Rudy Neira v. Sheryl Sculley ( 2015 )

Court of Appeals Number: 04-14-00687-CV
Trial Court Case Number: 2014-CI-05034
Rudy Neira § IN COURT
Appellant, Pro Se § OF APPEALS
§ Fourth Court of Appeals.
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Sheryl Scully, in her official capacity as the City Manager § 3--.^/" rn
of the City of San Antonio(City) on behalf of SanAntonio § ?
Planning Commission, Appellee and § BEXAR'^QUNTY
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§ TEXAS _; ^ 3
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Richard Hovenden, § -~} c;??, -^ y
Interested Party §
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APPELLANT'S BRIEF
Introduction
This brief is in reply to the recent January 23, 2015 Order from the Fourth Courtof
Appeals. (Court of Appeals) The January 23, 2015 Order states that the Court of
Appeal takesjurisdiction over above styed cause, and, requests a Brief within
thirty (30) days after the date of the January 23, 2015 Order.
The Court of Appeals may disregard Appellant's prior brief, filed with the Court of
Appeals prematurely on October 1, 2014.
Appellant uses Texas Rules of Appellate Procedure for this brief and for filing
procedures. The following summary information is provided in order to comply
with these rules:
Rule 25 Notice of Appeal
(1) On appeal from 37th Judicial District Court ofBexar County, Texas, Trial Court
Cause No. 2014-CI-05034
(2) Date of summary judgment being appealed: September 14, 2014
(3) Party desires to appeal: Mr. Rudy Neira
(4) Court to which appeal is taken: Fourth Court of Appeals
Appellant's (Neira's) Brief
Rule 34.5 Clerk's Record
a. Contents. Unless the parties designate the filings in the appellate record by
agreement under Rule 34.2, the record must include copies of the following:
1. In civil cases, all pleadings on which the trial was held: A summary judgment
hearing was held on September 12, 2014 and a one-page summary judgmentorder
was signed by the judge on September 14, 2014. The Clerk's Record should
include the City's request for summary judgment titled "Defendant Sheryl
Sculley's Motion for Summary Judgment"; and, consisting of an 18-page brief and
a 93-page attachment. The Clerk's Record should also include an August 28,
2014, reply by Mr. Neira, titled "Plaintiffs Response to Defendant's Summary
Judgment and Motion for Summary Judgment in Favor of Plaintiff' and consisting
of a 6-page brief and a 20-page attachment. A courtreporter was not at the
September 12, 2014 hearing and oral pleadings are not available.
2. The court's judgment or other order that is being appealed- See Summary
judgment order signed by the presiding judge on September 14, 2014.
3. Any request for preparation of the clerk's record- this document serves as
appellant's request. Appellant's request is in item 1 above.
Appellant's Brief
The following is Appellant's briefin the format of Rule 38 of Texas Rules of Appellate
Procedure. Rule 38 is titled "Requisite of Briefs.
Table of Contents Page
(a) Identity of Parties and Counsel
(b) Table of Contents
(c) Index of Authorities
(d) Statement of Case
(e) Any Statement Regarding Oral Argument
(f) Issues Presented
(g) Statement of Facts
(h) Summary of Argument
(i) Argument
(j) Prayer
See page 9 for Appendix (k and 1)
Appellant's (Neira's) Brief
(a)Identify of Parties and Counsel
Appellant:
Mr. Neira, Pro Se (Mr. Neira had no counsel at trail and has no counsel as appellant.)
210 5643634
Appellee's Counsel:
Fitzpatrick & Kosanovich, PC (Counsel for defendant at trail for Appellee)
PO Box 831121
San Antonio, TX 78283-1121 210 408-6793
Appellee:
Sheryl Scully, in her official capacity as the City Manager
of the City of San Antonio (City) on behalf of San Antonio
Planning Commission
Richard Hovenden, (Interested Party has no counsel of record)
3019 Knight Robin Dr.
San Antonio, TX 78209 (located next door east of 3015 Knight Robin Dr.)
(c)Index of Authorities
Potter v. Clear Channel Outdoors, Inc. (Tex. App.-Houston (1st Dist.) Jul. 2, 2009)(Taft).
See Appendix (1) for a 23-page copy of this authority.
(d) Statement of the Case (Pursuant rule 38.1)
This case is an appeal by Appellant, Mr. Neira, of a summary judgment filed by the City.
On March 28, 2014, Mr. Neira, filed this suit in District Court pursuant Chapter 37
Declaratory Judgment of the Texas Civil Practice and Remedies Code asking the trial
court to interpret Section 35-515(h)(1) of City ordinance to settle a controversy. There is
no claim by Appellant of damages.
On September 14, 2014 the trial court rendered a summary judgment in favor ofthe City.
On January 23,2015, the Court ofAppeals issued an order accepting this
jurisdiction ofthis case and requesting Appellant's reply within 30 days.
(e) Statement Regarding Oral Argument
Appellant does not request time for an oral argument, but is available ifthe Court of
Appeals or theAppellee requests an oral argument.
Appellant's (Neira's) Brief
(f) Issues Presented
The primary issue is that the trial court erred because The Declaratory Judgments Act
prohibits a summary judgment if there is "real and substantial controversy that can be
settled by a declaratory judgment". Controversy exists because the City, in its October 7,
2013 letter, argues that replat of 3019 Knight Robin is valid based on the City's
interpretation of Section 35-515(h)(1) of City ordinance. See October 7, 2013 City letter,
in appendix in this Appeal, or, as exhibit 2 in Mr. Neira's original petition. Mr. Neira
argues that the replat is not valid, based on his interpretation of Section 35-515(h)(1).
Another issue is that the trial court erred in its September 14, 2014 summary judgment
because interpretation of Section 35-515(h)(1) of City Ordinance an issue of material
fact, especially if Mr. Neira had requested a trial by jury. The evidence is Section 35-
515(h)(1) of City ordinance.
Another issue is protecting public interest. Appellant strongly believes that proper
interpretation of Section 35-515(h)(l) of City Ordinance will protect home owners
throughout the city of San Antonio, especially from water diversion damage and invasion
of back-yard privacy. Long drive ways of flag-lots create car traffic in neighbors' back
yards, which previously, had privacy. Proper interpretation by the City of its City
Ordinances will help promote government integrity. For example, a September 20, 2013
Express-News article described indictment of a former official of the City's Planning and
Development Services Department for running a business that sold expedited building
permits. Proper interpretation of City Ordinances by City officials will simplify replat
and building permit applications and reduce the need for expedited services.
(g) Statement of Facts (in chronological order)
In the middle of May 2013, Mr. Neira received a City notice titled "Notice of Pubic
Hearing by the San Antonio Planning Commission" (See Appendix for a copy). Mr.
Neira telephoned Ms. Donna Camacho, who was listed on the notice, to ask if his
testimony at the May 22, 2013 public hearing would influence the May 22, 2013 replat
decision. Mr. Neira was told that his appearance at the hearing would not change the
decision and therefore, Mr. Neira did not attend. Mr. Neira reviewed the replat of 3019
Knight Robin, whichwas attached to the notice of public hearing on May 22, 2013. He
became concerned about reduction of privacy in his back yard and in potential flooding in
his back yard and in the neighborhood. Mr. Neira had had flooding of his house and is
familiar with flooding in his neighborhood. Mr. Neira noticed thatthe new replat of 3019
Knight Robin allowed for two new homes inthe back yard ofthe existing home at 3019
Knight Robin, two new homes inthe back yard ofthe original lot at 3019 Knight Robin
would have access to the street(Knight Robin Drive) with 20-foot drive ways. Mr. Neira
is aware of zoning requirements, such as 40-foot minimum street frontage in most
neighborhoods in San Antonio.
Appellant's(Neira's) Brief
On August 1, 2013, Mr. Neira visited the City's over-the-counter service office at 1901 S.
Alamo Street to ask about City zoning for his neighborhood. The City over-the-counter
person was surprised when Mr. Neira mentioned that his neighbor at 3019 Knight Robin
was able to replat his one-acre lot into lots that included 20-foot street frontage lots. The
City over-the-counter person gave Mr. Neira a copy of zoning ordinance section 35-353,
which requires 40-foot minimum street frontage for new lots in replats in Mr. Neira's
neighborhood. She also gave Mr. Neira a copy of a new City ordinance, section 35-515,
which allows back yard lots (flag lots) under certain conditions. Mr. Neira read the new
section 35-515 City ordinance and concluded that if certain conditions are not met, flag
lots (back yard lots) must be approved by at a City variance board in order to be valid.
The lot at 3019 Kinght Robin was replatted without a variance board hearing.
On March 28, 2014, Mr. Neira filed "Plaintiffs Original Petition for Declaratory
Judgment" asking that the trial court declare the Planning Commission's May 22, 2013
replat of 3019 Knight Robin invalid, based on the Court's interpretation of Section 35-
515(h)(l)of City ordinance, and based on no variance board hearing being held.
The City filed motions for discovery and Mr. Neira replied.
On or about August 14, 2014, the City's attorney filed a motion for summary judgment
arguing that Mr. Neira did not raise a genuine issue of material fact and that Mr. Neira
did not provide evidence, along with other claims. The City's request for summary
judgment is titled "Defendant Sheryl Sculley's Motion for Summary Judgment"; and,
consists of an 18-page brief and a 93-page attachment.
On August 28, 2014, Mr. Neira filed a reply to the City's request for summaryjudgment.
Mr. Neira's reply is titled "Plaintiffs Response to Defendant's Summary Judgment and
Motion for Summary Judgment in Favor of Plaintiff'. Mr. Neira's reply consists of a 6-
page brief and a 20-page attachment.
On page 2 of his reply, Mr. Neira states as follows: There is real and substantial
controversy that can be settled by a declaratory judgment."
On page 6, Mr. Neira states as follows:
"If the court agrees that Section 35-515(h)(l) of City ordinance is an exception that was
not met, and, that flag lots are not allowed, then Plaintiffrequests (prays) that the Court
declare the following:
1. Thatthe City of SanAntonio's May 22, 2013 replat of 3019 Knight Robin is void
and judicially invalid because the replat allows for flag lots and the replat does not
meetstatutory requirements of Section 212 of the Local Government Code.
Appellant's (Neira's) Brief
As evidence, Mr. Neira's reply included an 11-page copy of Section 35.515 of City
Ordinance. The 11-page copy is titled Exhibit 4 in Mr. Neira's reply to summary
judgment.
On September 12, 2014, Mr. Neira and the City's attorney attended a summary judgment
hearing. On September 14, 2014 the presiding judge signed a summary judgmentin favor
of the City.
On January 23, 2015 the Court of Appeals requested a Brief within thirty (30) days
after the date of the January 23, 2015 Order.
With this "Appellant's Brief, Mr. Neira appeals the September 14, 2014 summary
judgment decision.
(h) Summary of Argument
Appellant argued in his original petition before the trial court, and, Appellant still argues
with this appeal, that a substantial issue of controversy exists that can be settled with the
Uniform Declaratory Judgments Act. The trial court erred because The Declaratory
Judgments Act prohibits a summary judgment if there is real and substantial controversy
that can be settled by a declaratory judgment. Controversy exists because the City argues
that replat of 3019 Knight Robin is valid basedon its interpretation of Section 35-
515(h)(1) of City ordinance. Mr. Neira argues that the replat is not valid, based on his
interpretation of Section 35-515(h)(1).
The City argued with its summary judgment that Mr. Neira did not raise an issue of
material fact and that Mr. Neira did not provide evidence. To this, Mr. Neira argues that
interpretation of Section 35-515(h)(l) is an issue of fact, especially if Mr. Neira had
requested a trial by jury. Section 35-515(h)(1) is the evidence.
(i) Argument
On March 28, 2014, Mr. Neira filed his suit under Section 37.004 Declaratory Judgments
of Civil Practices and Remedies Code (Uniform Declaratory Judgments Act). The
Declaratory Judgments Actprovides for a trial on merits for Mr. Neira's claim thatthe
replat of 3019 Knight Robin is invalid. Declaration of rights under Section 37.004
include rights under "municipal ordinance".
