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

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


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.

Suit against councilwoman and City allowed to go forward in zoning denial case

City of Leon Valley, et al v. Wm. Rancher Estates et al. 04-14-00542-CV (Tex. App. – San Antonio, May 20, 2015).

This is an interlocutory appeal from the denial of a plea to the jurisdiction arising from the denial of a zoning change. [Comment: There are so many things wrong with this opinion, the only summation which is proper is simply that bad facts make bad law.]

The Appellees own varying interest in land within the City and filed an application to change the zoning to better sell the property. A City councilwoman (“Baldridge”) who is a real estate broker allegedly contacted Appellees stating she had a client who wanted to purchase the property and threatened to use her power on the City Council to block any zoning changes if they did not accept her client’s offer. Appellees did not accept and the City denied the zoning change request. Appellees also asserted the City Defendants trespassed on the property to dig a trench that altered the natural flow of water resulting in flooding. They sued the City and named and unnamed City employees.  The City Defendants filed a plea to the jurisdiction which the trial court denied. The City appealed.

The court first held that the individual defendants were sued in their individual capacity.  “A person sued only in her individual capacity does not have sovereign or governmental immunity from suit.”  Texas Civil Practice and Remedies Code §51.014 (the statute authorizing interlocutory appeals) states the court of appeals have jurisdiction for an interlocutory appeal for an official if the official is appealing a motion for summary judgment.  The court holds individual immunities are affirmative defenses, not jurisdictional defenses.  Since the officials are appealing the denial of a plea to the jurisdiction, that is not authorized under §51.014(a)(5), so their appeal is dismissed. The court then determined there was no waiving of immunity as to the City for the asserted claims under the Water Code, Health & Safety Code, Natural Resources Code, Penal Code, and Property Code, as asserted by the Appellees. Therefore the trial court should have granted the plea as to those claims. The City asserted the Appellees’ claims under the Texas Open Meetings Act (“TOMA”) are not proper because they seek monetary damages for such claims. The City also asserts the pleadings do not indicate TOMA claims against the collective body, only against individuals. The court determined that the assertion of immunity from monetary damages is a claim of immunity from liability, not immunity from suit. Therefore it is improper to raise in a plea to the jurisdiction. The Texas Open Meetings Act waives immunity for claims brought to compel compliance or to void actions taken in violation of the Act. The closed meeting allegations involving individuals is still attributable to the City.  The court then noted that some evidence existed (when taken the light most favorable to the non-movant) that the City failed to properly take minutes of the meetings and did not accurately reflect what occurred. As a result, the trial court has jurisdiction to hear the TOMA claims raised. The court held the arguments regarding a lack of evidence to establish a conflict of interest were not raised sufficiently to give the other side a fair opportunity to respond, therefore they are remanded. The City contends the minutes and agenda for meeting show the city council’s vote on appellees’ zoning request was unanimous. However, the minutes do not conclusively establish the other city council members would have voted the same way had Baldridge abstained, so the plea was properly denied.  The court did hold the City is immune from trespass claims. The court next chided the City holding “[w]ithout reference to any of appellees’ specific requests for declaratory relief, the City argues the trial court erred by denying its plea to the jurisdiction because there is no waiver of immunity ‘for monetary damage relief or relief for interpretation of statutory rights’ under the Declaratory Judgment Act.” Since the court already determined declaratory rights were proper to seek under TOMA, the plea was properly denied as to the declaratory judgment.

If you would like to read this opinion click here. Panel: Chief Justice Marion, Justice Martinez and Justice Chapa. Memorandum Opinion by Justice Chapa. The attorneys listed for the City are Clarissa Rodriguez and Patrick C. Bernal.  The attorney listed for the various Appellees is Jason Jakob.



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

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

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

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

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

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



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


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

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

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

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

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

U.S. Supreme Court holds Telecommunications Act does not require reasons for denial of permit in any particular form, but does require they be issued at same time as notice letter

T-Mobile South, LLC v. City of Roswell, 13-975 (January 14, 2015).

This is a Telecommunication Act case where the City of Roswell, Georgia denied an application to build a cell tower on residential property but failed to specify the grounds in its denial. The Act requires localities to provide reasons when they deny applications to build cell phone towers and their reasons for a denial must be supported by substantial evidence in the record. Since the City did not specify the grounds in the notice of denial, T-Mobile sued under the Act.

