Hinga Mbogo, Hinga's Automotive Co., and 3516 Ross Avenue, Dallas, Texas v. City of Dallas, and Michael S. Rawlings, in His Official Capacity as Mayor of the City of Dallas, Texas ( 2018 )

Affirmed and Opinion Filed June 29, 2018
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00879-CV
HINGA MBOGO, HINGA’S AUTOMOTIVE CO., AND 3516 ROSS AVENUE, DALLAS,
TEXAS, Appellants
V.
CITY OF DALLAS, MICHAEL S. RAWLINGS, IN HIS OFFICIAL CAPACITY AS
MAYOR OF THE CITY OF DALLAS, TEXAS; SCOTT GRIGGS, IN HIS OFFICIAL
CAPACITY AS CITY COUNCIL MEMBER; ADAM MEDRANO, IN HIS OFFICIAL
CAPACITY AS CITY COUNCIL MEMBER; CASEY THOMAS, II, IN HIS OFFICIAL
CAPACITY AS CITY COUNCIL MEMBER; CAROLYN KING ARNOLD, IN HER
OFFICIAL CAPACITY AS CITY COUNCIL MEMBER; RICKEY D. CALLAHAN IN
HIS OFFICIAL CAPACITY AS CITY COUNCIL MEMBER; MONICA R. ALONZO, IN
HER OFFICIAL CAPACITY AS CITY COUNCIL MEMBER; TIFFINNI A. YOUNG, IN
HER OFFICIAL CAPACITY AS CITY COUNCIL MEMBER; ERIK WILSON, IN HIS
OFFICIAL CAPACITY AS CITY COUNCIL MEMBER; MARK CLAYTON, IN HIS
OFFICIAL CAPACITY AS CITY COUNCIL MEMBER; B. ADAM MCGOUGH, IN HIS
OFFICIAL CAPACITY AS CITY COUNCIL MEMBER; LEE M. KLEINMAN, IN HIS
OFFICIAL CAPACITY AS CITY COUNCIL MEMBER; SANDY GREYSON, IN HER
OFFICIAL CAPACITY AS CITY COUNCIL MEMBER; JENNIFER S. GATES, IN HER
OFFICIAL CAPACITY AS CITY COUNCIL MEMBER; PHILLIP T. KINGSTON, IN
HIS OFFICIAL CAPACITY AS CITY COUNCIL MEMBER Appellees
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-07983
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Schenck
Opinion by Justice Bridges
On the Court’s own motions, we withdraw our June 19, 2018 opinion and vacate the
judgment. This is now the opinion of the Court.
Appellants Hinga Mbogo, Hinga’s Automotive Co., and 3516 Ross Avenue, Dallas, Texas
(Hinga) appeal from the trial court’s order granting the City’s plea to the jurisdiction, which
dismissed Hinga’s counterclaims and third-party claims against the City and its officials.1 In three
issues, Hinga challenges the constitutionality of zoning ordinances under article I, sections 16, 17,
and 19 of the Texas Constitution, contending that the City’s failure to further exempt his property
from certain zoning requirements amounts to an unconstitutional retroactive application and
deprives him of settled expectations in the use of his property. We affirm the trial court’s order.
Background
Hinga opened Hinga’s Automotive Company, a general repair shop on Ross Avenue in
Dallas, Texas, in 1986. At that time, the City’s zoning ordinances allowed automobile-related
businesses on Ross Avenue.
In 1988, the City issued the “Planned Development District 298 Bryan Area Study.” The
study recognized that “[e]stablishing linkages to regional activity centers (objective 8), was
recommended to take advantage of the area’s proximity to the Central Business District and to
many other attractions in the downtown area.” It further acknowledged the following:
Ross Avenue has the potential to be a corridor prime for economic
development. At present, a large number of automotive related uses
exist along the corridor. These uses are not conducive to having
professional offices located next door due to noise and odors
associated with many of them. Also, fencing material used to
protect the contents of these establishments creates the look of a
maximum security facility along the corridor.
The study found the number of used car lots and vehicle repair shops along Ross Avenue an “issue
of concern” that gave the area “an industrial feel as opposed to an urban character.” The study
also found that “many of these types of uses are non-conforming in the sub-districts in which they
exist.”
1
The “City” includes Michael S. Rawlings, in his official capacity as Mayor of the City of Dallas, and City council members.
