Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-95-00038-CV

Williamson Pointe Venture; John K. Condon, Trustee; and John K. Condon

as Trustee of the Sean and Candice Condon Family Trust and of the

Tiffany, Chase, and Hunter Coleman Family Trust, Appellants

v.

City of Austin, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. 93-09435, HONORABLE JOSEPH H. HART, JUDGE PRESIDING

PER CURIAM

Appellants Williamson Pointe Venture; John K. Condon, Trustee; and John K.

Condon, Trustee of the Sean and Candice Condon Family Trust and of the Tiffany, Chase, and

Hunter Coleman Family Trust challenge a trial court judgment in favor of appellee City of Austin.

At issue is whether rezoning is a "permit" that entitles the property owner who later develops his

or her property to comply only with the standards existing at the time of rezoning. See Tex.

Gov't Code Ann. § 481.143 (a) (West 1990). The trial court held that it was not. We will affirm

the trial court's judgment.

FACTS

The disputed land lies in the Williamson Creek watershed in south Austin. Upon

annexation, the City zoned the land as development reserve ("DR"), which allowed only the

development of single family homes, farms, and ranches. The former owner of the land

subsequently applied for rezoning in 1986. The Austin City Council approved the rezoning on

March 26, 1987 by passing City Ordinance 870326-A. The new zoning categories included

multifamily ("MF-1" and "MF-2") and warehouse/light office ("W/L") uses. The property owner

filed, and received approval of, a preliminary subdivision plan on January 17, 1985. However,

the owner did not file for final plat approval. The subdivision plan expired on September 2, 1987,

because no additional steps were taken and no application for extension was filed.

When the present owner, Williamson Pointe Venture ("the Venture"), acquired the

property on March 30, 1992, the Austin Save Our Springs ("SOS") referendum was pending. The

Venture planned to acquire the land and submit applications for development permits before the

more environmentally-stringent requirements of the SOS ordinance were passed so as to

"grandfather in" earlier regulations.

The Venture filed a site plan application on August 6, 1992, but did not file a

subdivision application to replace the expired one. The site plan was designed to comply with the

Williamson Creek Ordinance, which was in effect at the time of rezoning. Austin City Ordinance

No. 801218-W. However, the law in effect on August 6, 1992, at the time the site plan was

submitted, was the Composite Ordinance. Austin City Ordinance No. 911017-B. The SOS

Ordinance was approved by voters on August 8, 1992. See Austin City Ordinance No. 920903-D.

The site plan was never approved and expired on August 2, 1993. (1)

By time of trial, the Venture had not filed a subdivision application to replace the

one which had expired.

APPLICABLE LAW AND CONCEPTS

The parties assert that subchapter I of Texas Local Government Code chapter 481,

as amended effective September 1, 1989, applies to this controversy. We agree. Subchapter I

was again amended on May 24, 1995 and the changes were expressly made retroactive to

September 1, 1987, the effective date of the original act. However, the 1995 legislation excepted

rights acquired under final judgments or involved in pending actions. (2) See Act of May 24, 1995,

74th Leg., R.S., ch. 794, 1995 Tex. Sess. Law. Serv. 4147, 4148 (West). We will consider the

issue under the law in effect before the 1995 amendments because this action was pending on the

effective date of the amendments.

Three land-use concepts involved in this dispute are zoning, subdivision, and site

plans. Zoning is the broadest planning tool, the object of which is to ensure that proposed uses

conform to the City's Comprehensive Plan. Tex. Loc. Gov't Code Ann. § 211.004 (West Supp.

1995). The property owner who desires to rezone his or her property submits an application to

the Planning Commission. The Planning Commission drafts a preliminary report, holds a public

hearing on the proposed change, and makes a recommendation to the City Council. Tex. Loc.

Gov't Code Ann. § 211.007 (b) (West 1988). The zoning process results in the passage of an

ordinance amending the City's zoning map to show the approved zoning category. The zoning

categories describe in broad terms the uses to which a particular piece of property may be put and

usually set a maximum number of units per acre.

