Category Archives: Zoning

BOA appeal moot due to relocation of shed built in setback says Fort Worth Court of Appeals

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Oak Point Board of Adjustment v. Jeff Houle, 02-19-00068-CV, (Tex. App – Fort Worth, Dec. 12, 2019)

This is a board of adjustment appeal where the Fort Worth Court of Appeals reversed the denial of the Board’s plea to the jurisdiction and dismissed the case.

The City of Oak Point has a zoning ordinance establishing a 50-foot front-yard setback in the residential neighborhoods. Houle, a resident, complained about the variance to the set-back granted to his neighbor, Bobby Pope. Pope received a permit and built a shed, but due to a miscalculation, it was built in the setback. The Board of Adjustment (BOA) granted the variance. Houle attempted to challenge it by suit in the county court at law. The BOA filed a plea to the jurisdiction which was denied.  It appealed.

The BOA advised Pope had since moved the shed out of the setback. By variance, the BOA effectively excepted Pope’s shed from the front-yard setback requirement. Houle’s petition seeks to undo that exception. However, the variance expressly stated that should the shed ever be moved, the variance would be nullified, which is exactly the relief requested by Houle. The shed’s relocation means that Houle has obtained the relief he sought by his claims, and a judicial determination cannot have any practical legal effect on an existing controversy rendering his lawsuit moot. None of Houle’s arguments asserting why the suit remains live apply. As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justices Gabriel, Birdwell, and Womack.  Opinion by Justice Womack.  Docket page with attorney information found here.

Fort Worth Court of Appeals holds injunctive relief not available to stop enforcement of ordinance regulating gas/oil production

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The Town of Flower Mound, Texas, et al.  v. EagleRidge Operating, LLC, 02-18-00392-CV, (Fort Worth, Aug. 22, 2019)

This is an interlocutor appeal in a temporary injunction case where the Fort Worth Court of Appeals held the zoning restriction on oil/gas equipment at issue was a penal statute and no vested property right existed, depriving the trial court of jurisdiction to issue a temporary injunction. 

Plaintiffs took over operation of a series of oil/gas wells in the Town. The Town passed an ordinance regulating operations, the removal of waste water and hours of operation. The ordinance stated as part of its purpose that  natural gas drilling and production operations involve or otherwise impact the Town’s environment, infrastructure, and related public health, welfare, and safety matters.  In 2018 Plaintiff filed 3 actions with the board of adjustment (BOA) and board of oil and gas appeals (OGA) regarding variances, which were denied. The Town issued several criminal citations for after hour operation and failure to remove wastewater. The Plaintiff sought a TRO and injunction to prevent the enforcement of the ordinance, which was granted. The Town, BOA and OGA appealed.

The basic test as to whether a law is penal is whether the wrong sought to be redressed is a wrong to the public or a wrong to an individual. A public wrong involves the “violation of public rights and duties, which affect the whole community, considered as a community, and are considered crimes; whereas individual wrongs are infringements of private or civil rights belonging to individuals, considered as individuals, and constitute civil injuries.”  When an ordinance’s primary purpose is to protect the welfare of a municipality’s citizens, it “is clearly addressing a wrong to the public at large” and is a penal.  The court held the zoning ordinance was penal in nature. To be entitled to injunctive relief, the Plaintiff had the burden to demonstrate irreparable injury to a vested property right. Contrary to Plaintiff’s position, allegations of injury to an interest in real property does not equate to irreparable injury of a vested property right. Increases in operating costs does not equate to irreparable harm to their mineral interests. Loss of profitability, alone, also does to equate to irreparable harm to their mineral interest. As a result, Plaintiff is not entitled to injunctive relief to prevent enforcement of such a penal ordinance. Under sections of Tex. Loc. Gov’t Code chapter 211 (dealing with BOA and appeals), no injunction is textually available for an appeal from the BOA to a district court, only from an official to the BOA. The Legislature made a distinction between a restraining order and an injunction, and no injunctive relief is available under Chapter 211 for an appeal to district court from a BOA decision. 

