7th Court of Appeals holds vested rights statute requires a showing of two permits; one vesting and one after a change in regulations

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Jon E. Jacks v. The Zoning Board of Adjustment of the City of Bryan  07-18-00174-CV (Tex. App. – Amarillo, July 9, 2019)

This is a board of adjustment appeal/vested rights case where the Seventh Court of Appeals upheld the Zoning Board of Adjustment’s motion for summary judgment.

Jacks purchased a piece of property in a residential subdivision intending to build a laundromat. Because the original plan for the subdivision had been filed with the City in 1960, Jacks asserted he possessed a vested right to 1960 regulations under chapter 245 of the Texas Local Government Code. When asked for a declaration from the City’s planning department that he possessed vested rights, Jacks was informed the City had no process for a blanket declaration and Jacks must apply for a permit on the project before an analysis of any vested right is performed. Relying on an e-mail “denial” from the Planning Manager Jacks pursued an appeal of this decision to the City’s Zoning Board of Adjustment. The Board denied Jacks’ request noting Jacks failed to identify any specific regulation that had changed, and Jacks failed to identify any permit application that had been denied.  Jacks appealed to district court pursuant to Tex. Loc. Gov’t Code §211.011.  The trial court granted the City’s motion for summary judgment and Jacks appealed.

Under Texas Local Government Code §245.002, once an application for the first permit of a development is filed all subsequent applications for permits shall be considered under the laws and regulations in effect at the time the first application was filed. The Amarillo Court of Appeals held the statute requires two permit applications be involved; one to vest the rights and the second after a law changed but which must be applied under the old law. Here, Jacks pointed to the 1960 first application, but failed to point to a second application in which the City tried to apply a different set of rules.  Second, Jacks objected to the trial court considering evidence not presented at the Board level.  Jacks did not preserve his objection, but additionally, §211.011 authorizes the trial court to consider additional evidence. As a result, the trial court properly dismissed the claims.

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 Parker. Jon Jacks appeared pro se. The attorneys listed for the ZBA are Ryan S. Henry, Artin T. DerOhanian and Michael McCann Jr.

 

City’s denial of plat application citing inconsistencies with “general plan” of city, without more, is insufficient and therefore vested rights are implicated

 

The Village of Tiki Island, et al.  v. Premier Tierra Holdings Inc., 14-18-00014-CV (Tex. App. – Houston [14th Dist.], July 10, 2018)

This is an interlocutory appeal in a land-use case were the 14th Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

This case has gone up and down the appellate ladder already.  Prior summary found here. Premier sought to develop property for a mixed-use marina project. Premier submitted a plat application which included up to one hundred residential units and up to 250 dry stack enclosed boat slips. The City had no meaningful land-use regulations or platting or subdivision regulations. Five days later the city enacted a zoning ordinance prohibiting dry boat storage, limiting heights and set-backs, and restricting rental dates and parking. The City then rejected the plat application as being inconsistent with the new ordinance. Premier next sought a rezoning application as a planned unit district, which was denied.  It also sought several plat amendments which were denied. Premier filed a mandamus and sought declaratory relief asking the court to approve the original plat application and successive plat applications based on vested rights under chapter 245 of the Texas Local Government Code. It further brought a takings claim. The City Defendants filed a plea to the jurisdiction which was denied. The City Defendants appealed.

Chapter 245 creates a system by which property developers can rely on a municipality’s regulations in effect at the time the original application for a permit is filed. It freezes” the rules at the time the original application for a permit is filed, and limits the rights of a city to “change the rules in the middle of the game.” Chapter 212 of the Texas Local Government Code deals with plat approval and requires plats to conform to the “general plan” of the city and for extensions of utilities and roadways. The City’s assertion that it relied on a pre-existing “general plan” of the City in denying the original plat application was rejected as the City did not provide, in the record, evidence of such a plan or what its framework would have been. Chapter 212 plans must be adopted after public hearings, which is not evident in the record. A vague reference to a general plan of the city is insufficient for plea purposes and a fact question exists preventing the plea. Further, Chapter 245 expressly authorized a declaratory judgment suit to establish Chapter 245 rights. As to the takings claim, the court held Premier alleged facts to support a takings claim based on the denial of its vested rights in the project.

If you would like to read this legal opinion, click here. Justice Christopher, Justice Donovan and Justice Wise. Opinion by Justice Wise.

