P&Z members immune from ultra vires actions from third parties in plat approval/denial proceedings

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Josh Schroeder, et al. V Escalera Ranch Owners’ Association, Inc., No. 20-0855 (Tex. June 3, 2022)

In this case, the Texas Supreme Court held individuals on the planning and zoning commission were entitled to immunity from ultra vires claims brought by third parties challenging a plat approval. 

Escalera Ranch is a subdivision within the City of Georgetown’s extraterritorial jurisdiction. A developer applied for a preliminary plat. The subdivision’s home owners association (Association)  opposed the application. They asserted that the plat did not conform to the City’s Unified Development Code (UDC) or adopted fire code. They claimed that under the UDC, streets like Escalera Parkway are expected to carry no more than 800 vehicles per day and serve a maximum of 80 dwelling units.  After analysis, Commission staff reported that “[t]he proposed Preliminary Plat meets all of the requirements of the [UDC]…” and the fire marshal asserted it would meet the fire code. The Commission approved the plat, asserting it had a ministerial duty to approve the plat. The Association sued for mandamus asserting the act was ultra vires and to resend the plat. The Commission filed a plea to the jurisdiction which was granted at the trial court. The court of appeals reversed asserting a fact question existed and the Commission individuals appealed. 

“[P]lat approval is a discretionary function that only a governmental unit can perform.” But once the relevant governmental unit determines that a plat conforms to applicable regulations, it has a ministerial duty to approve that plat. The Commission made such a determination in this case.  Mandamus seeking to compel action by a public official “falls within the ultra vires rationale.”  The Local Government Code does not create a ministerial duty to deny a nonconforming plat. To the contrary, recordable plats that are not acted upon within 30 days must be approved, even without a determination of conformity. The Commission exercises discretion in determining ordinance conformity. So, the Court analyzed the assertion under an abuse of discretion standard.  The Commission’s conformity determination is a discretionary one that necessarily involves “interpret[ing] and constru[ing] . . . applicable ordinances”. While the UDC limits the discretion of what the Commission may consider, it does not otherwise restrict the Commission’s exercise of its discretion to determine conformity.  The Legislature created a ministerial duty to approve a conforming plat, with no reciprocal duty to deny a nonconforming one. If a municipal planning and zoning commission wants to deny a plat for nonconformance, it has only thirty days to do so. After that, the plat is generally approved—even if nonconforming.  The Legislature has not created a mechanism for third parties to seek judicial review of a municipality’s platting approval.  As a result, the individual members are immune from any ultra vires claim brought by the Association. 

If you would like to read this opinion click here. Opinion by Justice Heck. 

Texas Supreme Court holds city’s civil-enforcement of utility payment ordinance was not an unconstitutional taking

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City of Baytown v Alan Schrock, 20-0309 (Tex. May 13, 2022) 

In this takings case, the Texas Supreme Court held the City of Bayton (City) did not commit a taking by withholding utility service in order to collect unpaid utility bills.  

Schrock owned property that he would lease to tenants. The City’s ordinances required landlords to either guarantee payment for utility bills or to file a declaration with the City stating that the landlord would not guarantee its tenant’s utility payments. The City also had an ordinance prohibiting the connection of new utility services at properties encumbered by outstanding utility bills. At some point, utility bills for the City’s water service to the property went unpaid and Schrock did not file any declaration. Schrock contested unpaid amounts (pointing to his tenant as the responsible party) but the City, after a hearing, placed a lien on the property. The City then refused to connect utilities to the property when one of Schrock’s tenants requested it, which caused the tenant to cancel the lease. Because no utilities were connected, no tenants rented, the property fell into disrepair. Schrock sued the City for inverse condemnation and other claims, primarily alleging that the City’s refusal to reconnect his utility service violated Tex Loc. Gov’t Code § 552.0025 (which prohibits municipalities from conditioning utility service connections on payment of outstanding utility bills incurred by other customers residing at the same address.). The trial court ruled for the City, but the court of appeals reversed, noting a fact question existed. The City appealed.  

 A regulatory takings claim is one in which “the plaintiff complains that the government through regulation so burdened his property as to deny him its economic value or unreasonably interfere with its use and enjoyment.” The Court made a distinction between a regulation that directly regulates land use and one which merely impairs the use of the property because of its enforcement. The Court held that the City’s providing utilities to the property was a service; its regulation of that service was not a regulation of the property itself. The true nature of Schrock’s claim lies in the City’s wrongful enforcement of its ordinance, not in an intentional taking or damage of his property for public use. The Court noted that nearly every civil-enforcement action results in a property loss of some kind. Property damage due to civil enforcement of an ordinance unrelated to land use, standing on its own, is not enough to sustain regulatory takings claims. 

If you would like to read this opinion click here. Justice Bland delivered the opinion. Justice Young delivered a concurring opinion, in which Justice Lehrmann, Justice Blacklock, and Justice Busby joined. 

Texas Supreme Court holds general-law cities cannot impose a revenue-based licensing fee for construction trash haulers

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Builder Recovery Services, LLC v. The Town of Westlake, Texas, 21-0173, (Tex, May 20, 2022) 

In this case, the Texas Supreme Court held that general law cities have limited authority to impose license fees for solid waste collections.  

