No. 15-0106

In The Supreme Court

of the 

State of Texas 

_________________________________________________

TOWN OF LAKEWOOD VILLAGE, 

 Petitioners,

v.

HARRY BIZIOS,

 Respondent.

_________________________________________________

On Petition for Review from the

Second District Court of Appeals at Fort Worth, Texas 

No. 02-14-00143-CV 

 

HARRY BIZIOS’ RESPONSE TO PETITION FOR REVIEW

 

WINSTEAD PC

Arthur J. Anderson

State Bar No. 01165957

500 Winstead Building

2728 N. Harwood Street

Dallas, Texas 75201

(214) 745-5745 (Phone) 

(214) 745-5390 (Fax) 

aanderson@winstead.com

ATTORNEYS FOR RESPONDENT 

HARRY BIZIOS

FILED

15-0106

5/26/2015 12:53:23 PM

tex-5413721

SUPREME COURT OF TEXAS

BLAKE A. HAWTHORNE, CLERK
-iTABLE OF CONTENTS

Page

INDEX OF AUTHORITIES.................................................................................... iii

RESPONSE TO STATEMENT OF JURISDICTION..............................................v

RESTATEMENT OF ISSUES PRESENTED ....................................................... vii

RESPONSE TO PETITIONER’S STATEMENT OF FACTS.................................2

RESPONSE TO PETITIONER'S SUMMARY OF THE 

ARGUMENT.............................................................................................................4

ARGUMENT.............................................................................................................6

I. Bizios agrees that Texas statutory and case law authorize the 

extension of subdivision requirements to the ETJ, but this authority 

does not include the extension of building codes............................................6

A. General law town ordinance making authority is 

extremely limited...................................................................................6

B. No Texas statute expressly authorizes the Town to apply 

its building code to its ETJ....................................................................8

(i) §§ 212.002 and .003 do not expressly authorize 

Lakewood Village to extend its building code to the ETJ..........9

(ii) § 214.212 does not expressly authorize Lakewood 

Village to extend its building code to the ETJ..........................10

(iii) § 214.904(a) does not expressly authorize Lakewood 

Village to extend its building code to the ETJ..........................11

(iv) § 233.153(c) does not expressly authorize Lakewood 

Village to extend its building code to the ETJ..........................11

C. The court of appeals did not infringe on a state-wide ETJ 

policy. ..................................................................................................13
-iiD. The Fort Worth Court of Appeals Opinion does not 

conflict with Lucas and Weslaco.........................................................15

E. Lakewood Village concedes that it illegally required 

Bizios to obtain a building permit and pay fees..................................17

F. Bizios will have no legal effect outside of this specific 

ETJ matter. ..........................................................................................18

CONCLUSION AND PRAYER .............................................................................18

CERTIFICATE OF SERVICE ................................................................................20

CERTIFICATE OF COMPLIANCE.......................................................................20

APPENDIX..............................................................................................................21
-iiiINDEX OF AUTHORITIES

Page(s)

CASES

Bizios v Town of Lakewood Village, 453 S.W.3d 598 (Tex. App.—Ft. Worth 

2014, pet. filed)............................................................................................passim

City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995).........................................8

City of Lucas v. North Texas Municipal Water District, 724 S.W.2d 811 

(Tex. App.—Dallas 1986, writ ref. n.r.e.) ............................................. vii, 14, 15

City of Round Rock v. Smith, 687 S.W.2d 310 (Tex. 1985) ....................................17

City of Weslaco v. Carpenter, 644 S.W.2d 601 (Tex. App.—Corpus Christi 

1985, writ ref’d n.r.e.).........................................................................................15

Corpus Christi v. Unitarian Church, 436 S.W.2d 923 (Tex. Civ. App. —

Corpus Christi 1968, writ ref’d n.r.e).................................................................16

Forewood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948)........................................7

Hartsell v. Town of Talty, 130 S.W.3d 325 (Tex. App.—Dallas 2004, pet. 

den.).................................................................................................................... vii

Levy v. City of Plano, 2001 WL 1382520 (Tex. App.—Dallas 2001, no pet.) ...... vii

Liberty Mut. Ins. Co. v. Garrison Contractors, 966 S.W.2d 482 (Tex. 1998)..........8

M. Fitzgerald v. Advanced Spine Fixation, 996 S.W.2d 865 (Tex. 1999) ................8

Milestone Potranco Dev., Ltd. v. City of San Antonio, 298 S.W.3d 242 (Tex. 

App.—San Antonio 2009, pet. den.) ..................................................... vii, 16, 17

Sunchase Capital Group, Inc. v. City of Crandall, 69 S.W.3d 594 (Tex. 

App.—Tyler 2001, no pet.)................................................................................ vii

Weslaco v. Carpenter, 694 S.W.2d 601 (Tex. App.—Corpus Christi 1985, 

writ ref’d n.r.e.)................................................................................................. viii
-ivSTATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS

Chapter 212, Tex. Loc. Gov’t Code..................................................................passim

Chapter 233, TEX. LOC. GOV’T CODE ......................................................................12

Chapter 245, TEX. LOC. GOV’T CODE ................................................................. vii, 4

§ 1.005, TEX. LOC. GOV’T CODE................................................................................6

§ 43.021, TEX. LOC. GOV’T CODE..............................................................................2

§ 43.121, TEX. LOC. GOV’T. CODE...........................................................................12

§ 212.002, TEX. LOC. GOV’T. CODE........................................................... 7, 9, 10, 14

§ 212.003, TEX. LOC. GOV’T CODE................................................7, 9, 10, 17, 18, 14

§ 212.007, TEX. LOC. GOV’T. CODE........................................................... vi, 4, 9, 17

§ 212.043, TEX. LOC. GOV’T CODE............................................................................9

§ 214.212, TEX. LOC. GOV’T CODE..........................................................................10

§ 214.904(a), TEX. LOC. GOV’T CODE ...............................................................11, 12

§ 216.003, TEX. LOC. GOV’T CODE..........................................................................11

§ 216.902, TEX. LOC. GOV’T CODE..........................................................................11

§ 233.153(a), TEX. LOC. GOV’T CODE ...................................................11, 12, 13, 14

§ 372.003, TEX. LOC. GOV’T CODE......................................................................7, 17

§ 377.002, TEX. LOC. GOV’T CODE......................................................................7, 17

§ 382.109, TEX. LOC. GOV’T CODE......................................................................7, 17

§ 395.001, TEX. LOC. GOV’T CODE......................................................................7, 17

OTHER AUTHORITIES

Tex. AG Op. JM 169..................................................................................................7

DAVID BROOKS, MUNICIPAL LAW AND PRACTICE, TEXAS PRACTICE, vol. 22 ...........7
-vRESPONSE TO STATEMENT OF JURISDICTION

Petitioner acknowledges that the Supreme Court’s jurisdiction to consider an 

interlocutory appeal of an order denying a plea to the jurisdiction is limited by 

statute to cases in which the justices of the court of appeals disagree or in which 

the court of appeals’ opinion materially conflicts with a prior decision of this court 

or of another Texas court of appeals. §§ 22.001(a)(1)-(2), 22.225 (c), TEX. GOV’T

CODE. In this case, no dissenting opinion was filed in the court of appeals, and 

Petitioner’s jurisdictional claim is based solely on a material appellate conflict. 

Because the Town has not appealed the court of appeals’ holding that the 

Town is prohibited from extending its subdivision ordinance and building code to 

Bizios’ previously platted lot under § 212.007, TEX. LOC. GOV’T. CODE, the trial 

court’s injunction order has effectively been reversed. Upon remand to the trial 

court, Petitioner will therefore be prohibited from applying its building code to 

Bizios and his property.

On pages x and xi of the City’s Petition for Review, Petitioner lists six 

opinions which it claims conflict with Bizios v Town of Lakewood Village, 453 

S.W.3d 598 (Tex. App.—Ft. Worth 2014, pet. filed). For the reasons stated below, 

the facts and/or legal analysis in the cited cases are not materially different from

Bizios and conflicts jurisdiction therefore does not apply:
-vi-

• The applicability of Chapter 245 of the Local Government Code to a platted 

subdivision in the extraterritorial jurisdiction (“ETJ”) was addressed in 

Hartsell v. Town of Talty, 130 S.W.3d 325 (Tex. App.—Dallas 2004, pet. 

den.). Because Hartsell prevailed on his Chapter 245 claim, the Dallas Court 

of Appeals expressly ruled that it would not address whether “as a general 

law town, the Town had no authority to extend the Ordinance into its 

extraterritorial jurisdiction.” Id. at 327, 329. Because the Dallas Court of 

Appeals did not address the issue of Talty’s authority to extend its building 

code into the ETJ, Bizios and Hartsell do not conflict.

• Chapter 245 interpretation was also at issue in Levy v. City of Plano, 2001 

WL 1382520 (Tex. App.—Dallas 2001, no pet.). While the City correctly 

recites language from the opinion and Chapter 212 of the Local Government 

Code that city subdivision regulations may be extended to the ETJ, there is 

no discussion in Levy regarding the extension of Plano’s building code to the 

ETJ. Levy and Bizios are not in conflict.

• A building code was extended into the ETJ pursuant to superseded language 

in Chapter 212 in City of Lucas v. North Texas Municipal Water District, 

724 S.W.2d 811 (Tex. App.—Dallas 1986, writ ref. n.r.e.). The Fort Worth 

Court of Appeals points out in Bizios that Subchapter B of Chapter 212 was 

added after the Lucas decision. 453 S.W.3d at 602-3. Subchapter B 

distinguishes “development” from “subdivision and plats” and prohibits 

cities from requiring building permits in the ETJ. Because Lucas was 

decided under a prior version of Chapter 212, Lucas does not conflict with 

Bizios.

• A tree ordinance regulating the removal of trees during the subdivision 

development process was addressed in Milestone Potranco Dev., Ltd. v. City 

of San Antonio, 298 S.W.3d 242 (Tex. App.—San Antonio 2009, pet. den.). 

The city’s tree ordinance was “intended to, and does, govern only plats and 

subdivisions of land.” Id. at 246. Because Bizios’ property was platted 

several years ago and Lakewood Village is not applying its building code as 

part of the subdivision approval process, Bizios does not conflict with 

Milestone.

• Standing of a landowner to challenge an annexation ordinance was at issue 

in Sunchase Capital Group, Inc. v. City of Crandall, 69 S.W.3d 594 (Tex. 

App.—Tyler 2001, no pet.). This is not a situation involving platting, 

building permits or the extension of municipal regulations to the ETJ. Bizios

does not conflict with Sunchase.
-vii-

• Whether the platting statute should be applied to a mobile home park with 

long-term leased spaces was the issue in Weslaco v. Carpenter, 694 S.W.2d

601 (Tex. App.—Corpus Christi 1985, writ ref’d n.r.e.). Bizios’ property is 

a legally recognized platted lot, so Weslaco is inapplicable. Contrary to the 

City’s statement on page xi in its Petition, the court of appeals did not affirm 

“the city’s application of its building codes to the extraterritorial 

jurisdiction.” Instead, the court of appeals noted that this type of 

development could constitute a “subdivision” under Chapter 212 and the 

city’s land development regulations could be extended to the ETJ. 694 

S.W.2d at 602-3. There is no extensive factual discussion or holding that the 

city’s building code (particularly as it relates to the construction of 

traditional single-family homes) could be extended to the ETJ. As a result, 

there is no conflict between Weslaco and Bizios.

While Petitioner has tried to fit the facts and law of these six square peg 

opinions into the round conflicts hole, there are no material legal issues justifying 

this Court granting the Petition for Review.

RESTATEMENT OF ISSUES PRESENTED

1. Whether a general law town like Lakewood Village has the statutory 

authority to extend its building code to the ETJ.
-1-

No. 15-0106

In The Supreme Court

of the 

State of Texas 

_________________________________________________

TOWN OF LAKEWOOD VILLAGE, 

Petitioners,

v.

HARRY BIZIOS,

Respondent.

_________________________________________________

On Petition for Review from the

Second District Court of Appeals at Fort Worth, Texas 

No. 02-14-00143-CV

HARRY BIZIOS’ RESPONSE TO PETITION FOR REVIEW

TO THE HONORABLE SUPREME COURT:

Respondent Harry Bizios (“Bizios”) respectfully submits this Response to 

the Town’s Petition for Review. The Fort Worth Court of Appeals’ opinion 

holding that a general law town may not extend its building code to its ETJ does 

not conflict with other courts of appeals’ decisions or Texas statute. Respondent 

therefore asks this Honorable Court to deny the Petition for Review.
-2-

RESPONSE TO PETITIONER’S STATEMENT OF FACTS

Lakewood Village is a small, general law town located in Denton County, Texas 

(CR 18). Appellant Harry Bizios (“Bizios”) is trying to build a house on a lot he owns 

(“Lot”) in the Sunrise Bay at Lake Lewisville Addition (“Subdivision”) located in the 

Town’s ETJ (CR 5). The final plat for the Subdivision was approved by the Town of 

Little Elm and Denton County in 1995 (CR 109). Houses have been built on virtually all 

of the lots in the Subdivision (3 RR 26).

Little Elm serves the Subdivision and the Lot which is within its certificate of 

convenience and necessity (“CCN”) boundaries with water, and there is no sanitary sewer 

provider because the houses are on septic systems (3 RR 14). It would cost millions of 

dollars for Lakewood Village to extend sanitary sewer to the Subdivision (3 RR 14). 

Denton County maintains all of the roads in the Subdivision (2 RR 89). The Town 

provides no municipal services to the Subdivision (2 RR 86).

The Town has a current population of approximately 620 and acknowledges that 

its maximum population will be 2,500 (2 RR 54). The Town will never meet the 

5,000 population threshold to become a home rule city with the power to annex land 

unilaterally which requires a minimum population of 5,000 under § 43.021, TEX. LOC.

GOV’T CODE. As a result, the Lot will never be located within the corporate limits of 

Lakewood Village, and Mr. Bizios will never be a Town resident and entitled to 

participate in Town affairs.

Bizios began construction of a 7,000 square foot house on the Lot on or about 

March 10, 2014 (CR 109). The proposed house is an energy efficient, insulated concrete 
-3-

form with a construction cost of approximately $1,200,000.00 (3 RR 8-9). It is 

undisputed that Bizios will construct the house to the regulatory standards of the 

International Residential Code (3 RR 24). 

Prior to commencing construction, Bizios obtained all legitimate and necessary 

development approvals. First, the architectural review committee for the Subdivision 

approved the design and construction standards for the house (3 RR 12-14). Second, all 

necessary applications to build the house foundation and retaining wall were approved by 

FEMA (3 RR 15, 16; 4 RR Exs. 36, 37). Third, Bizios obtained all necessary permits 

from Denton County (4 RR 35). Regular inspections were conducted of Bizios’ house in 

accordance with Denton County regulations (3 CR 25).

In order to obtain a building permit, Bizios was required to pay a permit fee of 

$14,646.00 to the Town and subcontractor fees in the amount of $1,200.00 (2 RR 92-3). 

But the Town’s plan review and inspection fees totaled only $1,200.00, leaving the Town 

a net profit of $14,646.00 (2 RR 144). In addition, the Town’s building inspector 

moonlights from his regular job which means that he can only perform inspections on 

weeknights (2 RR 143). When Bizios learned that the Town’s extension of the building 

code to its ETJ was not authorized, he decided to fight the Town’s illegal action: “It’s a 

matter of principle and I wanted to take a stand on this.” (3 RR 56).

While the Town claims that it has “furthered its governmental interests and 

responsibility to the public” by extending its building code to the ETJ, there is no 

evidence in the record that Bizios’ house fails to meet the requirements of the 

International Residential Code (3 RR 24). The Town’s part-time building inspector made 
-4-

advisory comments on Bizios’ building plans (2 RR 127, 4 RR, p. 1, Ex. 8). Except for a 

difference of opinion as to one type of air vent construction, both Bizios’ contractor and 

the Town’s building inspector agree as to the appropriate construction standards for the 

house (3 RR 28-31). The vent desired by Bizios’ contractor is authorized by most DFW 

cities and the International Residential Code (3 RR 31).

