Changing tri-display billboard to LED billboard is a reconstruction and not merely a change in “electrical wiring or devices” so required a permit

Garrett Operators, Inc. v. City of Houston, 01-13-00767-CV (Tex. App. – Houston [1st Dist.], January 22, 2015)

Garrett Operators, Inc. (“Garrett”) filed a declaratory judgment action against the City of Houston (“the City”) regarding the application and interpretation of the City’s Sign Code as it pertains to Garrett’s LED lighted billboard.  The complexity of the case turns on the fact Garrett previously sued and his claims were dismissed as not yet ripe for his failure to get approval to change his Billboard to LEDs. After his claims became ripe (i.e. he received a final decision from the administrative sign body), he sued the City, but the City’s Sign Code had been amended. Garrett claimed that any application of the 2008 amendments to him was a violation of the Texas Constitution’s prohibition against retroactive laws.  The parties submitted opposing summary judgments to the trial court, which granted the City’s motion and denied Garrett’s.

The court first addressed whether the tolling provision of Tex. Civ. Prac. &  Rem. Code § 16.064 (Vernon 2008) for the refiling of the same suit within 60 days applies. The court held that §16.064 should be construed with §16.068, which permits amended or supplemental pleading to relate back to the date of the original filing. Here, Garrett’s claims are not based on a different transaction or occurrence but the same set of circumstances. The City was unable to establish the “intentional disregard” doctrine for county court jurisdiction since the inverse condemnation claims in the original suit were not inherently intertwined. [Comment: essentially the court held the transactions were the same, but the claims were not inherently intertwined.] As a result, the tolling applied and Garrett did not miss the statute of limitations. The retroactive law argument required the court to analyze whether Garrett was required to obtain a permit for “changing” the sign to LEDs or whether a permit was not required under the code because he was merely changing the “ornamental features, electrical wiring or devices, or display.” After examining Garrett’s own evidence, the court determined this type of extensive change to the sign goes beyond merely changing the “electrical wiring and devices.”  As a result, the proposed conversion from a tri-display billboard to a LED-display billboard was not merely a change to the “electrical wiring and devices,” but was a reconstruction or alteration requiring a permit. And since he had not vested right to change the sign without a permit under the prior law, the retroactivity argument is not applicable. Additionally, since no permit application was filed until 2011, the Chapter 245 “vested rights” argument is also not applicable. As a result, the trial court properly granted the City’s summary judgment motion.

If you would like to read this opinion click here. Panel: Chief Justice Radack, Justice Bland and Justice Huddle. Opinion by Chief Justice Radack. The attorneys listed for Garrett Operations, Inc. are Richard L. Rothfelder  and Sydney N. Floyd. The attorneys listed for the City of Houston are John B. Wallace and Hope E. Hammill-Reh.