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Subsequently, the City passed ordinance no. 20049, which created Planned Development
District No. 298 (PD 298).2 Once PD 298 was passed, “vehicle or engine repair or maintenance”
was prohibited on Ross Avenue where Hinga’s business was located. At that time, Hinga was
fully aware that continuing his business became a “nonconforming use.” The Dallas Development
Code defines “nonconforming use” as “a use that does not conform to the use regulations of this
chapter, but lawfully established under the regulations in force at the beginning of operation and
has been in regular use since that time.” Dallas, Tex., Dallas City Code § 51A-2-2.102(90) (2017).3
In 1991, Hinga purchased the property with three business partners and later invested
approximately $80,000 in improving the building for auto repairs by installing lifts, ventilation,
specialized equipment, and an emissions-testing machine. Hinga made these improvements
knowing use of the property was nonconforming.
The City reevaluated the 1988 Bryan Area Study in March 2004 “to determine if
development was meeting the objectives” of the study and “to make recommendations to adjust
regulations that were falling short.”
The City subsequently passed Ordinance No. 25960 on April 27, 2005, which amended PD
298 and codified specific provisions related to nonconforming uses in Dallas Development Code
section 51P-298.108(b). In addition to establishing deadlines for nonconforming use property to
comply, it allowed the owner of a nonconforming use to appeal to the board of adjustment for a
later compliance date if the owner would not be able to recover his investment in the use by the
conformance date in the subsection. Dallas City Code § 51P-298.108. Uses that became
nonconforming on April 25, 2005 were issued a compliance date of April 26, 2010, and uses that
2
A planned development district is a specialized zoning regulation for a particular piece of property that deviates in some way from the City
development code. It is often based on a land use study by the City and used to change the zoning for a particular area.
3
The Dallas City Code addresses compliance regulations for nonconforming uses. It provides that “any person who resides or owns real
property in the city may request that the board consider establishing a compliance date for a nonconforming use.” Id. § 51A-4.704(a)(1)(A). If,
after a hearing, the board determines that continued operation of the use will have an adverse effect on nearby properties, “it shall proceed to
establish a compliance date for the nonconforming use.” Id.
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were nonconforming prior to April 25, 2005, received a compliance date of April 26, 2008. Id.
Such compliance dates were deemed necessary “to achieve the desired urban scale development
and improve opportunity to maximize development potential.”
Despite Hinga’s opposition to the amended ordinance, he was required to bring his
property into compliance by April 26, 2010. While other automotive businesses left the area,
Hinga continued to run his business through his initial compliance period. In April 2010, he
requested a new compliance date. The Board of Adjustment gave him a new compliance date of
April 13, 2013 “for the nonconforming vehicle or engine repair or maintenance shop currently
being operated on the property.”
In August 2013, before the expiration of the extended compliance date, Hinga filed a
zoning change application with the City to create a specific use permit (SUP) in which vehicle or
engine repair or maintenance use would be permitted and to obtain a SUP for a ten-year period.
The City passed ordinance no. 29099, which created a subarea within PD 298, allowing a SUP for
vehicle or engine repair or maintenance use and passed ordinance no. 29101 granting Hinga a SUP
for a two-year period, ending on August 14, 2015.
Hinga’s SUP expired, but he submitted an application for a new SUP to extend the property
use for three years with eligibility for one automatic two-year renewal. A senior planner with the
City told Hinga that because his request was modest and he received approval two years ago, she
would recommend approval of the new SUP.
On February 4, 2016, the City Plan Commission held a public hearing to consider Hinga’s
SUP. During the hearing, Hinga’s attorney recognized that “10 or 20 years from now, Hinga’s
Automotive probably wouldn’t fit into the way Ross Avenue is going to look. But right now it fits
in just fine, and it’s actually a benefit.” Hinga, along with other citizens in support of him, also
spoke during the hearing. Hinga’s goal was to continue his business long enough for the property
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value to increase so he could sell to a developer and recoup his investment rather than “los[e] his
retirement savings if he just sells for whatever he can get now.” Linda Collins, president of the
Bryan Place Neighborhood Association spoke in opposition. She emphasized that many other auto
repair shops had complied with the ordinance and moved locations. Further, Hinga “was told quite
clearly that there would be no more extensions” after 2013. She also reminded the City Plan
Commission that Hinga already had a new location, with his sign hanging and a phone number
listed, so denying his request would not severely impact him. She encouraged the City to finally
enforce the zoning codes that had been in place for years and “make the transformation happen”
on Ross Avenue. Many other individuals from the neighborhood also spoke in opposition to any
further SUP for the property.
One commissioner reminded Hinga of the hearing two years earlier when the City first
approved the SUP. During that hearing, Hinga said he only needed two years to either sell,
relocate, or retire. Hinga recalled making the statement, but argued nothing had changed in the
two years and he was still unable to sell his property for a “fair” offer. However, he admitted he
never listed the property for sale but based his opinion on what real estate agents told him.