Chief Justice Sudderth concerned in a majority of the opinion, but dissented as to the interpretation under Chapter 211. He opinioned a temporary restraining order is a stopgap, placeholding measure to preserve the status quo 14 days, just until a litigant’s application for temporary injunction can be heard.  For practical purposes, depriving the trial court of the ability to extend the restrained enforcement makes little sense. 

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justice Gabriel, visiting Judge Wallach.  Memorandum opinion by visiting judge Wallach. 

Board of Adjustment’s plea on declaratory judgment claim granted as UDJA is a redundant remedy says Austin Court of Appeals

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City of Wimberley Board of Adjustment v. Creekhaven, LLC; and William D. Appleman, 03-18-00169-CV (Tex. App. – Austin, October 18, 2018)

This is a board of adjustment appeal case where the Austin Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the claims.

Campbell owns property next to Creekhaven and requested setback variances for construction of a pole barn which the Board of Adjustment granted with conditions. Creekhaven filed suit challenging the BOA’s order. While the trial court’s order in the case was pending, a deadline imposed by the order passed without Campbell having satisfied the requirements. According to the Board’s order, if Campell failed to comply by the deadline, the variance expired automatically. Campell filed a second variance request, which was also granted with the same conditions. Creekhaven amended its petition asserting the BOA had to make a determination on the first variance lapsing before granting a new variance. The BOA filed a plea to the jurisdiction as to the Uniform Declaratory Judgment Act (“UDJA”) claims which was denied. The BOA appealed.

The UDJA does not create a cause of action, but is a mechanism for adjudicating disputes already ripe. The UDJA waives immunity only to challenge the validity of an ordinance. It does not waive governmental immunity when the plaintiff seeks a declaration of rights under a statute or other law. Creekhaven seeks a declaration regarding the legal effect of the first variance. To the extent that Creekhaven’s request for a declaration that the variance has expired depends on a finding that Campbell failed to comply with various city ordinances by a certain date, it constitutes a request for a declaration interpreting those ordinances.  Therefore, no waiver of immunity exists. Creekhaven also tried arguing that its UDJA claim asserts ultra vires acts by the Board members such that governmental immunity does not bar the claim and are barred by res judicata.  However, the doctrine of res judicata, as an affirmative defense, would not deprive the BOA of authority to consider Campbell’s request for a variance. Thus, it would not render the BOA members’ actions ultra vires. Finally, to the extent Creekhaven’s UDJA claims seek to overturn the Board’s orders regarding the variances Campbell has requested, the doctrine of redundant remedies prevents it from seeking that relief. Its option is to pursue invalidation under Chapter 211 of the Texas Local Government Code. As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justice Puryear and Justice Field. Memorandum Opinion by Justice Field. The attorneys listed for the City are Mr. Gunnar P. Seaquist  and Ms. Kelli Fuqua.  The attorney listed for the Plaintiffs is Mr. Jimmy Alan Hall.

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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

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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.

City’s BOA within its discretion to grant variance due to situation where property was a prime target for “destruction or damage by the local . . . students”

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Lenda Vogler v. City of Lamesa and April Vara 11-16-00168-CV (Tex. App – Eastland, May 24, 2018)

The Eastland Court of Appeals affirmed the City of Lamesa Board of Adjustment’s grant of a setback variance for a car port.

Vara sought a setback variance from the City of Lamesa Board of Adjustment (“BOA”) in order to build a car port in order to protect her antique cars. The variance was granted, but a neighbor (Vogler), opposed the variance. Vogler sued under Chapter 211 of the Texas Local Government Code to undo the variance. The trial court affirmed the BOA’s grant of the variance and Vogler appealed.

