City of Argyle, Texas v. David Pierce, an Individual and Clear Channel Outdoor, Inc. ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-255-CV
CITY OF ARGYLE, TEXAS APPELLANT
V.
DAVID PIERCE, AN INDIVIDUAL, AND APPELLEES
CLEAR CHANNEL OUTDOOR, INC.
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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I. Introduction
This is the case of “Where’s the sign?” In four issues, Appellant City of
Argyle (“the City”) appeals the denial of its plea to the jurisdiction and asserts
that (1) David Pierce (“Pierce”) and Clear Channel Outdoor, Inc. (“Clear
Channel”) (collectively, “the Signers”) have no standing to bring constitutional
property claims because they have no vested property rights; (2) if Pierce and
Clear Channel had standing, their inverse condemnation claim is invalid and
would not defeat sovereign immunity; (3) a civil court lacks jurisdiction over
claims in equity that challenge a penal ordinance; and (4) the City cannot be
estopped from enforcing its sign ordinance. Because we hold that the City has
successfully challenged the trial court’s jurisdiction over some, but not all, of
the Signers’ claims, we reverse and render in part and affirm in part.
II. Factual and Procedural Background
Pierce and Clear Channel erected an off-premises outdoor advertising sign
and sued the City when the City attempted to enforce its sign ordinance
preventing such signs from being erected in the City’s extra-territorial
jurisdiction (“ETJ”) against Pierce and Clear Channel.
A. Ordinance Prohibits Signs in the ETJ
On August 24, 1993, the City adopted a “Sign Regulations” ordinance
(“the Ordinance”), known as “Article 12.400.” The Ordinance, as amended in
1997, regulated and applied to signs within the City’s limits and within its ETJ.
The Ordinance contained detailed descriptions of the City’s sign regulations,
including a requirement to obtain a permit from the City and a list of prohibited
signs. The Ordinance expressly prohibited “[s]igns advertising off-premise
businesses, products or services” like the one that is the genesis of this suit
and included a $500 penalty clause.
2
In 2003, the City adopted a very similar ordinance that raised the fine to
a maximum of $2,000 and continued to prohibit off-premises signs within the
City and its ETJ. As reflected in the city council meeting minutes for June 10,
1997, the City approved an ETJ Apportionment Agreement between the City
and two nearby municipalities, the City of Northlake and Corral City, and that
agreement has been on public file in the Denton County property records since
July 21, 1997. The ETJ agreement describes a dotted line that forms the
southern and eastern boundaries of the City’s ETJ.
B. McCutchin Property
On January 26, 1999, the City annexed approximately 144 acres of land
owned by the Ronald McCutchin Family Partnership, LTD., and Gene Paul
McCutchin into its ETJ (“McCutchin Property”). The McCutchin Property
mostly surrounded the property at issue in this case. The City annexed the
McCutchin Property by adopting Ordinance 99-01.
The City requested that David Gattis, the City’s cartographer, draw a map
concerning the City’s boundaries and ETJ. The map in part designated the
City’s ETJ by labeling such property “Extraterritorial Jurisdiction.” The map did
not, however, designate the sign property as “Extraterritorial Jurisdiction.”
Labeled “Abstracts,” the Gattis map was displayed in the City offices.
3
C. Pierce
In 2000, prior to executing a Lease with Clear Channel, Pierce sought to
have his property rezoned. According to Pierce, the City Secretary, Debbie
Milligan, responded that whether he could accomplish rezoning was not an
issue for the City but for Denton County because the sign property was not
located within the City’s ETJ and that he could therefore do whatever he
wanted to do with the property. To support this statement, Milligan referred
Pierce to the Gattis map that designated the sign property as not within the
City’s ETJ. Before the sign was constructed, Pierce did not tell Clear Channel
about his conversation with Milligan, his interpretation of the Gattis map, or
other information regarding whether the sign location was within the City’s
ETJ. No one from Clear Channel ever asked Pierce whether the sign location
on the Pierce property was in the City’s ETJ.