At the conclusion of the hearing, the City Plan Commission recommended denial of
Hinga’s SUP. He then appealed the denial of the recommendation to the City Council for further
consideration. City Council held another public hearing on April 13, 2016 and denied Hinga’s
appeal.
After August 15, 2015, Hinga continued to run his business without a SUP in violation of
PD 298. The City sued Hinga on July 5, 2016 for a temporary and permanent injunction to stop
him from operating his auto repair business in violation of PD 298. It sought fines of $1,000 a day
for each day that Hinga operated the auto shop after his SUP expired. Hinga answered,
counterclaimed, and filed third-party claims against the City, the Mayor, and City Council
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members alleging their efforts to enforce the ordinances violated article I, sections 16, 17, and 19
of the Texas Constitution. The City, Mayor, and Council members filed a plea to the jurisdiction
seeking dismissal of Hinga’s counterclaims and third-party claims. After a hearing, the trial court
granted the plea to the jurisdiction. This accelerated interlocutory appeal followed.
Plea to the Jurisdiction Standard of Review
A plea to the jurisdiction is a dilatory plea in which a party challenges a court’s authority
to determine the subject matter of the action. Rawlings v. Gonzalez, 407 S.W.3d 420, 425 (Tex.
App.—Dallas 2013, no pet.). The existence of subject matter jurisdiction is a question of law;
therefore, we review de novo the trial court’s ruling on a plea to the jurisdiction. Id.A governmental entity’s plea to the jurisdiction can be based on pleadings or evidence.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When, as here, a
jurisdictional challenge implicates the merits of the plaintiff’s cause of action, we consider the
relevant evidence submitted by the parties to determine jurisdictional issues raised. Id. at 227.
The standard of review for a jurisdictional plea based on evidence “generally mirrors that
of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Id. at 228; City of Dallas
v. Prado, 373 S.W.3d 848, 852 (Tex. App.—Dallas 2012, no pet.). We take as true all evidence
favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the
nonmovant’s favor. Prado, 373 S.W.3d at 853. The burden is on the City, as movant, to meet the
standard of proof. Id. If the evidence creates a fact question regarding the jurisdictional issue,
then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by
the factfinder. Id. However, if the relevant evidence is undisputed or fails to raise a fact question
on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id.In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for
lawsuits against the State unless the State consents to suit. Miranda, 133 S.W.3d at 224. This
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governmental immunity likewise protects a city (referred to as governmental immunity) when it
exercises discretionary powers of a public nature involving judicial or legislative functions. City
of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex. 1997); Tex. Dep’t of Aging & Disability Servs. v.
Beltran, 350 S.W.3d 410, 413 n.2 (Tex. App.—El Paso 2011, pet. denied) (although the terms are
often used interchangeably, sovereign immunity refers to the State's immunity, while
governmental immunity from liability protects political subdivisions of the State such as
counties, cities, and school districts). Building codes and inspections and zoning, planning, and
plat approval are governmental functions. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.0215(28), (29) (West 2011).
To establish subject matter jurisdiction against the City, Hinga’s pleadings must establish
the City’s consent to suit. Mere reference to a legislative waiver does not establish consent to be
sued and is not enough to confer jurisdiction on the trial court. Tex. Dep’t of Criminal Justice v.
Miller, 51 S.W.3d 583, 587 (Tex. 2001).
Here, Hinga brought his claims under the Uniform Declaratory Judgment Act (UDJA).
While the UDJA waives governmental immunity for certain claims, it is not a general waiver of
immunity. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). The
UDJA “does not enlarge the trial court’s jurisdiction, but is ‘merely a procedural device for
deciding cases already within a court’s jurisdiction.’” Id. Thus, governmental immunity will bar
an otherwise proper UDJA claim that has the effect of establishing a right to relief against the State
for which the legislature has not waived governmental immunity. Id. Therefore, even when
asserting a claim under the UDJA, the claimant must plead a viable constitutional claim. City of
Houston v. Downstream Envtl., L.L.C., 444 S.W.3d 24, 38 (Tex. App.—Houston [1st Dist.] 2014,
pet. denied).
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Article I, § 16 of the Texas Constitution
In his first issue, Hinga argues the City’s ordinances, as applied to him, are
unconstitutionally retroactive because “they destroy [his] settled expectations and attach new
disabilities to his business, which [were] legal when he opened it in 1986 but became illegal years
later.” The City responds Hinga did not and cannot allege a viable claim that the zoning is a
retroactive law; therefore, the trial court correctly granted the City’s plea to the jurisdiction.
Article I, section 16 of the Texas Constitution prohibits the creation of retroactive laws.
TEX. CONST., art. I, § 16. A retroactive law is one that extends to matters that occurred in the past.
Tenet Hosp. Ltd. v. Rivera, 445 S.W.3d 698, 707 (Tex. 2014).