Subdivision, a more detailed review of the proposed development, involves the

platting of property into lots. See Tex. Loc. Gov't Code Ann. § 212.004 (a) (West Supp. 1995).

The subdivision applicant must demonstrate compliance with drainage, transportation, and utility

service requirements. The result of an approved subdivision application is a filed plat. Tex. Loc.

Gov't Code Ann. § 212.004 (d) (West Supp. 1995). If the final plat includes four or more lots,

the authority that approves the preliminary plan and the final plat is the Planning Commission.

A site plan is a specific proposal for the development of the property. The site plan

applicant must demonstrate compliance with applicable siting rules, which includes such things

as setback requirements, observation of flood plain boundaries and dedicated parkland, minimum

lot size and width, maximum dwellings per lot and maximum height, maximum building coverage,

and maximum impervious cover. In Austin, site plan review also addresses a myriad of small

details, such as parking, landscaping, and tree preservation. See Austin Land Dev. Code §§ 13-2-600 - 13-2-700. The site plan is approved by the Planning Commission. An approved and

released site plan is a prerequisite to building on the property. Austin Land

Dev. Code § 13-1-600.

ANALYSIS OF APPLICABLE CODE

Appellants, by one point of error, argue that the trial court erred by concluding that

a rezoning of property is not a "permit" under section 481.143. We hold that the trial court did

not err because the ordinance change that results from the rezoning process is not a "permit" to

which the statute applies.

Section 481.143(a) provides in pertinent part:

The approval, disapproval, or conditional approval of an application for a permit

shall be considered by each regulatory agency solely on the basis of any orders,

regulations, ordinances, or requirements in effect at the time the original

application for the permit is filed. If a series of permits is required for a project,

the orders, regulations, ordinances, or 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.

Tex. Gov't Code Ann. § 481.143 (a) (West 1990) (emphasis added). The operative terms in

section 481.143(a) are "permit," "regulatory agency," and "project." The second sentence of

section 481.143(a) controls the disposition of this case.

Zoning and rezoning are legislative acts. City of Pharr v. Tippitt , 616 S.W.2d 173,

175 (Tex. 1981). A permit is defined as a "license, certificate, approval, registration, consent,

permit, or other form of authorization required by law, rule, regulation, or ordinance that must

be obtained by a person in order to perform an act or initiate a project for which the permit is

sought." Tex. Gov't Code Ann. § 481.142 (2) (West 1990). Appellants urge us to interpret the

terms "approval" or "other form of authorization" to include the legislative act of rezoning; we

decline to do so.

Established law provides that no property owner has a vested interest in particular

zoning categories. See City of Pharr , 616 S.W.2d at 176 (city can amend zoning ordinance as

public necessity demands); City of University Park v. Benners , 485 S.W.2d 773, 778 (Tex. 1972),

appeal dismissed , 411 U.S. 901 (1973) (city could eliminate existing use); Conner v. City of

University Park , 142 S.W.2d 706, 709 (Tex. Civ. App.--Dallas 1940, writ ref'd) (city could

rezone property while application was pending). Otherwise, "a lawful exercise of the police

power by the governing body of the city would be precluded." Benners , 485 S.W.2d at 778 .

Because the City could rezone the property to entirely prohibit previously permissible uses, even

established uses, the City can amend regulations that affect the prospective development of the

property within the broad zoning categories. The proposition that the legislative act of zoning

entitles the landowner to develop his or her property free from all subsequent regulatory changes

is so contrary to established law that the legislature, had it wanted to effect such a change, must

have clearly so stated. State v. Standard , 414 S.W.2d 148, 153 (Tex. 1967) (legislative grants

of property rights must be strictly construed in favor of state on grounds of public policy).

