13th Court of Appeals holds building and standards commission order was final, so could not be collaterally attacked under TOMA

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Harker Heights Condominiums, LLC v. City of Harker Heights, Texas, 13-17-00234-CV (Tex. App. – Corpus Christi, March 28, 2019).

In this case the 13th Court of Appeals affirmed the granting of the City of Harker Heights’ plea to the jurisdiction dismissing a claim for injunctive relief to prevent the demolition of a building.

Harker Heights Condominiums (HHC) owns property on which thirty-three condominium units sit and that are leased to low income residents in need of housing. The City inspected the property, found defects and ordered repair.  The inspector found substandard conditions rising to such a level as to pose substantial danger to life, health and property.  The City’s Building and Standards Commission ordered certain properties repaired within ninety days or be demolished. HHC was able to bring one unit up to code, but was not able to timely repair the remaining units. After the City awarded a demolition contract, HHC sued to prevent destruction of the units. An initial temporary injunction was granted. After HHC added a claim for violating the Texas Open Meetings Act (TOMA) the City filed a plea to the jurisdiction which was granted. HHC appealed.

Texas law permits municipalities to establish commissions to consider violations of ordinances related to public safety. The local government code provides for judicial review of any decision of a building and standards commission panel, but the “district court’s review shall be limited to a hearing under the substantial evidence rule.” To appeal an order of a building and standards commission, an aggrieved party must file a verified petition in district court within thirty days of the commission’s order.  HHC waited eighty days. HHC asserted the “decision” was actually the City Council decision to award the demolition contract, not the Commission’s decision. However, the City’s award was merely the granting of a contract, not an order outlined in Chapter 214 of the Local Government Code. The court noted that even if the HHC injunctive relief were interpreted to be a proper petition for review under Chapter 214, it was nonetheless untimely. This untimely filing also means HHC’s TOMA suit is untimely as holding otherwise would subject the commission order to impermissible collateral attack. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Contreras, Justice Hinojosa and Visiting Judge Dorsey. Memorandum Opinion by Visiting Judge Dorsey. The attorneys listed for the City are Charles D. Olson, Charles Alfred Mackenzie and Burk A. Roberts.  The attorneys listed for HHC are Brandy Wingate Voss,  Ryan D. V. Greene and  G. Alan Waldrop.

Lack of due care finding by accident review board is evidence only of negligence, not recklessness under emergency responder exception to TTCA

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Harris County v. George J. Spears, 14-17-00662-CV (Tex. App. – Houston [14th Dist.], September 25, 2018)

This is an interlocutory appeal where the Fourteenth Court of Appeals reversed the denial of the County’s plea to the jurisdiction in this emergency responder/vehicular accident case and rendered judgment for the County.

While responding to an emergency call (i.e. possible suicide and medical emergency), Deputy Corporal Baskins collided with Spears at an intersection. As Baskins approached the intersection he slowed almost to a complete stop.  The cars moved to permit Deputy Baskins to proceed through the intersection. As Baskins drove through the intersection, a vehicle driven by Spears hit the rear passenger side of his patrol vehicle. The vehicle’s siren clearly can be heard in the dash cam video.  The County’s accident review board noted Baskins failed to use “due care” by not clearing the intersection first and issued a 1-day suspension. The County filed a combined motion for summary judgment and plea to the jurisdiction, which the trial court denied. The County appealed.

The emergency responder provision of the Texas Tort Claims Act (“TTCA”) retains immunity unless a responder drives with “reckless disregard for the safety of others.”  The burden of proof is on the plaintiff to show that the emergency response exception does not apply.  The term “emergency” is interpreted broadly under the TTCA.   Deputy Baskins’s affidavit stated the importance to preserve the scene before family arrive and the varying needs when responding to such calls. The evidence established an emergency existed. Further, Spear’s arguments do not justify limiting the emergency response exception to preclude application to a backup responder to a priority two call. The evidence shows that Deputy Baskins was not acting with reckless disregard at the time of the collision. The accident review board’s reprimand does not create an issue of fact regarding recklessness — rather, the board’s conclusion that Deputy Baskins “failed to exercise due care” is evidence only that Deputy Baskins acted negligently in entering the intersection.  As a result, the County’s dispositive motions should have been granted.

If you would like to read this opinion click here. Panel consists of Justice Boyce, Justice Donovan and Justice Wise. Memorandum Opinion by Justice Boyce.  The attorney listed for the County is Patrick Nagorski.  The attorneys listed for Spears are Christina Minshew Lewis and Nichole Marie Nech.

City properly brought enforcement of junked vehicle ordinance in district court, but city ordinance did not properly adopt alternative administrative procedure

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In re Philip T. Pixler, 02-18-00181-CV (Tex. App. – Fort Worth, July 26, 2018).

This is a mandamus suit where the Fort Worth Court of Appeals held the district court had jurisdiction over the City of Newark’s enforcement of its junk vehicle ordinance, but that the City ordinance did not properly create an alternative mechanism to allow for administrative penalties.

