ACCEPTED
03-15-00259-CV
7162333
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/30/2015 11:47:56 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00259-CV
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE 9/30/2015 11:47:56 AM
THIRD COURT OF APPEALS JEFFREY D. KYLE
Clerk
AUSTIN, TEXAS
BECKY, LTD.,
Appellant
V.
THE CITY OF CEDAR PARK, STEPHEN THOMAS, MATT POWELL, MITCH
FULLER, LYLE GRIMES, LOWELL MOORE, JON LUX, AND DON TRACY,
Appellees
ON APPEAL FROM THE
126TH JUDICIAL DISTRICT COURT,
TRAVIS COUNTY, TEXAS
REPLY BRIEF OF APPELLANT
ELIZABETH G. BLOCH LEONARD B. SMITH
State Bar No. 02495500 State Bar No. 18643100
Heidi.bloch@huschblackwell.com lsmith@leonardsmithlaw.com
Husch Blackwell LLP P.O. Box 684633
111 Congress, Suite 1400 Austin, Texas 78768
Austin, Texas 78701 (512) 914-3732
(512) 472-5456 (512) 532-6446 (fax)
(512) 479-1101 (fax)
Attorneys for Becky, Ltd.
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
REPLY TO APPELLEES’ STATEMENT OF FACTS ............................................1
SUMMARY OF THE REPLY ..................................................................................2
ARGUMENT AND AUTHORITIES ........................................................................3
I. The trial court has subject-matter jurisdiction over Becky’s ultra vires
claims against the individual defendants in their official capacities. ..............3
A. Orderly development of subdivisions is a critical municipal
function. .................................................................................................4
B. The City Council effectively granted a variance to the City’s
subdivision ordinances without the authority to do so. .........................6
C. The City Council had no discretion to effectively grant a
variance from its subdivision ordinance requirements. ........................7
D. Declaratory relief against the individual City Council members
is appropriate. ......................................................................................10
II. The UDJA waives the City’s immunity under these circumstances. ............12
III. Becky has standing to assert its claims..........................................................14
IV. Becky’s claims are ripe..................................................................................18
V. Becky’s claims are not moot. ........................................................................21
CONCLUSION ........................................................................................................23
CERTIFICATE OF COMPLIANCE .......................................................................24
CERTIFICATE OF SERVICE ................................................................................24
i
INDEX OF AUTHORITIES
CASES
Alexander Oil Co. v. City of Seguin,
825 S.W.2d 434 (Tex. 1991) ...............................................................................11
Allen v. Wright,
468 U.S. 737 (1984) ............................................................................................16
Brandon v. Holt,
469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985) .........................................13
City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) .................................................................... 3, 10, 13
City of El Paso v. Maddox,
276 S.W.3d 66 (Tex. App.—El Paso 2008, pet, denied) ............................. 18, 19
City of Houston v. Little Nell Apts.,
424 S.W.3d 640, 647 (Tex. App.—Houston [14th Dist.] 2014, pet. filed) ..........3
City of Houston v. Williams,
353 S.W.3d 128 (Tex. 2011) ...............................................................................22
City of McKinney v. Hank’s Restaurant Group, L.P.,
412 S.W.3d 102, 111-112 (Tex. App.—Dallas 2013, no pet.) ...........................12
City of Round Rock v. Smith,
687 S.W.2d 300 (Tex. 1985) .............................................................................4, 5
DaimlerChrysler Corp. v. Inman,
252 S.W.3d 299 (Tex. 2008) ...............................................................................16
Heckman v. Williamson Cnty.,
369 S.W.3d 137 (Tex. 2012) ...............................................................................16
Kentucky v. Graham,
473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) .......................................13
Lake Medina Cons. Soc. v. Tex. Nat. Res. Cons. Comm’n,
980 S.W.2d 511, 513-15 (Tex. App.—Austin 1998, pet, denied) ......................15
ii
Lombardo v. City of Dallas,
124 Tex. 1, 73 S.W.2d 475 (1934) .........................................................................4
Satterfield & Pontikes Constr., Inc. v. Tex. S. Univ.,
2015 WL 4760209 (Tex. App.—Houston [1st Dist.] August 13, 2015,
pet. filed) ..............................................................................................................11
Save Our Springs Alliance, Inc. [SOS] v. City of Austin,
149 S.W.3d 674 (Tex. App.—Austin 2004, no pet.) .....................................21, 22
Save Our Springs [SOS] Alliance, Inc. v. City of Dripping Springs,
304 S.W.3d 871 (Tex. App.—Austin 2010, pet. denied) ....................................14
Schecter v. Wildwood Developers, LLC,
214 S.W.3d 117 (Tex. App.—El Paso, no pet.) ...................................................15
South Tex. Water Auth. v. Lomas,
