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Full Opinion
Jerry J. QUICK, Kaira G. Quick, John M. Bryant, Ruth E. Bryant, Joe Cox, Dolores Cox, Florence Turck and Circle C Land Corp., Petitioners,
v.
CITY OF AUSTIN, Save Our Springs Legal Defense Fund, Inc. and Al St. Louis, Respondents.
Supreme Court of Texas.
*112 Roy Q. Minton, John L. Foster, Bob E. Shannon, Joseph R. Knight, Robert I. Howell, Scott K. Field, Joe R. Greenhill, Austin, for Petitioners.
William G. Bunch, Thomas H. Watkins, Andrew F. Martin, Elizabeth G. Bloch, James K. McClendon, Frank C. Cooksey, Pamela Stanton Baron, Austin, Michael A. Hatchell, Tyler, Dick DeGuerin, Houston, Teresa L. Todd, Marfa, for Respondents.
Justice ABBOTT delivered the opinion of the Court.
We are confronted with a challenge to the City of Austin's Save Our Springs Ordinance, a water pollution control measure enacted in 1992. Petitioners, who own land within the City of Austin's extraterritorial jurisdiction, brought this action contesting the Ordinance. Petitioners claim that the Ordinance is arbitrary, unreasonable, and inefficient. Petitioners also assert that the Ordinance is void because it was enacted without a public hearing, it impermissibly regulates the number, use, and size of buildings in the City's extraterritorial jurisdiction, and it has not been approved by the Texas Natural Resource Conservation Commission. The trial court rendered judgment in favor of Petitioners, holding that the Ordinance was null and void. The court of appeals reversed in part and modified in part, rendering judgment that the Ordinance was valid. 930 S.W.2d 678. Although we do not agree with all of the court of appeals' analysis, we affirm its judgment upholding the Ordinance's validity.
I
Frustrated by their perception that the Austin City Council was failing to safeguard Barton Springs adequately, a group of Austin citizens interested in protecting the environment initiated the Save Our Springs Ordinance and placed it on the Austin municipal ballot for a local referendum election. In August 1992, the Austin citizens participating in the referendum election overwhelmingly approved the Ordinance. Two days after the voters approved the Ordinance, the Austin City Council enacted the Ordinance and incorporated it into the City Code.
The purpose of the Ordinance, according to its Declaration of Intent, is to insure water quality control in Barton Creek, Barton Springs, and the Barton Springs Edwards Aquifer.[1] The provisions of the *113 Ordinance apply to those areas within Austin and Austin's extraterritorial jurisdiction that contain watersheds contributing to Barton Springs. The Ordinance limits impervious or non-porous cover on land in the regulated areas to between 15% and 25% of the net site area. The Ordinance also requires that new developments be set back from streams and not contribute to an increase in the amount of pollution constituents commonly found in urban rainfall runoff water. Construction in the "critical water quality zone" of the Barton Creek watershed is prohibited by the Ordinance. The Ordinance provides for no waivers or exceptions unless necessary to avoid conflict with state and federal laws.
Petitioners Jerry J. Quick, Kaira G. Quick, John M. Bryant, Ruth E. Bryant, Joe Cox, Dolores Cox, Florence Turck, and Circle C Land Corporation all own land outside the city limits of Austin but within its extraterritorial jurisdiction. Because their land is within Austin's extraterritorial jurisdiction, any development of their property must comply with the Ordinance. The Petitioners sued the City in Hays County, seeking a declaratory judgment that the Ordinance was void because it was illegally enacted. Additionally, Petitioners challenged the Ordinance under section 26.177(d) of the Texas Water Code, which authorizes a party aggrieved by a water pollution control ordinance to appeal to district court to review whether the ordinance is invalid, arbitrary, unreasonable, inefficient, or ineffective.
Save Our Springs Alliance, Inc., an incorporated association of individuals led by the citizen initiators of the Ordinance, moved to intervene in the suit. The Alliance urged that the City was incapable of adequately advocating the Alliance's interest due to previous hostilities over the Ordinance. See, e.g., City Council of Austin v. Save Our Springs Coalition, 828 S.W.2d 340 (Tex.App.-Austin 1992, no writ)(citizens sued City to force election on the Ordinance). The trial court, however, struck the plea in intervention, leaving the City to defend the Ordinance.