On or about August 14, 2014, the City's attorney filed a motion for summary judgment
arguing that Mr. Neira did not raise a genuine issue ofmaterial fact and that Mr. Neira
did not provide sufficient evidence, along with other claims.
On August 28, 2014, Mr. Neira filed a reply to the City's request for summary judgment.
Appellant's (Neira's) Brief
In his reply, Mr. Neira states that there is real and substantial controversy that can be
settled by a declaratory judgment. The City argues thatthe replat of 3019 Knight Robin
is valid based on its interpretation of Section 35-515(h)(1) of City ordinance. Mr. Neira
argues that the replat is not valid, based on his interpretation of Section 35-515(h)(1).
Mr. Neira argues that the replat is not valid because it does not meet either of the two
exceptions in Section 35-515. Mr. Neira argues that in order for the lot at 3019 Knight
Robin to qualify for replat under Section 35-515(h)(l), the lot at 3019 Knight Robin must
have been a lot with physical limitations or must have been a site with physical
limitation. Mr. Neira argues that 3019 Knight Robin did have a physical limitation and
did not qualify for flag lots without a variance hearing. Since no variance board hearing
was held, any new lot at 3019 Knight Robin must comply with the 40-foot minimum
street frontage of normal zoning in section 35-353 of City ordinance.
In his reply to summaryjudgment, Mr. Neira states as follows:
"Ifthe court agrees that Section 35-515(h)(1) of City ordinance is an exception that was
not met, and, thatflag lots are not allowed, then Plaintiff'requests (prays) that the Court
declare thefollowing:
1. That the City ofSan Antonio's May 22, 2013 replat of3019 Knight Robin is void
andjudicially invalid because the replat allowsforflag lots and the replat does
not meet statutory requirements ofSection 212 ofthe Local Government Code.''''
Larry E Potter, Appellant v. Clear Channel Outdoor, Inc, Appellee is relevant inthis case.
In the Larry Potter case, the Court of Appeals for the First District in Texas interpreted a
contract to determine if a summary judgment rendered by the trial court was in error.
The Court of Appeals for theFirst District in Texas determined thatthetrial court erred
in its interpretation ofthe contract, and remanded the case to the trial court. The appeal
court states in part. "We remand this cause to the trial court with instructions to render a
declaratoryjudgment infavor ofPotter consistent with this opinion and to consider
Potter's requestfor the award ofattorney 'sfeesand cost under Texas Civil Practice and
Remedies Code section 37.009."
If the Court of Appeals reads Section 35-515(h)(l) of City ordinance and agrees with Mr.
Neira, that exceptions in this section are not met for the "automatic" replat of 3019
Knight Robin, then a City Variance Board hearing is required. The replat then is invalid
because a variance board hearing was not held within the required time. An unlawful plat
or replat is violation ofSection 212.010(4) ofTexas Local Government Code.
(j) Prayer
Mr. Neira asks that the Appeal Court render a declaratory judgment in favor of Mr.
Neira-that the May 22, 2013 replat of3019 Knight Robin is invalid because Section 35-
Appellant's (Neira's) Brief
515 of City ordinance does not allowthe replat without a timely City Variance Board
hearing, and a City Variance Board hearing was not held. The City is in violation of
Section 212.010(4) of Texas Local Government Code.
As an alternative, Mr. Neira asks the Court of Appeals remand this case for a trial court
decision on Mr. Neira's request for declaratory judgment.
Mr. Neira' Affidavit
Mr. Neira is the Plaintiff, pro se, and makes this affidavitthat he is competentto testify in
this case, that he has personal knowledge of this case, that he is over age 18, and, that his
statements above are correct to the best of his knowledge.
Certificate of Service
Mr. Neira certifies that his above-titled Notice was served by regular mail and by
certified mail to the Appellee's attorney and to co Appellee, Mr. Hovenden as listed
below:
Fitzpatrick & Kosanovich, PC (Attorney for Appellee)
PO Box 831121
San Antonio, TX 78283-1121
Richard Hovenden, (prior defendant)
3019 Knight Robin Dr.
San Antonio, TX 78209
(3019 Knight Robin Dr. is located next door east of 3015 Knight Robin Dr.)
On this the //^fi day of FsJ/^fi^, 2015
Rudy Neira, Appellant, Pro Se Date
210 564-3634 office
Appellant's Brief Respectfully Submitted,
(yt DOCUMENT SCANNED AS FILED
•If MM II
2014CIOS034 -D037
Cause No. 2014-C1-05034
RUDY NEIRA IN THE DISTRICT COURT
SHERYL SCULLEY, IN HER OFFICIAL
CAPACITY AS THE CITY MANAGER 37lh JUDICIAL DISTRICT
OF THE CITY OF SAN ANTONIO
(CITY) ON BEHALF OF SAN ANTONIO
PLANNING COMMISSION, AND
RICHARD HOVENDEN, AS OWNER
OF HOME AT 3019 KNIGHT ROBIN BEXAR COUNTY TEXAS
ORDER GRANTING
TO DEFENDANT SHERYL SCULLEY'S
MOTION FOR SUMMARY JUDGMENT
Came on to be heard Defendant Sheryl Sculley's Motion for Summary Judgment
against Plaintiffs claimsand Platntiffs Motion for Summary Judgment in support of his
claims. Defendant Sculley appeared through counsel and Plaintiffappeared pro se. The
parties presented their respective motions and responses, and the Court, after careful
consideration of same, concludes that Defendant Sculley's Motion for Summary
Judgmentshould be grantedand Plaintiffs Motion for Summary Judgmentbe denied.
It is, therefore, ordered, adjudged and decreed, that Defendant Sheryl Sculley's
Motion for Summary Judgmentis hereby GRANTED, and all relief sought against her by
Plaintiff is denied, and all claims made or that could have been made arising out of the
nexus of fact underlying Plaintiffs allegations are herebyDISMISSED, with prejudice.
It is further ordered that Plaintiffs Motion for Summary Judgment is hereby
DENIED.
This order is intended to be a final, dispositive, appealable order resolving all
1 claims and controversies among the parties,
V
0
Signed on this the ±\ day ofSeptember, 2014.
I
4
I DISTRICTJUDGE, BEXAR COUNTY,
w n TEXAS
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®
CITYOFSAN ANTONIO
DEVELOPMENT SERVICES DEPARTMENT
October 7, 2013
Mr. Rudy Neira
3015 Knight Robin
San Antonio, Texas 78209
RE: Plat No. 130191 Knight Robin
Dear Mr. Neira:
Thank you for your letters dated August 21, 2013 and October 1, 2013. Please know that staff
attempted to contact you by phone on August 29, 2013 and September 3, 2013. However, we were
unable to reach you or leave a message for a return call. Eventually, on October 3, 2013 staff did reach
you to discuss yourconcerns regarding the platted property.
As you are aware, the Development Services Department reviewed your letters and appreciates
your concerns for your neighborhood. Staff re-evaluated the plat approved by the Planning Commission
on May 22, 2013 and subsequently recorded at the Bexar County Courthouse on June 14, 2013. Please
understand, this plat meets the development regulations of the Unified Development Code (UDC) and
therefore, rescinding of the plat is not applicable.
As you stated in your letter, NP8 zoning requires a minimum lot frontage of 40 feet in accordance
with UDC Section 35-353 Neighborhood Preservation District. However, the flag lot provision in the
UDC, Section 35-515(h)(1) Flag Lots, specifically supersedes Section 35-353 and allows for reduced
frontage for flag lots. Furthermore, the requirement for the applicant to seek a variance through the Board
of Adjustments and Appeals was not applicable in this situation. Additionally, you point out that two
additional lots on Vandiver were subdivided. Please be aware these lots also meet the standard of the
provision noted above regarding flag lots.
Regarding the property located at.3011 Knight Robin, Section 35-371(b) of the UDC allows for
the construction of an accessory dwelling structure on the property. Also, this property was created by
the replatting of a portion of Lot 3 to establish Lot 17, consequently leaving a remaining portion of Lot 3.
Since then, the remaining portion of Lot 3 was divided by metes and,bounds survey and sold to two
separate owners with the addresses of 3015 Knight Robin and 7214 Vandiver. State Law and the UDC
require owners of lots created by survey, who require building permits in the future, be subject to
replatting requirements in accordance with the UDC.
If you need further assistance regarding theseissues, please do not hesitate to contact our office.
Sincerely,
clohn/P. Jacks'
Assistant Director
Clift'Morton Development and Business Services Center 1901 South Alamo Street
San Antonio. TX 78204, (210) 207-1111
Page 1 of 1
NOTICE OF PUBLIC HEARING BY
THE SAN ANTONIO PLANNING COMMISSION
REPLAT # 130191 Knight Robin
The San Antonio Planning Commission will hold a public hearing at 2:00 p.m. on
Wednesday, May 22, 2013, in the Board Room of the Cliff Morton Business and Development
Services Center, 1901 South Alamo, for the purpose of considering a replat request within your
subdivision. The applicant, Richard Hovenden, is proposing to replat Lot 8, NCB 11840, out of
the Seidel Hills Subdivision platj as recorded in Volume 4400, Page 5, in the deed and plat
records of Bexar County, Texas. The site is located north of Knight Robin and east of N.
Vandiver Road. The propertyis zoned NP-8 Neighborhood Preservation District.
r
PLEASE COMPLETE, SIGN AND RETURN THE ENCLOSED CARD PRIOR TO THE
CLOSE OF THE PUBLIC HEARING.
Please note that as per State Law, the Planning Commission does not
have the authority to deny a plat that meets all of the requirements of
the Unified Development Code.
If the owners of 20 percent or more of the area in the preceding plat within 200 feet of the property
proposed to be replatted file written protest with the Planning Commission, approval ofthe proposed replat
shall require the favorable vote of at least three-fourths ofthe members present ofthe Planning Commission
provided the replat involves a variance.
State law requires that the city provide a copy of Vernon's Texas Codes Annotated, Local Government
Code Subsection 212.015 (c) to all property owners to be notified of a proposed replat. That Subsection
reads as follows:
(c) If the proposed replat requires a variance and is protested in accordance with this subsection, the
proposed replat must receive, in order to be approved, the affirmative vote of at least three-fourths of the
members present of the municipal planning commission or governing body, or both. For a legal protest,
written instruments signed by the owners of at least 20 percent of the area of the lots or land immediately
adjoining the area covered by the proposed replat and extending 200 feet from that area, but within the
original subdivision, must be filed with the municipal planning commission or governing body, or both,
prior to the close of the public hearing.
TheCliffMorton Business andDevelopment Services Center is wheelchair accessible. Accessible parking
spaces are located atthe south and north side ofthe building. Auxiliary aids and services are available
upon request. Interpreters for the deaf must be requested 48 hours prior to the meeting, call 207-7245
Voice/TDD for assistance. For further information on this item, please call Donna Camacho of the
Land Entitlements Section of the Development Services Department at (210) 207-5016.
9^ ""
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PLAT NO. 130191
CPS GENERAL NOTES:
•HTCCO IS * .. ™™ », ORE FLOW NOTE:
REPLAT AND SUBDIVISION PLAT
K»«CEBOiTO] «>NW«T W"EET THE OTY OF SAN ANTONIO'S FKE FLOW ESTABLISHING
cliciwc mo ii_ _ „
TYPICAL f* W.1HUI U luCTftc E, _ REOUREHENTS FOR THE PROPOSED RESDENT1AL DEVELOPMENT
right or * «
THE PUBUC WATER UAHSYSTEM HASBED* OESKMED FOR A KNIGHT ROBIN
TELEPHONE
jOMWm« FLOW DEMAND OF jm. OPH AT19 PS. RESOUAL ESTABUSWHC LOT 24. BLOW 4. LOT IS, BLOCK 4. AND
SANITARY SEWER ESSfltJ'S.fS.'iS* "EOUVREUENTS FOR WOJWDUAL BLOCK «, UOGHT ROB1H, SONGI.OSSACRES OF LAND
— •"
- new a,",-
OTY PUBUC SERVICE <1£CTR«
STRUCTURES WILL Bt REVIEWED DLMHO THE BULCMO PERUT BLOCK 1I940,
PROCESS M ACCORDANCE WTH THE PROCEDURES SETFORTH BY 10.BOARCOUNTY.