223 S.W.3d 304 (Tex. 2007) ................................................................................18
Stop the Ordinances Please v. City of New Braunfels,
306 S.W.3d 919 (Tex. App.—Austin 2010, no pet.) ...........................................17
Tex. A & M Univ. Sys. v. Koseoglu,
233 S.W.3d 835 (Tex. 2007) ................................................................................13
Texas Department of Transp. v. Sefzik,
355 S.W.3d 618 (Tex. 2011) ................................................................................12
Texas Logos, LP v. TxDOT,
241 S.W.3d 105 (Tex. App.—Austin 2007, no pet.) .................................... 10, 11
Texas Lottery Commission v. First State Bank of DeQueen,
325 S.W.3d 628 (Tex. 2010) ..................................................................................3
Texas Nat. Reserve Conservation Commission v. IT-Davy,
74 S.W.3d 849 (Tex. 2002) ..................................................................................10
OTHER AUTHORITIES
City of Cedar Park Home Rule Charter § 7.04(a)......................................................4
Code of Ordinances § 12.06.002................................................................................5
Code of Ordinances § 12.12.003................................................................................5
iii
Code of Ordinances § 12.15.001(1) ...........................................................................5
Code of Ordinances §§ 12.03.004(a), (b) ..............................................................5, 6
Code of Ordinances §12.15.002(a) ............................................................................5
Ordinance § 16.02.005 ...........................................................................................8, 9
STATUTORY AUTHORITIES
TEX. GOV’T CODE Chapter 551. ...............................................................................22
TEX. LOCAL GOV’T CODE § 212.006(a) .............................................................. 4, 22
iv
REPLY TO APPELLEES’ STATEMENT OF FACTS
Becky agrees that “this case is about a future road to a vacant lot,” although
if the City Council 1 had not engaged in unauthorized conduct, the road to Becky’s
tract would have been built by now. Planning future roads to vacant tracts of land
is a critical part of a city’s subdivision planning process, and the orderly
development of the City’s infrastructure, including roadways that connect one
subdivision to the next, is one of the most important municipal functions. It is not
true, as the city contends, that “Becky wants the City to build a road to the Becky
tract.” 2 To the contrary, the City’s own subdivision ordinances require that
developers such as Milestone either build or pay for the construction of roadways
contained in the City’s master plan that are within their subdivisions. In that sense,
it would be more accurate to say that the City wants Becky to build a road on
Milestone’s tract.
The road at issue here, the Old Mill Road Extension, is in the City’s master
roadway plan as a “residential collector” planned roadway. 3 Consistent with this
roadway plan, Milestone dedicated to the City a right of way for Old Mill Road in
1
The “City Council” refers to the individual defendants, in their official capacity as members of
the City of Cedar Park City Council. The “City” will refer collectively to the City of Cedar Park
and the City Council, except where a distinction is expressly stated.
2
Appellees’ Br. at 4.
3
CR 213, a more recent and legible copy of which is attached hereto as Appendix A, designates
Old Mill Road as road number 32 on the City’s roadway plan. See also
http://www.cedarparktexas.gov/modules/showdocument.aspx?documentid=2979.
1
its Development Agreement. 4 The Agreement, however, contrary to the City’s
ordinances, grants Milestone an exemption from completing or paying for
construction of the entirety of the road within one year. Instead, the Agreement
requires Milestone to complete “Phase 1” of Old Mill Road (See map on page 1 of
Becky’s opening brief) without any time deadline, and worse, it does not require
Milestone to complete, timely or otherwise, “Phase 2” of the road, 5 leaving
Becky’s tract indefinitely stranded.
SUMMARY OF THE REPLY
Becky’s suit is a challenge to the City’s authority to grant Milestone,
through the Development Agreement, an exemption or variance to the City’s own
subdivision ordinance requirements. The suit alleges ultra vires conduct by the
City Council members, thus invoking the court’s subject matter jurisdiction over
those defendants. Since construction of the City’s ordinances is a necessary
component of Becky’s ultra vires claim, Becky also seeks declaratory relief
regarding the City’s ordinances under the Uniform Declaratory Judgments Act
(UDJA), which requires that the City be made a party to the suit. This court
therefore has subject matter jurisdiction over both the individual defendants and
the City. Alternatively, even if the City is immune, the suit against the individual
City Council members must be allowed to proceed.
4
I CR 198; Development Agreement at ¶ 2.
5
See I CR 199; Development Agreement at ¶ 3.
2
ARGUMENT AND AUTHORITIES
I. The trial court has subject-matter jurisdiction over Becky’s ultra vires
claims against the individual defendants in their official capacities.
