City of Bryan/Building and Standards Commission v. Kenneth Cavitt ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00259-CV
CITY OF BRYAN/BUILDING AND
STANDARDS COMMISSION,
Appellant
v.
KENNETH CAVITT,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 12-000858-CV-361
MEMORANDUM OPINION
In one issue, appellant, the City of Bryan/Building and Standards Commission
(the “City”), challenges the trial court’s denial of its plea to the jurisdiction. We affirm.
I. BACKGROUND
Appellee, Kenneth Cavitt, owns property located at 608 North Sims Avenue in
Bryan, Texas. The City alleged in its plea to the jurisdiction that, at all relevant times, it
had adopted a Code of Building Ordinances. These ordinances set forth the standards
utilized by the Building and Standards Commission (“BSC”) to determine whether a
building should be declared unsafe, ordered vacated, secured, repaired, removed,
demolished, and/or the occupants relocated.
On June 19, 2011, appellee was sent a notice of a public meeting regarding this
property. Specifically, the notice mentioned that the City was “aware of and inspected
one or more dilapidated structures located on the above-referenced property” and that
those structures were unsafe and in violation of the City’s ordinances. Appellee was
directed to attend the meeting scheduled for August 22, 2011, to present argument and
evidence that his property is not dangerous or could be made safe. Additionally,
appellee was instructed that he must provide the City with proof of the scope of any
work required to repair the property.
Prior to the August 22, 2011 meeting, three different City employees—Code
Enforcement Officer Sandra Willis, Chief Building Official Gregory Cox, and Fire
Marshall Fred Taylor—inspected the property and found numerous dangerous
conditions that were deemed to be a hazard to public health. Cox and Taylor both
concluded that the property must be vacated, repaired, or possibly demolished. Each of
the employees drafted reports documenting the condition of the property.
On July 29, 2011, appellee was sent a second notice informing him of the August
22, 2011 meeting. The minutes from the August 22, 2011 meeting reflected that the BSC
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discussed appellee’s property. Larry A. Berry, appellee’s representative at the hearing,
told the BSC that the property could be brought up to code and that appellee was
willing to put up the money to pay for repairs; but appellee needed more time. In any
event, the BSC accepted,
the City’s recommendation that the property is a hazard to the health,
safety, and welfare of citizens and ordered that the structure be secured
and vacated within 30 days and a detailed plan for repair of the main
structure be submitted at the Commission’s next regular meeting on
September 26, 2011.
(Emphasis in original).
At the September 26, 2011 meeting, the BSC once again discussed appellee’s
property. As reflected in the minutes from this hearing, appellee attended this hearing
with his architect, Glenn E. Cheeks. Appellee stated that he would like to be given the
chance to repair the property. Cheeks noted that he had been retained as the architect
for this project, but that he has been unable to deliver a plan for the repairs due to
illness. When questioned about his intentions for the property, appellee stated that he
would like to rent out rooms on the second floor of the property and possibly have “a
little breakfast place on the first floor.” The BSC informed appellee that the property
was zoned for single-family residential use, not multi-family or commercial use. At the
conclusion of the discussion, the BSC declared the property a hazard to the health,
safety, and welfare of the citizens and ordered appellee to vacate the building within
thirty days and repair the property within ninety days. Appellee was ordered to attend
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each regularly scheduled BSC meeting to demonstrate compliance with the repair
schedule.
On September 28, 2011, appellee was notified of the BSC’s next meeting
scheduled to occur on October 24, 2011. The notice referenced a copy of the BSC’s
findings and order pertaining to appellee’s property. And interestingly, the notice
stated that appellee has “the right to appeal the decision of the Building and Standard
Commission to district court. A notice of appeal must be filed with the district court
clerk within thirty (30) calendar days from the date the commission’s order is mailed to
you.”
Thereafter, at the October 24, 2011 meeting, the BSC established a mandatory
time schedule for repairs to appellee’s property. Appellee was once again ordered to
attend subsequent BSC meetings to update the commission about repairs made to the
property.
At the subsequent November 28, 2011 meeting, the Chief Building Official stated
that the property was in compliance with the time schedule; however, the BSC
concluded that the Site Development Review Committee must be able to review an
adequate site plan before November 30, 2011, so that the Planning and Zoning
Commission could consider appellee’s use of the property at its December 15, 2011
meeting. Apparently, the appropriate plans and reports were never submitted so that
appellee could obtain the proper permits.
