Garrett Operators, Inc. v. City of Houston , 461 S.W.3d 585 ( 2015 )

Opinion issued January 22, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00767-CV
———————————
GARRETT OPERATORS, INC., Appellant
V.
CITY OF HOUSTON, Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Case No. 2012-20088
OPINION
Appellant, Garrett Operators, Inc. [“Garrett”], filed a declaratory judgment
action against the City of Houston [“the City”] regarding the application and
interpretation of the City’s sign code as it pertains to a billboard Garrett owns and
operates. On appeal, Garrett contends the trial court erred in granting the City’s
motion for summary judgment and denying its own motion.
BACKGROUND
The underlying case was previously on appeal to this Court in connection
with a plea to the jurisdiction filed by the City. See Garrett Operators, Inc. v. City
of Houston, 360 S.W.3d 36 (Tex. App.—Houston [1st Dist.] 2011, pet. denied)
(“Garrett I”). The relevant facts set forth in that opinion provided as follows:
Garrett Operators holds a lease on a small parcel of land located in
Houston, Texas. The only significant structure on this parcel of land is
an advertising billboard. George Thomas Cox is the sole owner of
Garrett Operators.
Cox met with Susan Luycx, division manager of the Houston Sign
Administration, in January 2008 to discuss Cox’s plans to install an
LED display on his billboard. According to Cox’s affidavit, Luycx
informed Cox that it was “illegal in the City of Houston for sign
owners to use an LED display on a sign.” Cox told Luycx that the
Sign Code did not mention LED lighting, to which Luycx responded
that “we are likely to change the sign code.”
Subsequently, Garrett Operators’ counsel sent a letter to Luycx
describing the proposed installation and asserting that the Sign Code
does not require a permit for the installation. Luycx responded, stating
that “although your client has yet to formalize his intentions with this
office, and based solely on the information currently available to us,
your client’s proposal contravenes and would be in direct violation of
the City’s Sign Code.”
On July 12, 2008, Garrett Operators attempted to install the LED
display on his billboard. Before work began, however, Luycx
appeared and issued a stop order on the work. The basis given for the
stop order was “No permits on file. No permits on site. Permits are
2
required to change structure of sign. (L.E.D. boards were being
added.)”
On December 5, 2008, Garrett Operators and Cox filed suit against
the City of Houston in a Harris County civil court at law. They
asserted claims for inverse condemnation, declaratory judgment,
violation of section 1983 of title 42 of the United States Code, and
violation of their state constitutional due course of law rights. On
December 10, 2008, the City of Houston enacted an ordinance that
amended the Houston Sign Code to explicitly prohibit “off-premise
electronic signs,” a category into which Garrett Operators’ sign falls.
Plaintiffs subsequently amended their petition, including in their
declaratory judgment action a claim that the 2008 amendments to the
Sign Code did not apply to them.
The City of Houston filed a plea to the jurisdiction arguing, among
other things, the inverse condemnation claim was not ripe and that the
other claims were outside the legislatively prescribed subject-matter
jurisdiction of the court. The trial court granted the plea to the
jurisdiction on each of Plaintiffs’ claims, dismissing the suit.
Id. at 39–40.
Garrett appealed. On May 12, 2011, this Court determined that Garrett’s inverse
condemnation claim was not ripe because Garrett had not obtained a final decision
from the Sign Administration as to whether, upon proper application for a permit,
an LED display could be installed on its billboard. Garrett I, 360 S.W.3d at 43.
Because Garrett’s inverse condemnation claim was dismissed for want of
jurisdiction, its remaining claims could not be “inherently intertwined” with the
dismissed claim and were outside the jurisdictional limits of the county court. Id.
at 44. We made “no determination in this holding on Garrett Operators’ claim in
its declaratory judgment action that it was not required to obtain a permit.” Id. at
3
43 n.1. After this Court’s opinion issued, Garrett, in June 2011, finally applied for
a permit to change its tri-vision billboard system to an LED system, which it noted
was subject to and without waiving its position that no permit was required.