Pixler owns an auto-tech business and would sometimes store vehicles in parking spaces and on the neighboring property.  Pixler was given eight complaints which were submitted to an administrative board under the City’s ordinances. The board determined the vehicles were junk vehicles and assessed $8,000 in administrative penalties. Pixler did not challenge the board decision directly. The City then filed a petition in district court seeking (1) to enjoin Pixler from further violating its ordinances, (2) to collect the $8,000 in administrative penalties, and (3) to impose separate civil penalties against Pixler for continuing to violate its ordinances. The City won a partial summary judgment motion and awarded penalties totaling $80,000.00, but since the City’s Texas Uniform Fraudulent Transfers Act claim is still pending, no final judgment has been entered.  Pixler filed this mandamus proceeding challenging the district court’s subject matter jurisdiction over the matter.

The court divided the holding into roughly three parts: district court jurisdiction over junk-vehicle determinations, district court jurisdiction over administrative penalties assessed by the administrative board, and the district court’s jurisdiction over the additional civil penalties. Subchapter B of chapter 54 of the Texas Local Government Code addresses health and safety ordinances and allows a district court to have jurisdiction over enforcement of such ordinances. And §54.016 permits the municipality to obtain injunctive relief against the owner of the premises that is allegedly in violation of the ordinance. Since the City ordinance declares any junked vehicle visible from a public place to be detrimental to the safety and welfare of the public, enforcement is properly in the district court.  And since §54.017 allows civil penalties of no more than $1,000 per day, the district court has jurisdiction over the civil penalties. However, for administrative penalties assessed by the administrative board, the City’s ordinances did not comply with the statutory requirements. The City’s ordinances adopt the procedures established under the Texas Transportation Code chapter 683 for abatement of junked vehicles. But, the procedures adopted address enforcement in municipal court before a judge.  And while Subchapter E of Chapter 683 allows a city to adopt an alternative procedure for junked vehicles and §54.044 of the Local Government Code likewise allows a city to adopt a general alternative procedure, none of the City’s ordinances actually did that. The court acknowledged the City has the statutory authority to adopt an alternative administrative procedure, but to do so, the City must adopt a specific ordinance setting out the process. Simply because the City has a municipal court of record, does not, by default, mean it can utilize an alternative administrative procedure. Because the City utilized that procedure when its ordinances did not adopt one, the administrative board lacked authority to assess the $8,000 administrative penalty.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justice Walker and Justice Meier. Opinion by Justice Meier.  Attorneys listed for the City real parties in interest are William Andrew Messer  and William W. Krueger, III.  Pixler appeared pro se.

City ordinance allowed to make additional criteria for dangerous animal determination says Amarillo Court of Appeals

Shannon Nicole Washer, et al. v. City of Borger, 07-16-00413-CV (Tex. App. – Amarillo, July 31, 2018).

In this case the Amarillo Court of Appeals affirmed the dismissal of the Plaintiffs’ claims challenging the constitutionality of an animal control ordinance and a dangerous dog determination preemption issue.

The City of Borger, a home-rule municipality, has an animal control ordinance and dangerous dog determination adoption under Tex. Health & Safety Code § 822.0421. Borger’s ordinances established an animal control authority to investigate dangerous animals (not just dogs), secure impoundment, if necessary, and provide a process for appeal.  Appeals go to municipal court. The authority’s written determination that the animal is dangerous gives rise to a rebuttable presumption that the animal is a dangerous animal. Appeal from the municipal court goes to a county court or county court at law. Washer sued to prevent the application of the ordinance against her and her dog. She obtained a temporary injunction, but on final hearing, the court dismissed her claims. She appealed, but due to the lack of a reporter’s record, the court considered only those issues reviewable by reference to the clerk’s record.

City regulations ancillary to and in harmony with the general scope and purpose of state law are not preempted. Further, Tex. Health & Safety Code § 822.047 allows a city to place additional regulations on the state law dangerous dog determination criteria. Using statutory construction principles, the court held the ordinance was not in conflict with state law or the constitution. The ordinance provides for the taking of sworn statements in addition to interviewing individuals, examining the animal and reviewing other relevant information. Being more specific or providing additional information is not a contradiction. State law does not limit the investigation to sworn testimony. Further, state law is silent on whether a presumption exists of dangerousness after an authority makes a determination.  As a result, the judgment is affirmed.

If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, Justice Pirtle and Justice Parker. Memorandum Opinion by Justice Pirtle. The attorney listed for Washer is Frank Lay.  The attorney listed for the City is Joseph Parsons.

Texas Supreme Court holds City plastic bag ban preempted under the Solid Waste Disposal Act

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City of Laredo v Laredo Merchants Association, 16-0748, — S.W.3d. – (Tex. June 22, 2018)

The Texas Supreme Court held the City’s plastic/paper trash bag ban is preempted.

As part of a strategic plan to create a “trash-free” city, the City of Laredo adopted an ordinance to reduce litter from one-time-use plastic and paper bags. The Ordinance makes it unlawful for any “commercial establishment” to provide or sell certain plastic or paper “checkout bags” to customers. The Laredo Merchants Association (the Merchants) sued the City to declare the ordinance preempted by state law. The Solid Waste Disposal Act, specifically Tex. Health & Safety Code §361.0961, precludes a local government from prohibiting or restricting “the sale or use of a container or package” if the restraint is for “solid waste management purposes” not otherwise authorized by state law. The trial court granted the City’s summary judgment motion, but a divided court of appeals reversed and rendered judgment for the Merchants. The City appealed.

