Trial court properly dismissed various claims brought against Board of Adjustment

Glen Sumner v. Board of Adjustments of City of Spring Valley Village, Texas; The City of Spring Valley Village Texas, Art Flores, and Rickie Prichard 14-15-00149-CV (Tex. App- Houston [14th Dist.], May 17th 2016).

This is a board of adjustment and takings case where the 14th Court of Appeals affirmed the dismissal of all Plaintiff’s claims.

Spring Valley Village adopted a zoning ordinance which states “[i]t shall be the responsibility of each owner . . . to maintain the drainage patterns of adjacent property owners or landowners caused either by direct diversion of water on the land or by failure to adequately accommodate new or changed drainage patterns…” Sumner owns a home in Spring Valley. Sumner asserts Prichard bought the adjoining property with the intent to build a new house. The plans called for the elevation of Prichard’s property and changed the drainage.  Sumner believed Prichard’s plans would change the natural flow of surface water onto his property in violation of the zoning ordinance. The City’s building official issued a permit for an irrigation system to Prichard consistent with the site plans. Sumner filed an application with the Board of Adjustment relating to the building official’s permit. The Board unanimously rejected Sumner’s protest. Sumner sued the building inspector and the City. The trial court signed a single order dismissing all claims against the building inspector; dismissing Sumner’s petition for writ of certiorari; and granting the City’s motion for summary judgment. The trial court granted the severance to separate the City Defendant’s from Prichard, making its order final.  Sumner appealed.

The Court of Appeals first held the trial court did not abuse its discretion in granting the severance. The claims could have been asserted as an independent lawsuit and they are not so interwoven that they involve identical facts and issues. Next the court held Sumner did not exhaust his administrative remedies regarding the building inspector because the pleadings show Sumner was complaining about a certificate of occupancy, not an irrigation permit. Since Sumner did not timely challenge the certificate with the Board, the trial court was without jurisdiction to consider it. Regarding the takings claim, although district courts typically are courts of general jurisdiction, the Legislature has vested exclusive jurisdiction over inverse condemnation claims in the Harris County Courts at Law for this particular area of the State. Tex. Gov’t Code Ann. §25.1032(c) (West Supp. 2015).  The Court next held Sumner did not properly allege an ultra vires claim under his plead facts. Sumner claims monetary damages for past acts which is not allowed. He further seeks control of future actions, however, such claims are not ripe as there is no indication Prichard intends or will submit any future plans. As a result, the trial court properly dismissed all claims, although the mechanism it uses was adjusted by the Court of Appeals (i.e. certain claims should have been dismissed under the plea, not the MSJ).

For the full opinion click here. Panel consists of Justices Boyce, Busby and Brown. Memorandum Opinion issued by Justice Busby. Attorneys listed for the City defendants are Dennis S. Dresden and Andrea Chan. Glen Sumner represented himself.