Opinion
No. 05-04-00228-CV
Opinion Filed May 16, 2005.
On Appeal from the 416th Judicial District Court Collin County, Texas, Trial Court Cause No. 416-01326-03.
Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
Brown Outdoor Advertising, LLC appeals an adverse summary judgment in a declaratory judgment action regarding the construction of the Town of Prosper's municipal sign ordinance. The primary issue in this case is whether Prosper ordinance 02-25 prohibits the erection of commercial billboards in the town's extraterritorial jurisdiction (ETJ). We conclude that it does and affirm the trial court's judgment.
Brown locates, installs, and owns commercial billboards in Texas. Brown obtained approval from the Texas Department of Transportation to install four commercial billboards in Prosper's ETJ and secured a sign contractor's license and bond from Prosper. Brown subsequently received a letter from the town attorney advising that Prosper's municipal ordinance 02-25 prohibited installation of Brown's proposed billboards. Applications to install the billboards were filed with the Town, but the applications were rejected by building official William A. Little. Brown's appeals to the mayor and the town council were also rejected. Brown filed this lawsuit seeking, among other things, a declaration that ordinance 02-25 neither regulates nor applies to signs located in the Town's ETJ and does not prohibit commercial billboards in the Town's ETJ.
Both parties moved for partial summary judgment. The trial court granted the Town's motion and denied Brown's motion. After a hearing on attorney's fees, the trial court rendered a final judgment (1) declaring ordinance 02-25 applies to and prohibits commercial billboards in Prosper's ETJ and (2) awarding the Town and Little $12,350 in trial attorney's fees plus contingent appellate attorney's fees against Brown. Brown appeals.
Brown contends that aside from a single reference to the ETJ in its preamble, ordinance 02-25 does not contain the words "extraterritorial jurisdiction" and never expressly states that it applies to the Town's ETJ. Specifically, Brown maintains the trial court (1) applied incorrect standards of statutory interpretation in reaching the decision that the ordinance applied to the Town's ETJ, (2) considered irrelevant and extrinsic evidence in ruling for the Town, and (3) improperly awarded attorney's fees. The Town, on the other hand, argues the plain language of the ordinance, the caption, third general statement of purpose in the preamble (incorporated into the body of the ordinance through section 1), legislative history, and the circumstances under which it was enacted, all compel the conclusion that ordinance 02-25, and in particular section 19.01, applies to the Town's ETJ. After reviewing the ordinance and the other relevant evidence in the record, we agree with the Town.
Matters of statutory construction are questions of law that are appropriately decided in a motion for summary judgment. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-66 (Tex. 1989). The same rules that apply when construing a statute apply equally to ordinance construction. City of Coppell v. Gen. Homes Corp., 763 S.W.2d 448, 453 (Tex.App.-Dallas 1988, writ denied). Our primary objective is to determine and give effect to the lawmakers' intent. See Am. Home Prods. Corp. v. Clark, 38 S.W.3d 92, 95 (Tex. 2000). We first look to the plain meaning of the words of the provisions. See Bd. of Adjustment of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex. 2002). We must, however, examine the provisions as a harmonious whole rather than in isolated pieces. See Hammond v. City of Dallas, 712 S.W.2d 496, 498 (Tex. 1986). In construing an ordinance, whether or not it is ambiguous on its face, we may consider the object sought to be obtained, circumstances under which it was enacted, legislative history, former ordinances on the same or similar subjects, the consequences of a particular construction, administrative construction of the ordinance, its title (caption), preamble, and emergency provision. See Tex. Gov't Code Ann. § 311.023 (Vernon 1998).
Looking at the language of the specific provisions of ordinance 02-25 in question, the caption of the ordinance reads:
An ordinance by the Town of Prosper adopting sign regulations; amending section 13 (sign regulations) of Prosper's comprehensive zoning ordinance no. 84-16 by deleting said section; repealing ordinance 99-33; regulating the height, number of signs, size, and placement of signs located, or to be located within the town limits or its extraterritorial jurisdiction; providing uniform regulations for the different classes of signs; providing for an appeal; providing for a penalty for the violation of this ordinance; providing for savings, repealing and severability clauses; providing for an effective date; and providing for the publication of the caption hereof.