A statutory limitation of local laws may be express or implied, but the Legislature’s intent to impose the limitation “must ‘appear with unmistakable clarity.’” The Solid Waste Disposal Act’s policy is to reduce municipal waste to the extent feasible. The Act’s preemption of local control is narrow and specific, applying to ordinances that “prohibit or restrict, [1] for solid waste management purposes, [2] the sale or use of a container or package [3] in a manner not authorized by state law”. The court held “solid waste management” refers to institutional controls imposed at any point in the solid waste stream, from generation of solid waste to disposal. The definition includes the systematic control of the generation of solid waste. The City’s argument the bags were not solid waste under the Act’s definition because they had not yet been discarded as waste at the point of regulation was rejected. Further, the Court held A single-use paper or plastic bag used to hold retail goods and commodities for transportation clearly falls within the ordinary meaning of “container”. Under the Act’s immediate context, the words “container” and “package” are not accompanied by words modifying or restricting the terms. The Act is not concerned solely with discarded materials but also includes regulations applicable to the production, retail sale, and distribution of new consumer goods. Finally, the Court held the preemption provision applies to local regulation when the manner is not authorized by state law. Manner is how something can be done, not merely if it can be done. The Act removes a home-rule city’s general power over solid waste, but provides limited authority back in certain situations not applicable here.  The City’s Ordinance does not fall within a manner authorized by another state law. As a result, the Act preempts the City’s ordinance.

Justice Guzmon concurred but wrote separately to emphasize the balance needed in such a situation. The City’s Ordinance had a valid environmental purpose. “Improperly discarded plastics have become a scourge on the environment and an economic drain.” Her opinion highlighted the damage caused by unchecked waste ranging from animals, to ranchers, to the agricultural industry. However, the City’s Ordinance listed only a moderate form of impact and had a direct financial impact on the merchants and non-local vendors. She noted a lack of uniform state-wide regulations creates concern and negative impacts, so some preemption is understandable and necessary. In the end the balance of all competing interests is the purview of the legislative branch, not the judicial branch.

If you would like to read this opinion click here. Opinion by Chief Justice Hecht. Concurring opinion by Justice Guzman, joined by Justice Lehrmann.  The docket page with attorney information is found here.

City not required to adopt formal criteria for non-consent tow list and may consider intangible/subjective factors

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 Integrity Collision Center v. City of Fulshear, No. 15-20560 ( 5th Cir. September 20,2016)

This is an injunction case where a tow-truck company sued to compel the City to include it in the City’s non-consent tow list. The U.S. Court of Appeals for the Fifth Circuit reversed the injunction and dismissed the claims against the City.

The City created a non-consent tow list of private companies it calls upon to tow vehicles that are to be impounded. The police chief included only two companies but excluded Integrity and Buentello. There was no formal process or requirements for reaching that decision. Integrity and Buentello sued the city alleging that the City’s refusal to include them on the non-consent tow list violated the Equal Protection Clause.  Integrity and Buentello contended that the city had no rational basis for excluding them despite being similarly situated to companies on the list. The city maintained that the plaintiffs had no legal claim (because creating the list was a discretionary decision that was not subject to a class-of-one equal protection claim) and that there was a sufficient rational basis. Both parties filed opposing summary judgment motions. The trial court ruled in favor of the tow-truck companies and the city appealed.

The 5th Circuit first addressed its own jurisdiction and determined that what the trial court ordered (i.e. the City must include Integrity and Buentello on the non-consent list) qualified as an injunction appealable under Section 1292(a)(1). Next, a class-of-one equal-protection claim lies “where the plaintiff alleges that [it] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” “Typically, a class of one involves a discrete group of people, who do not themselves qualify as a suspect class, alleging the government has singled them out for differential treatment absent a rational basis.” However, a class-of-one equal-protection claim “is unavailable in a ‘public employment context.’” That conclusion logically applies as well to a local government’s discretionary decision to include or not include a company on a non-consent tow list, where “allowing equal protection claims on such grounds ‘would be incompatible with the discretion inherent in the challenged action.’” Further, no discriminatory intent is evident anywhere in the record. And while a non-consent tow list criteria can have measurable factors (such as insurance levels and proximity) there are also equally important factors that are not reasonably measurable, such as reputation, personal experience, and the particularities of how the City wishes to operate its non-consent tow program. The police chief’s considerations as he drew up the non-consent tow list demonstrate this well. As part of the selection process, he considered previous experience working with the chosen companies on non-consent tows. He thought it important that the towing companies be able to “work together” and “support each other” in completing towing assignments. He concluded that two companies were enough to satisfy the city’s non-consent needs. Those considerations are a reasonable part of a purchasing decision which means some companies will inevitably be excluded. Cities are not constitutionally required to develop a formal process with constitutionally measurable criteria for determining from whom they will purchase towing services.  “Furthermore, it is impractical for the court to involve itself in reviewing these countless discretionary decisions for equal-protection violations.” As a result, the court reversed the trial court’s order and rendered a decision for the City.

If you would like to read this opinion click here. The Panel includes Circuit Judge king, Circuit Judge Smith and Circuit Judge Costa. Circuit Judge Smith delivered the opinion of the court. Attorney listed for the City is Eric Clayton Farrar. Attorney listed for the companies is Keval M. Patel.

