By Trent Appleby
House Bill 2439 was signed into law by Governor Greg Abbot on June 14, 2019, after garnering overwhelming support from both the House (133 to 9) and Senate (26 to 5). The law went into effect September 1, 2019, and provides – with some exceptions – that a city may not regulate building materials or impose methods more stringent than those established by a national model code.
More specifically, the newly enacted law provides that a governmental entity, including a city, may not adopt a rule, ordinance, building code, or other regulation that: (1) prohibits or limits the use or installation of a building product or material in the construction, maintenance, renovation, or other alteration of a residential or commercial building if the building product or material has been approved by a national model code published within the last three code cycles; or (2) establishes a standard for a building product, material, or aesthetic method in the construction, renovation, maintenance, or other alteration of a residential or commercial building if the standard in more stringent than standards established by a national model code published within the last three code cycles. See Texas Gov’t Code Section 3000.002(a)(1) & (2).
Viewed favorably by developers and builders, the law addresses wide-spread concerns regarding the elimination of consumer and builder choice in construction through restrictive local municipal zoning ordinances, building codes, design guidelines, and architectural standards. The law seeks to reduce the cost of construction and eliminate the ability of a governmental entity to enact overly restrictive regulations. Essentially, the Legislature sought to combat city ordinances enacted to require builders to use products available from only one or a few sources benefiting only those vendors.
On the other hand, cities view the law as removing its ability to regulate building material and construction and as a result undermining the aesthetic and structural integrity of its neighborhoods and communities. As with any newly enacted law, the true parameters must be clarified and legal challenges are expected. In the meantime, it appears cities have little choice but to amend and repeal ordinances and other regulations that conflict with the law. Many cities have taken “temporary” measures for an interim period pending clarification.
How stringently the law will be enforced has yet to be determined; however, a breakdown of the core provisions of the law indicate the Legislature intended a broad application requiring cities to strictly abide by its requirements.
The law clearly applies to “residential” and “commercial” buildings. See Texas Gov’t Code Section 3000.002(a)(1). While the terms “residential” and “commercial” are not defined, it is safe to assume single and multi-family homes, apartments, townhomes, and the like are subject to the law. However, because a city can define terms by ordinance, cites may attempt to limit the law’s reach by narrowly defining “commercial” in its ordinance. While it is safe to assume retail use falls within the meaning of commercial, an overzealous city may argue that warehouses, distribution centers, storage facilities, and industrial buildings are beyond the scope of the law by redefining the term “commercial” as applied in the city code. Again, the exact scope of the law will not be known until legal challenges inevitably arise.
Despite near unanimous opposition from Texas cities, the law is not a blanket grant to developers and builders to do as they please. The law is limited to governmental entities. It does not prohibit HOA restrictive covenants, nor development agreements imposing certain restrictions. Thus, developers and homeowners retain the right to impose restrictions and maintain a desired aesthetic appeal.
Ultimately, the law is a clear win for developers and builders. By eliminating the ability of a governmental entity to enact overly restrictive, vendor-driven building regulations, the law will encourage development and make housing more affordable. In the meantime, cities are forced to carefully re-examine their ordinances to ensure compliance with the law.
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About Trent Appleby
Trent focuses his practice on commercial and corporate transactions, real estate transactions, and corporate formation and governance matters. He also has experience in litigation, with an emphasis on commercial and residential construction litigation. In addition to construction-related matters, Trent prosecutes and defends various commercial and real estate-related disputes.Learn more about Trent…