D. Clear Channel, TxDOT, and the City
Prior to entering into the lease with Pierce, and prior to applying for a
permit, Clear Channel looked into whether the sign property was located within
the City’s ETJ. Clear Channel began working with Texas Department of
Transportation (“TxDOT”) in March 2002 to determine the location of the
property and whether an outdoor advertising sign could be erected on the
property. Clear Channel was seeking to obtain a rural-road sign permit. The
property was located on a rural road, and Texas law required Clear Channel to
4
obtain a permit from TxDOT to operate its sign unless the property was located
in the ETJ of a municipality.
According to Judy Jamison, Clear Channel’s Assistant Real Estate
Manager, 1 whenever Clear Channel applied to TxDOT for a sign permit, it
included maps of the location of the sign so that TxDOT knew where to go to
inspect the sign location. One map that Clear Channel submitted to TxDOT
showed the sign in question as a “Centermount monopole,” with the center
pole of the sign twenty-seven feet south of the southern edge of F.M. 407 and
about .8 miles east of Interstate Highway 35.
Jamison went to the City’s offices in late 2001 or early 2002 to find out
if the sign property was in the City’s ETJ. The City referred Jamison to the
Gattis map, hanging on the wall of the City’s permit clerk’s office, which did
not show the property to be in the City’s ETJ. The Gattis map indicated that
the sign property was separate from the City, located in an “island” surrounded
by the City. According to Jamison, the city secretary, Codi Delcambre, told her
that the property had possibly been disannexed by the City some time ago
because the City and the former owner of the property “had a falling out.” The
1
… Jamison was Clear Channel’s only Assistant Real Estate Manager for
the Dallas Division, and no other employee in that division performed her job
functions. Jamison’s job functions included determining whether a potential
sign location would be in conformance with state and local regulations.
According to Jamison, it was her responsibility to determine whether a sign
location was in a municipality’s ETJ.
5
sign location was south of and adjacent to F.M. 407 (a two-lane rural road) in
Denton County and was adjacent to the City’s corporate boundary running
along the north edge of that road. In other words, the sign was across the
street from the City’s incorporated limits, and it was less than fifty feet from
the City’s corporate boundary. Jamison’s visit to the City provided the
information that Clear Channel relied on to conclude that the sign location was
not in the City’s ETJ.
Jamison also went to City Hall on September 23, 2003, after the City
discovered that the sign had been built and had promptly “red tagged” the sign
before construction could be finalized. During the second visit to the City,
Jamison was accompanied by another Clear Channel employee, Teresa Moore.
Jamison and Moore spoke with Bill Palmer, the City’s Code Enforcement
Officer, who asserted that the sign was in the City’s ETJ. That same day,
Jamison and Moore spoke with Delcambre, who also asserted that the property
was in the City’s ETJ. Clear Channel investigated the Denton County Appraisal
Records with regard to the property; the records indicated that the property
was not taxed by the City.
Before Clear Channel built the sign, it was aware that off-premises signs
were prohibited within the City’s ETJ. Jamison had reviewed the City’s sign
ordinance before the sign was built, and it was clear to her that the ordinance
prohibited the type of sign at issue within the City’s ETJ. Because of that fact,
6
Clear Channel specifically intended to find a potential sign location in an area
outside the City’s ETJ. A year and two months before initiating the permitting
process for the sign in question, Arnold Velez (President of the Dallas Division
of Clear Channel) received written notification from TxDOT stating that the City
did not allow certain signs in its ETJ. Velez stated that it was likely that he
would have forwarded that letter to the Clear Channel real estate department.
E. The Lease
Clear Channel routinely solicited lease agreements to place outdoor
advertising signs on private property, and it solicited and obtained such a lease
from Pierce. On March 29, 2002, Pierce and Clear Channel executed a lease
allowing Clear Channel to erect an outdoor advertising sign on Pierce’s
property, which is located in an unincorporated region of Denton County. The
lease contained a provision that allowed Clear Channel to terminate the
agreement if it was “unable to obtain or maintain any necessary permit for the
erection, use and/or maintenance” of a sign or if its sign’s use was “prevented
or restricted by law.” Clear Channel obtained the permit from TxDOT to own
and operate a sign on the property, as previously recounted. But after Clear
Channel began constructing the sign, the City stopped Clear Channel, asserting
that the property was in its ETJ and, therefore, was prohibited by the
Ordinance.