After construction of the house started, the Town filed its petition requesting the 

trial court to order Bizios to obtain building permits for his Lot from the Town and pay 

the associated fees (CR 4-15). Following a temporary injunction hearing, the trial court 

entered a temporary injunction order requiring Bizios to obtain building permits from the 

Town (CR 651-3). Bizios filed an appeal with three issues: (1) Did Lakewood Village 

properly extend its building code to the ETJ as a general law town; (2) If so, did it have 

the legal authority to extend its building code to a platted lot previously approved by a 

different city?; and (3) Does Bizios have Chapter 245 rights? The court of appeals ruled 

in favor of Bizios on his first two issues and did not reach his third issue. 

RESPONSE TO PETITIONER'S SUMMARY OF THE ARGUMENT

Because the Town has not appealed the court of appeals’ holding that the 

Town is prohibited from extending its subdivision ordinance and building code to a 

previously platted lot under § 212.007, TEX. LOC. GOV’T. CODE, Petitioner will be 

ordered by the trial court following remand to allow Bizios to proceed with his 

construction without complying with town ordinances.
-5-

In the first paragraph of its Summary of the Argument, the Town 

mischaracterizes the Bizios opinion in two ways (Pet., p. 5). First, it states that the 

opinion “divests” general law towns of authority when in fact the Legislature never 

gave these small towns the right to require permits in their ETJ in the first place. 

Second, this case does not involve the extension of subdivision rules for

infrastructure development to the ETJ. Respondent acknowledges that home rule 

and general law municipalities are expressly authorized by Chapter 212 to extend

to the ETJ their platting ordinances. However, there is no statute which explicitly 

authorizes general law towns to extend their building codes to the ETJ (Pet., p. 5). 

The only court of appeals opinion which has even touched this issue is Lucas

which was properly distinguished by the Fort Worth Court of Appeals.

Further, the Town’s stated policy reasons for allowing small towns to 

require expensive building permits in the ETJ are specious (Pet., p. 6). While 

cities generally are supposed to protect health and safety, there is no evidence in 

the record that supports the goal in this case. Bizios is already building a house 

that meets the International Residential Code and has been inspected regularly 

(3 CR 25). The Town’s true intent and purpose, instead, is to obtain more than a

$14,000.00 profit through its collection of exorbitant building permit fees (2 RR

144). 
-6-

The second stated policy which is to have uniform construction standards for 

Bizios’ house after it is annexed into the corporate limits has no applicability 

because the Lot will never be within the Town limits (Pet., p. 6). Lakewood 

Village can never legally annex Bizios’ Lot or provide it with services (2 RR 54). 

The Town’s stated policy reasons for extending its building code do not apply.

ARGUMENT

I. Bizios agrees that Texas statutory and case law authorize the 

extension of subdivision requirements to the ETJ, but this 

authority does not include the extension of building codes.

There is no dispute as to the Town’s first argument that cities have the 

authority to extend their subdivision regulations to the ETJ under chapter 212, 

TEX. LOC. GOVT. CODE. The Town’s argument breaks down, however, in claiming 

that this authority necessarily entails regulating the construction of houses in the 

ETJ (Pet., p. 6).

A. General law town ordinance making authority is extremely 

limited

Contrary to the Town’s claims, there are no state statutes which expressly 

authorize cities to extend their building codes to the ETJ. This can be contrasted 

with the express authority that the Legislature has given all types of municipalities 

to extend their subdivision regulations to the ETJ. See § 212.003, TEX. LOC. GOVT.

CODE. While Petitioner correctly cities to § 1.005(3) for the proposition that a 

“municipality” can refer to both home rule and general law cities, that does not 
-7-

mean that the Texas Legislature has expressly authorized general law towns to 

extend their building codes to the ETJ. 

As a general law town, the Town (like a county) can only exercise those 

governmental powers expressly delegated to it by the Texas Legislature. See

DAVID BROOKS, MUNICIPAL LAW AND PRACTICE, TEXAS PRACTICE, Vol. 22, p. 89. 

Home rule cities have significantly broader governmental powers than general law 

towns. See Forewood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948). The Town, 

on the other hand, derives its power from the Legislature and is restricted by the 

express language of state statute. See Tex. AG Op. JM 169.

Petitioner misstates the Fort Worth court of appeals distinction between 

home rule and general law municipalities (Pet., pp. 6-7). Primarily, the court of 

appeals focuses on the lack of express language to extend building codes into the 

ETJ and the more specific, direct language in statutes such as §§ 216.902, 372.003, 

and 377.002 of the Local Government Code which clearly provide this authority. 

453 S.W.3d at 604. This lack of express statutory language does not necessarily 

mean that home rule cities have the power to require building permits in the ETJ –

it simply means that general law towns clearly do not have this power due to lack 

of specific legislative authority. Id. at 604-5. 
-8-

B. No Texas statute expressly authorizes the Town to apply its 

building code to its ETJ

The Town claims that its authority to require building permits in the ETJ is 

implied under the state platting statute, Chapter 212 of the Texas Local 

Government Code, and applies to all municipalities. Under Subchapter A of 

Chapter 212, a plat is only required to be submitted and approved under section 

212.004 when a tract of land is subdivided. There is no indication that the 

Legislature intended to address building permits in Subchapter A of the platting 

statute and there is no express authority stated in the statute.

“Legislative intent remains the polestar of statutory construction.” City of 

LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995). It is cardinal law in Texas 

that a court construes a statute, “first, by looking to the plain and common meaning 

of the statute’s words.” Liberty Mut. Ins. Co. v. Garrison Contractors, 966 S.W.2d 

482, 484 (Tex. 1998). The only way that the trial court’s injunction can be 

sustained is by adding terms to the statute to clearly authorize the extension of the 

building code to the ETJ. Adding verbiage to statutes by implication was 

expressly forbidden by the Texas Supreme Court in M. Fitzgerald v. Advanced 

Spine Fixation, 996 S.W.2d 865, 867 (Tex. 1999).
-9-

(i) §§ 212.002 and .003 do not expressly authorize Lakewood 

Village to extend its building code to the ETJ.

The Town cites Local Government Code sections 212.002 and 212.003 as 

extension authority (Pet., pp. 9-10). Petitioner, however, is not applying its 

building code to Bizios pursuant to the platting process. These statutes are directed 

at the regulation of plats and subdivisions, not building of structures. In fact, 

Subchapter A of Chapter 212 is entitled “Regulation of Subdivisions.” This 

subchapter says nothing about building structures in general or permits in specific. 

Petitioner has acknowledged, by not appealing the Court of Appeals’ holding on 

Bizios’ second issue, that it does not have the power to apply its building code to 

Bizios’ previously platted lot under § 212.007, TEX. LOC. GOV’T. CODE. 

Subchapter B, in contrast, is titled “Regulation of Property Development,” 

with “development” defined as “the new construction or the enlargement of any 

exterior dimension of any building, structure, or improvement.” § 212.043(1), 

TEX. LOC. GOV’T. CODE. This subchapter, moreover, expressly provides that 

“[t]his subchapter does not authorize the municipality to require municipal 

building permits or otherwise enforce the municipality’s building code in its 

extraterritorial jurisdiction.” Id. at § 212.049.
-10-

(ii) § 214.212 does not expressly authorize Lakewood Village to 

extend its building code to the ETJ.

Contrary to the Town’s claim, § 214.212, TEX. LOC. GOVT. CODE actually 

limits the applicability of the International Residential Code to a city’s corporate 

limits (Pet., pp 9-10). It is important to note that it is undisputed that Bizios’ 

construction meets IRC standards. 

Significantly, section 214.212 requires municipalities to adopt the IRC. It 

imposes a mandatory uniform residential building code, as opposed to merely 

providing an optional code that cities may, but are not required to, adopt. The 

statute expressly authorizes a municipality such as the Town to apply its building 

code to construction only “in a municipality,” e.g., within its corporate boundaries. 

To imply that the Legislature intended to allow cities to also apply their building 

codes in the ETJ would violate the holding in M. Fitzgerald.

Another indicia of legislative intent was the introduction, but lack of 

passage, of HB 609 (Smith) in 2007. See Appendix, Tab 2. This bill would have 

expressly authorized cities to extend by ordinance their building codes to the ETJ. 

If the Legislature’s interpretation of state statutes was that cities already had the 

power to require building permits in the ETJ, then the introduction of HB 609 

would have been unnecessary.

If the Legislature intended to allow general law towns to apply the IRC in a 

municipality’s ETJ, it could have expressly done so. Because extending the 
-11-

building code to the ETJ is not expressly addressed by the Legislature, it is clear 

that the Legislature did not intend for general law towns to extend their building 

codes to the ETJ.

(iii) § 214.904(a) does not expressly authorize Lakewood Village 

to extend its building code to the ETJ.

On pages 9 and 10 of its Petition, the Town argues that section 214.904(a) of 

the Texas Local Government Code authorizes the Town to extend its building code 

to its ETJ because it refers to the issuance of building permits “in the municipality 

or its extraterritorial jurisdiction.” But this statutory provision provides neither 

express nor implied authority for a city to extend its building codes to its ETJ 

similar to sections 216.003 and 216.902 of the Texas Local Government Code. As 

the HB 265 bill analysis indicates, the bill was simply intended to force cities to act 

on development permits instead of delaying them indefinitely. See Appendix, 

Tab 3. There is no statutory language or legislative history indicating legislative 

intent for Section 214.904(a) to expand a general law town’s authority to allow it 

to extend its building code to its ETJ.

(iv) § 233.153(c) does not expressly authorize Lakewood Village 

to extend its building code to the ETJ.

The Town also cites section 233.153(a) of the Texas Local Government 

Code which requires new houses in unincorporated areas of a county to meet 

International Residential Code requirements (Pet., pp 10-11). This provision states 
-12-

that if a city has adopted a building code in the ETJ, then the county’s jurisdiction 

does not apply. Again, the statute does not expressly authorize general law towns 

to extend their building codes to the ETJ.

Subchapter F, Chapter 233, Local Government Code, concerns the authority 

of counties to mandate that houses be built to IRC requirements. 

Section 233.153(c) is a limiting statute, not a power granting statute. As with 

§ 214.904(a), there are various scenarios which the Legislature could have 

considered that did not involve general law towns unilaterally enforcing their 

building codes in the ETJ. While the statute can be implied to mean that some 

municipalities within the State may be requiring a permit to improve a building or 

“other structure”, there are fact situations that might be applicable other than a 

general law town extending its building code to the ETJ:

• Land in the ETJ subject to a development agreement under § 212.172, TEX.

LOC. GOVT. CODE, which allows a city to require building permits. 

• Land in the ETJ subject to an industrial district agreement under § 42.044, 

TEX. LOC. GOVT. CODE which can require permitting.

• Land in the ETJ subject to a planned unit district agreement under § 42.046, 

TEX. LOC. GOVT. CODE which can require permitting.

• Land in the ETJ with a special district agreement under § 42.042, TEX. LOC.

GOVT. CODE which can require permitting.

• Land subject to limited purpose annexations under § 43.121, TEX. LOC.

GOV’T. CODE which can require permitting.
-13-

• The Legislature could have assumed that home rule cities with their 

constitutional police powers (as opposed to general law towns) might require 

building permits in the ETJ.

• “Other structures” could refer to billboards. General law towns and home 

rule cities are given express authority to require building permits for signs in 

the ETJ. § 216.902, TEX. LOC. GOVT. CODE. 

• The Legislature may have acknowledged that cities were extending building 

codes to the ETJ pursuant to Lucas and were awaiting future court decisions 

to clarify the authority issue. 

In addition, Denton County cannot bestow this power. The Town’s 

comments on page 11 of its Petition about Denton County regulations does not 

affect the legal analysis as to whether or not Lakewood Village has sufficient 

statutory authority to extend its building code to the ETJ. According to the Town 

Secretary, Denton County officials have refused to support the Town’s authority to 

require building permits in the ETJ (App., Tab 5). Sections 214.904(a) and 

233.153(c) do not bestow statutory authority as suggested by the Town.

C. The court of appeals did not infringe on a state-wide ETJ 

policy.

Petitioner makes broad, unsupported allegations that the Fort Worth court of 

appeals has somehow violated a “state mandated policy for the ETJ”. (Pet., p. 11). 

According to the Town’s logic, any and every municipality should be able to 

extend all of their ordinances to residents and property owners in the ETJ (Pet. pp. 

11-12). This would lead to the absurd result of heavy municipal regulation of 
-14-

County residents like Mr. Bizios who receive no municipal services and cannot 

vote in municipal elections.

Chapter 212 of the Local Government Code deals with the horizontal 

development of subdivisions and public infrastructure. Vertical improvements like 

buildings are not addressed in Chapter 212 other than to tell cities not to interfere 

with certain building uses and standards. See § 212.003, TEX. LOC. GOVT. CODE.

The Town states that its version of a stated public policy addresses “an 

exposure of persons to unsafe structures in the ETJ”. (Pet., p. 13). But in this case, 

it is undisputed that Bizios’ $1,200,000.00 house is a safe structure constructed to 

the requirements of the IRC (3 RR 24, 35). Furthermore, as pointed out by the 

Town, all houses in unincorporated areas are now required by the Legislature to be 

safely constructed in accordance with the IRC. § 233.153, TEX. LOC. GOVT. CODE. 

So if Bizios’ and all other houses being constructed in the ETJ meet the IRC

standards, the Town’s stated statutory purpose has no applicability. Similarly, the 

Town’s public/private interest has no applicability (Pet., p. 13). No one who lives 

in Sunrise Bay will be threatened or put in danger by the construction of Mr. 

Bizios’ extraordinarily well-designed and constructed house.

If the Town could attain home rule status and involuntarily annex the Lot, at 

least it could argue that the Town wants to protect its future housing stock. In this 

case, however, the Town can never gain the necessary legal status to effectuate a 
-15-

unilateral annexation and obtain corporate jurisdiction over the Lot. City 

representatives admit that the Town cannot unilaterally annex the Addition (2 RR 

82).

D. The Fort Worth Court of Appeals Opinion does not conflict 

with Lucas and Weslaco

On pages 14-17 of its Petition, the Town argues that Bizios conflicts with 

prior appellate precedence. As discussed in the Response to Petitioner’s Statement 

of Jurisdiction, the Town is incorrect.

Lucas is the only appellate opinion which states that a general law town can 

extend building codes through Chapter 212 (Pet, pp. 14-15). The Fort Worth Court 

of Appeals clearly articulated the reasons that the Lucas holding no longer applies. 

453 S.W.3d at 604. Section 212.049 was added with Subchapter B of Chapter 212 

of the Local Government Code after Lucas. Subchapter B of Chapter 212, Local 

Government Code, relates to development plats and development is defined as “the 

new construction or the enlargement of an exterior dimension of any building . . .” 

Subchapter A, on the other hand, is related solely to the regulation of subdivisions 

as the courts commonly define subdivisions. Unlike Subchapter A of Chapter 212, 

§ 212.049 expressly states the Legislature’s intent on the issue: “This subchapter 

does not authorize the municipality to require municipal building permits . . . in its 

extraterritorial jurisdiction”. Because Subchapter A does not expressly address 

building permits like Subchapter B, the power to extend building codes by 
-16-

subdivision to the ETJ should not be implied by the court. In addition, the Dallas 

Court of Appeals appears to have overruled its dicta in Lucas when it held in the 

2001 Levy opinion that § 212.003(a) does not authorize the extension of “land use 

and construction” ordinances to the ETJ. 2001 WL 138250 at 3.

The Lucas court erroneously based its holding on City of Weslaco v. 

Carpenter, 644 S.W.2d 601, 603 (Tex. App.—Corpus Christi 1985, writ ref’d 

n.r.e.). Weslaco involved the partitioning of land into 128 mobile home rental 

spaces. The developer was attempting to avoid the applicability of the subdivision 

statute by renting, rather than selling, spaces. The Lucas court cites Weslaco’s

holding on subdivisions that the “use of the term is not restricted to the division 

itself but also encompasses development of the divided tracts.” 724 S.W.2d at 823. 

The development of the tracts in Weslaco referred to subdivision development only 

because there would be no “construction” of mobile homes as there would be with 

site-built housing. While the Corpus court held that the City’s subdivision rules 

and regulations must be followed, there was no discussion in Weslaco that the city 

would be authorized to extend its building codes into its ETJ. 