(emphasis added). Additionally, the ordinance contains the following statement of purpose which is incorporated into the body of the ordinance through section 1:
WHEREAS, the Town Council has investigated and determined that it will be advantageous, beneficial and in the best interest of the citizens of Prosper to establish an ordinance independent of Comprehensive Zoning Ordinance No. 84-16 that regulates signs within Prosper and its extraterritorial jurisdiction.
(emphasis added). Although the caption of ordinance 02-25 and the third general statement of purpose cited above comprise the only specific references to the ETJ in ordinance 02-25, both specifically state that the ETJ is to be regulated. Accordingly, we conclude the ordinance includes the ETJ within its sign regulations.
Brown also argues that regardless of the above provisions, section 19.01 prohibits commercial billboards only in zoning districts-the Town limits-and not within the Town's ETJ. We disagree. Section 19.01 provides:
19.01 — PROHIBITED SIGNS:
The following types of signs shall be prohibited in all zoning districts, and no permit shall ever be granted for:
(1) Commercial Billboards[.]
Before ordinance 02-25 was enacted, the Town's sign regulations were contained in the Town's comprehensive zoning ordinance as ordinance 99-33. Section 19 of ordinance 99-33 provided in part as follows:
SECTION 19 — PROHIBITED SIGNS:
The following types of signs shall be prohibited in all zoning districts:
(1) Commercial Billboards[.]
A Town staff report indicates the purpose of ordinance 02-25 was to remove sign regulation from the Town zoning ordinance and replace it with a separate ordinance that would extend regulatory control to areas both within the Town and the ETJ. This purpose is supported by the language in the caption of ordinance 02-25 referring to the ETJ.
The only change to section 19 was the addition of the language "and no permit shall ever be granted for." As noted by Brown, the prohibition of commercial billboards in all zoning districts necessarily applies only to those signs within the Town's limits because zoning districts are only located within a town's corporate limits. The language added by 02-25 would be superfluous if not intended to apply to the Town's ETJ. Brown argues a more reasonable interpretation is that the second clause merely modifies the first. Such an interpretation, however, would effect no substantive change in the provision despite the added clause. We must give effect to all of the words of an ordinance and will not treat any ordinance language as surplusage if possible. See Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987). The additional language in section 19 prohibits the erection of commercial billboards in the ETJ.
In reaching this conclusion, we necessarily reject Brown's contention that the trial court abused its discretion by improperly admitting into evidence a statement of fact and staff report. Both of these items indicate that the sign regulations were being removed from the zoning regulations so that they would apply in the Town's ETJ. We first question whether this complaint has been properly preserved for our review. The record does not contain a written ruling on Brown's objections to the Town's summary judgment evidence. See Tex.R.App.P. 33.1(a). In any event, such evidence was admissible under section 311.023 of the government code. See Tex. Gov't Code Ann. § 311.023 (Vernon 1998).
We agree with the trial court's determination that ordinance 02-25 applies to and prohibits commercial billboards in Prosper's ETJ. Our conclusion makes it unnecessary to address Brown's remaining issue regarding the Town's attorney's fee award.
We affirm the trial court's judgment.
DISSENTING OPINION
Appellant sought to construct commercial billboards outside the city limits of the Town of Prosper but within its extraterritorial jurisdiction ("ETJ"). Appellant does not dispute the Town's authority to regulate signs within its ETJ. See Tex. Loc. Gov't Code Ann. § 216.902 (Vernon 1999). Rather, it disputes whether the sign ordinance at issue (ordinance 02-25) did so here.
According to appellant's brief, "the issue . . . is whether the Town has enacted an ordinance that, on its face, expressly extends its sign regulations to the Town's ETJ."
To resolve that dispute, appellant sued the Town for a declaration that the ordinance did not apply to the Town's ETJ. The trial court said it did and entered summary judgment in favor of the Town.
The judgment also awarded the Town $12,500 in attorney's fees through trial, plus additional attorney's fees in the event of an unsuccessful appeal.
On appeal, the majority agrees with the trial court. Thus, it rejects appellant's issues, which argue that the trial court: (1) erred in construing the ordinance to apply to the Town's ETJ; (2) abused its discretion in allowing the introduction of extrinsic evidence contradicting the express language contained in the ordinance; and (3) erred in awarding attorney's fees.
