Town immune from claims to invalidate vote where no ordinance was actually adopted says Fort Worth Court of Appeals

Peter Schmitz, et al  v. Town of Ponder, Texas, et al. 02-16-00114-CV, (Tex. App. – Fort Worth, August 31, 2017).

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. The Fort Worth Court of Appeals affirmed the dismissal of the Town. However, the court reversed the dismissal of the other property owner.

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.   At this time the Town voted to amend the zoning code and issued a SUP to the Church, but did not pass an ordinance. The Town (and Church) filed a plea to the jurisdiction, which the trial court granted. The Plaintiffs appealed.

The Uniform Declaratory Judgment Act (“UDJA”) does not waive immunity of a governmental entity. The proper defendant in an ultra vires action is the official who allegedly acted without authority, not the governmental entity itself. The Plaintiffs did not sue any officials. The UDJA waives governmental immunity against claims that an ordinance, or an amendment to an ordinance, is invalid.  Plaintiffs claim they are challenging the amended ordinance so have jurisdiction. However, the record shows Ponder did not amend its zoning ordinance, it merely voted on motions to change the zoning classification. Open motions and votes are not ordinances and here the zoning ordinance was not changed. The Town’s vote to grant an SUP was not made by ordinance but did not have to be. Plaintiffs, therefore, are not able to challenge a non-existent ordinance and cannot show a waiver of immunity. The court also held that since the Texas Open Meetings Act and notice allegations also stem from the challenge to a non-existent ordinance, they likewise were properly dismissed. The Plaintiffs next assert the Town waived immunity by its own ordinance.  However, the court held that even if the Town had the authority to waive its own immunity, the language in their ordinance is not a clear and unambiguous waiver of immunity. It authorized a property owner to sue an offending property owner, not the Town. As to the §1983 analysis, claims based upon a government entity’s refusal or failure to enforce its own regulations do not equate to such claims.  The court held repleading would not change the lack of jurisdiction. The Town’s plea was properly granted.  The court errored by dismissing the Church.

If you would like to read the opinion click here. Panel includes Chief Justice Livingston, Justice Gabriel, and Justice Pittman.  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.