The Petitioners and the City proceeded to try the case to a jury. The jury answered "yes" to all the questions in the charge inquiring whether the Ordinance and its impervious cover limitations, its prohibition against increases in pollution constituents, and its failure to contain variances were an unreasonable, arbitrary, and inefficient attempt to control water quality. The jury also found that the Ordinance was not a proper subject for the initiative and referendum process and that the Ordinance regulated the number, use, and size of buildings in the City's extraterritorial jurisdiction (a violation of section 212.003 of the Texas Local Government Code).
Based on the jury's answers, the trial court rendered judgment for the Petitioners declaring the Ordinance null and void. The trial court's final judgment also contained conclusions of law, including that the Ordinance was ineffective because the Texas Natural Resource Conservation Commission had not approved it and that the Ordinance was void because it was enacted without a public hearing in violation of section 212.002 of the Local Government Code. The trial court further decreed that any permit required by Petitioner Circle C Land Corporation to develop its property would be subject only to the law in effect when the original application for preliminary subdivision approval was filed, which, in some cases, pre-dated the enactment of the Ordinance.
The court of appeals reversed and rendered in part and modified in part the trial court's judgment. 930 S.W.2d 678. The appellate court first determined that the trial court did not abuse its discretion in striking the Alliance's plea in intervention. 930 S.W.2d at 683. The court of appeals then concluded that the trial court erred in rendering judgment that the Ordinance *114 was unreasonable, arbitrary, and inefficient pursuant to section 26.177(d) of the Texas Water Code because section 26.177(d) was unconstitutional under article II, section 1 of the Texas Constitution, the separation of powers provision. Id. at 685. The court of appeals further held that the Ordinance was not illegally enacted because (1) it did not require approval by the Texas Natural Resource Conservation Commission before it could become effective, (2) it was not subject to sections 212.002 and 212 .003 of the Local Government Code, and (3) it was a proper subject of the initiative and referendum process. Id. at 686-91. The appellate court accordingly reversed the trial court's judgment in part and rendered judgment that the Ordinance was a valid legislative act. The court of appeals also modified the trial court's judgment in part, holding that any permit required by Circle C would be considered only under the regulations and ordinances in effect when the original application for preliminary subdivision approval was filed, as long as the permit application was filed after September 1, 1987. Id. at 693-94.
Petitioners challenged the court of appeals' judgment by filing an application for writ of error with this Court. Petitioners allege that the court of appeals erred by holding (1) that section 26.177(d) of the Water Code is unconstitutional as a violation of separation of powers, (2) that the Ordinance is not subject to sections 212.002 and 212.003 of the Local Government Code, (3) that the Ordinance is effective without the City first obtaining the Texas Natural Resource Conservation Commission's approval, (4) that the Ordinance was a proper subject of the initiative and referendum process, and (5) that only Circle C's permit applications filed after September 1, 1987 would be considered on the basis of the regulations and ordinances in effect at that time. The Alliance also filed its own application for writ of error, contending that the court of appeals erred in upholding the trial court's striking of its plea in intervention.
II
We first consider the constitutionality of section 26.177(d) of the Texas Water Code. Section 26.177(d) provides in pertinent part:
Any person affected by any ... ordinance... relating to water pollution control and abatement outside the corporate limits of such city adopted pursuant to this section or any other statutory authorization may appeal such action to the [Texas Natural Resource Conservation Commission] or district court.... The issue on appeal is whether the action or program is invalid, arbitrary, unreasonable, inefficient, or ineffective in its attempt to control water quality. The commission or district court may overturn or modify the action of the city.
Tex. Water Code § 26.177(d).
The trial court submitted several questions to the jury inquiring whether various provisions of the Ordinance were "unreasonable," "arbitrary," or "inefficient." Based on the jury's affirmative answers to these questions, the court then rendered judgment that the Ordinance was invalid under section 26.177(d).
The court of appeals, however, concluded that section 26.177(d) violates the separation of powers doctrine of the Texas Constitution because it requires a de novo review of a legislative act. The court of appeals reasoned that the trial court conducted a de novo review of the statute as evidenced by the court's charge asking the jury to determine, by a preponderance of the evidence, whether the jury thought the Ordinance was unreasonable, arbitrary, or inefficient. The court of appeals further ruled that section 26.177(d) authorized such an unconstitutional de novo review by permitting the reviewing court to "modify" a legislative act and to determine whether a legislative act was "inefficient" or "ineffective."