BOARCOUNTY. TEXAS, RECORDED ~H VOLUME
«*•" 4400 PACE
CITY PUBUC SERVICE JAS on« cawtart jldmccni u ir id itio»i tm riaitin u THE DfTD
5. M THE DEED MI9
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PLATRECORDS. BOAR COUNTY. TEXAS.
SAN ANTOKK) WATER UYSTCU
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STATtCM 'SAN AHTONJO RRP*HI. #4371 OAIUK IS NADU (CORSM)
CONVERTED TO FEET. COOftDDtATS ARE TEXASSTATE PLANE
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4.) THE CONTOURS SHOW MERSH WERE TAKEN FROU OATA PROVIDED
DATE: APRIL 3013 JOB NUMBER: £0427500
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3/8* REBAR FOUND THE OWNER Cf THE LAND SHOWN ON IMSPLAT. INPERSON ORTHROUGH
C-xJ A DULY AUTHORIZED AGENT. DEDICATES TOTHE USE OFTHE PUBLIC.
EXCEPT AREAS OENTIntO AS PRIVATE ORPARTCf AN ENCLAVE OR
—-T- PLANNED UNIT OemCPMEHT, FOREVER ALL STREETS. ALLEYS. PARKS.
WATERCOURSES, DRAMS, EA5EWENTS ANDPUBUC PLACES THEREON
5HQW* FOR WE PURPOSE AND CONSIDERAnON THEREIN EXPRESSED.
AREA BONG REPLATTED
THROUGH PUBUC HEARING fe£sK4#d6t)
OWHBVDCVELOPEfl: RICHARD HOVENDEN
WITH WRITTEN NOTIFICATION 3019 KNIGHT ROSM
SAN ANTOMO, TEXAS76117
PHONE t- 2T0-5S4-1SB2
BEING l.OeS ACRES OFLAND, KNOWN AS LOTS, BLOCK «,
HEWQTY SLOCK flLCB.) 11840. SE3DEL HIAS SUSOIVISQN.
RECOROEO IN VOUME 4400. PAGE S, W THEDEED AW
PLAT RECORDS. BEXAR COUNTY, TEXAS.
DULY AUTHORIZED AGENT
THE AREABEING REPLArtEO WASPREVIOUSLY PLATTED ONPLAT SODEL
hlls suaomaoN. recorded « volume 4400, page a. m the deed
AND PLAT SECOROS. BEXAR COUNTY. TEXAS. THE SANANTOMO PLANNING BEFORE WE. WE UNDERSKBtES AUTHORITY CM TMS DAY PERSONALLY
CCWMIS9CN AT ITS UEETMC OF APPEARED SlckmjJ Hawnrfim KNOWN TO UE TO 6ETHE
HELD A PERSON WHOSE NAME IS SUBSCRIBED TO IKE FOREGONG INSTRUMENT.
AND ACXHO1UDGE0 TO UE THAT HEEXECUTED THE SAME FOR THE
PURPOSES AND CCNSCERADGN5 TKEREM EXPRESSED AX)H THE
(WE). THE OWNERS) CT THE PROPERTY SHOWN ONTHIS REPLAT CAPACITY THEREIN STATED.
HERESY CERTIFY THAT THIS REPLAT DOES NOTAMEND ORREMOVE ANY
COVENANTS OR RESTRJCTWNS. OVEN U
PAULAKIH0NY1MTHB
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"•OWNER: RK»ARD'H0VCNOEN Uqrta.£D15 NOTARY PUBUC, BEXAR COUNTY. TEXAS
DULY AUTHORIZED AGENT
ZUE MS y DAY vifZi!. » KNIGHT R06IN
SUCUTTED TO AND CONSIDERED BYTHE PLANNING COUWtSSIOH OF THE
OTYSANANTOMO. TEXAS, IS HERESY APPROVED BY SUCH COUU390N
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DIVISION 4. LOT LAYOUT, HEIGHT, AND DENSITY/INTENSITY STANDARDS Page 1 of 11
San Antonio, Texas, Unified Development Code » ARTICLE V - DEVELOPMENT STANDARDS » DIVISION 4.
LOT LAYOUT, HEIGHT, AND DENSITY/INTENSITY STANDARDS »
DIVISION 4. LOT LAYOUT, HEIGHT, AND DENSITY/INTENSITY STANDARDS
Sec. 35-515. Lot Layout Regulations.
Sec. 35-516. Setback and Frontage Regulations.
Sec. 35-517. Building Height Regulations.
Sees. 35-518 to 35-520. Reserved.
Sec. 35-515. Lot Layout Regulations. #
STA TEMENT OF PURPOSE
This section provides forblocks which provide a pedestrian scale, offeralternative paths for vehicular
traffic, and which accommodate on-street parking. Standards areprovided to ensure that lots have adequate
access and conform to the zoning provisions of this chapter. The city finds and determines that long blocks
lined with homes andother buildings reduce streetconnectivity and impair the efficiency of public and safety
services, while increasing distances between residences andnonresidential destinations orpublic gathering
places. Exceptions to these standards aremade for non-urban districts and zoning districts (such as "RP" and
"RE") and districts which require greaterflexibility in order to encourage economic development(such as "1-1"
and "1-2").
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DIVISION 4. LOT LAYOUT, HEIGHT, AND DENSITY/INTENSITY STANDARDS Page 2 of 11
Interior blocks (2 Blocks adjoin
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DIVISION 4. LOT LAYOUT, HEIGHT, AND DENSITY/INTENSITY STANDARDS Page 3 of 11
(a) Buildings to be on a Lot. Exceptas permitted in the planned unit development district, every
building shall be located on a lot. In the "RP" and residential zoning districts, no more than one
(1) principal building may erected on a lot unless otherwise permitted in this chapter.
0) Building on or Near Common Property Line. Construction on or near a common
property line of two (2) or more retail/service uses may be permitted after complying with
all other provisions of this chapter and then current building codes subject to recording in
the Bexar County Deed Records an operational easement agreement (OEA) which
provides for each of the provisions as follows:
A. Provision of a written description of the responsibilities, limitations, and liabilities of
the arrangement between the separate property owners that allows for the
individual building be considered as a single building group (when viewed
together).
B- Specifies that the owners of the separate property in the proposed building group
agree to maintain a maximum one (1) story, fully sprinkled building group, with a
sixty-foot yard on all sides (when viewed as a group).
C. Notes that where a lot line passes through the building group, either an area
separation wall of four (4) hours fire-resistive construction or two (2) two-hour area
separation walls will be constructed. These firewalls will limit the potential fire
exposure of each owner's portion of the common structure.
D- Notes that a sixty-foot yard may be provided by a platted "No Build" easement
adjacent to the building or building group.
E. The OEA is in perpetuity, is irrevocablewithoutthe city's written authorization, is
signed by each property owner, is recorded in the Bexar County Deed Records and
so noted on each plat of the participating properties.
(2) Building on or Near Common Property Line (Single-Family Use Only).
The currentadopted International Building Code and InternationalResidential Code do
not provide for building over common propertylines withoutappropriate fire rated walls,
projections, openings and penetrations (forthe purpose of this section a "common
propertyline"shall refer to any propertyline between multipleplatted lots under the same
ownership as indicated in the property records of Bexar County, Texas). The strict
interpretation of such a provision adversely impacts the single-family housing market and
specifically inner-city areas which were developed with lots as narrow as twenty-five (25)
feet in width. Therefore, the cost of rectifying common property lines by an amending plat
unfairly impacts housing cost, especially on inner-city lots.
A. A single-family structure, addition, or accessory structure (excluding accessory
dwellings) may be built over a common property line if each and all of the following
conditions are met:
1• All of the subject lots shall be under ownership of a single person,
partnership, corporation of other recognized legal entity.
2- The building, addition, or accessory structure to be constructed is for single-
family use and no other use.
3. The lots must be platted unless the property is located in the original 36-
square mile area of San Antonio, and the boundaries of the lots were
recorded in the Deed and Property Records of Bexar County prior to June
14,1927. It shall be the obligation of the applicant to provide documentation
of the lots' platting or recording prior to June 14, 1927.
4. The side and rear setbacks of the structure in question shall be no less than
that required in section 35-310 table 310-1.
5- All of the lots in question are within one of the following single-family zoning
districts: FR, RP, RE, RD, R-20, NP-15, NP-10, NP-8, R-6, R-5, R-4 or R-3.
6- Prior to receiving a building permit the owner shall obtain a certificate of
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DIVISION 4. LOT LAYOUT, HEIGHT, AND DENSITY/INTENSITY STANDARDS Page 4 of 11
determination from the department of planning and development services
that the above five (5) conditions have been met. In addition ifthe subject
property is in a historic district and/or neighborhood conservation district the
director of planning and development services must make a finding of
compliance and compatibility with the provisions of the applicable historic
and/or neighborhood conservation district prior to issuance of a building
permit.
B. a building may not be built over a common lot line under any of the following
conditions:
1• Astructure built over a common property line may not be built and/or
converted for other than single-family use and
2. Under no conditions shall a duplex, tri-plex, four plex orany other multi-
family dwellings be permitted without rezoning and platting.
c- An owner may remove a common property line by filing an amending plat
per the regulations of section 35-441
(b) Blocks.
0) Lots to Be Contiguous. Lots shall be arranged in a contiguous pattern within blocks, or
adjoining a cul-de-sac. For minor subdivisions, all lots shall be contiguous, and any new
lots subdivided from a tract which has been previously subdivided shall adjoin the existing
lots.
(2) Block Width. Blocks to the interior ofthe subdivision shall have sufficient width to provide
for two (2) tiers of lots. One (1) tier of required block width shall be permitted in blocks
adjacent to collector or arterial streets or waterways. Not more than two (2) tiers of lots
shall be provided for any block. The provisions of this subsection do not apply to flag lots
permitted by subsection (h), below.
(3) Block and Street Length.
A. Block Length. The length of a block where homes front a street within a
subdivision or site plan shall be measured from the edge of the property line of the
street siding the furthest lot of the block width or to the center of a cul-de-sac, 90°
Elbow, or 90° Knuckle.
(i) Astreet's block length shall not exceed seven hundred (700) feet when the
street is a:
• Local type B (with houses fronting),
• Local type A which serves as an entrance street to the proposed
neighborhood, or
• Part of a TND use pattern (see subsection 35-207(f)).
(») Astreet's block length shall not exceed one thousand two hundred (1,200)
feet when the street is a:
• Block that ends with a cul-de-sac
• Local type A
(»i) Block lengths do not apply to the following unless they transition into a
street with houses fronting:
• Local type B
• Collectors or avenues
• Secondary arterials or main streets
• Primary arterials or boulevards
• Freeways or parkways
B- Street Length, the maximum overall length ofstreets with homes fronting shall
not exceed three thousand (3,000) feet. The overall street length shall be
measured from the center of the two furthest intersecting streets or from its
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DIVISION 4. LOT LAYOUT, HEIGHT, AND DENSITY/INTENSITY STANDARDS Page 5 of 11
intersection with a higher tier street whichever is less. There is no limit to the street
length of a street without home fronting.
C Maximum streetor block lengths, except subsection 35-515(b)(3)(A)(i), may be
exceeded in accordance with subsection 35-506(t) of this chapter.
(c) Lots.
0) Compliance With Zoning District Regulations. For proposed subdivisions within the
incorporated area of the city, the size, width, depth, shape, and orientation of lots shall
comply with the applicable zoning district regulations.
(2) Factors Governing Dimensions. The size, width, depth, shape, and orientation of lots
shall:
• Provide adequate building sites suitable to the special needs of the type of use
contemplated.
• Accommodate lots of the size and dimensions required by articles II and III of this
chapter.