The City Council held a 2-hour-long public hearing on April 12, 2010, to consider T-Mobile’s application. It arranged privately to have the hearing transcribed, and the City subsequently issued detailed minutes summarizing the proceedings. At the hearing there were concerns that the tower would lack aesthetic compatibility, that the technology was outdated and unnecessary, and that the tower would be too tall. T-Mobile responded by reiterating that it had met all of the ordinance’s requirements and by providing testimony from a property appraiser that placement of cell phone towers does not reduce property values. Individual councilmembers made various comments and asked questions regarding the application during the meeting. The motion to deny the petition noted it would be aesthetically incompatible with the natural setting, that it would be too tall, and that its proximity to other homes would adversely affect the neighbors and the resale value of their properties. The motion passed unanimously.  Two days later, the City sent a formal notice of denial.  It did not specify the particular grounds but did note the minutes of the meeting could be obtained from the City clerk, even though they were not approved for 26 days. T-Mobile sued and the trial court granted its motion for summary judgment.  The Eleventh Court of Appeals reversed holding the detailed minutes were sufficient to specify the grounds for denial and provided substantial evidence for support and T-Mobile appealed.

The U.S. Supreme Court first held that cities must provide reasons for any denial under the Act. Otherwise it is impossible to determine if the denial is supported by substantial evidence, which is a legal term of art.  However, the reasons for the denial need not appear in the notice letter. The Act does not specify any particular form for providing notice. The reasons must be provided within a reasonable time, however, since any person aggrieved must seek judicial review within 30 days of the decision. The 26 day delay in issuing the minutes which contain the reasons deprived was insufficient. The reasons for the denial must be conveyed at essentially the same time as the notice of denial.  The Justice Robert’s dissent asserts four days was sufficient to allow for the appeal so would have ruled the City complied with the Act. Justice Thomas’s dissent expresses an opinion the majority was too eager to reach beyond the statutory language and placed additional administrative burdens on the City.

If you would like to read this opinion click here. JUSTICE SOTOMAYOR delivered the opinion of the Court with JUSTICES SCALIA, KENNEDY, BREYER, ALITO, and KAGAN, JJ., joined. ALITO, J., filed a concurring opinion. ROBERTS, C. J., filed a dissenting opinion in which GINSBURG, J., joined, and in which THOMAS, J., joined as to Part I. THOMAS, J., filed a dissenting opinion. The docket sheet with attorney information can be found here.

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.

City had legitimate reasons to deny zoning request so no inverse condemnation occurred

Appaloosa Development, LP and Lubbock Water Rampage v. City of Lubbock, Texas, 07-13-00290-CV (Tex. App. – Amarillo, August 11, 2014).

This is an inverse condemnation case where the Amarillo Court of Appeals affirmed a take nothing judgment against the Plaintiffs.

Appaloosa is a partnership which buys land for commercial development. Water Rampage is a waterpark but had several acres of undeveloped land Appaloosa purchased. After the purchase, Appaloosa applied for a zoning change to allow commercial development. While the P&Z recommended approval, the City Council denied the application. Appaloosa brought suit for inverse condemnation. After a bench trial, the trial court ruled in favor of the City and dismissed Appaloosa’s claims. Appaloosa appealed.

The court first determined there was no negative economic impact because the property could still be used for single family, the use permitted when Appaloosa purchased the property. While the value of the land would have increased if zoning changed, the proper standard is the value comparison of before the regulation and after.  The City’s regulation remained the same in this case. The court then noted that the “character of governmental action” was removed from the analysis under U.S. Supreme Court’s decision in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 543 (2005).  However, since the Texas Supreme Court has not provided guidance, the court analyzed that factor as well. The City had legitimate reasons to keep the zoned uses since it received several objections to the rezoning application for neighbors based   on increased noise, traffic, and crime in their neighborhood; decreased property values; and ill effects from  increased urbanization. The court determined the City did not target Appaloosa since it did not initiate a regulation, but merely kept the zoning exactly the same. Appaloosa failed to establish the City somehow sought an unfair advantage to its own projects by denying the request. The evidence was factually sufficient to support legitimate governmental purposes for keeping the zoning the same. As a result, the trial court judgment was affirmed.

If you would like to read this opinion click here. Panel:  Justice Campbell, Justice Hancock and Justice Pirtle. Memorandum Opinion by Justice Hancock. The attorney listed for the City is Jeff Hartsell. The attorney listed for Lubbock Water Rampage and Appaloosa Development is Robert W. St. Clair.

Developer’s second permit application merely attempted to relabel aspects of first application, so no timely appeal

Jay Anthony v. The Board of Adjustment of the City of Stephenville, Texas; Cause No. 11-12-00159-CV (Tex. App. Eastland, July 10, 2014).

This is a Board of Adjustment appeal from the denial of a permit to operate a convenience store.