The trial court sits only as a court of review, and it may consider only the legality of the Board’s decision. bears the burden to establish that the Board’s action was illegal, and she must do so by a very clear showing that the Board abused its discretion by acting arbitrarily and unreasonably or without reference to any guiding rules or principles. Vogler first asserts the BOA’s variance amounted to a rezoning, however, the Board granted an area variance, not a use variance. Next, the record reveals that the location of the Varas’ property makes it a prime target for “destruction or damage by the local . . . students . . . who might lob rocks and bottles and cans and whatnot at them.” Such a condition appears to be unique to the Varas’ property. That the Varas’ own antique cars does not make the unique condition of the property a self-imposed hardship. As a result, the BOA was within its powers and discretion to grant the variance and Vogler failed to meet her burden.

If you would like to read this opinion click here. Panel consists of Justice Willson, Justice Bailey and Justice Wright. Opinion by Justice Wright. The attorney listed for Vogler, Lenda is Philip Mack Furlow. The attorneys listed for Vara, April is Vara, April.  The attorney listed for the City is Russell Casselberry

City’s letter advising of BOA decision was not “the decision filed in the board’s office” for purpose of BOA appeal deadlines under Chapter 211 says Austin Court of Appeals

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Lisa Risoli v. Board of Adjustment of the City of Wimberley, and the City of Wimberley  03-17-00385-CV (Tex.App—-Austin October 19, 2017)

This is a board of adjustment appeal where the Austin Court of Appeals remanded the property owner’s claims back to the trial court.

Risoli sued arguing the Board of Adjustment of the City of Wimberley and the City of Wimberley had improperly revoked the “grandfathered use status” of Risoli’s property, barring her from using it as a short-term rental facility. The City and BOA filed a plea to the jurisdiction, which included arguments she missed the filing deadline. The trial court granted the plea and Risoli appealed.

A person aggrieved by a board of adjustment’s decision may seek judicial review by presenting a petition “within 10 days after the date the decision is filed in the board’s office.” Tex. Loc. Gov’t Code §211.011(b). The filing date is jurisdictional. The controlling question is whether the City Administrator’s letter was the Board’s “decision” that was “filed in [its] office” and triggering the deadline. The BOA held a meeting on September 6, 2016 regarding Risoli’s appeal of the City Administrator’s decision to revoke her grandfathered use. On September 14, the City Administrator wrote a letter to Risoli stating the Board of Adjustment unanimously voted to uphold the recent determination by the City and that she must immediately cease all such activities. That letter was emailed to Risoli on September 16th and again on October 18th. Risoli filed her petition November 17th  but argued the BOA’s minutes had not yet been approved, therefore no decision was “filed in the board’s office.” The City and BOA argued the letter was filed at City Hall, which is the office where the Board of Adjustment’s records were kept and maintained by the City Secretary for all purposes. The City Secretary maintains the BOA records and is, by operational design, the BOA’s office. However, the BOA did not submit any evidence to the court to back-up or establish these facts.  The BOA did not define what constituted it’s “decision” and had not adopted protocols defining its office or filing. Given the absence of evidence, mere argument in pleadings is insufficient to factually support the motion. The order dismissing Risoli’s claims is reversed and the case is remanded.

If you want to read this opinion click here. The panel consists of Justice Puryear, Justices, Field,  and Bourland. Justice David Puryear delivered the opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.

Trial court properly denied injunctive request to prohibit City from relocating administrative offices

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Leslie E. Barras and Historic Orange Preservation Empowerment, Inc. v. The City of Orange, Texas, et al, 09-16-00073-CV (Tex. App— Beaumont, November 17,2016)

This is an appeal from the denial of an injunctive request to prevent the City from relocating its administrative offices.

In 1996, within the City’s Comprehensive Master Plan, the City determined its administrative offices should be centralized in the Old Town Center of the City. In 2016 the City purchased and made plans to move some of its offices outside of the Old Town Center. Historic Orange Preservation Empowerment, Inc. (“HOPE”) sued for injunctive relief to prevent the move. The trial court denied the injunctive relief and HOPE appealed.