A
A legislative function cannot, under the separation of powers doctrine, be reviewed *115 de novo[2] by any other branch of government. Article II, section 1 of the Texas Constitution divides the functions of government as follows:
[T]hree distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others.
Tex. Const. art. II, § 1. Consistent with this division of power, we have recognized that, when the Legislature delegates a legislative function to a municipality or an administrative agency, a de novo review by the judiciary of the delegated function violates the Constitution. Chemical Bank & Trust Co. v. Falkner, 369 S.W.2d 427, 432-33 (Tex.1963); Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 712-14 (1959); Southern Canal Co. v. State Bd. of Water Eng'rs, 159 Tex. 227, 318 S.W.2d 619, 621-22 (1958).
The Petitioners concede that, if section 26.177(d) in fact confers the power on the courts to review a legislative function de novo, the statute is unconstitutional as a violation of the separation of powers provision of our state constitution. Petitioners also concede that the Ordinance represents the exercise of a legislative function the Legislature has delegated to the City. Accordingly, the only issue we must determine is whether section 26.177(d) necessitates a de novo review by the judiciary. If it does, it is unconstitutional; if it does not, it is constitutional.
In analyzing the constitutionality of a statute, we should, if possible, interpret the statute in a manner that avoids constitutional infirmity. Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex.1996). Moreover, if any provision of the statute is held to be invalid, the invalidity does not affect other provisions that can properly be given effect in the absence of the invalid provisions. Rose v. Doctors Hosp., 801 S.W.2d 841, 844 (Tex.1990); see also Tex. Gov't Code § 311.032(c).
The Petitioners argue that, under these standards, section 26.177(d) does not unconstitutionally authorize de novo review of a legislative act. The Petitioners maintain that the Legislature did not expressly mandate de novo review, but rather used neutral terms consistent with the constitutionally appropriate standard for judicial review of legislative acts. Petitioners observe that section 26.177(d) employs terms such as "unreasonable" and "arbitrary," which are consistent with the standard of review traditionally employed in reviewing city ordinances. See City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex.), cert. denied, 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982)(city ordinance is presumed valid unless the ordinance is unreasonable and arbitrary); Hunt v. City of San Antonio, 462 S.W.2d 536, 539 (Tex.1971)(same). Petitioners also rely on this Court's holding in Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 394 (Tex.1989), that legislative acts can be reviewed for "efficiency." Petitioners alternatively urge that, even assuming that certain words in the statute impermissibly connote a de novo review, this Court should excise those words and uphold the remaining portions of the statute.
The City responds that section 26.177(d)'s effect is to require a court to reweigh the City's legislative decisions regarding the reasonableness, effectiveness, and efficiency of the Ordinance, which is an unconstitutional judicial review of public policy determinations. The intrusiveness of section 26.177(d) is demonstrated, according to the City, by the fact that the jury was asked to decide in this case, by a *116 preponderance of the evidence, whether the Ordinance was "inefficient," "unreasonable," or "arbitrary." Section 26.177(d) is not, the City continues, similar to a permitted review of whether a legislative act is unreasonable or arbitrary. Moreover, the City argues that Edgewood, 777 S.W.2d at 394, does not apply because our decision in that case was premised on a unique state constitutional provision, article VII, section 1, which charged the Legislature with the duty to provide for "an efficient system of public free schools." Because there is no constitutional mandate that a water quality ordinance be "efficient," the City avers that Edgewood does not mean that courts may routinely review the efficiency of legislation. Finally, the City asserts that severing any offending terms in section 26.177(d) would contravene legislative intent and would render the statute devoid of meaning.
The City correctly argues that the trial court erred in submitting a question for the jury to determine, based on a preponderance of the evidence, whether the Ordinance was arbitrary, unreasonable, or inefficient. The judiciary has no power to allow a jury to redecide the policy behind legislative issues by a preponderance of the evidence. See Southern Canal, 318 S.W.2d at 623-24. Instead, in reviewing an ordinance, the court is to consider all the circumstances and determine as a matter of law whether the legislation is invalidated by a relevant statute or constitutional provision. Cf. Comeau, 633 S.W.2d at 793. Nevertheless, the fact that the trial court in this case impermissibly submitted these questions to the jury does not mandate that the statute is unconstitutional. The submitted jury questions, being questions of law, are immaterial and will not be considered. Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 157 (Tex.1994)(court may disregard as immaterial a jury's finding on a question of law). We will instead rely on the provisions of the statute itself to determine its constitutionality.