In Milestone Potranco Dev. Ltd. v. City of San Antonio, 298 S.W.3d 242

(Tex. App.—San Antonio 2009, pet. den.), the court determined that San Antonio’s 

tree ordinance was a rule governing plats and subdivisions. Id. at 244-5. The court 

went on to validate the tree ordinance as a rule governing plats and subdivisions in 
-17-

the ETJ because its enforcement was limited solely to situations involving the 

subdivision and platting of land. See id. “[W]e conclude the Tree Ordinance was 

intended to, and does, govern only plats and subdivisions of land.” Id. at 247. 

However, in this case, the Town’s application of its building code is not 

commensurate with the subdivision development of Bizios’ property which was 

platted by Little Elm many years ago. As a result, the trial court erred in holding 

that Bizios could be required to obtain building permits from the Town under 

Chapter 212. Bizios does not conflict with the holdings of other courts of appeal.

Similarly, neither a building permit nor the ETJ were at issue in Corpus 

Christi v. Unitarian Church, 436 S.W.2d 923 (Tex. Civ. App. —Corpus Christi 

1968, writ ref’d n.r.e). The other opinion cited by the Town concerns solely plat 

approval and its attendant construction of public infrastructure and not building 

permits and building codes. City of Round Rock v. Smith, 687 S.W.2d 310 (Tex. 

1985).

E. Lakewood Village concedes that it illegally required Bizios 

to obtain a building permit and pay fees.

Lakewood Village’s arguments, pleadings and ordinances have been based 

solely upon its presumed authority under Chapter 212 to extend its building code to 

the ETJ. According to the Town’s ordinance, it “is authorized and empowered to 

apply the Town’s regulations for . . . property development to its ETJ pursuant to 

§ 212.003 of the Texas Local Government Code” (emphasis added) (CR 23). At no 
-18-

point has the Town enacted an ordinance extending its building code to its ETJ 

other than pursuant to its implied authority under Chapter 212, TEX. LOC. GOVT.

CODE. Because the Town has not appealed the court of appeals’ holding that the 

Town is prohibited from extending its subdivision ordinance and building code to a 

previously platted lot such as Bizios’ under § 212.007, TEX. LOC. GOV’T. CODE.

Petitioner admits that it lacks legitimate legislative authority to apply its building 

code to Bizios.

F. Bizios will have no legal effect outside of this specific ETJ 

matter.

The Town cries crocodile tears in claiming Bizios will “strip general law 

cities of many long recognized powers” (Pet., p. 19). The very statutes that 

Petitioner claims would be put into doubt (§§ 216.902, 372.003, 377.002, 382.109 

and 395.011, TEX. LOC. GOV’T. CODE) by the court of appeals opinion are 

expressly acknowledged in Bizios as granting authority to both home rule and 

general law municipalities. 453 S.W.3d at 604.

CONCLUSION AND PRAYER

The Fort Worth Court of Appeals opinion was properly decided and does not 

invoke conflicts jurisdiction. For the foregoing reasons, the Town’s Petition for 

Review should be denied. Respondent prays that this Honorable Court deny the 

Petition for Review and remand this case to the trial court. Bizios further prays 
-19-

that it recover its costs incurred in this appeal and that this Court grant to Bizios all 

other relief at law or in equity to which Bizios may show itself justly entitled.

WHEREFORE, PREMISES CONSIDERED, Respondent requests that this 

Court deny the Petitioner’s Petition for Review.

Respectfully submitted,

WINSTEAD PC

500 Winstead Building

2728 N. Harwood Street

Dallas, Texas 75201

(214) 745-5745 (Phone)

(214) 745-5390 (Facsimile)

aanderson@winstead.com

By: /s/ Arthur J. Anderson

Arthur J. Anderson

State Bar No. 01165957

ATTORNEYS FOR HARRY BIZIOS
-20-

CERTIFICATE OF SERVICE

I hereby certify that on the 26th day of May, 2015, a true and correct copy of 

the foregoing was served, in accordance with Rule 9.5 of the Texas Rules of 

Appellate Procedure through an electronic filing service provider (EFSP), upon

each person below who has consented to e-service by registering for the e-service 

option with an EFSP or by setting up a complimentary account with 

www.texas.gov/efiling, or by first-class mail and e-mail upon each person below 

who has not so consented:

William Andrew Messer

Messer, Rockefeller & Fort, P.L.L.C.

6351 Preston Road

Suite 350 

Frisco, TX 75034

/s/ Arthur J. Anderson

ONE OF COUNSEL

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(4), I hereby certify that 

the above-styled document contains 4,278 words, excluding the caption, identity of 

parties and counsel, statement of jurisdiction, table of contents, index of 

authorities, statement of the case, statement of issues presented, signature, proof of 

service, certification, certificate of compliance, and appendix. Counsel is relying 

on a word count computer program used to prepare the document. This brief 

complies with the typeface requirements and the type style requirements of Tex. R. 

App. P. 9.4(e) because it has been prepared in a proportionally spaced typeface 

using Microsoft Office Word 2010 in 14-point Times New Roman.

/s/ Arthur J. Anderson

Arthur J. Anderson
-21-

APPENDIX

TAB 1: Aerial of Area

TAB 2: Introduced (but not enacted) HB 609 by Smith in 2007 Regular 

Session

TAB 3: House Research Organization Bill Analysis of HB 265 by Smith 

dated March 22, 2005

TAB 4: Amicus Brief filed by Texas Association of Builders in Court of 

Appeals

TAB 5: Amicus Brief filed by Property Owners’ Association of Sunrise 

Bay in Court of Appeals

DALLAS_1/6514284v.3

56756-1 05/26/2015



1 

2 

3 

4­

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

By: Smith of Tarrant H.B. No. 609 

A BILL TO BE ENTITLED 

AN ACT 

relating to the application and enforcement of municipal 

construction codes. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 

SECTION 1. Section 214.212(b), Local Government Code, is 

amended to read as follows: 

(b) The International Residential Code applies to all 

construction, alteration, remodeling, enlargement, and repair of 

residential structures in a municipality. Notwithstanding Section 

242.001, the governing body of a municipality by ordinance may 

extend to the extraterritorial jurisdiction of the municipality the 

application of the International Residential Code and any 

amendments adopted as provided by this section. 

SECTION 2. Section 212.049, Local Government Code, is 

repealed. 

SECTION 3. This Act takes effect immediately if it receives 

a vote of two-thirds of all the members elected to each house, as 

provided by Section 39, Article III, Texas Constitution. If this 

Act does not receive the vote necessary for immediate effect, this 

Act takes effect September 1, 2007. 

80R942 PAM-F 1 
TAB 3 
HOUSE 

RESEARCH 

ORGANIZATION bill analysis 3/22/2005 

HB 265 

W. Smith 

SUBJECT: Deadlines for cities to act on permit applications 

COMMITTEE: Land and Resource Management — favorable, without amendment 

VOTE: 6 ayes — Mowery, Blake, R. Cook, Leibowitz, Miller, Orr 

0 nays 

3 absent — Harper-Brown, Escobar, Pickett 

WITNESSES: For — David Mintz, Texas Apartment Association; Scott Norman, Texas 

Association of Builders; {Registered but did not testify: Daniel Gonzalez, 

Texas Association of Realtors) 

Against — None 

BACKGROUND: Among other provisions, Local Government Code, Title 7, authorizes 

local government entities to issue building permits. Permit applications 

and review processes vary among cities to ensure that construction and 

improvement plans comply with local policies and standards. 

DIGEST: HB 265 would set deadlines for municipalities to act on permits for 

constructing or improving buildings or other structures within their 

jurisdictions. Upon receipt of a building permit application, a municipality 

would have to: 

• grant or deny the permit to the applicant within 45 days; 

• provide written notice to the applicant explaining why the 

municipality had not acted on the application, which would add 30 

days from the date notice was received to the municipality's 

deadline for reaching a decision; or 

• reach a written agreement with the applicant establishing a deadline 

for reaching a decision. 

If the municipality failed to act within these deadlines and/or agreements, 

the municipality could not collect any application fees and would have to 

refund to the applicant any fees collected. 
HB 265 

House Research Organization 

page 2 

The bill would take effect September 1, 2005, and would apply only to 

permit applications submitted after that date. 

SUPPORTERS HB 265 would assist developers in efficiently managing their projects by 

SAY: establishing clear uniform deadlines for granting or denying permit 

applications. It would develop notification standards that are responsive 

and predictable and create a clear and transparent permit process through 

which a municipality and a project manager could communicate 

effectively. 

The permit procedure set forth in HB 265 would allow for the timely 

identification and rectification of application errors. Rather than letting 

projects stall over incoherent deadlines or flaws detected late in the permit 

process, as under the current system, the bill would help municipalities 

quickly identify a sound project and resolve application flaws to speed the 

commencement of construction or improvements. By allowing for a more 

timely project initiation date, HB 265 also would assist a municipality in 

incorporating new property value into its tax roll. 

Variation among municipalities' particular permit requirements would not 

be affected by the bill. Written agreements between a municipality and a 

developer could cover any steps required to obtain a permit while clearly 

delineating the responsibilities of both parties. 

HB 265 would take away local control from regulatory permit processes. 

Municipalities, large and small, can better determine application deadlines 

than the state. By requiring written agreements between municipalities and 

building permit applicants in order to avoid inflexible processing 

deadlines and resolve application flaws, this bill would slow the permit 

process, not expedite it. Municipalities today manage to ensure efficient 

regulatory processes by communicating verbally with applicants, and 

additional paperwork requirements would do nothing to improve this 

system. By mandating additional administrative duties, the bill could 

require some municipalities to increase permit fees to cover the increased 

processing costs of written agreements, including the possible need for 

additional personnel. 

HB 265 would create unrealistic deadlines for the processing of 

applications. All applications are reviewed for technical revisions 

including engineering, building code, and public safety compliance. 

OPPONENTS 

SAY: 
HB 265 

House Research Organization 

page 3 

Rushing the review process to meet a state-specified deadline could 

jeopardize technical accuracy. 

The bill would not place any requirements on applicants. Applicants who 

submitted incomplete applications or did not respond to requests from the 

municipality would not be held accountable for slowing the application 

process. Municipalities should not have to adhere to application process 

deadlines if applicants are not responsive. 

On February 28, the House passed a related bill, HB 266 by W. Smith, 

which would set deadlines for counties to respond to permit applications. 

The Senate has not yet referred this bill to committee. 
TAB 4 
ACCEPTED 

02-14-00143-CV 

SECOND COURT OF APPEALS 

FORT WORTH, TEXAS 

9/26/2014 2:30.02 PM 

DEBRA SPISAK 

CLERK 

IN THE COURT OF APPEALS OF THE STATE OF TEXAS 

SECOND APPELLATE DISTRICT 

No. 02-14-00143-CV 

HARRY BIZIOS, 

Appellant/Cross Appellee, 

v. 

TOWN OF LAKEWOOD VILLAGE, TEXAS, 

Appellee/Cross Appellant. 

On Appeal from the 431st Judicial District Court 

Trial Court Cause No. 14-01991-431 

BRIEF AMICUS CURIAE 

TEXAS ASSOCIATION OF BUILDERS 

IN SUPPORT OF APPELLANT HARRY BIZIOS 

Manuel Munoz, Jr. 

SB No. 24053379 

Texas Association of Builders 

313 E. 12th Street, Suite 210 

Austin, Texas 78701 

(512) 476-6346-Phone 

(512) 476-6427 - Fax 

ned@texasbuilders.org 

Attorneys for Amicus Curiae Texas 

Association of Builders 
TABLE OF CONTENTS 

TABLE OF CONTENTS i 

STATEMENT OF INTEREST OF AMICUS 1 

SUMMARY OF ARGUMENT 2 

ARGUMENT AND AUTHORITIES 4 

A. The Town's True Motivation is to Generate Revenue 4 

B. The Town lacks statutory authority 4 

CONCLUSION AND PRAYER 6 

CERTIFICATE OF SERVICE 7 

CERTIFICATE OF COMPLIANCE WITH RULE 9.4 8 

APPENDIX 9 
TABLE OF AUTHORITIES 

Page(s) 

STATUTES 

Chapter 212, Tex. Loc. Gov't Code 4, 5 

Chapter 233, Tex. Loc. Gov't Code 3 

§ 214.904, Tex. Loc. Gov't Code 3,5 

§ 233.151, Tex. Loc. Gov't Code 3, 5, 6 

OTHER AUTHORITIES 

Tex. Const., Article VIII, Section 1(f) 4 

-il 
IN THE COURT OF APPEALS OF THE STATE OF TEXAS 

SECOND APPELLATE DISTRICT 

No. 02-14-00143-CV 

HARRY BIZIOS, 

Appellant/Cross Appellee, 

v. 

TOWN OF LAKEWOOD VILLAGE, TEXAS, 

Appellee/Cross Appellant. 

On Appeal from the 431st Judicial District Court 

Trial Court Cause No. 14-01991-431 

BRIEF AMICUS CURIAE 

TEXAS ASSOCIATION OF BUILDERS 

IN SUPPORT OF APPELLANT HARRY BIZIOS 

TO THE HONORABLE SECOND COURT OF APPEALS OF TEXAS: 

Pursuant to Rule 11 of the Texas Rules of Appellate Procedure, the Texas 

Association of Builders ("TAB") submits this Brief as Amicus Curiae in support of 

Appellant Harry Bizios. 

STATEMENT OF INTEREST OF AMICUS 

TAB is a non-profit trade association that was founded in 1946 to help 

promote the dream of home ownership and to serve the common interests of those 
involved in the residential construction industry in the State of Texas. TAB's 

membership base of nearly 10,000 members across Texas is primarily made up of 

home builders, remodelers, developers, and other companies and individuals who 

have an interest and a stake in a healthy and vibrant homebuilding industry in the 

State of Texas. TAB is affiliated with the National Association of. Home Builders 

and over 28 local associations that are located throughout the State of Texas. 

TAB's membership represents approximately 702,500 jobs and $31.1 billion 

annually of the Texas economy. -

TAB, as amicus, has an interest in this case in that TAB and its members are 

extremely concerned about the requirement that its members obtain municipal 

building permits and pay fees for construction in the extraterritorial jurisdiction 

("ETJ"). More specifically, TAB and its members have an interest in seeing that 

the Court grant the Appellant's appeal and reverse the trial court's decision 

granting temporary injunction. 

That being said, TAB is not a party to this action and has no direct financial 

interest in its outcome. TAB's counsel was not paid a fee by TAB for the 

preparation of this brief. 

SUMMARY OF ARGUMENT 

TAB's membership is dedicated to the construction of quality, safe housing. 

Under existing statutes, all one and two family homes built in the state's 
municipalities must meet the standards of the International Residential Code 

("IRC"), while every county in Texas, other than Loving County, has the authority 

to mandate that all one and two family homes be built to the standards of the IRC. 

Furthermore, Denton County has exercised its authority under Subchapter F, 

Chapter 233 of the Texas Local Government Code to require that all one and two 

family homes built in the unincorporated areas o f Denton County conform to the 

IRC. TAB supports this standard, and Bizios' and other homes in Lakewood 

Village's ETJ will be constructed in accordance with the IRC without the Town's 

interference or oversight. 

TAB strongly disagrees with the Town's argument that §§ 214.904 or 

233.151, Tex. Loc. Gov't Code, provide statutory authority for the Town to extend 

its building code to the ETJ. The legislative history of both bills shows that they 

did not bestow or endow such authority on general law towns like Lakewood 

Village. 

TAB has reviewed the Appellant's briefs in this case. TAB agrees with both 

the content and the arguments that are set forth in the Appellant's briefs. TAB 

would like to take this opportunity to incorporate the arguments that are set forth in 

the Appellant's briefs and to adopt them as if they were TAB's own. 
ARGUMENT AND AUTHORITIES 

A. The Town's True Motivation is to Generate Revenue. 

TAB does not oppose legitimate building permit fees which cover true 

administrative costs in reviewing plans and making inspections. However, the 

Town's fees, which we understand to represent a profit to the Town of around 

$15,000 for Appellant's house, constitute an illegal occupation tax, in violation of 

Article VIII, Section 1(f) of the Texas Constitution. (2 RR 144). This fee is 

merely a means for the Town to raise revenue as no services are being provided by 

the Town. Water is provided by the Town of Little Elm and the roads are 

maintained by Denton County. (2 RR 89; 3 RR 14). This property can never be 

annexed by Lakewood Village for legal, political and engineering reasons. (2 RR 

54). Furthermore, the Town's building official is a moonlighter who, due to fulltime employment elsewhere, will not perform services during regular business 

hours. (2 RR 143). Bizios obtained approved permits from Denton County and 

the Corps of Engineers for his project and has employed a professional third-party 

firm to perform code inspections. TAB opposes the extension of municipal 

building codes to the ETJ by general law towns. 

