FM Properties Operating Co. v. City of AustinFM Properties Operating Co. v. City of Austin
Lead Opinion
delivered the opinion of the Court
The primary issue in this direct appeal is whether section 26.179 of the Texas Water Code, which allows certain private landowners to create “water quality protection zones” in certain cities’ extraterritorial jurisdictions, violates the Texas Constitution. We conclude that it does because it unconstitutionally delegates legislative power to private landowners. Therefore, we affirm the trial court’s judgment on the merits as well as on attorney’s fees.
I. BACKGROUND
The Texas Legislature enacted section 26.179 of the Texas Water Code in 1995.
Section 26.179 allows landowners to choose between two general objectives in formulating their water quality plans: (1) to maintain background levels of water quality in waterways; or (2) to capture and retain the first 1.5 inches of rainfall from developed areas. See Tex. WateR Code § 26.179(a). For each zone, a registered professional engineer must certify that the water quality plan is designed to achieve one of these objectives. See
The TNRCC reviews water quality plans, but it must approve a plan unless the TNRCC finds that implementing the plan will not reasonably attain one of the two water quality objectives. See
Landowners may amend a plan from time to time. See
In reviewing the water quality plan, the TNRCC may not require public hearings and must complete its review and approval of a plan or amendment within 120 days after receiving the plan. See
The statute requires landowners that choose to maintain water quality background levels to monitor water quality for three years after each phase of development is complete and to submit annual technical reports to the TNRCC for the same three years. See Tex. WateR Code
Once a zone is designated, a municipality may not enforce in the zone any “ordinances, land use ordinances, rules, or requirements including, but not limited to, the abatement of nuisances, pollution control and abatement programs or regulations, water quality ordinances, subdivision requirements, other than technical review and inspections for utilities connecting to a municipally owned water or wastewater system, or any environmental regulations” that are inconsistent with or impair the ability to implement and operate the land use plan and water quality plan as filed. Tex. WateR Code
In addition, a city may not collect fees or assessments or exercise powers of eminent domain within a zone until it annexes the zone. See
After the Legislature enacted
II. APPLICABLE LAW
A. STANDARD OF REVIEW — CROSS -MOTIONS for Summary Judgment
When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides’ summary judgment evidence and determine all questions presented. See Commissioners Court of Titus County v. Agan,
B. Statutory Construction
If possible, we interpret a statute in a manner that renders it constitutional. See Quick v. City of Austin,
C. Delegation of Legislative Power
The Texas Constitution vests “legislative power” in the Legislature. See
Although the Constitution vests legislative power in the Legislature, courts have recognized that in a complex society like ours, delegation of legislative power is both necessary and proper in certain circumstances. See Boll Weevil,
But because delegations to private entities raise more troubling constitutional issues than public delegations, they are subject to more stringent requirements and less judicial deference than public delegations. See Proctor,
Nevertheless, as we explained in Boll Weevil, private delegations are frequently necessary and desirable. See Boll Weevil,
But as we further explained in Boll Weevil, once we determine that there has been a private delegation, we must then determine whether it is constitutional by analyzing it under eight factors:
1. Are the private delegate’s actions subject to meaningful review by a state agency or other branch of state government?
2. Are the persons affected by the private delegate’s actions adequately represented in the decisionmaking process?
3. Is the private delegate’s power limited to making rules, or does the delegate also apply the law to particular individuals?
4. Does the private delegate have a pecuniary or other personal interest that may conflict with its public function?
5. Is the private delegate empowered to define criminal acts or impose criminal sanctions?
6. Is the delegation narrow in duration, extent, and subject matter?
7. Does the private delegate possess special qualifications or training for the task delegated to it?
8. Has the Legislature provided sufficient standards to guide the private delegate in its work?
See Proctor,972 S.W.2d at 735 ; Boll Weevil,952 S.W.2d at 472 .
III. ANALYSIS
A.
The City asserts that
The powers delegated to the landowners are legislative powers. Water quality regulation is a legislative power. See Barshop,
The Legislature has generally delegated state water quality regulation to the TNRCC. See Tex. WateR Code §§ 5.012; 26.011, 26.0136, 26.023, 26.036, 26.127. In addition, it has given cities the power to regulate water quality within their city limits and extraterritorial jurisdictions. See Tex. WateR Code § 26.177; Tex. Loo. Gov’t Code § 401.002. The Legislature has also empowered conservation and reclamation districts to regulate water quality. See, e.g.,Tex. WateR Code §§ 36.001-374 (groundwater districts) and §§ 51.001-875 (water control and improvement districts).
Here, the Legislature has provided general water quality objectives in
The landowners’ power to exempt themselves from the enforcement of municipal regulations is also a legislative power. By allowing landowners to decide which municipal regulations are enforceable on their property,
Therefore,
Consistent with our holding, a number of courts have held that laws authorizing private property owners to veto or exempt themselves from otherwise applicable regulations or to regulate their own property are delegations of legislative power. See County of Fairfax v. Fleet Indus. Park L.P.,
In County of Fairfax, the Virginia Supreme Court held that a state law that required county supervisors to get unanimous consent from all affected landowners before enacting certain zoning regulations was an unconstitutional delegation of legislative power. See County of Fairfax,
Finally, we note that the delegation here presents the very concerns this Court identified in Boll Weevil. See Boll Weevil,
B. The Dissenting Opinions
Most of Justice Owen’s dissent is nothing more than inflammatory rhetoric, and thus merits no response. We note only that the two legal arguments Justice Owen does make are both based on a flawed premise. First, she argues that
Next, as the dissent in Boll Weevil argued, Justice Abbott argues that we have improperly applied the standard of review for facial challenges.