 

If you have a case involving Chapter 245 vested rights, zoning changes, and distance restrictions on alcohol sales read this 71 page opinion

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FLCT, Ltd. and Field Street Development I, Ltd. v. City of Frisco, Texas, 02-14-00335-CV (Tex. App.- Fort Worth, May 26th 2016)

Owners are two partnerships that own adjacent property in Frisco. FLCT’s tract is located on the actual corner; Field’s tract is located directly east of FLCT’s. In both 2006 and 2007, the City’s zoning ordinance permitted property owners in the C-1 district to sell beer and wine “by right.” However, no public school was located within three hundred feet.  After Owners submitted a preliminary site plan for an expanded facility, Frisco ISD began negotiating with Owners to purchase the southernmost part of FLCT’s and Field’s tracts for an elementary school. Before Owners closed on the sale to Frisco ISD in 2009, they filed an amended preliminary site plan application with the City. The City Council then amended the zoning ordinance. Owners then sold a portion of the property to 7-Eleven which conditioned the sale on the ability to obtain all permits (including selling beer and wine). The City asserted 7-Eleven could not sell alcohol at that location. The City then went through several ordinance amendments to adjust and prohibit alcohol sales near churches, schools, and hospitals. 7-Eleven eventually sued under §11.37(d) of the alcoholic beverage code seeking an order requiring the City Secretary to make the statutory certification. Tex. Alco. Bev. Code Ann. § 11.37(d) (West Supp. 2015). However, the City Secretary certified the area was in a dry region. Owners submitted a vested rights petition to the City under Chapter 245 of the Texas Local Government Code asserting they began developing the property at time alcohol sales were permitted so their rights vested at that moment to forever be able to sell alcohol at that location. The trial court granted the City’s plea to the jurisdiction and the Owners appealed.

First, the court held Chapter 245 provides the authority for a declaratory judgment action to enforce a landowner’s rights. Owners are seeking a determination of the existence and extent of their rights to develop and use the Property.  As a result, the plea should not have been granted as to the Chapter 245 claims. Next the court analyzed the Texas Alcoholic Beverage Code and held not only does it permit a city to enact distance regulations it also allows the city to grant variances as to enforcement of those distance requirements. Accordingly, the code does not pre-empt the City’s enactment and enforcement of the distance requirements, which means the Owners are not limited to the relief under the TABC. Here, Owners have raised both a constitutional claim and a vested property rights claim in the form of a declaratory judgment, which is specifically authorized by statute. They are not seeking to appeal any action by the TABC or any action in connection with a pending permit, so again, no pre-emption. The TABC does not provide the exclusive remedy for Owners’ claims based on the City’s enforcement of the distance requirements with respect to the Property. Next, the Owners contend the City’s zoning changes are void as they did not provide individual notice to property owners. However, such notice is only applicable for changes in zoning classifications, not other types of zoning changes. The court analyzed the term “classification” and held the legislature intended that if a city (either through its zoning commission or city government) wishes to consider a zoning district or boundary change to a discrete piece of property, it is to ensure that owners of surrounding properties that would be affected by the change have notice and an opportunity to participate in any hearing regarding that change. Here, the City’s December 2012 zoning ordinance purported to place restrictions on the types and places where businesses could sell alcohol within five different districts where alcohol sales were then permitted. Thus, this was not a rezoning of classification applicable only to the Property itself; the Property was still included in the C-1 district after the passage of the ordinance. In other words, the City’s interpretation is correct and this was not a “classification” change requiring individual notice. Next, the City contended that it could not issue a “permit” for alcohol so no vested right applies to its sale. However, Chapter 245 also applies to certificates. The certificate required by the City Secretary qualifies. Further, the Owner’s claims are not predicated on the continued operation of a particular type of business but on use restrictions and, thus, they are not excluded on that basis from §245.001’s definition of project. The court agreed with Owners’ contention that the amended ordinance affected the C-1 district by imposing additional restrictions on alcohol sales that had not previously been imposed. Accordingly, the Owners’ pleadings and evidentiary facts show that the exemption in §245.004(2)(i.e. no vested right for certain zoning classifications) does not preclude their remaining Chapter 245 claims. Next the court concluded that the preliminary site plan originally applied for contained sufficient notice it intended to include alcohol sales. Further, a regulatory taking can occur when government action unreasonably interferes with a landowner’s use and enjoyment of the property. After analyzing the facts and a detailed analysis of the legal standards, the court held facts were sufficiently pled and established to confer jurisdiction for a regulatory taking claim. As a result, the trial court order granting the plea is affirmed-in-part, reversed-in-part and remanded.

To read the opinion click here. Panel consists of Chief Justice Livingston, Justice Walker and Justice Sudderth. Opinion issued by Chief Justice Livingston. Attorney for FLCT, Ltd. Is Arthur J. Anderson. Attorney for City of Frisco is Richard Abernathy and Field Street Development I, Ltd. is represented by Arthur J. Anderson.

 

Texas Supreme Court holds general law city cannot extend building codes into ETJ

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Town of Lakewood Village v Bizios, 15-0106 (Tex. May 27, 2016)

This is an interlocutory appeal from a temporary-injunction order regarding whether a Type A general-law municipality has authority to enforce its building codes and building-permit requirements within its extraterritorial jurisdiction (“ETJ”). The Texas Supreme Court held it could not.