The City does not dispute that ultra vires claims against governmental
officials in their official capacities are an exception to immunity. City of El Paso v.
Heinrich, 284 S.W.3d 366, 373 (Tex. 2009). Instead, the City contends that
Becky’s claims do not fall within that exception because the City Council’s actions
were discretionary. Deciding this issue necessarily requires a construction of the
applicable ordinances, to determine whether Becky’s claims assert conduct by the
City Council that was outside of their discretion. See City of Houston v. Little Nell
Apts., 424 S.W.3d 640, 647 (Tex. App.—Houston [14th Dist.] 2014, pet. filed)
(“this court will need to construe the ordinance … to determine whether the facts
as pleaded demonstrate the ultra vires nature of [plaintiff’s] alleged actions”).
The same rules that govern statutory construction apply to the construction
of municipal ordinances. Id. at 648. This includes examining the City’s words in
context of the ordinances as a whole and not considering words or parts of the
ordinance in isolation. Id. at 649 (citing Tex. Lottery Comm’n v. First State Bank of
DeQueen, 325 S.W.3d 628, 636 (Tex. 2010)). The City’s ordinances as a whole
demonstrate the importance of the orderly development of its subdivisions. They
also demonstrate the clear demarcation of authority between the City Council and
the City’s Planning Commission, as discussed in Becky’s opening brief.
3
A. Orderly development of subdivisions is a critical municipal
function.
As the Texas Supreme Court has noted:
The police power [of a city] is a grant of authority from the people to
their governmental agents “to promote the public convenience or the
general prosperity, as well as regulations designed to promote the
public health, the public morals, or the public safety.” Lombardo v.
City of Dallas, 124 Tex. 1, 73 S.W.2d 475, 479 (1934). The purpose
of plat approval is to ensure that subdivisions are safely constructed
and to promote the orderly development of the community. Plat
approval protects future purchasers from inadequate police and fire
protection, inadequate drainage, and insures sanitary conditions.
City of Round Rock v. Smith, 687 S.W.2d 300, 302 (Tex. 1985) (emphasis added).
To this end, Chapter 212 of the Local Government Code gives cities regulatory
power over the subdivision of land. Section 212.006(a) places authority to approve
plats, under the subchapter dealing with regulation of subdivisions, squarely on the
“municipal planning commission,” with some exceptions not applicable here. TEX.
LOCAL GOV’T CODE § 212.006(a).
Consistent with this statutory directive, the City’s Code of Ordinances vest
exclusive authority over platting and subdividing of land in the Planning
Commission. City of Cedar Park Home Rule Charter § 7.04(a). Also consistent
with this statutory directive, the City’s subdivision ordinances (found in Chapter
12 of the City’s Code of Ordinances), 6 place sole authority to grant variances from
6
See http://z2.franklinlegal.net/franklin/Z2Browser2.html?showset=cedarparkset
4
the terms of its subdivision regulations squarely and exclusively with the
Planning Commission. Code of Ordinances §§ 12.03.004(a), (b).
The City’s Code of Ordinances also mirror the sentiment announced in City
of Round Rock that its subdivision development be orderly:
• The provisions of this chapter … are designed and intended to insure that,
for all subdivisions of land within the jurisdiction of the city, all
improvements as required herein are installed in a timely manner in order
that: … the city can provide for the orderly and economical extension of
public facilities and services (Code of Ordinances § 12.15.001(1));
• … the applicant requesting final plat approval shall, within the time period
for which the final plan has been conditionally approved by the city: (1)
Construct all improvements as required by this chapter, … or (2) Provide a
surety instrument guaranteeing construction of all improvements required by
this chapter. (Code of Ordinances §12.15.002(a));
• The final plan provides detailed graphic information … indicating property
boundaries, easements, streets, utilities … (Code of Ordinances §
12.06.001);
• The final plat shall include the entire tract intended to be developed at one
(1) time, and shall contain or have attached thereto: … (2) A location map
showing the relation of the subdivision to streets and other prominent
features. … (5) The lines and names of all proposed streets…. (Code of
Ordinances § 12.06.002);
• All transportation improvements including streets … shall be designed in
accordance with the … transportation master plan …. (Code of Ordinances §
12.12.003);
A developer’s final plat, such as Milestone’s here, is essentially an agreement with
the City that it will construct (or provide security for construction of) all of the
improvements shown on the plat in a timely manner or suffer expiration of its final
plat. Milestone’s final plat includes Old Mill Road, and expressly dedicates a right
5
of way for that road to the City from one end to the other of Milestone’s tract,
which abuts Becky’s tract. The City’s Ordinances limit the time for completion of
all improvements designated on a final plat to one year after plat approval. Code of
Ordinances § 12.15.003(c). Failure to timely complete the improvements
automatically results in plat expiration. Code of Ordinances § 12.15.003(d). The
threat of plat expiration encourages the timely and orderly development of the
subdivision and all infrastructure shown on the subdivision plat.
