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Quick v. Austin, City of

Citation: 28 ELR 21277
(05/08/1998)

The court holds that a local water quality control ordinance applicable within the city of Austin and in its extraterritorial jurisdiction is valid under Texas law. The ordinance, which was enacted through the city's initiative and referendum process, limits impervious cover on land, requires new development to be set back from streams, prohibits construction in "critical water quality zones," and allows waivers only when the ordinance conflicts with state or federal law. The court first holds that the separation of powers doctrine of the Texas Constitution is not violated by the judiciary considering, according to the mandates of the state Water Code § 26.177, whether a local water control ordinance is invalid, arbitrary, unreasonable, inefficient, or ineffective in its attempt to control water quality. The court also holds that the provision in Water Code § 26.177 allowing a reviewing court to modify the city's action does not connote an impermissible de novo review. The court then holds that the landowners challenging the ordinance did not meet their extraordinary burden of establishing that reasonable minds could not differ regarding whether the ordinance was invalid, arbitrary, unreasonable, inefficient, or ineffective in its attempt to control water quality. While the ordinance's impervious cover limitations undoubtedly substantially affect the value of some property parcels, such limitations are a nationally recognized method of preserving water quality. Further, it is indisputable that limiting pollutants in runoff water will aid in preserving water quality. Therefore, the ordinance's provisions are rationally related to its goals.

The court next holds that the requirements of two sections of the local government code are not applicable to the ordinance, and the ordinance cannot be invalidated by them. The two sections apply only to zoning statutes, not to water control measures such as the ordinance, and contrary to the landowners' assertion, the ordinance is not a zoning regulation seeking to shape urban development, but rather is a measure designed to protect water quality. The court also holds that the ordinance does not require approval from the state environmental agency before it becomes effective. The city of Austin is a home-rule city deriving its power from article XI, section 5 of the Texas Constitution, and a home-rule city is not dependent on the state legislature for a grant of authority. In addition, the state legislature has not limited the city's authority to set the ordinance effective date. The court further holds that the ordinance was a proper subject of the initiative and referendum process under the city's charter. The court then holds that it cannot review the landowners' argument that the court of appeals erred in concluding that the landowners' original permit applications filed before September 1, 1987 were not covered by a statute locking in for the life of a project the regulations in effect at the time of the application for the project's first permit. The legislature repealed this statute while the current case was pending before the court. When a cause-of-action is based on a statute, the repeal of the statute without a savings clause for pending suits is usually given immediate effect. The legislature, in its repeal of this statute, did not include a savings clause providing that the statute remained in effect for pending litigation. Last, the court holds that it is not necessary to reach the merits of an environmental alliance's argument that the trial court erred in striking its plea in intervention and the court of appeals erred in affirming the trial court's striking of its intervention. Because the city prevailed in upholding the ordinance against all the challenges raised by the developers, a new trial would do nothing to further the alliance's interests.

Counsel for Petitioners
Joe R. Greenhill
Baker & Botts
1600 San Jacinto Ctr.
98 San Jacinto Blvd., Austin TX 78701
(512) 322-2500

Counsel for Respondents
Thomas H. Watkins
Hilgers & Watkins
1600 San Jacinto Ctr.
98 San Jacinto Blvd., Ste. 1300, Austin TX 78701
(512) 476-4716