IN THE

TENTH COURT OF APPEALS

No. 10-09-00146-CV

BMTP HOLDINGS, L.P.,

Appellant

v.

CITY OF LORENA,

Appellee

From the 170th District Court

McLennan County, Texas

Trial Court No. 2008-1516-4

MEMORANDUM OPINION

BMTP Holdings, L.P. appeals the granting of the City of Lorena’s traditional 

motions for summary judgment, the denial of BMTP’s traditional motion for summary 

judgment, and the award of attorney’s fees to the City of Lorena. BMTP sued the City 

of Lorena seeking a declaratory judgment that a moratorium and its progeny imposed 

by the City relating to permits for sewer connections did not apply to its developments,

and that the City could not refuse to grant permits based on such a moratorium and an 

inverse condemnation cause of action alleging a regulatory taking. The trial court 

granted two separate traditional motions for summary judgment in favor of the City 
BMTP Holdings, L.P. v. City of Lorena Page 2

and awarded the City its attorney’s fees.

BMTP complains that the trial court erred by granting the City’s motion for 

summary judgment and by denying their competing motion on the declaratory 

judgment action. BMTP further complains that the trial court erred by granting the 

City’s motion for summary judgment on its inverse condemnation claim. BMTP 

complains that the trial court abused its discretion in the award of attorney’s fees to the 

City. Because we find that the moratorium did not apply to BMTP, we reverse the 

judgment of the trial court in its entirety, render judgment in favor of BMTP on its 

declaratory judgment claim, and remand the inverse condemnation claim and the 

award of attorney’s fees to the trial court for further proceedings.

Statement of Facts

BMTP was a developer of subdivisions in and around the City of Lorena, Texas. 

BMTP typically acquired and platted land, constructed infrastructure on that land, and 

then sold individual subdivided lots to builders or individuals who then built 

residences on those lots. BMTP would generally complete this in phases, which could 

each last several years. In 2003, the infrastructure of Phase IV of the South Meadows 

Estates was completed. 

In early 2003, BMTP submitted a preliminary plat for Phase V to the city manager 

of Lorena, which included the technical details about the infrastructure that BMTP 

intended to construct. After the city planner and engineers had input, the preliminary 

plat was reviewed by the Planning and Zoning Commission and then the Lorena City 

Council voted to approve the preliminary plat. After the approval of the preliminary 
BMTP Holdings, L.P. v. City of Lorena Page 3

plat, BMTP began construction of the infrastructure, which included the necessary 

facilities to service each lot with water, sewer, and other utilities as well as streets, 

curbs, and gutters. The sewer system was constructed by installing a line that 

connected to the City’s existing line and then extended a sewer tap to each lot within 

the subdivision to be later connected to a residence when it was constructed.

The final plat for Phase V was submitted to the City Council for approval, and 

was approved by the Council’s vote on January 16, 2006. Approval of the plat signified 

that the City had accepted the plat, that the plat complied with any relevant city 

ordinances, and that the subdivision was ready for residential construction. Prior to the 

plat’s final approval, the sewer taps were required to be connected to the City’s sewer 

system and tested. Before beginning construction on a residence, an application for a 

sewer connection was required in order to secure a residential building permit from the 

City.

Although the vote approving the final plat regarding Phase V by the City 

Council took place on January 16, 2006, the final plat was not delivered to a 

representative of BMTP until June 5, 2006. The plat was recorded with the McLennan 

County Clerk by BMTP the same day. When the City Manager delivered the final plat 

to BMTP’s representative, he informed the representative that a moratorium on the 

issuance of sewer taps had been adopted earlier that day, June 5, 2006. The 

infrastructure had been fully completed prior to that date. Additionally, by that time 

BMTP had sold fifteen of the twenty-one lots in Phase V, and all of the lots in Phase IV 

but one.
BMTP Holdings, L.P. v. City of Lorena Page 4

The City was aware that it was having substantial capacity problems in its sewer 

system as early as 2003; however, the City contended that it was not until May of 2006 

that they realized the depth of the problem, which led to the initial moratorium. 

According to the City Manager, it was the responsibility of the City’s engineers to 

review the plat prior to approval and to determine, in part, that the City’s 

infrastructure, including its sewer capacity, was sufficient. It was the opinion of the 

engineers that the sewer capacity of the City was sufficient to support the subdivision 

until the end of May, 2006 when the engineers informed the City that the City was 

operating above its capacity, and that the moratorium was needed to attempt to get the 

problem under control until a new sewer plant could be constructed.

The final approval of the plat included a statement by the City Engineer that the 

plat conformed to the City’s subdivision ordinance and recommended approval of the 

final plat. A second engineer certified that “proper engineering consideration” had 

been given to the plat that had been signed on June 5, 2006, which was the same day 

that the first moratorium was voted on by the City Council. The plat did not become 

effective until it was recorded with the County Clerk of McLennan County, which was 

on June 5, 2006.