HOPE argues the CITY is required to amend the City Charter because it requires that “[n]o subdivision, street, park, or any public way, ground or space, public building or structure or public utility, whether publicly or privately owned which is in conflict with the comprehensive plan shall be constructed or authorized by the City.” HOPE asserts this makes the comprehensive Plan mandatory and not simply a guide. However, the Plan expressly provides that it is “a guide to the physical development of Orange[,]” and it states that it is “a tool for elected and appointed officials and city staff to guide decision making for growth and development issues.”  After analyzing the Plan, the court held it is a guiding document only. Additionally, the parts of the Plan relating to the location of the City’s administrative offices were never adopted by ordinance.  The Charter applies only to legislation through ordinance, not resolution.  The resolution passed by City Council to move its facilities is therefore not in conflict with the Comprehensive Master Plan. As a result, the trial court properly denied the injunctive relief.

If you would like to read this opinion click here. The panel includes Chief Justice Mckeithen, Justice Horton, and Justice Johnson.  Justice Horton delivered the opinion of the court. Attorneys for HOPE are listed as Jamie Matuska, Leslie Barras and David W. Starnes. Attorneys for the City are listed as Guy Goodson, John Cash Smith, and Kate Leverett.

City immune from delay in zoning approval due to City Attorney’s mistaken understanding of municipal boundary line

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City of Floresville, et al.  v. Starnes Investment Group, LLC, 04-16-00038 (Tex.App— San Antonio, September 28,2016)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a case where a city employee mistakenly informed a property developer they were outside city limits.  The San Antonio Court of Appeals reversed the denial and dismissed the claims.

Starnes Investment Group, LLC (“Starnes”) began looking at property to develop as a commercial recreational vehicle park. Starnes filed a rezoning application to allow for the RV park. The City Attorney advised the property was outside of the City limits and not subject to zoning restrictions. However, after Starnes purchased the property and the City completed a map digitization initiative, it discovered the property was partially inside and partially outside of the City limits. The City ultimately approved a zoning change application to allow the RV park. However, Starnes still sued. The premise of Starnes’s lawsuit is that it was harmed by the City’s delay in approving its zoning application and delay in providing water and sewage due to the misunderstanding. The City filed a plea to the jurisdiction which the trial court denied. The City appealed.

The first issue the court resolved was procedurally, the trial court granted the City’s special exceptions and denied the plea in the same order. While Starnes filed an amended petition, it did so after the denial of the plea.  However, since the plea is jurisdictional, the court considers all of the matters during the appeal, including those which were not before the trial court at the time of the original order.  Next, a governmental entity does not have immunity from a valid takings claim. In a takings case, “the requisite intent is present when a governmental entity knows that a specific act is causing identifiable harm or knows that the harm is substantially certain to result.” A taking cannot rest on the mere negligence of the government. Moreover, “[w]hen damage is merely the accidental result of the government’s intentional act, there is no public benefit and the property cannot be said to have been taken or damaged for public use.” Starnes’s amended petition alleges no facts that the information was the result of anything more than either a mistake or negligence on the City Attorney’s part. As a result, there is no takings claim. Next, to state a valid due process or due course of law claim, a plaintiff must first allege the existence of a protected right. Starnes’s zoning application merely sought a governmental benefit to which it was not already entitled. As such, Starnes only had an expectation of the governmental benefit which is not a protected property right. To assert an equal protection claim, the deprived party must establish two elements: (1) that it was treated differently than other similarly-situated parties; and (2) it was treated differently without a reasonable basis. Other than a conclusory statement that it was treated differently from others similarly situated, Starnes failed to allege any facts describing similarly situated parties. As a result, there is no equal protection violation. Chapter 245 of the Texas Local Government Code (often referred to as a vested rights/grandfather statute) creates a narrow exception enforcing changing regulations stating, after receiving a development application or plan, a regulatory agency changes its land-use regulations, the agency cannot enforce such a change. Starnes does not point to any change in the City’s existing “orders, regulations, ordinances, rules, expiration dates, or other properly adopted requirements” that occurred after Starnes filed its zoning application.  The property was always partially in and partially outside of the City limits. An employee’s mistaken belief of the location of the boundary line is not a change in adopted regulation. Additionally, Chapter 245 is enforceable only through mandamus, injunctive or declaratory relief, none of which Starnes sought. Finally, Starnes had the opportunity to, and did in fact, amend its pleadings in the trial court after the City filed its special exceptions.  The court need not provide any further opportunity to amend. The court reversed and rendered in favor of the City.

