Dallas Court of Appeals holds trial court had jurisdiction for BOA appeal only, but no monetary or constitutional claims could survive the board’s plea

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City of Dallas, et al v. PDT Holdings, Inc., et al. 05-21-00018-CV  (Tex. App. – Dallas, August 24, 2021).

This is an appeal from a board of adjustment decision where the Dallas Court of Appeals reversed in part and affirmed in part.

PDT Holdings, Inc (“PDT”) applied for a permit from the City to build a duplex on its property in Dallas.  PDT submitted building plans, which were approved and began construction. However, a City inspector cited PDT and issued a stop work order on the grounds that the structure did not comply with the thirty-six-foot height restriction. PDT adjusted the plans down to 36 feet, but was then told the actual height restriction was twenty-six feet due to the residential proximity slope (RPS) ordinance after it had completed 90% of the construction.  PDT sought a variance for the height restriction (three story duplex) but the variance was denied by the board of adjustment (“BOA”).  PDT appealed to district court but also sought a variety of monetary damages caused to the project. The matter was temporarily abated by agreement and the parties resubmitted to the BOA (with all new members), which again denied the request. The BOA filed a plea to the jurisdiction which was denied. The BOA appealed.

A district court has subject matter jurisdiction only to decide whether the Board’s decision was illegal under section 211.011.  The BOA argued the original appeal to district court was timely but attempted to assert PDT had to appeal the 2nd denial and failed to do so. The Board cites no authority for this requirement other than the general requirement that a petition for writ of certiorari must be filed within ten days of the Board’s decision. The court held the second BOA decision did not change the substance of the controversy between the parties or the issues before the trial court.  Further, nothing demonstrates the trial court lost jurisdiction over the first decision, over which it would still be allowed to proceed. As a result, the trial court properly denied the plea as to the illegality question only. The court next held that it must evaluate jurisdiction based on each claim. PDT did not specify what cause of action entitled it to recover damages or cite express authority waiving governmental immunity for recovery of damages. The plain language of section 211.011(f) does not authorize an award of damages. Further, there is no implied right of action to recover money damages for violation of the due course-of-law provision of the Texas Constitution. The Texas Constitution authorizes suits for equitable or injunctive relief only. But this limited waiver of immunity exists only to the extent the plaintiff has pleaded a viable constitutional claim. The court agreed with the BOA that PDT  does not have a vested property right in obtaining a variance from the RPS ordinance.  The mere existence of a building permit does not render an ordinance unenforceable. A person does not acquire a vested right in a building permit issued in violation of an ordinance. Here, jurisdiction exists for judicial review of the Board’s decision under section 211.011 only. The plea should have been granted for all other claims.

If you would like to read this opinion click here.  Panel consists of Justices Nowell, Osborne and Pederson. Opinion by Justice Nowell.

Fourth Court of Appeals holds plaintiff suing for BOA decision must be given opportunity to replead to show timing of when the BOA decision was filed in board’s offices

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Alpha Securities, LLC, v City of Fredericksburg, 04-20-00447-CV (Tex. App. – San Antonio, Aug. 10, 2021, no pet h.).

This is a board of adjustment appeal and declaratory judgment action where the San Antonio Court of Appeals agreed no jurisdiction existed, but remanded to provide the Plaintiff the opportunity to replead.

Alpha Securities purchased real property in Fredericksburg’s historical district. It sought a variance to expand its doors so the building could be used for commercial uses. The historic district’s review board approved the expansion of one door, but not the other on Milam St.  As a result, Alpha Securities was unable to obtain a Certificate of Occupancy, water and electrical services. Alpha Securities appealed the determination to the City’s Board of Adjustment (BOA), and the BOA denied relief. Alpha sued the City, which filed a plea to the jurisdiction. The trial court granted the plea and Alpha appealed.