• Provide for convenient access, circulation, control and safety of street traffic.
• Give due regard to the limitations and opportunities of topography.
\ (3) Minimum Lot Size in City Limits. Within the incorporated areas ofthe city, minimum lot
size shall conform to the requirements of article III, section 35-310
(4) Frontage. All lots shall front on a public or private street or platted irrevocable
ingress/egress easement and shall have a minimum frontage width as indicated in section
35-310. Where a platted irrevocable ingress/egress easement is utilized for frontage, the
private street provisions of section 35-506 for street name and design standards shall be
met. Neither the use of an irrevocable ingress/egress easement nor use of a private street
' shall be allowed to satisfy the major thoroughfare plan requirements. Frontage of a lot
shall be determined by the property line of the lot adjacent to the right-of-way of the street
upon which the property's address is based. On irregular shaped lots, a minimum street
frontage of fifteen (15) feet shall be required. Single-family residential lots shall not front
on a collector street, arterial street, or parkway except as specified under subsection 35-
506(r)(2). An "irregular shaped lot" includes any lot located on a cul-de-sac or adjoining a
curved section of a roadway with a centerline radius of less than two hundred (200) feet.
(5) Access. Vehicular access to nonresidential uses must be by public street, private street,
or an irrevocable ingress/egress easement as specified under subsection 35-515(c)(4)
and shall not utilize any property that is zoned single-family residential. However,
pedestrian access may be provided by means of a dedicated easement or access way to
promote pedestrian circulation on residentially zoned property and/or by means of a public
or private street.
(6) Prohibition Against Creating Landlocked Conditions. Plat applicants shall ensure that
there is no abutting landlock conditions created by the proposed plat.
(d) Driveways. Restrictionson driveway areas are designed to avoid the domination of front yards
by large expanses of impervious surfaces which deaden the streetscape and discourage
pedestrian activity. Reducing the width of driveways can reduce total site imperviousness. Some
techniques that can be used include:
0) Driveways and other impervious surfaces shall not comprise more than the percentage of
the front yard as specified in column (B) for the use patterns or zoning districts designated
in column (A). Driveway entrances shall not comprise more than the percentage of the
front lot line as designated in column (B). Parking may be provided in the rear yard, and
access may be provided through alleys, where the front yard is insufficient to
accommodate a driveway. Table 515-1 shall not apply to property zoned PUD.
Table 515-1
r : ~i : 1
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DIVISION 4. LOT LAYOUT, HEIGHT, AND DENSITY/INTENSITY STANDARDS Page 6 of 11
(A) (B)
Zoning District or Use Pattern Maximum Percent
of Front Yard
TND, TOD, MXD, D, IDZ 30%
R-6, RM-6, R-5, RM-5, R-4, RM-4, R-3, MF-25, MF-33, MF-40, MF-50, NC 50%
(2) In order to reduce impervious surfaces, shared driveways shall be permitted in any
zoning district classification. In order to reduce runoff and increase stormwater travel
times, alternative materials for driveway surfaces, such as pervious pavers or gravel, shall
be permitted in any residential zoning district.
(3) Table 515-1 shall not apply to irregular shaped lots as defined by subsection 35-516(1) of
this chapter.
(4) Driveways for single-family detached residential lots (R-4, R-5, R-6, and R-20), not
fronting a collector or majorthoroughfare, may be allowed two (2) driveways, not to
exceed the impervious cover standards ofTable 515-1, where the lot frontage is sixty (60)
feet or greater.
(e) Zero Lot Line Subdivisions.
(1) Maintenance Easement. For zero lot line subdivisions, a minimum five-foot wide
maintenanceeasement shall be provided through deed restrictions on the lotadjacent to
the zero lot line. This easement shall be kept free of permanent obstructions such as tool
sheds or fences without a gate. When filing an application for a building permit for a zero
lot line development, the subdivider shall provide the city with two (2) copies of deed
restrictions establishing the maintenance easements. One (1) copy of these deed
restrictions shall be recorded by the applicant prior to issuance of the building permit.
Along with the required building permit filing fees, an additional fee shall be provided by
the subdivider to cover the recording costs of these deed restrictions.
(2) Plat Annotation. The following notation shall appear on the plat:
" foot wide maintenance easements are established within the lots
adjacent to all non-attached zero lot lines. Such easements shall extend for the depth of
the lot and are included in the deed restrictions for all affected properties."
(f) Townhouse Subdivisions. For townhouse subdivisions, adequate provision shall be made by
the subdivider for common ownership and maintenance of community facilities such as
recreation and open space, parking, access and similar common use areas. Such open and
service areas shall be described and so indicated on the subdivision plat. The description
"townhouse subdivision" shall be prominently indicated on the subdivision plat. Also the plat shall
include a statement designating all lots in the subdivision to be limited to townhouse use. The
subdivider shall also furnish the city two (2) copies of deed restrictions limiting the property to
townhouse use and providing disposition and maintenance covenants on all open space or other
common ownership areas. Such restrictions shall be recorded by the applicant at the time of plat
recordation. Along with the required plat filing fees, an additional fee shall be provided by the
subdivider to cover county recording costs of such restrictive covenants.
(9) Two-Family Dwelling (Duplex) Lots. Alot upon which there is located two (2) attached
dwelling units may be subdivided or resubdivided through the common wall into separate fee
simple lotsfor each dwelling unit subjectto the following requirements. The two-family dwelling
or duplex lot shall be vacated and replatted. Each single-family lot resulting from the subdivision
shall have a minimum lot area of four thousand (4,000) square feet and shall be at least forty
(40) feet wide except in the case of a planned unit development or planned residential
development. Separate utility meters shall be provided to each newly created single-family lot.
Separate water and wastewater service lines shall be provided to each newly created lot and
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DIVISION 4. LOT LAYOUT, HEIGHT, AND DENSITY/INTENSITY STANDARDS Page 7 of 11
shall not traverse any other lot. Where common gas and electrical lines are provided to two (2)
single-family lots, easements approved by CPS Energy shall be provided. Walls and floors
separating dwelling units in the same building shall not be less than one-hour resistive
construction.
(h) Flag Lots.
C) Not more than the following number of flag lots may be authorized to allow for the more
efficient use of irregularly shaped parcels of land, or where the integrated nature of
multiple buildings on a site dictates the need for such lots. Flag lots may be used to better
use irregularly shaped properties or sites with physical limitations. Flag lots shall not be
permitted where they will increase the number of lots that take their access from collector
or arterial streets. Table 310-1 and/or section 35-353 are superseded by the development
standards of this section when applied to flag lots as follows:
Table 515-2
Maximum Number of Flag Lots
Size of Subdivision Maximum Number or Percentage (%) of Flag Lots
10 or fewer lots 2 lots
11-50 20%
51 or more 20%
(2) The minimum driveway width shall be ten (10) feet.
(3) Notwithstanding the provisions above, access to not more than four (4) lots may be
provided by a shared driveway.
(4) The minimum frontage at the right-of-way line for any flag lot shall be equal to the
minimum required driveway width plus four (4) feet. The flag pole portion of the lot shall
not be considered in determining the area of the lot.
(5) On flag lots the maximum front setback line shall be measured from the nearest point at
which the lot meets the minimum width (as required in Table 35-310-1) parallel to the
street on which the lot fronts.
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&t_d<£:vc
—*-,,— L.OT ;L_fiwe>s
Illustration of Typical Lots:
Source: The Latest Illustrated Book of Development Definitions
(0 Clear Vision Area. See transportation standards, subsection 35-506(d)(5).
0) Transitional Standards. Transitional buffer lot standards apply to some lower density zoning
districts within the incorporated areas of the city. See subsection 35-310(d) of this chapter.
(Ord. No. 98697 § 6) (Ord. No. 101816, § 2, 12-15-05) (Ord. No. 2006-11-30-1333, § 2, 11-30-06) (Ord. No. 2008-04-03-0267, §
2, 4-3-08) (Ord. No. 2009-01-15-0001, § 2, 1-15-09) (Ord. No. 2010-11-18-0985, § 2, 11-18-10)
Sec. 35-516. Setback and Frontage Regulations. #
(a) Front and Side Setbacks. A subdivider may elect to impose more restrictive setbacks on a plat;
however they must be enforced through restrictive covenants. The city shall only enforce the setbacks
required by article III. The following shall be annotated on plats that exceed the building setback line
requirements:
"The setbacks imposed on this plat are at the discretion of the developer or Bexar County and are not
subject to enforcement by the City of San Antonio."
(b) Side Yard Building Line. The building line for an existing residence having a side yard ofthree (3) or
more feet may be maintained on any addition to the residence, but in no instance shall the side yard be
less than three (3) feet. For regulations governing zero-lot line development, see subsection 35-373(c).
(c) Yards Adjacent to Rights-of-Way and Easements. On lots that abuta public alley, railroad right-of-
way, or an utility/drainage right-of-way or easement which is not part of a platted lot, one-half (!4) of
such alley, right-of-way or easement, up to a maximum of fifteen (15) feet, may be considered as part of
the minimum required rear or side yard.
(d) Variation in Front Yard. In any block in which seventy (70) percent ofthe lots have front yards that are
less than required by the existing zoning, construction on any remaining vacant lots is permitted to the
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DIVISION 4. LOT LAYOUT, HEIGHT, AND DENSITY/INTENSITY STANDARDS Page 9 of 11
average yard of the existing improved lots. In any block in which seventy (70) percent of the lots have
front yards that are more than required by the existing zoning, construction on any remaining lot is
permitted to the average yard of the existing improved lots.
(e) Rear Yards on Irregular Lots. For lotsfronting on culs-de-sac, eyebrows, or elbows, and other
irregular shaped lots caused by street design, a rear yard of fifteen (15) feet is permitted based on the
mean horizontal distance of the principal structure from the rear lot line and provided no part of the
structure is closer than ten (10) feet to the lot line. The mean horizontal distance shall be calculated by
adding the products of the width of each segment of the principal structure multiplied by its average
distance from the property line and then dividing this sum by the total width of the structure.
(f) Dwelling on Small Lot. See subsection 35-701 (c), Nonconforming Lots of Record.
(9) Garages and Carports. There shall be a minimum of twenty (20) feet between the back of a sidewalk
or the property line and any garage entry accessed from a street right-of-way. The garage setback
requirement for garages accessed from an alley shall be in accordance with section 35-370. Carports
may be erected behind the minimum front setback required in the applicable zoning district, so long as
twenty (20) feet of total parking area depth is maintained within the lot.
(h) Swimming Pools. Swimming pools are prohibited within the front setback of all districts or within a
platted or recorded utility or drainage easement. Pools which are excavated to a depth greater than
three (3) feet below ground shall be located a minimum distance of five (5) feet from the side and rear
lot lines.
(') Reversed Corner Lots. On reversed corner lots in all single-family residential zoning districts and on
lots with single-family residential uses within the city and single-family subdivisions in the city's ETJ, the
setback adjacent to the streetshall be at leastequal to the front setback required for the lot immediately
adjacent to the rear. The provisions ofthis subsection shall not applyto planned unit developments
(PUDs).
0) Projecting Architectural Features. Every part of a required yard shall beopen and unobstructed from
the ground to the sky except for permitted accessory structures and the ordinary projection of sills, belt
courses, cornices, buttresses, eaves, and similar architectural features, provided that such projections
shall extend neither more than five (5) feet into any required yard nor closer than three (3) feet to any
property line.
(k) Reduction of Lot Size By Governmental Action. Where the owner ofa legally platted lot or his
successor in title thereto has his lot reduced in size as a result of governmental action and thereafter
does not own sufficient land to enable him to conform to the dimensional requirements of this chapter,
such lot may be used as a building site for a single-family residence or other nonresidential uses
permitted in the district in which the lot is located, provided that:
C) In those cases where the lot area or mean lot width is reduced by governmental action not more
than twenty (20) percent belowthe minimum specified in this chapter, the director of planning
and development services shall issue a building permit or certificate of occupancy.