The Town of Westlake is a general-law municipality that imposed a percentage-of-revenue license fee on companies like Builder Recovery Services, LLC (BRS) which hauls trash away from construction sites.  The Town has a percentage agreement with Republic Services, which performs regular residential and commercial trash collection for the Town, but which also included construction site hauls. The Greater Fort Worth Builders Association sent the Town a letter questioning the Town’s legal authority to make Republic the exclusive provider of construction trash-hauling services. BRS and the Town’s staff attempted to agree on terms for a license, but no agreement was reached. BRS began operating in the Town without a license. When the Town cited BRS for operating without a license, it brought suit. The Town amended the fee amount during the suit. The trial court ruled the original fee was invalid and rejected the remainder of the BRS claims.  Both sides appealed. The court of appeals affirmed in part and reversed in part, by affirming the judgment favoring the Town but holding the BRS claim regarding the original fee was moot. BRS appealed.  

General-law cities, like the Town of Westlake, possess only those powers and privileges that the State expressly confers upon them.  A claim that a percentage-of-revenue fee of any size is unlawful is not mooted by an intervening adjustment to the size of the fee.  The court made a distinction between a licensing fee and a franchise fee. The Town’s relationship with Republic is governed by an exclusive franchise agreement as described in section 364.034 of the Health and Safety Code. The Court assumed the Town had the authority to require a license, then focused its analysis on the types of licensing fees allowed. A licensing fee is meant to recoup administrative costs of the licensing system. The Town does not regulate the price of trash hauling in this instance. How much BRS charges its customers to haul their trash “is none of the Town’s concern, and this privately negotiated, fluctuating amount has nothing to do with how much money the Town needs to administer its trash-hauling regulations.”  The Court held it was unlikely that the Legislature’s grant to general-law cities the generic authority to regulate trash hauling was intended to include an implied power for a revenue-based charge of this nature.  While a licensing fee properly tied to administrative costs is allowed, it cannot be revenue-based. Next, the Court held that while the fee and remainder of the regulations appear to be a packaged deal, the ordinance has a severability clause. But what remains was not argued, so the Court remanded the case. 

 Panel consists of Chief Justice Hecht, and Justices Lehrmann, Boyd, Devine, Blacklock, Busny, Bland, Huddle, and Young. Court of Appeals’ judgment reversed; Remanded to Court of Appeals. Opinion by Justice Blacklock can be read here. Docket page with attorney information found here. 

First District Court of Appeals holds property owner could not bring a takings claim based on judicial order regarding substandard building

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Jaime Jaramillo v. The City of Texas City, 01-20-00654-CV, (Tex. App.—Houston [1st Dist.], Feb. 8, 2022, no pet. h.) (mem. op.).

This is a takings case brought after the City initiated an enforcement action for a dilapidated building. The First District Court of Appeals affirmed the dismissal of the property owner’s claims.

Jaramillo entered into an Agreed Order of Abatement with the City where the City would be able to abate and demolish the structures on the real property belonging to Jaramillo any time after a certain date if he did not comply with the ordinances and the International Property Maintenance Code. After reviewing the Agreed Order with the prosecutor and signing it, Jaramillo filed suit two weeks later claiming a taking of his property, denial of procedural due process, fraud, and civil conspiracy. The City filed a motion to dismiss for want of jurisdiction due to entering an unappealable order and sovereign immunity. The trial court granted the motion. Jaramillo appealed.

The court found that there was no waiver of immunity asserted as immunity cannot be waived for an intentional tort.  It further found civil conspiracy is a derivative tort; therefore, it cannot stand alone. Under his due process claim, Jaramillo agreed in the order that the building was substandard.  A court, not an administrative body, entered the order based on the agreement. As a result, no procedural due process was violated.  Jaramillo failed to preserve any errors before accepting and signing the Agreed Order. The Order was affirmed.

Panel consists of Chief Justice Radack, and Justices Rivas-Molloy and Guerra. Memorandum Opinion by Justice Rivas-Molloy can be read here. Docket page with attorney information found here.

Texas Supreme Court holds the law requires more than conclusory references to the statute’s elements in order to waive immunity

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Patrick Von Dohlen, et. al., v City of San Antonio, 20-0725 (Tex. April 1, 2022)

This is a declaratory judgment – statutory cause of action case brought against the City of San Antonio (“City”) for violating Chapter 2400 of the Texas Government Code. The Texas Supreme Court held the Plaintiffs failed to allege a proper waiver under the statute but remanded for an ability to cure the defect.

The city council for the City of San Antonio declined to allow Chick-fil-A to operate a concession area within the City’s airport. The Plaintiffs alleged the action was taken due to councilmember comments opposing the religious views of the company. Specifically, the company has a legacy of anti-LGBTQ behavior. Later, the Legislature passed TEX. GOV’T CODE § 2400.002, which prohibits a city from taking “any adverse action against any person based wholly or partly on the person’s membership in, affiliation with, or contribution, donation, or other support provided to a religious organization.”  Four years later, the Plaintiffs sued the City and asserted it was in violation of this statutory provision. The City challenged jurisdiction asserting the law is not retroactive, and lack of standing due to no distinct injury from the general public. The trial court denied the plea, but the court of appeals reversed and dismissed the claims. Plaintiffs appealed.

