearby water sources. The City Manager had known all along that the sewer system was inadequate but was not aware a crisis was brewing. Following the engineer’s recommendation, the City adopted a moratorium on sewer tap permits, preventing homes constructed on BMTP’s lots from connecting to the sewer system. When BMTP pointed out that it had already sold fifteen of the vacant lots to homebuilders, the City exempted those lots from the moratorium, but it refused to exempt BMTP’s seven unsold lots. Two years later, after trying unsuccessfully to sell residential lots without sewer connections, BMTP sued for a declaration that the moratorium was invalid under Chapter 212 of the Local Government Code, and for damages, alleging inverse condemnation.
Sections 212.133
(A) areas of the municipality where a shortage of essential public facilities would otherwise occur; and
(B) property that has not been approved for development because of the insufficiency of existing essential public facilities.8
The Court treats (A) and (B) as conditions which must both be met for a moratorium to apply in an area, based on their joinder by “and”. The problem with this interpretation is that (B) is a complete subset of (A): the areas of town where shortages will occur include every area where development has not been approved because of existing shortages. Because (A) includes areas not in (B), and all areas in (B) are in (A), if both (A) and (B) must be met, then only (B) must be met. That is what the Court concludes.
This interpretation is flawed in two respects. It reads (A) out of the statute. Section 212.135(b)(2) would mean exactly the same thing if (A) were omitted. This violates the principle that all words of a statute be given effect and not treated as mere surplusage.
Subsection (B) is better read as a specific instance of (A). It is not surplusage; it emphasizes one area included in (A). I suspect the Court would agree if the specific preceded the general, limiting a moratorium to “property that has not been approved for development because of the insufficiency of existing essential public facilities” and (ie., as well as) “areas of the municipality where a shortage of essential public facilities would otherwise occur”. The specific illustrates or emphasizes an example of the general but does not limit the general; otherwise, the general would be irrelevant. Beginning with the general does not alter the meaning. For example, where a 60 mph speed limit for trucks is lower than the limit for other vehicles, a statute imposing the 60 mph limit for “vehicles and trucks” or “trucks and vehicles” accomplishes the same thing: reducing the speed limit for all vehicles to the current limit for trucks. A reasonable drafter could choose to include trucks specifically to point out that the difference in the legal limits has been removed. It would be unreasonable to suppose that the drafter intended by the phrase that the 60 mph limit would apply only to vehicles that are also trucks, thereby accomplishing nothing.
The Court’s focus on the areas covered by a permissible moratorium is misdirected. Surely it goes without saying that a moratorium should be imposed on development only where essential public facilities are threatened. The Legislature’s obvious purpose in enacting Sections 212.133 and 212.135 was not to limit where a moratorium on development can be imposed but how one can be imposed. By mandating a
(1) any new sewer connections will push the Lorena Wastewater Treatment Plant further beyond its capacity;
(2) operating beyond the capacity of the Lorena Wastewater Treatment Plant may result in failure of the entire plant, thereby causing all residents of the City currently connected to the Lorena Wastewater Treatment system to lose service; and
(3) operating beyond the capacity of the Lorena Wastewater Treatment Plant may result in illegal discharges from the plant, thereby subjecting the City to fines and penalties from the State of Texas and/or the federal government.
The Court does not consider these findings to be unsupported by the evidence or inadequate to support the moratorium. In fact, they are not pretextual; the City has been attempting to increase the sewage services available to its residents since the first moratorium.
Reasonably read, and completely unsurprisingly, Sections 212.183 and 212.135 do not prohibit cities from halting development, whether previously approved or not, to ensure essential public services for its residents, as the City did in this case. The surprise is that the Court reaches the opposite conclusion.
The Court also concludes that because the City’s moratorium was invalid, BMTP has a viable takings claim. But valid or not, the threat to the public remains. One element of a takings claim, as the Court acknowledges, is that BMTP has been deprived of its reasonable, investment-backed expectations in the use of its seven lots.
I respectfully dissent.
. Ante at 637.
. Ante at 641.
. Ante at 641.
. Tex Gov't Code § 311.021(3).
. "A municipality may not adopt a moratorium on property development unless the municipality: (1) complies with the notice and hearing procedures prescribed by Section 212.134; and (2) makes written findings as provided by Section 212.135, 212.1351, or 212.1352, as applicable." Tex. Local Gov't Code § 212.133.
. Section 212.135 applies if a municipality faces a shortage of facilities and states:
"(a) If a municipality adopts a moratorium on property development, the moratorium is justified by demonstrating a need to prevent a shortage of essential public facilities. The municipality must issue written findings based on reasonably available information.
“(b) The written findings must include a summary of:
"(1) evidence demonstrating the extent of need beyond the estimated capacity of existing essential public facilities that is expected to result from new property development, including identifying:
"(A) any essential public facilities currently operating near, at, or beyond capacity;
"(B) the portion of that capacity committed to the development subject to the moratorium; and
"(C) the impact fee revenue allocated to address the facility need; and
"(2) evidence demonstrating that the moratorium is reasonably limited to:
"(A) areas of the municipality where a shortage of essential public facilities would otherwise occur; and
"(B) property that has not been approved for development because of the insufficiency of existing essential public facilities.”
Id. § 212.135.
. Id. § 212.135(b)(1).
. Id. § 212.135(b)(2).
. E.g. Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.1987) ("We will give effect to all the words of a statute and not treat any statutory language as surplusage if possible.”).
. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (significant factors include "the extent to which the regulation has interfered with distinct investment-backed expectations”); Sheffield Dev. Co., Inc. v. City of Glenn Heights, 140 S.W.3d 660, 672-673 (Tex.2004) (quoting and discussing Penn Central).
. Ante at 646.