(2) In those cases where a vacant lot area or mean lot width is reduced by governmental action by
more than twenty (20) percent, the director of planning and development services may approve,
as a building site, such dimension as shall conform as closely as possible to the required
dimensions of this chapter provided that the combined area of the main building and its
accessory buildings shall not cover more than forty (40) percent of the lot area remaining after
governmental action.
(3) In those cases where a structure is located on a legally platted lot andthe existing yards are
reduced by governmental action belowthe dimensional requirements specified in this chapter,
the director of planning and development services shall issue a building permit or certificate of
occupancy for alterations to and use of the existing structure if said structure and lot conformed
to the required dimensional requirements prior to the lot reduction by governmental action.
(4) Items (1), (2) and (3) above shall also apply when a property has been reduced in size by
means of a donation from the property owner in lieu of a condemnation on behalf of a publicly
financed community improvement project if:
A. The donation isfor the furtherance of a goal benefiting the community as a whole;
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DIVISION 4. LOT LAYOUT, HEIGHT, AND DENSITY/INTENSITY STANDARDS Page 10 of 11
The donation does not benefit the property donor more than it does other property donors
within the project area; and
c- The subject property has been identified as a necessary part ofa public project that has
been reviewed by the planning commission, if required, and an ordinance has been
passed by the San Antonio City Council directing the project to be completed and the
subject property to be acquired.
(!) Setbacks Adjacent to High Pressure Fuel Lines, Railroads, orThoroughfares. Atwenty-five-foot
setback shall be shown on all lots adjacent to high pressure oil, gas or gasoline lines. The setback shall
be measured at right angles from the center of the fuel line.
(m) Utility Lines. Building setbacks adjacent to overhead utility lines shall comply with the provisions of
section 35-506 of this article.
(n) Corner Lots. Corner lots shall have sufficient width to provide appropriate building setbackfrom and
orientation to both streets as required by article III of this chapter.
(°) Previous Plats. The setback line, as shown on plats initiated two (2) years prior to December 2, 2004,
shall be recognized as the official setback line.
(Ord. No. 95573 § 2, Amendment "C") (Ord. No. 98697§ 4 and6) (Ord. No. 100126§ 2) (Ord. No. 101816, § 2, 12-15-05) (Ord.
No. 2008-04-03-0267, § 2, 4-3-08) (Ord. No. 2009-01-15-0001, § 2, 1-15-09) (Ord. No. 2010-11-18-0985, § 2, 11-18-10)
Sec. 35-517. Building Height Regulations. 4t
(a) Generally. Building height shall conform to the requirements of section 35-310, Dimensional Matrix.
(D) Measurement. Building height shall be measured as provided in the International Building Code.
(c) Height Exceptions. The height limits for thevarious districts do not apply to church spires, belfries,
cupolas, or domes not used for human habitation, nor to chimneys, ventilators, skylights, parapet walls,
cornices, solar energy systems, or necessary mechanical appurtenances usually located on the roof
level, provided that such features are limited to the height necessary for their proper functioning and do
not exceed the limitations of the airport hazard zoning regulations.
(d) Setbacks for Height Increases.
(1) With the exception of residential uses located in single-family residential zoning districts, any
portion of a structure in any zoning district may be erected to exceed the height limit established
in section 35-310.01, Table 310-1, provided that such portion is located back from the side and
rear setback lines one (1) foot for each two-foot of height in excess of the height limit prescribed
in such section unless otherwise prescribed in subsections (2) and (3), below or through a
specific use authorization and further provided the height does not exceed the limitations of the
airport hazard zoning regulations. Distance credits shall be allowed for space occupied by
structures of conforming height extending from the setback lines, except as specified in Table
310-1 (k). The requirements of subsection (2) and (3) shall only apply to permits for new
construction submitted after December 31, 2010.
(2) The maximum height ofany portion ofa commercial, office or multi-family zoning district located
within fifty (50) linear feet of the property line of an established single-family residential use shall
be limited to the maximum height of the single-family district. The height limit shall not apply
where a property is zoned single-family residential but not used for residential purposes, such as
a church, school, park or golf course. The measurement of fifty (50) feet shall occur from the
property line of the residential use to the structure in the zoning district subject to this subsection.
Forexample, where a C-2 zoned property abutssingle-family property with R-5 zoning, the C-2
property shall be limited in height to thirty-five (35) feet or two andone-half (21A) stories forthat portion
of the property within fifty (50) feet of the property line with the R-5 district.
(3) For portions of a zoning district subject to the height limit of subsection (2) the maximum height
limit may be exceeded through the specific use authorization ("S") process.
Illustration based on rear setback example:
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DIVISION 4. LOT LAYOUT, HEIGHT, AND DENSITY/INTENSITY STANDARDS Page 11 of 11
&Y setbac k from prope rty :
line before additional height [
20* add I
30* mirt. rear
setback
setback
25 to 35 toot
Maximum
Buffdffig Height
mrn. rear
setback
•(Ord. No. 2010-11-18-0985, §2, 11-18-10)
Sees. 35-518 to 35-520. Reserved.
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DIVISION 5. SPECIAL DISTRICTS Page 38 of 72
(Ord. No. 98697 § 6) (Ord. No. 2010-11-18-0985, § 2, 11-18-10)
Sec. 35-352. "DR" Development Reserve. #
(a) Purpose. The purpose of the development reserve "DR'Vzoning district is to provide a temporary;
zoning classification for newly-annexed property. While/Use restrictions are Jrnposed pursuant to/the
"DR" district: /
0) It is recognized that the annexed property.may becompatible for a use permitted in any zoning
district; and / /
(2) itis the policy ofthe city to rezone the property to an appropriate zoning classification as soon
as practicable. ,/ /
(b) Development Restrictions Within "DR" Zoning Districts./
(1). Uses permitted within a "DR/ioning district shall be the uses permitted jri the "R-6" zoning
district unless and until the/property is rezoned tp another zoning district
(2) The development standards applicable to a "J3R" zoning district shall be the those required
within the "R-6" zonirYg district unless and u/itil the property is rezoned to another zoning district.
Sec. 35-353. "NP" Neighborhood Preservation Districts. &
STATEMENT OF PURPOSE
The neighborhood preservation districts are designed to protect properties zoned "R-A," "R- 1a," "R-1b,"
or "R-1c" prior to June 4, 2001 and existingplattedsubdivisions which are substantiallydeveloped with single-
family detached dwelling units. It is the policy of the city that these districts will be applied only to properties
zoned "R-A," "R-1a," "R-1b," or "R-1c" prior to June 4, 2001 or platted subdivisions which are recorded as of
the effective date of this chapter, in order to prevent such subdivisions from being furthersubdivided in a
manner in order to avoid congestion in the streets, prevent safety hazards, protect the health and general
welfare of subdivision residents, provide adequate light and air, prevent the overcrowding of land, avoid undue
concentration ofpopulation, and facilitate the adequate provision ofpublic facilities. The "NP" districts are not
appropriate for the down zoning of unsubdivided parcels or tracts.
(a) Establishment. The following "NP" districts are hereby established and referred to collectively
herein as "NP" districts:
"NP-8"
"NP-10"
"NP-15"
(b) Permitted Uses. The uses permitted within an "NP" district are the same as the uses permitted
within an "R-6" district.
(c) Dimensional Regulations. The setback and height regulationsfor uses and structures within
an "NP" district shall be as follows:
(A) (B) (C) (D) (E) (F) (G) (H) (I) (J) (K)
Zoning Minimum Maximum Minimum Minimum Maximum Maximum Minimum Maximum Minimum Minimum
District Lot Size Density Frontage Lot Lot Building Front Front Side Rear
Conventional Width Width Height Setback Setback Setback Setback
NP-15 15,000 3 55 75 —
35ft/21/2 20 —
5 30
stories
NP-10 10,000 4 45 65 —
35ft/21/2 20 —
5 20
stories
NP-8 8,000 5 60 150 35ft/21/z 20 5 20
%
—
stories
3 5"-?^3
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DIVISION 5. SPECIAL DISTRICTS Page 39,of 72
(d) Nonconforming Lots. The rezoning of an existing subdivision to an "NP" district may at
result in lots which do not conform to the new zoning district lot sizes. In such cases, a single-
family detached dwelling, and any uses accessory thereto, shall be permitted as provided in
subsection 35-702(c) of this chapter.
(e) Properties Zoned Prior to June 4, 2001. Properties zoned "R-A," "R-1 a," "R-1 b," or "R-1 c"
prior to June 4, 2001 whether platted or remaining undeveloped will be converted to new zoning
districts as indicated in Appendix "D" - zoning district conversion matrix.
(Ord. No. 95326 § 7 and 8) (Ord. No. 2009-01-15-0001, § 2, 1-15-09)
Sec. 35-354. "RAH" Manufactured Housing District, it
(a) Purpose. The "MH" districts are composed of areas suitable for manufactured homes and compatible
uses. The districts are intended to provide suitable locations for HUD-Code manufactured homes on
individual lots.'
(b) Permitted Uses. The permitted uses within an "MH" district shall be those uses permitted in "RM-4" in
Table 311-1 of this chapter.
(c) Manufactured Homes on Individual Lots.
0) HUD-Code manufactured homes may be located on individual lots outside of a manufactured
home park provided they are permanently installed and limited to one (1) home per lot. In
addition they shall be subject to the following standards which are designed to ensure acceptable
compatibility in exterior appearance between HUD-Code manufactured homes and site built
dwellings that have been or may be constructed in adjacent or nearby locations.
(2) HUD-Code manufactured homes shall be permanently affixed to a foundation with a visible
foundation system and skirting acceptably similar in appearance to foundations of site built
residences. The foundation shall form a complete enclosure under exterior walls. Wheels and
axles shall be removed. All units must also have covered front and rear entries, and site built
steps and porches.
(3) Each HUD-Code manufactured home shall have a sloping roofwith eave projections of at least
six (6) inches, constructed with material generally acceptable for site built housing. The pitch of
the main roof shall not be less than one (1) foot of rise for each four (4) feet of horizontal run.
(4) Any materials that are generally acceptable for site built housing may be used for exterior finish
if applied in such a manner as to be similar in appearance, provided, however, that reflection
from such exterior shall not be greater than from siding coated with clean, white, semi-gloss
enamel paint.
(d) Dimensional Regulations. The dimensional regulations for an "MH" district are the same as those
applicable to an "RM-4" district (see section 35-310 of this article).
(Ord. No. 97568 §2)
Sec. 35-355. "MHC" Manufactured Housing Conventional District. &
(a) Purpose. The "MHC" districts are intended to provide suitable locations for HUD-Code manufactured
homes in manufactured housing conventional subdivisions.
(b) Permitted Uses. The permitted uses within an "MHC" district shall be those uses permitted in an "RM-
4" district, and manufactured homes and manufactured home parks.
(c) Manufactured Homes Design and Installation Criteria.
(1) HUD-Code manufactured homes shall be permanently installed and limited to one (1) home per
lot. In addition they shall be subject to the following standards which are designed to ensure
acceptable compatibility in exterior appearance between HUD-Code manufactured homes and
site built dwellings that have been or may be constructed in adjacent or nearby locations.
(2) HUD-Code manufactured homes shall be permanently affixed to a foundation with a visible
foundation system and skirting acceptably similar in appearance to foundations of site built
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c^-iy^
•* 1/23/2014
CIVIL PRACTICE AND REMEDIES CODE CHAPTER 37. DECLARATORY JUDGMENTS Page 1 of 4
CIVIL PRACTICE AND REMEDIES CODE
TITLE 2. TRIAL, JUDGMENT, AND APPEAL
SUBTITLE C. JUDGMENTS
CHAPTER 37. ^EC]J^RATORY__JUDGMENTS_
Sec. 37.001. DEFINITION. In this chapter, "person" means an
individual, partnership, joint-stock company, unincorporated association or
society, or municipal or other corporation of any character.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.002. SHORT TITLE, CONSTRUCTION, INTERPRETATION. (a) This
chapter may be cited as the Uniform Declaratory Judgments Act.