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Later, at its February 27, 2012 meeting, the BSC learned that appellee was not in
compliance with the time schedule. In fact, the BSC had not received any information
from appellee since December 2011. Appellee’s architect, Cheeks, attended the meeting
and asked for more time. The BSC denied the request of Cheeks and ordered the
demolition of the building on appellee’s property within thirty days.
Appellee appealed the BSC’s demotion order to the 361st Judicial District Court
in Brazos County, Texas.1 In this filing, appellee argued that the effect of the BSC’s
demolition order was to deny him “the use of his property and effectively results in a
taking by the City of the property in [v]iolation of both [t]he United States Constitution,
the Texas Constitution[,] and applicable State Law.” The City responded by filing a
plea to the jurisdiction, plea in abatement, special exceptions, a first amended answer, a
jury demand, and affirmative defenses. In its plea to the jurisdiction, the City asserted
that the evidence demonstrates that appellee does not have a takings claim because the
property was determined to be a public nuisance. Additionally, the City contended that
appellee’s claim did not waive the City’s sovereign immunity. In its plea in abatement,
the City argued that appellee should be required to amend his petition to properly
plead a violation of the Local Government Code, the Government Code, and/or Article
I, Section 17 of the Texas Constitution and to show how the City’s actions have violated
his rights or caused an injury.
1 The parties do not dispute the timeliness of appellee’s appeal of the BSC’s demolition order.
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On July 29, 2013, the trial court conducted a hearing on the City’s filing. At the
conclusion of the hearing, the trial court denied the City’s plea to the jurisdiction but
granted the City’s plea in abatement. Thereafter, the City filed its notice of accelerated,
interlocutory appeal challenging the denial of its plea to the jurisdiction. See TEX. CIV.
PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2013).
II. STANDARD OF REVIEW
A plea to the jurisdiction based on sovereign immunity challenges a trial court’s
jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). “A plea questioning the
trial court’s jurisdiction raises a question of law that we review de novo.” Id.
In reviewing a ruling on a plea to the jurisdiction, we first look to the pleadings
to determine if jurisdiction is proper, construing them liberally in favor of the plaintiff
and looking to the pleader’s intent. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex.
2009) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004)).
If the pleadings neither affirmatively demonstrate nor negate jurisdiction, the plaintiff
should be given an opportunity to amend the pleadings. Id. 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, even when
those facts may implicate the merits of the cause of action. Id. In considering this
evidence, we take as true all evidence favorable to the nonmovant and indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. Id. If the
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evidence creates a fact issue as to jurisdiction, then it is for the factfinder to decide. Id.
However, if the relevant evidence is undisputed or fails to raise a fact question on
jurisdiction, the plea to the jurisdiction is ruled on as a matter of law. Id. (citing
Miranda, 133 S.W.3d at 228).
III. ANALYSIS
In its sole issue on appeal, the City contends that the trial court erred in denying
the City’s plea to the jurisdiction because the evidence shows that the property in
question was a public nuisance, and thus, there can be no unconstitutional taking.
Moreover, the City argues that because appellee’s property constituted a public
nuisance, the trial court lacked jurisdiction to entertain appellee’s appeal of the BSC’s
demolition order. We disagree.
“A maxim of takings jurisprudence holds that ‘all property is held subject to the
valid exercise of the police power.’” City of Dallas v. Stewart, 361 S.W.3d 562, 569 (Tex.
2012) (quoting City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 804 (Tex.
1984)). Accordingly, “the government commits no taking when it abates what is, in fact,
a public nuisance.” Id. Therefore, a finding that property is a public nuisance will
generally be dispositive of a takings claim. Id. However, takings suits, such as the one
filed here, are “fundamentally, constitutional suits, and must ultimately be decided by a
court rather than an agency.” Id. at 568 (emphasis in original). Before an agency’s
administrative nuisance determination will collaterally estop a takings claim, the Texas
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Constitution requires independent, de novo review by a court. Id. at 569 (“Our
precedents make clear that nuisance determinations must ultimately be made by a
court, not an administrative body, when the property owner contests the administrative
finding.” (citing City of Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871, 874 (1949); City of
Texarkana v. Reagan, 112 Tex. 317, 247 S.W. 816, 817 (1923); Crossman v. City of Galveston,
112 Tex. 303, 247 S.W. 810, 813 (1923); Stockwell v. State, 110 Tex. 550, 221 S.W. 932, 934-
35 (1920))).
