City of Shavano Park v. Ard Mor, Inc., Texas Ardmor Properties, L.P., and Texas Ardmor Management, LLC ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00781-CV
CITY OF SHAVANO PARK,
Appellant
v.
ARD MOR, INC., Texas Ardmor Properties, L.P., and Texas Ardmor Management, LLC,
Appellees
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-10796
Honorable Richard Price, Judge Presiding
OPINION ON MOTION FOR REHEARING
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: October 28, 2015
AFFIRMED IN PART, REVERSED AND RENDERED IN PART, REMANDED
This is an appeal from the trial court’s denial of appellant’s plea to the jurisdiction. In an
opinion and judgment dated July 29, 2015, we affirmed in part, reversed and rendered a dismissal
in favor of appellant in part, and remanded for further proceedings. On August 13, 2015, appellant
filed a motion for rehearing. Although we deny the motion for rehearing, we withdraw our opinion
and judgment of July 29, 2015, and issue this opinion and judgment in their place for the purpose
of clarifying why we believe remand is appropriate.
04-14-00781-CV
BACKGROUND
Texas Ardmore Properties, LP and Texas Ardmore Management, LLC are the owners of
real property located in Bexar County, Texas. Ard Mor, Inc. operates a childcare facility on the
property. 1 Lockhill Ventures, LLC owns two lots of land adjacent to the childcare facility.
Lockhill Ventures intends to build a gas station and gas storage tanks next to Ard Mor’s facility.
Lockhill Ventures’ property is subject to restrictive covenants contained in a Declaration of
Protective Covenants. The covenants permitted uses include: “[o]ffice, commercial, retail,
restaurants, financial institutions, multi-family, office service, schools, churches, health care or
medical facilities, or as otherwise permitted to the maximum extent by applicable zoning laws or
other Governmental Regulations, unless expressly prohibited herein.” [Emphasis added.] The
covenants prohibited uses include: (1) “any use prohibited by applicable zoning laws or other
Governmental Regulations,” (2) “[a]ny use which is noxious or offensive by reason of emission
or discharge of excessive . . . fumes or wastes, odorous, or particulate matter,” or (3) the “[s]torage,
handling or use of explosive material.”
The City of Shavano Park is located in Bexar County. The City’s zoning ordinances and
tables of permitted uses do not specify gasoline filling stations as a permitted use. Lockhill
Ventures’ property was not originally within the City limits. However, the City and Lockhill
Ventures entered into a “Development and Annexation Agreement” (the “Agreement”) under
which (1) the parties agreed to annexation of Lockhill Ventures’ property by the City, (2) the
parties acknowledged the proposed zoning of the property within the City limits, and (3) the City
agreed to initiate zoning of the property, upon approval by its city council of the annexation
petition and the Agreement, to allow Lockhill Ventures the right to develop the property in
1
Texas Ardmore Properties, LP; Texas Ardmore Management, LLC; and Ard Mor, Inc. are collectively referred to
herein as appellees.
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accordance with the terms of the Agreement. The Agreement defined the “project” as follows:
“The Development of the Property as two buildings being; (i) a convenience store, with gasoline
sales, lottery and lotto, tobacco and beer and wine sales and automatic carwash; and (ii)
approximately 2400 feet of retail or office lease space provided that the retail use complies with
the B2 permanent zoning assigned the property.” The Agreement also provided that, in the event
city council action placed the property in a zoning district or classification that prohibited the uses
proposed by the Agreement, the parties agreed Lockhill Ventures could either terminate the
Agreement or “pursuant to Texas Local Government Code Section 43.002 and to the extent
reasonably necessary, retain the right to develop and use the Property for the purposes authorized
under [the] Agreement.”
The City of Shavano Park city council was scheduled to consider Lockhill Ventures’
proposal for the Agreement on July 9, 2014. On that same date, appellees filed suit against both
Lockhill Ventures and the City. In their petition, appellees requested a declaration that Lockhill
Ventures’ intended use of its property did not comply with the Declarations of Protective
Covenants or with the City’s zoning ordinances. Appellees requested an injunction restraining
Lockhill Ventures from any development of the property or improvement of the property for the
purpose of dispensing gasoline until the trial court had an opportunity to construe the ordinances
to determine the parties’ rights and obligations under the covenants, zoning ordinances, and other
applicable laws and regulations. Appellees did not seek injunctive relief against the City.
