Property owner could not sue for declaratory judgment to interpret meaning of penal ordinance

City of Justin v. Ronald Wesolak 02-15-00379-CV (Tex. App. Fort Worth- May 20th 2016)

This is a declaratory judgment and takings claim where the Fort Worth Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the claims.

Wesolak owns two adjoining tracts of land in the City, and built a fence that crossed both. Due to platting and ordinance restrictions the City opposed the fence. Wesolak built the fence anyway. The City issued eight citations, primarily asserting the fence was a “building” and in a prohibited location. Wesolak ultimately pled no contest to the citations and paid $6,528.00 in fines. Wesolak sued for declaratory judgment that the fence did not violate any ordinances and brought a takings claim. The City filed a plea to the jurisdiction which was denied. The City appealed.

The court first determined that since no party was challenging the constitutionality of an ordinance or statute, the Texas Attorney General was not required to be served under Tex. Civ. Prac. & Rem. Code §37.006(b).  Wesolak was not seeking to hold the ordinance unconstitutional, but was instead arguing the fence is not a “building” under the code definition. Next, under a declaratory judgment action, it is “…not enough for a litigant to challenge the actions of a governmental entity under a statute, ordinance, contract, or franchise; the validity of the statute, ordinance, contract, or franchise itself must be challenged for governmental immunity to be waived.”  Since Wesolak’s true intent was to have the City follow a certain definition under the ordinance, he should have brought an ultra vires suit against an official. The City remains immune. Additionally, in a footnote, the court holds the officials could not be sued either since Wesolak pled guilty to the criminal charges. “A civil court simply has no jurisdiction to render naked declarations of rights, status, or other legal relationships arising under a penal ordinance.” As to the takings claim, Wesolak’s takings-claim paragraph fails to allege that the City intentionally performed any acts in the exercise of lawful authority or that the City’s alleged taking was for public use.  “To the contrary, Wesolak contends that the City was acting outside of its lawful authority and that the City’s taking led to a private—i.e., not public—easement being imposed on his land.” Such pleadings negate jurisdiction. The plea should have been granted.

To read the opinion click here. Panel consists of Chief Justice Livingston, Justice Walker and Justice Meier. Memorandum Opinion issued by Justice Walker. The attorney for the City of Justin is T. Evan Fisher and Ronald Wesolak represents himself.