The question presented in this appeal is how far can a court go to "fix" a city ordinance that may not accomplish the purpose for which it was enacted. Because I believe the trial court and the majority go too far, I respectfully dissent. Although there is some evidence the Town Council members intended to regulate signs within the Town's ETJ by passing ordinance 02-25, the unambiguous, actual language of the ordinance does not do so. Further, even if applying that language may lead to an unintended consequence, it does not lead to an absurd one. As a result, I believe the trial court erred in construing the ordinance to apply to the Town's ETJ.
Principles of Construction
I start with those areas in which I agree with the majority. First, I agree courts are to use the same rules when construing municipal ordinances as they use when construing statutes. See Bd. of Adjustment v. Wende, 92 S.W.3d 424, 430 (Tex. 2002). I also agree a court's primary objective is to determine and, if possible, give effect to the lawmakers' intent. See Am. Home Prods. Corp. v. Clark, 38 S.W.3d 92, 95 (Tex. 2000).
However, "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.'" Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999) (quoting Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998)). If the statutory language is unambiguous, we adopt, with few exceptions, the interpretation supported by the plain and common meaning of the words used. See id. (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex. 1990); RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985); Cail v. Serv. Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983); and Fenet v. McCuistion, 105 Tex. 299, 302, 147 S.W. 867, 869 (1912) (holding that we adopt the construction that avoids absurd results)).
The Code Construction Act does authorize courts to consider prior law, the circumstances under which the law was enacted, and legislative history, among other matters, to aid them in construing a code provision. Tex. Gov't Code Ann. § 311.023 (Vernon 2005). This is true "whether or not the statute is considered ambiguous on its face." Id. However, "prior law and legislative history cannot be used to alter or disregard the express terms of a code provision when its meaning is clear from the code when considered in its entirety, unless there is an error such as a typographical one." Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). In other words, and absent such clear error, courts may not use the construction aids set forth in section 311.023 to interpret the lawmakers' intent if the plain and common meaning of the statute's language is incompatible with that interpretation.
Prosper's Sign Ordinance
The caption of the ordinance describes it as "regulating . . . signs located, or to be located within the town limits or its extraterritorial jurisdiction." (Emphasis added.) Also, the ordinance's preamble, consisting of a number of "whereas" clauses, recites that the Town Council had determined that it was in the citizens' best interests to regulate "signs within Prosper and its extraterritorial jurisdiction." (Emphasis added.) However, the preamble also recites in another clause, that the Town Council had determined that it would be beneficial "to adopt this ordinance regulating the use of signs within the Town of Prosper . . .," referring specifically to the text of the ordinance and omitting any reference to the Town's ETJ. (Emphasis added.)
Scope of the Ordinance
The majority admits that the above two references to the Town's ETJ are the only parts of the ordinance that mention or refer to areas outside the Town's city limits. Nevertheless, the majority opinion concludes, based on those references alone, that the ordinance covers both the Town of Prosper and its ETJ. Based on the plain language of the ordinance as a whole, I disagree.
The enacting language of the ordinance states: "NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS:. . . ." Following this enacting clause are the terms of the ordinance proper, divided into eight "SECTIONS." Those most relevant to the issue before the court are SECTIONS 1 and 4.
These eight "SECTIONS" are capitalized and underlined within the ordinance. The ordinance also contains paragraphs within SECTION 4 of the ordinance, numbered "1.01," "2.01," etc., which are also referred to within those paragraphs as "sections." To clarify the distinction, the "SECTIONS" capitalized in the ordinance are capitalized here.
SECTIONS 2 and 3 delete and repeal prior ordinance provisions. SECTION 5 makes violation of ordinance 02-25 a misdemeanor punishable by a fine of up to $500, and provides that each day's violation of the ordinance constitutes a separate offense. SECTION 6 is a savings/repealing clause; SECTION 7 is a severability clause; and SECTION 8 provides for the effective date of the ordinance.
SECTION 1 incorporates the findings recited in the preamble "as if fully set forth herein." Thus, it incorporates the findings in both of the "whereas" clauses mentioned above, one of which refers to regulating signs in the Town and the ETJ, and the other of which refers to the regulation of signs in the Town only and to the specific terms of the ordinance that follow.
SECTION 4 begins: "Sign regulations for Prosper are established as follows:. . . ." (Emphasis added.) Following this introductory clause are over sixteen pages of single-spaced text, comprising the body of the Town's sign regulatory scheme. However, the introductory language set forth above makes clear that the text following-all sixteen-plus pages of it-relates to the town of Prosper only, excluding by omission any regulation of signs within the Town's ETJ.