Appellants rely on the City's order of processing ordinance, number 13-1-36, to

support their argument that the rezoning is a permit. Ordinance 13-1-36 provides:

Applications for a project are processed in the following order, although all

projects may not require all steps:

(1) Zoning;

(2) Subdivision;

(3) Site plan; and

(4) Building permit.

Applications for each step may be filed and will be processed concurrently at the

request of the applicant, but each application will be approved in the order listed.

. . .

Rezoning is a step that must be taken before a preliminary plan or subdivision plat can be filed;

so is purchasing the property. The mere fact that the City has provided that it will process an

application for subdivision only after the property is properly zoned does not make zoning a

"permit" for purposes of section 481.143.

Even if the definition of "permit" is read in isolation to include a zoning ordinance,

a zoning change approved by the City Council cannot be the first permit in a series of permits

comprising a project because the City Council, while engaged in zoning, is not a "regulatory

agency" to which this version of section 481.183 applies. A regulatory agency is defined as an

"agency, bureau, department, division or commission of the state or any department or other

agency of a political subdivision that processes and issues permits ." Tex. Gov't Code §

481.142(3) (West 1990) (emphasis added). On its face, the definition does not include the

governing body of a municipality.

Appellants assert that a city council is an "agency." (3) The term "agency" is not

defined. Courts apply the ordinary meaning of undefined statutory terms when interpreting a

statute. State v. Public Util. Comm'n , 883 S.W.2d 190, 200 (Tex. 1993). The word "agency"

ordinarily refers to an administrative agency in the executive branch of the government. See ,

e.g. , Webster's Third New International Dictionary 40 (Philip B. Gove ed., 1986) (agency is "a

department or other administrative unit of a government"). The definition does not include the

governing body of a municipality engaged in legislative acts. Also, we must construe the

provision in its context. Jessen Assocs., Inc. v. Bullock , 531 S.W.2d 593, 601 (Tex. 1975).

Subchapter I is part of Title 4 of the Texas Government Code, which governs the executive, rather

than the legislative, branch of government. (4) Because the legislature did not explicitly include in

its definition of a "regulatory agency" the governing body of a municipality acting in its legislative

capacity, and nothing in the statute's context indicates that was intended, we decline to read in the

term. (5)

It is reasonable for the legislature to exclude zoning from the definition of a

"permit" or a "project" because zoning is perpetual. Once established, it does not change until

the City or the property owner take positive steps to change it. Sometimes zoning changes are

accomplished but development does not occur for many years. If zoning established a date of

entitlement for compliance with regulations, the legislature would have created pockets of land

which are immune from future regulatory protection. In this case, zoning was applied for in

1985; by 1995, ten years later, no ground had been broken, but three ordinances affecting

development in the Williamson Creek watershed were passed: the Comprehensive Watershed

Ordinance, the "Composite" Ordinance, and the SOS Ordinance.

Nor does the result seem unfair. In 1985, the land was rezoned as MF-1, MF-2,

and W/L. The former landowner then had the right to submit a preliminary plan for subdivision

and a site plan, subject to regulations in effect at the time. The zoning categories have not

changed: the property is still zoned MF-1, MF-2, and W/L. However, because the landowner

did not develop the property at the time of rezoning, the density of the expected development has

been affected by the ordinance changing site plan requirements.

Appellants argue that it is unfair for the City to require them to comply with more

restrictive siting requirements because lack of access to the property effectively prevented their

predecessor-in-interest from developing the property ten years ago. Further, they argue that the

former owner acquired some sort of vested interest because it added restrictive covenants to the

property during the rezoning process. The developer who had the property rezoned in 1985

received, in exchange for its concessions, much more development-intensive zoning designations

than it previously had and the ability to apply for preliminary plan and site plan approval, to

which the ordinances then in effect would apply. (6) Although it took the initial step of submitting

a preliminary plan, the former developer did not preserve its rights by proceeding. The parties

dispute whether it could have kept its preliminary plan "alive" while it sought final plat approval

since the streets could not be dedicated. Even assuming that the developer was completely

faultless in allowing the preliminary plan to lapse, it appears that the development process was

simply initiated too early to be practicable. In sum, appellants ask us to protect their

predecessor's speculation about the future development of the property. This we cannot do.