After the Texas Supreme Court denied petition for review in the county
court case, Garrett filed the present case in district court on April 4, 2012. It its
petition, Garrett claimed that any application of the 2008 amendments to him was a
violation of the Texas Constitution’s prohibition against retroactive laws under
Article I, section 16. Garrett also sought declarations that: (1) “the amendments to
the Sign Ordinance that were enacted after his claims had accrued and were
pending are invalid and unconstitutional as applied to Garrett[;]” (2) the pre-
amendment Sign code (a) did not prohibit LED lighting and (b) did not require a
permit from the Sign Administration to install LED lighting; and (3) section
245.002 of the Local Government Code also prohibited the City from applying the
amendments to the sign code retroactively.
The City filed a motion for summary judgment contending, among other
things, (1) that Garrett’s constitutional claims were barred by limitations, (2) that
the pre-2008 Sign code required a permit, for which Garrett did not apply until
after filing suit, and that absent a request for a permit Garrett had no vested right to
install its LED technology, and (3) Garrett had no vested right under the Local
Government Code to prevent application of the 2008 amendments.
4
Garrett filed its own motion for summary judgment, seeking declarations (1)
that the a 2008 amendments were unconstitutional as applied to it, (2) that the pre-
amendment sign code permitted LED lights and their installation did not require a
permit, and (3) that section 245.002 of the Local Government Code required the
City to apply pre-amendment provisions to Garrett’s request to modify its
billboard.
The trial court, without giving reasons, granted the City’s motion for
summary judgment and denied Garrett’s motion for summary judgment. This
appeal followed.
PROPRIETY OF SUMMARY JUDGMENT FOR CITY AND DENIAL OF
GARRETT’S SUMMARY JUDGMENT
In its appeal, Garrett presents the following issues:
1. Did the trial court err in granting the City’s Motion on the ground
that Garrett’s claim under article I, section 16 of the Constitution
was barred by the statute of limitations?
2. Did the trial court err in denying Garrett’s Motion on its request for
a declaration that application of the amended code to the upgrade
to LEDs violated article I, section 16 of the Constitution?
3. Did the trial court err in granting the City’s Motion and denying
Garrett’s Motion regarding construction of the 2008 Sign code?
4. Did the trial court err in granting the City’s Motion and denying
Garrett’s Motion on Garrett’s claim that TEX. LOC. GOV’T CODE
ANN. § 245.002 required the City to apply the 2008 Code to the
upgrade?
5
Standard of Review
We review summary judgments de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A movant is entitled to traditional
summary judgment if (1) there are no genuine issues as to any material fact and (2)
the moving party is entitled to judgment as a matter of law. TEX. R. CIV. P.
166a(c). To obtain traditional summary judgment on an opposing party’s claims,
the movant must conclusively negate at least one element of each of the claims or
conclusively establish each element of an affirmative defense. See Centeq Realty,
Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). On appeal,
when both parties move for summary judgment and the trial court grants one
motion and denies the other, the reviewing court should review the summary-
judgment evidence presented by both sides and determine all questions presented
and render the judgment the trial court should have rendered. FM Props. Operating
Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). If we determine that a fact
issue precludes summary judgment for either party, we remand the cause for trial.
See Univ. of Tex. Health Sci. Ctr. at Houston v. Big Train Carpet of El Campo,
Inc., 739 S.W.2d 792, 792 (Tex. 1987).
Limitations
In its petition, Garrett sought a declaration “that the amendments to the Sign
Ordinance that were enacted after [its] claims had accrued and were pending are
6
invalid and unconstitutional as applied to Garrett because such application violates
article I, section 16 of the Texas Constitution[,]”1 which prohibits the enactment of
retroactive laws.
The City moved for summary judgment on this claim, arguing that it was
barred by limitations. The City argued that Garrett’s “as-applied” challenge to the
constitutionality of applying the amended statues was subject to the three-year
limitations period set forth in the Local Government Code regarding municipal
ordinances,2 and that Garrett’s lawsuit, which was filed over three months after the
three-year limitation period had expired, was untimely. The City also argued that
the tolling provision found in section 16.064 of the Civil Practices and Remedies
Code, which provides additional time for refiling a suit that is dismissed for lack of
jurisdiction, was not applicable.
