Trial Court could not properly issue TRO to enjoin city from considering annexation ordinance

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In Re City of Pearland, 14-17-00921-CV (Tex. App. – Houston [14th Dist.], January 9, 2018)

The 14th Court of Appeals in Houston granted the City’s petition for mandamus compelling a trial court to lift its temporary restraining order issued in an annexation lawsuit.

Senate Bill 6, which requires a city to obtain consent by a majority of the property owners in an area before it can annex, went into effect December 1, 2017.  The City of Pearland attempted to annex an area prior to the effective date. On November 20, Plaintiffs filed their First Amended Petition, which alleged that the City, in the annexation process, had failed to comply with certain provisions of the Texas Open Meetings Act, amongst other things. Plaintiffs requested a temporary restraining order restraining the City from considering the annexation ordinance, which the trial court granted and set an injunction hearing for December 4, 2017. Pressed for time, the City filed a mandamus and request for emergency relief in the court of appeals.  The court issued an order for the trial court to remove the restraining order on November 27th , but filed this supplemental brief explaining its legal reasons.

Under section 551.142(a), a property owner, whose property has been annexed, has standing to challenge the validity of and enjoin an annexation ordinance based on violations of the Open Meetings Act.  Therefore, if the City did violate the Texas Open Meetings Act, the property owners have a legal remedy to challenge the annexation (after it occurs) for violations of the Act. The purpose of a TRO is to preserve the status quo. By restraining the City’s actions and setting a hearing after the deadline, the district court essentially had made a final, non-appealable adjudication affecting the City. That is not maintaining the status quo but issuing a ruling on the merits.

If you would like to read the opinion click here. Panel consists of Chief Justice Frost, Justice Busby and Justice Wise.  Memorandum Opinion Per Curiam. The attorneys listed for the City are John J. Hightower, Scott Bounds and Allison Poole. The attorneys listed for the property owners are Sayyed Omar Izfar, Scot Clinton and H. Fred Cook.

Waco Court of Appeals holds property owner was precluded from bringing further claims for disannexation

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Karen Hall v. City of Bryan, 10-16-00044-CV (Tex. App. –- Waco, January 3, 2018)

This is a disannexation lawsuit where the Waco Court of Appeals affirmed the trial court’s summary judgment motion dismissing the Plaintiff’s claims for disannexation.

This is the third lawsuit (4th appeal) brought by Hall in order to disannex property which was annexed by the City back in 1999. The procedural history entails various trips to the Waco Court of Appeals. In 1999 the City annexed a strip of lands leading up to the City’s airport, one section belonging to Hall. Hall originally sued for disannexation in 2004 asserting the City failed to follow the annexation service plan but was unsuccessful. She sued again in 2010 and was unsuccessful. She sued again in 2012.  Each time Hall attempted different grounds and claims seeking disannexation. In the present case (Hall III), the City filed a plea to the jurisdiction which the trial court granted and Hall appealed. The Waco Court affirmed in part and reversed in part, holding that the court had jurisdiction to hear the claims the City failed to provide proper police patrols under the annexation plan created in 1999.  All other claims were dismissed. The case was remanded for the police patrol claim and Hall amended her petition again trying to reinject the dismissed claims. The City filed a motion for summary judgment as to all claims, which the trial court granted. Hall appealed.

The Waco Court of Appeals first examined whether Hall’s amended petition after remand raised new claims or if they simply recast the claims already dismissed. The court determined she simply re-labeled claims for failing to provide sanitary sewers, fire suppression with hydrants, or a water line capable of supporting fire hydrants. Under the law of the case doctrine, the court would not revisit such claims and they remain dismissed. As to the police patrol claims, the City first asserted the claims were barred by res judicata since Hall raised or could have raised the same claims in Hall I. Hall’s twist on the police patrol claim is that the even if the City provided police patrols, it did not provide them “in good faith” under Chapter 43 of the Local Government Code. The court analyzed the evidence submitted in the City’s summary judgment and noted Hall expressly agreed that in her 2004 petition, she was complaining that the City was not conducting routine and preventative police patrols. Further, she agreed that, in anticipation of supporting her petition for disannexation in 2004, she had recorded 130 hours of video purportedly showing no routine patrols on a street in the annexed area. This is some of the same video evidence she contended supports her claims in her 2014 petition. Regardless of whether the specific claim of no regular or routine preventative police patrols was actually pursued in the 2004 petition for disannexation, Hall knew the claim was present in 2004 and could have raised it. Under the principle of res judicata, such claims are precluded in the present case. The judgment of the trial court is affirmed.