Appellees asked the trial court to construe the City’s ordinances and other materials and
declare: (1) the Agreement void and unenforceable because it is unlawful contract zoning, (2) the
Agreement violates existing ordinances, (3) a City ordinance to annex the property resulted from
an illegal contract, (4) the City’s interpretation of its ordinances to allow Lockhill Ventures to
develop its property in a manner that violates the City’s Code of Ordinances violates equal
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protection rights, and (5) the actions of the City and its officials in contracting with Lockhill
Ventures and passing the annexation ordinance were ultra vires acts. Appellees also asserted a
breach of contract claim against Lockhill Ventures, alleging Lockhill Ventures breached the
Declaration of Protective Covenants.
On July 9, the trial court granted a temporary restraining order restraining Lockhill
Ventures from commencing or continuing development of its property. The trial court set a hearing
on the requested temporary injunction for July 23, 2014. On the evening of July 9, the City of
Shavano Park city council approved the Development and Annexation Agreement and passed an
ordinance annexing the property within the City limits. 2
On July 23, 2014, the City filed a plea to the jurisdiction, but did not set it for a hearing
when the plea was filed. The hearing on the temporary injunction commenced on July 30, 2014,
continued over several days, and concluded on September 19, 2014. A few days before the final
day of the injunction hearing, the City filed a supplement to its plea to the jurisdiction and set the
plea for a hearing on September 19, 2014.
Over the various days of the hearing, the trial court heard evidence on the requested
temporary injunction. On day three of the hearing, the City asked the trial court to consider its
plea. The trial court declined the request on the grounds that the only matter set before the court
was the temporary injunction and the City was not enjoined by the temporary restraining order.
On the last day of the hearing, September 19, the City again asked the trial court to consider its
plea. The court later issued an order denying the plea without stating its grounds. A few days
2
Ordinance No. O-2014-014 (hereinafter, the “annexation ordinance”) is the ordinance approved by the city council
that annexed Lockhill Ventures’ property.
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later, the trial court issued a temporary injunction against Lockhill Ventures enjoining Lockhill
Ventures from commencing or continuing development of its property. 3
In this interlocutory appeal, we consider only whether the trial court erred by denying the
City’s plea to the jurisdiction.
APPELLEES’ REQUEST FOR DECLARATORY RELIEF
As to the City, appellees asked the trial court to declare that Lockhill Ventures’ intended
use of its property to dispense gasoline violated the City’s ordinances in several ways, including
that (1) use of the premises as a gasoline station will involve business activities that violate
Ordinance 36-39(6) and (7); (2) the proposed use of the property is not a permitted use under any
zoning category in the City; (3) in the Agreement, the City agreed to permit Lockhill Ventures to
develop the property in a manner that violates several City zoning ordinances; and (4) the
Agreement does not comply with Code of Ordinances Section 36-40 and does not create or contract
for the creation of a Planned Unit Development in compliance with the ordinance. In an amended
pleading filed after the City filed its plea to the jurisdiction, appellees added additional requests
for declaratory relief: (1) declare the Agreement void and unenforceable because it is unlawful
contract zoning, (2) declare the annexation ordinance void, and (3) declare the actions of the City
and its officials in contracting with Lockhill Ventures and approving the annexation ordinance to
be ultra vires acts and violative of appellees’ equal protection rights. Thus, appellees’ requests for
declaratory relief against the City fall into four requests for relief: construe various City
ordinances, declare the Agreement void, declare the annexation ordinance void, and declare the
actions of the City and its officials to be ultra vires acts and violative of due process rights.
3
The injunction is not the subject of the current appeal.
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In its initial plea to the jurisdiction, the City asserted (1) pursuant to Texas Civil Practice
and Remedies Code section 37.006 it is not a necessary or proper party because appellees did not
challenge the validity of an ordinance; (2) no justiciable interest exists between appellees and the
City because the property lies within the City’s extraterritorial jurisdiction; therefore, the City’s
ordinances do not apply to the property; and (3) appellees lack standing to sue the City because no
act attributable to the City demonstrates any particularized harm to appellees. After appellees filed
their amended petition, the City filed a supplemental plea to the jurisdiction, asserting (1) only the
State may challenge the City’s annexation of Lockhill Ventures’ property in a quo warranto
proceeding; therefore, appellees lacked standing to bring a private cause of action; and (2)
appellees lacked standing to challenge the Agreement between the City and Lockhill Ventures.