Anthony wanted to create a convenience store with two enclosed drive-through lanes but such a store was not a classified use. The City placed a proposed zoning amendment on the P&Z Commission agenda to clarify the use and allow the construction. The P&Z did not approve the amendment. The City Council essentially kept referring the matter back to the P&Z every time it was presented. Anthony did not appeal this back and forth. However, he then attempted to get building permits on two separate occasions listing the business as “Cowboy’s Convenience Store” which were denied each time.  The City Attorney noting the use was not permitted and the issue was already ruled upon. Finally, Anthony appealed the denial of the second building permit to the BOA which denied the appeal and Anthony appealed to district court. The BOA filed a plea to the jurisdiction and summary judgment. The trial court granted the plea and denied the MSJ. Anthony appealed.

The dispositive issue addressed by the court is whether the second building permit was materially different than the first since Anthony never appealed the first denial. Anthony argued the second application was different because even though the name was the same (minus the “s” in Cowboys), it listed the business as “retail store other than listed” and second that the drive through lanes in the first application were listed as “covered parking” in the second. The court determined the distinctions listed by Anthony are merely the relabeling of the same information in an attempt to resubmit the same application. The footprint is the same, the store structure is substantially similar, and the covered parking could easily act as a drive through. The second application did not materially change the nature of the case under the zoning ordinance. Since Anthony did not appeal the denial of the first application, he failed to exhaust his administrative remedies and the trial court lacked jurisdiction over the appeal.

If you would like to read this opinion, click here. Panel: Justice Wright, Justice Willson and Justice Bailey. Opinion issued by Justice Wright. Attorney for Appellant Jay Anthony is Arthur Anderson. Attorneys for Appellee City of Stephenville are Wayne Olson and Frederick Quast.

BOA did not abuse discretion in denying demolition permit in historic district says 4th Court of Appeals


The City of San Antonio and The City of San Antonio Board of Adjustment v. Asher Reilly and Five Aces, 04-13-00221-CV (Tex. App. – San Antonio, March 19, 2014).

This is an appeal from a trial court order which reversed the decision of the San Antonio Board of Adjustment (“BOA”) regarding the demolition of a building. The San Antonio Court of Appeals reversed holding the BOA holding was not a clear abuse of discretion.

Reilly owned property which he planned to demolish and build a six-unit apartment complex. He filed an application to demolish, but the historic preservation officer denied the request. Reilly appealed to the BOA which upheld the denial of a permit. Reilly filed suit and the trial court reversed holding a permit should have been granted. The BOA and City appealed.

Under San Antonio’s ordinances, to obtain a demolition permit in a historic district he must show either unreasonable economic harm or the property suffered a loss of significance. Based on the ordinances definitions, the Fourth Court of Appeals first held that Reilly had the burden to establish the property had undergone irreversible change causing it to lose historic, cultural, architectural, or archaeological significance.


At the BOA hearing, Reilly submitted evidence the structure had been altered, had structural and enclosure problems and did not possess architectural integrity. The City presented evidence it was located in a historic district and that all structures in the district contribute to the historic area. Other property owners in the district voiced their opposition to the demolition at the BOA. After the BOA voted against Reilly, his primary argument to the trial court was that all of the anecdotal evidence of the community members was irrelevant since they are not experts.  This reasoning requires the BOA to rely solely on the opinion of experts to determine significance. A BOA is not required to apply strict rules of evidence. Further, the rules of evidence allow a non-expert to supply opinion testimony when it is rationally based on his perception which can help on a factual issue. It was on Reilly to establish the property lost historic significance and the City presented sufficient information to establish the BOA felt some significance remained. It was not an abuse of discretion to deny the demolition permit. The trial court order was reversed.

If you would like to read this opinion click here.  Panel: Chief Justice Stone, Justices Angelini and Chapa.  Opinion by Justice Angelini. The attorneys for the City are listed as Michael Bernard and Albert Lopez.  The attorneys for Reilly are listed as E. Lawrence Vincent and Joe E. Staley.

BOA holding barred by Res Judicata says 5th Court of Appeals


Board of Adjustment of the City of Dallas v. Billingsley Family Limited Partnership, 05-12-00199-CV (Tex. App. – Dallas, August 27, 2013).

This is an appeal from a trial court order reversing a ruling of the Board of Adjustment of the City of Dallas (“BOA”). The Fifth District Court of Appeals affirmed the reversal in part and reversed in part and the BOA appealed.