The tolling provision, section 16.064, provides:
(a) The period between the date of filing an action in a trial court and
the date of a second filing of the same action in a different court
1
“No bill of attainder, ex post facto law, retroactive law, or any law impairing the
obligation of contracts, shall be made.” TEX. CONST. art. I, § 16.
2
(a) A governmental act or proceeding of a municipality is conclusively presumed,
as of the date it occurred, to be valid and to have occurred in accordance with all
applicable statues and ordinances if:
(1) the third anniversary of the effective date of the act or proceeding has
expired, and
(2) a lawsuit to annul or invalidate the act or proceeding has not been filed
on or before that third anniversary.
TEX. LOC. GOV’T CODE ANN. § 51.003(a) (Vernon 2008).
7
suspends the running of the applicable statute of limitations for the
period if:
(1) because of lack of jurisdiction in the trial court where the
action was first filed, the action is dismissed or the judgment
is set aside or annulled in a direct proceeding; and
(2) not later than the 60th day after the date the dismissal or
other disposition becomes final, the action is commenced in
a court of proper jurisdiction.
(b) This section does not apply if the adverse party has shown in
abatement that the first filing was made with intentional disregard
of proper jurisdiction.
TEX. CIV. PRAC. & REM. CODE ANN. § 16.064 (Vernon 2008).
On appeal, the City contends that the tolling provision does not apply for
three reasons: (1) because Garrett did not file suit within 60 days of the final
disposition of the county court suit; (2) because Garrett’s request for declaratory
judgment regarding its constitutional claim was not a second filing “of the same
action in a different court;” and (3) because Garrett “intentionally disregarded” the
proper jurisdiction of the county court.
Refiling within 60 days of dismissal
Regarding the first issue, the City did not argue in its motion for summary
judgment that the tolling statute was inapplicable because of Garrett’s failing to
file suit within 60 days of the final disposition of the county court suit. We cannot
affirm a summary judgment on any ground not raised in the motion. See Stiles v.
8
Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993) (“[A] summary judgment
cannot be affirmed on grounds not expressly set out in the motion or response.”).
Same Action
The City also argued, both in its summary judgment and on appeal, that the
tolling statute was inapplicable because the present suit was not the “same action”
as the suit filed in county court because it added the constitutional claims, which
were not in the county court lawsuit.
This Court, however, has considered and rejected this argument. In Winston
v. Am. Med. Int’l, Inc., 930 S.W.2d 945, 955 (Tex. App.—Houston [1st Dist.]
1996, writ denied), the defendant argued that “the only causes of action that
[could] be saved [by the statute] are the ones asserted in [the previous suit],” and
that “the ‘same action’ language of 16.064(a) limits what plaintiffs can file in [the
second suit] to exactly what was filed in [the previous suit].” Id. This Court held
that section 16.064 should be construed with section 16.068, which permits
amended or supplemental pleading to relate back to the date of the original filing,
“so as to achieve the clear purpose of the statutes, which is to toll limitations for a
certain period when a case is dismissed for lack of jurisdiction and to allow adding
to a petition additional theories of liability or defenses after the lawsuit has been
filed if those new theories or defenses are not wholly based on a new, distinct, or
different transaction or occurrence.” Id. Here, Garrett’s new constitutional claims
9
are not based on a new, distinct, or different transaction or occurrence” because all
of the claims arise out of its efforts to modify the billboard and the City’s efforts to
keep it from doing so.
The City argues that “[n]o other case has followed Winston on this point.”
We note, however, Winston has not been overruled by this Court, or distinguished
by another Court on these grounds, and we decline to do so now.
Intentional Disregard of County Court Jurisdiction
The City also argued at trial and on appeal that section 16.064 did not apply
because Garrett “intentionally disregarded the proper jurisdiction of the county
court.” Specifically, the City argues that, “Garrett sought damages for those claims
of $5 million and $69 million, respectively, ‘well outside the county court’s
[$100,000] jurisdictional limits.’”
