City Of Dallas and Larry Holmes, in his Official Capacity as Chief Building Official for the City of Dallas v. East Village Association, 05-14-01406-CV (Tex. App. –Dallas July 21, 2015.
This is an interlocutory appeal from the denial of a plea to the jurisdiction in a case challenging the validity of a City zoning change via ordinance.
The City changed its zoning in a particular location to allow for the construction of a Sam’s Club store. The Dallas Development Code allows a variety of retail uses in Mixed Use 3 Districts, adopted by the Ordinance, as a matter of right, but “big box” stores are only allowed with a SUP, which carries its own requirements for issuance. Contending that they were surprised and upset by the news that a Sam’s Club store was coming to their neighborhood, property owners near East Village formed the Association to challenge the sufficiency of the notice given of the proposed change in zoning. The City filed a plea to the jurisdiction which was denied.
The court first determined that the Association has standing to bring suit. The City argued its purpose was to challenge the zoning which is not a proper non-profit purpose. However, the court held protecting the quality of neighborhood living is a civic purpose and qualifies. While the Association does not own property within 200 feet of the zoning change, at least one of its members does, objected to the zoning, and would be adversely impacted. Next, for jurisdictional purposes, immunity is waived under the Declaratory Judgment Act if a party challenges the validity of an ordinance. Unlike a Texas Tort Claims Act case where jurisdiction is intertwined with the merits, declaratory judgment actions are not interconnected with the underlying claim. Because lack of sufficient notice is a basis upon which the Ordinance would be void, the Association has pleaded a claim. When an ordinance is challenged for lack of sufficient notice as to the scope of the change in zoning, the issue of sufficiency of the notice is not a jurisdictional question, but rather a question as to the merits. Further, the Association presented competing evidence of the sufficiency so a fact question exists anyway. Finally, the Association brings ultra-vires claims seeking an order mandating that any permits already issued under the new zoning change be cancelled. The Association sought permanent injunctive relief for ultra vires conduct predicated on a void ordinance. While the City does maintain immunity from such claims, the city officials do not.
If you would like to read this opinion click here. Justice Lang-Miers, Justice Brown, and Justice Schenck. Opinion given by Justice Schenck. Attorneys for Appellee are Anthony Ricciardelli, and P. Michael Jung. Attorneys for the Appellant are James B. Pinson, Warren M.S. Ernst, Christopher D. Bowers, Christopher J. Caso, and Barbara E. Rosenberg.