If you would like to read this opinion click here.  Panel consists of Chief Justice Gray, Justice Davis and Justice Scoggins. Memorandum Opinion by Chief Justice Gray.   Karen Hall appeared pro se.  The attorneys listed for the City are Ryan Henry, Janis Hampton, and Artin DerOhanian.

In annexation opposition, Dallas Court of Appeals opinion could result in trial courts using TOMA injunction provision to prevent legislative acts not yet up for vote

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In Re: City of Mesquite, Texas 05-17-01303-CV (Tex.App— Dallas, November 14, 2017)

In this original mandamus proceeding, the Dallas  Court of Appeals held the trial court did not abuse its discretion in granting certain injunctive relief prohibiting annexation in an extraterritorial  jurisdiction.

In its request for injunctive relief, the County alleged that the City violated the Texas Open Meetings Act (“TOMA”) and Texas Local Government Code by failing to provide proper notice of certain meetings and proper notice of the land sought to be annexed. Essentially, the County, through its authority to bring matters on behalf of the State of Texas, filed this as a quo warranto proceeding. The City, as noted in its briefing, was attempting to complete the annexation before the application of recent legislation changing the annexation scheme in Texas.  The trial court issued an injunction order prohibiting the City from taking any action until the trial court made a ruling on the merits. The City filed an original mandamus petition in the Dallas Court of Appeals seeking to have the court order the trial judge to vacate the injunctive order.

The City does not address the intervenors’ and County’s allegations of TOMA and Local Government Code violations or their contention that injunctive relief was properly sought and obtained under TOMA.  It does not explain how the allegations of TOMA violations are not likely to reoccur. Finally, the City contends that if it cannot annex the properties in question today, it will not be able to annex them at all. However, it does not explain how that contention would establish that the trial court abused its discretion.  As a result, it has not established the requirements entitling it to mandamus relief. [Comment: the opinion does not address the City’s arguments in its brief that the trial court lacked authority to enjoin a legislative function, which addresses the injunctive ability under TOMA and Local Government Code and that the annexation law changes effective December 14th, so no similar occurrence is possible. The State asserted the injunction only prevented the  City from holding meetings contrary to state law and that no irreparable injury is necessary to receive a TOMA injunction.]

If you want to read the opinion, click here. The panel consists of Justices Lang-Miers, Myers and Boatright. Justice Boatright delivered opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.

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.

Interpretation of ordinance involving boundaries between two cities is not a “political question” but a matter of statutory construction says Texas Supreme Court

City of Ingleside v City of Corpus Christi, 14-0548 (Tex. July 24, 2015)

This declaratory-judgment action involves a boundary dispute between the City of Ingleside and the City of Corpus Christi over the scope of an ordinance establishing the adjacent bay waters’ “shoreline” as the common border. At issue is whether wharves, piers, docks, and other objects affixed to Ingleside’s shore and projecting into bay waters are wholly on the land or water side of the “shoreline” boundary. Ingleside sued Corpus Christi seeking a declaration that “structures, both natural and man-made, that are attached to and part of the fast land, and are functionally part of the land, are entirely within the jurisdiction of” the land side of the “shoreline.” The City of Corpus Christi filed a plea to the jurisdiction which the trial court denied.  The court of appeals reversed holding the trial court lacked jurisdiction because the boundary dispute is purely a “political question . . . not subject to judicial review.”  The Texas Supreme Court disagreed holding the declaratory-judgment action requires the court to interpret relevant boundary ordinances not select the appropriate boundary line.  The Court, however, remanded to consider the remaining jurisdictional challenges brought by the City, since the Court of Appeals did not reach them after determining a political question existed.

After going through some history, the Court held the procedural validity of a territorial annexation may be judicially determined—but a legislative decision to annex territory and the reasons underlying such a decision are not subject to judicial scrutiny. Ingleside does not seek a declaration involving the wisdom or purpose behind the ordinances, but seeks a judicial interpretation of the word “shoreline” which is a matter of statutory construction. As a result, the Court of Appeals incorrectly determined the dispositive issue as one of being a political question.  The remaining jurisdictional challenges must be reconsidered by the Court of Appeals.

If you would like to read this opinion click here. Per Curiam Opinion. The docket sheet with attorney information can be found here.

 

Property owner’s annexation dispute must go back to trial court to determine res judicata application says 10th Court of Appeals

Karen Hall v. City of Bryan, Texas, 10-12-00248-CV (Tex. App. – Waco, July 24, 2014).

This is an annexation dispute and the third time Hall sued for disannexation. The 10th Court of Appeals affirmed in part and reversed in part the trial court’s grant of the City’s plea to the jurisdiction.