Finally, appellants argue that the 1995 amendments to subchapter I indicate that

rezoning is a permit and therefore, that a site plan application submitted at any time in the future

is evaluated by the rules in effect in 1985, when the rezoning occurred. We disagree.

One legislature's interpretation of a prior legislature's enactment may be persuasive

but does not control the interpretation of the prior act. State Highway Dep't v. Gorham , 162

S.W.2d 934, 937 (Tex. 1942); Calvert v. General Asphalt Co. , 409 S.W.2d 935, 937 (Tex. Civ.

App.--Austin 1966, no writ). And, if the later legislation differs significantly from existing law,

the later legislation changes rather than clarifies existing law. See Tijerina v. City of Tyler , 846

S.W.2d 825, 828 (Tex. 1992). In this case, the 1995 legislation appears to be a broad change

rather than a clarification: it changes the definition of "regulatory agency" to specifically include

governing bodies of cities when issuing a permit , redefines "project" and adds a whole section of

exclusions to the arguably broader statute. We cannot consider such changes in our evaluation

of the pre-1995 version of section 481.143. Id. (7)

CONCLUSION

We overrule appellants' point of error and affirm the trial-court judgment.

Before Justices Powers, Aboussie and Kidd

Affirmed

Filed: November 22, 1995

Publish

1. The parties dispute why the site plan filed before the effective date of the SOS

Ordinance was allowed to expire. Condon claims that the City told him that the site plan

would have to comply with the SOS Ordinance; the City claims that it told him only that the

subdivision plan that it had failed to file before August 8, 1992, would have to comply with

the SOS Ordinance. It makes no difference for the purposes of our analysis, since,

indisputably, both the 1985 preliminary plat and the 1992 site plan expired.

2. S.B. No. 1704 provides that:

This subchapter shall apply to all projects in progress on or commenced after

the effective date of this subchapter as originally enacted by Section, 1

Chapter 374, Acts of the 70th Legislature, Regular Session, 1987, and the

duly adopted requirements in effect at the time the original application for

the first permit for the project was filed shall control. This subchapter shall

be enforceable solely through declaratory, mandamus, or injunctive relief.

Act of May 24, 1995, 74th Leg., R.S., ch. 794, § 1, 1995 Tex. Sess. Law. Serv. 4147,

4147 (West).

However, section 3 of the bill further provides:

Nothing in this Act shall be construed to diminish or impair the rights or

remedies of any person or entity under a final judgment rendered by, or in

any pending litigation brought in, any court concerning an interpretation of

the provisions of Subchapter I, Chapter 481, Government Code.

Id ., § 3.

3. Appellants cite three cases that refer to a city council as an agency: Burch v. City of

San Antonio , 518 S.W.2d 540, 542-543 (Tex. 1975); Williams v. City of Fort Worth , 782

S.W.2d 290, 292 (Tex. App.--Fort Worth 1989, writ denied); Coe v. City of Dallas , 266

S.W.2d 181, 182 (Tex. Civ. App.--El Paso 1953, no writ). The casual references are

irrelevant here because whether the city council was a "agency," much less an "agency . . .

that processes and issues permits" under section 481.183, was not an issue in any of the cited

cases.

4. In contrast, a municipality's zoning authority is regulated by Chapter 211 of the

Texas Local Government Code. See Tex. Loc. Gov't Code §§ 211.001-.013 (West 1988 &

Supp. 1995).

5. Appellants contend that City Council-approved zoning can be the first permit in a

series of permits required for a project even if the City Council is not a regulatory agency

to which section 481.143 applies. They argue that it is irrelevant that the City Council is

not a regulatory agency because the second sentence of section 481.143(a) affects only how

the planning commission must address subsequent applications such as an application for

approval of a subdivision plat or site plan. We disagree.