The Town’s ETJ encompasses part of the Sunrise Bay subdivision (the “Subdivision”). Harry Bizios purchased a lot in the Subdivision which is located entirely within the Town’s ETJ. The Town’s ordinances adopt building codes and make them enforceable within its ETJ. Bizios obtained all permits from the County and all other entities except the Town. The Town filed this suit after Bizios ignored its orders to stop construction. The trial court granted the Town’s injunction but the Court of Appeals reversed holding the Town did not have the legal authority to enforce its building codes in the ETJ.

The Texas Supreme Court first determined it had jurisdiction to hear the case since the Town presented an inconsistent opinion and split in the courts of appeals on the subject.  Next the Court went into an analysis of the differences between a general law and home-rule municipality. The Court held without statutory authority, a general law municipality cannot extend its building codes into the ETJ. Texas Government Code §§212.002 and 212.003 allow the extension of certain ordinances in to the ETJ that deal with plats and subdivisions. However, after a lengthy discussion of statutory construction principles, the Court held “building codes” do not relate to plats and subdivisions so cannot be part of that extension. The Court went through several other statutory references and determined none provide authority for a general law city to extent building codes into the ETJ. Additionally, the Court rejected the Towns’ argument that it had implied authority to extend such codes. Finally, the Court discounted the public policy arguments by holding “[w]e cannot judicially confer authority on general law municipalities, even if we believe there are compelling public policy reasons for doing so. We must leave that choice to the policymaking branch of government.” As a result, the Town cannot legally extend building codes into the ETJ.

Justice Boyd delivered the opinion of the Court.  The docket page with attorney information can be found here.

County employee entitled to proceed with “regarded as” disability claim after completing treatment for tuberculosis; all other claims dismissed under plea to the jurisdiction

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El Paso County, Texas v. Mary Lou Vasquez 08-15-00086-CV  (Tex. App.- El Paso, May 5th 2016)

This is an employment discrimination/retaliation case where the El Paso Court of Appeals reversed in part and affirmed in part the denial of the County’s plea to the jurisdiction.

Vasquez was  a Collection Specialist with the El Paso County’s Bond Forfeiture Unit. Vasquez suffered a heart attack at home and had a quintuple bypass heart surgery. While at the hospital she contracted tuberculosis (“TB”). Vasquez took an employer-approved leave of absence from work. When Vasquez returned to work, she was able to perform her job as a Collection Specialist with reasonable accommodation. Nevertheless, she was involuntarily transferred to a new position in the “Hot Checks” Unit of the County Attorney’s office. According to Vasquez, one of the assistant county attorneys informed her she was not permitted to return to her position because one or more employees had threatened to either walk off the job if she returned to work or sue the County if they acquired TB. Vasquez filed a charge of discrimination (“the original charge”) in which she alleged the County discriminated against her based on age and disability. She later filed an amended charge for retaliation, being “regarded as” disabled, and unauthorized disclosure of medical condition, however she did not sign that charge under oath or penalty of perjury. The County filed a series of pleas to the jurisdiction but they were ultimately denied.

Because of the amended charge, the County asserted the retaliation claim and “regarded as” claims are not ripe since Vasquez did not exhaust her administrative remedies for those claims. The County asserted (1) the original charge did not raise retaliation; (2) the amended charge raising retaliation was not signed under oath; and (3) Vasquez failed to file her retaliation claim with the TWC. Vasquez responds that her amended charge relates back to her original charge and that she dually-filed her charge with both the EEOC and TWC. Generally, amendments that raise a new legal theory of discrimination do not relate back to the initial charge of discrimination, unless the facts supporting both the amendment and the initial charge are essentially the same. Courts will not construe the charge to include facts that were initially omitted. The charge must contain an adequate factual basis to put the employer on notice of the existence and nature of the claims against it. A lawsuit under the Act will be limited in scope to only those claims that were included in a timely administrative charge and to factually related claims that could reasonably be expected to grow out of the agency’s investigation.  Here, there are no factual allegations contained in Vasquez’ original charge to implicate a claim for retaliation. Rather, her amendment raised a new legal theory, separate and distinct from her disability and age claims, thereby negating the application of the relation back doctrine. The plea should have been granted as to the retaliation charge. However, the “regarded as” claim naturally flows from the original “actual disability” claim, so the plea was properly denied as to it under a failure to exhaust challenge. But, the court held Vasquez failed to properly plead sufficient facts to establish a prima facie case of disability discrimination. Instead, she has affirmatively established that she cannot prove a crucial element of her disability claim–that she suffered from a disability at the time of the County’s alleged adverse actions. Not only had she recovered from her heart attack, government health officials had released her to resume work because she successfully completed her course of treatment for TB. Finally, no actual cause of action exists in an employment context for release of confidential medical information for a non-covered entity. So the plea should have been granted as to that claim. In the end, the “regarded as” claim is the only one to survive and is remanded.  All others are dismissed.

If you want to read this opinion click here. Panel: Chief Justice McClure, Justice Rodriguez and Justice Hughes. Opinion issued by Chief Justice McClure. The attorneys for Mary Lou Vasquez are Hon. Joe Rosales and Hon. Robert L. Blumenfeld and for El Paso County the attorney is Hon. Jose A. Howard- Gonzalez.

 

Texas Supreme Court holds City’s air-quality ordinance preempted by Clear Air Act

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BCCA APPEAL GROUP, INC. v. CITY OF HOUSTON, 13-0768 (Tex. April 29, 2016)

This is essentially a preemption case where the Court determined whether the Texas Clean Air Act and the Act’s enforcement mechanisms in the Texas Water Code preempts a Houston air-quality ordinance.  The Court held the City ordinance invalid.