On appeal, the City asserts (1) appellees lack standing to seek a declaration that the
Agreement is void; (2) appellees’ request to invalidate the annexation ordinance passed by the city
council fails because only a quo warranto proceeding may challenge an annexation ordinance; (3)
appellees’ equal protection claim fails; (4) appellees’ ultra vires claim fails; and (5) appellees
cannot show a cognizable claim and (in a single sentence) the “court may interpret the City’s
existing ordinances without the City being a party if necessary to the covenants.”
STANDARD OF REVIEW
In its plea, the City asserted appellees failed to plead any proper underlying claims or seek
any relief that invoked the trial court’s jurisdiction, and appellees failed to demonstrate standing
in their suit against the City. Sovereign immunity from suit defeats a trial court’s subject matter
jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).
Whether a court has subject matter jurisdiction is a question of law, which we review de novo.
Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). In our review,
we do not delve into the merits of a case or decide whether the plaintiff should win or lose on its
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claims. City of Argyle v. Pierce, 258 S.W.3d 674, 682 (Tex. App.—Fort Worth 2008, pet. dism’d).
Instead, we merely decide whether the trial court has the power to reach the merits of those claims.
Id.
To prevail on a plea to the jurisdiction, a party must show that even if all the allegations in
the plaintiff’s pleadings are taken as true, an incurable defect apparent on the face of the pleadings
makes it impossible for the pleadings to confer jurisdiction on the trial court. Rylander v. Caldwell,
23 S.W.3d 132, 135 (Tex. App.—Austin 2000, no pet.). When a plea to the jurisdiction challenges
the pleadings, we determine if the plaintiff has alleged facts that affirmatively demonstrate the
court’s jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. We construe the pleadings
liberally in favor of the plaintiff and look to the plaintiff’s intent. Id. If the pleadings do not
contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not
affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency
and the plaintiff should be afforded the opportunity to amend. Id. at 226-27. If the pleadings
affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted
without allowing the plaintiff an opportunity to amend. Id. at 227.
If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider
relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues
raised, as the trial court is required to do. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555
(Tex. 2000) (confining evidentiary review to evidence that is relevant to the jurisdictional issue).
The procedure for a plea to the jurisdiction when evidence has been submitted to the trial court
mirrors that of a traditional motion for summary judgment. Miranda, 133 S.W.3d at 228; see also
TEX. R. CIV. P. 166a(c). Thus, the burden is on the governmental entity, as the movant, to present
evidence establishing the trial court lacks jurisdiction as a matter of law. Miranda, 133 S.W.3d at
228. Thereafter, the burden shifts to the plaintiff to demonstrate a disputed issue of material fact
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exists regarding the jurisdictional issue. Id. If the evidence creates a fact question regarding
jurisdiction, the trial court must deny the plea to the jurisdiction and leave its resolution to the fact
finder. Id. at 227-28. On the other hand, if the evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter
of law. Id. at 228.
DECLARATION THAT DEVELOPMENT
AND ANNEXATION AGREEMENT IS VOID
In their petition, appellees asked the trial court to declare the Agreement between the City
and Lockhill Ventures void on the grounds that the Agreement is improper contract zoning.
Generally, a city has authority to annex an area if it is within its extraterritorial jurisdiction, or if it
owns the area. TEX. LOC. GOV’T CODE ANN. § 43.051 (West 2008); City of San Antonio v. Hardee,
70 S.W.3d 207, 211 (Tex. App.—San Antonio 2001, no pet.). And, there is no dispute a city has
authority to enter into a written contract with an owner of land located in the city’s extraterritorial
jurisdiction. See TEX. LOC. GOV’T CODE ANN. § 212.172(b) (West Supp. 2015). Therefore, the
City had the statutory right to enter into a development agreement with Lockhill Ventures
regarding annexation of Lockhill Ventures’ property. Id. The issue here is whether appellees have
standing to seek a declaration from the trial court that the Agreement between the City and Lockhill
Ventures is void on the grounds that the Agreement is improper contract zoning.