B. The Town lacks statutory authority. 

The Town also has no legal right to enforce its building standards in its ETJ, 

including fees, inspection requirements and contractor registration regulations. 

The Town's reliance on Subchapter A, Chapter 212 of the Texas Local 

. -4-
Government Code is misplaced because Subchapter A relates to a city's 

subdivision and platting powers. The property in question was platted in Denton 

County long before it came into the Town's ETJ. Consequently, Subchapter B of 

Chapter 212 applies because it defines development as "new construction." 

Subchapter B does not authorize a city to require its building standards in the ETJ. 

In fact, § 212.049, Tex. Loc. Gov't Code, specifically states that the subchapter 

does not authorize municipalities to require building permits or enforce building 

codes in the ETJ. General law cities, such as Lakewood Village, only have the 

powers expressly given to them by Texas statute or the Texas Constitution. 

TAB was involved in the legislative process for enacting §§ 214.904 and 

233.151, Tex. Loc. Gov't Code. Contrary to the Town's argument, there was 

never any discussion or statement made at a committee hearing or on the floor of 

either house that these bills would authorize general law towns to extend their 

building codes to the ETJ. 

For example, HB 265 was passed in 2005 to create § 214.904. The House 

Research Organization bill analysis is attached as Tab A in the Appendix as shown 

in Exhibit A. Scott Norman of TAB testified in support of the bill which was 

intended to prevent cities from arbitrarily delaying taldng action on building permit 

applications. There is no legislative history indicating that § 214.904 was intended 

to grant general law towns the authority to extend their building codes to the ETJ. 
TAB was also involved with the 2009 legislative process in enacting HB 

2833 (§ 233.151, Tex. Loc. Gov't Code, et seq.). As originally drafted, and shown 

in Tab C in the Appendix, the legislative intent was to address the proliferation of 

"colonias" along the border by authorizing commissioners courts along the border 

the authority to, among other things, adopt building codes. During the session, the 

scope of the covered counties was expanded to include virtually every Texas 

county and allow those counties to require that all one and two family homes built 

in the unincorporated areas of the county meet IRC standards. At no point was 

there any discussion or consideration to give general law towns the authority to 

require building permits in the ETJ. 

CONCLUSION AND PRAYER 

Amicus Curiae TAB respectfully requests that this Court grant Appellant's 

appeal, reverse the trial court's temporary injunction order, and grant any additional 

relief to which the Appellant is entitled. 
Respectfully submitted, 

TEXAS ASSOCIATION OF 

BUILDERS 

313 E. 12th Street, Suite 210 

Austin, Texas 78701 

(512) 476-6346-Phone 

(512) 476-6427-Fax 

ned@texasbuilders .org 

Bv: /s/ Manuel Munoz. Jr. 

Manuel Munoz, Jr., 

SB 24053379 

ATTORNEYS FOR THE TEXAS 

ASSOCIATION OF BUILDERS, 

AMICUS CURIAE 

CERTIFICATE OF SERVICE 

Pursuant to Tex. R. App. P. 9.5, I hereby certify that on the 26th day of 

September, 2014, a true and correct copy of the foregoing was served upon the 

following counsel of record vie electronic filing service: 

William Andrew Messer 

Messer, Rockefeller & Fort, P.L.L.C. 

6351 Preston Road 

Suite 350 

Frisco, TX 75034 

Arthur J. Anderson 

Winstead PC 

500 Winstead Building 

2728 N. Harwood Street 

Dallas, TX 75201 

/s/Manuel Munoz. Jr. 

Manuel Munoz, Jr. 
CERTIFICATE OF COMPLIANCE WITH RULE 9.4 

Pursuant to Texas Rule of Appellate Procedure 9.4,1 hereby certify that the 

above styled document complies with the type-volume limitations and contains 

1,147 words, excluding the caption, identity of parties and counsel, statement 

regarding oral argument, table of contents, index of authorities, statement of the 

case, statement of issues presented, signature, proof of service, certification, 

certificate of compliance, and appendix. Counsel is relying on a word count 

computer program used to prepare the document. 

/s/ Manuel Munoz. Jr. 

Manuel Munoz, Jr. 
APPENDIX 

TAB A: March 22, 2005 House Research Organization Bill Analysis for 

HB 265 by Smith 

TAB B: 2009 Senate Intergovernmental Relations Committee Witness List 

for HB 2833 

TAB C: 2009 Bill Analysis for C.S.H.B. 2833 (Marquez) 

-9-
TAB A 
HOUSE 

RESEARCH 

ORGANIZATION bill analysis 3/22/2005 

HOB 265 

W.Smith 

Deadlines for cities to act on permit applications 

Land and Resource Management — favorable, without amendment 

6 ayes — Mowery, Blake, R. Cook, Leibowitz, Miller, Orr 

0 nays 

3 absent — Harper-Brown, Escobar, Pickett 

For — David Mintz, Texas Apartment Association; Scott Norman, Texas 

Association of Builders; (Registered but did not testify: Daniel Gonzalez, 

Texas Association of Realtors) 

Against—None 

BACKGROUND: Among other provisions, Local Government Code, Title 7, authorizes 

local government entities to issue building permits. Permit applications 

and review processes vary among cities to ensure that construction and 

improvement plans comply with local policies and standards. 

DIGEST: HB 265 would set deadlines for municipalities to act on permits for 

constructing or improving buildings or other structures within their 

jurisdictions. Upon receipt of a building permit application, a municipality 

would have to: 

• grant or deny the permit to the applicant within 45 days; 

• provide written notice to the applicant explaining why the 

municipality had not acted on the application, which would add 30 

days from the date notice was received to the municipality's 

deadline for reaching a decision; or 

• reach a written agreement with the applicant establishing a deadline 

for reaching a decision. 

If the municipality failed to act within these deadlines and/or agreements, 

the municipality could not collect any application fees and would have to 

refund to the applicant any fees collected. 

SUBJECT: 

COMMITTEE: 

VOTE: 

WITNESSES: 
HB 265 

House Research Organization 

page 2 

The bill would take effect September 1,2005, and would apply only to 

permit applications submitted after that date. 

SUPPORTERS HB 265 would assist developers in efficiently managing their projects by 

SAY: establishing clear uniform deadlines for granting or denying permit 

applications. It would develop notification standards that are responsive 

and predictable and create a clear and transparent permit process through 

which a municipality and a project manager could communicate 

effectively. 

The permit procedure set forth in HB 265 would allow for the timely 

identification and rectification of application errors. Rather than letting 

projects stall over incoherent deadlines or flaws detected late in the permit 

process, as under the current system, the bill would help municipalities 

quickly identify a sound project and resolve application flaws to speed the 

commencement of construction or improvements. By allowing for a more 

timely project initiation date, HB 265 also would assist a municipality in 

incorporating new property value into its tax roll. 

Variation among municipalities' particular permit requirements would not 

be affected by the bill. "Written agreements between a municipality and a 

developer could cover any steps required to obtain a permit while clearly 

delineating the responsibilities of both parties. 

OPPONENTS HB 265 would take away local control from regulatory permit processes. 

SAY: Municipalities, large and small, can better determine application deadlines 

than the state. By requiring written agreements between municipalities and 

building permit applicants in order to avoid inflexible processing 

deadlines and resolve application flaws, this bill would slow the permit 

process, not expedite it. Municipalities today manage to ensure efficient 

regulatory processes by communicating verbally with applicants, and 

additional paperwork requirements would do nothing to improve this 

system. By mandating additional administrative duties, the bill could 

require some municipalities to increase permit fees to cover the increased 

processing costs of written agreements, including the possible need for 

additional personnel. 

HB 265 would create unrealistic deadlines for the processing of 

applications. All applications are reviewed for technical revisions 

including engineering, building code, and public safety compliance. 
HB 265 

House Research Organization 

page 3 

Rushing the review process to meet a state-specified deadline could 

jeopardize technical accuracy. 

The bill would not place any requirements on applicants. Applicants who 

submitted incomplete applications or did not respond to requests from the 

municipality would not be held accountable for slowing the application 

process. Municipalities should not have to adhere to application process 

deadlines if applicants are not responsive. 

NOTES: On February 28, the House passed a related bill, HB 266 by W. Smith, 

which would set deadlines for counties to respond to permit applications. 

The Senate has not yet referred this bill to committee. 
TAB B 
81(R) HB 2833 - Senate Committee Report version - Witness List Page 1 of 1 

WITNESS LIST 

HB 2833 

Senate Committee Report 

Intergovernmental Relations 

May 20,2009-7:30 AM • 

FOR: 

Bresnen, Steve (El Paso County), Austin, TX 

Registering, but not testifying: 

For: 

Allison, Jim (County Judges & Commissioners Association of Texas), Austin, TX 

Lee, Donald (Texas Conference of Urban Counties), Austin, TX • Munoz, Ned (Texas Association of Builders), Austin, TX 

York, Van County Judge (Borden County), Gail, TX 

http://www.capitol.state.tx.us/tlodocs/81Rywitlistbill/html/HB02833S.htm 9/3/2014 
TAB C 
BILL ANALYSIS 

C.S.H.B. 2833 

By: Marquez 

County Affairs 

Committee Report (Substituted) 

BACKGROUND AND PURPOSE 

Under current l aw, certain counties do not have the authority to adopt building codes in the 

unincorporated areas o f the county. This lack of county regulatory powe r contributes to the 

growth of substandard housing in colonias throughout the Texas-Mexico border region. 

C.S.H.B. 2833 authorizes certain counties along the Texas-Mexico border to adopt a building 

code applicable to new residential construction that begins after September 1, 2009, in the 

unincorporated area o f the county. The bill authorizes t he building codes adopted under the 

provisions of the bill to contain only the same requirements a s the statutory warranty and 

building and performance standards that apply to residential construction and any rules 

governing those standards adopted by the Texas Residential Construction Commission. 

C.S.H.B. 2833 requires a building code adopted by a commissioners court under the bill's 

provisions to require a person who builds new residential construction to meet specified 

requirements, inclu ding providing notice to the county, arranging for a third party inspection, 

and reporting the results of the inspection to the county and other parties. The bill provides for 

enforcement of such a building code, including referral of violations to the commission and 

injunctive relief. The bill makes it a Class C misdemeanor to violate its provisions. The bill 

prohibits a county from charging a fee to a person regulated by the code. TTie bill clarifies that 

the new authority granted does not affect existing county authority to adopt orders or ordinances 

under other law. 

RULEMAKING AUTHORITY 

It is the committee's opinion that this bil l does not expressly grant any additional rulemaking 

authority to a state officer, department, agency, or institution. 

ANALYSIS 

C.S.H.B. 2833 amends the Local Government Code to authorize the commissioners court in a 

county that in cludes territory within 50 miles of an international border, has a population of 

700,000 or more, contains a municipality with a population of 550,000 or more, and contains one 

or more colonias or other developments composed of substandard housing, and in a county 

whose commissioners court adopts a resolution stating that the county expects population 

expansion as a result of the recommendations of the federal Defense Base Closure and 

Realignment Commission, to adopt a building code applicable to new residential construction in 

the unincorporated area of the county that begins after September 1, 2009. The bill provides that 

if a municipality located within such a county has adopted a building code in the municipality's 

extraterritorial jurisdiction, the building code adopted by the municipality controls and a building 

code adopted by the county has no effect in the municipality's extraterritorial jurisdiction. The 

bill prohibits these provisions from being construed to require prior approval b y the county 

before beginning new residential construction, to authorize the co mmissioners court of a county 

to adopt or enforce zoning regulations, or to affect the application of provisions related to the 

subdivision platting requirements in a county near an international border to land developme nt. 

81R 23829 9.99.109 

Substitute Document Number: 81R 19885 
The bill provides that in the event of a conflict between its provisions and provisions related to 

the subdivision platting requirements in a county near an international border, provisions related 

to the subdivision platting requirements in a county near an international border control. 

C.S.H.B. 2S33 authorizes an adopted building code to contain only the same requirements as the 

statutory warranty and building performance standards that apply to residential construction 

under the Texas Residential Construction Commission Act, and any rules governing those 

standards adopted by the Texas Residential Construction Com mission. The bill requires the 

adopted building code to require a person who builds new residential construction to have the 

new residential construction inspected by a third-party inspector approved by the commission at 

the time and in the manner prescribed by rules adopted by the commission; before commencing 

new residential construction, to provide notice to the county of the location of the new residential 

construction on a form prescribed by the county, the date by which the new residential 

construction will be commenced, and the name of the third-party inspector who will inspect the 

new residential construction; and to submit not later than the 10th day after the date of each 

inspection a written report prepared by the third-party inspector of the inspection and describing 

the results of the inspection to the county employee or department or agency of the county 

designated by the commissioners court of the county and the person who purchased the new 

residential construction from the builder, if applicable. 

C.S.H.B. 2833 authorizes the county, in order to enforce compliance with a building code 

adopted under the bill's provisions, to seek injunctive relief and impose certain penalties; to refer 

a builder registered under the Texas Residential Construction Commission Act who violates a 

provision of that act, or any rule adopted under that act, to the commission for disciplinary 

action; and to refer a third-party inspector approved by the commission under the Texas 

Residential Construction Commission Act who violates a provision of that act, or any rule 

adopted under that act, to that commission for disciplinary action. The bill authorizes the 

commission to take any action with regard to a builder or third-party inspector that it is 

authorized to take by any other law with regard to new residential construction in a county that 

has adopted a building code authorized under these provisions. The bill prohibits a county from 

charging a fee to a person regulated by a building code adopted under provisions of the bill to 

defray the costs of enforcing the code. 

C.S.HJB. 2833 provides that the authority granted by these provisions does not affect the 

authority o f a commissioners court to adopt an order under other law. The bill entitles the 

county, in a suit brought by the appropriate attorney representing the county in the district court, 

to appropriate injunctive relief to prevent the violation or threatened violation of a building code 

from continuing or occurring. The bill makes it a Class C misdemeanor to violate a restriction or 

prohibition imposed by a building code adopted under these provisions. 

C.S.H.B. 2833 defines "new residential construction." 

EFFECTIVE DATE 

On passage, or, if the act does not receive the necessary vote, the act takes effect September 1, 

2009. 

COMPARISON OF ORIGINAL AND SUBSTITUTE 

C.S.H.B. 2833 differs from the original by placing its provisions under law related to county 

regulation of housing and other structures, whereas the original places its provisions under law 

related to the authority of a municipality and a county to regulate subdivisions in and outside of 

the municipality's extraterritorial jurisdiction. The substitute adds a definition for "new 

residential construction" that is not in the original. 

81R 23829 9.99.109 

Substitute Document Number 81R19885 
C.S.H.B. 2833 differs from the original by applying its provisions to a county that has a 

population of 700,000 or more, contains a municipality with a population of 550,000 or more, 

and contains one or more colonias or other developments composed of substandard housing, and 

by applying its provisions to a county whose commissioners court adopts a resolution stating that 

the county expects population expansion as a result of the recommendations of the federal 

Defense Base Closure and Realignment Commission, whereas the original a pplies its provisions 

to a municipality in a county if that county does not exercise in the municipality's extraterritorial 

jurisdiction the authority described by the bill and the county by resolution authorizes the 

municipality to exercise that authority in the municipality's extraterritorial jurisdiction. 

C.S.H.B. 2833 adds a provision not in the original t o authorize the commissioners court in a 

county to adopt a building code applicable to new residential construction in the unincorporated 

area of the county and to set forth building code requirements. The substitute adds a provision 

not in the original setting forth provisions for the enforcement of building codes. 

C.S.H.B. 2833 removes a provision from the original that authorizes the com missioners court of 

a county to regulate residential land devel opment in the unincorporated areas of the county and 

that authorizes the governing body of a municipality to regulate residential land development in 

the municipality's extraterritorial jurisdiction so that the municipality or county may prevent the 

proliferation of colonias by adopting certain types of regulations. 

C.S.H.B. 2833 removes a provision from the original that requires the county or municip ality to 

issue a building permit if the person submitting the application for the permit satisfies certain 

requirements. 