As noted previously, courts may consider prior law, the circumstances under which the law was enacted, and legislative history, among other matters, to aid them in construing a code provision. See Tex. Gov't Code Ann. § 311.023. As the majority points out, these sources indicate that the Town Council may have intended to regulate signs in the ETJ. However, this conclusion improperly alters or disregards an express term of the ordinance, the meaning of which is clear when the ordinance is considered in its entirety. See Fleming Foods of Texas, Inc., 6 S.W.3d at 284. Aids to statutory construction are useful only when the language of the statute conveys an indistinct or nebulous understanding of the lawmakers' intent. Justifying, on the basis of such aids, a construction that differs from the plain and common meaning of the statutory language elevates the aids to statutory construction over the language of the statute itself.
As specified by the plain language in SECTION 4, the regulatory provisions of Prosper's sign ordinance apply to the Town of Prosper only and, by omission, not to its ETJ. Thus, overriding SECTION 4's limitation on the scope of the ordinance, effectively adding "and its ETJ" to the text of the sentence, cannot be supported on the basis of section 311.023 and the sources of information specified therein.
As recognized by the Texas Supreme Court in Fitzgerald, 996 S.W.2d at 866:
There are sound reasons we begin with the plain language of a statute before resorting to rules of construction. For one, it is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent. . . . Moreover, when we stray from the plain language of a statute, we risk encroaching on the Legislature's function to decide what the law should be.
That risk of encroachment exists here, particularly in light of the scope of the ordinance's other provisions. Some of those provisions apply, by their clear terms, only to areas in certain zoning districts. For example, one section permits certain types of nameplates, institutional signs, and apartment signs "in areas zoned for single-family, two-family, or multi-family residential purposes according to the official zoning ordinance. . . ." Another permits certain types of signs within "areas zoned for office, local retail, commercial and industrial purposes, according to the official zoning ordinance." And a third section, entitled "Monument Signs Permitted in Non-Business Districts," authorizes certain detached monument signs for "[c]hurches, model homes, apartments, town homes, schools or government facilities and buildings. . . ." However, the Town's zoning districts do not extend into the ETJ. Therefore, if the courts construe the ordinance's scope as including the ETJ, the sections of the ordinance mentioned above would nevertheless remain inapplicable to the ETJ. Of course, it is possible the Town intended this result when it passed the ordinance. However, there is no indication of that in the preamble, or in the rest of the record.
Section 51.01.
Section 52.01, entitled "Signs Permitted in Business Districts," relates to "Marquee Flat Wall, Parapet, General Identification Signs," "General Business Signs," and "Monument Signs," terms generally defined by the ordinance. "Business Districts" are defined in section 1.01 of the ordinance as "Districts R, O, C, I and COR as described and identified in the Prosper Comprehensive Zoning Ordinance No. 84-16, as it currently exists or may be amended."
Section 53.01. "Non-Business Zoning Districts" are defined in section 1.01 of the ordinance as "Districts SF, MF, PD, and REC as described and identified in the Prosper Comprehensive Zoning Ordinance No. 84-16, as it currently exists or may be amended."
Application of the Ordinance
Having concluded the ordinance extends to the Town's ETJ, the majority then determines the ordinance's impact on appellant's proposed signs. The Town and the majority rely on section 19.01 of the ordinance as the basis for prohibiting appellant's commercial billboards. That section begins as follows:
19.01 — PROHIBITED SIGNS:
"The following types of signs shall be prohibited in all zoning districts, and no permit shall ever be granted for:
(1) Commercial Billboards[.]
(Emphasis added.)
Even the majority agrees with appellant that the prohibition of commercial billboards in "all zoning districts" is no basis for prohibiting appellant's proposed commercial billboards. As noted previously, there are no zoning districts within the ETJ; thus, the prohibition of commercial billboards within "all zoning districts" does not extend beyond the Town's city limits.
