City’s denial of plat application citing inconsistencies with “general plan” of city, without more, is insufficient and therefore vested rights are implicated

 

The Village of Tiki Island, et al.  v. Premier Tierra Holdings Inc., 14-18-00014-CV (Tex. App. – Houston [14th Dist.], July 10, 2018)

This is an interlocutory appeal in a land-use case were the 14th Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

This case has gone up and down the appellate ladder already.  Prior summary found here. Premier sought to develop property for a mixed-use marina project. Premier submitted a plat application which included up to one hundred residential units and up to 250 dry stack enclosed boat slips. The City had no meaningful land-use regulations or platting or subdivision regulations. Five days later the city enacted a zoning ordinance prohibiting dry boat storage, limiting heights and set-backs, and restricting rental dates and parking. The City then rejected the plat application as being inconsistent with the new ordinance. Premier next sought a rezoning application as a planned unit district, which was denied.  It also sought several plat amendments which were denied. Premier filed a mandamus and sought declaratory relief asking the court to approve the original plat application and successive plat applications based on vested rights under chapter 245 of the Texas Local Government Code. It further brought a takings claim. The City Defendants filed a plea to the jurisdiction which was denied. The City Defendants appealed.

Chapter 245 creates a system by which property developers can rely on a municipality’s regulations in effect at the time the original application for a permit is filed. It freezes” the rules at the time the original application for a permit is filed, and limits the rights of a city to “change the rules in the middle of the game.” Chapter 212 of the Texas Local Government Code deals with plat approval and requires plats to conform to the “general plan” of the city and for extensions of utilities and roadways. The City’s assertion that it relied on a pre-existing “general plan” of the City in denying the original plat application was rejected as the City did not provide, in the record, evidence of such a plan or what its framework would have been. Chapter 212 plans must be adopted after public hearings, which is not evident in the record. A vague reference to a general plan of the city is insufficient for plea purposes and a fact question exists preventing the plea. Further, Chapter 245 expressly authorized a declaratory judgment suit to establish Chapter 245 rights. As to the takings claim, the court held Premier alleged facts to support a takings claim based on the denial of its vested rights in the project.

If you would like to read this legal opinion, click here. Justice Christopher, Justice Donovan and Justice Wise. Opinion by Justice Wise.