C.S.H3. 2833 removes a provision from the original providing that a municipal ordinance 

prevails within the municipality's jurisdiction to the extent of a conflict if an order adopted by 

the county conflicts with the municipality's ordinance. 

C.S.H.B. 2833 differs from the original b y making it an o ffense to violate the building code, 

rather than an order or ordinance, as in the original and by omitting an exception to the penalty 

in the original. 

81R23829 

Substitute Document Number: 81R 19885 

3 

9.99.109 

ACCEPTED 

02-14-00143-CV 

SECOND COURT OF APPEALS 

FORT WORTH, TEXAS 

9/26/2014 11:49:55 AM 

DEBRA SPISAK 

CLERK 

NO. 02-14-00143-CV 

IN THE COURT OF APPEALS SECOND DISTRICT 

OF TEXAS, FORT WORTH 

HARRY BIZIOS, 

APPELLANT, 

V. 

TOWN OF LAKEWOOD VILLAGE, TEXAS, 

APPELLEE. 

BRIEF OF AMICUS CURIAE 

PROPERTY OWNERS' ASSOCIATION OF SUNRISE BAY 

WHITEHURST & CAWLEY, L.L.P. 

FRANK G. CAWLEY 

State Bar No. 24006978 

4560 Belt Line Road, Suite 200 

Addison, Texas 75001 

972/503-5455 Telephone 

972/503-6155 Facsimile 

Counsel for Property Owners' Association 

Of Sunrise Bay 
IDENTITY OF PARTIES AND COUNSEL 

Amicus Curiae Property Owners' Association of Sunrise Bay 

supplements the parties' identification of parties and counsel with the 

following information: 

1. Amicus Curiae is Property Owners' Association of Sunrise Bay. 

2. Counsel for Amicus Curiae is Frank G. Cawley, Whitehurst & 

Cawley, L.L.P. 4560 Beltline Rd., Suite 200, Addison, Texas 

75001 

ii 
INTEREST OF AMICUS CURIAE 

Pursuant to Texas Rule of Appellate Procedure 11, Amicus Curiae, 

Property Owners' Association of Sunrise Bay ("the Association"), submits 

this brief in support of Appellant, Harry Bizios because the disposition of 

the issues raised in this case will significantly affect the Association and its 

constituent property owners. 

The Association is a duly organized Texas non-profit property 

owners association comprised of 1 74 properties and 171 property owners. 

Approximately 57 of these properties are located wholly or partially within 

the extra-territorial jurisdiction of the Town of Lakewood Village. (CR 527). 

The Association and its constituent property owners have a significant 

interest in the subject matter of this case. The Association is committed to 

maintaining sustainable property values, preserving and attracting 

desirable property owners, and maintaining the integrity and constituency 

of the Association. If this Court holds that the Town of Lakewood Village 

has the power to enforce its ordinances, building codes, and confiscatory 

building permit fees in its ETJ, it will serve as a disincentive to property 

ownership and transfer in the subject ETJ, reduce the pool of attractive 

iii 
purchasers, and discourage the improvement of properties in the 

Lakewood Village ETJ. Each of these will have a deleterious effect on 

property values which impacts all of the 171 members of the Association. 

No fees have been paid for the filing of this brief. 
TABLE OF CONTENTS 

IDENTITY OF PARTIES AND COUNSEL 

INTEREST OF AMICUS CURIAE 

TABLE OF CONTENTS 

INDEX OF AUTHORITIES 

ISSUES PRESENTED 

Issue 1: 

Whether a general law town has the power to enforce its building 

codes and building permit fees in its extraterritorial jurisdiction 

absent express statutory authority. 

Issue 2: 

Whether the Town established a probable right to the relief sought 

where the evidence establishes that its building permit fees bear no 

reasonable relationship to the cost of regulating construction, and 

thus constitute unlawful taxes. 

SUMMARY OF ARGUMENT 1,2 

STATEMENT OF FACTS 2 

ARGUMENT AND AUTHORITIES 3 

Lakewood Village's Motive in Attempting to Require Permit 

Fees and to Enforce Building Codes is Revenue Generation, Not 

Health, Safety and Welfare 3 

As a General Law Town, The Powers of Lakewood Village Are 

Limited To Those Expressly Authorized By Statute 7 

There is No Statutory Authority Authorizing Lakewood Village to 

Require Building Permits or to Enforce Building Codes in its ETJ 8 

iii, iv 

v, vi 

.vii, viii, ix 

1 
The Authority on Which Lakewood Village Relies is Inapposite 

Because it is Based on a Different, Repealed Statute and is no Longer 

Good Law 11 

Lakewood Village's admission that it has not adopted Subchapter B is 

fatal to its position 14 

The Trial Court Erred in Finding a Probable Right To Relief 

Because Lakewood Village's Building Permit Fees Constitute 

Unlawful Taxes 15 

CONCLUSION AND PRAYER 18 

CERTIFICATE OF SERVICE 19 

vi 
INDEX OF AUTHORITIES 

Case Law Page(s) 

Bon Air Estates, Inc. v. Village of Suffern, 

32 A.D.2d 921,302 N.Y.S.2d 304 (1969) 16 

City of Austin v. Jamail, 

662 S.W.2d 779, 782 (Tex. App. - Austin 1983, writ dism'd) 7 

City of Sweetwater v. Hamner, 

259 S.W. 191,195 (Tex. Civ. App. - Fort Worth 1923, writ dism'd) 

7 

City of West Lake Hills v. Westwood Legal Defense Fund 

598 S.W.2d 681, 683, 684 (Tex. Civ. App. - Waco 1980, no writ).. 7 

Colonial Oaks West, Inc. v. East Brunswick, 

296 A.2d 653, 660 (N.J. 1972) 16 

Daniels v. Point Pleasant, 

23 N.J. 357,362,129 A.2d 265 (N.J. 1957) 15,17 

Ft. Worth v. Gulf Refining Co., 

125 Tex. 512 (Tex. 1935) 15 

Health v. King, 

705 S.W.2d 812, 814 (Tex. App. Dallas 1986) 16 

Hope v. Laguna Vista, 

721 S.W.2d 463, 463-464 (Tex. App. Corpus Christi 1986) 7 

Levy v. City of Piano, 

2001 Tex. App. LEXIS 7515 (Tex. App. Dallas Nov. 8,2001)...ll, 12 

Lodge of Ozarks, Inc. v. Branson, 

796 S.W.2d 646 (Mo. Ct. App. 1990) 16 

vii 
Lucas v. North Texas Municipal Water Dist., 

724 S.W.2d 811, 824 (Tex. App. 1986) 11,12 

Merrelli v. City of St. Clair Shores, 

355 Mich. 575, 96 N.W.2d 144 (Mich. 1959) 15 

Orange and Rockland Utilities v. Town of Clarkstown, 

80 A.D.2d 846,444 N.Y.S. 2d 670 (1981) 15,16 

Raum v. Board ofSup'rs ofTredyjfrin Township, 

29 Pa. Commw. 9, 370 A.2d 777 (Pa. Comwlth. 1977) 16 

Sun Oil Co. v. Whitaker, 

424 S.W.2d 216, 218 (Tex. 1968) 17 

Tex. DOT v. City of Sunset Valley, 

146 S.W.3d 637, 645 (Tex. 2004) 7 

Township of Ridley v. Ridley Arms, Inc., 

90 Pa. Commw. 143,494 A.2d 870 (Pa. Comwlth. 1985) 16 

Trevino & Gonzalez Co. v. RF. Muller Co., 

949 S.W.2d 39,40 (Tex. App. —San Antonio 1997, no writ) 15 

Vance v. Pleasanton, 

261 S.W. 457,459 (Tex. Civ. App. 1924) 16 

Statutes and Codes 

Tex. Loc. Govt. Code §43.024 7 

Tex. Loc. Govt. Code §13.002 8 

Tex. Loc. Govt. Code, Chapter 212 1,8,10,11,12 

Tex. Loc. Govt. Code, §212.002 8, 9 

Tex. Loc. Govt. Code, §212.003 8, 9 

Tex. Loc. Govt. Code, §212.041 14 

Tex. Loc. Govt. Code, §212.049 9,10,12,13,14 

viii 
Tex. Loc. Govt. Code, §212.172 13 

Texas Revised Civil Statute 970a 11 

Texas Revised Civil Statute 970a, Article 1, Section 4 12 

Texas Constitution 16 

ix 
ISSUES PRESENTED 

Issue 1 

Whether a general law town has the power to enforce its building 

codes and building permit fees in its extraterritorial jurisdiction absent 

express statutory authority. 

Issue 2 

Whether the Town established a probable right to the relief sought 

where the evidence establishes that its building permit fees bear no 

reasonable relationship to the cost of regulating construction, and thus 

constitute unlawful taxes. 

SUMMARY OF ARGUMENT 

General law towns such as the Town of Lakewood Village possess 

only the powers expressly conferred by the legislature. Contrary to 

Lakewood Village's arguments, neither subchapter A nor subchapter B of 

Texas Local Government Code Chapter 212 authorize a general law town 

to require building permits or enforce building codes in an ETJ. Lakewood 

Village can point to no other statute that expressly authorizes a general law 

town to require building permits or enforce building codes in an ETJ. Thus, 

l 
homes constructed in the Lakewood Village ETJ. With the exception of 

Bizios' home, all of these homes were built before 2011 when Lakewood 

Village passed Ordinance 11-11 which purports to require permit fees and 

to enforce building codes in the ETJ. (CR 307-310). 

The Association is one of only two homeowners or property owners 

associations in Lakewood Village's ETJ. In 2013, the Lakewood Village 

Town Council passed Ordinance 13-07 which amended its Subdivision 

Ordinance. (CR 345-367). Section 36 of Ordinance 13-07 purports to 

prohibit mandatory property owners associations and homeowners 

associations that charge mandatory fees. (CR 366). The Associations' deed 

restrictions require membership in the respective associations and require 

mandatory annual fees. (CR 454). Thus, under Ordinance 13-07, Lakewood 

Village purports to restrain the rights of nearly one-third of the property 

owners in Sunrise Bay from associating and complying with their deed 

restrictions. 

ARGUMENT AND AUTHORITIES 

A. Lakewood Village's Motive in Attempting to Require Permit Fees 

and to Enforce Building Codes is Revenue Generation, Not Health, 

Safety and Welfare 

3 
The controlling issue in this case is whether Lakewood Village can 

require permit fees and enforce building codes in its ETJ absent any 

statutory authorization permitting it to do so. However, Lakewood Village 

attempts disguise its true motive through the sophistry of promoting 

health, safety, and welfare. Accordingly, the Association will address this 

issue at the outset. 

In its Brief, Lakewood Village argues that its true intent in extending its 

building codes into its ETJ is solely to promote the health, safety, and 

welfare of its citizens and the residents of the ETJ. However, Sunrise Bay 

has been in existence since 1995, and 34 homes have been constructed in 

Lakewood Village's ETJ prior to 2011 when it attempted to extend its 

building permits and codes into the ETJ. Conspicuously absent from 

Lakewood Village's Brief is any mention of any evidence of any health, 

safety, or welfare issues arising out of the construction of any of these 34 

homes in the intervening 16 years. Certainly if any evidence existed to 

support Lakewood Village's purported motive, it would be cited in its 

Brief. Lakewood Village wholly fails to explain why, after 16 years and the 

4 
construction of 34 homes, it suddenly became concerned with the health, 

safety, and welfare of its citizens and residents of the ETJ. 

Lakewood Village's true motive for extending its building permit fees 

and building codes into the ETJ is evidenced by the April 12, 2012 meeting 

minutes of the Lakewood Village Town Council in which the mayor 

characterized Sunrise Bay as an unrealized "asset" of the town. (See Tab C 

attached to Bizios Reply Brief). This motive is also evidenced by the 

enormous profit it receives by imposing its permit fees in the ETJ. The total 

cost to Lakewood Village to have building plans reviewed and inspections 

performed is $1200. (2 RR 144). Coincidentally, this is the exact amount 

Lakewood Village charged Bizios in subcontractor fees. (3 RR 19). On top 

of that, Lakewood Village charged Bizios $14,656.00 in building permit 

fees. (2 RR 92-93). Thus, Lakewood Village realized a $14,656.00 profit from 

the building permit fees for the construction of one home. The prospect of a 

similar windfall for construction on the remaining 20 or so lots in the 

Sunrise Bay portion of Lakewood Village's ETJ certainly qualifies as 

realizing an asset. Lakewood Village fails to explain why it cannot 

promote the health, safety, and welfare through the imposition of its 

5 
building codes with permit fees that have a more reasonable connection to 

the cost of regulation. This is because Lakewood Village's motive is 

revenue generation, and the promotion of health, safety, and welfare 

justification is a mere pretext. 

Further, the fact that Lakewood Village seeks to prohibit homeowners 

and property owners associations belies its supposed interest in health, 

safety, and welfare. The Sunrise Bay POA has an Architectural Control 

Committee which is charged with approving construction plans for 

compliance with acceptable construction standards. (CR 452-454). In 

addition, the Sunrise Bay Declarations of Covenants require construction 

approval by Denton County. (CR 452). The abolition of the POA would 

remove these additional levels of construction approval which contribute 

to the health, safety and welfare of the residents in the POA. 

Lakewood Village also attempts to justify its imposition of building 

codes and building permits in the ETJ by asserting that it might annex it in 

the future. However, because the population of Lakewood Village is less 

than 5000, and will always be less than 5000, it can only achieve annexation 

by a vote of the majority of the qualified voters in the ETJ. Tex.Loc.Govt. 

6 
Code §43.024. There is absolutely no possibility that Lakewood Village 

could garner the votes necessary for annexation, and Lakewood Village 

knows it. (See Tab A attached to Bizios' Reply Brief). Once again, 

Lakewood Village's stated motive is pure subterfuge. 

B. As a General Law Town, The Powers of Lakewood Village Are 

Limited To Those Expressly Authorized By Statute 

General law cities possess only the powers and privileges expressly 

conferred on them by law. Tex. DOT v. City of Sunset Valley, 146 S.W.3d 637, 

645 (Tex. 2004); Hope v. Laguna Vista, 721 S.W.2d 463, 463-464 (Tex. App. 

Corpus Christi 1986). A city cannot exercise its powers outside its limits without 

express statutory authority, unless the power is reasonably incident to those 

expressly granted. City of Austin v. Jamail, 662 S.W.2d 779, 782 (Tex. App. ~ 

Austin 1983, writ dism'd); City of Sweetwater v. Hamner, 259 S.W. 191, 195 (Tex. 

Civ. App. — Fort Worth 1923, writ dism'd). Furthermore, any f air, reasonable, or 

substantial doubt about the existence of a power is resolved against a city. City of 

West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681, 683 (Tex. Civ. 

App. ~ Waco 1980, no writ). The court must examine the entire statute and 

construe it as a whole. Id. at 684. One provision will not be given a meaning 

inconsistent with or out of harmony with other provisions, though it might be 

susceptible to such construction if standing alone. Id. 
Accordingly, in order for Lakewood Village to possess the power to require 

building permits and building codes in the ETJ, there must be express statutory 

authority permitting it to do so. 

C. There is No Statutory Authority Authorizing Lakewood Village to 

Require Building Permits or to Enforce Building Codes in its ETJ 

Lakewood Village asserts that Texas Local Government Code Chapter 212, 

subchapter A provides the statutory authority to extend the town's building permit 

and construction related ordinances into the areas constituting the town's 

extraterritorial jurisdiction (ETJ). It does not. 

Subchapter A of Texas Local Government Code Chapter 212 governs 

municipalities' regulation of subdivisions. Section 212.002 states: 

After a public hearing on the matter, the governing body of a 

municipality may adopt rules governing plats and subdivisions of 

land within the municipality's jurisdiction to promote the health, 

safety, morals, or general welfare of the municipality and the safe, 

orderly, and healthful development of the municipality. 

(emphasis added). 

Section 212.003 allows for the extension of ordinances adopted under 

Section 212.002 into the ETJ. Section 212.003 states as follows: 

(a) The governing body of a municipality by ordinance may extend to 

the extraterritorial jurisdiction of the municipality the application 

of municipal ordinances adopted under Section 212.002 and other 

municipal ordinances relating to access to public roads or the 

pumping, extraction, and use of groundwater by persons other than 

retail public utilities, as defined by Section 13.002, Water Code, 

8 
for the purpose of preventing the use or contact with groundwater 

that presents an actual or potential threat to human health. 