The City’s moratorium was adopted by an ordinance on its second reading on 

June 12, 2006 to prevent the connection of any new residential or commercial buildings 

to the City’s sewer system for a period of 120 days. During the 120 days, the City 

agreed to exempt from the moratorium the fifteen lots in Phase V that had either been 

sold or were under contract to be sold by BMTP as of June 5, 2006. The original 
BMTP Holdings, L.P. v. City of Lorena Page 5

moratorium was extended and reworded at various times until November 17, 2008, 

when it was repealed and replaced by a new moratorium that was in large part

substantively the same as the prior moratoriums. 

On April 24, 2008, BMTP filed a declaratory judgment action against the City of 

Lorena seeking a declaration that the City’s moratorium in effect at that time did not 

apply to Phase V; that the City could not enforce the moratorium as to the lots in Phase 

V because they were previously approved for development; and that the City could not 

deny building permits for the remaining lots in Phase V due to the moratorium.1

BMTP filed a motion for summary judgment and the City filed a plea to the 

jurisdiction, both of which were denied by the trial court. The City then filed a 

traditional motion for summary judgment. BMTP responded to the City’s motion, filed 

a motion to reconsider the denial of its motion for summary judgment, and amended its 

petition to include an inverse condemnation cause of action. The trial court granted the 

City’s motion for summary judgment and denied BMTP’s motion to reconsider the trial 

court’s prior denial of its motion for summary judgment. The City filed another motion 

for summary judgment based on the inverse condemnation claim, which the trial court 

also granted. The trial court also awarded the City its attorney’s fees.

Standard of Review

Both parties’ motions for summary judgment sought judgments that would 

declare the parties’ rights pursuant to the declaratory judgment actions. We review 

declaratory judgments under the same standards as other judgments. See TEX. CIV.

 

1

 The petition seeking the declaratory judgment was later amended by BMTP to include all of South 

Meadows Estates, which included Phase IV.
BMTP Holdings, L.P. v. City of Lorena Page 6

PRAC. & REM. CODE ANN. § 37.010 (Vernon 2008). We look to the procedure used to 

resolve the issue before the trial court to determine the standard of review on appeal. 

City of Galveston v. Tex. Gen. Land Office, 196 S.W.3d 218, 221 (Tex. App.—Houston [1st 

Dist.] 2006, pet. denied). When a trial court resolves a declaratory judgment action on 

competing motions for summary judgment, we review the propriety of the declaratory 

judgment using the same standards that we follow in reviewing a summary judgment. 

Id.

We review a trial court’s decision to grant or to deny a motion for summary 

judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 

184, 192, 199 (Tex. 2007) (citing rule for review of grant of summary judgment and 

reviewing denied cross-motion for summary judgment under same standard). 

Although a denial of summary judgment is not normally reviewable, we may review 

such a denial when both parties move for summary judgment and the trial court grants 

one motion and denies the other. Id. at 192. In our review of such cross-motions, we 

review the summary judgment evidence presented by each party, determine all 

questions presented, and render the judgment that the trial court should have rendered. 

Tex. Mun. Power Agency, 253 S.W.3d at 192 (citing Comm’rs Court v. Agan, 940 S.W.2d 77, 

81 (Tex. 1997)).

Under the traditional summary judgment standard, the movant has the burden 

to show that no genuine issues of material fact exist and that it is entitled to judgment as 

a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 

546, 548 (Tex. 1985). If the order granting the summary judgment does not specify the 
BMTP Holdings, L.P. v. City of Lorena Page 7

grounds upon which judgment was rendered, we must affirm the summary judgment if 

any of the grounds in the summary judgment motion is meritorious. FM Props. 

Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

Local Government Code Chapter 212

BMTP complains that the trial court erred by granting the City’s motion for 

summary judgment and denying its motion for summary judgment because chapter 212 

of the Local Government Code prohibits the imposition of a moratorium on its property 

that had already been approved for development prior to the imposition of the original 

moratorium.

Under section 212.135 of the Local Government Code, a municipality has the 

power to institute a moratorium on property development if it demonstrates a “need to 

prevent a shortage of essential public facilities.” TEX. LOC. GOV’T CODE ANN. § 

212.135(a) (Vernon 2008). Sewer facilities are included in public facilities. TEX. LOC.

GOV’T CODE ANN. § 212.131(1) (Vernon 2008). Property development is defined as “the 

construction, reconstruction, or other alteration or improvement of residential or 

commercial buildings or the subdivision or the replatting of a subdivision of residential 

or commercial property.” TEX. LOC. GOV’T CODE ANN. § 212.131(3) (Vernon 2008). 