7
F. Procedural History
On November 24, 2003, the City’s municipal court issued complaints
against Pierce and Velez for erecting an illegal off-premises sign. The following
day, summonses were issued commanding Pierce and Velez to appear in
municipal court on December 15, 2003, and answer the complaints.
The Signers—Pierce and Clear Channel—filed this lawsuit in state court,
seeking a declaratory judgment with regard to the property’s location and was
that the property in question had been subject to inverse condemnation, that
the plaintiffs had been deprived of their property interests, and that the
penalties accessed by the City were tolled during the Signers’ constitutional
challenges. On the City’s motion, the case was removed to federal court. The
federal court subsequently denied the City’s motion for summary judgment,
specifically ruling that the location of the property relative to the City’s ETJ was
a question under Texas law, and remanded the majority of the case to state
court. 2
On May 25, 2007, the City filed its plea to the jurisdiction to challenge
the subject matter jurisdiction of the trial court, alleging,
2
… Currently, the case is splintered between the federal court and the
state trial court where it was originally filed; the federal court maintained
jurisdiction over some of the constitutional causes of action filed by the Signers.
8
Plaintiffs are challenging a penal ordinance and are not in danger of
any constitutional deprivations to vested property rights. Plaintiffs’
pleading affirmatively negates their inverse condemnation claim.
Argyle’s sign ordinance is not arbitrary or capricious. Enforcement
of the sign ordinance is a governmental function and Argyle is not
subject to being estopped from enforcing the sign ordinance.
Therefore, Argyle is immune from suit, this Court is without
jurisdiction in this matter and Plaintiffs’ suit should be dismissed.
On June 29, 2007, the trial court denied the City’s plea to the jurisdiction
without specifying the reason therefor. This appeal followed.
III. Standard of Review—Plea to the Jurisdiction
W e review the denial of a plea to the jurisdiction under a de novo
standard. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004). A plea to the jurisdiction is a dilatory plea; its purpose is “to
defeat a cause of action without regard to whether the claims asserted have
merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The
purpose of a dilatory plea is not to force the plaintiffs to preview their case on
the merits but to establish a reason why the merits of the plaintiffs’ claims
should never be reached. Id. Although the claims may form the context in
which a plea to the jurisdiction is raised, the plea should be decided without
delving into the merits of the case. Id.
Accordingly, in determining whether jurisdiction exists, we construe the
pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent. See
Miranda, 133 S.W.3d at 226. We may also consider evidence presented to the
9
trial court relevant to jurisdiction when it is necessary to resolve the
jurisdictional dispute. See Bland, 34 S.W.3d at 554–55. 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. County
of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
IV. Declaratory Judgment
In their live petition at the time of the trial court’s ruling on the City’s plea
to the jurisdiction, the Signers first asserted a cause of action under the
Declaratory Judgments Act. The Act provides,
A person interested under a . . . written contract, or other writings
constituting a contract or whose rights, status, or other legal
relations are affected by a statute, 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.
T EX. C IV. P RAC. & R EM. C ODE A NN. § 37.004(a) (Vernon Supp. 2007).
Specifically, the Signers sought a declaratory judgment that (1) the sign
property is not within the City’s ETJ; (2) the City is estopped from asserting
that the sign property is within its ETJ; (3) the City’s authority to regulate in its
ETJ has been revoked; and (4) the City has disannexed the sign property. 3 The
3
… The Signers also sought a declaratory judgment that Velez is not
subject to the Ordinance, but the City’s plea to the jurisdiction did not challenge
the trial court’s jurisdiction over that cause of action.
10
City’s third and fourth issues challenge the trial court’s jurisdiction over these
declaratory judgment claims.
A. The Trial Court’s Jurisdiction Over a Case Involving a Penal
Ordinance
In its third issue, citing State v. Morales, 869 S.W.2d 941, 945 (Tex.