Before we consider the constitutionality of the delegation in depth, we respond to Justice Abbott’s claim that there is no delegation at all. First, Justice Abbott argues that
The landowners create a water quality and land use plan, thereby exempting themselves from the enforcement of municipal regulations that are inconsistent with or inconvenient to those plans, and thus cannot be enforced on their property. See Tex. WateR Code
Justice Abbott also argues that, unlike the delegation in Boll Weevil, the landowners do not have authoritative power over the private property of others. Cf. Boll Weevil,
Here, the landowners regulate water quality and decide which municipal regulations are enforceable only on their own property and the property of their successors in interests. See Tex. WateR Code
Next, Justice Abbott contends that classifying
The remainder of the Justice Abbott’s argument about why
C.
Because
1. Governmental Review
This first factor weighs heavily against the delegation. This is significant because, as we have said, this factor is relatively important in analyzing delegations to private interested parties.
First, we agree with the Landowners and the dissent that under
But
Landowners with 1,000 acres or more need not seek TNRCC approval until after their water quality plans or amendments are already in effect. See
This is contrary to the rule in similar regulatory schemes. See
The TNRCC must approve a plan or amendment to a plan unless the TNRCC finds that implementing it will not reasonably maintain background levels of water quality or capture and retain the first 1.5 inches of rainfall. See
Once the TNRCC approves a plan, the statute requires landowners purporting to maintain background levels of water quality to monitor water quality. See
The TNRCC reviews the landowners’ modifications and determines whether they modify plans and practices to the extent required under the statute, that is, to the extent reasonably feasible and practical. See
Therefore, regardless of the modifications actually necessary to achieve
The TNRCC has even less enforcement power in zones purporting to retain the first 1.5 inches of rainfall from developed areas. The statute states that, for these zones, “[w]ater quality monitoring shall not be required.” Tex. WateR Code
Finally, the TNRCC has very limited power over the decision to designate a zone. The TNRCC does have pre-approval power over zone designations of 500 to 1,000 acres. But the statute does not allow the TNRCC to de-designate any zone for noncompliance with
We conclude that, while the landowners’ powers under
While the landowners’ water quality plans are subject to some TNRCC review, the landowners’ authority to decide which municipal regulations can be enforced on their property is not subject to any TNRCC review. By designating a zone, a landowner exempts himself from the enforcement of municipal ordinances relating to land use, nuisance abatement, pollution control, water quality, subdivision requirements, and any other municipal environmental regulation that is “inconsistent with the land use plan and the water quality plan or which in any way limit, modify, or impair the ability to implement and operate the water quality plan and the land use plan within the zone as filed.”
Because the landowners’ powers under
2. Representation of Affected Persons
As discussed previously, the landowners’ actions in creating and implementing water quality plans could adversely affect neighbors, downstream water users, and the public generally. The statute requires that the landowners give notice of zone designations to the municipality within whose ETJ a zone is located and the county in which the property is located. See
The statute expressly provides landowners the right to appeal TNRCC denial of a water quality plan to a court of competent jurisdiction. See Tex. WateR Code
In addition, the landowners alone decide which municipal regulations cannot be enforced in their zones. The statute requires that landowners give applicable counties and municipalities notice of their zone designations, which includes a description of proposed land uses and a water quality plan. See Tex. WateR Code
Because the statute provides inadequate representation of persons affected by the delegates’ actions, this factor weighs against the delegation.
3.Power to Apply the Law to Particular Individuals
This factor weighs in favor of the delegation. The landowners have the power to create water quality plans and apply them to their property and to decide which municipal regulations are enforceable on their property. Again, these powers may affect particular individuals, such as neighboring landowners and downstream water users. But
In Boll Weevil, this factor weighed against the delegation because of the foundation’s power to directly apply the law to third parties. See Boll Weevil,
4.Pecuniary Interest and Public Function
As we stated earlier, this factor weighs heavily in delegations to private interested parties. We conclude that it weighs heavily against the delegation here.
Landowners under
5.Criminal Authority
The fifth factor weighs in the delegation’s favor. Although
6. Duration, Extent, and Subject Matter of Delegation
The sixth factor weighs against the delegation. The delegation’s subject matter is fairly narrow. The statute delegates to private landowners the power to govern water quality and land use only on their own property and that of their successors in interest. And, the landowners are still subject to existing state and TNRCC water quality regulations and additional regulations necessary to comply with federal standards.
But the extent of the delegation is fairly broad. Landowners have the power to create, implement, and enforce their own water quality plans. See
The delegation to the landowners is not narrow in duration either. The statute expressly provides that the water quality plan is a covenant running with the land. See Tex. WateR Code
7. Qualifications or Training
Specifically, the statute requires that a professional engineer certify that a landowner’s water quality plan achieves one of
In contrast, neither the engineer nor any other party with qualifications or training has any role in the landowner’s decisions about which municipal regulations the landowner’s water quality and land use plans will comply with and are therefore enforceable on its property.
Therefore, we conclude that this seventh factor weighs neither for nor against the delegation.
8. Sufficiency of Legislative Standards to Guide Delegates
This last factor weighs neither for nor against the delegation.