In order to impose a moratorium on property development to prevent a shortage 

of essential public facilities, certain written findings must be included by the 

municipality, one of which is a summary of “evidence demonstrating that the 

moratorium is reasonably limited to property that has not been approved for 

development because of the insufficiency of existing essential public facilities.” TEX.
BMTP Holdings, L.P. v. City of Lorena Page 8

LOC. GOV’T CODE ANN. § 212.135(b)(2)(B) (Vernon 2008).

BMTP contends that the approval of their plats constituted “property 

development” pursuant to section 212.131, and that the moratorium therefore did not, 

and could not, apply to sewer connections on any of the vacant lots in their approved 

subdivisions pursuant to the restriction in section 212.131(b)(2)(B) that excludes 

property that has been approved for development. The City contends that BMTP’s 

scope of approved property development is too broad and that once BMTP completed 

all of the property development that it was permitted to complete, which was the 

subdivision and infrastructure only, additional approval was required separate and 

apart from that to develop the property further, including connections to the sewer 

system. According to the City, once the subdivision was complete according to the 

approved plat, then BMTP’s property development that was approved was completed 

and the City could institute a moratorium to prevent additional development of that 

property.

Prior to the amendment of the statute in 2005, “property development” was 

defined in section 212.131 of the Local Government Code as “the construction of 

residential buildings.” See Acts 2001, 77th Leg., ch. 441, effective September 1, 2001; 

amended by Acts 2005, 79th Leg., ch. 1321 (H.B. 3461), § 1, effective September 1, 2005. 

The statute was amended in 2005 to add other types of residential development as well 

as commercial development into the definition of “property development.” The City 

contends that the statute should be read to contain two separate types of property 

development; the first being the “construction, reconstruction, or other alteration or 
BMTP Holdings, L.P. v. City of Lorena Page 9

improvement of residential or commercial buildings,” and the second, “the subdivision 

or replatting of a subdivision of residential or commercial property.” The City further 

contends that each of the two types of development is separate and distinct for 

purposes of determining whether property has been “approved for development.” See

TEX. LOC. GOV’T CODE ANN. § 212.135(b)(2)(B) (Vernon 2008). 

Neither party has cited to, nor have we found any authority regarding the scope 

of chapter 212. We find that the definition of “property development” includes the full 

range of development contemplated by section 212.131(3) and that it does not describe 

each of the component parts separately and distinctly from the others. 

This construction of section 212.131(3) is similar to the application of the term 

“project” in Chapter 245 of the Local Government Code, which regulates the issuance of 

permit applications. See TEX. LOC. GOV’T CODE ANN. Ch. 245 (Vernon 2005). The term 

“project” in Chapter 245 has been held to encompass the entire development process 

from the preliminary plat to the construction of a structure within the subdivision, 

which does not change unless the scope of the “project” changes, regardless of changes 

in ownership. See Hartsell v. Town of Talty, 130 S.W.3d 325, 328-29 (Tex. App.—Dallas 

2004, pet. denied). Chapter 245 contemplates that more than one permit is required to 

complete a project, but the project includes the entire process, not the discrete 

components. The definition of “property development” is similarly broad and includes 

the entire process from platting to finishing construction of infrastructure and 

buildings.

We hold that the trial court erred by granting the City’s motion for summary 
BMTP Holdings, L.P. v. City of Lorena Page 10

judgment based on Subchapter E of Chapter 212 of the Local Government Code. 

Further, we find that the trial court erred by denying BMTP’s motion for summary 

judgment to make the declarations as prayed for by BMTP. BMTP was entitled to the 

following declarations:

(1) Under Chapter 212 of the Local Government Code, any moratorium currently in 

effect on the issuance of sewer taps within the City of Lorena and its 

extraterritorial jurisdiction does not apply to any of the lots contained in South 

Meadows Estates, because South Meadows Estates was approved for 

development before the adoption of these moratoriums;

(2) The City shall not enforce the current moratorium or any extension thereof to the 

lots contained in South Meadows Estates because those lots have already been 

approved for development;

(3) The City shall not deny building permits for the remaining lots in South 

Meadows Estates based upon any existing moratorium. 

By this holding, we express no opinion as to whether the City has the ability to 

deny a permit for reasons other than the moratorium or BMTP’s damages, if any, that 

might be related thereto. We sustain issue one. We sustain issue two solely on the basis 

of subchapter 212. Because we have determined that Phase V was not subject to the 

moratorium pursuant to chapter 212, we do not reach the issues of whether or not the 

moratoriums were enacted in conformance with the requirements of chapter 212 or 

whether chapter 245 applies.