1994), the City argues that the trial court may not hear these declaratory
judgment claims because the Ordinance is a penal ordinance, over which a civil
court has no jurisdiction.4 The Texas Supreme Court in State v. Morales held
that, with exceptions, a civil court does not have jurisdiction to render a
declaratory judgment regarding the constitutionality of a penal statute. Id. at
947. The court explained,
In this state’s bifurcated system of civil and criminal
jurisdiction, a civil court has jurisdiction to declare constitutionally
invalid and enjoin the enforcement of a criminal statute only when
(1) there is evidence that the statute at issue is unconstitutionally
applied by a rule, policy, or other noncriminal means subject to a
civil court’s equity powers and irreparable injury to property or
personal rights is threatened, or (2) the enforcement of an
unconstitutional statute threatens irreparable injury to property
rights. A naked declaration as to the constitutionality of a criminal
statute alone, without a valid request for injunctive relief, is clearly
not within the jurisdiction of a Texas court sitting in equity.
Id. at 942. The City argues that the Signers cannot challenge the Ordinance in
a civil suit because they cannot meet the Morales exceptions and because they
4
… The City asserts that its Ordinance is a penal statute because its
violation constitutes a misdemeanor offense that carries a fine of up to $2,000.
11
have an adequate remedy at law: challenging the penal provision as part of their
defense to a criminal prosecution. Because this argument mischaracterizes the
Signers’ requested declaratory relief, we disagree.
The Signers do not challenge the constitutionality or the enforceability of
the Ordinance; rather, their lawsuit seeks a declaration that their conduct did
not constitute a violation of that Ordinance. This request necessarily assumes
the validity of the Ordinance because it asks the court to apply the Ordinance’s
provisions to the facts of this case and to conclude that the Ordinance does not
proscribe the Signers’ erection of their sign. Accordingly, we hold that State
v. Morales does not affect the trial court’s jurisdiction in this case, and we
overrule the City’s third issue.5
B. The Trial Court’s Jurisdiction Over the Signers’ Allegedly Meritless
Claim of Estoppel
Next, the City argues in its fourth issue that it is not estopped from
enforcing the Ordinance because estoppel cannot be invoked against a
5
… We note that courts have allowed the Declaratory Judgments Act to
be used to address conflicts over construction of municipal ordinances and
boundary disputes. See, e.g., Super Wash, Inc. v. City of White Settlement,
131 S.W.3d 249, 256 (Tex. App.—Fort Worth 2004) (holding that appellant
could seek declaration of the validity of a municipal ordinance under the
Declaratory Judgments Act because appellant’s rights, status or other legal
relations were affected by the ordinance), rev’d on other grounds, 198 S.W.3d
770 (Tex. 2006); Bexar Metro. Water Dist. v. City of Bulverde, 156 S.W.3d 79,
88–89 (Tex. App.—Austin 2004, pet. denied) (holding that appellees had the
right to have the courts interpret a water district’s enabling act to determine
issues relating to the water district’s boundaries).
12
municipality that is engaged in its governmental or public functions. Citing
Bexar Metropolitan Water District v. Education & Economic Development Joint
Venture, 220 S.W.3d 25, 32 (Tex. App.—San Antonio 2006, pet. filed), the
City asserts that if equitable estoppel does not apply in a case against a
governmental unit, there is no waiver of immunity from suit.
In Bexar Metropolitan Water District, a joint venture sued Bexar Met for
specific performance of a contract to sell real estate after Bexar Met had
refused to close. Id. at 27. The joint venture argued that principles of justice,
honesty, and fair dealing should estop Bexar Met from asserting its immunity
from suit. Id. at 32. The court held that, because the joint venture had failed
to show that application of equitable estoppel would not interfere with the
exercise of Bexar Met’s governmental functions and that Bexar Met had
accepted and retained the benefits arising from the contract, Bexar Met was not
estopped from asserting its immunity, and it reversed the trial court’s denial of
Bexar Met’s plea to the jurisdiction. Id. (citing City of Hutchins v. Prasifka, 450
S.W.2d 829, 836 (Tex. 1970) (discussing lack of interference with
governmental functions); City of Corpus Christi v. Gregg, 155 Tex. 537, 543,
289 S.W.2d 746, 751 (1956) (discussing accepted and retained benefits)).
In contrast, here, the City is not arguing that its plea to the jurisdiction
should have been granted because estoppel does not apply to its assertion of
governmental immunity. Rather, the City is attempting to argue that the trial
13
court lacks jurisdiction because estoppel cannot be invoked to bar its assertion
that the sign property is within its ETJ. In essence, the City is arguing that the
trial court does not have jurisdiction because the Signers’ cause of action is
without merit. However, the City has not shown that this is a proper manner
in which to challenge the trial court’s jurisdiction.
