City immune from claims it misapplied its own ordinances or procedures, but not for TOMA claims

 

Peter Schmitz, et al v. Town of Ponder, Texas, et al. 02-16-00114-CV, (Tex. App. – Fort Worth, May 10, 2018).

This is a substituted opinion. Summary of original opinion found here. This is an appeal from a final judgment against the Plaintiffs who attempted to force the Town to enforce its zoning laws against other property owners.

In 2014 the Denton County Cowboy Church (“Church”) purchased property zoned single family residential under the Town of Ponder’s zoning ordinance.  The Church’s property is adjacent to the Plaintiffs’ property. According to Ponder’s comprehensive plan, the Plaintiffs’ properties are designated for future low-density residential zoning. In 2015 the Church began construction of an arena. The Town issued a building permit for an open arena. Plaintiffs sued the Church and Town of Ponder, seeking injunctions prohibiting the Church from continuing construction. They also brought claims under §1983 for due process, takings, and equal protection violations. The Town and Church both filed pleas to the jurisdiction which the trial court granted. The Plaintiff appealed.

The Uniform Declaratory Judgment Act (“UDJA”) does not waive immunity of a governmental entity when no ordinance is being challenged. The City maintains immunity for claims seeking a declaration of the claimant’s statutory rights or over a claim that government actors have acted outside the law—ultra vires. However, the majority of the Plaintiff’s requested declarations would establish that the Town, not the individual committee or council members, violated or misapplied its own ordinances or procedures, rendering its actions arbitrary and unreasonable. The Town maintains immunity from such claims. The ordinances further did not waive the Town’s immunity by authorizing suit for enforcement.  With no UDJA claim, requests for permanent injunction are also not viable. Liability against a governmental unit for private-nuisance injuries arises only when governmental immunity is clearly and unambiguously waived, which is not the case here. However, immunity is waived under the Texas Open Meetings Act (“TOMA”) so the TOMA claims are remanded. The court stressed that the waiver of immunity under TOMA does not apply to the extent Plaintiffs seek more than injunctive relief or a declaration that the Town’s actions were voidable under TOMA only. Under Plaintiffs’ §1983 claims, a regulatory taking can occur when governmental action unreasonably interferes with a landowner’s use and enjoyment of his property. However, the Plaintiffs claims challenge the process in which the Town enforced its ordinances, not the substance of the enforcement. Plaintiffs have no protected property interest in the manner in which the Town enforced or failed to enforce its ordinances against the Church, rendering their claim under § 1983 not viable. And while the Town argued RLUIPA preempted their enforcement of certain matters of the ordinances, RLUIPA does not implicate jurisdiction so is not proper to raise in a plea. The court then analyzed the claims against the Church and ultimately held some claims survived and were remanded.

If you would like to read this opinion click here. Panel consists of Justice Gabriel and Justice Pittman. Memorandum Opinion by Justice Gabriel. The attorneys listed for the Plaintiffs are Gregory Sawko and Robert E. Hager.  The attorneys listed for the Town are Matthew Butler and John F. Boyle Jr.