When, as here, an adverse party has moved for relief under the “intentional
disregard” provision, the nonmovant must show that it did not intentionally
disregard proper jurisdiction when filing the case. In re United Servs. Auto. Ass’n,
307 S.W.3d 299, 313 (Tex. 2010). Because the non-movant has this information,
he bears the burden of producing it. Id. The plaintiff must present some evidence
on the issue, similar to that imposed on a non-movant who receives a no-evidence
summary judgment. See Brown v. Shores, 77 S.W.3d 884, 889 (Tex. 2002)
(Brister, J., concurring) (holding that when defendant moves for summary
10
judgment based on lack of plaintiff’s diligence in obtaining service of process,
plaintiff must present some evidence to explain delay, thereby shifting burden back
to the defendant to defeat as matter of law). If the plaintiff presents some
evidence, the burden shifts back to defendant to show why that explanation is
insufficient as a matter of law. Id.
The City’s motion for summary judgment argued that limitations applied,
and the tolling statute did not, because Garrett intentionally disregarded the proper
jurisdiction of the county court by including claims that exceeded the jurisdictional
amount in controversy allowed by that court. Thus, we examine the summary
judgment record to determine whether Garrett presented some evidence on the
issue of intentional disregard.
In its response to the City’s motion for summary judgment, Garrett showed
that its constitutional claim, with its damages in excess of the jurisdictional
maximum, was included in the county court case because it was “inherently
intertwined” with its inverse condemnation claim, a claim over which the Harris
County Civil Court at Law has exclusive jurisdiction. See Occidental Chem.
Corp., v. ETC NGL Transport, LLC., 425 S.W.3d 354, 360 (Tex. App.—Houston
[1st Dist.] 2011, pet. dism’d) (stating legislature intended to confer exclusive
jurisdiction over statutory and inverse condemnation proceedings involving
damages for taking of property); TEX. GOV’T CODE ANN. § 25.1032(c) (Vernon
11
Supp. 2014). Garrett, relying on Taub v. Aquila Sw. Pipeline Corp., 93 S.W.3d
451 (Tex. App.—Houston [14th Dist.] 2002, no pet.), added his declaratory
judgment claims to his inverse condemnation claims in county court. In Taub, the
court stated:
In summary, the history of [the government code section granting
jurisdiction to county courts in Harris County] indicates an intent to
direct more cases to the Harris County Civil Courts at Law, thereby
alleviating the backlog in the district courts. Consistent with this
intent, we conclude the Harris County Civil Courts at Law have
jurisdiction, but not exclusive jurisdiction, over a landowner’s
claims, regardless of the amount in controversy, when those claims
are inherently intertwined in an eminent domain proceeding. Thus,
requiring all eminent domain proceedings to be heard in the Harris
County Civil Courts at Law need not result in separate litigation of the
condemnor’s and the property owner’s claims.
****
We hold a county civil court at law in Harris County has exclusive
jurisdiction over Aquila’s eminent domain proceedings. We further
hold a county civil court at law has jurisdiction to hear trespass-
related claims such as those raised by Taub in the present case,
regardless of the amount in controversy, but its jurisdiction does not
preclude the district court from hearing such claims.
93 S.W.3d at 458, 464.
Having shown in its response a reason for Garrett’s inclusion of the claims
appended to its inverse condemnation claim, the burden is thus on the City to
negate that reason as a matter of law. The City, citing In re United Services,
argues that “while the tolling statute protects plaintiffs who mistakenly file suit in a
forum that lacks jurisdiction, it does not apply to a strategic decision to seek relief
12
from such a court—which is what happened here.” See In re United Servs., 307
S.W.3d at 313.