(b) This chapter is remedial; its purpose is to settle and to afford
relief from uncertainty and insecurity with respect to rights, status, and
other legal relations; and it is to be liberally construed and
administered.
(c) This chapter shall be so interpreted and construed as to
effectuate its general purpose to make uniform the law of those states that
enact it and to harmonize, as far as possible, with federal laws and
regulations on the subject of declaratory judgments and decrees.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.003. POWER OF COURTS TO RENDER JUDGMENT; FORM AND EFFECT,
(a) A court of record within its jurisdiction has power to declare rights,
status, and other legal relations whether or not further relief is or could
be claimed. An action or proceeding is not open to objection on the ground
that a declaratory judgment or decree is prayed for.
(b) The declaration may be either affirmative or negative in form and
effect, and the declaration has the force and effect of a final judgment or
decree.
(c) The enumerations in Sections 37.004 and 37.005 do not limit or
restrict the exercise of the general powers conferred in this section in
any proceeding in which declaratory relief is sought and a judgment or
decree will terminate the controversy or remove an uncertainty.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. C//__ ^ *
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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 37. DECLARATORY JUDGMENTS Page 2 of 4
Sec. 37.004. SUBJECT MATTER OF RELIEF. (a) A person interested
under a deed, will, written contract, or other writings constituting a •
contract or whose rights, status, or other legal relations are affected by
a statute, municipal ordinance, contract, or franchise may have determined
any question of construction or validity arising under the instrument, '
statute, ordinance, contract, or franchise and obtain a declaration of
rights, status, or other legal relations thereunder.
(b) A contract may be construed either before or after there has been
a breach.
(c) Notwithstanding Section 22.001, Property Code, a person described
by Subsection (a) may obtain a determination under this chapter when the
sole issue concerning title to real property is the determination of the
proper boundary line between adjoining properties.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Amended by:
Acts 2007, 80th Leg.., R.S., Ch. 305, Sec. 1, eff. June 15, 20:07.
Sec. 37.005. DECLARATIONS RELATING TO TRUST OR ESTATE. A person
interested as or through an executor or administrator, including an
independent executor or administrator, a trustee, guardian, other
fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que
trust in the administration of a trust or of the estate of a decedent, an
infant, mentally incapacitated person, or insolvent may have a declaration
of rights or legal relations in respect to the trust or estate:
(1) to ascertain any class of creditors, devisees, legatees,
heirs, next of kin, or others;
(2) to direct the executors, administrators, or trustees to do
or abstain from doing any particular act in their fiduciary capacity;
(3) to determine any question arising in the administration of
the trust or estate, including questions of construction of wills and other
writings; or •
(4) to determine rights or legal relations of an independent
executor or independent administrator regarding fiduciary fees and the
settling of accounts.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts
1987, 70th Leg., ch. 167, Sec. 3.08(a), eff. Sept. 1, 1987; Acts 1999,
76th Leg., ch. 855, Sec. 10, eff. Sept. 1, 1999.
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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 37. DECLARATORY JUDGMENTS Page 3 of4
Sec. 37.0055. DECLARATIONS RELATING TO LIABILITY FOR SALES AND USE
TAXES OF ANOTHER STATE. (a) In this section, "state" includes any
political subdivision of that state.
(b) A district court has original jurisdiction of a proceeding
seeking a declaratory judgment that involves:
(1) a party seeking declaratory relief that is a business that
is:
(A) organized under the laws of this state or is otherwise
owned by a resident of this state; or
(B) a retailer registered with the comptroller under
Section 151.106, Tax Code; and
(2) a responding party that:
(A) is an official of another state; and
(B) asserts a claim that the party seeking declaratory
relief is required to collect sales or use taxes for that state based on
conduct of the business that occurs in whole or in part within this state.
(c) A business described by Subsection (b)(1) is entitled to
declaratory relief on the issue of whether the requirement of another state
that the business collect and remit sales or use taxes to that state
constitutes an undue burden on interstate commerce under Section 8, Article
I, United States Constitution.
(d) In determining whether to grant declaratory relief to a business
under this section, a court shall consider:
(1) the factual circumstances of the business's operations that
give rise to the demand by the other state; and
(2) the decisions of other courts interpreting Section 8,
Article I, United States Constitution.
Added by Acts 2007, 80th Leg., R.S., Ch. 699, Sec. 1, eff. September 1,
2007.
Sec. 37.006. PARTIES. (a) When declaratory relief is sought, all
persons who have or claim any interest that would be affected by the
declaration must be made parties. A declaration does not prejudice the
rights of a person not a party to the proceeding.
(b) In any proceeding that involves the validity of a municipal
ordinance or franchise, the municipality must be made a party and is
entitled to be heard, and if the statute, ordinance, or franchise is
alleged to be unconstitutional, the attorney general of the state must also
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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 37. DECLARATORY JUDGMENTS Page 4 of 4
be served with a copy of the proceeding and is entitled to be heard.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.007. JURY TRIAL. If a proceeding under this chapter involves
the determination of an issue of fact, the issue may be tried and
determined in the same manner as issues of fact are tried and determined in
other civil actions in the court in which the proceeding is pending.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.008. COURT REFUSAL TO RENDER. The court may refuse to render
or enter a declaratory judgment or decree if the judgment or decree would
not terminate the uncertainty or controversy giving rise to the proceeding.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.009. COSTS. In any proceeding under this chapter, the court
may award costs and reasonable and necessary attorney's fees as are
equitable and just.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.010. REVIEW. All orders, judgments, and decrees under this
chapter may be reviewed as other orders, judgments, and decrees.'
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 37.011. SUPPLEMENTAL RELIEF. Further relief based on a
declaratory judgment or decree may be granted whenever necessary or
proper. The application must be by petition to a court having,jurisdiction
to grant the relief. If the application is deemed sufficient, the court
shall, on reasonable notice, require any adverse party whose rights have
been adjudicated by the declaratory judgment or decree to show cause why
further relief should not be granted forthwith.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
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Opinion issued July 2, 2009
In The
Court nf Appeals
For The
Jfltrat District of ®cxaB
NO. 01-07-00578-CV
LARRY E. POTTER, Appellant
CLEAR CHANNEL OUTDOOR, INC., Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2005-66527
MEMORANDUM OPINION
Appellant, Larry E. Potter, appeals a judgment rendered upon a motion for
summaryjudgment filedby appellee,ClearChannelOutdoor, Inc. ("Clear Channel"),
in a dispute concerning the construction oflease agreements. We determine whether
the trial court erred in granting Clear Channel's motion for traditional summary
judgment and in denying Potter's motion for traditional summary judgment. We
reverse the trial court's judgment in part, affirm the judgment in part, and remand this
cause with instructions.
Background
In 1997, National Advertising Company ("National"), a predecessor in interest
to Clear Channel, and Potter executed 10 identical1 ground leases, six of which are
the subject of this appeal. The leases were for a 10-year term, with an effective
starting date of August 1, 1995. Pursuant to each lease, National was permitted to
erect billboard signs on tracts of land belonging to Potter in exchange for the greater
of a fixed monthly rental or a percentage of the gross income that National derived
from selling advertising space on the billboard signs. Under paragraph nine of each
lease, "at the termination of the lease," National had a "right of first refusal" to
continue to rent the land if Potter chose further to rent or to use his land for outdoor
advertising. This right expired one month "after the lease expire[d]." Paragraph three
ofeach lease also gave National, under certain conditions, the right to "terminate this
lease" and provided Potter the option to purchase the entire sign structures and
1 The leases differed only with regard to the tract of property affected.
2
permits from National "[i]n the event of such cancellation or in the event this lease
is terminated for any reason and the parties have not executed a new lease or renewal
of this Lease."
During the term of the leases, Clear Channel purchased six signs from a
predecessor outdoor advertising company, and those six leases were assigned to Clear
Channel.2 Clear Channel did not succeed in contacting Potter regarding renewal of
its leases before their expiration date of July 31, 2005. On August 1, 2005, Clear
Channel sent the usual lease payments to Potter, but Potter returned the checks by a
letter dated August 25, 2005, in which he noted that Clear Channel's leases had
expired by their own terms on July 31,2005, and that he was "declining to extend the
ground leases for an additional one (1) year term on a holdover basis." On August
25, 2005, a representative of Clear Channel reached Potter, and they discussed
renewing the leases. On August 29,2005, Potter forwarded proposed renewal leases
to Clear Channel, which Clear Channel received the following day. On September
1,2005, Potter sent Clear Channel a letter informing Clear Channel that he intended
to exercise his right to purchase the sign structures and permits, with the purchase
price to be decided pursuant to the "terms of the ground lease."
Three of the remaining leases were also the subject of litigation and of a
separate appeal before this Court. See Nat'I Adver. Co. v. Potter, No. 01-06-
01042-CV, 2008 WL 920338, at *1 (Tex. App.—Houston [1st Dist] Apr. 3,
2008, pet. denied) (memo op.).
After receiving Potter's September 1 letter, Clear Channel's attorney sent a
letter to Potter detailing Clear Channel's position that, because its leases had not
"terminated, but rather [had] expired," paragraph three of the leases did not provide
Potter the option to purchase the sign structures, and stating also that Clear Channel
was declining Potter's offer to purchase the signs.3 The letter also recited that Clear
Channel was willing to continue discussions with Potter to execute new leases or to
renew the prior leases, as had already been communicated to Potter on August 30, but
that if a new lease agreement was not reached by October 20, 2005, Clear Channel
would begin removing the sign structures. Clear Channel continued to attempt to
Paragraph three of the leases provided:
3. Lose [sic] of Use of Sign Structures. If at any time the
highway view of [National's (later, Clear Channel's)] displays is
obstructed or obscured, or the use or installation of such displays
is prevented or restricted by law or by [National's (later, Clear
Channel's)] inability to obtain or maintain any necessary permits
or licenses, or if there occurs a diversion of traffic from, or a
change in the direction of traffic on highways leading past
[National's (later, Clear Channel's)] displays, [National (later,
Clear Channel)] may, at its option, terminate this lease as to such
specific location by giving 30 days written notice to [Potter]. In
the event of such cancellation or in the event this lease is
terminated for any reason and the parties have not executed a new
lease or renewal of this Lease, [Potter] shall have the option to
purchase the entire sign structure and permits from [National
(later, Clear Channel)] for the then current market value of an
installed fabricated structure, such value to be determined by the
average ofthree (3) bids to be obtained from three (3) major sign
fabricators.
negotiate renewal leases with Potter after this letter, but expressed to Potter that it had
problems with the language of the proposed renewal leases, and suggested alternate
terms.
On October 18,2005, Potter filed suit against Clear Channel. Potter sought (1)
a temporary restraining order, temporary injunction, and permanent injunction
preventing Clear Channel fromremoving the billboards; (2) ajudgment in the amount
equal to the fair market value for the use of the billboards on his properties beyond
the contractual period under the theory of quantum meruit; and (3) a declaratory
judgment that Clear Channel had exercised its right of first refusal under paragraph
nine by declining to accept the terms of Potter's proposed renewal leases and that
Potter was therefore entitled to exercisehis right to purchase the entire sign structures
and permits from Clear Channel for the current market value ofan installed fabricated
structure. He also prayed for recovery of his attorney's fees and costs.
Clear Channel filed an answer that generally denied the allegations in Potter's
petition, raised the affirmative defenses of waiver and ambiguity, and contained a
counterclaim for declaratory judgment. In its counterclaim, Clear Channel sought
declarations (1) that in order for the option to purchase under paragraph 3 to become
effective, the lease must have "actually been terminated"; (2) that the leases had not
terminated, but had expired; and (3) that therefore Potter did not have an option to
purchase the signs. It also sought to recover its attorney's fees and costs.