However, the majority interprets the language in section 19.01 italicized above as a second, separate prohibition, one that extends to and covers the ETJ. The majority points out section 19.01 is identical to the Town's prior sign ordinance except for the italicized language, which was added by ordinance 02-25. Because the new language "would be superfluous if not intended to apply to the town's ETJ," the majority rejects appellant's argument that the italicized, added text should be interpreted as merely modifying the first. Says the majority: "Such an interpretation . . . would effect no substantive change in the provision despite the added clause. We must give effect to all the words of an ordinance and will not treat any ordinance language as surplusage if possible." Therefore, the majority concludes that the new language "prohibits the erection of commercial billboards in the ETJ." Again, I disagree.
First, as noted previously, interpreting any provision of section 19.01 as regulating signs in the ETJ does violence to SECTION 4 of the ordinance, which contains the language (including section 19.01) comprising the body of the Town's sign regulatory scheme. That provision establishes "[s]ign regulations for Prosper . . .," omitting any language intimating or giving effect to any intent to regulate signs within the ETJ.
Second, judicial disdain for treating any language in a statute as surplusage is no basis for the majority's preferred construction here. That is because treating the new, italicized language as a separate, additional prohibition against commercial billboards itself renders the rest of the sentence surplusage. If the phrase "no permits shall ever be granted for" prohibits commercial billboards in both the Town and its ETJ, as the majority concludes, then there is no need for the rest of the sentence prohibiting said signs "in all zoning districts," i.e., within the Town only.
Third, I am unpersuaded we should interpret the ordinance as applying to the ETJ on the grounds that failing to do so would mean that the added clause "would effect no substantive change." This justification for the majority's construction presents two problems, one concerning the judiciary's role in construing legislation and the other concerning the public's ability to understand the laws they are required to obey.
There are limits to the judiciary's ability to construe laws to accomplish the intent of the legislative body. These limits underpin the Texas Supreme Court's reasoning in Fitzgerald and in Fleming Foods of Texas, Inc. A statute's or an ordinance's legitimacy is based on its acceptance as the authentic expression of the will of the legislative body. The use of aids to construe the law in a manner contradictory to the plain terms used by the legislative body itself undermines the statute's authenticity as well as the legislature's authority. In recognizing these principles, the supreme court concluded that, absent an error as clear as a typographical one, "prior law and legislative history cannot be used to alter or disregard the express terms of a code provision when its meaning is clear from the code when considered in its entirety. . . ." Fleming Foods of Texas, Inc., 6 S.W.3d at 284.
There are also limits to the efforts required of citizens to understand the laws with which they must conform or face punishment. The Texas Supreme Court also recognized this in principle in Fleming Foods of Texas, Inc.:
Citizens, lawyers who represent them, judges, and members of the Legislature should not be required to research the law that preceded every codification to determine if there had been some change and accordingly whether the prior law rather than the current law prevails. We must be able to accept and to rely upon the words written by the Legislature if they are clear and unambiguous, their meaning is plain when the code in which they appear is read in its entirety, and they do not lead to absurd results.
Fleming Foods of Texas, Inc., 6 S.W.3d at 285. There may be circumstances where changes in statutory language should be considered in order to ascertain the intent of the legislature in enacting the statute in its present form. However, doing so in the face of clear statutory language runs afoul of this principle, placing an onerous burden on the citizenry to correctly determine what the law means, and faced with possible penalties-in this case, $500 per day plus payment of the Town's attorney's fees-in the event they are wrong.
Conclusion
Despite the phrasing in the ordinance's caption and portions of its preamble, the plain and common meaning of the words used in SECTION 4 of the ordinance makes clear that Prosper's sign regulation applies to the Town alone, and not to its ETJ. Absent an absurd result, we may not construe legislative provisions in a manner contrary to their plain meaning. See Fitzgerald, 966 S.W.2d at 867; see also C H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 322 n. 5 (Tex. 1994) (statutory provision will not be construed or interpreted to lead to absurd conclusion, great public inconvenience, or unjust discrimination, if provision is subject to another, more reasonable interpretation, citing Cramer v. Sheppard, 140 Tex. 271, 287, 167 S.W.2d 147, 155 (1942)). No such absurdity would result from construing the ordinance as it was enacted. Rather, Prosper's sign regulations would continue much as they did before the passage of ordinance 02-25-applicable to the Town but not to its ETJ.
For these reasons, I would sustain appellant's first and third issues, reverse the trial court's judgment, and remand the case with instructions to enter a judgment in favor of appellant after considering whether to award any attorney's fees. Because the majority does not do so, I respectfully dissent.