Taken together, Sections 212.002 - 212.003 only authorize a municipality to 

extend rules governing plats and subdivisions of land into its ETJ. Thus, the 

question becomes whether building codes and permit fees constitute "rules 

governing plats and subdivisions of land." The answer to this question lies in the 

legislative scheme contained in Chapter 212 wherein laws governing the regulation 

of subdivisions and laws governing the regulation of property development are 

codified in separate subchapters. 

While Subchapter A of Texas Local Government Code Chapter 212 governs 

the regulation of subdivisions, Subchapter B governs the regulation of property 

development. "Property development" is defined as "the new construction or the 

enlargement of any exterior dimension of any building, structure, or 

improvement." Further, Section 212.049 provides "This subchapter [subchapter B] 

does not authorize the municipality to require municipal building permits or 

otherwise enforce the municipality's building code in its extraterritorial 

jurisdiction." 

There are several important conclusions to be drawn from this statutory 

scheme: 

9 
1. The separation of subchapters A and B establishes that there is a 

distinction between the regulation of subdivisions and the regulation of 

property development; 

2. The legislature's inclusion of Section 212.049 in subchapter B indicates 

that building permits and building codes fall within the realm of the 

regulation of property development rather than the regulation of 

subdivisions; 

3. The express statutory authority of a municipality to regulate property 

development does not include the authorization to require building 

permits or to enforce building codes in an ETJ; 

Based on these inescapable conclusions, neither subchapter A nor 

subchapter B authorize a municipality to require building permits or enforce 

building codes in an ETJ. This is because subchapter A does not address rules 

relating to property development such as building permits and building codes, and 

subchapter B expressly provides that it does not authorize a municipality to require 

I 

building permits or enforce building codes in an ETJ. 

As set forth above, Lakewood Village is a general law town whose powers 

must be expressly authorized by statute. Because neither subchapter A or 

subchapter B of Texas Local Government Code Chapter 212 provide authority to 

require building permits of enforce building codes in the ETJ, Lakewood Village is 

prohibited from doing so. Thus, Lakewood Village failed to show a probable right 

to the relief sought, and the trial court erred in granting a temporary injunction in 

favor of Lakewood Village. 

10 
D. The Authority on Which Lakewood Village Relies is Inapposite Because 

it is Based on a Different, Repealed Statute and is no Longer Good Law 

Lakewood Village relies on Lucas v. North Texas Municipal Water Dist., 

724 S.W.2d 811, 824 (Tex. App. 1986) for the proposition that the power to 

regulate subdivisions encompasses the power to require building permits and 

enforce building codes. Lakewood Village's reliance on Lucas is misplaced. In 

Lucas, interpreting Texas Revised Civil Statute 970a, the Dallas Court of Appeals 

held "Consequently, we conclude that the power over subdivisions conferred by 

article 970a necessarily or fairly implies a right to issue regulations governing 

construction of housing, buildings, and the components thereof." Id. 

However, the Dallas Court of Appeals has since reversed course on this 

issue. Interpreting the current version of Chapter 212, the Dallas Court of Appeals 

held "A city is statutorily prohibited from regulating land use and construction on 

property in its ETJ; a city may apply only its subdivision ordinances to such 

property." Levy v. City of Piano, 2001 Tex. App. LEXIS 7515 (Tex. App. Dallas 

Nov. 8, 2001)(not designated for publication) (Emphasis added). The Levy court 

properly recognized that the regulation of subdivisions does not encompass the 

regulation of construction on property. Thus, Lucas is no longer good law and does 

not support Lakewood Village's position. 

li 
Furthermore, the statutory scheme set forth in the current version of Chapter 

212 is not the same as existed when Lucas was decided. The Lucas court based its 

holding on the interpretation of Texas Revised Civil Statute 970a, Article 1, 

Section 4 which allowed a city to extend its ordinances establishing rules and 

regulations governing subdivisions and plats into its ETJ.1 However, unlike the 

current version of Chapter 212, there was no separate subchapter relating to the 

regulation of property development. Id. Thus, the Lucas court's holding was based 

on the interpretation of a different statute and is inapplicable to the current version 

of Chapter 212. This explains why the Dallas Court in Levy held that general law 

towns are prohibited from regulating construction on property in an ETJ without 

even citing Lucas. 

Lakewood Village contends that subchapter A provides authority to require 

building permits and enforce building codes in ETJs to all types of municipalities. 

However, if this were true, Tex.Loc.Govt. Code Section 212.049 would be 

meaningless. If Lakewood Village is correct, there would be no reason to state that 

nothing in subchapter B authorizes a municipality to require building permits and 

enforce building codes in the ETJ if subchapter A already authorized all 

municipalities to do so. Rather, section 212.049 means that municipalities that do 

not possess this power cannot use subchapter B as authority to require building 

1 See enrolled version of H.B. 13,58th legislature, 1963 

http://www.lrl.state.tx.us/LASDOCS/58R/HB13/HB13 5 8R.pdiWpagc= 104 
permits or to enforce building codes. Thus, Section 212.049 is a recognition that 

some types of municipalities cannot require building permits and enforce building 

codes in ETJs. 

In addition, Local Government Code Section 212.172 provides that a 

municipality can enter into a written agreement with a land owner to enforce the 

municipality's development regulations in the ETJ. If all municipalities have the 

right to enforce development regulations in the ETJ as a matter of right as 

Lakewood Village contends, there would be no reason for any agreement between 

a municipality and a land owner. Again, Section 212.172 reflects a recognition that 

some types of municipalities cannot require building permits and enforce building 

codes in ETJs. 

Lakewood Village disingenuously argues that through a resolution passed in 

2010, Denton County recognized its right to require building permits and to 

enforce building codes in its ETJ. (CR 200-204). However, Lakewood Village's 

Town Council meeting minutes contradict this argument. On August 11, 2011, the 

Town Secretary informed the Town Council about "Denton County issuing 

building permits in Lakewood Village ETJ and refusing to support the town's 

authority to enforce building permits and inspections on proposed construction." 

(See Tab B attached to Bizios Reply Brief). Contrary to Lakewood Village's 

argument, Denton County does not support Lakewood Village's argument. In any 

13 
event, Lakewood Village provides no authority for the proposition that a county 

can confer powers on a general law town where the legislature has refused to grant 

such powers. 

E. Lakewood Village's admission that it has not adopted Subchapter B is 

fatal to its position 

Recognizing that Section 212.049 is dispositive, Lakewood Village claims that 

it has not adopted subchapter B as required by Section 212.041. Therefore, 

Lakewood Village claims that Section 212.049 is inapplicable. (Appellant's Brief 

at pgs. 26-27). If it is true that Lakewood Village has not adopted subchapter B, 

then it has no power to regulate property development at all. As set forth above, 

subchapter A does not address property development regulations in general or 

building permits or building codes specifically. Lakewood Village could only 

conceivably derive the power to regulate property development from subchapter B. 

Thus, Lakewood Village's admission that it has not adopted subchapter B is fatal 

to its position in this case. In other words, Section 212.049 establishes that building 

permits and building codes fall within the realm of property development which is 

governed by subchapter B. If subchapter B confers no powers on Lakewood 

Village, by necessity, Lakewood Village lacks the power to regulate property 

development, including any regulation of building permits and building codes. 

14 
F. The Trial Court Erred in Finding a Probable Right To Relief 

Because Lakewood Village's Building Permit Fees Constitute 

Unlawful Taxes 

The trial Court's Order Granting Temporary Injunction found that 

Lakewood Village established a probable right to relief on its claim that 

Bizios is required to obtain building permits from the town, including the 

payment of permit fees. (CR 651-653). However, the evidence establishes 

that Lakewood Village's permit fees are far in excess of the cost of 

regulation, and thus, constitute taxes. 

A building permit is simply a license authorizing construction. Trevino 

& Gonzalez Co. v. R.F. Muller Co., 949 S.W.2d 39, 40 (Tex. App.—San 

Antonio 1997, no writ). A license fee cannot be excessive nor more than 

reasonably necessary to cover the costs of granting the license and 

exercising proper police regulation. Ft. Worth v. Gulf Refining Co., 125 Tex. 

512 (Tex. 1935). Courts across the country have analyzed whether building 

permit fees are in fact permissible regulatory fees or prohibited taxes. 

Merrelli v. City of St. Clair Shores, 355 Mich. 575, 96 N.W.2d 144 (Mich. 

1959); Daniels v. Point Pleasant, 23 N.J. 357,129 A.2d 265 (N.J. 1957); Orange 

and Rockland Utilities v. Town of Clarkstown, 80 A.D.2d 846,444 N.Y.S.2d 670 

15 
(1981); Bon Air Estates, Inc. v. Village of S uffern, 32 A.D.2d 921, 302 N.Y.S.2d 

304 (1969); Township of Ridley v. Ridley Arms, Inc., 90 Pa. Commw. 143, 494 

A.2d 870 (Pa. Comwlth. 1985); Raum v. Board of Supers of Tredyffrin 

Township, 29 Pa. Commw. 9, 370 A.2d 777 (Pa. Comwlth. 1977); Colonial 

Oaks West, Inc. v. East Brunswick, 296 A.2d 653, 660 (N.J. 1972). These cases 

hold generally that the amount of the fee may not exceed the cost of issuing 

the permit and of inspecting and regulating the permitted activity and that 

a city does not have a power to impose a tax under the guise of a license or 

permit. Id.; Lodge of Ozarks, Inc. v. Branson, 796 S.W.2d 646 (Mo. Ct. App. 

1990). 

Municipalities are strictly limited in their power to tax by the powers 

granted to them by the Texas Constitution or by statute. Heath v. King, 705 

S.W.2d 812, 814 (Tex. App. Dallas 1986). A general law town has no power 

to tax outside of its corporate limits. Vance v. Pleasanton, 261 S.W. 457, 459 

(Tex. Civ. App. 1924). So if the excessive permit fees constitute taxes, they 

are unlawful. 

In this case, there can be no question that the Town's building permit 

fees constitute prohibited taxes. The total cost to Lakewood Village to have 

16 
building plans reviewed and inspections performed is $1200. (2 RR 144). 

Lakewood Village charged Bizios $1200 in subcontractor fees. (3 RR 19). 

Further, Lakewood Village charged Bizios $14,656.00 in building permit 

fees. (2 RR 92-93). Thus, Lakewood Village realized a $14,656.00 profit from 

the building permit fees for the construction of one home. These fees are 

over 1200% in excess of the Town's inspection and plan review costs. These 

permit fees bear no reasonable relationship to the cost of regulation and 

are, therefore, taxes. See Daniels v. Point Pleasant, 23 N.J. 357, 362 (N.J. 

1957)(holding building permit fees that exceed cost of regulation by 700% 

invalid tax) 

Part of the relief Lakewood Village seeks is the requirement that Bizios 

obtain building permits from the town which includes the payment of its 

excessive permit fees. As the plaintiff, Lakewood Village bore the burden 

of proving that it had a probable right to the relief sought. Sun Oil Co. v. 

Whitaker, 424 S.W.2d 216, 218 (Tex. 1968). Because Lakewood Village's 

building permit fees are unlawful taxes, the trial court erred in finding that 

Lakewood Village established a probable right to relief as to its claim that 

Bizios is required to pay impermissibly excessive permit fees. 

17 
CONCLUSION AND PRAYER 

Lakewood Village has no power to require building permits or to 

enforce building codes in its ETJ because there is no statutory authority 

granting these powers. Further, Lakewood Village's building permit fees 

constitute taxes which cannot be imposed outside the town limits. 

Accordingly, the trial court erred in granting the temporary injunction. 

Amicus Curiae prays that the Court reverse the trial court's Order Granting 

Temporary Injunction, and that this case be remanded for further 

proceedings consistent with this Court's opinion. 

Respectfully Submitted, 

/s/Frank G. Cawlev 

FRANK G. CAWLEY 

State Bar No. 24006978 

WHITEHURST & CAWLEY, L.L.P. 

4560 Belt Line Rd., Suite 202 

Addison, Texas 75001 

(972)503-5455 

(972) 503-6155 - Facsimile 

Counsel for Amicus Curiae 

18 
CERTIFICATE OF SERVICE 

The undersigned hereby certifies that a true and correct copy of the 

foregoing document was forwarded to the following counsel of record and 

unrepresented parties via certified mail, return receipt requested, pursuant to the 

Texas Rule of Appellate Procedure 9.5 on the 26th day of September, 2014: 

The Honorable Jonathan Bailey 

431st Judicial District Court 

Denton County Courts Building 

1450 East McKinney Street 

Denton, Texas 76209 

Andrew Messer 

Messer, Rockefeller & Fort, PLLC 

6351 Preston Road, Suite 350 

Frisco, Texas 75034 

Arthur J. Anderson 

Winstead, PC 

500 Winstead Building 

2728 N. Harwood Street 

Dallas, Texas 75201 

/s/Frank G. Cawlev 

Frank G. Cawley 

19 
CERTIFICATE OF COMPLIANCE 

As required by Texas Rule of Appellate Procedure 9.4(i)(3), I certifythat there is a total of 4,759 words in the foregoing computer-generated 

document. Counsel is relying on a computer generated word count. 

/ s/Frank G. Cawley 

Frank G. Cawley 

20 
Division 51-4.400. 

Yard, Lot, and Space Regulations. 

SEC. 51-4.401. MINIMUM FRONT YARD. 

(a) General provisions. 

(1) Required front yards must be open and unobstructed except for 

fences. Except as otherwise provided in this section, ordinary projections of window sills, 

belt courses, cornices, and other architectural features may not project more than 12 

inches into the required front yard. A fireplace chimney may project up to two feet into 

the required front yard if its area of projection does not exceed 12 square feet. 

Cantilevered roof eaves and balconies may project up to five feet into the required front 

yard. 

(2) The front yard setback is measured from the front lot line of the 

building site or the required right-of-way as determined by the thoroughfare plan for all 

thoroughfares, whichever creates the greater setback. On minor streets, the front yard 

setback is measured from the front lot line of the building site or the existing right-ofway, whichever creates the greater setback. When the city council by ordinance 

establishes a specific right-of-way line for a street, the front yard setback is measured 

from that right-of-way line. 

(3) If a building line that is established by ordinance requires a greater 

or lesser front yard than prescribed by Section 51-4.410, the building line established by 

ordinance determines the minimum required front yard. 

(4) Reserved. 

(5) If a lot runs from one street to another and has double frontage, a 

required front yard must be provided on both streets. If access is prohibited on one 

frontage by plat or by the city, the following structures or portions of structures in the 

yard along that frontage are governed by the rear yard regulations in Section 51-4.403: 

(A) Swimming pools. 

(B) Game courts. 

(C) Fences. 

(D) Garages. 

(E) Accessory storage buildings. 

212 
(6) If street frontage within a block is divided by two or more zoning 

districts, the front yard for the entire block must comply with the requirements of the 

district with the greatest front yard requirement. 

(7) If a building is erected or altered to exceed 36 feet in height, and if 

the building site is either perpendicularly contiguous to or perpendicularly across an 

adjoining street from an R, R(A), D, D(A), TH, TH(A), or CH district, an additional 

setback must be provided that is equal to twice the height of that portion of the building 

that exceeds 36 feet. The additional setback is only required for that portion of a building 

that exceeds 36 feet in height. 

(8) The minimum front yard requirements in a planned development 

district are controlled by the planned development district regulations. 

(9) In a multiple-family, MH, A, office, commercial, central area, or 

industrial district, the board of adjustment may allow a special exception from the front 

yard requirements of Section 51-4.410 to permit the erection of a permanently 

constructed porte-cochere, covered walkway, or canopy if the structure is rectilinear in 

shape and does not exceed 25 feet in width at the building line, and if the board finds that 

the structure will not adversely affect neighboring property. 

(b) Front yard provisions for residential districts. 

(1) If a corner lot in a single-family, duplex, or agricultural district has 

two street frontages of equal distance, one frontage is governed by the front yard 

regulations of this section, and the other frontage is governed by the side yard regulations 

in Section 51-4.402. If the corner lot has two street frontages of unequal distance, the 

shorter frontage is governed by this section, and the longer frontage is governed by the 

side yard regulations in Section 51-4.402. Notwithstanding this provision, the continuity 

of the established setback along street frontage must be maintained. 