Potter filed a motion for traditional summary judgment on his declaratory
judgment claim only; while that motion was still pending, Clear Channel filed its own
motion for summary judgment that also addressed only the declaratory judgment
claims. Neither motion addressed the quantummeruit claim in Potter's petition, and
Clear Channel's motion did not address Potter's claim for attorney's fees and costs.4
Potter's motion for traditional summary judgment sought declarations that
(1)Clear Channel hadexercised itsright offirst refusal byrejecting Potter'sproposed
lease agreement and (2) Potter was entitled to exercise his option to purchase sign
structures andpermits from Clear Channel. Asgrounds forhis motion, Potterargued
that
(1) Clear Channel's rejection of the terms of Potter's proposed
renewal lease agreements was an exercise of its right of first
refusal under paragraph nine of the leases and Clear Channel
could no longer accept Potter's offer to extend the lease
agreements and
(2) Potter was entitled to exercise his right to purchase the entire sign
structures and permits pursuant to the terms ofparagraph three of
the Leases, because such paragraph gave him the option to
purchase "in the event [that the] lease [was] terminated for any
reason and the parties [had] not executed a new lease or renewal
of the lease." Potter asserted that because the leases had expired
and there were no new leases or renewal of the prior leases
Potter's injunctive reliefrequests were resolved by way ofa rule 11 agreement
between the parties.
between the parties, his option to purchase became effective.
In addition to a declaratory judgment in his favor, Potter sought recovery of his
attorney's fees and costs.
In its motion for traditional summary judgment, Clear Channel also pursued a
judicial declaration interpreting paragraph three of the leases. Clear Channel's
motiondid not specifywhetherClearChannel was moving for summaryjudgment on
its declaratory judgment counterclaim, or attempting to defeat Potter's declaratory
judgment claim, or both, although language in the motion suggested the last.5 As its
grounds for the grant of its summary judgment, Clear Channel argued that
(1) the Leaseswerenot ambiguous and Potterhad no effectiveoption
to purchase because the leases had "expired," rather than
"terminated," and paragraph three provided Potter the option to
purchase only upon the "termination" of the lease
(2) alternatively, the leases were ambiguous and should be construed
against Potter and the leases should be construed to mean that the
option to purchase did not arise in the event of the expiration of
the leases, but only on their termination; and
(3) alternatively, Potter had waived any option to purchase because
discussions continued between Potter and Clear Channel about
possible renewal of the leases after Potter had attempted to
exercise his option to purchase.
Clear Channel prayed that summary judgment be granted "on all grounds
In a later filing, Clear Channel stated that "both sides have filed motions for
summary judgment regarding their respective declarations."
stated" in the motion, that Potter "take nothing on his claim against Clear Channel,"
and that the court award Clear Channel its costs of court and reasonable attorney's
fees. Clear Channel also prayed that, "if summary judgment for Clear Channel [was]
not rendered as to all of Clear Channel's claims, or for all the relief requested," the
trial court enter an order specifying the facts that were without substantial
controversy.
On June 18,2007, the trial court granted Clear Channel's motion for summary
judgment and denied Potter's motion for summary judgment in an order that read:
On this day came to be considered PlaintiffLarry E. Potter's Motion for
Summary Judgment and Defendant Clear Channel Outdoor, Inc.'s
Cross-Motion for Summary Judgment. The court, having considered the
motion, pleadings, responses, and summary judgment evidence hereby
DENIES Plaintiffs Motion for Summary Judgment and GRANTS
Defendant's Cross-Motion for Summary Judgment.
It is therefore ORDERED that Plaintiffs Motion for Summary Judgment
is DENIED and Defendant's Cross-Motion for Summary Judgment is
GRANTED.
On August 14, 2007, the trial court issued a final judgment, confirming the
grant ofClear Channel's motion and the denial ofPotter's motion, and denying Clear
Channel's request for attorney's fees. The judgment read:
By Order dated June 18, 2007, the Court denied Plaintiff Larry E.
Potter's Motion for Summary Judgment and granted Defendant Clear
Channel Outdoor, Inc.'s Cross-Motion for Summary Judgment. In
doing so, the Court failed to address Clear Channel's request for an
award of attorney's fees. Accordingly, it is
ORDERED that Defendant Clear Channel Outdoor, Inc. 's request for an
award of attorney's fees is hereby denied.
This is a final and appealable judgment, which, in conjunction with the
Court's order ofJune 18,2007, disposes ofall claims and parties in this
cause.6
Standard of Review
In two issues, Potter contends that the trial court erroneously granted Clear
Channel's motion for summary judgment and erroneously denied his motion for
summary judgment.
Both parties' motions sought summary judgments that would declare the
Nothing in the record indicates that Potter's quantum meruit claim for the fair
market value of the use of the billboards on his properties beyond the
contractual period was ever presented to the court for resolution either by trial,
summary judgment, or dismissal. However, the language of the "final
judgment" indicates that the judgment was meant to dispose of all claims and
all parties, and it clearly expresses the trial court's intent that the judgment be
final. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001)
(holding that language ofjudgment can make judgment final, even though it
should have been interlocutory, when intent to finally dispose of case is
unequivocally expressed in words of judgment). "A judgment which grants
more relief than a party is entitled to is subject to reversal, but is not, for that
reason alone, interlocutory." Id. The judgment before us, therefore, is final,
albeit subject to challenge as erroneous to the extent that it disposed ofa claim
without "an adequate basis for the rendition ofjudgment." See id. However,
Potter does not complain on appeal, either by issue or argument, of the trial
court's disposition of his quantum meruit claim. See Tex. R. App. P. 38.1(i).
Accordingly, we will affirm that portion ofthe judgment without regard to the
merits. See Garcia v. Nat'I Eligibility Express, Inc., 4 S.W.3d 887, 889 (Tex.
App.—Houston [1st Dist] 1999, no pet.) (citing Walling v. Metcalfe, 863
S.W.2d 56, 58 (Tex. 1993)).
parties' rights pursuant to the declaratory judgment actions.7 We review declaratory
judgments under the same standards as otherjudgments. See Tex. Civ. Prac. & Rem.
Code Ann. § 37.010 (Vernon 2008). We look to the procedure used to resolve the
issue below to determine the standard ofreview on appeal. City ofGalveston v. Tex.
Gen. Land Office, 196 S.W.3d 218,221 (Tex. App.—Houston [1st Dist] 2006, pet.
denied). When a trial court resolves a declaratory judgment action on competing
motions for summaryjudgment, "we review the propriety ofthe declaratoryjudgment
under the same standards that we apply in reviewing a summary judgment." Id.
We review a trial court's decision to grant or to deny a motion for summary
See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (Vernon 2008).
We note that the trial court's final judgment failed to actually declare any
rights of the parties. In a declaratory judgment action, if a declaratory
judgment would terminate the uncertainty or controversy giving rise to the
lawsuit, the trial court is duty-bound to declare the rights ofthe parties as to the
matters on which the parties join issue. See Tex. Civ. Prac. & Rem. Code
Ann. § 37.008 (Vernon 2008); Spawglass Constr. Corp. v. City ofHouston,
91A S.W.2d 876, 878 (Tex. App.—Houston [14th Dist.] 1998, pet. denied);
Calvert v. Employees Ret. Sys. of Tex., 648 S.W.2d 418, 419 (Tex.
App.—Austin 1983, writ refd n.r.e.). The judgment in the case before us did
not make any declarations regarding the matters for which declarations were
sought by the parties. This was error. When a trial court errs by failing to
declare the rights of the parties in its judgment, the appellate court may
determine the rights of parties and render the judgment that the trial court
should have rendered. See Spawglass Constr., 91A S.W.2d at 879; James v.
HitchcockIndep. Sch. Dist., 742 S.W.2d 701, 705 (Tex. App.—Houston [1st
Dist.] 1987, writ denied); Am. Eagle Ins. Co. v. Lemons, 722 S.W.2d 229,230
(Tex. App.—Amarillo 1986, no writ); Calvert, 648 S.W.2d at 421.
10
judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm 'n ofTex., 253
S.W.3d 184, 192, 199 (Tex. 2007) (citing rule for review of grant of summary
judgment and reviewing denied cross-motion for summary judgment under same
standard). Although a denial of summary judgment is not normally reviewable, we
may review such a denial when both parties move for summary judgment and the trial
court grants one motion and denies the other. Id. at 192. When the trial court's ruling
granting one summary judgment motion necessarily denies another pending motion
for summary judgment on the same issue, such as here, we imply the ruling ofdenial.
See Frank's Int'l, Inc. v. Smith Int'l, Inc., 249 S.W.3d 557, 559 n.2 (Tex.
App.—Houston [1st Dist.] 2008, no pet.). In our review of such cross-motions, we
review the summary judgment evidence presented by each party, determine all
questions presented, and render the judgment that the trial court should have
rendered. Tex. Mun. Power Agency, 253 S.W.3d at 192 (citing Comm'rs Court v.
Agan, 940 S.W.2d 77, 81 (Tex. 1997)).
Under the traditional summary judgment standard, the movant has the burden
to show that no genuine issues ofmaterial fact exist and that it is entitled to judgment
as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690
S.W.2d 546, 548 (Tex. 1985). In deciding whether there is a disputed material fact
issue precluding summaryjudgment, evidence favorable to the non-movant will be
11
taken as true, and every reasonable inference must be indulged in favor of the non-
movant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-49. A
defendant moving for summary judgment must conclusively negate at least one
essential element of each of the plaintiffs causes ofaction or conclusively establish
each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d
910, 911 (Tex. 1997). Ifthe order granting the summary judgment does not specify
the grounds upon which judgment was rendered, we must affirm the summary
judgment ifany ofthe grounds in the summaryjudgment motion is meritorious. FM
Props. Operating Co. v. City ofAustin, 22 S.W.3d 868, 872 (Tex. 2000).
Clear Channel's Motion for Summary Judgment
Potter's first issue complains of the trial court's grant of Clear Channel's
motion for summary judgment. Potter challenges all three of Clear Channel's
grounds for summaryjudgment, arguing that the trial court incorrectly interpreted the
leases and that he did not waive his right to exercise his option to purchase.
A. Construction of the Leases
Clear Channel's first two grounds for summary judgment related to the
construction of the leases and specifically to the question of whether the phrase,
... [i]n the event of such cancellation or in the event this lease is
terminated for any reason and the parties have not executed a new lease
or renewal of this Lease, [Potter] shall have the option to purchase the
entire sign structure and permits from [National (later, Clear Channel)]
12
that is contained in paragraph three of the leases provided Potter an option to
purchase the sign structures and permits when the lease terms expired. Clear Channel
argued that the word "terminated" did not include the expiration of a lease. Potter
argued that the phrase "terminated for any other reason" included the expiration of
the leases at the end of their natural terms.
We construe a lease under the well-established rules of contract construction.
SeeLuccia v. Ross, 21A S.W.3d 140,146 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied). In construing a written contract, the primary concern is to ascertain and to
give effect to the parties' intentions as expressed in the document. Frost Nat 7 Bank
v. L&FDistribs., Ltd., 165 S.W.3d 310,311-12 (Tex. 2005). We consider the entire
writing and attempt to harmonize and to give effect to all of the provisions of the
contract by analyzing the provisions with reference to the whole agreement. Id. at
312. No single provision is given controlling effect. J.M. Davidson, Inc. v. Webster,
128 S.W.3d 223, 229 (Tex. 2003). "In harmonizing these provisions, terms stated
earlier in an agreement must be favored over subsequent terms." Coker v. Coker, 650
S.W.2d 391, 393 (Tex. 1983). We construe contracts "from a utilitarian standpoint
bearing in mind the particular business activity sought to be served" and "will avoid
when possible and proper a construction which is unreasonable, inequitable, and
oppressive." Frost Nat'IBank, 165 S.W.3dat312 (quoting Reilly v. RangersMgmt.,
13
Inc., 727 S.W.2d 527, 530 (Tex. 1987)). If, after the pertinent rules of construction
are applied, the contract can be given a definite or certain legal meaning, it is
unambiguous, and we construe it as a matter of law. Id.