When a statute waives immunity, a plaintiff must still plead an actual violation and mere references to the statute are insufficient. Chapter 2400 explicitly waives sovereign and governmental immunity when a person “alleges” a violation of Section 2400.002.  However, the petition’s alleged facts all occurred prior to the enactment of Chapter 2400 and nothing afterward. While the Plaintiffs allege the City’s violation is continuing in nature, they do not allege any facts to support this. Here, Plaintiffs do not plead sufficient facts to “actually allege a violation” of Chapter 2400 because they fail to point to any specific “action” the City took on or after Chapter 2400 was effective. However, this does not mean the City has negated the ability to plead such a claim. Texas law does not favor striking defective pleadings without providing plaintiffs an opportunity to replead.  As a result, the case is remanded to allow the ability to replead.

If you would like to read this opinion click here. JUSTICE HUDDLE delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Boyd, Justice Busby, Justice Bland, and Justice Young joined. JUSTICE BLACKLOCK filed an opinion concurring in the judgment, in which Justice Devine joined and is found here

Texas Supreme Court holds officer entitled to official immunity for turning on his lights.

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City of San Antonio v Riojas, 20-0293 (Tex. Feb. 18, 2022)

The Texas Supreme Court held an officer who turned his lights on to warn motorists of a traffic slowdown was entitled to official immunity.

Officer Tristan noticed a traffic slowdown and turned on his lights to warn motorists behind him.  Tristan observed a white sedan cross multiple lanes of traffic and exit the expressway. Officer Tristan then pulled onto the shoulder and radioed another officer to stop the sedan for making an improper lane change. While these events were occurring, Armando Riojas was riding his motorcycle behind Officer Tristan’s vehicle but three lanes over and directly behind a car driven by Vela. When the car in front of her slowed, Vela braked in response. Riojas swerved to avoid a collision but lost control of his motorcycle. Witnesses accused Tristan of causing the crash, including accusing him of scaring everyone on the stretch of road by turning on his lights. Riojas sued the City, alleging that Officer Tristan was negligent in turning on his emergency lights.  The City filed a plea to the jurisdiction which was denied and which the court of appeals affirmed. They determined Tristan was not entitled to official immunity. The City appealed.

Riojas concedes that by turning on his lights, Officer Tristan was performing a discretionary function within the scope of his employment. Riojas contends, however, that the City has not proven conclusively that Officer Tristan was acting in good faith. The need–risk assessment required for official immunity should not place an onerous burden on law enforcement.  Further, the need–risk balancing requirement does not go beyond the pursuit and emergency-response contexts.  The purpose for official immunity is most salient in the context of street-level police work, which frequently requires quick and decisive action in the face of volatile and changing circumstances. As a result, to be entitled to official immunity, Tristan had to only establish a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed at the time. Riojas had to then show that no reasonable officer in Tristan’s position could have believed that the circumstances justified his conduct. Here, there was no suspect, no arrest, and no inherent danger to the public.  As this was not a pursuit case, the needs-risk analysis is not required or proper. Officer Tristian established his actions were reasonable and Riojas did not establish that no reasonable officer could have made the same call. As a result, Officer Tristan was entitled to official immunity as a matter of law, which in turn, removes the waiver of immunity from the City.

If you would like to read this opinion click here. Opinion by Chief Justice Hecht.

In police pursuit case, Texas Supreme Court holds 1) deviation from policy waives immunity only if lights or sirens are required, 2) officer exceeding the speed limit is part and parcel of a police chase and not not inherently reckless and 3) no independent waiver of immunity for negligent implementation of policy

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City of San Antonio v Maspero, et al. 19-1144 (Tex. Feb. 18, 2022)

This is a Texas Tort Claims Act (“TTCA”) vehicle accident case where the Texas Supreme Court dismissed the Plaintiffs’ claims for lack of jurisdiction.

Plaintiffs contend that their injuries arose from a San Antonio police officer’s vehicular pursuit of a fleeing suspect who crashed into their car. The chase resulted from a joint drug task force attempted to stop a car leaving suspected drug trafficking ring location. Officer Kimberly Kory was assigned to assist with the investigation. When the suspect began to flee, the task force requested assistance but did not provide any specifics about how to respond to the fleeing vehicle. SAPD’s “General Manual” contains detailed procedures governing the vehicular pursuit of such suspects.  The record demonstrated the suspect sped in heavy traffic and through active school zones. The suspect got turned around and sped past Kory, missing her vehicle, but collided with an oncoming vehicle, carrying the Plaintiffs.  They sued the City, which filed a plea to the jurisdiction.  The City asserted the emergency response exception to the waiver of immunity.  The trial court granted the plea, but the court of appeals reversed.

