                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00171-CV


THE TOWN OF ANNETTA SOUTH,                          APPELLANTS/APPELLEES
TEXAS; GERHARD
KLEINSCHMIDT; JAMES
ABLOWICH; PHILLIP KUNTZ; AND
DAVID GOOLSBY

                                       V.

SEADRIFT DEVELOPMENT, L.P.                             APPELLEE/APPELLANT


                                    ----------

         FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
                    TRIAL COURT NO. CV11-0220

                                    ----------

                          DISSENTING OPINION

                                    ----------

      This cross-appeal requires this court to determine whether a municipality’s

minimum lot size requirement, when applied to property within the municipality’s
extraterritorial jurisdiction (ETJ), 1 violates a local government provision that

prohibits a municipality from regulating the number of residential units that can be

built per acre of land within its ETJ. Because I conclude that the ordinance at

issue does not violate the local government code, I respectfully dissent.

      Local government code section 212.002 provides that a municipality may

adopt rules governing plats and subdivisions of land within its jurisdiction. 2 When

a municipality adopts rules under section 212.002, section 212.003 authorizes it

to apply those rules to the territory in its ETJ. 3 Not every municipal ordinance

adopted under section 212.002 may be extended into the ETJ, however, and

section 212.003 also includes a list of what municipalities may not regulate in

their ETJ. 4 And under that section, unless otherwise authorized by state law, a

municipality may not regulate “the number of residential units that can be built

per acre of land.” 5




      1
       See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 26 (Tex. 2003)
(“Extraterritorial jurisdiction refers to ‘the unincorporated area that is contiguous
to the corporate boundaries of the municipality’ and is located within a specified
distance of those boundaries, depending upon the number of inhabitants within
the municipality.”).
      2
       Tex. Loc. Gov’t Code Ann. § 212.002 (West 2008).
      3
       Id. § 212.003(a).
      4
       Id.
      5
       Id. § 212.003(a)(4).


                                         2
      Seadrift argued in its summary judgment motion that by adopting the

limitations in 212.003(a), “the Legislature was prohibiting municipalities from

limiting residential density in a town’s extraterritorial jurisdiction.” It contended

that the Town’s ordinance would prohibit it from putting more than one detached

single-family home on a single lot. It then asserted that because this ordinance

requires two-acre lots and because other ordinances of the Town prohibit putting

more than one detached single-family home on each lot, the Town’s ordinance

was merely a method for it to do what was otherwise prohibited by state law:

limit the density of residential development. The trial court agreed with Seadrift,

as does the majority of this panel.

      I see two problems with Seadrift’s density argument.          First, the local

government code shows that the legislature knows how to say “density” when it

means density. As the Town points out, in the local government code section

setting out generally what zoning regulations a municipality may make, it states

that a municipality may regulate “population density.” 6 And while the zoning

regulations allowed under section 211.003 are remarkably similar to the

regulations not allowed to be imposed in the municipality’s ETJ under section

212.003, the legislature chose not to make these provisions identical. It did not

transfer the “population density” language of section 211.003 to the restrictions in

section 212.003. If the legislature had intended to prohibit under section 212.003


      6
       Id. § 211.003(a)(4).


                                         3
all of the regulations discussed in section 211.003, it could have easily done so.

Instead, it chose to prohibit under 212.003 only some of the kinds of regulations

listed in section 211.003. It could have used the term “population density” in

section 212.003, as it did in section 211.003, but it chose not to.

      The second problem with Seadrift’s density argument is that this ordinance

does not regulate population density. That is, even if section 212.003 contained

a prohibition on regulating density, the ordinance would not violate it. Texas law

treats a condominium unit, a townhouse, and an apartment unit as a “residential

unit.” 7 As Seadrift conceded at oral argument, nothing in the Town’s ordinances

stopped it from putting multifamily homes on its property.        Thus, as Seadrift

concedes, the lot-size ordinance does not regulate how many residential units

Seadrift may put on each acre.

      Perhaps in adopting section 212.003, the legislature intended to prevent

municipalities from regulating lot size or building density in its ETJ. But that is

not what the statute says, and that is not what the context of the statute

      7
        See, e.g., Tex. Loc. Gov’t Code Ann. § 214.1955(a) (West 2008) (“A
municipality may not refuse to issue an alarm system permit for a residential
location solely because the residential location is an individual residential unit
located in a multiunit housing facility.”); Tex. Prop. Code Ann. § 12.017(b)(1)
(West Supp. 2014) (“This section applies only to a mortgage on: (1) property
consisting exclusively of a one-to-four-family residence, including a residential
unit in a condominium regime.”), § 62.003(2)(A)(B) (West 2007) (stating that the
term “[c]ommercial real estate” does not include “real estate improved with one to
four residential units” or “a single-family residential unit, including a
condominium, townhouse, or home in a subdivision, if the unit is . . . conveyed on
a unit-by-unit basis and regardless of whether the unit is part of a larger building
or located on real estate containing more than four residential units”).


                                          4
suggests.    The plain language of section 212.003 prohibits regulation of the

number of residential units per lot. 8 The plain language of the Town’s ordinance

regulates lot size.

      The ordinance stops Seadrift from developing the property in the way it

would prefer.    Section 212.003, however, does not give a developer carte

blanche to develop land in an ETJ for whatever use it would prefer. The limit on

the number of residential units that Seadrift may put on its property is the result

of Seadrift’s own choice to build only single-family homes. I would hold that the

trial court erred by declaring that the Town’s ordinance setting out a minimum lot

size in its ETJ violated state law and by granting summary judgment for Seadrift

on that basis.

      The majority opinion states that “although multiple duplexes, triplexes, and

apartment complexes may technically be built on a single two-acre lot in the

Town’s ETJ, they can never be individually sold.” 9 I disagree with the majority’s

emphasis on buyers as opposed to residents. If a developer may put apartments

on a two-acre lot, then the ordinance is not limiting density just because the

apartment units all have the same owner. Density does not depend on how

many individual properties can be sold from a two-acre tract. Density depends


      8
       See Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex. 2012)
(looking at a statute’s plain and common meaning of the statute’s words to
discern the intent of the statute).
      9
       Majority op. at 10.


                                        5
on how many residents could live there. Because nothing in the ordinance limits

the number of residents who may reside on a two-acre lot, the ordinance does

not regulate density. I would sustain the Town’s first issue and render judgment

that Seadrift take nothing on its suit.



                                                 /s/ Lee Ann Dauphinot
                                                 LEE ANN DAUPHINOT
                                                 JUSTICE


DELIVERED: September 25, 2014




                                          6