It is important to note up front this is not a challenge to the City’s ability to annexation (which is typical for annexation challenges) but a challenge for the lack of providing services under an annexation service plan, which is authorized by statute. In 1999 the City unilaterally annexed property owned by Hall as part of a larger annexation plan. Hall’s first suit challenged the City’s ability to annex the property but was dismissed upon the City’s summary judgment motion and affirmed by the 10th Court. Her second suit challenged the City’s ability to provide services under the plan and alleged a lack of services. The City filed a plea to the jurisdiction and summary judgment which were granted and affirmed. Hall’s third suit asserts the City failed to provide services “in good faith” consistent with the Local Government Code.  The City filed a plea to the jurisdiction which was granted and Hall appealed.

Hall’s claims center around Tex. Loc. Gov’t Code Ann. §43.141(b) (West 2008), which states in part that a registered voter can bring suit for disannexation after several years if the “municipality failed to perform its obligations in accordance with the service plan or failed to perform in good faith.” The Waco Court of Appeals held that the City’s arguments of res judicata, collateral estoppel and statute of limitations cannot be raised in a plea to the jurisdiction as they are affirmative defenses.  So all of the City’s arguments centered on those defenses are not considered in this appeal.  The court next held that Hall’s complaints about the adequacy of the service plan and that the plan should have provided for additional services are not ones she has standing to pursue as those relate to the annexation process, which can only be challenge via a quo warranto suit by the state. The court explained that Hall’s arguments of failing to perform “in good faith” are not separate from providing services under the service plan and not an independent basis for challenge. The statute can only mean the failure to perform under the service plan in good faith, not other good faith challenges to other parts of the annexation statute. Further, since the service plan did not provide for water or sewer services paid for by the City, Hall cannot challenge the adequacy of providing a service not in the plan. However, the plan does specifically state the City would provide police protection with routine preventative patrols. Hall alleges the police presence in the area is far less than those in the rest of the City.  And while this issue was addressed in her prior suits, a plea to the jurisdiction is not the proper place to raise prior rulings on the issue. Hall properly alleges a cause of action for failing to provide sufficient police protection and the City must go back to the trial court to establish whether that issue is barred by res judicata. As a result, the court affirmed in part and reversed in part the trial court’s judgment and remanded.

If you would like to read this opinion click here.  Panel: Chief Justice Gray, Justice Davis, and Justice Scoggins. Memorandum opinion by Chief Justice Gray. Karen Hall was pro se. The attorneys listed for the City are Ryan Henry and Janis Hampton.

General law City’s annexation proper despite lack of specific consent

Waterway Ranch, LLC v. City of Annetta, 02-12-00309-CV (Tex. App. – Fort Worth, August 23, 2013).

This is a case challenging an annexation by the City of Annetta, a general law Type A municipality.  As a general law city, with certain exceptions, it cannot annex property without property owner consent. Waterway did not consent and asserted it did not fall under any exception to annexation.  However, Waterway’s property was part of a larger track of which a majority of the property owners did request annexation.

Waterway brought a declaratory judgment action to declare the ordinance invalid, to declare that if valid they have a nonconforming use, and for inverse condemnation. Waterway asserted it intended to use the property for a mobile home community and the citizens in the area petitioned for annexation to prevent the use of that land as it was against City regulations. The trial court granted the City’s motion for summary judgment as to the ordinances and its plea to the jurisdiction as to nonconforming use and inverse condemnation and Waterway appealed. During the appeal the bank foreclosed on Waterway’s property and the City moved to dismiss the appeal as moot. The court held it was not moot since the inverse condemnation claim vested at the time of the action and attorney’s fees were still outstanding.

Waterway argued its track was separate from the other property owners because it is separated by a roadway. The court held the plain language of Tex. Loc. Gov’t Code §43.024 notes an “area” can be annexed based on a petition by a majority of property owners and the presence of a roadway does not automatically create a legal separation. As a result, the property could be annexed.  Waterway’s assertion that no evidence a majority of qualified voters property petitioned for annexation (by attacking affidavit qualifications) were procedural challenges which could only be brought in a quo warranto proceeding. The trial court therefore properly granted summary judgment. As to the plea, since Waterway never began any efforts to develop the property as a mobile home community their declaratory relief for non-conforming status is not essential to the underlying dispute and therefore not ripe. Likewise the inverse condemnation claim was not ripe since it did not seek recognition for non-conforming status under the City’s administrative proceeding. The trial court’s orders were therefore affirmed.

If you would like to read this opinion click here.