As noted above, Old Mill Road was designated on the City’s roadway plan
as a “collector street.” The City’s Ordinances define the purpose of such streets:
“The purpose of collector streets is to convey traffic from intersecting local streets
and to expedite the movement of traffic to an arterial street or other collector
street.” Code of Ordinances § 12.12.003(6)(B). Here, the City Council’s
unauthorized grant of what amounted to a variance to Milestone completely
defeated the purpose of the City’s own stated purposes and goals.
B. The City Council effectively granted a variance to the City’s
subdivision ordinances without the authority to do so.
The City points out that the term “variance” is a term of art, and argues that
“Becky has not alleged any facts in its pleading that would demonstrate that the
City Council approved a ‘variance’ as that term is generally understood.” 7 But
that’s exactly Becky’s point: The City never approved an actual “variance”
7
Appellees’ Br. at 8.
6
because Milestone never applied for a variance, did not even attempt to meet the
requirements for granting a variance, and was not granted a variance from the only
entity within the City’s government authorized to grant one—the Planning
Commission.
Milestone could only have been exempted from its requirement to timely
complete or pay for the subdivision infrastructure shown on its plat, including Old
Mill Road, by going through the administrative process of obtaining an actual
variance from the Planning Commission. It did not do so. Instead, the City
Council—an entity without authority to grant a variance—purported to do just that
by contract. The Development Agreement between the City and Milestone
effectively granted Milestone a variance from an entity unauthorized to grant one,
and without the required showing that would support a variance or exemption from
the subdivision ordinance requirements. That portion of the Development
Agreement is therefore void as an ultra vires act of the City Council, purporting to
act on behalf of the City, but without the requisite authority.
C. The City Council had no discretion to effectively grant a variance
from its subdivision ordinance requirements.
The City has no response at all to the keystone of Becky’s appeal—that
under the City’s Charter and ordinances, only the Planning Commission, through
an administrative process, can do what the City Council purported to do by
contract with a private entity. Instead, the City points to a previously undiscussed
7
and irrelevant ordinance relating to dedication of rights of way, suggesting that the
City had discretion whether to require completion of Old Mill Road. This argument
fails for two reasons. First, the right of way provision relied upon by the City does
not allow the City discretion to forgive both completion of the road and payment
for its construction. Second, to the extent the City has discretion to waive the
build-or-pay option, it could only do so through action by the Planning
Commission.
The City argues that Ordinance § 16.02.005 gives the City discretion to
require construction of a roadway improvement or not. Ordinance § 16.02.005 is
entitled “Dedication of Right of Way,” and it addresses when rights of way may be
required by the City for streets and roads. The dedication of a right of way for Old
Mill Road, however, is not at issue because the City did not waive dedication of
that right of way. Section 16.02.005(a) addresses when a right of way must be
dedicated, once the director of planning determines that all or a portion of the right
of way is needed. Here, there is no question but that this has already occurred
since, as noted above, the City’s roadway plan lists Old Mill Road as a “residential
collector” planned roadway and Milestone agreed to dedicate to the City the right
of way for the entire extension of Old Mill Road at issue. 8
8
I CR 198, Development Agreement, ¶ 2; I CR 210, Exhibit C.
8
The City next relies on § 16.002.005(d) of the right of way dedication
ordinance, which states that in addition to the dedication of right of way, “the City
may require the construction of a roadway improvement or may assess a fee
instead of requiring construction of a roadway improvement ….” Consistent with
the subdivision ordinance provisions noted above, this simply gives the City the
option to require either construction of the roadway improvement or a fee in lieu
of construction. It does not provide the City with any discretion to dispense with
both the construction and a fee to cover the cost of construction. In other words, to
accomplish the orderly development of the City through its subdivisions, roadway
improvements must either be constructed or paid for to ensure that the roadways
connect the dots, as it were, from one subdivision to the next. Orderly development
cannot occur if a city allows a favored developer like Milestone to decide where
and when to build main connecting roadways or to dispense with such roads
altogether.
In addition, if Ordinance § 16.002.005(d) can somehow be construed to
allow the City discretion to waive both the build and the pay requirements for
subdivision improvements, that action could only be carried out by the Planning
Commission, to whom the City delegated sole and exclusive authority to grant
variances. If the City Council purported to do that, it would exceed its authority,
rendering that action void, as discussed below.
9
D. Declaratory relief against the individual City Council members is
appropriate.
