    OFFICE
         OFTHEATTORNEY
                     GENERAL.
                            STATE
                                OFTEXAS
    JOHN CORNYN




                                          November    10, 1999




The Honorable Bill G. Carter                         Opinion No. JC-0142
Chair, Committee on Urban Affairs
State of Texas House of Representatives              Re: Whether a home-rule municipality may limit
P.O. Box 2910, GW.16                                 the number of building permits it will issue in the
Austin, Texas 78768-2910                             absence of an emergency, and related question
                                                     (RQ-0061 -JC)


Dear Representative   Carter:

         You question the authority of a home-rule municipality to limit the number of building
permits it will issue in the absence of an emergency. See Letter from Honorable Bill G. Carter,
Chair, Committee on Urban Affairs, Texas House of Representatives, to Honorable John Comyn,
Attorney General of Texas (Apr. 26, 1999) (on file with Opinion Committee) [hereinafter “Request
Letter”]; Brief accompanying Request Letter, supra, at 1. You also ask whether a home-rule
municipality may limit the number ofresidential building permits issued in a given time period while
not limiting the number ofnonresidential building permits. Subject to various caveats, we conclude
first that nothing in federal or Texas law precludes a home-rule municipality from limiting the
number of building permits it will issue, even in the absence of an emergency, in a given time
period. We conclude second that a home-rule municipality may impose limits on residential
building permits and not nonresidential building permits, subject to the equal protection clauses of
the federal and State constitutions.

         In January 1999 the Town of Flower Mound (the “Town”), a home-rule municipality,
resolved to adopt a SMART Growth program in response to higher than expected rates ofpopulation
growth in recent years. See Brief accompanying Request Letter, supra, at 1. (“SMART Growth”
stands for “Strategically Managed And Responsible Town Growth.” See Brief from Terrence S.
Welch, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P., on behalfofTown      ofFlower
Mound, attachment 2 (June 16, 1999) [hereinafter “Town brief”]; Brief from Arthur J. Anderson,
Winstead Se&rest & Minick P.C., on behalf of Home & Apartment Builders Association of Greater
Dallas, to John Comyn, Esq., Attorney General, exhibit “C” at 24 (June 4,1999) [hereinafter “Home
& Apartment Builders Brief’]). Expecting that the population growth would overload the Town’s
water, wastewater, and transportation systems and would adversely affect the Town’s “character and
quality,” see Brief accompanying Request Letter, supra, at 1, the Town council intends the SMART
Growth program to “manage both the rate and character of residential growth in Flower Mound.”
The Honorable   Bill G. Carter - Page 2          (JC-0142)




See Town Brief, supra, attachment 2 at 4; Home & Apartment Builders Brief, supra, exhibit “C” at
25. The Town’s Resolution No. l-99, providing for the SMART Growth program, articulates the
Town’s rationale:

                        WHEREAS, during an October 1998 review of preliminary
                data with the Town’s impact fee consultants, it became apparent that
                the Town’s continued ability to provide adequate service levels to
                existing residents and businesses was rapidly being jeopardized;

                          WHEREAS, the threat to the Town’s ability to meet existing
                and near-term service demands is attributable to exploding population
                growth and (1) rapidly increasing water consumption, (2) rapidly
                increasing wastewater flows, and (3) increasing transportation system
                difficulties;
                            ...

                          WHEREAS, it is the objective of the Town to (1) achieve the
                community vision embodied in the Town’s 1994 Comprehensive
                Master Plan, (2) ensure the Town’s continuing ability to maintain
                adequate water and wastewater service while constructing system
                improvements to accommodate both residential and non-residential
                growth, (3) prevent increased traffic congestion          and further
                deterioration   of traffic safety and mobility while constructing
                transportation system improvements to accommodate both residential
                and non-residential      growth, (4) maintain adequate water and
                wastewater capacity to sustain economic development efforts that
                will reduce the extreme imbalance in assessed valuation between
                residential and non-residential development, (5) preserve and enhance
                the unique character and lifestyle that currently exists in Flower
                Mound and (6) mitigate the ill effects of rapid and intense
                urbanization, such as overcrowding, overburdened infrastructure and
                municipal services, traffic congestion, loss of open space and
                 agricultural land, environmental degradation and loss of a sense of
                 place;

                        WHEREAS, the exemption ofnon-residential development        is
                necessary to the long-ten-n economic health of the Town . . .