The court of appeals focused on certain words in the statute, such as "inefficient," "ineffective," and "modify," as the basis for its conclusion that the statute unconstitutionally authorizes a de novo review for legislative acts. However, a standard of review is more than just words; rather, it embodies principles regarding the amount of deference a reviewing tribunal accords the original tribunal's decision. The key to determining whether section 26.177(d) authorizes a de novo review is therefore the amount of deference the statute requires the reviewing tribunal to give to the original tribunal's decision.
When conducting a de novo review, the reviewing tribunal exercises its own judgment and redetermines each issue of fact and law. Key Western Life Ins. Co. v. State Bd. of Ins., 163 Tex. 11, 350 S.W.2d 839, 846 (1961); Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 692 (1941); Ysleta Ind. Sch. Dist. v. Meno, 933 S.W.2d 748, 751 n. 5 (Tex.App.-Austin 1996, writ denied). In such a review, the reviewing tribunal accords the original tribunal's decision absolutely no deference. See, e.g., State v. Heal, 917 S.W.2d 6, 9 (Tex.1996); Ysleta, 933 S.W.2d at 751 n. 5. Accordingly, then, the controlling issue is whether section 26.177(d) requires that the Ordinance be given practically no deference by the reviewing court.
We hold that section 26.177(d) does not mandate such a result. In reaching this conclusion, we abide by the maxim that courts should, if possible, interpret statutes in a manner that avoids constitutional infirmities. Barshop, 925 S.W.2d at 629. We note that section 26.177(d) utilizes two words, "unreasonable" and "arbitrary," that this Court has repeatedly stated connote the proper deferential standard of reviewing a city ordinance. Comeau, 633 S.W.2d at 792 (city ordinance is presumed to be valid unless the ordinance is unreasonable and arbitrary); Thompson v. City of Palestine, 510 S.W.2d 579, 581-82 (Tex.1974)(describing extraordinary burden *117 on party attacking ordinance to show that reasonable minds could not differ on whether the ordinance has a substantial relationship to the general welfare and that the city acted arbitrarily); Hunt, 462 S.W.2d at 539 (city ordinance is presumed to be valid unless the ordinance is unreasonable and arbitrary).
In the context of the deferential standard predicated by the words "unreasonable" and "arbitrary," we cannot agree with the court of appeals that the inclusion of "inefficient" and "ineffective" somehow requires a transformation of the standard of review from the proper deferential standard to a standard in which the City's decision is afforded no deference. In fact, on prior occasions, albeit under different circumstances, this Court has interpreted the word "efficient" in a more deferential manner than would have been required under a de novo review. See, e.g., Edgewood, 777 S.W.2d at 398-99 (utilizing the term "efficient" in article VII, section 1 of the Texas Constitution to provide a standard to measure the constitutionality of the Texas system for financing public education in Texas, but recognizing that the Legislature, rather than the courts, had "the primary responsibility to decide how best to achieve an efficient system"); Central Educ. Agency of State of Texas v. Upshur County Com'rs Court, 731 S.W.2d 559, 561 (Tex.1987)(holding that Commissioner of Education's responsibility to "promote efficiency and improvement" did not mean that Commissioner could conduct a de novo review of county commissioners' detachment and annexation decisions). We accordingly perceive no constitutional impediment to judicial review of an ordinance to determine whether it is "inefficient" or "ineffective" under the appropriate deferential standard of review.
The principles that underlie this deferential standard of review for municipal legislation are summarized in our decision in Comeau, 633 S.W.2d at 792-93. The party attacking the ordinance bears the "extraordinary burden" to establish "`that no conclusive or even controversial or issuable fact or condition existed'" that would authorize the passage of the ordinance. Id. (quoting Thompson, 510 S.W.2d at 581). We consider all the circumstances and determine, as a substantive matter, if reasonable minds could differ as to whether the ordinance has a substantial relationship to the protection of the general health, safety, or welfare of the public. Id. at 793. If the evidence reveals a fact issue in this respect, the ordinance must be upheld. Id. Accordingly, we hold that, under this deferential standard of review, the Texas Constitution is not violated by the judiciary considering, according to the mandates of section 26.177(d) of the Water Code, whether a water control ordinance is invalid, arbitrary, unreasonable, inefficient, or ineffective in its attempt to control water quality.