In our review of a trial court’s ruling on a plea to the jurisdiction, we do
not delve into the merits of a case or decide whether the plaintiff would lose on
its claims; rather, we merely decide whether the trial court has the power to
reach the merits of those claims. Bland Indep. Sch. Dist., 34 S.W.3d at 554.
Even if the law ultimately would not permit the City to be estopped from
asserting that the sign property is within its ETJ, the City has cited no authority
for the proposition that the ultimate outcome on the Signers’ declaratory
judgment claims has any bearing on the existence of the trial court’s jurisdiction
to hear the declaratory judgment causes of action. Accordingly, we overrule
the City’s fourth issue.
V. Inverse Condemnation
In the alternative to their declaratory judgment causes of action, the
Signers pleaded a claim for inverse condemnation under Article I, Section 17 of
14
the Texas constitution. 6 As the Signers explain, in the event that the trial court
ruled that the sign property is in the City’s ETJ and that the Ordinance is
constitutional, then they would assert this alternative cause of action. In its
second issue, the City argues that the trial court erred by denying its plea to the
jurisdiction as to the Signers’ inverse condemnation claim because the Signers
cannot show that the City’s sovereign immunity has been waived.
A. Waiver of Immunity for Inverse Condemnation Claims
Governmental immunity affords a city protection from suit when the city
engages in the exercise of governmental functions unless that immunity is
clearly waived. City of Dallas v. Jennings, 142 S.W.3d 310, 315 (Tex. 2004);
Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Article I, section
17 of the Texas constitution waives governmental immunity for valid inverse
condemnation claims. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39
S.W.3d 591, 598 (Tex. 2001). Inverse condemnation occurs when property
6
… The Signers also pleaded a cause of action for deprivation of property
under the Fifth and Fourteenth Amendments to the United States Constitution.
The City contends that this claim is merely a restatement of, and is therefore
subsumed by, the inverse condemnation claim. The Signers do not disagree,
and in fact, do not even discuss this deprivation-of-property cause of action in
their brief; they discuss only the inverse condemnation claim, stating that it is
“contingent upon the outcome of its declaratory judgment requests and
constitutional challenges to the Sign Ordinance, the latter of which is pending
before the Federal Court.” Therefore, we shall assume that the Signers’
alternative inverse condemnation claim includes their deprivation-of-property
claim as well.
15
is “taken” for public use without proper condemnation proceedings and the
property owner attempts to recover compensation for that taking. City of
Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex. 1971). To state a
cause of action for inverse condemnation under the Texas constitution, a
plaintiff must allege (1) an intentional governmental act, (2) that resulted in his
property being taken, damaged, or destroyed, (3) for public use. Little-Tex, 39
S.W.3d at 598.
Takings are classified as either physical or regulatory. Mayhew v. Town
of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998), cert. denied, 526 U.S. 1144
(1999). The Signers do not argue that the City has physically taken their
property; instead, they allege a regulatory taking. A compensable regulatory
taking occurs when a governmental agency imposes restrictions that either
deny a property owner all economically viable use of his property or
unreasonably interfere with the owner’s right to use and enjoy the property.
Id. at 935; Taub v. City of Deer Park, 882 S.W.2d 824, 826 (Tex. 1994), cert.
denied, 513 U.S. 1112 (1995). Whether particular facts are sufficient to allege
a constitutional taking is a question of law. Little-Tex, 39 S.W.3d at 598.
When a plaintiff does not allege a valid inverse condemnation claim,
governmental immunity applies, and the trial court should grant a plea to the
jurisdiction. Bell v. City of Dallas, 146 S.W .3d 819, 825 (Tex. App.—Dallas
2004, no pet.).
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B. The Property Interests Alleged To Have Been “Taken”
The Signers assert four property interests that the City has “taken”:
Pierce’s fee interest in the land and Clear Channel’s leasehold, sign, and TxDOT
sign permit.
1. TxDOT sign permit
First, we observe that the TxDOT permit is not a property interest
because the Texas Administrative Code unequivocally states: “[I]ssuance of a
permit shall not be deemed to create a property right in the permittee.” 43 T EX.