In the case of In re United Services, the plaintiff, Brite, sued his employer
for discrimination in the county court at law. Id. at 304. Brite asserted in his
petition that his damages exceeded the court’s statutory minimum, but he did not
plead that his damages were below the statutory maximum. Id. at 305. His
employer filed a plea to the jurisdiction, contending that his damage claims
exceeded the court’s statutory maximum. Id. Brite amended his petition to seek
$1.6 million in damages, and then was awarded damages in excess of $650,000.
Id. The supreme court reversed the county court’s judgment because the amount in
controversy at the time Brite filed suit was above the statutory maximum of the
county court. Id. Brite then refiled his suit in district court, relying on the tolling
statute in section 16.064. Id. Noting that Brite’s county court petition did not
allege that the damages sought were within the jurisdiction limits of the court, and
that Brite had never contended that he was unaware of or confused about the
county court’s jurisdictional limits, the supreme court concluded that Brite’s
county court petition was filed with “intentional disregard” for the county court’s
jurisdiction. Id. at 312.
The present case, while quite similar to In re United Services, has one
important distinguishing feature—a claim for inverse condemnation, which had to
13
be filed in the county court at law. The City contends, nonetheless, that Garrett
cannot rely on Taub for appending its declaratory claims to its condemnation claim
because Taub is dicta. Regardless of whether Taub is dicta, it is certainly some
authority from the appellate court in which the county court lies supporting
Garrett’s belief that its declaratory claims could be brought in county court along
with its inverse condemnation claim.
The City also argues that “Garrett argues only that its request for declaratory
relief was ‘inherently intertwined’ with its ‘takings’ claim, the same unsuccessful
argument it raised in Garrett I.” The City, however, misinterprets this Court’s
holding in Garrett I. This Court did not hold that claims exceeding the
jurisdictional limit of the county court could not be appended to a related inverse
condemnation claim. Instead, we held only that Garrett’s inverse condemnation
claim was not ripe at that time. 360 S.W.3d at 43. We went on to hold that
“because the trial court properly dismissed Garrett Operators’ inverse
condemnation claim for lack of subject-matter jurisdiction, the county court at
law’s jurisdiction could not be invoked over the remaining claims by being
‘inherently intertwined’ with the inverse condemnation claim.” Id. at 44.
However, until the county court dismissed the inverse condemnation claim, which
this Court then affirmed, Garrett had no way to know that there was nothing left
for its declaratory claims to be intertwined with. This case does not present the
14
same blatant disregard for the district court’s jurisdictional limits as was presented
in In re United Services. A reliance on case law, even if dicta, is not the kind of
“tactical decision” that will preclude application of the tolling statute.
Conclusion Regarding Limitations
Because the City did not prove each element of its limitations affirmative
defense, the trial court could not have granted summary judgment in its favor on
Garrett’s request for a declaration that applying the amended statutes violated
Article I, section 16 of the Texas Constitution on limitations grounds.
Construction of 2008 Sign Code
In its petition, Garrett requested a declaration that application of the
amended code to the upgrade to LEDs violated the prohibition against retroactive
laws found in Article I, section 16 of the Texas Constitution. Garrett also
requested the trial court to declare that “prior to December 30, 2008, the Code did
not prohibit LED lighting on its Sign,” and that before the amendments to the sign
code, “a sign permit was not required to upgrade an electronic sign to one with
LED display.”
The City contended in its motion for summary judgment, and in its response
to Garrett’s motion for summary judgment, that because Garrett had not applied to
the Sign Administration for a permit to convert its sign to LED before the
December 2008 amendments, it had “no vested property right to sustain its as
15
applied challenge to the December 10, 2008 sign code amendment.” Garrett
responded that no such permit was required under the pre-amendment sign code,
and that by obtaining an electrical permit, it had complied with all applicable
provisions of the sign code.
Garrett contends that the trial court erred in denying its requested declaration
regarding prohibited retroactive laws. Garrett also argues that the trial court erred
in granting the City’s motion and denying his motion regarding construction of the
2008, pre-amendment sign code. Both issues require this Court to determine
whether the pre-amendment code required Garrett to obtain a permit from the Sign
Administration before altering its billboard to accommodate LED lights.