In its pleading, Becky seeks a declaration under the Uniform Declaratory
Judgment Act (“UDJA”) that the Development Agreement between the City and
Milestone is void as an ultra vires act of the City Council. 9 “Private parties may
Seek declaratory relief against state officials who allegedly act without legal or
statutory authority.” Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d
849, 855 (Tex. 2002). With respect to the individual City Council members,
declaratory relief that their actions were ultra vires and therefore void is an
appropriate use of the UDJA because it complements and provides a remedy for a
claim—ultra vires conduct—for which immunity is already waived. Id.; City of El
Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).
This is not a case where a plaintiff is attempting to improperly use the UDJA
to obtain monetary relief against a governmental entity or to otherwise control state
action that is within the actor’s discretion. See, e.g., Heinrich, 284 S.W.3d at 372.
This is also not a case where a plaintiff is merely complaining that the action of
governmental officials was contrary to a statute or ordinance, thus rendering that
action voidable. In this respect, the case is distinguishable from Texas Logos, LP v.
TxDOT, 241 S.W.3d 105 (Tex. App.—Austin 2007, no pet.), a case cited by the
City.
9
I CR 192.
10
In Texas Logos, this court held that the plaintiff’s complaint that a state
agency had not followed its proper bidding procedures was an improper suit to
control state action. Aside from the fact that the plaintiff’s claims against the
individual state official were not dismissed, 10 the critical distinction between this
case and Texas Logos is that here, Becky’s claims, if proven on the merits, would
render the City Council’s actions void ab initio since they were undertaken without
authority to act. See Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 438
(Tex. 1991) (action by a municipality that exceeds its legislatively delegated
authority is void). In contrast, the claims in Texas Logos, if true, would merely
render the action voidable:
We disagree with Texas Logos that the statutory violations it alleges
would, if proven, render the logo sign contract void; i.e., a nullity. …
This statutory scheme contemplates that while contracts executed in
violation of the Act’s requirements might be subject to invalidation by
the agency or other statutory remedies, they would not be rendered a
legal nullity on that basis.
Texas Logos, 241 S.W.3d at 120-21.
A recent decision pinpoints this distinction. In Satterfield & Pontikes
Constr., Inc. v. Tex. S. Univ., 2015 WL 4760209 (Tex. App.—Houston [1st Dist.]
August 13, 2015, pet. filed), the court followed Texas Logos because the plaintiff
in that case, as in Texas Logos, was not seeking “to declare an agency order void as
unauthorized by law,” but rather was seeking to nullify a “once-binding contractual
10
Texas Logos, 241 S.W.3d at 109.
11
obligation.” Id. at *5. Here the Development Agreement, to the extent it granted
Milestone a special privilege, exemption, or variance from the City’s subdivision
ordinance requirements, was void as unauthorized by law, and therefore a legal
nullity that was never a “once-binding” contract. Becky does not seek to void a
merely voidable contract, but rather to have the courts recognize that portions of
the contract are void by law because the City Council had no legal authority to
enter into those terms, having delegated the sole authority to grant exemptions or
variances to the Planning Commission. The fact that the City Council
memorialized this unauthorized action in a contract does not defeat Becky’s ability
to challenge its authority to take that action.
II. The UDJA waives the City’s immunity under these circumstances.
Becky acknowledges recent cases holding that the Uniform Declaratory
Judgment Act (“UDJA”) waives immunity only for a claim that a statute or
ordinance is invalid, and does not waive immunity for claims seeking a declaration
of the claimant’s rights or an interpretation of an ordinance. See, e.g., City of
McKinney v. Hank’s Restaurant Group, L.P., 412 S.W.3d 102, 111-112 (Tex.
App.—Dallas 2013, no pet.) (citing Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d
618 (Tex. 2011), and discussing the evolving law on the issue). This case,
however, is distinguishable since it couples a proper ultra vires claim against
individual City Council members, who purported to act on behalf of the City, with
12
a suit for a declaration of Becky’s rights under the applicable statutes and
ordinances. As noted above, the courts will need to construe the ordinances at issue
in order to analyze Becky’s ultra vires claim. Little Nell Apts., 424 S.W.3d at 647.
In any event, even if the City is immune, the City Council members are not.
Given that declaratory relief is available against the individual defendants, that
construction and interpretation of the City’s ordinances is a necessary part of the
suit, and that the ultimate relief sought would void a portion of a contract entered
into by the City, it is somewhat surprising that the City seeks to abandon the
individual defendants by hiding behind its own immunity. In holding that ultra
vires actions can only be brought against individual government officials, the court
in Heinrich noted:
…the suit is, for all practical purposes, against the state. See Brandon
v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)
(“[A] judgment against a public servant ‘in his official capacity’
imposes liability on the entity that he represents provided, of course,
the public entity received notice and an opportunity to respond.”);
Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007)
(“It is fundamental that a suit against a state official is merely ‘another
way of pleading an action against the entity of which [the official] is
an agent’.”) (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105
S.Ct. 3099, 87 L.Ed.2d 114 (1985)).