Both parties agree that the leases had expired, and that the parties had not
executed new leases or a renewal of the leases, when Potter informed Clear Channel
that he was exercising his option to purchase the sign structures and permits under the
terms ofthe leases. Both parties assert that paragraph three ofthe leases, pertaining
to such option to purchase, is unambiguous, although they construe the provision
differently.8
We agree that the disputed language is unambiguous and so determined
recently in another appeal before us involving three additional leases between Potter
and National, containing identical language and executed on the same day as the
leases at issue in this appeal.9 InNational Advertising Co. v. Potter, we decided that
language identicalto that before us in this appeal provided Potter the option to
purchase sign structures and permits when the leases expired at the end of their
natural terms. See No. 01-06-01042-CV, 2008 WL 920338, at *5-7 (Tex.
The mere fact that parties may disagree about the construction of a contract
provision does not render it ambiguous. See Sun Oil Co. (Delaware) v.
Madeley, 626 S.W.2d 726, 727 (Tex. 1981).
Apart from the particular tract ofproperty affected by each lease, the leases in
National Advertising were identical to those before us.
14
App.—Houston [1st Dist.] Apr. 3, 2008, pet. denied) (memo op.). We held that the
leases were not ambiguous and that the word "terminate," as used in the leases,
included the expiration of the lease term. Id. at *6-7. In so holding, we explained
that
[examining paragraph three and giving its terms their generally
accepted meaning, it is clear that the parties intended that, in the event
that a specific sign or location became useless by the occurrence of one
of various specified situations, National was granted the right to
immediatelyterminateits Leaseofthe specificlocation. Paragraph three
grants Potter the option to purchase the sign structures and permits from
National, "[i]n the event ofsuch cancellation." (Emphasis added.)
However, paragraph three contemplates a second situation in
which Potter is granted the option to purchase the signs and permits
from National: "in the event this lease is terminated for any reason and
theparties have not executed a new lease or renewal of this Lease.'"
Paragraph three also governs in the event that the Leases are terminated
"for any reason" and the parties do not execute a new lease or a
"renewal." Use of the term "renewal" naturally contemplates an
expiration. That the parties could have intended the circumstance in
which one party prematurely terminates the Lease and then "renews" it
is not a reasonable interpretation. Hence, the parties must have intended
"terminated," as used within the Leases, to include expiration .... The
term[] "terminated"... include[s] the expiration of the Leases on their
natural terms . . . .
Id.
Clear Channel contends that there are material differences between National
Advertising and this cause and cites to different evidence before the trial court in the
motions for summaryjudgment at issue and the fact that, in NationalAdvertising, the
parties presented an agreed statement of facts and filed an agreed motion for
15
judgment based on the agreed facts. Clear Channel argues that extrinsic evidence
presented to the trial court in this cause—evidence related to the negotiations in the
original signing of the leases in 1997 and to the attempts to renew the leases in
2005—supports upholding the trial court's ruling, even though such ruling implicitly
construes the contract contrary to our interpretation ofthe same language in National
Advertising. Clear Channel further argues that it is proper for us to consider the
"circumstances surrounding the execution of an unambiguous contract" when
interpreting that contract, citing to CityofPinehurst v. Spooner Addition Water Co.,
432 S.W.2d 515 (Tex. 1968).
Clear Channel has misconstrued the holding ofPinehurst. A reviewing court
mayconsiderthe surrounding circumstances10 presentat thetime thatthe contractwas
entered into in order to determine whether the contract is ambiguous, but, once a
reviewing court decides that a contact is unambiguous, extrinsic evidence may be not
be utilized to determine the parties' intent. See Nat'I Union Fire Ins. Co. v. CBI
Indus., Inc., 907 S.W.2d 517, 520-22 (Tex. 1995); Sun Oil Co. (Delaware) v.
Madeley, 626 S.W.2d 726, 731-32 (Tex. 1981). Because we have determined that
the language at issue is unambiguous, we do not consider the proffered extrinsic
10 For example, extrinsic evidence ofthe "trade usage" meaning ofa term within
a particular industry may be considered in determining whether that term has
a definite or certain legal meaning for the purpose of the contract. See Nat'I
Union Fire Ins. Co. v. CBIIndus., Inc., 907 S.W.2d 517, 521 n.6 (Tex. 1995).
16
evidence in interpreting the unambiguous language of the leases at issue."
After reviewing the summaryjudgment motions and responses in this case, and
the accompanying evidence to the extent that it may be considered, we determine that
our previous interpretation of the same language, in identical leases, signed by the
same parties, on the same day, should govern our interpretation of the leases before
us in this appeal. We conclude, for the reasons set out in our opinion in National
Advertising, that paragraph three of the leases is not ambiguous and declare that,
under its terms, Potter had an option to purchase the entire sign structure and permit
which was the subject of each lease upon the expiration of the lease term.
B. Waiver
Clear Channel's final ground for summary judgment was its affirmative
defense that, ifPotter had an effective option to purchase, he had waived that option
because discussions continued between Potter and Clear Channel about possible
renewal ofthe leases after the date that the leases expired and after the date on which
Potter had attempted to exercise his option to purchase. As evidence for this ground,
Clear Channel cited its own attempts to contact Potter in order to renew the leases,
Potter's August 29 forwarding of proposed renewal leases in response to Clear
1] We note, however, that the circumstances surrounding both the leases at issue
in National Advertising, and those in the present case, were exactly the same
because both sets of contracts were executed between the same parties on the
same day under the same circumstances.
17
Channel's overture to Potter on August 25, and a September 30 email from a
representative of Clear Channel to Potter, in which the representative mentioned
speaking to Potter and proposed certain terms for renewal of the leases.
"The affirmative defense of waiver can be asserted against a party who
intentionally relinquishes a known right or engages in intentional conduct
inconsistent with claiming that right." Tenneco, Inc. v. Enter. Prods. Co., 925
S.W.2d 640, 643 (Tex. 1996). In order to be entitled to a summary judgment on
waiver, Clear Channel had to establish conclusively each element ofthis affirmative
defense. See Sci. Spectrum, 941 S.W.2d at 911. Therefore, Clear Channel was
required to establish conclusively that Potter had either (1) expressly waived his
option to purchase or (2) engaged in conduct inconsistent with his option to purchase.
See Tenneco, 925 S.W.2d at 643.
Clear Channel did not do so. There is no evidence in the record that Potter
expressly waived his option to purchase, and the evidence offered on this matter does
not conclusively establish an implied intent on the part of Potter to waive his option
to purchase. "Waiver is largely a matter ofintent, and for implied waiver to be found
through a party's actions, intent must be clearly demonstrated by the surrounding
facts and circumstances.'' Jernigan v. Langley, 111 S.W.3d 153,156 (Tex. 2003). In
order to establish waiver by conduct, the conduct must be "unequivocally
inconsistent" with claiming a known right. Van Indep. Sch. Dist. v. McCarty, 165
18
S.W.3d 351, 353 (Tex. 2005). The evidence on summary judgment does not
conclusively establish that Potter engaged in "clear, unequivocal, and decisive acts"
evidencing the intention to waive his option to purchase. See Estes v. Wilson, 682
S.W.2d 711,714 (Tex. App.—Fort Worth 1984, writ ref d n.r.e.) ("It is an established
rule of law that to prove an implied waiver of a legal right, there must be a clear,
unequivocal and decisive act of a party showing a purpose or acts which amount to
estoppel on his part."). We hold that Clear Channel did not meet its burden to be
entitled to summary judgment on the affirmative defense of waiver.12
C. Resolution
Having concluded that, under the unambiguous language ofparagraph three of
the leases, Potter had an option to purchase the entire sign structure and permit that
was the subject of each lease upon the expiration of the lease term, and, having
determined that Clear Channel did not conclusively establish that Potter waived his
option to purchase the sign structures and permits, we hold that Clear Channel was
not entitled to the summary judgment requested. We sustain Potter's first issue.
Potter's Motion for Summary Judgment
In his second issue, Potter asserts that the trial court erred in denying his
motion for summary judgment. As previously detailed, in his summary judgment
12 Neither Potter nor Clear Channel sought a declaratory judgment on the
question of waiver and so we make no declaration on this matter.
19
motion, Potter sought two declarations from the trial court: (1) that Clear Channel had
exercised its right of first refusal by rejecting Potter's proposed lease agreement and
(2) that Potter was entitled to exercise his option to purchase sign structures and
permits from Clear Channel. He also sought attorney's fees.
We have already determined that the leases provided Potter an option to
purchase the sign structures and permits upon the expiration of the leases,and,
thereforevwe hold that Potter was entitled to summary judgment declaring that he had
such an option. Our resolution ofPotter's other question in his declaratory judgment
action—whether Clear Channel had exercised its right of first refusal—is likewise
guided by our opinion in National Advertising. In that case, when deciding whether
National had exercised its right of first refusal under an identical paragraph nine as
in the leases before us, we stated, "Here, National declined to renew the Leases on the
terms offered by Potter in his August 25, 2005 correspondence. Hence, National
exercised its right of first refusal when it rejected Potter's offer." Nat 'lAdver., 2008
WL 920338, at *4. For the same reasons stated in that opinion, we declare that Clear
Channel exercised its right of first refusal when it declined to renew the leases under
the terms offered by Potter to Clear Channel in the letter mailed on August 29,2005.
However, as to the issue ofattorney's fees, Potter's summary judgment sought
recovery ofhis attorney's fees and costs for both the declaratory judgment claim and
20
his quantum meruit claim,13 and the evidence provided to the trial court did not
distinguish between fees related to each distinct claim.14 Potter may not recover
attorney's fees and costs for the quantum meruit claim on which he did not prevail or
recover damages. See Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997).
Additionally, any "award [of] costs and reasonable and necessary attorney's fees as
are equitable and just" in a declaratory judgment action is within the discretion ofthe
trial court. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 2008).
The trial court presumably did not award attorney's fees or costs to Potter
because it denied his motion for summary judgment on his declaratory judgment
claim. Because we have reversed the trial court's denial of Potter's summary
13
Potter's summary judgment motion specified that he was seeking attorney's
fees and costs "pursuant to Tex. Civ. Prac. & Rem. Code § 37.001 et. seq. and
[sic] Tex. Bus. & Comm. Code § 38.011, et. seq." The first reference is clearly
seeking recovery for attorney's fees related to his declaratory judgment action.
See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 2008) (permitting
trial court to award "costs and reasonable and necessary attorney's fees as are
equitable and just" in action for declaratory judgment). The second seems to
be an attempt to recover attorney's fees related to the quantum meruit claim.
See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 2008) (permitting
recovery for attorney's fees and costs for variety of claims, including claims
as to rendered services, performed labor, furnished material, or oral or written
contract).
14
See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299,313-14 (Tex. 2006)
(reaffirming rule that ifany attorney's fees relate solely to claim for which fees
are unrecoverable, claimant must segregate recoverable fees from
unrecoverable fees, and holding that remand required when fees not segregated
and at least some of attorney's fees are attributable only to claims for which
fees are not recoverable).
21
judgment, because we have declared in his favor the issues before the trial court for
declaratory judgment,and because anyawardfor costsand reasonable and necessary
attorney's fees "as are equitable and just" in a declaratory judgment action is
discretionary, we conclude that cause should be remand to the trial court for it to
consider the issue of Potter's attorney's fees and costs on his declaratory judgment.
We sustain Potter's second issue.
Conclusion
We reverse the trial court's judgment in part, affirm the judgment in part, and
remand this cause with instructions. We reverse the judgment to the extent that it
rendered summary judgment for Clear Channel and implicitly granted a declaratory
judgment for Clear Channel. We affirm the judgment to the extent that it implicitly
rendered a take-nothing judgment against Potter on his quantum meruit claim. We
remand this cause to the trial court with instructionsto render a declaratoryjudgment
in favor ofPotter consistent with this opinion and to consider Potter's request for the
award of attorney's fees and costs under Texas Civil Practice and Remedies Code
section 37.009. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009.
Tim Taft
Justice
22
Panel consists of Chief Justice Radack and Justices Sharp and Taft.15
15 The Honorable Tim Taft, retired justice, Court ofAppeals for the First District
of Texas, participating by assignment.
23