Zoning amendment was not retroactive and property owner had no vested interest in perpetual use of his property for a specific purpose says Dallas Court of Appeals

 

Hinga Mbogo, et al. v. City of Dallas, et al. 05-17-00879-CV (Tex. App. – Dallas, June 19, 2018)

This is an appeal from an order granting the City Defendants’ plea to the jurisdiction in a constitutional challenge to zoning laws. The Dallas Court of Appeals affirmed the granting of the plea.

Hinga leased land and opened a general repair shop on Ross Avenue in Dallas, Texas, in 1986. At that time, the City’s zoning ordinances allowed automobile-related businesses on Ross Avenue. After performing a study which found automobile-repair shops were a concern in the area based on the connected roads and services in the area, the City amended its zoning ordinance in 1988 prohibiting such uses. At that time, Hinga was fully aware that continuing his business became a “nonconforming use.” In 1991, Hinga purchased the property, expanded and upgraded knowing the property was nonconforming. In 2005 the City again amended the zoning ordinance and codified specific provisions related to non-conforming uses and provided deadlines. A property owner could appeal to the board of adjustment to extend deadlines to comply with the requirements. The BOA gave Hinga a new compliance date of April 13, 2013. Hinga then received a zoning change and SUP which expired in 2015. Hinga applied for a new SUP in February 2016, which was denied. The City filed suit seeking a permanent injunction to prevent operations and sought fines of $1,000 per day. Hinga counterclaimed and brought in various City officials. The City defendants filed a plea to the jurisdiction, which was granted. Hinga appealed.

Hinga argues the City’s ordinances, as applied to him, are unconstitutionally retroactive. A retroactive law is one that extends to matters that occurred in the past. Hinga asserted in 2005 and 2013 he had no notice the City would at some point make his use illegal. However, a law is not retroactive because it upsets expectations based in prior law.  Further, there are strong policy arguments and a demonstrable public need for the fair and reasonable termination of nonconforming property uses. In 2005 the City’s ordinance change allowed the owner of a nonconforming use to apply for a later compliance date if the owner would not be able to recover his investment in the use by the designated conformance date. The ordinance did not change any use but rather, it prospectively altered a property owner’s future use of the property. The 2013 ordinance likewise set a deadline for when it expired. As a result, the ordinances are not retroactive. Additionally, the court noted not all retroactive laws are unconstitutional. Here, any interest that Hinga had in the use of his property is not “firmly vested.” There is no bright-line rule and, generally speaking, an individual has no protected property interest in the continued use of his property for a particular purpose. The process provided likewise did not deprive Hinga of due process or single him out in any respect. The City allowed Hinga to run a business from 1991 through 2015 as either a nonconforming use or under a SUP; however, his use became illegal once his SUP expired. Hinga’s position under his takings argument appears to be that any restriction on his desired use of the property results in unconstitutional damage or destruction to his property. That is simply not the case as he had no vested right to perpetual, guaranteed use of his property in a specific way. As a result the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justice Bridges, Justice Myers and Justice Schenck. Memorandum Opinion by Justice Bridges. The docket page with attorney information can be found here.

Trial court abused its discretion in awarding attorney’s fees to City in vested rights and declaratory judgment case

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Patsy B. Anderton, et al. v. City of Cedar Hill, 05-17-00138-CV (Tex. App. – Dallas, May 25, 2018)

The Dallas Court of Appeals affirmed-in-part and reversed-in-part a judgment for the City of Cedar Hill (“City”) in a case involving a non-conforming use in a specific zoning district.

This case went up and down the appellate latter in one appeal already. The Andertons purchased an existing landscaping and building materials business—a commercial rather than local retail business—that operated on Lots 5 and 6, about the time the City rezoned the area to a retail zone. The Andertons requested a zoning change to make their legal non-conforming use a legal conforming use, which the City denied. Several years later the City filed a declaratory petition and sought civil penalties against the Andertons prohibiting them from operating the existing business on the lots. The Andertons counterclaimed under Tex. Loc. Gov’t Code Chapter 245 for vested rights and inverse condemnation. Both parties moved for summary judgment. The trial court granted the City’s summary judgment motions and denied the Andertons’ motions. The Andertons appealed the first time and won a partial remand. However, afterwards, the City passed two zoning amendments making the lots lawful. The City sought attorney’s fees for the claims it won in the first appeal and filed a plea to the jurisdiction on the Andertons’ remaining counterclaims. The trial court denied the plea and went to trial on the attorney’s fee issue. The trial court later entered a final judgment on remand, dismissing the Andertons’ claims for non-conforming use rights in Lots 5 and 6 as moot and awarding the City its attorney’s fees. The Andertons appealed.