The premise of the City’s argument on appeal appears to be that there is no injury appellees
can identify that is attributable to the Agreement; the purported contracting away of the City’s
legislative functions fails to show injury; the tax payer exception for particularized injury fails
because appellees are not taxpayers nor can they show the requisite expenditure; and no justiciable
interest exists because any complained-of acts occur in the future.
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The general test for constitutional standing in Texas courts is whether there is a “real” (i.e.,
justiciable) controversy between the parties that will actually be determined by the judicial
declaration sought. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993);
Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 878 (Tex. App.—
Austin 2010, pet. denied). For a party to have standing to challenge a governmental action, as a
general rule, it “must demonstrate a particularized interest in a conflict distinct from that sustained
by the public at large.” South Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007); see
Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001) (“Our decisions have always required a plaintiff
to allege some injury distinct from that sustained by the public at large.”).
The United States Supreme Court, applying standing principles that are analogous to Texas
standing jurisprudence at least with respect to challenges to governmental action, has explained
that the “irreducible constitutional minimum” of standing consists of three elements: (1) “the
plaintiff must have suffered an ‘injury in fact’—an invasion of a ‘legally protected’ [or cognizable]
interest which is (a) concrete and particularized and (b) ‘actual or imminent, not conjectural or
hypothetical’”; (2) “there must be a causal connection between the injury and the conduct
complained of”—the injury must be “fairly traceable” to the challenged action of the defendant
and not the independent action of a third party not before the court; and (3) it must be likely, and
not merely speculative, that the injury will be redressed by a favorable decision. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see Brown, 53 S.W.3d at 305 (“[W]e may
look to the similar federal standing requirements for guidance.”); Save Our Springs Alliance, Inc.,
304 S.W.3d at 878 (citing Lujan).
The only testimony regarding particularized injury to the day care facility would have been
offered through the testimony of Sandra Nunez, a director of the Luv-N-Care Child Development
Center located on Ard Mor’s property. Ms. Nunez testified on the first day of the temporary
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injunction hearing, before the City actually set its plea to the jurisdiction for a hearing. Lockhill
Ventures’ attorney objected that Nunez’s testimony was irrelevant because, according to Lockhill
Ventures, appellees did not have the burden to show injury when a temporary injunction is sought
in the context of a breach of a restrictive covenant proceeding. The City expressed no opinion on
whether Nunez should testify. The trial court ruled it would “follow the law in this matter.”
“[A] court deciding a plea to the jurisdiction is not required to look solely to the pleadings
but may consider evidence and must do so when necessary to resolve the jurisdictional issues
raised.” Bland Indep. Sch. Dist., 34 S.W.3d at 555. “The court should, of course, confine itself to
the evidence relevant to the jurisdictional issue.” Id. As stated above, the City, as the movant, had
the burden to present evidence establishing the trial court lacked jurisdiction as a matter of law.
Miranda, 133 S.W.3d at 228. The burden did not shift to the appellees until the City satisfied its
burden. Id. Our review of the record reveals that, over the first three days of the hearing, the trial
court focused on whether appellees established their entitlement to a temporary injunction. The
City did not set its plea to the jurisdiction for a hearing when it filed its initial plea. Instead, the
City waited until four days before the last day of the temporary injunction hearing to set its plea
for a hearing. By the last day, all except one witness had testified, 4 and Lockhill Ventures had
earlier objected to testimony about the daycare facility as irrelevant to the temporary injunction
issue. Because the record reveals a full evidentiary hearing on the City’s plea was not conducted
on the date the City set its plea for a hearing, we conclude appellees were not given an opportunity
to fully develop evidence relevant to the City’s jurisdictional challenge to appellees’ standing to
request that the trial court declare the Agreement void. See Rusk State Hosp. v. Black, 392 S.W.3d
88, 96, 100 (Tex. 2012) (“a plaintiff may not have had fair opportunity to address jurisdictional
4
The last witness to testify and the only witness to testify on September 19 was Brian Lee Skelly, an expert in fire
investigations called by Lockhill Ventures. On September 19, the City cross-examined Skelly.