Under Texas Transportation Code Section 546.006, a driver of an emergency vehicle must drive “with appropriate regard for the safety of all persons” and is not relieved of “the consequences of reckless disregard for the safety of others.” Section 546.003 states “the operator of an authorized emergency vehicle engaging in conduct permitted by Section 546.001 shall use, at the discretion of the operator in accordance with policies of the department or the local government that employs the operator, audible or visual signals.”  Plaintiffs argued that since Kory deviated from the SAPD policy on such pursuits, she cannot take advantage of the Transportation Code section. The Court disagreed, holding §545.003 only required adherence to policies regarding use of lights and sirens. At the point where the suspects collided with the Plaintiffs’ vehicle, Kory was not speeding or taking action which would have required lights and sirens. Further, the court found the use of her siren was inconsequential for purposes of the causal nexus. Plaintiffs failed to explain how their injuries arose from Officer Kory’s alleged failure to use her siren in conjunction with the lights.  Based on the undisputed facts asserted, the use of a siren would not have changed the collision. Further, the court does not believe Kory’s actions constitute recklessness or even that a fact question exists. Law enforcement must retain discretion to assess and balance these types of risks using reasoned judgment.  Kory had specific instructions to stop the suspect. She did not chase him into an obviously dangerous area or force him to crash. Isolated, minor instances of Kory speeding or swerving do not bypass the emergency exception under the TCAA. A police officer’s speeding and swerving during a pursuit are not inherently reckless actions. Exceeding the speed limit is part and parcel of a police chase.  Further, no evidence suggests that the speeding itself was a cause of the crash.  Further, the evidence shows Kory engaged in some degree of risk assessment while in pursuit.  Finally, the Court disagreed with the court of appeals holding that the City’s immunity is waived for the negligent implementation of policy. The Court clarified there is no independent waiver of immunity for negligent implementation of policy.  When a waiver already exists, but the discretionary exception may apply, that is when the distinction between negligent formation of policy and negligent implementation of that policy kicks in.  The distinction only applies when evaluating whether the discretionary exception to an existing waiver is to apply. As a result, in this case, there is no waiver of immunity and the trial court’s order is reinstated.

If you would like to read this opinion click here. Opinion by Justice Lehrman.

The emergency exception to the Tort Claims not grounds for jurisdictional plea when factual disputes exist regarding an officer’s recklessness

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Houston v. Crystal Green, No. 14-20-00190-CV (Tex. App.—Houston [14th Dist.] Jan. 11, 2022) (mem. op.).

In this appeal from a trial court’s denial of the city’s motion for summary judgment, the city argued that it retained its immunity from suit under the emergency exception to the Texas Tort Claims Act.  The Fourteenth Court of Appeals affirmed the trial court’s judgment because there was evidence that the officer may have been reckless when driving his vehicle during the emergency.

The plaintiff was injured in an automobile accident with a city police officer collided with her vehicle.  The plaintiff sued the city under the Texas Tort Claims Act.  The city argued in a summary judgment motion that it retained its immunity from suit because the officer was heading to an emergency when the accident occurred and because the officer had official immunity.  Evidence was presented that the officer may have entered the intersection where the accident occurred at a high rate of speed and without his sirens on.  The trial court denied the City’s motion for summary judgment and the city appealed.

The Tort Claims Act waives governmental immunity for injuries or damages caused by use of a motor vehicle.  See Tex. Civ. Prac. & Rem. Code § 101.021; Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000).  Immunity is retained for damages caused due to actions that are covered by the “emergency exception,” which covers the “action of an employee while responding to an emergency call or reacting to an emergency situation.  Id. § 101.055.  But the action must not be done with conscious indifference or reckless disregard for the safety to others.  Id.  In addition, the Texas Transportation Code requires that emergency vehicles be operated safely and without “reckless disregard for the safety of others.”  Tex. Transp. Code § 546.005.   There was evidence presented in the case that raised a fact issue of whether the officer’s operation of the vehicle that caused the injuries and damages was reckless. Because there was evidence of reckless disregard, the trial court did not grant the summary judgment in favor of the city.  The court of appeals agreed and upheld the denial of the summary judgment motion remanding the case back to the trial court.

If you would like to read this opinion click here.   Panel consists of Chief Justice Christopher and  Justices Hassan and Poissant.  Opinion by Justice Margaret “Meg” Poissant.

 

14th Court of Appeals holds officer was not entitled to official immunity – proper focus is on the actions which caused the plaintiff’s injury, not on the overall investigation the officer was performing

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Nicholas Hulick v. City of Houston, 14-20-00424-CV  (Tex. App. Houston [14th Dist.], Feb. 1, 2022)

This is a Texas Tort Claims Act (“TTCA”)/ vehicle accident case where the Fourteenth District reversed the granting of the City’s plea to the jurisdiction based on the official immunity of its officer.

Officer Andrew De La Guardia responded to a service call involving a homeless suspect causing a disturbance on the street outside of a business. It was raining heavily while he was en route to the location. When he arrived, he drove around the area looking for the suspect, but was unable to find anyone matching the description.  When the rain became more severe he decided to turn around and head back to the station. Slowing to ten to fifteen miles per hour, he looked through the rain for oncoming traffic. Seeing none, the officer attempted to cross the westbound lanes of traffic but struck a motorcycle driven by Hulick.  Hulick sued.  The city filed a plea to the jurisdiction, arguing De La Guardia had official immunity at the time. Hulick appealed.

A governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee’s authority; (3) provided the employee acts in good faith.  If the employee is immune, the employee would not be liable under Texas law to the Plaintiff, therefore the City retains its immunity from suit.  The court analyzed whether the officer was performing a discretionary function at the time. An action is discretionary if it involves personal deliberation, decision, and judgment; on the other hand, an action that requires obedience to orders or the performance of a duty as to which the employee has no choice is ministerial. The court noted the City correctly observed that a law enforcement officer’s operation of a vehicle is a discretionary function in certain circumstances, including high-speed chase and responding to an emergency.  However, absent such special circumstances, an officer’s operation of a motor vehicle on official, non-emergency business is ministerial.  De La Guardia discontinued his search for the suspect at that time and was attempting to return to the station. While the City asserts he was performing an investigation (which is discretionary) the court held the focus should be on the actions which caused the injury (i.e. failing to yield the right-of-way to oncoming traffic).  The record did not support a finding of official immunity in this circumstance and the order granting the plea was reversed.

If you would like to read this opinion click here.  Panel consists of Justice Jewell, Justice Bourliot and Justice Poissant. Memorandum opinion by Justice Jewell.

A defendant attempting to obtain dismissal for lack of evidence must use a no-evidence motion for summary judgment, not a no-evidence plea to the jurisdiction.

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A defendant attempting to obtain dismissal for lack of evidence must use a no-evidence motion for summary judgment, not a no-evidence plea to the jurisdiction.

Special contributing author Laura Mueller, City Attorney for Dripping Springs

Edinburg Consol. Ind. Sch. Dist. V. Ayala, No. 13-20-00590-CV (Tex. App.—Corpus Christi Dec. 9, 2021) (mem. op.).

In this appeal from a trial court’s denial of the district’s no evidence plea to the jurisdiction, the district argued that there was no evidence that the plaintiff applied for a new position at the district.  The Thirteenth Court of Appeals affirmed the trial court’s judgment on the no evidence plea to the jurisdiction holding that a no-evidence motion for summary judgment was the proper avenue after discovery for the district’s arguments.

The plaintiff worked for the district but was injured in 2013.  He returned to work, but was terminated in 2015.  He filed an employment law claim for his termination but did not follow up on the claim.  Then, the plaintiff alleges that he reapplied to work at the district in 2018 and was not hired.  He sued the district for employment discrimination based on his disability and national origin for not rehiring him.  The district argued that there is no evidence that the plaintiff reapplied.  The district filed a no-evidence plea to the jurisdiction and the trial court denied the plea.  The district appealed.

A plea to the jurisdiction is used to determine a court’s jurisdiction based on what is plead, a prima facie case, not to make a determination on fact issues.  To establish a prima facie case of discrimination, the employee must show: (1) he is in a protected class; (2) he was qualified for the position he applied for;  and (3) he was not hired.  Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583 (Tex. 2017); Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 433 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).   For national origin discrimination, he also must plead that the district gave different treatment to a similarly situated applicant outside the protected class.  The plaintiff stated these elements in his pleading, but the district argued that he needed to do more than plead the elements and he had provided no proof that he had applied for the position.  As a “fair notice” state, the plaintiff does only need to plead facts or elements to show jurisdiction.  Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); see TEX. R. CIV. P. 45(b).  The Court of Appeals upheld the trial court’s denial of the plea to the jurisdiction because the plaintiff had plead sufficient facts to move forward with jurisdiction, although the district does have the ability to file a no-evidence motion for summary judgment.

The court of appeals affirmed the trial court’s judgment and the case was sent back to the trial court.

If you would like to read this opinion click here.   Panel consists of Chief Justice Contreras and  Justices Hinojosa and Silva.  Opinion by Chief Justice Dori Contreras.

Fort Worth Court of Appeals holds Plaintiffs properly plead constitutional challenges to City’s short-term rental ordinance

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City of Grapevine v. Ludmilla B. Muns, et al, 02-19-00257-CV (Tex. App. – Fort Worth, Dec. 23, 2021)

This is an opinion on rehearing where the Fort Worth Court of Appeals reversed in part and affirmed in part the trial court’s order regarding the validity of the City’s short-term rental ordinance. [Comment: warning, this is a long opinion – 50 pages.]

The City asserted its zoning ordinance was written in a way that prevented short-term rentals (STRs), but some “bed and breakfasts” were allowed.  However, there was sporadic enforcement. After an increase in complaints about negative effects from STRs, the City conducted a study.  At the end of the study, the City passed an ordinance banning short-term rentals (STRs) in the entire city. The City provided a 45-day grace period before enforcement would begin. Several property owners and commercial real estate services sued to invalidate the ordinance. The City filed a plea to the jurisdiction and motion for summary judgment, which were denied. The City appealed.