Alpha’s first argument, that the City did not timely seek a ruling on the plea, was overruled. Subject matter jurisdiction cannot be waived, and courts cannot acquire subject matter jurisdiction by estoppel.  Alpha attempted to bring ultra vires claims but did not include any specific officials. Such claims were properly denied. To the extent Alpha Securities intended to establish that the review board and BOA violated the law, including its constitutional rights, the UDJA does not waive the City’s governmental immunity.  Next, the court analyzed the timeliness of the appeal. The appeal clock does not start to run at the time of the BOA decision- rather when the BOA’s decision “is filed in the board’s office.” The pleadings do not establish the date when the BOA’s decision was filed in the board’s office. Because Alpha Securities’ pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect, the trial court should have given Alpha the opportunity to replead. [Comment: this appears to require pleadings to affirmatively list the specific dates for deadline compliance in order to establish jurisdiction].  The City asserts Alpha repled three times and should not be allowed to do so again. However, the Fourth Court determined that was inconsequential in this case. If the trial court determines the plea is meritorious and the pleadings are deficient, the plaintiff must then be given a reasonable opportunity to amend the pleadings to cure the jurisdictional defects. As a result, the case was remanded.

If you would like to read this opinion click here. Panel consists of Justices Chapa, Rios, and Rodriguez. Memorandum opinion by Justice Rodriguez.

Property owner failed to allege Ch. 211 or 245 claims for zoning change; failure-to-exhaust-remedies bar applied to inverse-condemnation claim

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City of Dickinson v Stefan, 14-18-00778-CV, (Tex. App. – Houston [14th Dis.], Oct. 27, 2020)

Stefan operated his home computer business in a residential zone, but allowed his church group to host events, including weddings on the property.  The City changed later changed the zoning code and created a registration process for non-conforming uses. The registration allows a property owner to continue the same nonconforming use after the City adopted the change but the owner cannot expand the nonconforming use. Stefan registered his home computer business but did not list any church activities. Stefan did not write “events,” “wedding venue,” “event center,” or anything else that would indicate he had been using the Property for events.  Neither party produced evidence the City approved the request. Stefan was later cited for operating a special event center against the zoning code without a special use permit. Stefan appealed to the Board of Appeals, which denied his request to operate special events. Stefan then sued the City for declaratory relief claimed inverse-condemnation.  The city filed a plea to the jurisdiction, which was denied. The City appealed.

The Court first held that Stefan failed to allege a vested right determination under chapter 245 or a board of adjustment appeal under chapter 211 of the Texas Local Government Code. The operation of an ongoing business is not a “project” within the meaning of chapter 245. Rights to which a permit applicant is entitled under chapter 245 accrue on the filing of an original application or plan for development or plat application that gives the regulatory agency fair notice of the project and the nature of the permit sought.  Stefan’s pleadings do not mention chapter 245 or a vested right. Stefan does not cite § 211.011 or seek a writ of certiorari for a BOA appeal. He sued the City, not the BOA. As a result, he failed to seek judicial review of the BOA decision. The City challenged jurisdiction for the declaratory judgment and takings claims for failure to timely appeal the City Board of Adjustment determination and that Stefan did not exhaust his administrative remedies regarding nonconforming uses. Even under a liberal construction of the pleadings, the court cannot create a claim Stefan’s pleading did not contain, and it could not conclude that Stefan sought judicial review of the BOA decision under chapter 211. The exhaustion-of-administrative-remedies rule requires that a plaintiff pursue all available remedies within the administrative process before seeking judicial relief. Chapter  211 must be exhausted before a party may seek judicial review of a determination made by an administrative official. As a result, the trial court lacked jurisdiction over his declaratory claims and inverse-condemnation claims.

The concurrence believed Stefan’s failure to allege 211 should not preclude consideration, but then held Stefan abandoned that consideration in his briefing.

If you would like to read this opinion click here. Panel consists of Chief Justice Frost and Justices Wise and Hassan (Hassan, J. concurring – opinion found here).

BOA appeal deadline of 10 days applies to Open Meetings, declaratory judgment, and as-applied constitutional claims, holds Dallas Court of Appeals

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Tejas Motel, LLC v City of Mesquite, by and through its Board of Adjustment, 05-19-00667-CV (Tex. Civ. App. – Dallas, June 4, 2020).