FLOWERMOUND,TEXAS,RESOLUTION              No. 1-99,Prearnble,   at l-2.
The Honorable   Bill G. Carter - Page 3         (JC-0142)




       The SMART      Growth program has four components:

                (1)    An update of the Town’s 1994 Comprehensive Master Plan
                       and a reaffirmation of the community vision embodied in the
                       1994 Comprehensive Master Plan;


                (2)    A temporary moratorium applicable to residential Master Plan
                       amendments, residential zoning amendments and residential
                       development plans, ensuring future development will be
                       consistent with the community     vision expressed in the
                       updated Comprehensive Master Plan;

                (3)    Amendments to the Town’s Building Code providing that
                       residential building permits are valid for forty-five (45) days
                       without construction commencing; and


                (4)    Consideration, after the update of the Comprehensive Master
                       Plan and analysis of the Town’s water, wastewater and
                       transportation systems, of the need andfeasibility of a plan to
                       manage and equitably apportion residential buildingpermits
                       in a manner that ensures the Town’s ability to maintain a
                       defined level of service while accommodating reasonable and
                       sustainable residential and non-residential growth.

Id. 5 3, at 3 (emphasis added). You ask only about the fourth component of the plan, consideration
of a growth-management    plan that apportions, or “caps,” the number of residential building permits
the Town will issue in a specified time period (the “growth-management       plan”).

         We consider only municipal authority generally to implement a growth-management        plan.
We do not consider a particular growth-management      plan, and we cannot evaluate any ofthe various
grounds on which the Town may choose to apportion building permits, e.g., aesthetic considerations,
location, first-come-first-served,  or random selection. See generally LAWRENCE B. BURROWS,
GROWTHMANAGEMENT: I~~~E~,TECHN~QLE~ANDPOLICY IMPLICATIONS83-91(1978) (describing
annual permit limitations). Nor do we consider the accuracy of any ofthe various conflicting factual
allegations regarding the capacities of the Town’s water, waste water, and transportation systems.
Compare Brief accompanying Request Letter, supra, at 1 and Home & Apartment Builders Brief,
supra, at 4-5 with Town Brief, supra, at 8-16. The opinion process is an inappropriate forum for
resolving factual disputes. See, e.g., Tex. Att’y Gen. Gp. Nos. JC-0032 (1999) at 4; JC-0027 (1999)
at 3; JC-0020 (1999) at 2. Finally, in responding to your questions, we assume, without making any
 findings on the issue, that no emergency situation justifies the allegedly proposed apportionment.
The Honorable Bill G. Carter - Page 4             (E-0142)




         Because it is a home-rule municipality, the Town may exercise any governmental power that
the legislature has not withheld from it. See Lipscomb v. Randall, 985 S.W.2d 601, 605 (Tex.
App.-Fort Worth 1999, pet. dism’d) (stating that Town has “Ml power of self government”); see
also Proctor Y. Andrews, 972 S.W.2d 729, 733 (Tex. 1998) (citing Lower Colo. Riv. Auth. v. City
of San Marcos, 523 S.W.2d 641,643 (Tex. 1975) (stating that legislature may only limit power of,
but may not grant power to, home-rule municipality). A home-rule municipality has “all the powers
of the state not inconsistent with the Constitution, the general laws, or the city’s charter.” Proctor,
972 S.W.2d at 733 (citing TEX. CONST. art. XI, 5 5). The legislature may circumscribe a home-rule
municipality’s broad power, but only if it does so “‘with unmistakable clarity.“’ Id. (citing, e.g.,
Dallas Merchant’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex.
 1993); City of Sweehvater v. Geron, 380 S.W.2d 550,552 (Tex. 1964)); City of Santa Fe v. Young,
 949 S.W.2d 559,560 (Tex. App.-Houston [14th Dist.] 1997, no writ). Consequently, with respect
 to each of your questions, we analyze first whether a growth-management      plan comports with state
 and federal law. (We assume that an ordinance adopting a growth-management           plan is authorized
 by the city’s charter.) Second, we consider whether the legislature has, ‘with unmistakable clarity,”
 limited a home-rule municipality’s authority to adopt a growth-management         plan.

         With certain caveats, we conclude that a home-rule municipality may, even in the absence
of an emergency, limit the number ofbuilding permits the municipality will issue in a given period
of time. First, a growth-management       plan does not appear to be generally inconsistent with
constitutional and statutory law. Second, the legislature has not, with “unmistakable clarity,”
forbidden a home-rule municipality to adopt a growth-management         plan in the absence of an
emergency.