The City first contended the Plaintiffs failed to appeal any decisions to the board of adjustment and therefore failed to exhaust their administrative remedies. Generally, a party must exhaust the administrative remedies available under Chapter 211 of the Local Government Code before seeking judicial review of an administrative official’s decision. However, the Plaintiffs did not apply for permits or otherwise receive any enforcement notification to which they must appeal. Statements made about the City’s intent to enforce an ordinance, without more, is not the type of administrative action over which an appeal is triggered. Appealable actions are those actual determinations made in the act or process of compelling a property owner’s compliance with a City ordinance. Information-only statements are not appealable administrative determinations.  Further, the Plaintiffs challenged the constitutionality of the ordinance, which does not always require exhaustion. Generally, administrative bodies do not have the authority to rule on the constitutionality of statutes and ordinances. And while constitutional challenges are not “globally exempted” from the exhaustion requirement, if the administrative body lacked the ability to “render a relief that would moot the claim” then no exhaustion is required.  The board of adjustment lacked the authority to grant the Plaintiffs’ the right to conduct an STR, so no exhaustion is required. Next, the City argued that STRs do not fit within the definition of a “single-family detached dwelling” under its zoning code because STRs are not occupied by a single-family but are occupied by groups of people. However, the City’s code defines the word “family” in such a way that it does not require that the people living as a “single housekeeping unit” be related by blood or marriage. It also has no duration of occupancy limit. As a result, by its own wording, the code does not prohibit STRs as long as the occupancy fall within the common and ordinary meaning of “family.”  The City next argued the Plaintiffs did not directly challenge the validity of the STR ordinance (only an interpretation of whether it applied to them) so no declaratory relief can be granted.  However, the court found their retroactivity, due-course-of-law, and takings claims turn on whether the existing code allowed STRs. To that extent, they have a valid justiciable controversy. Under the takings analysis, the court held that although a property owner generally has no vested right to use his property in a certain way without restriction, they have a vested right in the real property, which includes the ability to lease. From a constitutional standpoint, that is sufficient to trigger a protected property right interest for jurisdictional purposes. This, along with the fact the court found that STRs were not expressly prohibited by the wording of the ordinance,  creates a fact issue as to whether the Plaintiffs suffered a taking. The court also noted that, contrary to the City’s arguments, lost profits are a relevant factor to consider in assessing the property’s value and the severity of the economic impact on a property owner. The Plaintiffs pled and submitted evidence to support that STRs “generate higher average rent than long-term leases, even after expenses” and that the STR Ordinance prevents them from “participating in an active, lucrative market for [STRs].” Next, the court did agree with the City that the regulation of STRs is not preempted by the Tax Code, as alleged by the Plaintiffs. Plaintiffs did not point to any provision in either the Tax Code or the Property Code that implies that the legislature meant to limit or forbid local regulations banning STRs. The court then addressed the retroactive law arguments, holding that a “settled” right is different than a vested right and the Plaintiffs asserted the STR ordinance impaired their settled property rights under the common law and under the City’s code to lease their properties on a short-term basis. The issue is not about the “property owners’ right to use their property in a certain way,” but about the owners’ “retaining their well-settled right to lease their property.” Next, in the substantive-due-process context, a constitutionally protected right must be a vested right that has some definitive, rather than merely potential existence. Property owners do not acquire a constitutionally protected vested right in property uses once commenced or in zoning classifications once made. Thus, although the Homeowners have a vested right in their properties, they do not have a vested right under the Zoning Ordinance to use them as STRs.  However, the court found they do have a fundamental leasing right, which is sufficient to plead, jurisdictionally, a due-course-of-law claim. The court clarified in this rehearing opinion, that its holding on this point is limited to the fact a property owner has a fundamental right to lease, but the durational limits may be valid or may be invalid depending on the extent of the regulatory intrusion into that right. The intrusion goes to the merits of the case, which the court declined to address as part of the interlocutory appeal.  In short, the Plaintiffs properly plead all claims for jurisdictional purposes, except a claim under a preemption theory.

If you would like to read this opinion click here. Panel consisted of Chief Justice Sudderth and Justices Kerr and Gabriel.  Opinion on rehearing by Justice Kerr.

Fort Worth Court of Appeals holds one city was not entitled to a plea to the jurisdiction in condemnation suit brought by adjoining city

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Town of Westlake, Texas v. City of Southlake, 02-21-00241-CV  (Tex. App. – Fort Worth, Dec. 23, 2021)

This is an interlocutory appeal from the denial of the Town of Westlake’s plea to the jurisdiction in a case where the City of Southlake filed condemnation proceedings against the Town of Westlake.  The Fort Worth court of appeals affirmed the denial. [Comment: warning, this is a long opinion – 49 pages.]

The City of Southlake moved to condemn approximately 1400 feet of land owned by the Town of Westlake. In Southlake, a residential development was principally within Southlake, but abutted the boundary with Westlake. Immediately inside Westlake’s eastern town limit is a right of way owned and maintained by Westlake that abuts the lanes of Farm-to-Market Road 1938, but the actual road is owned by the State of Texas. The construction of the present configuration of FM 1938 was a cooperative effort of Southlake, Westlake, Keller, and Tarrant County.  Westlake opposed for years the developer’s requests for access across Westlake’s ROW as only one access to the development currently exists and the developer needed two. Westlake claims that the present condemnation action brought by Southlake is an attempt by Southlake to use its powers of condemnation to gain access to FM 1938 that the developer has not been able to negotiate. Southlake followed the condemnation procedures outlined in chapter 21 of the Texas Property Code and the commissioners awarded Westlake $22,000 for the condemnation. Westlake filed a motion to dismiss which was denied. Then, just before the award was filed with the district court, Westlake filed a plea to the jurisdiction in the district court. The court noted the plea was not a plea, but should have been a motion opposing the taking and denied the plea.  Westlake filed this interlocutory appeal in response. Southlake filed a motion to dismiss at the court of appeals level.