This is an appeal from a Board of Adjustment decision regarding non-conforming status in which the Dallas Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

The City of Mesquite had two zoning categories of lodging facilities within the City and placed conditions on their uses — Limited Services and General Services, neither of which Tejas Motel (“Tejas”) qualified under. Although the Tejas Motel had been nonconforming since 1997, the City did not specifically address that nonconformance until 2018, when the City passed an ordinance changing the manner in which the City’s Board of Adjustment could amortize nonconforming properties. The BOA held public hearings and scheduled a date for all non-conforming properties to become compliant, including Tejas. The City introduced evidence that the nonconforming use would adversely affect nearby properties.  Tejas then announced an agreement for a May 1, 2019 compliance date and the BOA approved that as a compliance date. Tejas, however, denied receiving a written copy after the BOA decision, which the BOA insists was mailed. Tejas then sued the BOA to invalidate the compliance date. The City filed a plea to the jurisdiction, which was granted.

The requirement that one timely file a petition for writ of certiorari to challenge a zoning board decision is part of an administrative remedy, which is provided by the Texas Local Government Code and must be exhausted before board decisions may be challenged in court. Under Tex. Loc. Gov’t Code §211.011 Tejas had ten days from the date the decision was filed to challenge the decision. The Board’s July 31 written “Decision and Order” triggered the statutory deadline. Tejas did not file by the deadline, thereby precluding the court from obtaining jurisdiction. This included challenges brought under the Texas Open Meetings Act, declaratory judgment claim and as-applied constitutional challenges.  Tejas also failed to state any viable federal claims. Although a city is not immune from federal constitutional claims, a trial court may grant a plea to the jurisdiction if a constitutional claim is not viable. Tejas had no constitutionally protected, vested due process interest in continuing to use the property in violation of the city’s ordinances, especially when it acquired the property knowing the restrictions.  As a result, the plea was properly granted.

If you would like to read this opinion, click here. The panel consists of Justices Molberg, Carlyle, and Evans.  Memorandum Opinion by Justice Carlyle.

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

 

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

 

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 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.

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'”

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

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

BOA properly interpreted “adjacent” meaning under zoning ordinance says Dallas Court of Appeals.

The Board of Adjustment of the City of University Park, Texas v. Legacy Hillcrest Investments, LP, 05-13-01128-CV (Tex. App. – Dallas, December 8, 2014).

This is a Board of Adjustment appeal where the Dallas Court of Appeals reversed the trial courts judgment granting relief to Legacy Hillcrest Investments (“Legacy”) in a zoning dispute.

Legacy owns property within the City which is surrounded by single-family, multifamily, parking, and office zones. Legacy sought zoning changes over a span of ten years to allow a planned development.  In the last proposal in 2011 Legacy filed a permit application for an above ground parking next to a single family zone. The Board of Adjustment (“BOA”) denied the permit and Legacy brought a writ of certiorari appeal in district court. After a three day hearing the trial court ruled in favor of Legacy, issued a permanent injunction against violating the Texas Open Meetings Act (“TOMA”), and awarded attorney’s fees. The BOA appealed.

Under the City’s code an above ground parking structure cannot be “adjacent” to a single family zone. Legacy asserts “adjacent” can have only one meaning that of being “contiguous” and it is undisputed the parking structure’s location does not touch the boundary line although it is within 100 feet. The court held the plain and ordinary meaning of “adjacent” means “to lie near, border or, not distant or far from, nearby but not touching.”  Additionally, the districts, by definition, go to the center of the streets, which caused a touching of lines by district.  As a result, the BOA properly interpreted its own code and denied the permit. The evidence did show the BOA did not take any minutes of work sessions to comply with TOMA  but has since started. As a result, a permanent injunction serves no purpose and Legacy was not able to demonstrate imminent harm or irreparable injury. The court held TOMA does not specify the term “convene” so it is not necessarily a violation when the board meets in closed session for work sessions without first opening the meeting publically by some formalized process. Additionally, the evidence established the subject of the closed meetings was to properly seek advice from their attorney regarding pending matters and is therefore an authorized subject for executive session. Finally the court reversed the attorney’s fees award and rendered judgment for the BOA.

If you would like to read this opinion click here. Panel:  Justices Francis and Myers and Chief Justice Thomas.  Opinion by Justice Francis. The attorneys listed for the BOA are J. Richard Tubb, James B. Harris and Scott P. Stolley.  The attorneys listed for Legacy are Eric T. Stahl, Frank L. Branson and Arthur J. Anderson.