Billingsley owns some multifamily dwellings and was cited by the City for running a residential hotel in violation of the City Code. Billingsley filed a separate lawsuit (and City counter-claimed) seeking a declaration he was not running a hotel under the statutory definitions. That matter proceeded to trial which ultimately resulted in the trial court denying relief to all parties.  While Billingsley I was pending, a City building official revoked the certificate of occupancy (“CofO”) because the property was deemed a residential hotel and he applied for it under false pretense. Various different actions occurred in Billingsley I at different times including the trial court changing its orders.  The denial of the CofO was based on rulings at the time but a chronological flow of events muddied the issues for the trial court on the appeal of the CofO denial.

The Fifth Court of Appeals held that it was not error for the trial court to consider the final ruling in Billingsley I for res judicata purposes. Res judicata not only precludes claims which were actually raised, but claims which could have been raised arising out of the same subject matter. Because res judicata precludes re-litigation of the facts (including a valid CofO at the time), such an asserting could not be altered by the building official or the BOA. So the trial court properly affirmed the reversal of the BOA. However, under the statute authorizing an appeal from a BOA, costs can only be assessed if the court determines the board acted with gross negligence, bad faith, or malice. The court noted the BOA did not have certified copies of the Billingsley I orders before it (even though the court earlier noted that since the BOA did not object to the introduction of the pleadings at trial, it waived an appeal on that basis). As such, no negligence, malice or bad faith can be established. The court therefore affirmed the reversal of the BOA but reversed the trial court’s assessment of costs.

If you would like to read this opinion click here.

Some evidence supports Board of Adjustment holding so trial court abused its discretion in reversing says Fourth Court of Appeals.

Board of Adjustment for the City of San Antonio, et al v. Kennedy, et al., 04-12-00757-CV (Tex. App. – San Antonio July 3, 2013).

This is an appeal from a Board of Adjustment decision where the Court of Appeals did a detailed analysis of how the standard of review of such decisions should be utilized.

Trinity University acquired four houses located in a historic neighborhood. The zoning at the time listed single-family and college use as permissible uses. In 2001 the City changed the zoning to R-5 residential. Trinity asserted it was entitled to nonconforming use and development preservation status. Trinity wanted to use the houses for administrative offices and ultimately applied for certificates of occupancy for office use. The City issued the certificates but several homeowners appealed to the Board of Adjustment. The Board upheld the granting of the certificates and the homeowners filed suit in district court. The trial court granted the homeowners summary judgment motion and the City and Trinity appealed.

The Fourth Court of Appeals took significant time to explain how critical the standard of review of board of adjustment decisions should be. Even if the weight of the evidence is against the decision, as long as some evidence exists to support the decision, it must stand. The Board’s order is presumed to be legal, and the party attacking the order has the burden of establishing its illegality. A party attacking the legality of the order must establish that the Board could reasonably have reached but one decision, and not the decision it made. The specific factual details are outlined in the opinion.  The court makes several presumptions it concluded were necessary in order for the Board to have made the decision it made. Essentially, “college use” includes housing as well as offices and therefor Trinity had a nonconforming status to use for either, but was not required to have a registration.   Ultimately, the court determined it was not an abuse of discretion for the Board to have sustained the granting of the certificates as some evidence existed for each element necessary to uphold the decision. The court reversed and rendered a dismissal.

If you would like to read this opinion click here.

Property owners’ claims not ripe because they failed to remedy deficiencies in plat application says Fourteenth Court of Appeals.

Riner v. The City of Hunters Creek, 14-12-00339-CV (Tex. App. – Houston [14th Dist.] June 20, 2013).

This is a denial of a replat application where the court held the property owners did not pursue all avenues to remedy any deficiencies, so the claims were not ripe for consideration by the court.

The Riners own a home on a large lot in the City of Hunters Creek Village which they wished to subdivide into three lots. City’s planning and zoning commission denied the preliminary plat application but the Riners did not appeal to the Board of Adjustment, seek a variance, or try to remedy. Instead they filed this suit. They claimed the Commission disapproved the plat primarily because the Commission misconstrued an ordinance specifying the minimum lot size of residential properties and erroneously excluded the area beneath a public-street easement. The City filed special exceptions but the Riners did not amend their pleading even though ordered by the court. The trial court dismissed their claims and the Riners appealed.