But
In Proctor, this Court held that a delegation of authority to private entities to select “qualified neutral arbitrators” to hear civil service commission appeals provided adequate guidance. Proctor,
Similarly,
This last factor weighs neither for nor against the delegation. But the Boll Weevil factors as a whole weigh against the constitutionality of delegation. Therefore, we conclude that
IV. ATTORNEY’S FEES
We conclude that the trial court did not abuse its discretion in denying the Landowners’ claim for attorney’s fees. Under the Texas Uniform Declaratory Judgment Act, the trial court has discretion in awarding attorney’s fees “as are equitable and just.” Tex. Civ. PRAC. & Rem.Code § 37.009; see also Barshop,
V. CONCLUSION
We hold that
Justice OWEN filed a dissenting opinion, in which Justice HECHT and Justice ABBOTT joined.
Notes
. The Legislature amended relevant parts of
Dissenting Opinion
filed a dissenting opinion,
Justice OWEN, joined by Justice HECHT and Justice ABBOTT, dissenting.
I strongly dissent from what the Court has wrought today. The importance of this case to private property rights and to the separation of powers between the judicial and legislative branches of government cannot be overstated. The Legislature is forbidden by the Texas Constitution, the Court says, from allowing property owners to make decisions about how they use and develop their own land. While the Constitution certainly permits the Legislature to enact laws that preserve and conserve the State’s natural resources, there is nothing in the Constitution that requires the Legislature to exercise that power in any particular manner. How the Legislature chooses to regulate is left to the Legislature, not this Court. Our Constitution plainly states that in preserving and conserving our natural resources, “the Legislature shall pass all such laws as may be appropriate thereto.”
I am at a loss to understand what is driving the Court’s opinion, since it clearly is not reasoned decision-making. I know only that the Court today exercises raw power to override the will of the Legislature and of the people of Texas. The Court strikes a severe blow to private property rights and usurps authority that is reserved to another branch of government — the Legislature. If the Court has any intention of applying the holdings in this case to future cases, the Court will impair all manner of property rights, and hamstring the Legislature’s ability to function as the Texas Constitution and the people of Texas intend that it should.
This case should have been resolved by applying two straightforward principles of law. The first is that it is not an unconstitutional delegation to restore to private landowners in a city’s extraterritorial jurisdiction property rights that other landowners across the state enjoy. The second is that the City of Austin had authority to regulate within its ETJ only because the Legislature granted it that authority. What the Legislature grants, it may take away from its own subdivisions.
I
The Water Code provisions at issue apply to the ETJs of certain cities.
The Court does not and cannot dispute that the Legislature’s purpose in promulgating these statutes was to balance several considerations, chief among them being the need to maintain water quality and the desire not to unduly hinder economic development in this State. See
Briefly summarized, the Legislature gave large landowners within certain cities’ ETJs an election. Owners of at least 500 contiguous acres of land in those ETJs could decide either to continue to abide by the city’s water quality ordinances adopted under
The Court concedes, as it must, that in addition to the requirements of
The question, then, concerning landowners within and outside cities’ ETJs is whether the State’s scheme of regulating water quality amounts to an unconstitutional delegation of legislative power. I turn to that question.
II
The Court’s opinion focuses extensively on the types of city ordinances that would no longer apply within an ETJ if a landowner elected to create a water quality protection zone and to comply with State as opposed to city water quality standards. See, e.g.,
The Court finds these aspects of
The Court also totally ignores the fact that a city could not regulate water quality within its ETJ at all unless the Legislature gave it that authority. It is not an unconstitutional delegation when the Legislature restores landowners within a city’s ETJ to the same status as those outside a city’s ETJ. Under
The rhetoric that is laced throughout the Court’s opinion, such as the statement that “landowners’ power to exempt themselves from the enforcement of municipal regulations is also a legislative power,”
Ill
The provision in the Texas Constitution that prohibits the Legislature from delegating its legislative powers to private citi
In 1917, the Texas Constitution was amended to provide that the preservation and conservation of natural resources, including water, were “public rights and duties” and that “the Legislature shall pass all such laws as may be appropriate thereto.”
The Court’s quarrel with the Legislature is, at bottom, not a question of delegation, but a question of whether, in the Court’s view, the laws that the Legislature has passed are “appropriate” to preserve and conserve water. Id. The Court has overstepped constitutionally prescribed boundaries. It is for the Legislature to decide what laws are “appropriate” to conserve water. That is not a function of this or any other court.
The statutes under scrutiny in this case permit landowners to make decisions, within limits, about how to use their own property. The Court concedes that
The Court says that “[w]ater quality regulation is a legislative power.”
The Court insists that
The Legislature has determined the consequences if a landowner fails to meet the State-prescribed water quality standards. The Court obviously believes that those consequences are not severe enough. It extensively criticizes the Legislature’s scheme for regulating water quality, apparently finding it too minimal. See, e.g.,
IV
The Court’s determination to strike down water quality laws rather than trying to uphold them is apparent when it applies the Boll Weevil factors. I would not reach those factors because there has been no delegation here. But I think it is important to illuminate the shallowness and transparency of the Court’s reasoning in its discussion of these factors and the Court’s failure to abide by the longstanding common-law tenet that “ ‘[i]f under any possible state of facts an act would be constitutional, the courts are bound to presume such facts exist.’ ” Texas Workers’ Compensation Comm’n v. Garcia,
Although the Court concludes that the third and fifth Boll Weevil factors weigh in favor of finding the “delegation” constitutional, the Court finds that the remaining factors tip the scales the other way. First, the Court says, there is no meaningful governmental review. This is belied by the fact that the TNRCC has rejected landowners’ plans for a water quality protection zone under
The Court also glosses over the fact that unless a zone has 1,000 or more acres, the plan cannot go into effect unless and until the TNRCC approves it. Then, the Court finds fault with the fact that the Legislature has placed the burden of proof on the TNRCC if an application is denied. Are we really prepared to say that the constitutionality of a statute turns on who has the burden of proof? Why should the State not have the burden of proof here? The State has the burden of proof when it seeks to restrict the exercise of rights such as those to life and liberty.
