 7 OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN CORNYN




                                             October 19,200l



The Honorable Frank Madla                               Opinion No. JC-0425
Chair, Committee on
   Intergovernmental Relations                          Re: Whether real property for which an original
Texas State Senate                                      application for a first permit has been filed
P. 0. Box 12068                                         remains subject to the orders, regulations,
Austin, Texas 7871 l-2068                               ordinances,    rules, expiration dates, or other
                                                        requirements that were effective at the time of that
                                                        filing although the property has been conveyed to
                                                        a different owner (RQ-0386-JC)


Dear Senator Madla:

         Section 245.002 of the Local Government Code locks in, for the duration of a real-property
“project,” the development regulations in effect when the original application for the first necessary
permit is filed. See TEX. Lot. GOV’T CODEANN. 8 245.002(a), (b) (Vernon Supp. 2001); see also
Quick v. City of Austin, 7 S.W.3d 109, 13 1 (Tex. 1998). Under the statutory definition of the term
“project,” it is irrelevant whether the owner who files the original application for the first permit
retains the property for the duration of the project or conveys the property. See TEX. Lot. GOV’T
CODEANN. 8 245.001(3) (V emon Supp. 2001). You ask a question regarding a tract of land for
which an owner has filed an original application for the first necessary permit.’ If another person
purchases that tract of land, you inquire, is the purchaser “entitled to the rights and benefits” that
chapter 245 provides to the owner who filed the original application for the first permit, see Request
Letter, note 1, at 1, and we thus understand you to ask whether the property remains subject to the
development regulations in effect when the original application for the first permit was filed despite
the conveyance. We conclude that the property remains subject to the development regulations in
effect at the time the original application for the first permit was filed, but only if the project remains
the same. Whether a project remains the same is a fact question, and this office cannot resolve it.
See, e.g., Tex. Att’y Gen. Qp. Nos. JC-0032 (1999) at 4 (stating that question of fact is beyond
purview of this office); JC-0027 (1999) at 3 (stating the questions of fact cannot be addressed in




         ‘See Letter from Honorable Frank Madla, Chair, Committee on Intergovernmental Relations, Texas Senate,
to Honorable John Comyn, Texas Attorney General (May 24, 2001) (on file with Opinion Committee) [hereinafter
Request Letter].
The Honorable Frank Madla         - Page 2           (JC-0425)




attorney general opinion); JC-0020 (1999) at 2 (stating that investigation          and resolution   of fact
questions cannot be done in opinion process).

        Section 245.002 of the Local Government Code specifies that a real-property “project” will
be subject to the development regulations in effect when the original application for the first permit
required for the project is filed:

                           (a) Each regulatory agency shall consider the approval,
                  disapproval, or conditional approval of an application for a permit
                  solely on the basis of any orders, regulations, ordinances, rules,
                  expiration dates, or other properly adopted requirements in effect at
                  the time the original application for the permit is filed.

                           (b) If a series of permits is required for a project, the orders,
                  regulations, ordinances, rules, expiration dates, or other properly
                  adopted requirements in effect at the time the original application for
                  the first permit in that series is filed shall be the sole basis for
                  consideration of all subsequent permits required for the completion
                  of the project. All permits required for the project are considered to
                  be a single series of permits.          Preliminary plans and related
                  subdivision plats, site plans, and all other development permits for
                  land covered by the preliminary plans or subdivision plats are
                  considered collectively to be one series of permits for a project.




TEX.Lot. GOV’T CODEANN. 5 245.002(a), (b) (Vernon Supp. 2001). The terms “permit,” “project,”
and “regulatory    agency” are defined in section 245 .OO1:

                            (1) “Permit”   means    a license,    certificate,  approval,
                  registration, consent, permit, or other form of authorization required
                  by law, rule, regulation, order, or ordinance that a person must obtain
                  to perform an action or initiate, continue, or complete a project for
                  which the permit is sought.




                          (3) “Project” means an endeavor over which a regulatory
                  agency exerts its jurisdiction and for which one or more permits are
                  required to initiate, continue, or complete the endeavor.
The Honorable      Frank Madla - Page 3             (JC-0425)




                            (4) “Regulatory agency” means the governing body of, or a
                   bureau, department, division, board, commission, or other agency of,
                   apolitical subdivision acting in its capacity of processing, approving,
                   or issuing a permit.