Law Regarding Retroactivity
A retroactive law is one that extends to matters that occurred in the
past. Tenet Hosps., Ltd. v. Rivera, 445 S.W.3d 698, 707 (Tex. 2014); Robinson v.
Crown Cork & Seal Co., 335 S.W.3d 126, 138 (Tex. 2010) (“A retrospective law
literally means a law which looks backwards, or on things that are past; or if it be
taken to be the same as retroactive, it means to act on things that are past.”
(quoting DeCordova v. City of Galveston, 4 Tex. 470, 475–76 (1849)); Subaru of
Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002); see
also Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S. Ct. 1483, 1499
16
(1994) (determining for purposes of retroactivity “whether the new provision
attaches new legal consequences to events completed before its enactment.”).
But not all retroactive statutes are unconstitutional. Robinson, 335 S.W.3d at
138. Robinson established a three-part test for examining whether retroactive laws
are constitutional: “the nature and strength of the public interest served by the
statute as evidenced by the Legislature’s factual findings; the nature of the prior
right impaired by the statute; and the extent of the impairment.” Id. at 145.
Analysis
The City argued, both in the motions and on appeal, that applying the
amendments to Garrett does not create an unconstitutionally retroactive law
because Garrett does not have any vested right to convert his billboard to LED
without a permit. See id. (requiring court to examine “prior right impaired by the
statute” to determine whether retroactive law is constitutional). Specifically, it is
the City’s position that, absent an application to the Sign Administration, which
Garrett admittedly did not submit until 2011, Garrett had no “vested interest.”
Garrett responds, however, that no such application was required. Thus, we turn to
the language of the relevant sign code provisions to determine whether a permit
was required.
When issues involve the interpretation of a statute itself, we apply a de
novo standard of review. MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 500
17
(Tex. 2010) (stating that issue of statutory construction is legal question that we
review de novo); Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.
1989) (holding statutory construction is a question of law).
In construing a statute, our main objective is to ascertain and give effect to
the intent of the Legislature. When interpreting a statute, we “consider the entire
act, its nature and object, and the consequences that would follow from each
construction.” Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex. 1991); see
also TEX. GOV’T CODE ANN. § 311.023 (Vernon 2013). We must “reject
interpretations of a statute that defeat the purpose of the legislation so long as
another reasonable interpretation exists.” Nootsie, Ltd. v. Williamson Cnty.
Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996). When a statute is clear and
unambiguous, we need not resort to rules of construction or extrinsic evidence to
construe it. Cail v. Serv. Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983). Instead,
we may determine the intent of the Legislature from the plain and ordinary
meaning of the words used within the statute. See id.
The City relies on section 4605(a) of the 2008 sign code, located in the
“Sign Permits and Fees” portion of the code, which provides:
(a) Permit Required. No person shall erect, reconstruct, alter,
relocate or use a sign within the sign code application area without
first having secured a written permit from the Sign Administration
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to do so, subject to the exceptions set forth in Section 4605(b).3 It
is an affirmative defense to prosecution under this subsection if a
sign is excepted from having a permit under Section 4605(b).
Houston, Tex., Building Code Ch. 46, § 4605(a) (emphasis added).4
The City contends that Garrett’s plan was to “reconstruct” or “alter” its
billboard, thus, pursuant to §4506(a), Garrett was required to obtain a “written
permit from the Sign Administration to do so.” See Houston, Tex., Building Code
Ch. 46, § 4605(a).
Garrett, in contrast, relies on section 4608(j) of the 2008 sign code, located
in the “Miscellaneous Sign Provisions” portion of the code, which provides:
(j) Change of Ornamental Features, Electrical Wiring or
Advertising Display. No sign permit is required for the change of
any of the ornamental features, electrical wiring or devices, or the
advertising display of a sign previously permitted. This provision
shall not apply to spectacular signs with respect to advertising display,
nor shall it release a person from complying with all other applicable
permitting requirements of the City; including those of the
Construction Code.