The Texas Clear Air Act (“Act”) is found within Texas Health and Safety Code Chapter 382. In 1992, the City of Houston enacted an air-quality ordinance to regulate air pollution from facilities that were not already regulated under the Act. Initially, the City contracted and cooperated with the TCEQ to ensure that TCEQ-permitted emissions sources within the City’s borders complied with state law. The City’s contract with the TCEQ ended in 2005, as did its cooperative arrangement with the TCEQ, because the City desired to enforce the Act and TCEQ rules on its own “due to what it perceive[d] to be TCEQ’s lax enforcement efforts.” In 2007, the City amended the 1992 ordinance to establish its own air-quality regulatory-compliance program and adopted a fee schedule to fund the program. BCCA Appeal Group members operate integrated chemical manufacturing plants and refineries in the Houston area. Those plants are extensively regulated by the TCEQ pursuant to the Act. BCCA filed suit to declare the ordinance (and its amendments) invalid.  The trial court granted BCCA’s motion for summary judgment holding the ordinance void but the court of appeals reversed and rendered judgment for the City.  BCCA appealed.

The Court first noted the Ordinance has a severability clause, so any sections which are preempted do not affect the remainder. BCCA Appeal Group argues that the Ordinance is expressly preempted by §382.113(b) of the Act and are implicitly preempted by the comprehensive structure of the Act and its Water Code enforcement provisions.  The Court analyzed the comprehensive structure of the Act and went through all the enforcement variations possible under the Act including the TCEQ’s policy of first seeking voluntary compliance, seeking criminal penalties, civil penalties, and the authority to decline to enforce even after a violation is found. The statute mandates administrative and civil remedies whenever possible, and the TCEQ is charged with the discretion to make that determination before any criminal proceeding may move forward. The Act limits a City’s power to enact any ordinance only to those subjects which are consistent with the Act and limited the City’s ability to enforce air-quality standards criminally. The way the Ordinance is written, any enforcement of the Ordinance violations is also subject to enforcement under state law. However, Water Code §7.203 requires that a permit-holder’s alleged violation must be reported in writing to the TCEQ before referral to a prosecuting attorney for criminal prosecution. The statute grants the TCEQ forty-five days to determine whether a violation actually exists and whether administrative or civil remedies would be adequate which the Ordinance countermines. Further, prosecution under the Ordinance results in a “criminal conviction, which require[s] the prosecutor to prove a culpable mental state,” therefore escalating the violation to a “major violation” in the site’s compliance history even when the violation is not listed as “major” by the TCEQ. The Legislature expressed its clear intent to have the TCEQ determine the appropriate remedy in every case. Further, the City’s requirement that a facility must register to operate lawfully effectively moots the effect of a TCEQ permit that has been issued and allows a facility to operate lawfully.  Given the Act’s very specific limitation on a City’s ability to regulate only certain portions of air-quality control, this registration requirement is inconsistent with the Act. The Ordinance is therefore preempted.

Next the Court analyzed whether the language in the non-preempted sections (dealing with adopting TCEQ Rules) is unconstitutional simply because it references an automatic adoption of any TCEQ Rule future amendments. BCCA argues the auto-adoption language unconstitutionally delegates core lawmaking from the City Council to the TCEQ. However, a home-rule city’s power comes from the Texas Constitution. No statutory or constitutional provision limits the City’s power to incorporate TCEQ Rules. Therefore, when the City adopted the TCEQ rules as they currently exist and as they may be amended, the Ordinance complied with the Act’s mandate that any ordinance must not be inconsistent with the TCEQ’s rules and ensured that consistency be maintained on an ongoing basis.

The dissent argued the majority deviated from precedent noting it should attempt reasonable construction to allow two laws to co-exist without preemption. Chiding the majority for not specifying the language noting the Ordinance “provides only for criminal prosecution without TCEQ involvement..” Justice Boyd used statutory construction principles to conclude the Ordinance does incorporate TCEQ involvement prior to prosecution. However, the majority disagreed with that analysis.

If you would like to read this opinion click here. JUSTICE GREEN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT,JUSTICE JOHNSON,JUSTICE WILLETT,JUSTICE GUZMAN,JUSTICE LEHRMANN,JUSTICE DEVINE, and JUSTICE BROWN joined, and in which Justice Boyd joined as to Parts III(B) and IV but his dissent in part is found here.  The docket page with attorney information is found here.

City entitled to civil penalties for zoning code violations says Dallas Court of Appeals

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Texas West End, Inc v. City of Dallas, Texas Historical Commission 05-11-00582-CV (Tex. App. – Dallas, March 9, 2016)

This is a civil enforcement case which is on remand from the Texas Supreme Court. After analyzing the case based on the Supreme Court’s order, the Dallas Court of Appeals switched its prior holding and upheld the award of civil penalties issued by the trial court. This is a long case with a lot of statutory construction involved. The main thing to take away is that the City can receive civil penalties for non-compliance with zoning ordinances such as those applicable in a historic overlay district.

The central issue is whether the City of Dallas may recover civil penalties from TCI West End, Inc. based on TCI’s demolition of the MKT Freight Station without prior approval. According to the City, prior approval of the landmark commission was required by city ordinance. The Dallas Court of Appeals original opinion held, among other things, the civil penalty provision for health and safety violations did not apply to zoning ordinances. The Texas Supreme Court disagreed, holding that the penalty provision could be applied.