Hinga argues ordinances passed by the City in April 2005 and August 2013 are retroactive
because they attach new legal consequences to events completed before their enactment—
specifically, that when he obtained his permits and substantially invested in the property, he had
no notice the City would at some point make his use illegal, and it was reasonable for him to expect
that the City would continue to allow him to use the property accordingly. Thus, Hinga is not
challenging the City’s decision to make his property nonconforming, but rather is challenging the
City’s decision to force him to stop operating an auto repair shop on Ross Avenue.
A statute does not operate retrospectively merely because it is applied in a case arising
from conduct antedating the statute’s enactment or “upsets expectations based in prior law.”
Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994). Further, “There are strong policy
arguments and a demonstrable public need for the fair and reasonable termination of
nonconforming property uses . . . .” City of Univ. Park v. Benners, 485 S.W.2d 773, 778 (Tex.
1972), abrogated on other grounds by Bd. of Adjustment of City of San Antonio v. Wende, 92
S.W.3d 424 (Tex. 2002).
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Here, when the City amended PD 298 by ordinance no. 25960 in April 2005, it established
deadlines for nonconforming use property to comply and allowed the owner of a nonconforming
use to appeal to the board of adjustment for a later compliance date if the owner would not be able
to recover his investment in the use by the designated conformance date. Dallas City Code § 51P-
298.108. The ordinance provided that it “shall take effect immediately from and after its passage
and publication.” The ordinance did not change any use in the property thereby attaching a new
legal consequence or upset any expectations based in prior law. Rather, it prospectively altered a
property owner’s future use of the property by setting a deadline by which to come into
compliance.
The same is true of the ordinances creating a SUP for Hinga’s business and establishing
the deadline for when it expired. The ordinances took “effect immediately from and after its
passage and publication.” The ordinances prospectively altered Hinga’s future use of the property
for a known length of time.
In Landgraf, the Court explained that “familiar considerations of fair notice, reasonable
reliance, and settled expectations offer sound guidance” when determining whether a statue is
retroactive. 511 U.S. at 270. The ordinances at issue provided Hinga with fair notice that both his
nonconforming use and SUP would expire at a definitive future date. Moreover, “Property owners
do not acquire a constitutionally protected vested right in property uses once commenced or in
zoning classifications once made.” Benners, 485 S.W.2d at 778. As such, Hinga’s reliance and
expectation that the City would allow him to continue using the property as a nonconforming use
or under a SUP in perpetuity was not reasonable. We agree with the City that under these facts,
the ordinances at issue are not retroactive.
However, even if we concluded the ordinances were retroactive, not all retroactive laws
are unconstitutional. Tenet Hosp. Ltd., 445 S.W.3d at 707; see also Robinson v. Crown Cork &
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Seal Co., 335 S.W.3d 126, 139 (Tex. 2010) (mere retroactivity is not sufficient to invalidate a
statute or ordinance).
The presumption against retroactivity has two fundamental objectives identified by the
Supreme Court in Landgraf. 511 U.S. at 265. First, it protects a person’s reasonable, settled
expectations. Id. Second, it protects against abuses of legislative power. Id. at 266. “Still, not all
retroactive legislation is bad.” Robinson, 335 S.W.3d at 139 (discussing Landgraf).
The Texas Supreme Court recognized in Robinson that “[n]o bright-line test for
unconstitutional retroactivity is possible.” Id. at 145. Rather, in determining whether a statute or
ordinance violates the prohibition against retroactive laws, courts must consider three factors in
light of the prohibitions dual objectives: (1) the nature and strength of the public interest served by
the statute as evidenced by the legislature’s findings; (2) the nature of the prior right impaired by
the statute; and (3) the extent of the impairment. Id. The perceived public advantage of a
retroactive law is not simply to be balanced against its relatively small impact on private interest
or the prohibition would be deprived of most its force. Id. at 146. Accordingly, there must be a
compelling public interest to overcome the heavy presumption against retroactive laws. Id.
However, “courts must be mindful that statutes are not to be set aside lightly.” Id.
Zoning is an exercise of a municipality’s legislative powers. City of Pharr v. Tippitt, 616
S.W.2d 173, 175 (Tex. 1981). A municipal ordinance is presumed to be valid, and the burden of
showing its invalidity rests on the party attacking it. Safe Water Found. of Tex. v. City of Houston,
661 S.W.2d 190, 192 (Tex. App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.); see also Patterson
v. City of Bellmead, No. 10-12-00357-CV, 2013 WL 1188929, at *6 (Tex. App.—Waco Mar. 21,
2013, pet. denied) (mem. op.).
We begin by considering the nature and extent of the prior right impaired by the ordinance.
