                IN THE SUPREME COURT OF TEXAS
                                          444444444444
                                             NO . 11-0554
                                          444444444444



                           CITY OF LORENA, TEXAS, PETITIONER,
                                                   v.


                           BMTP HOLDINGS, L.P., RESPONDENT

           4444444444444444444444444444444444444444444444444444
                              ON PETITION FOR REVIEW FROM THE
                      COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS
           4444444444444444444444444444444444444444444444444444


        JUSTICE LEHRMANN , concurring.


        In the spring of 2006, the City of Lorena was informed by retained engineers that its sewage

system was over capacity. The City was further warned that, if the sewage volume continued to

increase, excess sewage could contaminate nearby water sources. Needless to say, the receipt of this

information put the City on notice that it needed to take action to protect its citizens. Title 7 of the

Texas Local Government Code provides municipalities with authority to regulate the development

of property, including the imposition of moratoria in certain circumstances. See TEX . LOC. GOV ’T

CODE §§ 212.131–.139. Today we are presented with the question of whether the statute at issue

prohibited the City from using this form of protective action—the adoption of a moratorium—to

protect its residents under the circumstances of this case.
       While the conclusion the Court reaches today may seem harsh, in my view, the plain

language of the statute leaves no plausible alternative.          Section 212.135 clearly requires

municipalities to issue written findings summarizing evidence demonstrating both “the extent of the

need beyond estimated capacity of existing essential public facilities” and “that the moratorium is

reasonably limited to: (A) areas of the municipality where a shortage of essential public facilities

would otherwise occur; and (B) property that has not been approved for development because of the

insufficiency of existing essential public facilities.” Id. § 212.135(b). The definition of “property

development” in section 212.131 unambiguously includes not only building construction, but also

the subdivision of residential or commercial property. Id. § 212.131(3). In other words, property

that has been approved for subdivision has necessarily been approved for development and is

therefore not properly subject to a moratorium under section 212.135.

       I agree with the dissent that, if the purpose of a moratorium is to prevent a shortage of

essential public facilities, restricting the moratorium to only those properties that have not been

approved for development is arguably insufficient to accomplish that goal. After all, exempting

property that has been approved for development will necessarily lead to an increase in the volume

of sewage burdening an already-taxed system. However, for the reasons advanced by the Court, I

cannot say that such a result is absurd. Cities simply must be very careful when evaluating whether

to grant permits authorizing development in the first instance.

       All of this is not to say that cities are powerless to protect their citizens. To the contrary,

municipalities must have an effective mechanism to do so in the event of a public threat. And while

I agree with the dissent that reliance on the police power may not be the preferred method of

                                                 2
accomplishing such a necessary goal, that is not for this Court to decide. Because this option allows

municipalities to take protective action when necessary and proper, without rising to the level of a

constitutional taking, I concur in the Court’s opinion and judgment.



                                              _________________________________
                                              Debra H. Lehrmann
                                              Justice


OPINION DELIVERED: August 30, 2013




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