If you would like to read this opinion click here. The Panel includes Chief Justice Marion, Justice Barnard and Justice Pulliam. Chief Justice Marion delivered the opinion of the court. Attorneys representing the parties can be found on the docket page  here.

 

Trial court properly dismissed various claims brought against Board of Adjustment

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Glen Sumner v. Board of Adjustments of City of Spring Valley Village, Texas; The City of Spring Valley Village Texas, Art Flores, and Rickie Prichard 14-15-00149-CV (Tex. App- Houston [14th Dist.], May 17th 2016).

This is a board of adjustment and takings case where the 14th Court of Appeals affirmed the dismissal of all Plaintiff’s claims.

Spring Valley Village adopted a zoning ordinance which states “[i]t shall be the responsibility of each owner . . . to maintain the drainage patterns of adjacent property owners or landowners caused either by direct diversion of water on the land or by failure to adequately accommodate new or changed drainage patterns…” Sumner owns a home in Spring Valley. Sumner asserts Prichard bought the adjoining property with the intent to build a new house. The plans called for the elevation of Prichard’s property and changed the drainage.  Sumner believed Prichard’s plans would change the natural flow of surface water onto his property in violation of the zoning ordinance. The City’s building official issued a permit for an irrigation system to Prichard consistent with the site plans. Sumner filed an application with the Board of Adjustment relating to the building official’s permit. The Board unanimously rejected Sumner’s protest. Sumner sued the building inspector and the City. The trial court signed a single order dismissing all claims against the building inspector; dismissing Sumner’s petition for writ of certiorari; and granting the City’s motion for summary judgment. The trial court granted the severance to separate the City Defendant’s from Prichard, making its order final.  Sumner appealed.

The Court of Appeals first held the trial court did not abuse its discretion in granting the severance. The claims could have been asserted as an independent lawsuit and they are not so interwoven that they involve identical facts and issues. Next the court held Sumner did not exhaust his administrative remedies regarding the building inspector because the pleadings show Sumner was complaining about a certificate of occupancy, not an irrigation permit. Since Sumner did not timely challenge the certificate with the Board, the trial court was without jurisdiction to consider it. Regarding the takings claim, although district courts typically are courts of general jurisdiction, the Legislature has vested exclusive jurisdiction over inverse condemnation claims in the Harris County Courts at Law for this particular area of the State. Tex. Gov’t Code Ann. §25.1032(c) (West Supp. 2015).  The Court next held Sumner did not properly allege an ultra vires claim under his plead facts. Sumner claims monetary damages for past acts which is not allowed. He further seeks control of future actions, however, such claims are not ripe as there is no indication Prichard intends or will submit any future plans. As a result, the trial court properly dismissed all claims, although the mechanism it uses was adjusted by the Court of Appeals (i.e. certain claims should have been dismissed under the plea, not the MSJ).

For the full opinion click here. Panel consists of Justices Boyce, Busby and Brown. Memorandum Opinion issued by Justice Busby. Attorneys listed for the City defendants are Dennis S. Dresden and Andrea Chan. Glen Sumner represented himself.

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.

Board of Adjustment has jurisdiction to hear second application once amended to be a materially different structure than the first application says 4th Court of Appeals

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Board of Adjustment of the City of San Antonio v. Michael and Theresa Hayes 04-15-00021-CV (Tex. App. – San Antonio, February 24, 2016)

This is a board of adjustment case where the 4th Court of Appeals held the BOA had jurisdiction to hear a second, but materially different, appeal regarding a fence.