In Stewart, the Texas Supreme Court concluded that substantial-evidence review
of the administrative board’s nuisance determination, resulting in the demolition of a
home, did not sufficiently protect the owner’s rights under Article I, Section 17 of the
Texas Constitution. Id. at 566.2 The court held that the board’s determination and the
trial court’s affirmance of it under a substantial-evidence review were not entitled to
preclusive effect in a takings suit. Id. at 580-81.
Here, appellee has asserted a takings claim in the trial court, as permitted by
section 214.0012(a) of the Texas Local Government Code. See TEX. LOC. GOV’T CODE
2 Specifically, the Stewart Court stated that:
Today we hold that a system that permits constitutional issues of this importance to be
decided by an administrative board, whose decisions are essentially conclusive, does not
correctly balance the need to abate nuisances against the rights accorded to property
owners under our constitution. In the context of a property owner’s appeal of an
administrative nuisance determination, independent court review is a constitutional
necessity.
City of Dallas v. Stewart, 361 S.W.3d 562, 564 (Tex. 2012).
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ANN. § 214.0012(a) (West 2008).3 And the crux of the City’s argument is that the BSC’s
finding that appellee’s property constitutes a public nuisance estops appellee from
challenging that finding in the trial court and, thus, deprives the trial court of subject-
matter jurisdiction over appellee’s takings claim. As stated earlier, the Texas Supreme
Court has rejected this contention. See Stewart, 361 S.W.3d at 569; see also Lurie, 224
S.W.2d at 874; Reagan, 247 S.W. at 817; Crossman, 247 S.W. at 813; Stockwell, 221 S.W. at
934-35. Instead, the Texas Supreme Court emphasized that nuisance determinations
must ultimately be made by a court, not an administrative body like the BSC, when
appellee contested the BSC’s demolition order. See Stewart, 361 S.W.3d at 569; see also
Lurie, 224 S.W.2d at 874; Reagan, 247 S.W. at 817; Crossman, 247 S.W. at 813; Stockwell, 221
S.W. at 934-35. Because the City’s plea to the jurisdiction sought to prevent appellee
from obtaining judicial review of his takings claim by a court, under the above-
mentioned Texas Supreme Court precedent and section 214.0012(a) of the Texas Local
Government Code, we cannot say that the trial court erred in denying the City’s plea to
the jurisdiction. See Holland, 221 S.W.3d at 642; Miranda, 133 S.W.3d at 226-27; see also
3 Section 214.0012(a) of the Texas Local Government Code provides the following, in pertinent
part: “Any owner, lienholder, or mortgagee of record of property jointly or severally aggrieved by an
order of a municipality issued under 214.001 may file in district court a verified petition setting forth that
the decision is illegal, in whole or in part, and specifying the grounds of the illegality.” TEX. LOC. GOV’T
CODE ANN. § 214.0012(a) (West 2008). Moreover, section 214.001 of the Texas Local Government Code
grants municipalities the authority to order “the vacation, relocation of occupants, securing, repair,
removal, or demolition of a building” that is dilapidated, substandard, or unfit for human habitation and
a hazard to the public health, safety, and welfare, among other things. See id. § 214.001(a) (West Supp.
2013). Essentially, section 214.001 grants the BSC the power to order the demolition of appellee’s
property, and section 214.0012(a) grants appellee the right to challenge that order in district court. See id.
§§ 214.001(a), 214.0012(a); see also City of Houston v. Carlson, 393 S.W.3d 350, 359 (Tex. App.—Houston
[14th Dist.] 2012, no pet.).
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TEX. LOC. GOV’T CODE ANN. § 214.0012(a); Stewart, 361 S.W.3d at 569; Lurie, 224 S.W.2d
at 874; Reagan, 247 S.W. at 817; Crossman, 247 S.W. at 813; Stockwell, 221 S.W. at 934-35.
Accordingly, we overrule the City’s sole issue on appeal.
IV. CONCLUSION
We affirm the judgment of the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 8, 2014
[CV06]
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