The Court’s obsession with elevating city ordinances above state regulation also crops up again in its analysis of the adequacy of governmental regulation and in its analysis of the fourth and sixth Boll Weevil factors. See
In analyzing the second Boll Weevil factor, the Court faults
V
I fully join in Justice Abbott’s dissent, including his analysis of the City’s other constitutional challenges to
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In sum, the Court says that landowners trapped within a city’s ETJ are somehow on different constitutional footing than rural or even suburban landowners who are not in a city’s limits or a city’s ETJ. The State must, the Court says, impose extensive regulations in place of city ordinances or else the State has unconstitutionally delegated legislative authority. Because the Court’s conclusion is so obviously flawed and because the Court’s ruling is an impermissible incursion into the domain of the Legislature, I dissent.
APPENDIX A
1995 Texas Water Code Provisions
§ 26.008. Policy of This Subchapter
It is the policy of this state and the purpose of this subchapter to maintain the quality of water in the state consistent with the public health and enjoyment, the propagation and protection of terrestrial and aquatic life, the operation of existing industries, and the economic development of the state; to encourage and promote the development and use of regional and area-wide waste collection, treatment, and disposal systems to serve the waste disposal needs of the citizens of the state; and to
§ 26.011. In General
Except as otherwise specifically provided, the commission shall administer the provisions of this chapter and shall establish the level of quality to be maintained in, and shall control the quality of, the water in this state as provided by this chapter. Waste discharges or impending waste discharges covered by the provisions of this chapter are subject to reasonable rules or orders adopted or issued by the commission in the public interest. The commission has the powers and duties specifically prescribed by this chapter and all other powers necessary or convenient to carry out its responsibilities. This chapter does not apply to discharges of oil covered under Chapter 40, Natural Resources Code.
(a) Every city in this state having a population of 5,000 or more inhabitants shall, and any city of this state may, establish a water pollution control and abatement program for the city. The city shall employ or retain an adequate number of personnel on either a part-time or full-time basis as the needs and circumstances of the city may require, who by virtue of their training or experience are qualified to perform the water pollution control and abatement functions required to enable the city to carry out its duties and responsibilities under this section.
(b) The water pollution control and abatement program of a city shall encompass the entire city and, subject to
(1) the development and maintenance of an inventory of all significant waste discharges into or adjacent to the water within the city and, where the city so elects, within the extraterritorial jurisdiction of the city, without regard to whether or not the discharges are authorized by the commission;
(2) the regular monitoring of all significant waste discharges included in the inventory prepared pursuant to Subdivision (1) of this subsection;
(3) the collecting of samples and the conducting of periodic inspections and tests of the waste discharges being monitored to determine whether the discharges are being conducted in compliance with this chapter and any applicable permits, orders, or rules of the commission, and whether they should be covered by a permit from the commission;
(4) in cooperation with the commission, a procedure for obtaining compliance by the waste dischargers being monitored, including where necessary the use of legal enforcement proceedings;
(5) the development and execution of reasonable and realistic plans for controlling and abating pollution or potential pollution resulting from generalized discharges of waste which are not traceable to a specific source, such as storm sewer discharges and urban runoff from rainwater; and
(6) any additional services, functions, or other requirements as may be prescribed by commission rule.
(c)The water pollution control and abatement program required by Subsections (a) and (b) of this section must be submitted to the commission for review and approval. The commission may adopt rules providing the criteria for the estab
(d) Any person affected by any ruling, order, decision, ordinance, program, resolution, or other act of a city relating to water pollution control and abatement outside the corporate limits of such city adopted pursuant to this section or any other statutory authorization may appeal such action to the commission or district court. An appeal must be filed with the commission within 60 days of the enactment of the ruling, order, decision, ordinance, program, resolution, or act of the city. The issue on appeal is whether the action or program is invalid, arbitrary, unreasonable, inefficient, or ineffective in its attempt to control water quality. The commission or district court may overturn or modify the action of the city. If an appeal is taken from a commission ruling, the commission ruling shall be in effect for all purposes until final disposition is made by a court of competent jurisdiction so as not to delay any permit approvals.
(e) The commission shall adopt and assess reasonable and necessary fees adequate to recover the costs of the commission in administering this section.
(a) In this section, “water quality protection” may be achieved by:
(1) maintaining background levels of water quality in waterways; or
(2) capturing and retaining the first 1.5 inches of rainfall from developed areas.