We further do not believe that the provision in section 26.177(d) allowing the reviewing court to "modify" the city's action connotes an impermissible de novo review. Courts ordinarily cannot strike down an entire ordinance as invalid based on the invalidity of only a part of the ordinance, unless all the provisions of the ordinance are so dependent or connected that it cannot be presumed that one provision would have been passed without the others. Rose v. Doctors Hosp., 801 S.W.2d 841, 844 (Tex.1990). If a reviewing court were to determine that one portion of a water control ordinance was invalid, the court would therefore be required to "modify" the ordinance to delete the invalid portion if the remainder of the ordinance was complete in itself and capable of being executed in accordance with the apparent legislative intent. See id. The Legislature's use of the word "modify" thus does not render section 26.177(d) unconstitutional. We disagree with the court of appeals' holding that section 26.177(d) violates the separation of powers doctrine and is unconstitutional. Rather, we will interpret and apply section 26.177(d) consistent with the deferential *118 standard of review this Court articulated in Comeau.
B
Petitioners urge that the Ordinance's invalidity under the Comeau standard is manifest. Petitioners rely upon evidence in the record that, before the passage of the Ordinance, the City already had the most stringent water quality standards in Texas. Moreover, a city engineer and the head of Austin's Environmental Services admitted during trial that no discernible trend of pollution existed in Barton Springs prior to the Ordinance's enactment. Accordingly, Petitioners maintain that the Ordinance was unnecessary and based on flawed data.
Petitioners also complain that it is impossible to comply with the Ordinance. The Ordinance requires that a development not increase annual pollution loadings of thirteen identified constituents. Petitioners contend that the rules implemented by the City of Austin to execute the Ordinance require runoff surface water from a development to have lower average concentrations of some of these constituents than was found in certain rain samples taken in Austin.[3] In fact, Petitioners point out that the Ordinance requires that runoff surface water have less average nitrogen than contained in some name-brand bottled drinking water.[4] Petitioners allege that the Ordinance's practical effect is therefore a preclusion of all development in the watershed areas.
Petitioners also attack the lack of variances in the Ordinance. For instance, even if a landowner could establish that no increase in pollution would result from constructing a greater percentage of impervious cover than allowed under the Ordinance, no variance is permitted.
Finally, Petitioners impugn the Ordinance's financial impact. The City's own expert economist concluded that the Ordinance would, over a fifteen-year period, decrease property values in the watershed areas in the range of $229 million to $379 million. The Petitioners introduced evidence at trial that some land lost ninety percent of its value because of the Ordinance.
The City presented evidence at trial that sharply contradicted the Petitioners' arguments. In response to the Petitioners' evidence regarding the effectiveness of the water control ordinances in place before the Save Our Springs Ordinance, the City provided testimony that the Ordinance was cheaper and easier to administer than earlier measures. Further, the evidence also established that eighty-six percent of all development applications received a variance under the water quality ordinance in effect immediately prior to the Save Our Springs Ordinance. This excessive grant of variances under the prior ordinance, according to the City, obviously undercut its effectiveness.
To rebut the Petitioners' claim that it is impossible to comply with the Ordinance because its rules require that runoff be purer than rain, the City elicited testimony from Stephen Stecher, the project director of the Barton Creek watershed study. He testified that soil and plants on the ground *119 typically capture much of the nitrogen and some other constituents in urban rainfall before the constituents reach a creek or tributary. Accordingly, even assuming that the Petitioners' evidence regarding the rainfall samples was reliable, see ante at n. 3, the City contends that compliance with the technical rules is still possible because runoff is naturally less contaminated with certain pollutants than rainfall. In further support of its argument that it is not impossible to comply with the Ordinance, the City presented testimony from two developers that it is not only possible, but actually profitable to develop land in the watershed areas in compliance with the Ordinance. These developers both testified that they were anticipating sizable profits from their developments complying with the strictures of the Ordinance.
Finally, the City offered evidence that the impervious cover limitations in the Ordinance reduce polluting runoff and are a nationally-recognized method of protecting water quality. According to the City, the provisions restricting the pollutant constituents are only a small percentage of the 138 pollutants that the City is required to monitor under federal law. The restrictions on impervious cover and pollutant constituents, the City therefore urges, are clearly related to its goal of protecting the watershed from pollution in order to preserve water quality.