Director of the City’s Development Services Department revoked a permit issued for the construction of a metal railing citing the permit was issued in error because the Board of Adjustment (“BOA”) previously determined the railing would be a sports court/tennis court fence subject to a 20’ setback requirement. The homeowner, Torres, appealed to the BOA which unanimously rescinded the revocation and permitted the fence without the 20’ setback. Hayes, Torres’ neighbor, sued the BOA asserting it lacked authority to permit the fence without the setback because he had won the previous BOA appeal holding the fence was part of a sport’s court. The trial court held the BOA lacked jurisdiction over the appeal and reversed the BOA decision allowing the fence. The BOA appealed.

Judicial review of a BOA decision is by filing a writ of certiorari asserting the decision by the board of adjustment is illegal.  However, a BOA decision can be collaterally attacked by asserting the BOA lacked jurisdiction in the first place. The court interpreted the Hayes judicial review attach as a collateral attack because the Torreses failed to appeal the original decision in the trial court. However, although the second application for the railing was essentially the same as the first application, the Torreses amended the second application during the course of the Board of Adjustment’s proceeding altering its design. As a result, it became materially different than the first application and the trial court errored in concluding the BOA did not have jurisdiction to hear the change.

If you would like to read this opinion click here. Panel: Chief Justice Marion, Justice Barnard and Justice Alvarez. Memorandum Opinion by Chief Justice Marion.  The attorney listed for the City is Albert Lopez.  The attorneys listed for the Hayes are Elliott S. Cappuccio, Leslie Sara Hyman, and David Lawrence Earl.

Court orders ZBOA to issue certificate of occupancy since “[t]he proposed use of the property in question looked, swam, and quacked like a ‘Hospital’ and ‘Convalescent Center'”

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City of Glen Rose, Texas and the Zoning Board of Adjustments of the City of Glen Rose, Texas v. Ernest and Shirley Reinke, 07-15-00266-CV (Tex. App. – Amarillo, February 8, 2016),

This is an appeal from a ZBOA decision regarding the denial of a certificate of occupancy. The Amarillo Court of Appeals affirmed the granting of the petitioner’s appeal of the ZBOA.

Reinkes sought but were denied a certificate of occupancy to operate a drug and alcohol rehabilitation center as either a “hospital” or “convalescent center” under a City zoning ordinance. The City Administrator denied the request  noting the application was more akin to a sanitarium and such denial was affirmed by the ZBOA.  The Reinkes appealed to district court, which granted their motion for summary judgment and ordered the ZBOA to issue a certificate of occupancy. The City and ZBOA appealed.

The court first determined the ZBOA appeal was on the certificate of occupancy (“CofO”), not the Reinkes’ application for special use permit, which was denied previously. As a result, the only issue is the CofO.  Next, under Tex. Loc. Gov’t Code §211.011 the only question the trial court has in such a proceeding is deciding “the legality of the zoning board’s order.” And, discretion is abused when the board acted “. . . without reference to any guiding rules and principles or clearly fails to analyze or apply the law correctly.” After analyzing the City’s zoning code, the court determined the proposed business had the characteristics of both a “Convalescent Center” and “Hospital” as expressly defined by the City. Given that, the Reinkes property was eligible for the desired certificate of occupancy should have been issued. Strike a bit of humor the court noted “[w]e are reminded of that old idiom that if it looks like a duck, swims like a duck and quacks like a duck, then it is a duck. The proposed use of the property in question looked, swam, and quacked like a ‘Hospital’ and ‘Convalescent Center[.]’” Unlike the terms “Hospital” and “Convalescent Center,” though, the City had not defined the word “Sanitarium.” Due to this circumstance, the City Administrator turned to the internet to garner a definition of the word. After applying various cannons of statutory construction, the court determined the Administrator’s definitions were inconsistent with the ordinance. The summary judgement for the Reinkes was therefore affirmed.

If you would like to read this opinion, click here.  Panel Chief Justice Quinn, Justice Campbell, and Justice Hancock.  Opinion given by Chief Justice Quinn.  Attorney for the Appellee is Stuart V. Neal.  Attorneys for the Appellant are Wayne K. Olson, Brady Pendleton, Ashley Dierker, and Fredric

BOA had authority to grant hardship variance after neighbor found survey discrepancy

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Glen Sumner v. Board of Adjustments of the City of Spring Valley Village, et al, 01-14-00888-CV (Tex. App. – Houston [14th Dist.] October 20, 2015)

This is an appeal from a Board of Adjustment (“BOA”) order granting a variance in which the Houston Court of Appeals for the 14th District affirmed the granting of the City’s Plea to the Jurisdiction in a very long opinion.