(b) For the purpose of Subsection (a)(1), “maintaining background levels of water quality in waterways” means maintaining background levels of water quality in waterways comparable to those levels which existed prior to new development as measured by the following constituents: total suspended solids, total phosphorus, total nitrogen, and chemical and biochemical oxygen demand. Background levels shall be established either from sufficient data collected from water quality monitoring at one or more sites located within the' area designated as a water quality protection zone or, if such data are unavailable, from calculations performed and certified by a registered professional engineer utilizing the concepts and data from the National Urban Runoff Program (NURP) Study or other studies approved by the Texas Natural Resource Conservation Commission (commission) for the constituents resulting from average annual runoff, until such data collected at the site are available. Background levels for undeveloped sites shall be verified based on monitoring results from other areas of property within the zone prior to its development. The monitoring shall consist of a minimum of one stage (flow) composite sample for at least four storm events of one-half inch or more of rainfall that occur at least one month apart. Monitoring of the four constituents shall be determined by monitoring at four or more locations where runoff occurs. A minimum of four sample events per year for each location for rainfall events greater than one-half inch shall be taken. Monitoring shall occur for three consecutive years after each phase of development occurs within the Water Quality Protection Zone. Each new phase of development, including associated best management practices, will require monitoring for a three-year period. The results of the monitoring and a description of the best management practices being used throughout the zone shall be. summarized in a technical report and submitted to the commission no later than April 1 of each calendar year during development of the property, although the commission may determine that monitoring is no longer required. The commission shall review the technical report. If the performance monitoring and best management practices indicate that background levels were not maintained during the previous year, the owner or developer of land within the water quality protection zone shall:
(1) modify water quality plans developed under this section for future phases of development in the water quality protection zone to the extent reasonably feasible and practical; and
(2) modify operational and maintenance practices in existing phases of the water quality protection zone to the extent reasonably feasible and practical.
Water quality monitoring shall not be required in areas using the methodology described by Subsection (a)(2).
(c) This section applies only to those areas within the extraterritorial jurisdiction, outside the corporate limits of a municipality with a population greater than 5,000, and in which the municipality either:
(1) has enacted or attempted to enforce three or more ordinances or amendments thereto attempting to regulate water quality or control or abate water pollution in the area within the five years preceding the effective date of this Act, whether or not such ordinances or amendments were legally effective upon the area; or
(2) enacts or attempts to enforce three or more ordinances or amendments thereto attempting to regulate water quality or control or abate water pollution in the area in any five-year period, whether or not such ordinances or amendments are legally effective upon the area.
(d) The owner or owners of a contiguous tract of land in excess of 1,000 acres that is located within an area subject to this section may designate the tract as a “water quality protection zone.” Upon prior approval of the commission, the owner of a contiguous tract of land containing less than 1,000 acres, but not less than 500 acres, that is located within an area subject to this section may also designate the tract as a “water quality protection zone.” The tract shall be deemed contiguous if all of its parts are physically adjacent, without regard to easements, rights-of-way, roads, streambeds, and public or quasi-public land, or it is part of an integrated development under common ownership or control. The purpose of a water quality protection zone is to provide the flexibility necessary to facilitate the development of the land within the zone, but which also is intended to result in the protection of the quality of water within the zone.
(e) A water quality protection zone designated under this section shall be described by metes and bounds. The designation shall include a general description of the proposed land uses within the zone, a water quality plan for the zone, and a general description of the water quality facilities and infrastructure to be constructed for water quality protection in the zone.
(f) Creation of a water quality protection zone shall become immediately effective upon recordation of the designation in the deed records of the county in which the land is located. The designation shall be signed by the owner or owners of the land, and notice of such filing shall be given to the city clerk of the municipality within whose extraterritorial jurisdiction the zone is located and the clerk of the county in which the property is located.
(g) The water quality plan for a zone, including the determination of background levels of water quality, shall be signed and sealed by a registered professional engineer acknowledging that the plan is designed to achieve the water quality protection standard defined in this section. On recordation in the deed records, the water quality plan shall be submitted to and accepted by the commission for approval, and the commission shall accept and approve the plan unless the commission finds that implementation of the plan will not reasonably attain the water quality protection as defined in this section. A water quality plan may be amended from time to time on filing with the commission, and all such amendments shall be accepted by the commission unless there is a finding that the amendment, will impair the attainment
(h) The water quality plan for a zone shall be a covenant running with the land.
(i) A municipality may not enforce in a zone any of its ordinances, land use ordinances, rules, or requirements including, but not limited to, the abatement of nuisances, pollution control and abatement programs or regulations, water quality ordinances, subdivision requirements, other than technical review and inspections for utilities connecting to a municipally owned water or wastewater system, or any environmental regulations which are inconsistent with the land use plan and the water quality plan or which in any way limit, modify, or impair the ability to implement and operate the water quality plan and the land use plan within the zone as filed; nor shall a municipality collect fees or assessments or exercise powers of eminent domain within a zone until the zone has been annexed for the municipality. A water quality protection zone may be annexed by a municipality only after the installation and completion of 90 percent of all facilities and infrastructure described in the water quality plan for the entire zone as being necessary to carry out such plan or the expiration of 20 years from the date of designation of the zone, whichever occurs first.
(j) Subdivision plats within a water quality protection zone shall be approved by the municipality in whose extraterritorial jurisdiction the zone is located and the commissioners court of the county in which the zone is located if:
(1) the plat complies with the subdivision design regulations of the county; and
(2) the plat is acknowledged by a registered professional engineer stating that the plat is in compliance with the water quality plan within the water quality protection zone.
(k) A water quality protection zone implementing a water quality plan which meets the requirements of this section shall be presumed to satisfy all other state and local requirements for the protection of water quality; provided, however, that:
(l) development in the zone shall comply with all state laws and commission rules regulating water quality which are in effect on the date the zoning is designated; and
(2) nothing in this section shall supersede or interfere with the applicability of water quality measures or regulations adopted by a conservation and reclamation district comprising more than two counties and which apply to the watershed area of a surface lake or surface reservoir that impounds at least 4,000 acre-feet of water.