A.      Whether. in the absence of an emergency, a home-rule municioalitv mav implement a
        growth-manaeement       Dlan, which limits the number of building Dermits the
        municinalitv will issue in a given period of time?

         The general concept of a growth-management plan does not per se facially contravene federal
or state constitutional provisions. The Town must, however, adopt a growth-management        plan in
compliance with constitutional requirements regarding substantive and procedural due process. See
U.S. CONST. amend. XIV, 5 1. Substantive due process is satisfied if a generally applicable
ordinance “is designed to accomplish an objective within the government’s police power and if a
rational relationship exists between the ordinance and its purpose.” Mayhew Y. Town of Sunnyvale,
964 S.W.2d 922, 938 (Tex. 1998), cert. denied, 119 S. Ct. 2018 (1999). Procedural due process
requires the government to provide a building permit applicant “an appropriate and meaningful
opportunity to be heard.” Id. at 939. Depending on the particular facts surrounding the denial of a
building permit application, we can imagine that a municipality might nm afoul of one or more of
these constitutional doctrines.

        Nor does a growth-management    plan in the abstract contravene state statutory law. We have
 examined chapters 211, 212, and 214 of the Local Government Code. Chapter 211 provides
 municipal zoning authority. See TEX. Lot. GOV’TCODEANN. 5 211.003(a) (Vernon 1999). Chapter
The Honorable   Bill G. Carter - Page 5           (K-0142)




2 12 pertains to municipal regulation of subdivisions and property development. See id. 9 2 12.002.
Chapter 214 authorizes a municipality to regulate substandard buildings, see id. 5 214.001; to
regulate plumbing and sewers, see id. 5 214.012; to regulate swimming-pool enclosures, see id.
5 214.101; to formulate energy-conservation      standards, see id. § 214.901; and to establish rent
control, see id. 5 214.902.      None of these statutes preclude or conflict with a home-rule
municipality’s authority to adopt a growth-management       plan.

         Moreover, a growth-management     plan would appear to be consistent with section 219.002
of the Local Government Code, which authorizes the governing body of a municipality to adopt a
comprehensive plan to guide the municipality’s long-range development. See id. $5 2 19.002(a), ,003
(permitting municipality to adopt or amend comprehensive plan by ordinance following public
hearing).    The municipality  may use its comprehensive      plan to “coordinate and guide the
establishment of development regulations.” Id. § 219.002(b). Although chapter 2 19 does not define
“development regulations,” we believe that it would encompass municipal ordinances that restrict
how land may be developed. See id. 5 401.003(a) (requiring home-rule municipality that “regulates
and controls the use and development” of watersheds and flood-prone areas to file notice); David
Hartman, Comment, Risky Business: Vested Real Property Development Rights-The Texas
Experience and Proposalsfor the Texas Legislature tozmprove Certainty in the Law, 30T~x. TECH.
L. REV. 297,325 (1999) (describing Hawaii and California statutes freezing existing development
regulations, i.e., laws “governing permitted uses of the land” and regulations “applicable to
development ofthe property”) (quoting HAW. REV. STAT. 5 46-127(b) (1996) &CAL. GOV’TCODE
5 65866 (West 1996)).

         We further must conclude that the legislature has not, “with unmistakable clarity,” limited
a home-rule municipality’s     authority to implement agrowth-managementplan      that limits the number
ofbuilding permit applications the municipality will issue per year. Again, looking at chapters 211,
212,214, and 219 of the Local Government Code, seesupra, we find no statute that clearly forbids
a municipality to implement a growth-management            plan in the absence of an emergency.       We
accordingly conclude that, even in the absence of an emergency, a home-rule municipality may adopt
a growth-management        plan that limits the number of building permits the municipality will issue in
a given time period.

         A home-rule   municipality may not, however, attempt to apply its growth-management        plan
to a building permit    application filed before the plan was adopted. A municipality may apply its
growth-management       plan only to building permit applications filed subsequent to the adoption ofthe
municipal ordinance     enacting the plan. See TEX. GOV’T CODE ANN. 5 245.002(a), adopted by Act
of Apr. 29,1999,76th      Leg., R.S., ch. 73,§ 2, sec. 245.002,1999 Tex. Sess. Law Serv. 43 1,432-33;
Quick v. City ofAstin, 1999 WL 771291, *l (Tex. 1999) (stating that legislature may statutorily
alter common-law rule that right to develop property is subject to intervening regulation). Section
245.002 of the Government Code requires, with certain exceptions, a municipality to “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.” TEX. GoV’T CODE ANN.
The Honorable Bill G. Carter - Page 6             (X-0142)




5 245002(a), adopted by Act of Apr. 29, 1999, 76th Leg., R.S., ch. 73, 5 2, sec. 245.002, 1999
Tex. Sess. Law Serv. 431, 432 (emphasis added); see id. 5s 245.003 - .004, adopted by Act of
Apr. 29,1999,76thLeg.,      R.S., ch. 73,s 2, sets. 245.003 - .004,1999 Tex. Sess. Law Serv. 431,433
(delimiting applicability   of chapter and listing exemptions).