(2) In a residential district, if a structure specified in Section 51-

4.408(a)(1) is erected or altered to exceed the maximum height allowed in Section 51­

4.410, an additional setback must be provided that is equal to one-half the height of that 

portion of the building that exceeds 36 feet, up to a maximum total setback of 50 feet. 

The additional setback is only required for that portion of a building that exceeds 36 feet 

in height. In case of conflict between Subsection (a)(7) and this provision, Subsection 

(a)(7) applies. 

(3) If a TH district abuts another residential district, as defined both in 

this chapter and in Chapter 51 A, in the same block and fronts on the same side of the 

street, the residential district with the greater front yard requirement determines the 

minimum front yard. The minimum front yard for the residential district with the greater 

front yard requirement must extend at least 150 feet into the TH district. 

213 
(4) In a manufactured home district, a manufactured home may not be 

located closer than 20 feet to a public street right-of-way or a private drive used for 

access, circulation, or service to a lot or stand where a manufactured home is located. 

(5) Reserved. 

(6) Reserved. 

(7) In MF-3 and MF-4 districts, if a building is erected or altered to 

exceed 36 feet in height, an additional setback must be provided that is equal to one-half 

the height of that portion of the building that exceeds 36 feet, up to a maximum total 

setback of 50 feet. The additional setback is only required for that portion of a building 

that exceeds 36 feet in height. In case of conflict between Subsection (a)(7) and this 

provision, Subsection (a)(7) applies. 

(c) Front yard provisions for nonresidential districts. 

(1) In a nonresidential district, if a building is erected or altered to 

exceed 36 feet in height and if the building site is either perpendicularly contiguous to or 

perpendicularly across an adjoining street from a MF-1, MF-l(A), MF-2, or MF-2(A) 

district, an additional setback must be provided that is equal to one-half the height of that 

portion of the building that exceeds 36 feet, up to a maximum total setback of 50 feet. 

The additional setback is only required for that portion of a building that exceeds 36 feet 

in height. 

(2) Reserved. 

(3) In the CA-l-CP and CA-l-SP districts, a 10-foot setback is 

required that is measured from the street curb as established by the Dallas Central 

Business District Streets and Vehicular Circulation Plan, Ordinance No. 13262, as 

amended. When an owner establishes a setback on his property greater than the 10-foot 

requirement, a floor area bonus of six times the additional setback area is allowed. The 

maximum permitted floor area ratio with a bonus is 24 to one. 

(4) In a CA-1 district, a sidewalk must be provided between the back 

of the street curb and the face of a building at grade in accordance with this subsection. 

The face of a building is behind the columns for a building with exterior columns. 

(A) Average sidewalk width equals the total sidewalk surface 

area divided by the lineal feet of frontage. 

(i) Each frontage on each block must contain the 

required average sidewalk width. 

(ii) The computation of average sidewalk width 

excludes the area occupied by structural walls or columns. 

214 
(iii) In computing average sidewalk width, the surface 

area at the corner is counted only once. 

(B) In a CA-l-CP district, sidewalks must be constructed and 

maintained in accordance with the following regulations. 

(i) An average sidewalk width of 18 feet is required. 

(ii) A minimum sidewalk width of 12 feet that is 

unobstructed by any structure or planting is required. The 12-foot minimum sidewalk 

width may be divided into seven- and five-foot minimum segments. 

(C) In a CA-l-SP district, sidewalks must be constructed and 

maintained in accordance with the following regulations. 

(i) A building with a floor area ratio of more than 15 to 

one is subject to the requirements of the CA-l-CP district in Subsection (c)(4)(B). 

(ii) A building with a floor area ratio of 15 to one or 

less must have an average sidewalk width of 15 feet and a minimum sidewalk width of 

nine feet that is unobstructed by any structure or planting. 

(D) In a CA-1 district without a CP or SP overlay district 

designation, sidewalks must be constructed and maintained in accordance with the 

following regulations: 

(i) A building with a floor area ratio of more than 15 to 

one is subject to the requirements of the CA-l-CP district in Subsection (c)(4)(B). 

(ii) A building with a floor area ratio of 10 to one 

through 15 to one must have an average sidewalk width of 15 feet and a minimum 

sidewalk width of nine feet that is unobstructed by any structure. 

(iii) All other buildings must provide a minimum 

sidewalk width of 10 feet with seven feet unobstructed by any structure or planting. 

(d) Special exception for tree preservation. 

(1) The board may grant a special exception to the minimum front 

yard requirements in this section to preserve an existing tree. 

(2) In determining whether to grant this special exception, the board 

shall consider the following factors: 

(A) Whether the requested special exception is compatible with 

the character of the neighborhood. 

215 
(B) Whether the value of surrounding properties will be 

adversely affected. 

(C) Whether the tree is worthy of preservation. 

(e) Schedule of minimum front yards. 

(1) Except as provided in this section, a person shall not erect, alter, 

convert, or maintain a structure or part of a structure in violation of the minimum front 

yard requirements of Section 51-4.410. (Ord. Nos. 16959; 17044; 17442; 17445; 17859; 

19060;19455;20236;20360;22053; 26531) 

SEC. 51-4.402. MINIMUM SIDE YARD. 

(a) General provisions. 

(1) Required side yards must be open and unobstructed except for 

fences. Except as otherwise provided in this section, ordinary projections of window sills, 

belt courses, cornices, and other architectural features may not project more than 12 

inches into the required side yard. A fireplace chimney may project up to two feet into 

the required side yard if its area of projection does not exceed 12 square feet. Roof eaves 

may project up to three feet into the required side yard. Balconies may not project into 

the required side yard. 

(2) The side yard setback is measured from the side lot line of the 

building site, except when a front yard is treated as a side yard, the setback is measured 

from the lot line or the existing right-of-way, as determined by the thoroughfare plan, for 

all thoroughfares except for minor streets, whichever creates the greater setback. On 

minor streets, the setback is measured from the lot line or the existing right-of-way, 

whichever creates the greater setback. 

(A) When city council by ordinance establishes a specific rightof-way line for a street, the required setback is measured from that right-of-way line. 

(3) If a building is erected or altered to exceed 36 feet in height and 

the building site is either perpendicularly contiguous to or, if a front yard is treated as a 

side yard, perpendicularly across an adjoining street or alley from an R, R(A), D, D(A), 

TH, TH(A), or CH district, an additional setback must be provided that is equal to twice 

the total height of the building. The additional setback is only required for that portion of 

a building that exceeds 36 feet in height. 

(4) A unitary air conditioning unit which has a standard sound rating 

number (SRN) designation of 20 or less according to the Air Conditioning and 

Refrigeration Institute may be located in the required side yard, but not nearer than three 

feet to the property line as follows: 

216 
(A) no more than three units with a SRN designation of 18 or 

less with a minimum separation of 10 feet between units; 

(B) no more than two units with a SRN designation of 19 or 

less with a minimum separation of 10 feet between units; or 

(C) no more than one unit with a SRN designation of 20. 

(5) The minimum side yard requirements in a planned development 

district are controlled by the planned development district regulations. 

(b) Side yard provisions for residential districts. 

(1) In a single-family district, one required side yard may be reduced 

below the setback required in Section 51-4.410, if the other side yard is increased to at 

least double the side yard required in Section 51-4.410, subject to the following 

conditions: 

(A) The minimum side yard between structures on contiguous 

lots must not be less than the minimum side yard required in Section 51-4.410. 

(B) To reduce the required side yard, a subdivision plat must be 

approved by the commission and filed with the county clerk showing the location of all 

building lines, and showing the proposed distances between the building lines and 

property lines, streets lines, and alley lines. 

(C) A person may not erect an accessory structure except for a 

swimming pool and its appurtenances in the double side yard. 

(2) In a residential district, if a structure specified in Section 51-

4.408(a)(1) is erected or altered to exceed the maximum height allowed in Section 51­

4.410, an additional setback must be provided that is equal to one-half the height of that 

portion of the building that exceeds 36 feet, up to a maximum total setback of 50 feet. 

The additional setback is only required for that portion of a building that exceeds 36 feet 

in height. In case of conflict between Subsection (a)(3) and this provision, Subsection 

(a)(3) applies. 

(3) In a residential district, a person need not provide a side yard 

setback for a structure accessory to a residential use if the structure: 

(A) does not exceed 15 feet in height; and 

(B) is located in the rear 30 percent of the lot. 

Note: This paragraph does not apply to a front yard governed by the side yard regulations 

in Section 51-4.402 (such as a front yard treated as a side yard on a corner lot). 

217 
(4) In a TH, multiple-family, O-l, 0-2, commercial, or central area 

district, a minimum of 15 feet between each group of eight single-family structures must 

be provided by plat. 

(5) If a TH district abuts a district that requires a greater side yard, the 

side yard requirements of the more restrictive district apply to the abutting side yard in 

the TH district. 

(6) In a manufactured home district, no person may locate a 

manufactured home nearer than 10 feet to the side line of any lot or stand, and the 

minimum space between adjacent manufactured homes must be 20 feet. 

(7) In an MF-3 or MF-4 district, if a building is erected or altered to 

exceed 36 feet in height, an additional setback must be provided that is equal to one-half 

of the total height of the building, up to a maximum setback of 50 feet. In providing the 

additional setback, one side yard may be reduced up to 20 percent from the dimension 

required, if the other side yard setback is increased by a distance equal to the reduction. 

The additional setback is only required for that portion of a building that exceeds 36 feet 

in height. In case of conflict between Subsection (a)(3) and this provision, Subsection 

(a)(3) applies. 

(c) Side yard provisions for nonresidential districts. 

(1) In a nonresidential district, if a building is erected or altered to 

exceed 36 feet in height and the building site is either perpendicularly contiguous to or, if 

a front yard is treated as side yard, perpendicularly across an adjoining street or alley 

from an MF-1, MF-l(A), MF-2, or MF-2(A) district, an additional setback must be 

provided that is equal to one-half the total height of the building, up to a maximum total 

setback of 50 feet. The additional setback is only required for that portion of a building 

that exceeds 36 feet in height. 

(2) Reserved. 

(3) In an SC district, if a building site is adjacent to an R, R(A), D, 

D(A), TH, TH(A), or CH district, a minimum side yard of 20 feet must be provided. 

(4) In an SC district, a minimum side yard of 20 feet must be provided 

for the side yard of a building site with a nonresidential use that abuts a residential 

district, as defined both in this chapter and in Chapter 51 A, and that side yard must 

comply with Subsections (a)(3) and (c)(1). 

(5) In an LC, HC, 1-2, or 1-3 district, a minimum side yard of 10 feet 

must be provided for the side yard of a building site with a nonresidential use that abuts a 

residential district, as defined both in this chapter and in Chapter 51 A, and that side yard 

must comply with Subsections (a)(3) and (c)(1). 

218 
(6) In an 0-1 district, one side yard may be reduced to zero if the other 

side yard is increased to a minimum of 15 feet. When an O-l district abuts a residential 

district, as defined both in this chapter and in Chapter 51 A, the side yards abutting the 

residential district must be: 

(A) a minimum of 10 feet, if two side yards are provided; or 

(B) a minimum of 15 feet, if only one side yard is provided. 

(7) In an 0-2, LO, MO, or GO district, if a nonresidential building is 

erected or altered to exceed 36 feet in height, an additional setback must be provided that 

is equal to one-half the total height of the building, up to a maximum total setback of 50 

feet. The additional setback is only required for that portion of a building that exceeds 36 

feet in height. In case of a conflict between this provision and Subsections (a)(3) and 

(c)(1), Subsections (a)(3) and (c)(1) apply. 

(8) In an NS or GR district, a minimum setback of 20 feet must be 

provided for that portion of a side yard of a building site with a nonresidential use which 

abuts or is directly across an alley from: 

(A) an R, R(A), D, D(A), TH, TH(A), or CH district; or 

(B) that portion of a planned development district restricted to 

single-family and/or duplex uses. 

(9) In an NS or GR district, a minimum setback of 10 feet must be 

provided for that portion of a side yard of a building site with a nonresidential use which 

abuts or is directly across an alley from: 

(A) an R, R(A), D, D(A), TH, TH(A), or CH district; or 

(B) that portion of a planned development district restricted to 

multiple-family and/or manufactured home uses. 

(10) The minimum side yards required under Subsections (c)(8) and 

(c)(9) must also comply with Subsections (a)(3) and (c)(1). 

(11) In an NO, LO, MO, or GO district, a minimum setback of 20 feet 

must be provided for that portion of a side yard of a building site which abuts or is 

directly across an alley from: 

(A) an R, R(A), D, D(A), TH, TH(A), or CH district; or 

(B) that portion of a planned development district restricted to 

single-family and/or duplex uses. 

219 
(12) In an NO, LO, MO, or GO district, a minimum setback of 10 feet 

must be provided for that portion of a side yard of a building site which abuts or is 

directly across an alley from: 

(A) an A, A(A), MF, MF(A), MH, or MH(A) district; or 

(B) that portion of a planned development district restricted to 

multiple-family and/or manufactured home uses. 

(13) The minimum side yards required under Subsections (c)(ll) and 

(c)(12) must also comply with Subsections (a)(3) and (c)(1). 

(14) In an NO, LO, MO, or GO district, garbage collection and 

mechanical equipment areas may not be located closer than 20 feet to the nearest building 

site in an R, R(A), D, D(A), TH, TH(A), or CH district, or that portion of a planned 

development district restricted to single-family and/or duplex uses. 

(d) Special exception for tree preservation. 

(1) The board may grant a special exception to the minimum side yard 

requirements in this section to preserve an existing tree. 

(2) In determining whether to grant this special exception, the board 

shall consider the following factors: 

(A) Whether the requested special exception is compatible with 

the character of the neighborhood. 

(B) Whether the value of surrounding properties will be 

adversely affected. 

(C) Whether the tree is worthy of preservation. 

(e) Schedule of minimum side yards. 

(1) Except as provided in this section, a person shall not erect, alter, 

convert, or maintain a structure or part of a structure in violation of the minimum side 

yard requirements of Section 51-4.410. (Ord. Nos. 17442; 17859; 18597; 18849; 19060; 

19455; 20236; 20360;22053) 

SEC. 51-4.403. MINIMUM REAR YARD. 

(a) General provisions. 

220 
(1) Required rear yards must be open and unobstructed except for 

fences. Except as otherwise provided in this section, ordinary projections of window sills, 

belt courses, cornices, and other architectural features may not project more than 12 

inches into the required rear yard. A fireplace chimney may project up to two feet into the 

required rear yard if its area of projection does not exceed 12 square feet. Roof eaves may 

project up to three feet into the required rear yard. Balconies may not project into the 

required rear yard. 

(2) The rear yard setback is measured from the rear lot line of the 

building site. 

(3) If a building is erected or altered to exceed 36 feet in height and 

the building site is either perpendicularly contiguous to or perpendicularly across from an 

adjoining alley from an R, R(A), D, D(A), TH, TH(A), or CH district, an additional 

setback must be provided that is equal to twice the total height of the building. The 

additional setback is only required for that portion of a building that exceeds 36 feet in 

height. 

(4) The minimum rear yard requirements in a planned development 

district are controlled by the planned development district regulations. 

(b) Rear yard provisions for residential districts. 

(1) In a residential district, if a structure specified in Section 51-

4.408(a)(1) is erected or altered to exceed the maximum height allowed in Section 51­

4.410, an additional setback must be provided that is equal to one-half the height of that 

portion of the building that exceeds 36 feet, up to a maximum total setback of 50 feet. 

The additional setback is only required for that portion of a building that exceeds 36 feet 

in height. In case of a conflict between Subsection (a)(3) and this provision, Subsection 

(a)(3) applies. 

(2) In a residential district, a person need not provide a rear yard 

setback for a structure accessory to a residential use if: 

(A) the structure does not exceed 15 feet in height; and 

(B) the rear yard is not adjacent to an alley. 

(3) In an MF-3 or MF-4 district, if a building is erected or altered to 

exceed 36 feet in height, an additional setback must be provided that is equal to one-half 

of the total height of the building, up to a maximum total setback of 50 feet. In providing 

the additional setback, the rear yard may be reduced up to 20 percent from the dimension 

required if the front yard is increased a distance equal to the reduction. The additional 

setback is only required for that portion of a building that exceeds 36 feet in height. In 

case of a conflict between Subsection (a)(3) and this provision, Subsection (a)(3) applies. 

