Agenda - Planning Commission - 01/09/2014

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October 25, 2013 1 Volume 7 I Issue 20 Zoning Bulletin Section 212.135 of the Texas Local Government Code provides that "[a] moratorium is justified by demonstrating a need to prevent the shortage of essential public facilities. The municipality must issue writ- ten findings based on reasonably reliable information." One such required finding is "a summary of: . . . evidence demonstrating that the moratorium is reasonably limited to . . . property thathas not been approved for development because of the insufficiency of existing es- sential public facilities." (§ 212.135(b)(2)(B).) Disputing what constituted "development" exempt from moratorium, the City responded that the seven lots would not be exempted because the City had only approved the lots for subdivision, not construction. BMTP filed a legal action. It asked the court to declare that the moratorium could not be enforced against its remaining seven lots. Finding there were no material facts in dispute, and deciding the matter on the law alone, the trial court granted summary judgment to the City. BMTP appealed, and the court of appeals reversed. The court of ap- peals held that § 212.135 of the Local Government Code prohibits municipalities from enforcing moratoria against approved development. Also, the court of appeals held that development, as defined by Chapter 212 of the Local Government Code, was defined as subdivision or construction. The City appealed. DECISION: Judgment of court of appeals affirmed. The Supreme Court of Texas also held that development, as defined by Chapter 212 of the Local Government Code, was defined as subdivi- sion or construction. Thus, it concluded that a property need not be ap- proved for both the subdivision and construction aspects of develop- ment to be insulated from moratoria regarding shortages of essential publicfacilities; it is insulated from such subsequent moratoria when the municipality approves either subdivision or construction. (Tex. Loc. Gov't Code §§ 212.131(3), 212.135(b)(2)(B).) In so holding, the court gave "effect to the statute's plain language." Again, Chapter 212 of Texas' Local Government Code allows munici- palities 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. The statute defines development as: "the constriction . . . of residential or commercial buildings or the subdivision . . . of residential or com- mercial property." 10 ©2013 Thomson Reuters