With regard to Southlake’s motion to dismiss, the trial court’s jurisdiction was triggered once the commissioners’ findings were filed, even if Westlake “jumped the gun” and filed the plea before the commissioners’ filing.  There is no consequence for filing early. As a result, the matter is properly before the appellate court. Next, regarding Westlake’s plea, Westlake first argues no waiver of immunity exists under §251.001 of the Local Government Code, however the court noted the language allows condemnation regardless of whether the property is already public or private, whether it is inside the city or outside, and possesses safeguards to prevent abuses. Because the statute allows condemnation of public property, it must, therefore include a waiver of immunity for the owning entity. Comparing the langue in §251.001 to similar provisions of the Utility Code (which the Texas Supreme Court previously ruled constitute a waiver of immunity), the court held immunity is waived for Westlake.  While case law states that when one governmental entity is condemning property owned by another governmental entity, the condemning entity must establish the “paramount importance” standards (i.e. it has a public need greater and will not destroy the public nature).  However, the paramount importance doctrine is not jurisdictional. With regards to Westlake’s argument that § 311.002 of the Transportation Code (giving cities exclusive control over streets and highways) the record has not been established enough to make the determination of whether the condemnation will interfere with such streets (since Westlake owns only the adjoining ROW). The record was also not sufficiently developed to establish whether Southlake could establish a valid public purpose.  As a result, the plea was within the trial court’s discretion to deny.

If you would like to read this opinion click here.  Panel consists of Justices Birdwell, Bassel, and Womack.  Memorandum opinion by Justice Bassel.

Texarkana holds city properly supported its summary judgment to permanently enjoin mobile home park

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Polecat Hill, LLC, et al. v. City of Longview, Texas, et al. 06-20-00062-CV (Tex. App. – Texarkana, December 2, 2021).

This is a nuisance/permit case brought under Chapter 54 of the Texas Local Government Code where the Texarkana Court of Appeals affirmed the judgment entered on behalf of the City.  [Comment: this is a long, 39-page opinion].

Polecat owned 5 acres of land within the City limits. Polecat received a notice of violation from the City asserting the property violated several health and safety ordinances and needed to be repaired. After receiving the notice, Polecat sued the City. The city counterclaimed against the corporate owners and sued the property in rem. Polecat asserted the property had operated as a location for manufactured dwellings to affix to real property and obtain connections since the 1960s. Polecat argued that the City refused to allow it to proceed with its plans to prepare the Property to be on public sewer service. Polecat argued that, instead, the City was requiring it to apply for a mobile home park license and comply with city ordinances by dedicating property to install fire hydrants, dedicating a turnaround space for fire trucks, and absorbing the cost of water flowing through the fire hydrants. The City asserted Polecat was illegally operating an unlicensed mobile home park and unlicensed travel trailer park in violation of the City’s code of ordinances.  The trial court granted the City’s traditional and no-evidence motions for summary judgment, resulting in a final judgment in favor of the City. The trial court’s order specifically found that the Polecat Defendants’ violations of city ordinances created a substantial danger of injury or adverse health impact and that a permanent injunction was necessary to prohibit the specific conduct that violated the ordinances and to require conduct necessary to comply with them. Polecat appealed.

The summary judgment evidence showed that the Property was continuously operated as a mobile home and travel trailer park. Polecat testified that the Property was a residential property that was eighty percent occupied, but admitted it housed rental mobile homes since the 1960s, as well as seven travel trailers.  The City’s appraisal district had labeled the Property as a mobile home park, and Polecat had never challenged that designation. Even the TNRCC sent notices of violations to Polecat related to improperly hooked up septic lines. The summary judgment evidence showed that the City was willing to work with the Polecat Defendants to obtain mobile home and travel trailer park licenses and would consider a site plan that complied with city ordinances, however, Polecat did not agree to comply with the ordinances.  During discovery, numerous other violations became apparent, including violations preventing fire trucks from being able to properly access or service the Property.  Polecat’s testimony established it never applied for a license to operate a mobile home park or travel trailer park.  The City’s traditional summary judgment motion established various violations of the City’s ordinances. The City also filed a no-evidence motion for summary judgment asserting that because the City was not requesting the dedication or transfer of any portion of the Property to the public for public use; the City had not deprived the Polecat Defendants of all viable use of the Property. Further, it was Polecat’s failure to apply for a site plan permit and a license that prevented the City from extending sewer services. Polecat also admitted it was not challenging the validity of any ordinances.