Therefore, a declaratory judgment against the City Council members will, as a
practical matter, essentially be a declaratory judgment against the City in any
event.
13
III. Becky has standing to assert its claims.
The City makes the same standing argument, at least in its heading, as
Milestone’s failed argument below—that Becky has no standing because it was not
a party to the Development Agreement. 11 Milestone challenged Becky’s standing
on that precise ground, and the trial court denied Milestone’s challenge. 12 Becky,
however, has never asserted that it has standing by virtue of any third party
beneficiary status regarding the Agreement. Instead, Becky has suffered and will
continue to suffer particularized injury because of the City’s unauthorized action.
The City cites Save Our Springs [SOS] Alliance, Inc. v. City of Dripping
Springs, 304 S.W.3d 871 (Tex. App.—Austin 2010, pet. denied), and states that
this court “held that because neither SOS nor its member had an interest in the
properties that were the subject of the development agreements, SOS lacked
standing.” 13 This court did not so hold. Instead, the court held that SOS lacked
standing because neither it nor its members had a “property interest in Barton
Springs (the land alleged to be polluted [i.e. affected]…) [or] property rights
otherwise affected by Barton Springs’ alleged pollution.” SOS, 304 S.W.3d at 880
(emphasis added).
11
The City’s Br. at 20.
12
I CR 72-73; Supp. CR 6. Becky again points out that the trial court refused to state its grounds
for granting the City’s plea to the jurisdiction, but implicit in its ruling—because it also denied
Milestone’s jurisdictional challenges—is that it did not base it on lack of standing, mootness, or
lack of ripeness.
13
The City’s Br. at 21 (emphasis added).
14
Contrary to the City’s suggestion, a plaintiff is not required to hold an
interest in the property that is the subject of the challenged action or agreement.
The plaintiff need only hold an interest in property that is affected by the
challenged action or agreement. This court in SOS also noted that the plaintiff
asserted only harm to its “environmental, scientific, and recreational interests
generally,” which are interests the law does not protect to the same extent as
economic interests. See SOS, 304 S.W.3d at 879-80 (and cases cited therein). But
even with only environmental harm, the court recognized that such harm might
give a plaintiff standing if the plaintiff “own[s] property affected by the
defendant’s actions.” Id. at 879 (citing Lake Medina Cons. Soc. v. Tex. Nat. Res.
Cons. Comm’n, 980 S.W.2d 511, 513-15 (Tex. App.—Austin 1998, pet, denied)).
Here, Becky has asserted economic harm to real property that is directly affected
by the challenged action, and it therefore has standing.
Similarly, the other case cited by the City, Schecter v. Wildwood Developers,
LLC, 214 S.W.3d 117 (Tex. App.—El Paso, no pet.), does not support its claim of
no standing. In Schecter, the plaintiff asserted a claim that the city planning
commission’s approval of a subdivision plat violated an ordinance, but that claim
was dismissed because the development had progressed during the pendency of the
case so as to render that claim moot. Schecter, 214 S.W.3d at 120. The court did
not hold that the plaintiff had no standing to assert the claim based on violation of
15
an ordinance. The plaintiff’s remaining challenges to the approval of the
subdivision plat were based on allegations that the approval violated the City’s
design criteria (a matter of discretion) and that the approval was based on the
developer’s fraudulent and false statements. There was no allegation that would
render the approval void as an unauthorized act. The court correctly held that
neither of these claims was based on the plaintiff’s legal relations under a contract
or ordinance, and that declaratory relief was unavailable. Schecter, 214 S.W.3d at
122.
Here, Becky has standing because it is “personally aggrieved,” and its
alleged injury is “concrete and particularized, actual or imminent, not
hypothetical.” DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304-05 (Tex.
2008). “A plaintiff must allege personal injury fairly traceable to the defendant’s
allegedly unlawful conduct and likely to be redressed by the requested relief.”
Heckman v. Williamson Cnty., 369 S.W.3d 137, 154 (Tex. 2012) (quoting Allen v.
Wright, 468 U.S. 737, 751 (1984)).