Houston, Tex., Building Code Ch. 46, § 4608(j) (since amended) (emphasis
added). Garrett argues that no sign permit was required for it to change the
3
Section 4605(b) enumerates several exceptions for on-premises signs, none of
which are applicable here because Garrett’s sign is an off-premises sign. Houston,
Tex., Building Code Ch. 46, § 4605(b) (since amended).
4
Accessed through the City of Houston’s website at,
http://edocs.publicworks.houstontx.gov/documents/divisions/planning/enforcemen
t/signcode20110902.pdf.
19
“electrical wiring or devices” of its sign. Thus, we must decide whether Garrett’s
plans for the sign were to reconstruct or alter it, or were merely changes to its
electrical wiring and devices.
According to Garrett’s summary judgment evidence “the Sign is a steel-
constructed, 61-foot-high, 34-feet-wide, dual-faced, electronic (and metal halide
light for nighttime view) tri-vision sign with moving parts and mechanisms” that
“contain[ed] 204 moving slats to display six different messages in sequence.”
According to its motion, “Garrett made the decision to upgrade the advertising
display to LEDs, the state-of-the-art lighting.” Garrett’s subcontractor, Laser
Electric, applied for and obtained a commercial permit to perform the electrical
work required for the conversion to LED, but Garrett did not apply for a permit
from the Sign Administration, contending it did not have to do so.
After the electrical wiring changes were done in May 2008, the City stopped
Garrett from completing its conversion because it had not obtained a permit from
the Sign Administration to do so.
Garrett’s summary judgment evidence describes the planned upgrade to
complete the conversion to LEDs as follows:
The sign already moved and changed messages. It contains 204
moving slats to display six different messages in sequence. Thus, an
upgrade to LED technology merely simplifies the change process,
allowing messages to be changed remotely by computer, instead of by
physically altering the slats. The upgrade does not involve removing
or replacing the sign cabinet, removing or replacing the poles,
20
changing the size of the sign, altering its height, or modifying any
structural components of the sign whatsoever. The upgrade results in
no change in the shape or location and creates no new encroachment.
The City’s evidence, however, included a document by the Division Manager of
the Sign Administration, in which she described the proposed upgrade as follows:
What your client is proposing is to totally remove the three existing
faces of the sign, not for maintenance operations or for changing the
letters, symbols, or other matters (i.e., not to merely change the
advertising copy), but rather to reconstruct the existing sign by
installing a new LED sign cabinet to create essentially a new sign.
Your continued reference to your client’s expenditure of $250,000 to
implement these changes on its face belies your argument that such
extensive reconstruction falls under Section 4608(j). Therefore,
although your client has yet to formalize his intentions with this
office, and based solely on the information currently available to us,
your client’s proposal contravenes and would be in direct violation of
the City’s Sign Code.
While both sides disagree about whether the proposed changes require a permit
from the Sign Administration, the parties essentially agree on the details of the
proposed upgrade. The upgrade, as described, would require the rewiring of the
electrical portions of the sign, but also would require the removal of the rotating
slats, which would then be replaced by LED panels that could be controlled and
changed by computer.
We agree with the City that this type of extensive change to the sign is more
than simply changing the “electrical wiring and devices” of the sign. Indeed, the
summary judgment evidence shows that the electrical wiring component of the
project had been completed when the City issued a stop order, and that that more
21
work was necessary to complete the project, i.e., the removal of the rotating slats
and the installation of the LED boards. The removal of the rotating slats and
replacement of them with a completely different technology would result in a sign
with a remarkably different looking and functioning display.
If we were to accept Garrett’s position that it was merely changing the
“electrical wiring and devices” of the sign, the exception in section 4612(b) would
threaten to “swallow the rule” requiring permits for reconstructing and altering
signs found is section 4506(a), for it is hard to imagine any extensive renovation to
a sign that would not also involve changes to the electrical wiring.
If we were to interpret the exception in section 4612(b) as broadly as Garrett
encourages us to, the permit requirement in section 4506(a) would become largely
meaningless. Statutory language should not be read as pointless if it is reasonably
susceptible of another construction. Franka v. Velasquez, 332 S.W.3d 367, 393
(Tex. 2011).