See Robinson, 335 S.W.3d at 145–49. The law is clear that an individual has no protected property
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interest in the continued use of his property for a particular purpose just because such use has
commenced or a zoning classification has been made. Benners, 485 S.W.2d at 778.
There are strong policy arguments and a demonstrable public need
for the fair and reasonable termination of nonconforming property
uses which most often do not disappear but tend to thrive in
monopolistic positions in the community. We are in accord with the
principle that municipal zoning ordinances requiring the termination
of nonconforming uses under reasonable conditions are within the
scope of municipal police power; and that property owners do not
acquire a constitutionally protected vested right in property uses
once commenced or in zoning classifications once made. Otherwise,
a lawful exercise of the police power by the governing body of the
City would be precluded.
Id.
Here, any interest that Hinga had in the use of his property is not “firmly vested.” See, e.g.,
Tex. Ed. Agency v. Am. YouthWorks, Inc., 496 S.W.3d 244, 263 (Tex. App.—Austin, 2016) (any
interest charter school might have in its charter is “far from” firmly vested given its subject to
numerous conditions and discretionary control by the State), aff’d, No. 16-0519, 2018 WL
1975025 (Tex. Apr. 27, 2018); City of Beaumont v. Starvin Marvin’s Bar & Grill, L.L.C., No. 09-
11-00229-CV, 2011 WL 6748506, at *4 (Tex. App.—Beaumont, Dec. 22, 2011, pet. denied) (use
of a leased property as a restaurant with live outdoor music is not a constitutionally protected
vested property right); City of La Marque v. Braskey, 216 S.W.3d 861, 864 (Tex. App.—Houston
[1st Dist.] 2007, pet. denied) (concluding use of facility for cats, in violation of city ordinance,
was not a constitutionally protected vested right because it concerned only the way property was
used, which is not an absolute right). But see Robinson, 335 S.W.3d at 148 (concluding “mature
tort” based on mesothelioma was firmly vested and retroactive law should not extinguish it). Hinga
concedes that prior to his purchase of the property the existing zoning standard rendered his use
non-conforming. Despite Hinga’s arguments to the contrary, it was not reasonable for him to
“expect that because the City permitted auto repair shops on Ross Avenue” when he originally
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obtained his permits, “it would continue to do so in the future.” To agree with Hinga would mean
the City could never decline further exemptions from nonconforming uses simply because of
having issued a prior permit or permits to allow time for the owner to comply or relocate.
We acknowledge that based on language in Robinson a “vested right” may no longer be
required. Id. (“What constitutes an impairment of vested rights is too much in the eye of the
beholder to serve as a test for unconstitutional retroactivity.”). However, the supreme court has
not overruled Benners, and courts have continued to cite it for the proposition that an individual
has no protected property interest in the continued use of his property for a particular purpose.
See, e.g., Sumner v. Bd. of Adjustments of Spring Valley Village, TX, Civil Action No. H-12-2551,
2013 WL 1336604, at *6 (S.D.Tex. 2013); Wild Rose Rescue Ranch v. City of Whitehouse, 373
S.W.3d 211, 216 (Tex. App.—Tyler 2012, no pet.). As Hinga correctly recognizes, we are bound
to follow supreme court precedent. See Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 284
(Tex. App.—Dallas 2012, no pet.).4
As the court stated in Robinson, “the constitutional prohibition against retroactive laws
does not insulate every vested right from impairment, nor does it give way to every reasonable
exercise of the Legislature’s police power; it protects settled expectations that rules are to govern
the play and not simply the score, and prevents the abuses of legislative power that arise when
individuals or groups are singled out for special reward or punishment.” 335 S.W.3d at 145.
When Hinga purchased the property he knew “the rules” governing “the play,” meaning
he knew operating an automotive repair shop on Ross Avenue was a nonconforming use. It was
at his own risk that he continued investing money in the automotive business despite knowing his
use was nonconforming and the City could establish a compliance date at any time. Dallas City
4
In his brief, Hinga argued Benners was wrongly decided and contradicts the majority view of courts in this country. He presented the
argument “to preserve it for further appeals.”
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Code § 51A-4.704(a)(1)(A) (“The city council may request that the board of adjustment consider
establishing a compliance date for a nonconforming use.”). In fact, once the City amended PD
298 in 2005 and established deadlines for nonconforming use property to comply, Hinga took
advantage of his right to appeal and requested a later compliance date, which the City granted.
