CPM Trust, KLM Secure Trust and Ralph (Deceased) and Muriel Pinkus, LLC v. City of Plano, Texas and the Board of Adjustment of the City of Plano, Texas , 2015 Tex. App. LEXIS 3393 ( 2015 )

Affirm in part; Reverse in part; Render in part; and Remand; Opinion Filed April 7, 2015.
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-14-00104-CV
CPM TRUST, KLM SECURE TRUST, AND RMP PARKER CENTRAL, LLC,
Appellants
V.
CITY OF PLANO, TEXAS AND THE BOARD OF ADJUSTMENT OF THE CITY OF
PLANO, TEXAS, Appellees
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-03394-2011
OPINION
Before Justices Lang, Stoddart, and Schenck
Opinion by Justice Lang
This case involves the Plano, Texas municipal sign ordinance. Appellants CPM Trust,
KLM Secure Trust, and RMP Parker Central, LLC 1 (collectively, appellants or plaintiffs) filed
this lawsuit against appellees the City of Plano, Texas (the “City”) and the Board of Adjustment
of the City of Plano, Texas (the “Board”). The claims asserted by appellants were (1) a
challenge to the Board’s decision requiring removal of a certain billboard (the “billboard”)
owned by appellants; (2) violation of appellants’ “vested property rights”; and (3) a regulatory
taking claim.
1
The record shows the original plaintiffs in this lawsuit were CPM Trust, KLM Secure Trust, and Ralph and Muriel Pinkus LLC. Prior to
the judgment complained of, the trial court signed an agreed order substituting RMP Parker Central, LLC for Ralph and Muriel Pinkus LLC.
Appellants filed a motion for summary judgment regarding their claim challenging the
Board’s decision requiring removal of the billboard. Following a hearing, the trial court denied
appellants’ motion for summary judgment as to that claim and signed an order in which it
“affirmed” the Board’s decision. Then, (1) appellants filed a motion for summary judgment
respecting their remaining claims and (2) the City filed a combined motion for summary
judgment/plea to the jurisdiction as to those claims. In a final judgment, the trial court (1) denied
appellants’ motion for summary judgment as to their remaining claims, (2) granted the City’s
motion for summary judgment/plea to the jurisdiction, (3) ordered that appellants take nothing
against the City, and (4) awarded the City its “costs of court” against appellants.
In four issues on appeal, appellants contend the trial court erred because: (1) appellants
are entitled to repair the billboard pursuant to the ordinance in question; (2) Chapter 245 of the
Texas Local Government Code prohibits the City from violating appellants’ “vested property
rights” by “applying subsequently enacted ordinances to prevent repair of the [b]illboard,” see
TEX. LOC. GOV’T CODE ANN. §§ 245.001–.007 (West 2005); and (3) appellants pleaded valid
claims respecting violation of Chapter 245 and a regulatory taking and the summary judgment
evidence raised disputed fact issues as to those claims. Further, appellants assert the trial court
erred to the extent it ruled that if appellants are ultimately allowed to repair the billboard under
the ordinance in question or Chapter 245, they are not entitled to damages to compensate them
for a “temporary” regulatory taking.
We decide in favor of appellants on their second issue. Appellants’ first and fourth issues
are decided against them. We need not reach appellants’ third issue. We reverse, in part, the
trial court’s judgment; render judgment, in part; and remand this case to the trial court for further
proceedings respecting the “costs of court” awarded to the City. The trial court’s judgment is
otherwise affirmed.
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I. FACTUAL AND PROCEDURAL BACKGROUND
The parties do not dispute the following facts: (1) the billboard was installed in
approximately November 1961 on property located along U.S. Highway 75; (2) in approximately
1968, Carl McCord and Ralph Pinkus purchased the property on which the billboard was
installed (the “Property”); (3) at the time of that purchase, the Property was not within a
municipal jurisdiction; (4) the Property was annexed by the City of Plano in 1984; (5) the
ownership interests of McCord and Pinkus in the Property were subsequently transferred to
appellants; and (6) the municipal ordinance in question was passed by the City in 2006 and is
part of the City of Plano Comprehensive Zoning Ordinance.
Appellants filed their “original petition and application for writ of certiorari” in this case
on August 17, 2011. In their live pleading at the time of the judgment complained of, appellants
asserted in part the billboard “is supported by five separate poles that are partially buried.”
Additionally, appellants stated (1) in April 2011, a storm “damaged the [b]illboard”; (2)
“one . . . of the five supporting poles remained after the storm”; (3) on April 27, 2011, “[the] City
ordered Plaintiffs to remove the remainder of the [b]illboard and refused to allow its repair”; and
(4) appellants filed an “application” to the Board to “appeal the decision of the administrative
official requiring removal of the [b]illboard,” but the decision of that official (the “building
official”) was upheld by the Board on August 9, 2011. Further, appellants contended in part,
The evidence introduced in the record was that the Property had a legally,
nonconforming billboard on it that was damaged by a storm. A support pole for
the Billboard remains on the Property. The legal status of the [b]illboard and
nature of damage to it were not disputed by the City. Section 3.1604(6) of the
Plano Zoning Ordinance does not allow a nonconforming sign to be “moved,
altered, removed and reinstalled, or replaced.” The Board erroneously voted 2-3
to uphold the building official’s decision that this language does not allow a
property owner to “repair” the damaged [b]illboard.