         In its brief to this office, the Texas Association of Builders relies on Estate ofScott v.
 Victoria County, 778 S.W.2d 585 (Tex. App.-Corpus Christi 1989, no writ), for its argument that
a home-rule municipality may not implement a growth-management           plan in the absence of an
emergency.      See Home & Apartment Builders Brief, supra, at 4. The Association raises an
important, different issue.

        The issue you raise is whether a home-rule municipality may institute a growth-management
plan. The issue in Estate of Scott is whether a temporary moratorium prohibiting additional
sewer hookups in certain areas of the county constituted an unconstitutional taking for which the
owners must be compensated.       See Estate of Scott, 778 S.W.2d at 589-91. The appellants, who
owned undeveloped tracts of land in Victoria County, claimed that the County unconstitutionally
“‘took’ their property without just compensation” by issuing the temporary sewer moratorium. Id.
at 586-87. Whether a home-rule municipality has authority to undertake an action is different l?om
whether it must provide compensation for actions under the takings provision of either the federal
or state constitution.

        The Just Compensation Clause of the Fifth Amendment to the United States Constitution
forbids the State to take private property for public use without just compensation.     U.S. CONS.
amend. V; see Mayhew, 964 S.W.2d at 933; Estate of Scott, 778 S.W.2d at 589. Article I, section
17 ofthe Texas Constitution similarly prohibits the taking ofprivate property for public use “without
adequate compensation being made.” TEX. CONST. art. I, $ 17; see Mayhew, 964 S.W.2d at 933;
Estate of Scott, 778 S.W.2d at 589-90. A regulatory taking occurs if a municipal ordinance “‘does
not substantially advance legitimate state interests.“’ Mayhew, 964 S.W.2d at 933 (quoting Agins
v. City of Tiburon, 447 U.S. 255,260 (1980)). The United States Supreme Court has recognized
several governmental interests as legitimate:

                 protecting residents f?om the “ill effects of urbanization[,]” Agins,
                 447 U.S. at 261 . ; enhancing the quality of life[,] Penn Central
                 Trump. Co. v. New York City, 438 U.S. 104, 129             (1978); and
                 protecting a beach system for recreation, tourism, and public health[,]
                 Keystone [Bituminous Coal Ass ‘IIY. DeBenedictis, 480 U.S. 470,488
                 (1987)]; Esposito v. South Carolina Coastal Council, 939 F.2d 165,
                 169 (4th Cir. 1991), cert. denied, 505 U.S. 1219      . (1992).

Mayhew, 964 S.W.2d at 934. “The ‘substantial advancement’ requirement             examines the nexus
between the effect of the ordinance and the legitimate state interest it is supposed to advance.” Id.
Even if a municipal ordinance substantially advances legitimate state interests, it may constitute a
compensable regulatory taking if it (1) denies a landowner of all economically viable use of his or
The Honorable   Bill G. Carter - Page 7           (JC-0142)




her property, or (2) unreasonably   interferes with a landowner’s    right to use and enjoy his or her
property. See id. at 935.

         Whether a growth-management      plan effects an unconstitutional taking in aparticularinstance
is an issue that only a court may resolve, taking into consideration numerous factual issues. See id.
at 932; Estate of Scott, 778 S. W.2d at 590. For example, after examining the factual record in Estate
of Scott, the court determined that the county had not “taken” appellants’ property as a matter of law:

                [T]he evidence conclusively establishes the following: (1) the sewer
                moratorium was adopted for a legitimate purpose substantially related
                to the health, safety, and general welfare of the public; (2) the
                government’s action in prohibiting additional sewer hookups was not
                for its own advantage; (3) the regulation was reasonable and not
                arbitrary; and (4) the sewer moratorium did not render appellants’
                land wholly useless nor did it totally destroy the land’s value.

See id. at 591. Such fact-intensive inquiries may not be resolved in an attorney general opinion. 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).