Between the nonconforming use extension and his SUP, the City granted Hinga an extended use
of his business through August 2015. When the City granted his SUP, his expectation to operate
his business continued for only two years. Thus, the City has not sought to single out Hinga for
any punishment. To the contrary, the City allowed him to run a business from 1991 through 2015
as either a nonconforming use or under a SUP; however, his use became illegal once his SUP
expired. See id. § 51A-704(a)(1)(E) (“If the board establishes a compliance date for a
nonconforming use, the use must cease operations on that date and it may not operate thereafter
unless it becomes a conforming use.”); § 51A-705(a)(4) (“The issuance of a SUP does not confer
any nonconforming rights. No use authorized by the issuance of a SUP may operate after the SUP
expires.”). More importantly, the City provided Hinga an extended time to try and recoup his
investment when it granted the SUP. Courts have long recognized that the impairment of a right
may be lessened when an ordinance affords a plaintiff a grace period to bring a claim or a
reasonable time to protect his investment. See Tenet Hosp. Ltd., 445 S.W.3d at 708; Tex. Water
Rights Comm’n v. Wright, 464 S.W.2d 642, 648 (Tex. 1971). The fact that Hinga did not believe
that he could get a fair price, despite never listing his property on the market, does not equate to
the City abusing its legislative power.
We next consider the nature and strength of the public interest element. The City conducted
the Bryan Area Study in 1988. The study identified eight goals in an effort to “encourage
redevelopment and commercial activity.” It recognized that Ross Avenue had the potential to be
a corridor “prime for economic development,” but the large number of automotive related
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businesses made such development difficult. In fact, the study discovered that 1/3 (approximately
forty-eight) of the businesses along Ross Avenue were automotive in nature. In light of the City’s
vision for this area, it enacted PD 298 and then determined seventeen years later “it is in the public
interest to amend” it to include mixed-use developments.
When the City recommended the amendment to PD 298 in 2005, it sent notices to 1248
property owners. Of those who received notices, eighty-one replied in favor of the amendment
and thirty-two were against it. The amendment ultimately allowed nonconforming use owners an
additional two years to come into compliance. It also allowed an owner to appeal for a later
compliance date if an owner could not recover his investment.
Throughout the process, the City held multiple hearings in which both Hinga and citizen
opponents voiced concerns prior to the City making a final determination in 2016 to deny Hinga
another SUP extension. By this time, most area businesses were in compliance with the ordinance.
In Robinson, the supreme court noted that the statute at issue was enacted solely for the
benefit of a single company to reduce its liability in asbestos litigation and, therefore, constituted
only a slight public interest. Robinson 335 S.W.3d at 150. By contrast, the ordinances in the
present case were not enacted to benefit a single entity but to improve the Bryan District Area for
the public interest of the City. See, e.g., Tenet Hosp. Ltd., 445 S.W.3d at 707 (concluding repose
statute was part of comprehensive overhaul of Texas medical malpractice law that served a
compelling public interest in considering retroactivity challenge rather than a single person). Thus,
the ordinance at issue here is distinguishable from the retroactive statute in Robinson.
Hinga further cites to several federal cases from other jurisdictions to support his position
that promoting aesthetics or physical appearance is not a compelling government interest. We are
not bound by such authority, and he has failed to cite to any Texas authority supporting his
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position. See City of Carrollton v. Singer, 232 S.W.3d 790, 797 fn.6 (Tex. App.—Fort Worth
2007, pet. denied).
Accordingly, the nature and strength of the public interest prong, as evidenced by the City’s
factual findings, supports the conclusion that the City’s ordinances do not violate retroactivity.
See, e.g., Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 57 (Tex. 2014) (considering
legislature’s findings to support enactment of statue).
Having considered the Robinson factors, the City’s ordinances are not unconstitutionally
retroactive as a matter of law. Because Hinga failed to plead a viable article I, section 16
constitutional claim under the UDJA, the trial court did not err in granting the City’s plea to the
jurisdiction. We overrule Hinga’s first issue.
Article I, § 19 of the Texas Constitution
In his second issue, Hinga argues the ordinances deprive him of due course of law pursuant
to article I, section 19 of the Texas Constitution. Specifically, he argues, “Ordinance No. 29099,
and any other ordinance, statute or rule, that prevents Defendants from operating a vehicle or
engine repair or maintenance facility at 3516 Ross Avenue, Dallas, Texas 75204 violate Article I,
§ 19 of the Texas Constitution as applied to Defendants.”
The Texas Constitution provides that “[n]o citizen of this State shall be deprived of life,
liberty, property, or privileges or immunities . . . except by due course of the law of the land.”