(I )(1) One or more of the provisions of this section may be waived by the owner or owners of property that is or becomes subject to an agreement entered into after the effective date of this Act between the
(A) to guarantee continuation of the extraterritorial status of the zone and its immunity from annexation by the municipality for a period not to exceed 15 years after the effective date of the agreement;
(B) to authorize certain land uses and development within the zone;
(C) to authorize enforcement by the municipality of certain municipal land use and development regulations within the zone, in the same manner such regulations are enforced within the municipality’s boundaries, as may be agreed by the landowner and the municipality;
(D) to vary any watershed protection regulations;
(E) to authorize or restrict the creation of political subdivisions within the zone; and
(F) to such other terms and considerations the parties consider appropriate, including, but not limited to, the continuation of land uses and zoning after annexation of the zone, the provision of water and wastewater service to the property within the zone, and the waiver or conditional waiver of provisions of this section.
(2) An agreement under this section shall meet the requirements of and have the same force and effect as an agreement entered into pursuant to Section 42.046, Local Government Code.
(m) In addition to the requirements of Subsections (a)(1) and (a)(2), the commission may require and enforce additional water quality protection measures to comply with mandatory federal water quality requirements, standards, permit provisions, or regulations.
(n) This section does not apply to an area within the extraterritorial jurisdiction of a municipality with a population greater than 900,000 that has extended to the extraterritorial jurisdiction of the municipality an ordinance whose purpose is to prevent the pollution of an aquifer which is the sole or principal drinking water source for the municipality.
dissenting, joined by Justice HECHT and Justice OWEN.
I disagree with the Court’s holding that
I
This case is not so much about water quality as it is about the power of local governments to regulate in their extraterritorial jurisdictions (ETJs). Local governments’ power to regulate water quality in their ETJs derives solely from the authority granted them by the Legislature in
It is the Legislature’s responsibility to regulate water quality in Texas. As noted, the Legislature chose to allow cities to regulate water quality in their ETJs via
The necessary import of the Court’s opinion is that by enacting
Besides improperly tying the Legislature’s hands, the Court also fails to acknowledge the potential consequences of its decision. The Legislature has demonstrated its desire to empower individuals through a variety of privatization initiatives such as school choice and school vouchers.
Despite the numerous existing regulations, the Court wants more. The Court creates an impossible standard requiring the Legislature to regulate the minutia of land development. For example, although
Rather than requiring the Legislature to spell out every detail, it is well recognized that delegations need only establish “reasonable standards” sufficient to guide the entity to which the powers are delegated, especially when conditions must be considered that cannot be conveniently investigated by the Legislature. See Railroad Comm’n v. Lone Star Gas Co.,
Last, although the Court claims to apply the standard of review for a facial challenge to a statute’s constitutionality,
Although required to construe statutes to be constitutional whenever possible, the Court doggedly construes the statute in a manner that renders it unconstitutional. For example, the Court concludes that more monitoring is necessary, but then goes out of its way to hold that the TNRCC cannot require monitoring in zones opting to retain rainfall. Instead of micro-managing the Legislature and forcing an increase in needless regulation in this area and possibly many others, the Court should conduct a proper facial-challenge review and, as it is bound to do, construe the statute in a constitutional manner.
The only silver lining in the Court’s opinion is its admittedly limited application. As the Court notes,
II
DELEGATION
The Court erroneously concludes that
A
In order to determine whether
One such delegation occurred in 1971, when the Legislature delegated certain water-quality management authority to municipalities via
Similarly, a city’s authority to regulate land development in its ETJ is wholly derived from a legislative grant of authority. Section 212.003 of the Local Government Code provides that a city may extend to the ETJ its municipal ordinances governing plats and subdivisions of land, but cannot regulate (1) the use of buildings or property, (2) the bulk, height, or number of buildings constructed, (8) the size of buildings, or (4) the number of residential units that can be built per acre. See Tex. Loc. Gov’t Code § 212.003. If no municipal ordinances are extended to the ETJ, only county land-use regulations apply.
Austin’s approach to protecting water quality under its
In enacting
It is the policy of this state and the purpose of this subchapter to maintain the quality of water in the state consistent with the public health and enjoyment, the propagation and protection of terrestrial and aquatic life, the operation of existing industries, and the economic development of the state ... and to require the use of all reasonable methods to implement this policy.
B
The City contends that
To determine whether a delegation of the power to suspend laws has occurred, courts focus on the statutory language. See Texas Boll Weevil Eradication Found., Inc. v. Lewellen,
When designating a zone, the landowner must describe the zone by metes and bounds and include a general description of the proposed land uses within the zone (the land-use plan), a water-quality plan for the zone, and a general description of the water-quality facilities and infrastructure to be constructed for water-quality protection in the zone. See
To begin with, the Legislature’s allowing landowners to choose between alternative, legislatively established regulatory schemes is not a delegation. See Helvering v. Lemer Stores Corp.,
Moreover, when a landowner chooses the state scheme by designating a zone and formulating water-quality and land-use plans, any city regulations inconsistent with those plans are rendered inapplicable by the terms of
[a] municipality may not enforce in a zone any of its ordinances, land use ordinances, rules, or requirements ... which are inconsistent with the land use planand the water quality plan or which in any way limit, modify, or impair the ability to implement and operate the water quality plan and the land use plan within the zone as filed; nor shall a municipality collect fees or assessments or exercise powers of eminent domain within a zone until the zone has been annexed for the municipality. A water quality protection zone may be annexed by a municipality only after the installation and completion of 90 percent of all facilities and infrastructure described in the water quality plan for the entire zone as being necessary to carry out such plan or the expiration of 20 years from the date of designation of the zone, whichever occurs first.