Conclusion Regarding Construction of Sign Code
Therefore, we conclude that the proposed conversion from a tri-display
billboard to a LED-display billboard was not merely a change to the “electrical
wiring and devices,” but was a reconstruction or alteration of the billboard
requiring a permit from the Sign Administration. Because Garrett was required to,
but had not requested a permit from the Sign Administration at the time it filed
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suit, it had no vested interest in converting its sign to LED without a permit.
Because Garrett had no vested interest in converting its sign without a permit, the
amendments to the Sign Code are not unconstitutionally retroactive when applied
to it. Thus, the trial court properly granted summary judgment on Garrett’s claims
based on the unconstitutional retroactive application of a change in the law.
Section 245 of Texas Local Government Code
In its motion for summary judgment, Garrett also sought a declaration that
“Section 245.002 of the Local Government Code requires the City to apply the
provisions of the sign code as it existed prior to December 10, 2008, to Garrett’s
upgrade to LED lighting[.]”
Applicable Law
Chapter 245 of the code is entitled “Issuance of Local Permits,” and it has
been called the “Vested Rights Act.” See Md. Manor Assocs. v. City of Houston,
816 F. Supp. 2d 394, 409 (S.D. Tex. 2011). “Chapter 245 of the [Texas Local
Government] Code recognizes a developer’s vested rights and requires a regulatory
agency to consider approval or disapproval of an application for a permit, such as a
subdivision plat, based on regulations and ordinances in effect at the time the
original application is filed.” Milestone Potranco Dev., Ltd. v. City of San Antonio,
298 S.W.3d 242, 248 (Tex. App.—San Antonio 2009, pet. denied). “The effect of
vested rights under Chapter 245 of the Local Government Code is to ‘freeze’ the
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land use regulations as they existed at the time the first permit application was filed
through completion of the ‘project;’ in other words, a project with vested rights is
not subject to intervening regulations or changes after the vesting date.” City of
San Antonio, 383 S.W.3d at 245.
Section 245.002(a) of the Local Government Code provides:
(a) Each regulatory agency shall consider the approval, disapproval, or
conditional approval of an application for a permit solely on the
basis of any order, regulations, ordinances, rules, expiration dates,
or other properly adopted requirements in effect at the time:
(1) the original application for the permit is filed for review
for any purpose, including review for administrative
completeness; or
(2) a plan for development of real property or plat
application is filed with a regulatory agency.
(a-1) Rights to which a permit applicant is entitled under this chapter
accrue on the filing of an original application or plan for development
or plat application that gives the regulatory agency fair notice of the
project and the nature of the permit sought. An application or plan is
considered filed on the date the applicant delivers the application or
plan to the regulatory agency or deposits the application of plan with
the United States Postal Services by certified mail addressed to the
regulatory agency. A certified mail receipt obtained by the applicant
at the time of deposit is prima facia evidence of the date the
application or plan was deposited with the United States Postal
Service.
TEX. LOC. GOV’T CODE ANN. § 245.002(a), (a-1) (Vernon 2005) (emphasis
added).
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Analysis
The City contends that section 245.002(a) is not applicable because Garrett
did not file its original application for a permit until 2011, well after the sign code
was amended. Garrett responds that “[t]he required electrical permit for the
upgrade project was requested (and granted) while the 2008 Code was in effect.”
We have already held that, even under the pre-amendment sign code, Garrett was
required to obtain a permit from the Sign Code Administration before upgrading its
sign to LED technology, and that Garrett did not do that until 2011. The denial of
the permit complained of by Garrett is the denial of a permit by the Sign Code
Administration, thus its application for an electrical permit from a different City
department has no effect in “freezing” the Sign Code Administration’s application
of the amended ordinances.
Conclusion Regarding Section 245 of Local Government Code
Under section 245.002(a), Garrett’s rights were not vested until he filed his
application for a permit with the Sign Code Administration in 2011. Thus, the trial
court properly denied Garrett’s motion and granted the City’s motion on this
ground.
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CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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