The court found Polecat failed to preserve its appellate points objecting to the City’s summary judgment evidence as they complained of only procedural defects and failed to obtain a ruling. Next, the court held the City was not required to prove continuing violations in order to be entitled to injunctive relief under Chapter 54. Polecat’s petition did not contain any challenge to the city ordinances themselves or allege that the ordinances did not apply to them and therefore was not entitled to any declaratory relief. The court also noted that there were multiple defendants, including the property in rem, but only Polecat responded to the summary judgment on behalf of itself alone. As a result, the other defendants could only attack the granting of the summary judgment by asserting the City failed to carry its burden of proof. The City met its burden to establish entitlement to summary judgment and permanent injunctive relief. Further, “[i]n a regulatory taking, it is the passage of the ordinance that injures a property’s value or usefulness.” Polecat does not challenge the passage of any ordinance. Instead, the petition focused on whether the City’s intentional actions resulted in inverse condemnation.  However, since the City did not destroy all economically viable use of the property, there can be no taking. Additionally, Polecat’s summary judgment evidence (which Polecat argued created a fact issue) contained mainly affidavits that were unsigned and unnotarized. As a result, Polecat failed to create a fact issue with proper summary judgment evidence. The trial court properly entered judgment for the City.

If you would like to read this opinion click here. Panel consists of Chief Justice Morris and Justices Burgess and Carter. Opinion by Justice Burgess.

Dallas Court of Appeals holds detour did not take excavation outside the normal use of the roadway, therefore plaintiff properly alleged a special defect

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City of Irving, Texas v. Edwin Muniz, 05-21-00099-CV, (Tex. App – Dallas, Nov. 19, 2021)

This is a premise defect/Texas Tort Claims Act (“TTCA”) case where the Dallas Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

During a rainstorm at night, Muniz entered an intersection undergoing construction for sewer pipe replacements. A detour sign directed him to merge slightly to the left, but he asserts he encountered a mesh fence with no time to brake. He traveled through the mesh fence into an excavation thirty-two feet deep. The court commented the evidence was confusing as to whether the signage indicated a lane shift or that traffic was to be closed heading westbound. Non-flashing barricades were present, but Muniz testified he did not see the barricades or cones depicted in the photographs on the night of his accident.  There was also a dispute as to Muniz’s speed.  Muniz sued asserting the excavation was a special defect, or at worse a premise defect. The City filed a plea to the jurisdiction, arguing, among other things, that the excavation was not on the roadway. The trial court denied the plea and the City appealed.

The City asserted because the detour directed traffic around the excavation, removing the  excavation from being a part of the regular roadway it could not be a special defect. The court noted the Texas supreme court “has never squarely confronted whether a hazard located off the road can (or can never) constitute a special defect,” but it has recognized that some intermediate courts of appeals have held that certain conditions located off the road were special defects. It is undisputed Muniz drove into a large hole in the normal roadway. The court noted the question, in this case, turns on whether such an excavation remains a special defect when the City attempts to warn of the excavation by erecting a detour but the warning failed. Here, the detour was not a separate roadway apart from the excavation but was on the same street as the excavation, only slightly shifted by lane redirects. An ordinary user of the roadway certainly could encounter the excavation. As a result, Muniz alleged sufficient facts to establish jurisdiction under a special defect theory.  The City also contended the detour design was a discretionary function. However, according to the court, the discretionary exclusion does not apply in the case of a special defect. The plea was properly denied.

The dissent noted the court was dealing with a portion of a road being taken out of commission for a construction project with the road actually moved to accommodate. He would have concluded the re-routing took the excavation out of the normal use of the roadway analysis.

Panel consists of Justices Schenck, Smith, and Garcia. Affirmed. Memorandum Opinion by Justice Smith can be read here.  Dissenting Opinion by Justice Schenck can be read here. Docket page with attorney information found here.

Dallas Court of Appeals holds commercial lease on property separated from airport was a proprietary function

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City of Dallas v. Oxley Leasing North Loop, LLC, 05-21-00241-CV, (Tex. App – Dallas, Nov. 12, 2021)

This is a breach of a lease agreement case where the Dallas Court of Appeals affirmed the denial of the City’s plea to the jurisdiction, holding the City was performing a proprietary function.

The City created a Land Use and Development Plan (“Development Plan”) for the airport. The Development Plan identified several portions of airport property for potential development, designating some as airfield operations, airfield-related development, non-aviation-related development, open space/recreational, and a commercial office park.  The City leased portions of the commercial office park (“the Property”) to First Continental Bank for an initial term of 40 years. The City agreed to construct a barrier and a road to physically separate the Property from the back of the airport. The lease was assigned several times, eventually being held by Oxley. The City and Oxley dispute whether Oxley property initiated an extension under the lease. The City, believing no renewal had occurred, moved to evict Oxley. Oxley filed suit for breach of the lease and the City filed a plea to the jurisdiction. The trial court denied the plea and the City appealed.

Leasing in a commercial park is not listed under the TTCA as a governmental function. As a result, the court must analyze the nature of the transaction under Wasson II standards. The mere fact that the City leased property located at the airport is not determinative of the nature of that activity.  Since the Property is identified by the City as nonaviation related, the court had little difficulty determining it was not related to the operation of the airport. Under Wasson II,  the City had no obligation to lease the Property to First Continental Bank, was discretionary, and the nature of the private lease necessarily excludes the general public from benefiting from the premises. The fact that a city’s proprietary action bears some metaphysical relation to a governmental function is insufficient to render the proprietary action governmental. As a result, the specific lease at issue is proprietary and the City is not entitled to immunity.

Panel consists of Justices Schenck, Smith, and Garcia. Affirmed. Memorandum Opinion by Justice Schenck can be read here. Docket page with attorney information found here.