TEX. CONST., art. I, § 19; see also Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926,
929 (Tex. 1995) (acknowledging no meaningful distinction exists between the terms “due process”
and “due course of law”). Before any substantive due process rights attach, however, a party must
have a liberty or property interest that is entitled to constitutional protection. Klumb v. Houston
Mun. Emp. Pension Sys., 458 S.W.3d 1, 15 (Tex. 2015). A constitutionally protected right must
be a “vested right,” which is something “more than a mere expectancy based upon an anticipated
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continuance of an existing law.” Id. (citing City of Dallas v. Trammell, 101 S.W.2d 1009, 1014
(1937)). To the extent Hinga argues a right need not be vested in order to be protected by the
Texas Constitution, his assertion directly contradicts Klumb.
Property owners do not have a constitutionally protected, vested right to use property in
any way they choose without restriction and despite existing rules in force at the time they acquire
it. See, e.g., City of Beaumont, 2011 WL 6748506, at *4; Braskey, 216 S.W.3d at 864. As such,
he does not have a vested property right to maintain a business as a nonconforming use under the
City’s zoning ordinances. See City of Grapevine v. CBS Outdoor, Inc., No. 02-12-00040-CV,
2013 WL 5302713, at *8 (Tex. App.—Fort Worth Sept. 19, 2013, no pet.) (mem. op. on reh’g)
(“property owner does not acquire constitutionally protected right in a property use merely because
it began as a conforming use and is later rendered nonconforming”); Hang On III, Inc. v. Gregg
Cty., 893 S.W.2d 724, 725 (Tex. App.—Texarkana 1995, writ dism’d by agr.). Rather, Hinga’s
pleadings rely on a unilateral expectation that the City would allow him to use the property as an
auto repair business perpetually. See, e.g., Dallas Cty. v. Gonzales, 183 S.W.3d 94, 111 (Tex.
App.—Dallas 2006, pet. denied) (to have a protected property interest, one must have more than a
unilateral expectation of it). However, the city code allowed the city council or any person who
resides or owns real property in the City to request the board to consider establishing a compliance
date for a nonconforming use. As such, Hinga’s nonconforming use was subject to a potential
challenge at any time.
Hinga has failed to establish he has a vested property interest entitled to due process.
Having reached this conclusion, we need not consider whether the City’s ordinances were
rationally related to a legitimate government interest or when considered as whole, whether the
ordinances were so burdensome as to be oppressive. See TEX. R. APP. P. 47.1; Patel v. Tex. Dep’t
of Licensing & Regulation, 469 S.W.3d 69, 87 (Tex. 2015).
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Accordingly, Hinga has failed to plead a viable constitutional claim under article I, section
19 of the Texas Constitution waiving the City’s governmental immunity. Thus, the trial court did
not err by granting the City’s plea to the jurisdiction as to this claim. Hinga’s second issue is
overruled.
Article I, § 17 of the Texas Constitution
In his final issue, Hinga argues the City ordinances destroy his private property interests
for the benefit of private entities in violation of article I, section 17 of the Texas Constitution. The
State responds Hinga has not pleaded a valid takings claim or any violation of a vested property
right protected by article I, section 17.
Article I, section 17 of the Texas Constitution provides in relevant part:
(a) No person’s property shall be taken, damaged, or destroyed for
or applied to public use without adequate compensation being made,
unless by the consent of such person . . .
(b) In this section, “public use” does not include the taking of
property under Subsection (a) of this section for transfer to a private
entity for the primary purpose of economic development or
enhancement of tax revenues.
TEX. CONST., art. I, § 17. Hinga admits he is not making an inverse condemnation or regulatory
takings claim. Rather, he argues the 2009 amendments to the constitution, which added section
(b) prevents the government from destroying or depriving him of his right to use his property for
the benefit of private entities—in this case, for example, a Starbucks or Macaroni Grill, which fits
in more with the City’s “vision” for the Ross Avenue area. Stated differently, he argues any
governmental action that damages or destroys private property for the benefit of private entities is
specifically prohibited.
In support of his argument, Hinga cites Spann v. City of Dallas, 235 S.W. 513, 515 (Tex.
1921). In that case, the court stated, “Property in a thing consists not merely in its ownership and
possession, but in the unrestricted right of use, enjoyment, and disposal. . . . If the right of use be
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denied, the value of the property is annihilated and ownership is rendered a barren right.”
However, the court further acknowledged it is a right “that takes into account the equal rights of
others, for it is qualified by the obligation that the use of the property shall not be to the prejudice
of others.” Id. The rights of private property owners, of course, are not absolute and are subject
to restrictions such as zoning laws, as is the case here.
Hinga’s position appears to be that any restriction on his desired use of the property results
in unconstitutional damage or destruction to his property. That is simply not the case. As
explained above, Hinga has no vested property interest in the use of his property in violation of
existing zoning standards. See Benners, 485 S.W.2d at 778 (“Property owners do not acquire a
constitutionally protected vested right in property uses once commenced or in zoning
classifications once made.”); see also CBS Outdoor, Inc., 2013 WL 5302713, at *8 (same). A
person asserting a valid article I takings claim much show that he has a vested property interest.
