City of Wimberley Board of Adjustment v. Creekhaven, LLC; and William D. Appleman, 03-18-00169-CV (Tex. App. – Austin, October 18, 2018)
This is a board of adjustment appeal case where the Austin Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the claims.
Campbell owns property next to Creekhaven and requested setback variances for construction of a pole barn which the Board of Adjustment granted with conditions. Creekhaven filed suit challenging the BOA’s order. While the trial court’s order in the case was pending, a deadline imposed by the order passed without Campbell having satisfied the requirements. According to the Board’s order, if Campell failed to comply by the deadline, the variance expired automatically. Campell filed a second variance request, which was also granted with the same conditions. Creekhaven amended its petition asserting the BOA had to make a determination on the first variance lapsing before granting a new variance. The BOA filed a plea to the jurisdiction as to the Uniform Declaratory Judgment Act (“UDJA”) claims which was denied. The BOA appealed.
The UDJA does not create a cause of action, but is a mechanism for adjudicating disputes already ripe. The UDJA waives immunity only to challenge the validity of an ordinance. It does not waive governmental immunity when the plaintiff seeks a declaration of rights under a statute or other law. Creekhaven seeks a declaration regarding the legal effect of the first variance. To the extent that Creekhaven’s request for a declaration that the variance has expired depends on a finding that Campbell failed to comply with various city ordinances by a certain date, it constitutes a request for a declaration interpreting those ordinances. Therefore, no waiver of immunity exists. Creekhaven also tried arguing that its UDJA claim asserts ultra vires acts by the Board members such that governmental immunity does not bar the claim and are barred by res judicata. However, the doctrine of res judicata, as an affirmative defense, would not deprive the BOA of authority to consider Campbell’s request for a variance. Thus, it would not render the BOA members’ actions ultra vires. Finally, to the extent Creekhaven’s UDJA claims seek to overturn the Board’s orders regarding the variances Campbell has requested, the doctrine of redundant remedies prevents it from seeking that relief. Its option is to pursue invalidation under Chapter 211 of the Texas Local Government Code. As a result, the plea should have been granted.
If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justice Puryear and Justice Field. Memorandum Opinion by Justice Field. The attorneys listed for the City are Mr. Gunnar P. Seaquist and Ms. Kelli Fuqua. The attorney listed for the Plaintiffs is Mr. Jimmy Alan Hall.