TCI attempted to avoid enforcement in a variety of ways and arguments, mostly of technical challenges to ordinance wording. TCI would have the court read the cited case law “.. to mean that every requirement pertaining to ordinances, regardless of the language used in the requirement, must be rigidly performed or the ordinance is invalid.”  The court expressly declined to do so. The fact the City did not file a structure list with the County before enforcing the ordinance does not mean the ordinance is not effective. Using statutory construction principles, the court held the express language of the ordinance does not make enforceability contingent upon such a filing. TCI next contended the ordinance does not require landmark commission approval for demolition unless the building sought to be demolished is a “contributing structure.” TCI’s construction of the ordinances is incorrect. Whether a building is a “contributing structure” determines which of two application processes the property owner must follow. The property owner must still obtain the approval of the landmark commission before demolishing a building under either process. Next the court held the general rule is that when a statute is adopted by reference, the adoption takes the statute as it exists at that time, and the subsequent amendment of the statute is not incorporated into the terms of the adopting act. The phrase “as amended” has been found to incorporate future amendments to statutes adopted by reference.  However, such amendments apply to the sections referenced, in this case only to demolition and removal procedures. “The clear intent was that ordinance 22158 was to work in conjunction with the city development code. To hold that future amendments to the development code were not incorporated into section 7.1 would lead to unnecessary confusion in the application process and make it even more difficult for those seeking demolition or removal permits to determine what is required of them.” Having concluded that the jury properly found that TCI violated the ordinances, the court then examined once again whether the City was entitled to recover a civil penalty. The City’s only burden under the instruction given was to show that, after TCI was notified of its violation, TCI either committed acts in violation of the ordinances or took no action to comply with the ordinances. TCI argued that since it had already demolished the building when it received notice it could not do anything to cure or come into compliance. “Impossibility is a plea in avoidance on which the party making the plea bears the burden of pleading and proof.” Since TCI did not plead the defense at trial, the award cannot be reviewed based on the doctrine of impossibility. The $750,000 penalty in the trial court’s judgment does not hold TCI liable for the demolition itself, but for TCI’s post-demolition failure to take action to comply with the ordinance. This is an ongoing violation until TCI takes the required action. Because TCI never submitted an application to the landmark commission, (even after demolition) the possible daily penalty continued to accrue. Accordingly, the jury could have awarded over $1 million in penalties, but chose to award $750,000. The Court of Appeals appeared reluctant to accept the Supreme Court’s interpretation, but it sustained the civil penalty award in the end.

If you would like to read this opinion click here. Panel: Justice Fillmore, Justice Evans and Justice Whitehill. Opinion by Justice Evans. The attorneys listed for the City are Christopher J. Caso, Thomas P. Perkins Jr., James B. Pinson, Barbara E. Rosenberg, and Christopher D. Bowers. The attorneys listed for Texas West End are Thomas V. Murto III, Melissa A. Johnson, and Mitchell Madden.

City can sue for damages to property values due to nuisance for acts occurring outside ETJ says Amarillo Court of Appeals.

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Town of DISH, et al v. Enbridge Gathering (North Texas) L.P., et al.,  07-13-00391-CV (Tex. App. – Amarillo, June 1, 2015)

This is a consolidation of three separate cases with multiple parties and multiple defendants with certain procedural complexities. For the government lawyer, the important thing to take away from the case is the ability of the City to sue for damages (lost tax values) due to nuisance and trespass.

Eighteen property owners and the City of DISH sued six different energy production companies (“Energy Defendants”) alleging noise, light, odors and chemical particulates emanating from the facilities constituted trespass and a nuisance and a decrease in property value. Essentially, the facilities were natural gas pipeline compressor stations near the outskirts of DISH. There appears to be no dispute the Energy Defendants were operating within federal and state regulations for production and emissions. Nevertheless, the City and property owners sued due to the damage in property values and loss of enjoyment of property. The trial court granted various motions ultimately dismissing the claims and the City and property owners appealed.

The Amarillo Court of Appeals spent considerable time explaining why odors and particles can constitute trespass and a nuisance. The court then explained that simply because the Energy Defendants complied with regulations on emissions, does not mean they are immune from the consequences those emissions may cause. “Stated another way, just because you are allowed by law to do something, does not mean that you are free from the consequences of your action. … Regulatory compliance or licensure is not a license to damage the property interests of others.”  However the court also held that diminution in future value or a damage of $1,000 per day is more akin to a penalty or future regulation which is preempted by federal and state law. One Energy Defendant argued the City lacked authority to sue for actions taken outside of its extra-territorial jurisdiction (“ETJ”).  The court first noted the City has authority to sue for damages.  That is different than suit to enforce regulations or to attempt to regulate outside of its boundaries. “Here, DISH does not seek to regulate or abate any of Enterprise’s operations but, instead, seeks to recover damages allegedly resulting from lost tax revenues occasioned by the diminution in value of its tax base…” which is permissible. The court made other holdings which were specific to the property owner claims and are not addressed here.

If you would like to read this opinion click here. Panel: Chief Justice Quinn, Justice Hancock and Justice Pirtle. Memorandum Opinion by Justice Pirtle.  The docket page with attorney information can be found here.