The court first held, given the zoning amendments, at the time it rendered judgment, the trial court had no practical ability to alter the legal relationship between the parties. As a result, the Andertons’ claim as to the non-conforming use status was moot and the trial court was obliged to dismiss barring some valid exception. There are two exceptions that confer jurisdiction regardless of mootness: (1) the issue is capable of repetition, yet evading review; and (2) the collateral consequences doctrine. The record did not reflect any evidence indicating the City was likely to rezone the property back to retail only, so the first exception does not apply. Theoretical possibility is not sufficient to satisfy the test.  The “collateral consequences” doctrine applies to the narrow circumstances when vacating the underlying judgment will not cure the adverse consequences suffered by the party seeking to appeal that judgment.  The Andertons, however, do not argue, and the record does not reflect, any concrete disadvantages or disabilities that will persist should their claim be dismissed as moot. So, the judgement is affirmed as to the Andertons’ counterclaims. As to the award of attorney’s fees, the UDJA does not condition the entitlement to fees on prevailing party status. The trial court’s findings of fact and conclusions of law affirmatively indicate the trial court awarded the City its attorney’s fees as “equitable and just based on the claims asserted in this case, the objectives sought by the parties and the outcome of this case” and not as a “prevailing party.” However, not withstanding, the extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s fees. As in cases involving only a modicum of success in the context of the prevailing party statute, even fees supported by uncontradicted testimony may be “unreasonable” in light of the amount involved, the results obtained, and in the absence of evidence that such fees were warranted due to circumstances unique to the case. After going through the win/loss points and going through each lot in the case, the appellate court held the trial court abused its discretion in awarding attorney’s fees.

If you would like to read this opinion click here. Panel consists of Justice Lang, Justice Fillmore and Justice Schenck. Opinion by Justice Schenck. The attorney listed for Patsy Anderton is Arthur J. Anderson. The attorneys listed for the City are Ronald G. Macfarlane Jr., James W. Morris Jr., and Terry D. Morgan.

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.

 

Payday loan company has no jurisdiction to challenge City ordinance regulating payday loans says Fort Worth Court of Appeals

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ACE Cash Express, Inc. v. The City of Denton, Texas 02-14-00146-CV (Tex. App. – Fort Worth, June 4, 2015).

This is a case involving a company’s attempt to invalidate a city ordinance regulating credit access businesses in which the Fort Worth Court of Appeals affirmed the granting of a plea to the jurisdiction.

The Credit Services Organizations Act (the CSO Act) contained within the Texas Finance Code provides for the licensing and regulation of credit access businesses (sometimes referred to as payday lenders).  The City of Denton enacted additional requirements and imposed misdemeanor penalties for violations. ACE Cash Express (“ACE”) sued to invalidate the ordinance asserting it exceeded the City’s police power and was unconstitutional.  The City filed a plea to the jurisdiction which the trial court granted and ACE appealed.

Generally, declaratory and injunctive relief are not applicable to challenge criminal statutes. The crux of ACE’s argument is that it could not challenge the statute in criminal court since no employees would conduct actions to trigger liability.  An exception to the general requirement that challenges to criminal statutes must occur in criminal court is City of Austin v. Austin City Cemetery Ass’n, 87 Tex. 330, 28 S.W. 528 (1894), in which customers of a cemetery had to participate in the criminal act in order to allow the Cemetery to challenge a city ordinance. However, the Fort Worth court noted a distinction between requiring “customer” participation to challenge a criminal ordinance and requiring an employee and/or agent. Therefore the Austin City Cemetery exception does not apply. When ACE self-reported certain matters the City refused to prosecute and thereby prevented ACE from challenging the ordinance.  However, that does not mean ACE would not be able to challenge the ordinance when the City does prosecute. Further, no vested right exists entitling ACE to challenge the constitutionality of the ordinance. The ordinance did not deprive ACE of any physical property, did not retroactively cancel any loans already made, and did not forbid ACE from engaging in its business.  It only regulated the terms under which it may offer its services. ACE did not have a vested property right to its contractual options to renew, extend, or refinance the loans. Finally, the Texas Declaratory Judgment Act does not waive immunity by itself, but is only a procedural mechanism for which independent waiver of an underlying claim exists.  Finding none, the court affirmed the granting of the plea.