In light of the conflicting evidence presented at trial regarding the Ordinance, we cannot conclude that the Petitioners met 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 Petitioners presented evidence tending to establish that prior water control ordinances were sufficient such that the Ordinance was not necessary, the City's evidence regarding the excessive grant of variances under the prior measure precludes a determination that reasonable minds could not differ on the need for the Ordinance.
The trial testimony conflicts regarding a landowner's ability to comply with the Ordinance. The Petitioners offered scientific testimony attempting to establish that it was virtually impossible to comply with the Ordinance, but this testimony was refuted by the City. Moreover, the City also presented the testimony of two developers that, not only did the City approve their developments under the Ordinance, they actually anticipate profitable returns on their investments. The conflict in this evidence demonstrates that reasonable minds could indeed differ on whether compliance with the Ordinance is possible.
While the Petitioners decry the lack of a variance procedure in the Ordinance, the Ordinance does actually provide a limited variance to keep the Ordinance from running afoul of federal and state laws. Moreover, the Petitioners' complaint regarding the lack of a variance procedure ignores the evidence that the excessive grant of variances under prior water control measures had undercut their effectiveness.
We perceive that the real crux of the Petitioners' complaint is that the Ordinance unreasonably reduces property values and requires excessive expenditures in order to comply with its provisions. The Petitioners established that the Ordinance will result in at least a $225 million decrease in property values in regulated areas, and that the Ordinance has caused some parcels of land to lose ninety percent of their value. The City has not refuted this evidence.
However, in this case, the fact that the Ordinance severely impacts some property values does not make it 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, *120 it is indisputable that limiting pollutants in runoff water will aid in preserving water quality. We therefore conclude that the Ordinance's provisions are rationally related to its goal of protecting water quality.
Because we have concluded that the Ordinance is rationally related to the governmental interest in protecting water quality, the City has the right to significantly limit development in watershed areas in furtherance of this interest. See Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424, 72 S.Ct. 405, 96 L.Ed. 469 (1952). A governmental regulation can restrict, or even take, property for such a public benefit; however, if the regulation of property rights goes too far, compensation must be provided. See Barshop, 925 S.W.2d at 628. To the extent that the City's limitations on development deny all economically viable use of property or unreasonably interfere with the right to use and enjoy property, affected property owners may have a remedy in takings law. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex.1998)(recognizing that a compensable taking can occur if a governmental regulation totally destroys a property's value or if the regulation has a severe enough economic impact and the regulation interferes with distinct investment-backed expectations). Such a challenge is not part of this lawsuit. Our holding today that the Ordinance is not invalid, arbitrary, unreasonable, inefficient, or ineffective in its attempt to control water quality accordingly has no impact on any potential claim that the Ordinance unconstitutionally interferes with a landowner's property rights.
III
The Petitioners next attack the court of appeals' conclusion that the Ordinance is not void under sections 212.002 and 212.003 of the Local Government Code. Local Government Code section 212.002 provides:
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.
Tex. Loc. Gov't Code § 212.002. Local Government Code section 212.003 provides in pertinent part:
(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. However, unless otherwise authorized by state law, in its extraterritorial jurisdiction a municipality shall not regulate:
(1) the use of any building or property for business, industrial, residential, or other purposes;
(2) the bulk, height, or number of buildings constructed on a particular tract of land;
(3) the size of a building that can be constructed on a particular tract of land, including without limitation any restriction on the ratio of building floor space to the land square footage; or
(4) the number of residential units that can be built per acre of land.
Id. § 212.003.
Petitioners argue that (1) sections 212.002 and 212.003 govern the Ordinance, (2) the Ordinance was enacted without a public hearing in violation of section 212.002, and (3) the Ordinance effectively violates the prohibitions in section 212.003 by regulating the use, bulk, height, number, or size of buildings. Petitioners accordingly advocate that the trial court correctly held that the Ordinance was void. The City responds that sections 212.002 *121 and 212.003 do not apply because these sections are zoning statutes and the Ordinance is a water pollution control measure. We agree with the City.
By their express terms, sections 212.002 and 212.003 apply to ordinances that "govern plats and subdivisions of land." Further, the statutes' legislative history indicates that they govern a city's zoning authority, not a city's authority to apply water quality requirements. For instance, House Bill 3187, which amended section 212.003, "prohibits the application of zoning regulations in ETJ areas." Committee On Urban Affairs, Bill Analysis, Tex. H.B. 3187, 71st Leg., R.S. (1989). In fact, the Legislature made it clear that section 212.003 was not intended "to affect the ability of a municipality to apply water control requirements" in its extraterritorial jurisdiction. Conference Committee Report, Tex. H.B. No. 3187, 71st Leg., R.S. (1989). We therefore conclude that sections 212.002 and 212.003 apply only to zoning statutes, not water control measures such as the Ordinance.
