City’s jurisdictional plea denied in case asserting City’s development agreement equates to contract zoning

City of Shavano Park v. Ard Mor, Inc., et al, 04-14-00781-CV (Tex. App. – San Antonio, July 29, 2015)

This is an interlocutory appeal from the denial of a plea to the jurisdiction involving a challenge to an adjacent development agreement and zoning change. The San Antonio Court of Appeals reversed in part and affirmed in part.

Ard Mor operates a child care facility. Lockhill Ventures, LLC owns two lots of land adjacent to the childcare facility, which is subject to deed restrictions. . Lockhill Ventures intends to build a gas station and gas storage tanks next to Ard Mor’s facility. The City’s zoning does not list “gas station” as a permitted use. However, the Lockhill property is subject to a development agreement in which, once annexed, Lockhill is permitted a project which includes a convenience store with gas station. Ard Mor sued the City and Lockhill. The City filed a plea to the jurisdiction, which was denied after the court heard four days of testimony in a temporary injunction hearing. The trial court enjoined Lockhill, but not the City.  The City remained a party to suit.

Ad Mor’s numerous requests for declaratory relief against the City fall into four requests for relief: construe various City ordinances, declare the Agreement void, declare the annexation ordinance void, and declare the actions of the City and its officials to be ultra vires acts which violated their due process rights. The court first addressed Ad Mor’s request to invalidate the agreement as being contract zoning. The court held that since the City did not set its plea to the jurisdiction for a hearing, but merely urged it during the temporary injunction, Ad Mor did not have the ability to develop the record to establish its jurisdictional basis. Therefore remand on this claim is proper. Ad Mor’s claims challenging the annexation ordinance are not attacks on procedural irregularities (which can only be brought in a quo warranto proceeding) but an assertion that contract zoning makes the ordinance void. This is a permissible challenge under the Declaratory Judgment Act. However, Ad Mor failed to allege a proper due process claim, mainly because it did not allege it was treated differently than someone else. Additionally, Ad Mor brought ultra-vires claims against the City, not its officials. Such claims can only be brought against officials and therefore the claims against the City are improper. Finally, the court held the City did not properly challenge the claims to interpret its zoning ordinances, so it will not address them on appeal. As a result, the court affirmed in part, reversed in part, and remanded for further processing.

If you would like to read this opinion click here. Panel: Chief Justice Marion, Justice Martinez and Justice Alvarez.  Memorandum Opinion by Chief Justice Marion.  The attorneys listed for the City are Lowell Frank Denton, Elizabeth Provencio and Patrick Charles Bernal.  The attorneys listed for Ard Mor and other Plaintiffs are Aaron Saxon, Jay K Farwell, Karen L. Landinger, and David Lawrence Earl.

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