Sumner’s neighbors, the Khans, purchased an adjacent lot and sought a variance to construct a second story onto the existing house, which the City granted. Sumner then discovered an apparent error in the conveyance history resulting in a one-foot strip of land discrepancy. This meant the second story addition was approximately six inches closer to the property line than the eight feet permitted by the Building Setback Ordinance. As a result, the Khans applied to the BOA for a variance, which was granted. Sumner also complained about various other alleged problems with the Khans including complaints about their air conditioner location and roof height restrictions.  Sumner requested a hearing in front of the BOA on his height restriction complaint.  He was told the measurements for the heights were only to certain points on the roof and the Khans were in compliance. Sumner sued appealing the BOA’s decisions including the original set-back variance and the subsequent hearing on the height restrictions. The suit went up and down from state to federal court and back again. Upon return to state court the City and BOA filed a motion for summary judgment, motion to dismiss and plea to the jurisdiction, which the trial court granted. Sumner appealed.

The court first determined Sumner waived his argument on the finality of the trial court’s order since he did not properly brief it. Sumner had the burden of proof to establish the illegality of the Board’s order. Whether a hardship exists is a question of fact to be determined by the Board. The Board heard testimony the six-inch discrepancy was inadvertent in the surveys and allowing the variance did not harm the public. Testimony confirmed the setback violation remained undiscovered until construction of the Khans’ addition was substantially complete. As a result, the BOA was within its authority to grant a hardship variance. Additionally, the court incorporated the federal judge’s holding that “[t]here is simply no protected property interest in having a zoning ordinance enforced against one’s neighbors.” Sumner also did not have a right to cross-examine witnesses at the BOA meetings. He was not a party and did not take advantage of the BOA procedure entitling him to submit questions the Board would ask of applicants. Finally, the City was well within its authority to amend its ordinances after Sumner began his complaints. It is settled law that a city may rezone or amend its ordinances “as long as the action is not arbitrary, capricious and unreasonable.” Sumner presented no evidence to meet this burden. The trial courts order was affirmed.

If you would like to read this opinion click here.  Panel: Justice Jennings, Justice Higley and Justice Brown. Memorandum Opinion by Justice Brown.  The attorneys listed for the City and BOA are Scott Bounds, John H. Hightower, and Andrea Chan.  The attorneys listed for Sumner are William R. Sudela, J. Daniel Long, and Elizabeth Harris

City’s jurisdictional plea denied in case asserting City’s development agreement equates to contract zoning

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City of Shavano Park v. Ard Mor, Inc., et al, 04-14-00781-CV (Tex. App. – San Antonio, July 29, 2015)

This is an interlocutory appeal from the denial of a plea to the jurisdiction involving a challenge to an adjacent development agreement and zoning change. The San Antonio Court of Appeals reversed in part and affirmed in part.

Ard Mor operates a child care facility. Lockhill Ventures, LLC owns two lots of land adjacent to the childcare facility, which is subject to deed restrictions. . Lockhill Ventures intends to build a gas station and gas storage tanks next to Ard Mor’s facility. The City’s zoning does not list “gas station” as a permitted use. However, the Lockhill property is subject to a development agreement in which, once annexed, Lockhill is permitted a project which includes a convenience store with gas station. Ard Mor sued the City and Lockhill. The City filed a plea to the jurisdiction, which was denied after the court heard four days of testimony in a temporary injunction hearing. The trial court enjoined Lockhill, but not the City.  The City remained a party to suit.