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issues by amending its pleadings or developing the record when the jurisdictional issues were not
raised in the trial court”); Bland Indep. Sch. Dist., 34 S.W.3d at 555 (acknowledging possibility of
remand for full evidentiary hearing). Therefore, remand on this claim is appropriate.
VALIDITY OF ANNEXATION ORDINANCE
In addition to seeking a declaration that the Agreement was void, appellees also asked the
trial court to declare that the annexation ordinance resulted from an illegal contract between the
City and Lockhill Ventures; therefore, the contract is void and the resulting ordinance is void.
The Texas Declaratory Judgment Act (the “DJA”) requires that relevant governmental
entities be made parties, and thereby waives immunity, for claims challenging the validity of
ordinances or statutes. TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b) (West 2015) (“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 be served with a copy of the
proceeding and is entitled to be heard.”); Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 622
(Tex. 2011) (“For example, the state may be a proper party to a declaratory judgment action that
challenges the validity of a statute.”); Heinrich, 284 S.W.3d at 373 n.6 (same). However, the DJA
does not enlarge a trial court’s jurisdiction, and a plaintiff’s request for declaratory relief does not
confer jurisdiction on a court or change a suit’s underlying nature.
On appeal, the City concedes section 37.006 may require a city be included in a suit when
an ordinance is sought to be invalidated. However, the City asserts a proper claim under section
37.006 must first exist. The City contends a proper claim does not exist here because only a quo
warranto proceeding brought by the State may challenge the annexation ordinance. Therefore, the
City concludes appellees do not have standing to bring a declaratory judgment action to invalidate
the annexation ordinance under section 37.006.
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The determination of whether an individual landowner, as opposed to the State in a quo
warranto proceeding, has standing to challenge annexation turns on whether the challenge attacks
a city’s authority to annex the area or merely complains of a violation of statutory procedure. City
of San Antonio v. Summerglen Prop. Owners Ass’n Inc., 185 S.W.3d 74, 83 (Tex. App.—San
Antonio 2005, pet. denied); Hardee, 70 S.W.3d at 210. Procedural irregularities in the exercise of
a city’s annexation power may render the annexation voidable, but do not render the annexation
void. Summerglen Prop. Owners Ass’n, 185 S.W.3d at 83; Hardee, 70 S.W.3d at 211.
The purpose of a quo warranto proceeding is to question the right of a person or
corporation, including a municipality, to exercise a public franchise or office. Alexander Oil Co.
v. City of Seguin, 825 S.W.2d 434, 436-37 (Tex. 1991). Thus, a quo warranto suit by the State on
behalf of its citizens is the only proper method to challenge procedural irregularities such as lack
of notice, adequacy of the service plan, lack of a quorum for hearing, and other defects in the
process of adopting an annexation ordinance. Id. at 438. Through quo warranto proceedings, “the
State acts to protect itself and the good of the public generally, through the duly chosen agents of
the State who have full control of the proceeding.” Fuller Springs v. State ex rel. City of Lufkin,
513 S.W.2d 17, 19 (Tex. 1974). Therefore, the State must bring the action to question irregular
use of the delegated annexation authority. Alexander Oil, 825 S.W.2d at 437. A quo warranto
proceeding settles the validity of the annexation on behalf of all property owners in the subject
area, and avoids the problems of successive individual suits that are only binding on the parties
and may yield conflicting results. Id.
On the other hand, if the annexation ordinance is wholly void, a quo warranto proceeding
is not required. Id. at 436 (“The only proper method for attacking the validity of a city’s annexation
of territory is by quo warranto proceeding, unless the annexation is wholly void.”). When
objections are leveled to an annexation ordinance relating to irregularities that make it voidable
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only, such objections must be raised by quo warranto; but if an annexation ordinance is challenged
as wholly void, it may be challenged by collateral attack by any person affected by the ordinance.
Id. Private party challenges to annexation are permitted when the challenge is based on the
municipality exceeding the annexation authority delegated to it by the Legislature. Id. at 438
(citing as examples private causes of action challenging an annexation as exceeding statutory
municipal size limits, including areas within extraterritorial jurisdiction of another city, including
areas not contiguous with current city limits, and annexation of an area with a boundary description
that does not close); see also Hardee, 70 S.W.3d at 210 (same).
