Lee Ann Wheelbarger v. City of El Lago and Richard Smith, 01-13-00704-CV (Tex. App. – Houston [1st Dist.], September 18, 2014),
Wheelbarger owned a condominium (built in 1970s) in a complex called the Landing which was severely damaged by Hurricane Ike in 2008. Smith was the City’s building official. The Landing was a non-conforming use under the City’s zoning ordinance, which stated no permit would issue for a non-conforming use repair which is damaged to an extent greater than 51% of its market value unless the repair brought the structure up to current building standards. Bringing the Landing up to current building standards (especially in common areas) would incur such a cost that it was not economically feasible. Therefore the Landing’s management council did not seek a repair permit. The City’s Structural Standards Commission declared the complex a substandard building and a nuisance and ordered it to be repaired or demolished. The Landing’s management council demolished the complex. Interestingly, Wheelbarger was on the management council. In that role she obtained a report noting the complex had sustained only minor damage. The management council sued Wheelbarger for inciting litigation. Wheelbarger counterclaimed and added the City as a third-party. Her claims against the City and Smith assert she was deprived property without due process, essentially stating the complex was declared substandard by the building official without an opportunity to challenge. The trial court granted the City’s plea to the jurisdiction and summary judgment motion and severed the claims involving the City from suit.
The court noted that Smith’s determination the complex was substandard was superseded by the Structural Standards Commission’s order of repair or demolition, which Wheelbarger could have participated in, but chose not to. And while other condo owners attempted to appeal the determination, Wheelbarger was not one of them. She did not exhaust her options and never sought an appeal. She cannot piggyback on the attempted appeal of other property owners and has no standing on her own. As a result, the trial court properly concluded it had no jurisdiction over her claims.
If you would like to read this opinion click here. Panel: Chief Justice Radack,, Justice Jennings and Justice Massengale. Opinion by Justice Massengale. The attorney listed for the City is Arthur Val Perkins. The attorney listed for Wheelbarger is William A. Taylor.