If you would like to read this opinion click here.  Panel: Justice Dauphinot, Justice Gabriel and Justice Sudderth. Memorandum Opinion by Justice Gabriel.  The attorney listed for the City is Jerry Drake, Jr.  The attorneys listed for ACE Cash are Benjamin Leon Stewart and Clayton E. Bailey.

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

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

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

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

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

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

Suit against City employee, individually, dismissed, but ultra-vires claims remain even under Sec. 101.106 of Civil Practice and Remedies Code

Charles N. Draper v. Greg Guernsey, in his Capacity as Director of Planning and Development Watershed Protection Review Department; and City of Austin, 03-14-00265-CV (Tex. App. – Austin, February 25, 2015).

This is a land-use dispute but the opinion focuses on the dismissal of a City employee under Tex. Civ. Prac. & Rem. Code §101.106 vs ultra-vires claims.

Draper, pro se, sued the City of Austin and the Director of Planning, Guernsey, regarding property he owns but whose development is under certain restrictions pursuant to City ordinance. The City filed a motion to dismiss Guernsey under §101.106(a)(suit against entity precludes suit against employee) and (e)(suit against entity and employee means employee entitled to dismissal), which the trial court granted.

The court first noted that the pleadings are not very clear, but it appears some claims by Draper are ultra-vires claims to force the defendants to recognized some form of vested right under Chapter 245 of the Texas Local Government Code. The proper defendant to an ultra-vires claim seeking to restrain allegedly unlawful actions by the City would be Guernsey, not the City.  However, Draper also sought monetary damages exceeding $10 million asserting various improper acts by Guernsey and other City officials.   The court analyzed the interplay between subsection (a) and (e) and ultimately held 1) all claims against Guernsey, individually, were properly dismissed, 2) suit against Guernsey in his official capacity only is a suit against the City, but must be brought against Guernsey in his capacity as an official for ultra-vires purposes, and 3) the trial court’s wording that dismissed Guernsey in all respects was error.  So, Guernsey individually is let out but the ultra-vires claims remain.

If you would like to read this opinion click here. Panel: Justice Pemberton, Justice Puryear and Justice Bourland. Memorandum Opinion by Justice Pemberton. The attorney for City of Austin and Greg Guernsey is Sandra Kim. Appellant Charles Draper is pro se.

City’s fair notice ordinance to establish vested rights deemed preempted says 4th Court of Appeals.

 

City of San Antonio v. Greater San Antonio Builders Association and Indian Springs LTD, 04-13-00013-CV (Tex. App. – San Antonio, November 20, 2013).

This is a vested rights case under Chapter 245 of the Texas Local Government Code. The City of San Antonio appealed from a declaratory judgment invalidating its fair notice ordinance and the San Antonio Court of Appeals affirmed.

In relation to permits for development, the City passed an ordinance requiring the applicant to fill out a specific City form which flags the permit for the City to recognize vested rights. The purpose is “to provide standard procedures for an applicant to accrue rights under Chapter 245 of the Texas Local Government Code.”  The Plaintiffs are organizations whose members include individuals and entities who are concerned with issues affecting the real estate industry in the greater San Antonio area or who own real property in the City. In a separate interlocutory appeal, the Plaintiff’s standing was affirmed and they were permitted to proceed at the trial court level. The Plaintiffs filed traditional summary judgment motions (2 of them on different issues) which the trial court granted. The City appealed.

The City asserted the fair notice ordinance ensures it will have enough information about a project to determine whether the project has changed and, therefore, is subject to current development regulations. GSABA and Indian Springs countered that the fair notice ordinance allows the City to prevent owners from obtaining or utilizing vested rights that have already been authorized by the legislature under Chapter 245. The City conceded it would not recognize a vested right without the fair notice form since its absence makes an application incomplete.  However, the court held that Chapter 245 expressly defines the documents and information that cause the accrual of a vested right. Tex. Loc. Gov’t Code. § 245.002(b)(West 2011). The City’s form requires additional information beyond what is recognized in the statute and therefore fails to recognize rights which vest under state law. Unfortunately, the court then held that since the City did not present the severance clause argument in response to the summary judgment, they could not do so on appeal. The entire ordinance is therefore invalid.  This seems a little extreme since the law is the law and whatever provision may be invalid, the presence of a severance clause separates it as an operation of law.  But the 4th Court did not see it that way and invalidated the entire ordinance.

If you would like to read this opinion click here.