Accordingly, in this appeal, we must determine whether appellees’ allegation that the
annexation ordinance is wholly void, and not merely voidable, is based on a procedural defect in
the annexation process, or on the City exceeding its annexation authority as delegated by the
Legislature.
Appellees do not challenge any procedural defect in the annexation process, the City’s right
to annex Lockhill Ventures’ property, or the City’s right to include gasoline stations within its
zoning classifications. The appellees challenge the fact that the City intentionally excluded “gas
filling stations” from all of its zoning districts, while simultaneously contracting with Lockhill
Ventures for the development of a gasoline station. In other words, according to appellees, the
ordinance is wholly void because it constitutes contract zoning.
Impermissible “contract zoning” occurs when a governmental entity agrees to zone land in
a certain way in exchange for a landowner’s agreement to use the land in a certain way. See City
of White Settlement v. Super Wash, Inc., 198 S.W.3d 770, 772 n.2 (Tex. 2006). Zoning is a
legislative function a city cannot cede. Super Wash, Inc. v. City of White Settlement, 131 S.W.3d
249, 257 (Tex. App.—Fort Worth 2004), rev’d on other grounds, 198 S.W.3d 770 (Tex. 2006).
Therefore, a city cannot surrender its authority to determine proper land use by contract. Id.
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Zoning decisions must occur via the legislative process and not by “special arrangement” with a
property owner. Id. “[C]ontract zoning is invalid because, by entering into such agreements, the
city impermissibly abdicates its authority to determine proper land use, effectively bypassing the
entire legislative process.” Super Wash, 198 S.W.3d at 772 n.2.
On appeal, the substance of the City’s challenge to appellees’ standing to bring a
declaratory judgment action implicates the merits of whether the ordinance actually is the result
of improper contract zoning. However, in this interlocutory appeal from the denial of the City’s
plea to the jurisdiction, we do not reach the merits of that claim. 5 Instead, we address only whether
the trial court has the power to reach the merits of appellees’ claim. See City of Argyle, 258 S.W.3d
at 682. We conclude that, because appellees’ request for a declaratory judgment rests on whether
the annexation ordinance is wholly void, and not merely voidable, a quo warranto proceeding was
not required to challenge whether the annexation ordinance is void as the result of contract zoning.
Therefore, the trial court did not err in denying the City’s plea to the jurisdiction based on its
argument that appellees lack standing because only the State could challenge the City’s annexation
ordinance in a quo warranto proceeding. 6
5
On appeal, the City relies on Super Wash, Inc. v. City of White Settlement, 131 S.W.3d 249 (Tex. App.—Fort Worth
2004, rev’d on other grounds, 198 S.W.3d 770 (Tex. 2006), to assert this court may examine whether the Agreement
here is the product of contract zoning. According to the City, the court in Super Wash examined the contract at issue
in that case to determine whether the contract bound the city. The City’s reliance on Super Wash is misplaced. In
that case, the city moved for summary judgment on the grounds that Super Wash lacked standing to challenge a zoning
ordinance, and Super Wash moved for summary judgment on the grounds that the ordinance’s fencing requirement
was impermissible contract zoning. After the court of appeals determined Super Wash had standing to challenge the
validity and the city’s enforcement of the ordinance, id. at 255, the court next turned to the issue of whether Super
Wash was entitled to summary judgment on its claim that the fence requirement contained in the ordinance was invalid
contract zoning. Id. at 257. Therefore, unlike here, the actual merits of the contract zoning argument was at issue in
Super Wash.
6
In its plea to the jurisdiction and on appeal, the City does not otherwise argue appellees lack standing to challenge
the annexation ordinance.
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EQUAL PROTECTION CLAIM
In their amended petition, appellees asked the trial court to “construe the ordinances and
other materials and declare that . . . the [City’s] construction of its ordinances to allow defendant
Lockhill [Ventures] to develop its property in a manner that violates its Code of Ordinances
violates [appellees’] and other similarly situated persons’ rights to equal protection under its laws
or otherwise causes injury . . . .” An equal protection claim “requires that the government treat the
claimant different from other similarly-situated landowners without any reasonable basis.”
