CHAPTER 4 MUNICIPAL REGULATORY AUTHORITY VIS-A-VIS MINERAL DEVELOPMENT IN TEXAS

• Jurisdiction: United States

Development Issues and Conflicts in Modern Gas and Oil Plays
(Nov 2004)
CHAPTER 4
MUNICIPAL REGULATORY AUTHORITY VIS-A-VIS MINERAL DEVELOPMENT IN TEXAS
E. Allen Taylor, Jr.
Bryn Meredith
Taylor, Olson, Adkins, Sralla & Elam L.L.P.
Dallas, Texas

Allen Taylor is currently serving as City Attorney to the cities of Burleson, Cleburne, Southlake, and Mansfield, Texas. He is a founding partner of Taylor, Olson, Adkins, Sralla & Elam, L.L.P. (1997 to present). Mr. Taylor is the former Chairman of the Planning Commission of the City of Fort Worth, a former member of the Zoning Commission of the City of Fort Worth, a member of the Advisory Board of the Municipal Legal Studies Center of the Southwestern Legal Foundation, and was previously a member of the Pre-Application Review Panel and the Section 208 Water Quality Advisory Committee of the Lower Rio Grande Valley Development Council. Mr. Taylor practices primarily in the areas of public, municipal and land use law.

Mr. Taylor earned his Bachelors and Master of Urban Planning degrees from Texas A&M University, and his Juris Doctor degree, cum laude, from Baylor University School of Law. He was the Research & Topics Editor of the Baylor Law Review and was a member of the National Order of Barristers.

Mr. Taylor is admitted to practice before the Texas Supreme Court, the Northern, Southern, Eastern and Western Districts of Texas, the Fifth and Tenth Circuit Courts of Appeal and the United States Supreme Court.

Prior to embarking upon a legal career Mr. Taylor served as Planning Director of the City of Edinburg, Texas, Director of Planning & Community Development for the City of Killeen, Texas and Director of Planning & Community Development for the City of Pharr, Texas. He has served as a speaker and panelist for a number of conferences and seminars in these fields and has authored a number of articles in the land use and development law area.

Municipalities in Texas have authority to exert regulatory control over mineral development from both a general health and safety approach as well as a zoning/land use and approach. The discussion that follows addresses each such approach.

A. General Municipal Regulatory Authority within City and ETJ; Conflicts with State and Federal Regulation

The general powers of a municipality are found in Title 2, Subtitle D, Chapters 51 through 54 of the Local Government Code. General law municipalities (generally those with a population of under 5,000) have only those powers given to them by the legislature. Home rule municipalities (generally those with a population of greater than 5,000 that maintain a charter adopted by the public) have all those powers not inconsistent with the city's charter, "the Constitution of the State, or of the general laws enacted by the Legislature of this State." ¹

In addition, unless a state or federal regulation is clearly preemptive of local regulation, a home rule municipality may adopt -- subject to the limitations above -- more (but not less) stringent requirements than those already set forth in state law.

1. General Authority

Texas municipalities have statutory authority to regulate a number of activities that may affect mineral development. These authorities include:

Section 51.001 of the Local Government Code authorizes a municipality to adopt an ordinance, rule or police regulation that "(1) is for the good government, peace, or order of the municipality or for the trade and commerce of the municipality; and (2) is necessary or proper for carrying out a power granted by law to the municipality or to an office or department of the municipality."

Section 121.003 of the Texas Health and Safety Code, the Local Public Health Reorganization Act, provides that "the governing body of a municipality or the commissioners court of a county may enforce any law that is reasonably necessary to protect the public health."

Subchapter A of Chapter 342 of the Local Government Code authorizes a Type-A general law municipality to "adopt other rules for the prevention of fires as the governing body considers necessary." ² Subchapter B of Chapter 342 provides that a home rule municipality may "establish fire limits and may prescribe the kind and character of structures and other improvements erected within those limits." ³

In addition to the broad regulatory authority over persons and property within a city's corporate limit, Texas municipalities have limited authority to regulate activities outside their city limits. First, both home rule and general law municipalities may regulate the subdivision of land within their extraterritorial jurisdiction ("ETJ"). ⁴ Section 212.012 of the Local Government Code prohibits the connection of "water, sewer, electricity, gas, or other utility service" unless the land has been properly platted. Additionally, home rule municipalities have the expanded authority to define and abate any nuisance within 5,000 feet outside the corporate limits of the city. ⁵ The types of nuisances subject to abatement may include, excessive noise or odor. The Texas Attorney General has ruled that "where a municipality is authorized to adopt a nuisance ordinance applicable to conduct occurring outside city limits and where the municipality has adopted such an ordinance, a municipal court has implied jurisdiction over cases arising outside (the) city limits." ⁶

2. Enforcement

Section 54.001 of the Local Government Code provides that "the governing body of a municipality may enforce each rule, ordinance, or police regulation of the municipality and may punish a violation of a rule, ordinance, or police regulation." An ordinance violation may be prosecuted in municipal court as a Class C criminal offense, punishable by a fine of up to $2,000 per day per offense related to fire safety, zoning, or public health and sanitation, or up to $500 per day for all other violations. ⁷ In addition to criminal enforcement of violations, a municipality has broad authority to bring suit for the enforcement of an ordinance:

(1) for the preservation of public safety, relating to the materials or methods used to construct a building or other structure or improvement, including the foundation, structural elements, electrical wiring or apparatus, plumbing and fixtures, entrances, or exits;

(2) relating to the preservation of public health or to the fire safety of a building or other structure or improvement, including provisions relating to materials, types of construction or design, interior configuration, illumination, warning devices, sprinklers or other fire suppression devices, availability of water supply for extinguishing fires, or location, design, or width of entrances or exits;

(3) for zoning that provides for the use of land or classifies a parcel of land according to the municipality's district classification scheme;

(4) establishing criteria for land subdivision or construction of buildings, including provisions relating to street width and design, lot size, building width or elevation, setback requirements, or utility service specifications or requirements;

(5) implementing civil penalties under this subchapter for conduct classified by statute as a Class C misdemeanor;

(6) relating to dangerously damaged or deteriorated structures or improvements;

(7) relating to conditions caused by accumulations of refuse, vegetation, or other matter that creates breeding and living places for insects and rodents;

(8) relating to the interior configuration, design, illumination, or visibility of business premises exhibiting for viewing by customers while on the premises live or mechanically or electronically displayed entertainment intended to provide sexual stimulation or sexual gratification; or

(9) relating to point source effluent limitations or the discharge of a pollutant, other than from a non-point source, into a sewer system, including a sanitary or storm water sewer system, owned or controlled by the municipality. ⁸

3. Ordinance Validity

Courts will construe city ordinances with respect to their reasonableness, statutory or city charter...