OFFICE OF THE ATTORNEY GENERAL. STATE OF TEXAS 

JOHN CORNYN 

November 10, 1999 

The Honorable Bill G. Carter 

Chair, Committee on Urban Affairs 

State of Texas House of Representatives 

P.O. Box 2910, GW.16 

Austin, Texas 78768-2910 

Opinion No. JC-0142 

Re: Whether a home-rule municipality may limit 

the number of building permits it will issue in the 

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 IMPLICATIONS 83-91(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 ‘II Y. 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 growthmanagement 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 “longterm economic health,” FLOWER MOUND, TEXAS, ORDINANCE NO. 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 RONALD D. ROTUNDA & JOHNE. NOWAK, TREATISE ON CONSTITUTIONAL LAW: 

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 growthmanagement plan. 
The Honorable Bill G. Carter - Page 9 (X-0142) 

SUMMARY 

A home-rule municipality may implement a growthmanagement 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