General law City’s annexation proper despite lack of specific consent

Waterway Ranch, LLC v. City of Annetta, 02-12-00309-CV (Tex. App. – Fort Worth, August 23, 2013).

This is a case challenging an annexation by the City of Annetta, a general law Type A municipality.  As a general law city, with certain exceptions, it cannot annex property without property owner consent. Waterway did not consent and asserted it did not fall under any exception to annexation.  However, Waterway’s property was part of a larger track of which a majority of the property owners did request annexation.

Waterway brought a declaratory judgment action to declare the ordinance invalid, to declare that if valid they have a nonconforming use, and for inverse condemnation. Waterway asserted it intended to use the property for a mobile home community and the citizens in the area petitioned for annexation to prevent the use of that land as it was against City regulations. The trial court granted the City’s motion for summary judgment as to the ordinances and its plea to the jurisdiction as to nonconforming use and inverse condemnation and Waterway appealed. During the appeal the bank foreclosed on Waterway’s property and the City moved to dismiss the appeal as moot. The court held it was not moot since the inverse condemnation claim vested at the time of the action and attorney’s fees were still outstanding.

Waterway argued its track was separate from the other property owners because it is separated by a roadway. The court held the plain language of Tex. Loc. Gov’t Code §43.024 notes an “area” can be annexed based on a petition by a majority of property owners and the presence of a roadway does not automatically create a legal separation. As a result, the property could be annexed.  Waterway’s assertion that no evidence a majority of qualified voters property petitioned for annexation (by attacking affidavit qualifications) were procedural challenges which could only be brought in a quo warranto proceeding. The trial court therefore properly granted summary judgment. As to the plea, since Waterway never began any efforts to develop the property as a mobile home community their declaratory relief for non-conforming status is not essential to the underlying dispute and therefore not ripe. Likewise the inverse condemnation claim was not ripe since it did not seek recognition for non-conforming status under the City’s administrative proceeding. The trial court’s orders were therefore affirmed.

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