Id. 8 245.001.     Chapter 245 applies only to a project “in progress on or commenced after
September 1, 1997,” see id. 6 245.003, and certain permits and regulations are exempt from the
chapter, see id. $245.004. In addition, a regulatory agency may, by ordinance or regulation, place
an expiration date on dormant projects, after which date the project would be subject to current
development regulations. See id. 0 245.005. We understand that the property about which you are
concerned is not exempt from chapter 245 and is not dormant. See generally Request Letter, supra
note 1.

         With respect to property for which an original application for a first permit has been filed,
the property is subject to the development regulations that are effective at the time of the filing (with
the exceptions listed in chapter 245 of the Local Government Code) for the duration of the project
regardless of any conveyances that may occur during the project. Nothing in chapter 245 suggests
that the development regulations to which a property is subject, locked in at the time of filing the
original application for the first permit, no longer apply to the property solely because the property
has been conveyed to another owner. Section 245.002 facially directs that a property is, for the
duration of a project, subject to the development regulations in effect when the original application
for the first permit was filed, without mentioning the possibility of a conveyance.         CJ Quick, 7
S.W.3d at 131 (examining prior statute, which “provides that if a series of permits is for a project,
the ordinances in effect at the time the original application for the first permit is filed shall be the
sole basis for consideration of all subsequent permits required for the completion of a project”).
Additionally, the term “project,” as defined in section 245.001(3), does not indicate that a project
is specific to a person or terminates each time the property is sold. See TEX.LOC. GOV’T CODEANN.
§ 245.001(3) (V emon Supp. 2001). A project is an “endeavor,“see id., which is commonly defined
as “the action of endeavouring; effort, or pains, directed to attain an object.” V OXFORDENGLISH
DICTIONARY     226 (2d ed. 1989); see TEX. GOV’T CODEANN. 8 3 11 .Ol 1(a) (Vernon 1998) (requiring
us to read statutory words and phrases in context and to construe them according to rules of grammar
and common usage); Thompson v. Corbin, 137 S.W.2d 157,159 (Tex. Civ. App.-Texarkana                 1940,
no writ) (defining verb “endeavor” as “to exert physical and intellectual strength toward the
attainment     of an object; a systematic or continuous   effort”) (quoting Webster’s New International
Dictionary).

         Nevertheless, neither a purchaser nor an owner may alter a project without the possibility of
a consequence.    If a project is altered by a purchaser, for example, the development regulations are
no longer locked in under chapter 245 and current development regulations apply. Whether a
particular project has changed so as to lose the protections granted by chapter 245 is a question that
must be resolved by the local regulatory agency with jurisdiction in the matter. The statute defines
The Honorable   Frank Madla - Page 4             (JC-0425)




“regulatory agency” as “the governing body of, or a bureau, department, division, board,
commission,     or other agency of, a political subdivision acting in its capacity of processing,
approving, or issuing a permit.” TEX. Lot. GOV’T CODE ANN. 8 245.001(4) (Vernon Supp. 2001).
Nothing in chapter 245 provides any other body jurisdiction to decide such a question. C$ id.
§ 245.005 (authorizing regulatory agency to adopt rules placing expiration date on dormant projects).
Furthermore, this agency cannot determine whether a project has changed, as the question cannot
be resolved without considering fact questions. Fact questions are not amenable to the opinion
process. See, e.g., Tex. Att’y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that question of fact is
beyond purview of this office); JC-0027 (1999) at 3 (stating the questions of fact cannot be
addressed in attorney general opinion); JC-0020 (1999) at 2 (stating that investigation and resolution
of fact questions cannot be done in opinion process).
The Honorable Frank Madla - Page 5              (JC-0425)




                                       SUMMARY

                         Under section 245.002 of the Local Government Code,
               property for which an original application for the first development
               permit has been filed remains subject to the orders, regulations,
               ordinances, rules, expiration dates, or other requirements that were
                effective at the time the application was filed for the duration of a
               project, regardless of any changes in ownership that may occur before
               the project is completed.       See TEX. Lot. GOV’T CODE ANN. 8
               245.002(a), (b) (V emon Supp. 2001). If a project changes, however,
               the project becomes subject to current development regulations. See
                id. § 245.001(3) (defining “project”). Whether a particular project
               has changed so as to lose the protections granted by chapter 245 is a
               question that must be resolved by the local regulatory agency with
               jurisdiction in the matter. See id. 8 245.001(4) (defining “regulatory
                agency”).

                                              Yo   sverytrul   ,



                                            4uyc--l-
                                              JO&N     COkNYN
                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