B.      Whether a home-rule municipalitv may imolement a growth-management              plan that
        limits the number of residential building permits the municipalitv will issue and not the
        number of nonresidential buildine oermits?

         Depending upon the specifics of the Town’s growth-management plan or upon its application
in a particular circumstance, a growth-management    plan that limits only the issuance of residential
building permits while not limiting the issuance of nonresidential building permits may implicate
the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.          See
U.S. CONS. amend. XVI, 5 1. The level of scrutiny with which a court would examine a growth-
management plan depends upon whether the distinction between residential and nonresidential
building permit applications discriminates against a suspect class or impinges upon personal
fundamental rights. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 3 12 (1976);
Mayhew, 964 S.W.2d at 939.

         Where a suspect class or a personal fundamental right is not involved, the Equal Protection
Clause precludes the government from treating one building permit applicant differently from other
similarly situated applicants unless the government has a reasonable basis for doing so. See
Massachusetts Bd. of Retirement, 427 U.S. at 312; Mayhew, 964 S.W.2d at 939. Distinguishing
between residential and nonresidential building permit applications does not involve a patently
suspect class, so a court probably would determine that this distinction need only be “rationally
related to a legitimate state interest.” Mayhew, 964 S.W.2d at 938. This is a relatively low
The Honorable    Bill G. Carter - Page 8           (X-0142)




evident&y standard to meet. A court may find that the Town’s desire to ensure the Town’s “long-
term economic health,” FLOWERMOUND, TEXAS, ORDINANCENO. 2-99, constitutes a legitimate
state interest and that restricting residential development is rationally related to this interest.

         On the other hand, if a growth-management       plan disparately affects a suspect class by, for
example, discriminating      against applicants on the basis of their racial or ethnic identity, see
Massachusetts Bd. OfRetirement, 427 U.S. at 312 n.4 (listing suspect classes), or impinges upon a
personal fundamental right, such as the right to vote or to travel between the states, see id. at 3 13 n.3,
a court will examine the plan more critically. See id. at 3 12. Using “strict scrutiny,” the court will
ascertain whether the Town has narrowly tailored the plan to serve a compelling state purpose. See
Tex. Att’y Gen. Op. No. DM-384 (1996) at 4 (quoting Zoblocki Y. Redhail, 434 U.S. 374 (1978)).
Even if the plan is patently neutral, a court may strictly scrutinize how the plan is applied if the court
finds that the governing body intended to discriminate.       See Schleuter v. City of Fort Worth, 947
S.W.2d 920, 934-35 n.11 (Tex. App.-Fort Worth 1997, writ denied) (Livingston, J., cont. &
dissenting) (citing 3 RONALDD. ROTUNDA& JOHNE. NOWAK,TREATISEON CONSTITUTIONALLAW:
SUBSTANCE & PROCEDURE 5 18.4, at 41-42 (2d ed. 1992)). It is more difficult to sustain an
enactment that is subject to strict scrutiny review. Whatever challenges ultimately might be brought,
and the viability of such challenges, obviously will depend on the specifics of the growth-
management plan.
The Honorable Bill G. Carter - Page 9          (X-0142)




                                      SUMMARY

                       A home-rule     municipality    may implement      a growth-
              management plan that apportions, or “caps,” the number of building
              permits the municipality will issue in a specified time period even in
              the absence of an emergency.          The municipality must provide
              appropriate  substantive   and procedural due process, and the
              municipality may not attempt to apply its growth-management       plan
              to building permit applications filed prior to the adoption of the
              plan. See TEX. GOV’T CODE ANN. 4 245.002(a), adopted by Act of
              Apr. 29, 1999, 76th Leg., R.S., ch. 73, 5 2, sec. 245.002, 1999 Tex.
              Sess. Law Serv. 431, 432-33. The denial of a building permit
              application may constitute an unconstitutional taking for which the
              municipality must compensate the landowner.

                      A home-rule municipality may adopt a growth-management
              plan that limits the number ofresidential building permits, and not the
              number of nonresidential permits, the municipality will issue in a
              given time period. Depending on the facts of a particular situation,
              such a growth-management      plan may implicate the Equal Protection
              Clause of the Fourteenth         Amendment      to the United States
              Constitution.




                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERWIN
Deputy Attorney General - General Counsel

 ELIZABETH ROBINSON
 Chair, Opinion Committee

 Kymberly K. Oltrogge
 Assistant Attorney General - Opinion Committee