A DMIN. C ODE § 21.581 (2002). The Signers, citing Graham v. Richardson, 403
U.S. 365, 374, 91 S. Ct. 1848, 1853 (1971), and Reed v. Village of
Shorewood, 704 F.2d 943 (7th Cir. 1983), contest this statute by asserting
that “a State’s characterization of a governmental benefit is not determinative
of the constitutional rights of the benefit holder.” However, they present no
argument nor cite any authority that the permit is a property interest contrary
to the clear wording of the statute. We hold that the TxDOT permit is not a
property interest compensable as a result of inverse condemnation.
2. The sign
The Signers argue that the sign on the sign property is a fixture, so it
gives rise to a property right for which compensation is owedwhen taken. But
whether a billboard is a fixture is a question of fact to be determined from the
mode and sufficiency of annexation, either real or constructive; from the
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adaptation of the article to the use or purpose of the realty; and from the intent
of the party who annexed the chattel to the realty. See Logan v. Mullis, 686
S.W.2d 605, 607 (Tex. 1985); see also Stevenson v. Clausel, 437 S.W.2d
404, 407 (Tex. Civ. App.—Houston [14th Dist.] 1969, no writ) (“Of the tests
for determining whether or not a chattel has become a fixture, pre-eminence is
given to the intention to make the thing a permanent accession to the freehold;
the other tests are of value chiefly as evidence of this intention.”).
In our review of the trial court’s ruling on the City’s plea to the
jurisdiction, we construe the pleadings liberally in favor of the plaintiffs and look
to the pleaders’ intent. See Miranda, 133 S.W.3d at 226. We take as true all
evidence favorable to the Signers and indulge every reasonable inference and
resolve any doubts in their favor. See id. at 228. But in their petition, the
Signers merely provide the conclusory assertion that “[t]he City’s actions . . .
constitute an inverse condemnation through the taking, damaging, or destroying
of Pierce and Clear Channel’s property for public use without just
compensation.” They do not further allege any facts explaining why the sign
in this case is “property” that the City has inversely condemned through a
18
“taking.” Furthermore, on appeal, the Signers merely assert generally that “the
Sign is a fixture,” without providing any evidence of its permanent nature.7
While we are to construe the pleadings and evidence liberally in favor of
the Signers, we cannot create evidence where none has been presented, and
we cannot assume that the billboard is a fixture in the absence of any evidence
showing so. Therefore, we hold that the sign is not a property interest
compensable as a result of inverse condemnation.
3. The fee simple and leasehold interests
Finally, the Signers claim that the City has “taken” Pierce’s fee interest
and Clear Channel’s leasehold interest8 in the sign property because the City
has denied them the economically viable use of their property interests and has
unreasonably interfered with their right to enjoy and use their property interests.
7
… Compare Stevenson, 437 S.W.2d at 406–08. The Stevenson court
held that the evidence was sufficient to support the jury’s finding that a
billboard was a fixture when evidence was presented that the billboard
extended to a very considerable distance into the air and was 90
feet in length. It was supported by nine vertical wide flange metal
columns, each of which were set in concrete to a depth of
approximately eight feet. The billboard appears to have been a
most substantial structure very firmly attached to the premises.
Id. at 406.
8
… An ownership interest in a leasehold is the legal right to possess that
property for a set period of time. Travis Cent. Appraisal Dist. v. Signature
Flight Support Corp., 140 S.W.3d 833, 841 (Tex. App.—Austin 2004, no pet.).
19
However, there is no constitutional property right to use realty in any certain
way without restriction. City of La Marke v. Braskey, 216 S.W.3d 861, 863
(Tex. App.—Houston [1st Dist.] 2007, pet. denied). In Braskey, the court
noted that
use of [the appellee’s] property as a facility for cats is not a
constitutionally protected vested right because it concerns only the
way that her property is used, which is not an absolute right [and
that the] asserted harms—the closing of her facility, the death of
cats housed at the facility, possible fines levied against her for
operating the facility, her possible confinement for operating the
facility, and her expenditure of attorney’s fees to pursue continued
operation of the facility—all concern the use of her property as a
facility for cats, which is not a constitutionally protected vested
right.