The Fourteenth Court of Appeals first held that the “special exception” was for failure to alleged jurisdictional facts and was therefore, in reality, a plea to the jurisdiction. The Riners’ pleadings focused on the “primary” reason for the plat denial even though the Commission listed 14 reasons.  The Commission is statutorily entitled to insist on compliance—and not simply “substantial compliance”—with “technicalities.” Because the Commission disapproved a plat that admittedly did not satisfy technical requirements, the question of whether the Commission also misconstrued the ordinance concerning lot size cannot be shown to be “essential to the decision of an actual controversy” (a ripeness requirement). The court noted that at least two of the fourteen examples were legitimate reasons to deny the plat so the court need not address all fourteen (one of which is the alleged misinterpretation of lot size). Riners could have isolated the “essential question” of lot size by remedying the remaining deficiencies and reapplying to the Commission, but they did not do so. Because the Riners did not seek a variance or attempt to remedy the deficiencies, their claims are not yet ripe for consideration. They also did not submit any appeal to the Board of Adjustment. The evidence on file (mainly several well phrased letters from the Commission’s attorney) also indicated that the attempt to remedy the deficiencies would not be futile. The way the City handled this controversy can be instructive and helpful to other cities.

If you would like to read this opinion click here.

U.S. Supreme Court holds courts must defer to FCC’s, determination of its own jurisdiction.

City of Arlington, Texas v. Federal Communications Commission No. 11-1545 and 11-1547, slip op. (U.S. Supreme Court, May 20, 2013).

This is a U.S. Supreme Court opinion which holds that federal agencies such as the FCC have the authority to determine their own jurisdictional limits and courts should defer to agency determinations.

CTIA—The Wireless Association, which represents wireless service providers, petitioned the FCC to clarify the meaning of 47 U.S.C. §332(c)(7)(B)(ii)’s  timing requirement that zoning authorities act on sitting requests for antennas “within a reasonable period of time after the request is duly filed.”  The Communications Act of 1934, as amended, (which places limitations on the traditional authority of state and local governments to regulate the location, construction, and modification of antennas) requires state or local governments to act within this undefined period.   The FCC issued a Declaratory Ruling concluding that long delays have impeded the promotion of services deemed critical and held the phrase “reasonable period of time” is presumptively (but rebuttably) 90 days to process an application to place a new antenna on an existing tower and 150 days to process all other applications. The cities of Arlington and San Antonio, Texas, sought review of the Declaratory Ruling in the Fifth Circuit, which upheld the agency determination. The cities filed for a writ of certiorari which was granted.

The Court rejected the argument that a different analysis applies depending on whether the agency decision makes a jurisdictional or non-jurisdictional determination.  It held when a court reviews an agency’s interpretation of a statute it administers, the question is always, simply, whether the agency has stayed within the bounds of its statutory authority. A reviewing court must first ask whether Congress has directly spoken to the precise question at issue; if so, the court must give effect to Congress’ unambiguously expressed intent. However, if “the statute is silent or ambiguous,” the court must defer to the administering agency’s construction.  In this case, the language was ambiguous to the specific intent of Congress and therefore the FCC’s determination of what constitutes a “reasonable period of time” stands.

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Owner not liable for demolished historic building says 5th Dist. Court of Appeals

Texas West End, Inc v. City of Dallas and Texas Historical Commission, 05-11-00582-CV, (Tex. App. – April 15, 2013)

This is a historic building demolition case.  The Missouri, Kansas & Texas Railway freight station was a building for which the TCI West End, Inc. (TWE) obtained a demolition permit. Before the demolition, the City revoked the permit, but did not sent written notice. The City and the Texas Historical Commission (the THC) asserted the TWE improperly demolished a historical building.  A jury awarded damages to the THC and civil penalties to the City.  The Fifth District Court of Appeals reversed.

The court first noted that the THC was not entitled to damages under Texas Local Government Code §315.006 because the City did not file and index a verified listing of historic structures as required under Chapter 315. Because the lack of a verified filing prevents the City from bringing such a suit, and because the THC is authorized to “enforce this section” and steps into the shoes of the City, the THC is likewise prevented from bringing suit due to the lack of a verified filing.

Next the Court reversed the civil penalties award to the City noting it did not adopt a civil penalties ordinance for historic overlay districts.  Chapter 211 of the Texas Local Government Code allows suit and allows for civil penalties if the City adopts such penalties specifically.  Also, the penalties under Chapter 315 are “damages” not “penalties” and the City is not entitled to any damages due to its failure to file a verified index. The court next noted that while Texas Local Government Code chapter 54 may possibly allow for civil penalties for ordinance violations regardless of penalty adoption such penalties are only for ordinances that regulate a health or safety matter.  The City failed to establish how their historic building ordinance is a health or safety ordinance and not a general zoning ordinance.  Finally, the court noted that since the owner was never informed of the ordinance itself (even if everyone was arguing about the revocation of the permit), an owner cannot “knowingly” violate an ordinance they do not know exists.  In short, the court reversed and rendered, dismissing all of the City’s and THC’s claims.

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