Becky has alleged improper and unauthorized action by the City and
Milestone that directly and adversely affects Becky’s real property. Becky’s tract
of land abuts Milestone’s tract of land that is the subject of the Development
Agreement. The Agreement purports to waive or exempt Milestone from certain
otherwise binding requirements of the City’s Subdivision Ordinances, including
16
the obligation to construct subdivision infrastructure and improvements such as
roadways and utilities within a year from plat approval. The City’s planned but
unbuilt extension of Old Mill Road runs through Milestone’s tract to Becky’s tract,
and would provide the only access to Becky’s tract from South Lakeline
Boulevard. Becky has alleged both a concrete injury—immediate devaluation of its
property—and a continuing and increasing harm as the Agreement remains in
place, tying up the property without requiring timely construction of the proper
infrastructure and leaving Becky’s property landlocked. Indeed, since suit was
filed, the one-year deadline under the Subdivision Ordinances has long since come
and gone. Without the unauthorized Agreement, Milestone would have been
required to have completed construction of the subdivision improvements by
September 17, 2014, or its plat approval would have expired. The existence of the
Agreement prevented this from happening, harming Becky.
Finally, the City relies on Stop the Ordinances Please v. City of New
Braunfels, 306 S.W.3d 919 (Tex. App.—Austin 2010, no pet.), but this reliance is
misplaced. As pointed out in Becky’s initial brief, the ordinance in that case caused
plaintiffs actual and present injury by rendering valueless ice chests that plaintiff
had purchased for renting out to customers, and by causing them to incur
additional expense to comply with the ordinance. Id. A similar harm to Becky’s
property has occurred in this case since the waiver or variance granted by the City
17
to Milestone has denied and delayed Becky’s ability to effectively use and develop
its property. Becky has alleged such a particularized injury in fact, which is all that
is required. South Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007).
Becky does not assert standing as a mere taxpayer or a disgruntled citizen. Instead,
Becky asserts standing because its real property is directly and adversely affected
by the City Council’s unauthorized action. Becky, therefore, has standing.
IV. Becky’s claims are ripe.
For its ripeness argument, the City relies on two things: the case of City of El
Paso v. Maddox, 276 S.W.3d 66 (Tex. App.—El Paso 2008, pet, denied), and the
suggestion that Becky has not submitted a completed plat application for the City
to review. The case is distinguishable and the suggestion is not true. On October
24, 2014, while this case was pending below, Becky submitted its application for a
preliminary plan and final plat. Although Becky was not required to have filed
such an application in order for its claims to be ripe (since there was a justiciable
controversy even without the application), the application puts that issue to rest.
As for City of El Paso v. Maddox, the plaintiff in that case asserted a claim
for monetary relief against the city for an unconstitutional taking; there was no
allegation that the city’s actions were unauthorized or ultra vires. Another
distinguishing factor is that the city in Maddox had amended its applicable
subdivision ordinance “to eliminate the requirement which would have required
18
that [the developer] provide access to the [plaintiff’s] Property.” Maddox, 276
S.W.3d at 70. There is no such amendment to the City’s ordinances here.
In analyzing the plaintiff’s takings claim, the court in Maddox noted that for
“a regulatory takings claim to be ripe, there must be a final decision regarding the
application of the regulation to the property at issue,” and that a “final decision
usually requires both a rejected development plan and the denial of a variance from
the controlling regulation.” Id. at 71-72. The lack of a “final decision” as it relates
to the ripeness of a regulatory takings claim has no relevance to Becky’s claims
here, which seek declaratory relief—a remedy particularly well-suited for
determining the rights and obligations of the parties when there is an existing
controversy over those rights and obligations.
The City next argues that Becky’s claims are not ripe because Becky filed an
application for a plat on its property and the City has not yet taken final action on
that application. The City’s focus on Becky’s application for a plat, however, is
misplaced. At issue in this case is Milestone’s application for a plat in 2013 and the
City Council’s unauthorized grant of waivers or variances of its subdivision
ordinance requirements, without which either the road would be built by now or
Milestone’s plat would be vacated. Becky has already been and continues to be
harmed by this ultra vires conduct even if it had never filed an application for its
own plat.
19
Becky’s own application simply brings into sharper focus the question of
who may ultimately be responsible for paying for the road, but the issues raised by
Becky’s application, including whether Becky may be required to pay for the road,
will be addressed in an administrative action before the City, not the courts. It may
become part of this case at a later date, when the administrative remedies are
exhausted. That is why Becky deleted its initial request, contained in its original
petition, for a declaration that Becky should not have to pay for the road. That
remedy is premature, and it is not currently an issue in this case.
What is ripe, however, is the immediate effect the Agreement has had and
continues to have on Becky’s property. The existence of the Agreement, with its
ultra vires waivers of the City’s subdivision ordinance requirements, has
landlocked and continues to landlock Becky’s real property and to hold it in limbo.