 

 

Texas Supreme Court holds civil penalties allowed under Chapter 54 for all zoning ordinances, not just health and safety ordinances.

CITY OF DALLAS v. TCI WEST END, INC., 13-0795 (Tex. May 8, 2015)

Texas Local Government Code §54.012(3) the authorizes a municipality to pursue a civil action against a property owner to enforce an ordinance “for zoning that provides for the use of land or classifies a parcel of land according to the municipality’s district classification scheme.” The court of appeals held that a municipality cannot pursue a civil action for general zoning violations. Because the court of appeals’ holding is incompatible with the statute’s plain language, the Texas Supreme Court reversed.

The City of Dallas contends that TCI West End, Inc. (“TCI”) demolished a building located in a historic overlay district in violation of a city ordinance.  The City sued TCI for civil penalties under §54.017 of the Texas Local Government Code. Following a jury verdict in favor of the City, TCI appealed and the court of appeals reversed the verdict holding §54.012 and §54.017 apply only to health and safety ordinances, not “general zoning ordinances regulating the use of land.”

The threshold issues for the Court are (1) whether §54.012(3) and §54.017 are limited to enforcement of “health and safety” zoning ordinances; and (2) whether §54.017 requires that actual notice be effected before violation of the applicable ordinance. In support of its holding, the court of appeals cited a Texas Attorney General opinion limiting the statute’s application to health and safety matters.  After analyzing the statutory language, the Supreme Court held “the interpretation of §54.012(3) as incorporating a health-and-safety limitation is contrary to the plain and unambiguous language in the statute and would render meaningless and redundant language in that section expressly circumscribing other categories of ordinances enforceable under subchapter B.”  The Court also held that the perception that conflicts exist between the injunctive relief in subchapter B of Chapter 54 and the relief allowed in Chapter 211 does not mean “the statutes are mutually exclusive merely because they overlap in scope.” The Court also held the court of appeals alternative argument (that no evidence existed of notice before the demolition of the building) fails because §54.017 authorizes civil penalties if a defendant violated an ordinance after receiving notice or if the owner failed to take action necessary for compliance with the ordinance after receiving such notice. The disjunctive “or” notes two separate options to support civil penalties. As a result, the court of appeals opinion is reversed.

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

 

 

Appellant did not submit court records, so waived takings and structural standards appeal

Samuel T. Russell v. City of Dallas, 05-13-00061-CV (Tex. App. – Dallas, May 16, 2014).

This is a substandard building case where Russell challenged the demolition of a building on his property and brought a takings claim against the City. The trial court issued a judgment for the City and the Dallas Court of Appeals affirmed.

The City sought and received a demolition order for a building on the property from its municipal court of record.  Russell filed suit asserting that since acquiring the property he had brought it up to code (or close enough), it was no longer an urban nuisance under the City’s Code, and he brought a takings claim.  The trial court entered a temporary order requiring Russell to do certain actions and make the property available for inspection.  However, after a trial to the court, the court ordered the building demolished and Russell appealed.

This holding is not of great significance because the court never really gets to the heart of the matter. It first notes that since Russell did not present a reporter’s record of the trial or request findings of fact, the appellate court must assume the record supports the judgment. Russell failed to properly preserve for appeal his challenge to the requirement of a verified pleading (because it can be waived). His takings claim focused on unpled claims and without a proper record to show otherwise, Russell waived this claim as well. The trial judgment was affirmed.

If you would like to read this opinion click here. Panel: Justice FitzGerald, Justice Fillmore, and Justice Evans.  Memorandum Opinion by Justice Fillmore. The attorneys listed for the City are Thomas P. Perkins Jr., Barbara E. Rosenberg, Christopher J. Caso, and Andrew M. Gilbert.  The attorneys for Russell are Samuel T. Russell and Timothy E. Baker.

Takings claim can be heard in appeal from demolition order says Waco Court of Appeals

City of Bryan/Building and Standards Commission v. Kenneth Cavitt, 10-13-00259-CV (Tex. App. – Waco, May 8, 2014).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a structural standards case. The Waco Court of Appeals affirmed the denial.

The City determined the Cavitt property was dilapidated, hazardous, and a public nuisance. In numerous public meetings Cavitt requested the ability to bring the property up to code. The Building and Standards Commission (“BSC”) issued a repair schedule and ordered the Plaintiff to attend each BSC meeting to demonstrate compliance with the schedule. When Cavitt failed to comply with the schedule without adequate explanation, the BSC ordered its demolition. Cavitt appealed the order to district court. In his appeal, he also brought a takings claim. The City filed a plea to the jurisdiction arguing no taking could occur since it was declared a public nuisance. The trial court denied the plea and the City appealed.

The 10th Court of Appeals held that this type of lawsuit is fundamentally a constitutional one and, pursuant to City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012), the determination of a nuisance ultimately must be determined by a court, not a commission. Before a nuisance determination will act as a bar to a takings claim, the determination must be reviewed de novo by a court. As a result, the trial court retained jurisdiction. Both the appeal from the demolition order and the takings claims can be heard.

If you would like to read this opinion click here. Panel: Chief Justice Gray, Justice Davis, Justice Scoggins.  Memorandum Opinion by Justice Scroggins. The attorneys listed for the City are Danielle Craig and William W. Krueger III. The attorney listed for Cavitt is Neeley C. Lewis.