See Cypress Forest Pub. Util. Dist. v. Kleinwood Mun. Util. Dist., 309 S.W.3d 667, 675 (Tex.
App.—Houston [14th Dist.] 2010, no pet.). Here, although the City’s ordinances limit the
particular use of Hinga’s property, the City has not destroyed or deprived him of any vested right
to make use of the property. Therefore, under the facts of this case, Hinga has failed to plead a
viable constitutional takings claim under article I, section 17 of the Texas Constitution.
Accordingly, the trial court properly granted the City’s plea to the jurisdiction. We overrule
Hinga’s third issue.
Dismissal of Mayor and City Council Members
Hinga brought suit against the City, the Mayor, and City council members. The City argues
Hinga has waived any challenges to the trial court’s dismissal of his claims against the Mayor and
City council members because he failed to sufficiently brief any arguments against these parties.
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Throughout Hinga’s pleadings, he defined the City to include the third-party defendants,
which included the Mayor and each individual council member in their official capacities. A
government employee has the same immunity from suit against him in his official capacity as his
employer, unless he has acted ultra vires. See Univ. of Tex. Health Science Ctr. at San Antonio v.
Bailey, 332 S.W.3d 395, 401 (Tex. 2011). Here, Hinga has not pleaded any ultra vires facts against
the Mayor or City council members. Rather, his arguments against the City apply to the other
third-party defendants. Accordingly, our conclusion that the trial court properly granted the City’s
plea to the jurisdiction likewise extends to the Mayor and City council members.
Conclusion
Hinga failed to plead any viable constitutional claims in violation of articles 16, 17, or 19
of the Texas Constitution. Therefore, the trial court did not have subject matter jurisdiction over
his claims and properly granted the City’s plea to the jurisdiction.
The order of the trial court is affirmed.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
170879F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
HINGA MBOGO, HINGA’S On Appeal from the 68th Judicial District
AUTOMOTIVE CO., AND 3516 ROSS Court, Dallas County, Texas
AVENUE, DALLAS, TEXAS, Appellants Trial Court Cause No. DC-16-07983.
Opinion delivered by Justice Bridges.
No. 05-17-00879-CV V. Justices Myers and Schenck participating.
CITY OF DALLAS, MICHAEL S.
RAWLINGS, in his official Capacity as
Mayor of the City of Dallas, Texas; SCOTT
GRIGGS, in his official capacity as
City Council Member; ADAM
MEDRANO, in his official capacity as City
Council Member; CASEY THOMAS, II, in
his official capacity as City Council
Member; CAROLYN KING ARNOLD, in
her official capacity as City Council
Member; RICKEY D. CALLAHAN in his
official capacity as City Council Member;
MONICA R. ALONZO, in her official
capacity as City Council Member;
TIFFINNI A. YOUNG, in her official
capacity as City Council Member; ERIK
WILSON, in his official capacity as City
Council Member; MARK CLAYTON, in
his official capacity as City Council
Member; B. ADAM McGOUGH, in his
official capacity as City Council Member;
LEE M. KLEINMAN, in his official
capacity as City Council Member; SANDY
GREYSON, in her official capacity as City
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Council Member; JENNIFER S. GATES,
in her official capacity as City Council
Member; PHILLIP T. KINGSTON, in his
official capacity as City Council Member,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees CITY OF DALLAS, MICHAEL S. RAWLINGS, in his
official capacity as Mayor of the City of Dallas, Texas; SCOTT GRIGGS, in his official capacity
as City Council Member; ADAM MEDRANO, in his official capacity as City Council Member;
CASEY THOMAS, II, in his official capacity as City Council Member; CAROLYN KING
ARNOLD, in her official capacity as City Council Member; RICKEY D. CALLAHAN in his
official capacity as City Council Member; MONICA R. ALONZO, in her official capacity as
City Council Member; TIFFINNI A. YOUNG, in her official capacity as City Council Member;
ERIK WILSON, in his official capacity as City Council Member; MARK CLAYTON, in his
official capacity as City Council Member; B. ADAM McGOUGH, in his official capacity as City
Council Member; LEE M. KLEINMAN, in his official capacity as City Council Member;
SANDY GREYSON, in her official capacity as City Council Member; JENNIFER S. GATES, in
her official capacity as City Council Member; PHILLIP T. KINGSTON, in his official capacity
as City Council Member, recover their costs of this appeal from appellants HINGA MBOGO,
HINGA’S AUTOMOTIVE CO., AND 3516 ROSS AVENUE, DALLAS, TEXAS.
Judgment entered June 29, 2018.
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