Id. at 864; see also in Sterling v. San Antonio Police Dep’t, 94 S.W.3d 790,
794–95 (Tex. App.—San Antonio 2002, no pet.) (“Sterling has no
constitutionally protected property right to lease gambling devices.”); Hang On
III v. Gregg County, 893 S.W.2d 724, 727 (Tex. App.—Texarkana 1995, writ
dism’d by agr.) (“[A] property owner does not acquire a constitutionally
protected right in a property use merely because it began as a conforming use
and is later rendered nonconforming.”); Smith v. Copeland, 787 S.W.2d 420,
422 (Tex. App.—San Antonio 1990, no writ) (holding when considering an
injunction preventing the operation of massage parlors within 1,500 feet of
residents, that “property owners do not acquire a constitutionally protected
vested right in property uses once commenced or in zoning classification once
20
made); Sparten Indus., Inc. v. State, 379 S.W .2d 931, 932 (Tex. Civ.
App.—Eastland 1964, no writ) (holding when considering enforcement of the
Sunday “blue law,” that “it is evident [that] appellant had no vested property
rights entitling them to an injunction against enforcement of the statute).
Overall, it must be remembered that, whatever value and usage the
property may be put to, the singular use and benefit being foreclosed is that of
an outdoor sign advertising off-premises material. Therefore, the entirety of
Pierce’s ability to use the property he owns, and of Clear Channel’s ability to
use the property it leases, is not wholly curtailed; they may use the property for
myriad purposes, but not for the one specific purpose of erecting the billboard
at issue in this case. Accordingly, the Signers have not alleged facts sufficient
to allege a constitutional taking of property, so they have also not alleged a
valid inverse condemnation claim. See Little-Tex, 39 S.W.3d at 598.
Citing Harris County v. Progressive National Bank, 93 S.W.3d 381, 383
(Tex. App.—Houston [14th Dist.] 2002, pet. denied), the Signers argue that the
City’s challenge to the trial court’s jurisdiction is an improper attempt to litigate
the merits of their inverse condemnation claim. In Harris County, the court held
that Harris County’s plea to the jurisdiction improperly rested upon unresolved
factual contentions that went directly to the merits of the bank’s suit. Id. at
383–84. However, the court went on to examine the allegations in the bank’s
petition, taking them as true and construing them in the light most favorable to
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the pleader, and held that the petition stated a claim for a constitutional taking
because it alleged that (1) Harris County intentionally sold an automobile on
which the bank held a lien without fulfilling its duty to notify the bank, (2) that
the sale resulted in a taking of the bank’s property, and (3) that such taking
was for public use. Id. at 384.
Here, we have examined the allegations in the Signers’ petition, as well
as the evidence presented to the trial court, but we reach the opposite
conclusion. The Signers have not stated a valid claim for a constitutional taking
because (1) the TxDOT permit and the billboard are not property interests
subject to compensation and (2) the sign ordinance does not deny them all
economically viable use of their property or unreasonably interfere with their
right to use and enjoy the property; therefore, no regulatory taking is alleged.
Accordingly, because the Signers have not stated a valid inverse condemnation
claim, governmental immunity applies, and the trial court should have granted
the City’s plea to the jurisdiction on the inverse condemnation claim. See Bell,
146 S.W.3d at 825. We sustain the City’s second issue.9
9
… Having sustained the City’s second issue, we need not address its first
issue, in which it claims that the Signers have no standing to sue for inverse
condemnation. See T EX. R. A PP. P. 47.1.
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VI. Conclusion
Having sustained the City’s second issue and concluded that
governmental immunity applies to the Signers’ inverse condemnation claim, we
reverse that part of the trial court’s order denying the City’s plea to the
jurisdiction with regard to the inverse condemnation and deprivation of property
claims and render judgment dismissing those claims. See T EX. R. A PP. P.
43.2(c). However, having overruled the City’s third and fourth issues
challenging the trial court’s jurisdiction over the Signers’ declaratory judgment
causes of action, we affirm that part of the trial court’s order denying the City’s
plea to the jurisdiction with regard to the Signers’ declaratory judgment claims.
See T EX. R. A PP. P. 43.2(a).
BOB MCCOY
JUSTICE
PANEL A: CAYCE, C.J.; LIVINGSTON and MCCOY, JJ.
DELIVERED: May 15, 2008
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