Petitioners nevertheless assert that the Ordinance is, in effect, a zoning ordinance, not a water control ordinance. Petitioners argue that the Ordinance's impervious cover limitations effectively constitute a regulation on the use, bulk, height, number, and size of buildings in the City's extraterritorial jurisdiction in violation of section 212.003. Petitioners contend that we should consider the actual effect of the Ordinance, not its stated purpose, in determining whether the Ordinance must comply with these statutes.
However, we disagree with Petitioners' assertion that the Ordinance effectively constitutes a zoning regulation. The Ordinance's stated goal is to protect and preserve a "clean and safe drinking water supply" and "to prevent further degradation of the water quality in Barton Creek, Barton Springs, and the Barton Springs Edwards Aquifer." While the Ordinance clearly has effects on land use through its imposition of impervious cover limitations, these cover limitations are typical features in ordinances protecting water quality. Indeed, as discussed previously, such cover limitations are a nationally-recognized method of preserving water quality, and therefore we conclude that the cover limitations further the Ordinance's stated goal. On balance, the Ordinance is not a zoning regulation seeking to shape urban development, but rather is a measure designed to protect water quality. We accordingly hold that the requirements of sections 212.002 and 212.003 are not applicable to the Ordinance, and the Ordinance cannot be invalidated by these statutes.
IV
Petitioners also complain that the court of appeals erred in holding that the Ordinance is effective without the City first obtaining approval from the Texas Natural Resource Conservation Commission. Section 26.177(a) of the Water Code allows municipalities with populations in excess of five thousand to establish water pollution control and abatement programs. Section 26 .177(c) provides in pertinent part:
The water pollution and abatement program... must be submitted to the [Texas Natural Resource Conservation] commission for review and approval. The commission may adopt rules providing the criteria for the establishment of those programs and the review and approval of those programs.
TEX. WATER CODE § 26.177(c).
Petitioners argue that the Legislature clearly contemplated by the phrase "review and approval" that the Texas Natural Resource Conservation Commission would actually approve a city's water pollution and abatement control program before the program could become effective. Otherwise, Petitioners maintain that a city ordinance would remain effective even if the Commission later expressly disapproved the ordinance. Additionally, Petitioners *122 rely on the statute's bill analysis, which stated that:
Current law requires the preparation of pollution abatement plans by cities ... but does not require submittal, review and approval of the plans. There is currently no requirement for cities to notify anyone when a pollution abatement plan is established. Water pollution abatement plans, when properly prepared, can be beneficial in reducing water pollution. However, if a city fails to submit a plan, or submits an inadequate plan, there is no procedure for carrying out the intent of the law. This bill would provide for direct Texas Water Commission oversight of pollution abatement plans.
SENATE NATURAL RESOURCES COMM., BILL ANALYSIS, Tex. H.B. 1546, 71st Leg., R.S. (1989). Petitioners assert that the Commission cannot "provide oversight" of the pollution abatement plans if the plans can become effective before approval is obtained. Because the Ordinance undisputedly has not yet been approved by the Commission, Petitioners urge that it is not effective.
The City responds that its own charter prescribes when ordinances become effective. Any legislative limits on the City's authority to control the effective date of its ordinances cannot be implied, but must be set forth with unmistakable clarity. Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641, 643-45 (Tex. 1975). According to the City, section 26.177(c) does not state with unmistakable clarity that a water pollution control ordinance is not effective until the Commission approves it. Moreover, the City maintains that the statute's legislative history supports its position. The City also points out that the Commission itself considers any ordinance submitted for review to be effective prior to Commission approval. Indeed, the Commission has filed an amicus curiae brief in this Court requesting that we affirm the court of appeals' holding on this issue.
The City of Austin is a home-rule city deriving its power from article XI, section 5 of the Texas Constitution. A home-rule city is not dependent on the Legislature for a grant of authority. Lower Colorado River Auth., 523 S.W.2d at 643. Rather, the Legislature may provide limits on the power of home-rule cities, but only if the limitation appears with "u