Without the ultra vires Agreement, the road would have been built by now or
Milestone’s plat would have expired. There is good reason why the City’s own
ordinances contain strict time limitations for development after plat approval—
subdivision development and the construction of improvements within those
subdivisions must be completed in an orderly and timely fashion. It is the limbo
resulting from the ultra vires Agreement that has harmed and devalued Becky’s
property and continues to do so. No administrative action can remedy this harm;
certainly no city department can issue the declaratory relief Becky requests.
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V. Becky’s claims are not moot.
The City’s mootness argument is without substance. The City bluntly states
that “because the City Council validly approved the Agreement, any claim by
Becky that the City Council acted without authority is moot.” The City, however,
does not explain how the City can “validly” approve an agreement that it had no
authority to make, nor does it explain how this would render Becky’s claim moot.
A hint to the substance of its argument comes from the City’s reliance on Save Our
Springs Alliance, Inc. [SOS] v. City of Austin, 149 S.W.3d 674 (Tex. App.—Austin
2004, no pet.), where the city’s subsequent action rendered the plaintiff’s claim
moot. But that case involves very different facts.
In SOS v. City of Austin, the plaintiff challenged a development agreement
as being contrary to an ordinance. While the case was pending, the city “amended
the Ordinance according to the terms of the development agreement. This
amendment was a legislative act by the City.” SOS v. City of Austin, 149 S.W.3d at
681. In other words, the city legislatively amended its ordinance, which the city
had the right and authority to do, so that the development agreement no longer
conflicted with the ordinance. This mooted the plaintiff’s argument that there was a
conflict since the conflict no longer existed.
No such facts are present here. The City has not amended its Subdivision
Ordinances, and certainly not in a manner that would resolve the conflict between
21
the Agreement and the requirements of the Ordinances. Doing so, of course, would
require public notice and public debate at open meetings. See TEX. LOCAL GOV’T
CODE § 212.002 (“After a public hearing on the matter, the governing body of a
municipality may adopt rules governing plats and subdivisions;” emphasis
added) 14; City of Cedar Park Charter § 3.13 (“No ordinances except emergency
ordinances shall be finally passed until they have been read on two (2) separate
days not less than 72 hours apart.”). 15
In its plea to the jurisdiction below, the City’s suggested that the Agreement
“has the effect of amending the city’s subdivision regulations,” 16 but that cannot be
the case. As this court recognized in SOS v. City of Austin, cities may certainly
amend their own ordinances. SOS v. City of Austin, 149 S.W.3d at 681. But that
case does not support the leap that a city may avoid its public notice and open
meeting requirements by “effectively” amending its ordinances through private
contracts. The Supreme Court has recognized that a city may effectively contract
with private parties by properly enacting or amending an ordinance. See City of
Houston v. Williams, 353 S.W.3d 128, 136 (Tex. 2011). But no court has held that
a city may effectively “amend” its existing ordinances by entering into a contract.
14
Failure to comply with this provision would also be in violation of the Open Meetings Act,
TEX. GOV’T CODE Chapter 551.
15
http://www.ci.cedar-park.tx.us/modules/showdocument.aspx?documentid=3818
at p. 7.
16
I Cr 44 (emphasis added).
22
CONCLUSION
Becky requests that this Court reverse the judgment below and remand the
case to the trial court. Becky requests such other relief to which it may be entitled.
Respectfully submitted,
HUSCH BLACKWELL, L.L.P
BY: /s/ Elizabeth G. Bloch
ELIZABETH G. BLOCH
Texas Bar No. 02495500
Heidi.bloch@huschblackwell.com
111 Congress Avenue, Suite 1400
Austin, Texas 78701
(512) 472-5456
(512) 479-1101 (facsimile)
Leonard B. Smith
Texas Bar No. 18643100
lsmith@leonardsmithlaw.com
P.O. Box 684633
Austin, Texas 78768
(512) 914-3732
(512) 532-6446 (facsimile)
ATTORNEYS FOR BECKY, LTD.
23
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing document contains 5,577 words,
according to the word count of the computer program used to prepare it, in
compliance with Rule 9.4(i)(2).
/s/ Elizabeth G. Bloch
Elizabeth G. Bloch
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing instrument has been
served upon the following counsel of record via electronic filing and/or facsimile
on the 30th day of September, 2015:
Cobby Caputo
ccaputo@bickerstaff.com
Bradley B. Young
byoung@bickerstaff.com
Bickerstaff Heath Delgado Acosta LLP
3711 South MoPac Expressway
Building One, Suite 300
Austin, Texas 78746
/S/ ELIZABETH G. BLOCH
Elizabeth G. Bloch
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Becky, Ltd. v. the City of Cedar Park, Matt Powell, Stephen Thomas, Lyle Grimes, Lowell Moore, Jon Lux, and Don Tracy
Combined Opinion