Ad Mor’s numerous requests for declaratory relief against the City fall into four requests for relief: construe various City ordinances, declare the Agreement void, declare the annexation ordinance void, and declare the actions of the City and its officials to be ultra vires acts which violated their due process rights. The court first addressed Ad Mor’s request to invalidate the agreement as being contract zoning. The court held that since the City did not set its plea to the jurisdiction for a hearing, but merely urged it during the temporary injunction, Ad Mor did not have the ability to develop the record to establish its jurisdictional basis. Therefore remand on this claim is proper. Ad Mor’s claims challenging the annexation ordinance are not attacks on procedural irregularities (which can only be brought in a quo warranto proceeding) but an assertion that contract zoning makes the ordinance void. This is a permissible challenge under the Declaratory Judgment Act. However, Ad Mor failed to allege a proper due process claim, mainly because it did not allege it was treated differently than someone else. Additionally, Ad Mor brought ultra-vires claims against the City, not its officials. Such claims can only be brought against officials and therefore the claims against the City are improper. Finally, the court held the City did not properly challenge the claims to interpret its zoning ordinances, so it will not address them on appeal. As a result, the court affirmed in part, reversed in part, and remanded for further processing.

If you would like to read this opinion click here. Panel: Chief Justice Marion, Justice Martinez and Justice Alvarez.  Memorandum Opinion by Chief Justice Marion.  The attorneys listed for the City are Lowell Frank Denton, Elizabeth Provencio and Patrick Charles Bernal.  The attorneys listed for Ard Mor and other Plaintiffs are Aaron Saxon, Jay K Farwell, Karen L. Landinger, and David Lawrence Earl.

Association has standing to challenge validity of zoning change ordinance; Declaratory judgment actions do not intertwine jurisdiction with merits says Dallas Court of Appeals

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City Of Dallas and Larry Holmes, in his Official Capacity as Chief Building Official for the City of Dallas v. East Village Association, 05-14-01406-CV (Tex. App. –Dallas July 21, 2015.

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a case challenging the validity of a City zoning change via ordinance.

The City changed its zoning in a particular location to allow for the construction of a Sam’s Club store. The Dallas Development Code allows a variety of retail uses in Mixed Use 3 Districts, adopted by the Ordinance, as a matter of right, but “big box” stores are only allowed with a SUP, which carries its own requirements for issuance. Contending that they were surprised and upset by the news that a Sam’s Club store was coming to their neighborhood, property owners near East Village formed the Association to challenge the sufficiency of the notice given of the proposed change in zoning. The City filed a plea to the jurisdiction which was denied.

The court first determined that the Association has standing to bring suit. The City argued its purpose was to challenge the zoning which is not a proper non-profit purpose.  However, the court held protecting the quality of neighborhood living is a civic purpose and qualifies.  While the Association does not own property within 200 feet of the zoning change, at least one of its members does, objected to the zoning, and would be adversely impacted. Next, for jurisdictional purposes, immunity is waived under the Declaratory Judgment Act if a party challenges the validity of an ordinance.  Unlike a Texas Tort Claims Act case where jurisdiction is intertwined with the merits, declaratory judgment actions are not interconnected with the underlying claim. Because lack of sufficient notice is a basis upon which the Ordinance would be void, the Association has pleaded a claim.  When an ordinance is challenged for lack of sufficient notice as to the scope of the change in zoning, the issue of sufficiency of the notice is not a jurisdictional question, but rather a question as to the merits. Further, the Association presented competing evidence of the sufficiency so a fact question exists anyway. Finally, the Association brings ultra-vires claims seeking an order mandating that any permits already issued under the new zoning change be cancelled.  The Association sought permanent injunctive relief for ultra vires conduct predicated on a void ordinance.  While the City does maintain immunity from such claims, the city officials do not.

If you would like to read this opinion click here.  Justice Lang-Miers, Justice Brown, and Justice Schenck.  Opinion given by Justice Schenck.  Attorneys for Appellee are Anthony Ricciardelli, and P. Michael Jung.  Attorneys for the Appellant are James B. Pinson, Warren M.S. Ernst, Christopher D. Bowers, Christopher J. Caso, and Barbara E. Rosenberg.