Because developer did not ascertain reason for City’s plat denial, no justiciable controversy exists

The Village of Tiki Island v. Premier Tierra Holdings, Inc., 14-14-00629-CV (Tex. App. – Houston [14th Dist.], March 24, 2015)

The Plaintiff sought a declaratory judgment action to determine vested development rights under Chapter 245 of the Texas Local Government Code. This is an interlocutory appeal from the denial of a plea to the jurisdiction where the 14th Court of Appeals determined no justiciable controversy exists and reversed the denial.

Premier Tierra Holdings, Inc., owns a tract of property in the Village of Tiki Island (“City”), located in Galveston County. Premier desires to develop or sell the property for a mixed-use marina development (the “Project”). Premier asserted that chapter 245 required the City to consider the approval of an application for a permit solely on the basis of the regulatory scheme existing at the time the first plat application for a project is filed, and therefore certain provisions of the City’s zoning ordinance (adopted later) could not be applied to its project. The application was denied.  Premier sued seeking a declaration it has a vested right as of its original plat application with the marina project. The City filed a plea to the jurisdiction asserting the relief sought was for a ruling on a “hypothetical future application of land-use regulations.”  The trial court denied the City’s plea and it appealed.

The court held that while Chapter 245 allows a declaratory judgment action to determine certain vested rights, at the time Premier filed its plat application, the City was governed by chapter 212 of the Local Government Code, which establishes the standards for approval of a proposed subdivision plat.  The City contended Premier never exercised its statutory right to request that the City provide the reasons for the denial, never appealed the denial, and never advanced the denial was improper. The court held “Premier’s request for declaratory relief fails to present a justiciable controversy because the record does not disclose the reasons why the City denied the 2010 plat application; no plat or permit applications have since been denied for any specified reasons; and Premier has not challenged the City’s denial of its plat application in this or any other proceeding.” The City was not required to approve the application simply because it was filed, but was entitled to approve, disapprove, or conditionally approve based on regulations in effect at the time. Essentially, since Premier did not ascertain the reason for the denial or attempt to cure any defects and the City has the right to deny for some reasons but not others, no controversy yet exists. The court disagreed that the claims failed because of mootness and ripeness and expressly stated that its opinion should not be read or implied to hold “the plat application itself or any statutory rights Premier acquired for the project as a result of filing the plat application are necessarily mooted..”  “Premier may have vested rights in the project, but there is no context within which to declare what they are. Any such declaration would be a prohibited advisory opinion that would not resolve” the dispute. Since the court could not do anything at this juncture, no jurisdiction yet exists.

If you would like to read this opinion click here. Panel: Justice Christopher, Justice Donovan and Justice Wise.  Opinion by Justice Wise.  The attorney for the Village is John J. Hightower.  The attorney listed for Premier Tierra Holding is H. Fred Cook.