The first sentence of section 481.143(a) provides that the "approval . . . of an

application for a permit shall be considered by each regulatory agency " solely on the basis of

requirements in effect at the time the application is filed, indicating that a "permit" to which

the statute applies is a permit approved by a regulatory agency . The second sentence of

section 481.143(a) applies only to a "series of permits" that comprise a "project." A project is

defined as an "endeavor over which a regulatory agency exercises its jurisdiction and for

which a permit is required before initiation of the endeavor." Tex. Gov't Code Ann.

§ 481.142 (3) (West 1990) (emphasis added). Further, section 481.141(b), which sets out the

legislative findings and intent, states that the "legislature desires to establish requirements

relating to the processing and issuance of permits and approvals by governmental regulatory

agencies ." Tex. Gov't Code Ann. § 481.141 (b) (West 1990) (emphasis added). Clearly, the

entire subchapter is devoted to the processing of permits issued by governmental regulatory

agencies and each permit in the series of permits comprising a project must be a permit to

which the subchapter applies. City Council-approved zoning cannot be the first permit in a

series of permits comprising a project because a city council engaged in zoning is not a

"regulatory agency."

6. The original DR category allowed the property to be developed for single family

homes, farms, or ranches, and required a minimum of 10-acre lots. The new MF-1 and

MF-2 categories allowed 17 and 23 units per acre, respectively, with a minimum of 8,000

square foot lots, and the W/L category allowed a 25-foot tall office building and required

a minimum lot size of 43,560 square feet.

7. Further, under the 1995 amendments, even if zoning constitutes a "permit," it is not

clear that zoning is part of a "project." The amendments specify that "[p]reliminary

plans and related subdivision plats, site plans, and all other development permits for land

covered by such preliminary plans of subdivision plats are considered collectively to be

one series of permits." Act of May 24, 1995, 74th Leg., R.S., ch. 794, §1, 1995 Tex. Sess.

Law. Serv. 4147, 4147 (West). Zoning, which appellants claim is simply another

development permit, is not included in that definition. We need not and do not decide the

issue in this case, but note that the second sentence of section 481.183 does not apply if

zoning is not part of a "project."

h Leg., R.S., ch. 794, § 1, 1995 Tex. Sess. Law. Serv. 4147,

4147 (West).

However, section 3 of the bill further provides:

Nothing in this Act shall be construed to diminish or impair the rights or

remedies of any person or entity under a final judgment rendered by, or in

any pending litigation brought in, any court concerning an interpretation of

the provisions of Subchapter I, Chapter 481, Government Code.

Id ., § 3.

3. Appellants cite three cases that refer to a city council as an agency: Burch v. City of

San Antonio , 518 S.W.2d 540, 542-543 (Tex. 1975); Williams v. City of Fort Worth , 782

S.W.2d 290, 292 (Tex. App.--Fort Worth 1989, writ denied); Coe v. City of Dallas , 266

S.W.2d 181, 182 (Tex. Civ. App.--El Paso 1953, no writ). The casual references are

irrelevant here because whether the city council was a "agency," much less an "agency . . .

that processes and issues permits" under section 481.183, was not an issue in any of the cited

cases.

4. In contrast, a municipality's zoning authority is regulated by Chapter 211 of the

Texas Local Government Code. See Tex. Loc. Gov't Code §§ 211.001-.013 (West 1988 &

Supp. 1995).

5. Appellants contend that City Council-approved zoning can be the first permit in a

series of permits required for a project even if the City Council is not a regulatory agency

to which section 481.143 applies. They argue that it is irrelevant that the City Council is

not a regulatory agency because the second sentence of section 481.143(a) affects only how

the planning commission must address subsequent applications such as an application for

approval of a subdivision plat or site plan. We disagree.

The first sentence of section 481.143(a) provides that the "approval . . . of an

application for a permit shall be considered by each regulatory agency " solely on the basis of

requirements in effect at the time the application is filed, indicating that a "permit" to