221 
(4) In an MF-1 or MF-2 district, a minimum rear yard of 10 feet may 

be provided when a building site backs upon an MF, MF(A), or nonresidential district, as 

defined both in this chapter and in Chapter 51 A, whether the two districts are separated 

by an alley or not. The rear yard is subject to Subsection (a)(3). 

(c) Rear yard provisions for nonresidential districts. 

(1) In a nonresidential district, if a building is erected or altered to 

exceed 36 feet in height and the building site is either perpendicularly contiguous to or 

perpendicularly across from an adjoining alley from an MF-1, MF-l(A), MF-2, or MF2(A) district, an additional setback must be provided that is equal to one-half of the total 

height of the building, up to a maximum total setback of 50 feet. The additional setback is 

only required for that portion of a building that exceeds 36 feet in height. 

(2) Reserved. 

(3) In an 0-2, LO, MO, or GO district, if a nonresidential building is 

erected or altered to exceed 36 feet in height, an additional setback must be provided that 

is equal to one-half the total height of the building, up to a maximum total setback of 50 

feet. The additional setback is only required for that portion of a building that exceeds 36 

feet in height. In case of a conflict between this provision and Subsections (a)(3) and 

(c)(1), Subsections (a)(3) and (c)(1) apply. 

(4) In an SC district, a minimum rear yard of 20 feet must be provided 

when a building site with a nonresidential use backs upon a residential district, as defined 

both in this chapter and in Chapter 51 A, whether the two districts are separated by an 

alley or not. The rear yard is subject to Subsections (a)(3) and (c)(1). 

(5) In an NS, GR, LC, HC, or industrial district, a minimum rear yard 

of 10 feet must be provided when a building site with a nonresidential use backs upon a 

residential district, as defined both in this chapter and in Chapter 51 A, whether the two 

districts are separated by an alley or not. The rear yard is subject to Subsections (a)(3) 

and (c)(1). 

(6) In an NS or GR district, a minimum setback of 20 feet must be 

provided for that portion of the rear yard of a building site with a nonresidential use 

which abuts or is directly across an alley from: 

(A) an R, R(A), D, D(A), TH, TH(A), or CH district; or 

(B) that portion of a planned development district restricted to 

single-family and/or duplex uses. 

(7) In an NS or GR district, a minimum setback of 10 feet must be 

provided for that portion of the rear yard of a building site with a nonresidential use 

which abuts or is directly across an alley from: 

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(A) an A, A(A), MF, MF(A), MH, or MH(A) district; or 

(B) that portion of a planned development district restricted to 

multiple-family and/or manufactured home uses. 

(8) The minimum rear yards required under Subsections (c)(6) and 

(c)(7) must also comply with Subsections (a)(3) and (c)(1). 

(9) In an NO, LO, MO, or GO district, a minimum setback of 20 feet 

must be provided for that portion of the rear yard of a building site which abuts or is 

directly across an alley from: 

(A) an R, R(A), D, D(A), TH, TH(A), or CH district; or 

(B) that portion of a planned development district restricted to 

single-family and/or duplex uses. 

(10) In an NO, LO, MO, or GO district, a minimum setback of 10 feet 

must be provided for that portion of the rear yard of a building site which abuts or is 

directly across an alley from: 

(A) an A, A(A), MF, MF(A), MH, or MH(A) district; or 

(B) that portion of a planned development district restricted to 

multiple-family and/or manufactured home uses. 

(11) The minimum rear yards required under Subsections (c)(9) and 

(c)(10) must also comply with Subsections (a)(3) and (c)(1). 

(12) In an NO, LO, MO, or GO district, garbage collection and 

mechanical equipment areas may not be located closer than 20 feet to the nearest building 

site in an R, R(A), D, D(A), TH, TH(A), or CH district, or that portion of a planned 

development district restricted to single-family and/or duplex uses. 

(d) Special exception for tree preservation. 

(1) The board may grant a special exception to the minimum rear yard 

requirements in this section to preserve an existing tree. 

(2) In determining whether to grant this special exception, the board 

shall consider the following factors: 

(A) Whether the requested special exception is compatible with 

the character of the neighborhood. 

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(B) Whether the value of surrounding properties will be 

adversely affected. 

(C) Whether the tree is worthy of preservation. 

(e) Schedule of minimum rear yards. 

(1) Except as provided in this section, a person shall not erect, alter, 

convert, or maintain a structure or part of a structure in violation of the minimum rear 

yard requirements of Section 51-4.410. (Ord. Nos. 17859; 18143; 18597; 18849; 19060; 

19455; 20236;20360;22053) 

SEC. 51-4.404. MINIMUM LOT AREA FOR RESIDENTIAL USE. 

(a) General provisions. 

(1) A person shall not reduce a lot below the minimum area 

requirements of this section, unless: 

(A) the lot is replatted for a community unit development; or 

(B) the city or other governmental agency reduces the lot size 

by widening an abutting street. In this situation the minimum lot area is computed on the 

basis of the original lot size before the street widening. 

(2) The area requirements in a planned development district are 

controlled by the planned development district regulations. 

(b) Lot area provisions for manufactured home districts. 

(1) In a MH district, a manufactured home must have the following 

minimum lot area: 

(A) 1,500 square feet for a manufactured home on a transient 

stand; or 

(B) 4,000 square feet for a manufactured home on a subdivided 

lot. 

(c) Schedule of minimum yard area for residential use. 

(1) Except as provided in this section, a person shall not erect, alter, or 

convert any residential structure or part of a structure to have a smaller lot area than is 

allowed in the minimum regulations of Section 51-4.410. (Ord. Nos. 18597; 20360) 

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SEC. 51-4.405. MINIMUM LOT WIDTH FOR RESIDENTIAL USE. 

(a) General provisions. 

(1) A person may not reduce a lot below the minimum width 

requirements of this section, unless: 

(A) the lot is platted for a community unit development; or 

(B) the city or other governmental agency reduces the lot size 

by widening an abutting street. In this situation the minimum lot width is computed on 

the basis of the original lot size before widening. 

(2) The lot width requirements in a planned development district are 

controlled by the planned development district regulations. 

(3) The minimum lot width for a residential use is 10 feet, unless a 

larger minimum lot width is specified in Section 51-4.410. 

(b) Lot width provisions for MH districts. In an MH district, a manufactured 

home must have the following minimum lot width: 

(1) 30 feet for a manufactured home on a transient stand; or 

(2) 40 feet for a manufactured home on a subdivided lot. 

(c) Schedule of minimum lot width for residential use. Except as provided in 

this section, a person shall not erect, alter, or convert any residential structure or part of a 

structure to have a smaller lot width than is allowed in the larger of the lot width required 

in this section or the lot width required by the minimum regulations of Section 51-4.410. 

(Ord. Nos. 20360; 24731) 

I 

SEC. 51-4.406. MINIMUM LOT DEPTH FOR RESIDENTIAL USE. 

(a) General provisions. 

(1) A person may not reduce a lot below the minimum depth 

requirements of this section, unless: 

(A) the lot is platted for a community unit development; or 

(B) the city or other governmental agency reduces the lot size 

by widening an abutting street. In this situation the minimum lot depth is computed by 

the original lot size before the street widening. 

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(2) The depth requirements in a planned development district are 

controlled by the planned development district regulations. 

(3) The minimum lot depth for a residential use is 10 feet, unless a 

larger minimum lot depth is specified in Section 51-4.401. 

(b) Lot depth provisions for MH districts. In an MH district, a manufactured 

home must have the following minimum lot depth: 

(1) 50 feet for a manufactured home on a transient stand; or 

(2) 80 feet for a manufactured home on a subdivided lot. 

(c) Schedule of minimum lot depth for residential use. Except as provided in 

this section, a person shall not erect, alter, or convert any residential structure or part of a 

structure to have a smaller lot depth than is allowed in the larger of this section or the 

minimum regulations of Section 51-4.410. (Ord. Nos. 20360; 24731) 

SEC. 51-4.407. MAXIMUM LOT COVERAGE. 

(a) General provisions. 

(1) In a residential, office, NS, SC, GR, or LC district, institutional 

buildings may cover a maximum of 60 percent of the lot. 

(2) Reserved. 

(3) The maximum lot coverage requirements in a planned 

development district are controlled by the planned development district regulations. 

(4) The board may grant a special exception to increase the lot 

coverage on a building site in an NO, LO, MO, or GO district by no more than 10 percent 

if: 

(A) the building site is more than 100 feet from an R, R(A), D, 

D(A), TH, TH(A), or CH district, or that portion of a planned development district 

restricted to single-family and/or duplex uses; 

(B) the increase will not adversely affect neighboring property; 

and 

(C) the building site is landscaped in accordance with a 

landscape plan submitted to and approved by the board. The board may also impose 

appropriate facade standards for off-street parking structures on the building site as a 

condition to the granting of this special exception. 

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(b) Maximum lot coverage for residential districts. 

(1) In a TH district, 80 percent of an individual lot may be covered by 

structures, if the coverage for the total project does not exceed 60 percent and at least 40 

percent is reserved for open space. 

(c) Schedule of maximum lot coverage. 

(1) Except as provided in this section, a person shall not erect, alter, or 

convert any structure or part of a structure to cover a greater percentage of a lot than is 

allowed in Section 51-4.410. (Ord. Nos. 17812; 18849; 19455; 27404) 

SEC. 51-4.408. MAXIMUM BUILDING HEIGHT. 

(a) Special height provisions. 

(1) Structures for utility and public service uses and institutional uses 

may be erected to any height consistent with the Federal Aviation Administration air 

space limitations, airport flight overlay district regulations, and the building code, if 

setbacks are provided as required by Sections 51-4.401, 51-4.402, and 51-4.403. 

However, local utility transmission and distribution lines and supporting structures, and, 

as specified in this paragraph, mounted cellular antennae are exempt from the setbacks 

required by Sections 51-4.401, 51-4.402, and 51-4.403. A mounted cellular antenna, as 

defined in Section 51-4.202(12), attached to a utility structure is exempt from the 

setbacks required by Sections 51-4.401, 51-4.402, and 51-4.403 if the utility structure is 

greater than 65 feet in height. For purposes of this subparagraph, a utility structure means 

an electrical transmission distribution tower, an elevated water storage tank, and any 

other structure operated by a municipality, a transit authority, or a certificated, franchised, 

or licensed utility company in connection with provision of the utility. 

(2) In a district in which building height is limited to 36 feet or less, 

the following structures may project a maximum of 12 feet above the height specified in 

Section 51-4.410: 

(A) structures on top of a building: 

(i) elevator penthouse or bulkhead; 

(ii) mechanical equipment room; 

(iii) cooling tower; 

(iv) tank designed to hold liquids; 

(v) ornamental cupola or dome; 

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mechanical equipment; 

(vi) skylights; 

(vii) clerestory; 

(viii) visual screens which surround roof mounted 

(ix) chimney and vent stacks; 

(x) amateur communications tower; and 

(xi) parapet wall, limited to a height of four feet; and 

(B) structures at grade level: 

(i) amateur communications tower. 

(3) The maximum building height requirements in a planned 

development district are controlled by the planned development district regulations. The 

maximum permitted height in a matrix district is established by the city council at the 

time the district is created. 

(4) In single-family, duplex, townhouse, MF-1, and MF-2 districts: 

(A) no dormer eaves may project above the height specified in 

Section 51-4.410; and 

(B) the highest point of a structure with a gable, hip, gambrel, 

or dome roof may not project more than 12 feet above the height specified in Section 51­

4.410. (See illustrations in Figure 1.) 

' 228 
FIGURE 1 

ILLUSTRATION OF 

SECTION 51-4.408(a)(4) 

de = dormer eaves, 

e = the lowest eaves of the structure. 

g = grade (the average of the finished ground surface elevations measured at 

the highest and lowest exterior corners of the structure) 

g

1 = the lowest finished ground surface elevation at an exterior corner of the 

structure. 

g

2 = the highest finished ground surface elevation at an exterior corner of the 

structure. 

h

1 = the vertical distance measured from grade to the midpoint of the vertical 

dimension between the lowest eaves and the highest ridge of the structure. 

h

2 = the vertical distance measured from grade to the highest point of the 

structure. 

r = the highest ridge and the highest point of the structure, 

s = a sloping ground surface. 

229 
The height specified in Section 51-4.410 plus 12 feet is the maximum permitted vertical 

distance measured from grade to the highest point of the structure. 

Dormer eaves may not project above the height specified in Section 51-4.410. (Ord. 

18481) 

230 
(5) In an SC district, the following additional height regulations apply: 

(A) The maximum building height in an SC district is 120 feet 

unless the SC district boundary line does not touch at any point the boundary line of a 

zoning district in which building height is limited to less than 240 feet, in which case the 

maximum building height in the SC district is 240 feet. 

(B) All portions of a building within 330 feet of private 

property in an R, R(A), D, D(A), TH, TH(A), or CH district, or within 330 feet of that 

portion of a planned development district restricted to single-family and/or duplex uses, 

are limited to 60 feet in height. The distance measured is the shortest distance between 

the building and the private property. 

(C) For purposes of this subsection, "private property" means 

any property not dedicated to public use, except that "private property" does not include: 

(i) a private street or alley; 

(ii) property on which a utility and service use, as 

defined in Section 51-4.202, is being conducted as a main use; and 

(iii) a railroad right-of-way. 

(6) In an NO, LO, MO, or GO district in which building height is 

limited to 35 feet or less, the structures in Subsection (a)(2) may project a maximum of 

four feet above the maximum permitted height established for the district by the city 

council. 

(b) Schedule of maximum building heights. 

(1) Except as provided in this section, a person shall not erect, alter, or 

convert any structure or part of a structure to exceed the maximum height standards in 

Section 51-4.410. (Ord.Nos. 18481; 18597; 18849; 19455; 21000; 27404) 

SEC. 51-4.409. MAXIMUM FLOOR AREA RATIO. 

(a) General provisions. 

(1) Reserved. 

(2) A basement is not counted in the computation of floor area ratio. 

(3) The maximum floor area ratio requirements in a planned 

development district are controlled by the planned development district regulations. The 

231 
maximum floor area ratio in a matrix district is established by the city council at the time 

the district is created. 

(4) Reserved. 

(5) The maximum floor area ratio in the CA-l-CP and CA-l-SP 

districts may be increased to 24 to 1 by the use of the building setback bonus provisions 

in the front yard regulations. 

(6) In an SC district, the maximum floor area ratio for office uses, as 

defined in Section 51-4.210(1), is .75 to 1, and the maximum floor area ratio for all uses 

combined is 1 to 1. 

(7) In an 1-2 district, a specific use permit is required to authorize a 

floor area ratio greater than 4:1. 

(b) Schedule of maximum floor area ratio. 

(1) Except as provided in this section, a person shall not erect or alter 

any structure or part of a structure to exceed the maximum floor area ratio in Section 51­

4.410. (Ord.Nos. 16959; 18597; 18849; 18920; 20361) 

SEC. 51-4.410. SCHEDULE OF YARD, LOT, AND SPACE 

REGULATIONS. 

The following charts comprise the schedule of yard, lot, and space regulations for 

purposes of this division. (Ord. 18920) 

YARD. LOT. AND SPACE CHART 

SEC. 51-4.411. MAXIMUM DENSITIES FOR RESIDENTIAL USES. 

(a) Density provisions for residential districts. 

(1) In a TH-1 district, no more than six dwelling units for each acre are 

allowed. 

(2) In a TH-2 district, no more than nine dwelling units for each acre 

are allowed. 

(3) In a TH-3 district, no more than 12 dwelling units for each acre are 

allowed. 

232 
allowed. 

(4) In a TH-4 district, no more than 15 dwelling units for each acre are 

(b) Density provisions for nonresidential districts. 

(1) In an SC district, no more than 15 dwelling units for each acre are 

allowed. 

(2) In an NS district that abuts an R, R(A), D, D(A), TH, TH(A), or 

CH district, or that abuts that portion of a planned development district restricted to 

single-family and/or duplex uses, no more than 15 dwelling units for each acre are 

allowed. (Ord. Nos. 18597; 19455) 

SEC. 51-4.412. SHARED ACCESS DEVELOPMENT. 

This section incorporates by reference the language of Section 51A-4.411 of 

Chapter 51 A, "DALLAS DEVELOPMENT CODE: ORDINANCE NO. 19455," of the 

Dallas City Code, as that section exists today and as it may be amended in the future. 

(Ord. 24731) 

233