Inverse Condemnation

BMTP complains that the trial court erred by granting the City’s motion for 

summary judgment based on BMTP’s inverse condemnation claim. BMTP alleged in its 

petition that the moratorium constituted a taking pursuant to article I, section 17 of the 

Texas Constitution. TEX. CONST. art. I, § 17. The City’s motion for summary judgment 
BMTP Holdings, L.P. v. City of Lorena Page 11

sought a finding that as a matter of law the moratorium could not constitute a 

compensable taking. 

A taking may be either physical or regulatory. Mayhew v. Town of Sunnyvale, 964 

S.W.2d 922, 933 (Tex. 1998). A compensable regulatory taking occurs if: (1) the 

governmental regulations deprive a property owner of all economically viable use of 

the property or totally destroys the property’s value; or (2) the governmental 

restrictions unreasonably interfered with BMTP’s rights to use its property. See id. We 

are to conduct an essentially “ad hoc, factual inquir[y]” using the following guiding 

factors: (1) the economic impact of the regulation on BMTP; (2) the extent to which the 

regulation has interfered with BMTP’s reasonable investment-backed expectations; and 

(3) the character of the City’s action. Sheffield Dev. Co. v. City of Elgin Heights, 140 S.W.3d 

660, 672 (Tex. 2004). In addition to these factors, which are generally referred to as the 

Penn Central factors, we should consider all relevant attendant circumstances as well. 

Penn Central Transport Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed. 2d 

631 (1978); Hallco Tex., Inc v. McMullen County, 221 S.W.3d 50, 56 (Tex. 2006).

We note that, based on the precedent of the Texas Supreme Court in Sheffield, the 

burden required in the factual allegations presented by BMTP is a high one. Id. 

Sheffield complained that a temporary moratorium constituted a compensable taking 

but the Court disagreed. Sheffield also related to a purchaser of property who 

purchased the property relying on certain zoning standards then in effect, who had 

extensive contacts with City officials regarding his plans for the development, and who 

was similarly, as the Court put it, “blindsided” by the City’s moratorium. See Sheffield 
BMTP Holdings, L.P. v. City of Lorena Page 12

Dev. Co., 140 S.W.3d at 678. However, while the Court did not approve of the City’s 

methods in Sheffield, the Court nevertheless found that there was not a constitutionally 

compensable taking, either for the change in zoning or for the temporary moratorium. 

In Sheffield, however, there was not a challenge to the ability of the City to impose 

the moratorium. Sheffield Dev. Co., 140 S.W.3d at 679. In this case, however, the City’s 

motion for summary judgment on the inverse condemnation action was premised upon 

the application of the moratorium to BMTP. Therefore, we believe that the judgment 

entered on the inverse condemnation cause of action must also be reversed and 

remanded because of our finding that the moratorium did not apply to BMTP’s lots. 

We sustain issue three.

Attorney’s Fees

BMTP complains that the trial court abused its discretion by awarding attorney’s 

fees to the City and denying its request for attorney’s fees pursuant to the Uniform 

Declaratory Judgment Act. TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (Vernon 2008). 

Section 37.009 allows for the recovery of attorney’s fees that are reasonable and 

necessary as well as equitable and just. Id. Because we have determined that the trial 

court erred by granting the City’s motion for summary judgment and by denying 

BMTP’s motion for summary judgment, we reverse the award of attorney’s fees to the 

City and remand that issue to the trial court for a determination of whether attorney’s 

fees should be awarded and to which party, if any. See State Farm Lloyds v. Borum, 53 

S.W.3d 877, 894-95 (Tex. App.—Dallas 2001, pet. denied) (reversing and remanding 

“because the record does not reflect the trial court’s reasons for its award of fees to [the 
BMTP Holdings, L.P. v. City of Lorena Page 13

prevailing party], there is no evidence to indicate whether the trial court’s award of fees 

would also be equitable and just in light of our opinion in this case.”). We sustain issue 

four.

Conclusion

We find that the trial court erred by granting the City’s motions for summary 

judgment and by denying BMTP’s motion for summary judgment based on the 

declaratory judgment action. We reverse and render judgment in favor of BMTP on its 

declaratory judgment action. We reverse and remand the inverse condemnation claim 

to the trial court for further proceedings. We find that the award of attorney’s fees 

should be reversed and remanded to the trial court for further proceedings in 

accordance with this opinion.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Judge Sowder2

Reversed and rendered in part; reversed and remanded in part

Opinion delivered and filed December 22, 2010

[CV06]

 

2 The Honorable William C. Sowder, Judge of the 99th District Court of Lubbock County, sitting by 

assignment of the Chief Justice of the Supreme Court of Texas pursuant to section 74.003(h) of the 

Government Code. See TEX. GOV’T CODE ANN. § 74.003(h) (Vernon 2005).