The Legislature determined which city regulations would be suspended, and did so in a manner narrowly tailored to
Although a landowner’s plan is developed in accordance with
To support its argument that the landowner is entitled to suspend city laws, the City contends, and the Court agrees, that “a landowner is the sole arbiter of whether any City ordinance is ‘inconsistent with’ or
C
The City also argues, and the Court agrees, that
To repeat, a landowner of a tract with fewer than 1000 acres and more than 500 acres may not even designate the tract as a zone without prior TNRCC approval. See Tex. Watee Code
As noted, under
If a landowner chooses to maintain background levels of water quality,
Regardless of whether a landowner chooses to capture rainfall or to maintain background levels of water quality,
The TNRCC has authority to enforce these provisions under
Thus, for landowners designating a zone,
As noted previously, once a water-quality plan is in effect, if a landowner has opted to maintain background levels of water quality but fails, he must modify existing operational and maintenance practices, modify his plan for future phases, and obtain TNRCC approval of the modified plan. See
The Court also points to the fact that, if a landowner opts to capture the first 1.5 inches of rainfall, no water-quality monitoring is required. Simply because monitoring is not required does not mean that legislative authority has been delegated. The Legislature defined capturing 1.5 inches of rainfall as a water-quality-protection standard. If a landowner submits a plan to capture the first 1.5 inches of rainfall, which is sworn by a registered engineer and approved by the TNRCC, the landowner has complied with the standard created by the Legislature. The landowner is required to continue to capture rainfall throughout the project’s development; the Legislature states that doing so will “achieve water-quality protection;” and the TNRCC can enforce this requirement. The simple lack of water-quality monitoring does not indicate that any legislative authority has been delegated to the landowners under this scheme.
The Court also incorrectly concludes that
In sum, by enacting
This case differs significantly from Boll Weevil, in which we found that an unconstitutional delegation had occurred. See Texas Boll Weevil Eradication Found., Inc. v. Lewellen,
D
Ill
SPECIAL OR LOCAL LAW
The City also challenges
Local and special laws
The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law
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Regulating the affairs of counties, cities, towns, wards or school districts;
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Exempting property from taxation;
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And in all other cases where a general law can be made applicable, no local or special law shall be enacted....
In Maple Run v. Monaghan, this Court recognized “the Legislature’s broad authority to make classifications for legislative purposes.”
“[T]he classification ... must be based on characteristics legitimately distinguishing [the] class from others with respect to the public purpose sought to be accomplished by the proposed legislation.” “The primary and ultimate test of whether a law is general or special is whether there is a reasonable basis for the classification made by the law, and whether the law operates equally on all within the class.”
Maple Run,
The City argues that
In considering these arguments, it must be presumed that the Legislature has not acted arbitrarily or unreasonably. See Smith v. Davis,
The City first argues that Texas has consistently applied a rule that statutes defining a class of one are constitutional only if they advance a statewide interest. To support this contention, the City cites Maple Run,
In Maple Run, this Court found no legitimate reason why the Legislature chose a classification confining the statute at issue to a single municipal utility district. See Maple Run,
Nor does County of Cameron v. Wilson support the City’s proposed rule. The City asserts that the Court upheld the statute at issue in that case “because it concerned a matter of statewide importance.” That assertion does not necessarily support a rule that a statute is unconstitutional unless it concerns a matter of statewide importance. Furthermore, this Court stated in County of Cameron — similar to its statement in Maple Run — that whether a statute deals with a general rather than local interest is “an important consideration,” but “the primary and ultimate test is whether there is a reasonable basis for the classification and whether the law operates equally on all within the class.” County of Cameron,
Miller v. El Paso County also fails to support the rule that the City urges. The City contends that the Court in Miller struck down a statute because it limited its effect to one county. The case reveals that the Court struck down the statute not for that reason, but because “the attempted classification [was] unreasonable and [bore] no relation to the objects sought to be accomplished by the Act.” Miller,
Similarly, the City’s reliance on City of Irving is misplaced. In that case, the court of appeals relied on the argument that a statute with an arbitrary classification can nonetheless be constitutional if it affects a matter of statewide importance. See City of Irving,
Most importantly, this Court rejected the City’s argument in Maple Run, explaining that the ultimate question is whether there is a reasonable basis for the Legislature’s classification and the significance of the statute’s subject matter is merely an important factor in determining reasonableness. See Maple Run,
B
In Maple Run, this Court quoted the fifty-eight-year-old proposition that “where a law ... affects only the inhabitants of a particular locality, ‘the classification must be broad enough to include a substantial class and must be based on characteristics legitimately distinguishing such class from others with respect to the public purpose sought to be accomplished by the proposed legislation.’ ” Maple Run,
That supposition would be misguided. In 1941, Miller first referred to a “substantial class.” See Miller,
But the greater expanse of this Court’s local and special law jurisprudence reveals that an inquiry into the substantiality of a class cannot be divorced from the reasonableness of the lines drawn to form that class. Instead, the primary and ultimate inquiry is and has been the reasonableness of the lines a statute draws and whether the statute operates equally on all within the class. See, e.g., Maple Run,
Before Miller, in O’Brien v. Amerman,
legislation must be intended to apply uniformly to all who may come within the classification designated in the Act, and the classification must be broad enough to include a substantial class and must be based on characteristics legitimately distinguishing such class from others with respect to the public purpose sought to be accomplished by the proposed legislation. In other words, there must be a substantial reason for the classification.