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 939 (Tex. 1998). The purpose of the equal
protection clause is to secure persons against intentional and arbitrary discrimination. City of
Dallas v. Jones, 331 S.W.3d 781, 787 (Tex. App.—Dallas 2010, pet. dism’d); Leonard v. Abbott,
171 S.W.3d 451, 458 (Tex. App.—Austin 2005, pet. denied). It is critical, however, that the
plaintiff allege it is being treated differently from those whose situation is directly comparable in
all material respects. City of Dallas, 331 S.W.3d at 787. Appellees failed to allege, in their
petition, before the trial court, or on appeal, any facts that they were similarly situated with others
but were treated differently. Further, nothing in the record indicates that a similarly situated class
has been treated differently in this case. Therefore, the trial court erred in denying the City’s plea
to the jurisdiction on appellees’ equal protection claim. 7
ULTRA VIRES CLAIM
In their amended petition, appellees asked the trial court to “construe the ordinances and
other materials and declare that . . . the actions of [the City] and its officials in contracting with
7
We do not believe appellees’ petition can be amended to include this essential allegation or that there is a need for a
remand for an evidentiary hearing with respect to the equal protection claim, as no facts demonstrating an equal
protection cause of action have been otherwise asserted or argued.
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Lockhill [Ventures] and approving [the annexation ordinance] at the city council meeting on July
9, 2014 were ultra vires acts.”
An ultra vires claim is “‘an action to determine or protect a private party’s rights against a
state official who has acted without legal or statutory authority . . . .’” Heinrich, 284 S.W.3d at
370 (citation omitted). To fall within the ultra vires exception to sovereign immunity, “a suit must
not complain of a government officer’s exercise of discretion, but rather must allege, and
ultimately prove, that the officer acted without legal authority or failed to perform a purely
ministerial act.” Id. at 372. However, suits complaining of ultra vires actions may not be brought
against a governmental unit, but must be brought against the allegedly responsible government
actor in his official capacity. Id. at 373. Appellees did not sue any City official in his or her
official capacity. Therefore, the trial court erred in denying the City’s plea to the jurisdiction on
appellees’ ultra vires claim.
CONSTRUCTION OF THE CITY’S ORDINANCES
In addition to asking the trial court to declare the annexation ordinance void, appellees also
asked the trial court to construe the meaning of various City ordinances and declare that Lockhill
Ventures’ intended use of the property to dispense gasoline violated the City’s ordinances in
several ways. Appellees assert they have standing to seek such declarations as against the City,
and they rely on Texas Civil Practice and Remedies Code section 37.004, which provides as
follows: “A person . . . whose rights, status, or other legal relations are affected by a . . . municipal
ordinance . . . may have determined any question of construction or validity arising under the . . .
ordinance . . . and obtain a declaration of rights, status, or other legal relations thereunder.” TEX.
CIV. PRAC. & REM. CODE ANN. § 37.004(a) (West 2015).
On appeal, the City does not clearly and concisely argue appellees lack standing to ask the
trial court to construe various City ordinances. See TEX. R. APP. P. 38.1(f), (i). In a single sentence
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04-14-00781-CV
on appeal, the City states “[t]he court may interpret the City’s existing ordinances without the City
being a party if necessary to the covenants.” We cannot construe this sentence as a challenge on
appeal to appellees’ right to ask the trial court to construe the City ordinances. And, to the degree
the City intended this sentence to raise such a challenge on appeal, it is inadequately briefed. See
id. Therefore, we do not address whether the trial court erred in denying the City’s plea to the
jurisdiction as to these requests for declaratory relief.
CONCLUSION
We affirm the trial court’s order denying the City’s plea to the jurisdiction with respect to
appellees’ request that the trial court declare the annexation ordinance void. We reverse the trial
court’s order denying the City’s plea to the jurisdiction with respect to appellees’ equal protection
claim and appellees’ ultra vires claim; and we render a dismissal of these claims in favor of the
City. We reverse the trial court’s order denying the City’s plea to the jurisdiction with respect to
appellees’ request that the trial court declare the Development and Annexation Agreement void,
and we remand for further proceedings consistent with this opinion.
Sandee Bryan Marion, Chief Justice
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