Miller,
And in Maple Run, the Court made this explicit by explaining that “the ultimate question under article III, section 56 is whether there is a reasonable basis for the Legislature’s classification.... [T]he number of persons affected by the legislation are merely factors, albeit important ones, in determining reasonableness.” Maple Run,
C
The City also argues that
This section applies only to those areas within the extraterritorial jurisdiction, outside the corporate limits of a municipality with a population greater than 5,000, and in which the municipality either:
(1) has enacted or attempted to enforce three or more ordinances or amendments thereto attempting to regulate water quality or control or abate water pollution in the area within the five years preceding the effective date of this Act, whether or not such ordinances or amendments were legally effective upon the area; or (2) enacts or attempts to enforce three or more ordinances or amendments thereto attempting to regulate water quality or control or abate water pollution in the area in any five-year period, whether or not such ordinances or amendments are legally effective upon the area.
Tex. WateR Code
The stated purpose of
The classification limiting
The City argues that the classification is unreasonable because it is, in effect, overbroad: a city could fall within the classification for merely attempting to enforce three longstanding ordinances, for enacting ordinances not enforced against landowners, for enacting non-substantive water-quality ordinances, or for enacting ordinances that never become legally effective. I find some irony in the City’s argument that a statute can be unconstitutionally local or special because its classification is too broad or general. Moreover, the City’s interpretation of
As noted, it is not necessary that the legislation advance a matter of statewide interest, but whether it does so is a significant factor in determining whether the Legislature’s classifications are reasonable. In addition, the substantiality of the class (ie., the number of persons affected by the legislation) must be considered in evaluating the reasonableness of the classifications. Promoting development without unnecessary regulatory chaos is a matter of statewide interest. See, e.g., Tex. Watee Code
D
The City further argues that
As the City acknowledges, “[a]n improper legislative motive ... cannot taint an otherwise constitutional statute.” Cf. id. at 224,
E
Finally, the City argues that “[n]ot only is
IV
In addition to its argument that
V
The City also argues that
VI
Finally, the City argues that
First, the City makes no attempt to demonstrate how its authority to enforce water-quality, land-use, or other ordinances within its ETJ is a vested right. As noted, the City has such authority only because the Legislature chose to grant it in the first place. The City’s continued authority to regulate in the ETJ is at all times subject to the will of the Legislature. But even assuming that the City does in fact have a vested right affected by
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In sum, because I disagree with the Court’s conclusion that
. I, like the Court, cite the 1995 version of the Water Code unless otherwise indicated. The 1999 amendments to the Water Code do not apply to this case.
. See infra Appendix A.
. See infra Appendix A.
. See infra Appendix A. The trial court held that
. The Texas Constitution provides:
1. Senate and House of Representatives Sec. 1. The Legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled "The Legislature of the State of Texas.”
Tex Const. Art. Ill, § 1.
. All citations are to the Water Code unless otherwise noted. In addition,
. See House Research Org., Bill Analysis, Tex. S.B. 1, 74 th Leg., R.S. (1995); see also Colo-ría, The Privatization of Public Schools — A Statutory and Constitutional Analysis in the Context of Wilkinsburg Education Association v. Wilkinsburg School District, 100 Dickinson L.Rev. 1027, 1048 (1996); Egle, Comment, The Constitutional Implications of School Choice, 1992 Wis. L.Rev. 459, 505-07 (1992).
. See Blakely & Bumphus, Private Correctional Management: A Comparison of Enabling Legislation, Fed. Probation, June 1996, at 49; Dipiano, Private Prisons: Can They Work? Pa-nopticon in the Twenty-first Century, 21 New Eng. J. on Crim. & Civ. Confinement 171, 172, 196, 199 (1995).
. See, e.g., Tex. Nat. Res.Code § 111.019(a), (b) (granting common carriers eminent domain power); Tex.Rev.Civ. Stat. § 161.125 (electric cooperatives); Tex.Rev.Civ. Stat. § 162.124 (telephone cooperatives); Tex.Rev.Civ. Stat. art. 3183b-l (certain nonprofit charitable corporations affiliated with certain medical centers); Tex.Rev.Civ. Stat. art. 6351 (railroad companies); Tex.Rev.Civ. Stat. art. 6535 (electric railway companies).
. In fact, the TNRCC denied approval of two water-quality plans filed by the landowners in this suit.
.
. State v. Town of Montclair,
. In Friedman, the challenge was actually based on the Texas Constitution’s equal rights provision, article I, section 3, rather than on article III, section 56. Nevertheless, “[t]he same considerations govern decisions whether a statute is challenged as special legislation or under the guaranty of equal protection” even though "[t]he close relation between these prohibitions ... has seldom been emphasized.” 2 Singer, Sutherland Statutory Construction § 40.27 (5 th ed.1993); see also Owens Coming v. Carter,
. For example, when a City enforces one ordinance for two years and then enacts a new ordinance, it has applied two different standards, one enforced and one enacted, if the City then enacts another ordinance two years later, it has applied three different standards within a five-year period, and