Appellants asserted the following causes of action: (1) a request that the trial court issue a
writ of certiorari directed to the City and the Board pursuant to Chapter 211 of the Texas Local
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Government Code and reverse the decision of the Board, see TEX. LOC. GOV’T CODE ANN.
§§ 211.010–.011 (West 2008); (2) a request for a declaratory judgment that the City violated
appellants’ “vested property rights” under Chapter 245 and appellants are entitled to repair the
billboard and recover attorney’s fees pursuant to that chapter; and (3) a “temporary and/or
permanent” regulatory taking by the City in violation of Article 1, section 17 of the Texas
Constitution, see TEX. CONST. art. I, § 17. In an August 19, 2011 “Unopposed Order Granting
Writ of Certiorari,” the trial court ordered that “a Writ of Certiorari issue to [the Board],
directing it to return to [the trial court] certified or sworn copies of all proceedings and evidence
taken at a hearing before [the Board] on August 9, 2011” respecting appellants’ application to the
Board described above.
Approximately one month later, appellees filed a joint general denial answer and
response in which they asserted, in part,
Concerning [plaintiffs’ appeal of the building official’s decision], the
Board recognized that the intent of the ordinance regulating non-conforming signs
is to allow a non-conforming sign to exist until it is destroyed. Once destroyed, a
non-conforming sign cannot be rebuilt because it is specifically prohibited by
Code. A sign that is in non-conforming status is not intended to last in perpetuity.
Moreover, the Board did not agree that a sign that has been completely
destroyed is considered “dilapidated” or “damaged” for purposes of making
repairs. Since the billboard was completely destroyed with only one support pole
standing, the property owners did not have the option to make repairs as provided
under Section 3.1604(7)(b), Zoning Ordinance.
(citations to exhibits omitted). Exhibits attached to appellees’ answer/response included (1)
copies of several City of Plano ordinances, including sections 3.1602 2 and 3.1604 3 of the “Sign
2
Section 3.1602 of the City of Plano Comprehensive Zoning Ordinance, titled “Definitions,” provides in relevant part that a sign is in
“dilapidated or deteriorated condition” when (1) “elements of the surface or background have portions of the finished material missing, broken, or
otherwise existing such that they are illegible”; (2) “the structural support or frame members are visibly bent, broken, dented, or torn”; (3) “the
panel is visibly cracked or, in the case of wood and similar products, splintered in such a way as to constitute an unsightly or harmful condition”;
(4) “the sign or its elements are twisted, leaning, or at angles other than those at which it was originally erected (such as may result from being
blown or the failure of a structural support)”; (5) “the message or wording can no longer be clearly read”; or (6) “the sign or its elements are not
in compliance with the requirements of the current Electrical Code and/or the Building Code of the City of Plano.” CITY OF PLANO, TEX.,
COMPREHENSIVE ZONING ORDINANCE, art. 3, § 3.1602 (2006).
3
Section 3.1604 of the City of Plano Comprehensive Zoning Ordinance states in relevant part as follows:
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Regulations” contained in the City of Plano Comprehensive Zoning Ordinance, and (2) a verified
copy of the Board’s “record” pertaining to appellants’ application described above. Among the
documents in the Board’s record were (1) an August 9, 2011 “Decision of the Board of
Adjustment” in which the Board “denied” appellants’ appeal of “the Building Official’s decision
that the nonconforming billboard sign must be removed pursuant to Subsection 3.1604(6) of the
Zoning Ordinance” and (2) photographs of the billboard taken after the 2011 storm that show
one support pole standing and other parts of the billboard on the ground nearby.
3.1604 General
....
6. Nonconforming Signs
a. Legal Nonconforming Uses
Subject to the provisions of this section, signs for a legal nonconforming use, as defined in the Comprehensive
Zoning Ordinance of the City of Plano, are allowed. Any such sign legally existing on the effective date of this
ordinance but which does not comply with the regulations of this ordinance, shall be deemed to be a
nonconforming sign under the provisions of this ordinance and shall be subject to alteration or removal in
accordance with the provisions of this ordinance.
b. Moving, Relocating, or Altering of Signs
No nonconforming sign shall be moved, altered, removed and reinstalled, or replaced unless it is brought into
compliance with the requirements of this ordinance.
....
7. Maintenance of Signs
a. Maintenance
Each sign shall be maintained in a safe, presentable, and good condition, including the replacement of defective
parts and other acts required for the maintenance of such sign, without altering the basic copy, design, or
structure of the sign. The Building Official shall require compliance or removal of any sign determined by the
Building Official to be in violation of this section in accordance with the enforcement provisions set forth
below.
b. Dilapidated or Deteriorated Signs
No person shall maintain or permit to be maintained on any premises owned or controlled by him or her any
sign which is in a dilapidated or deteriorated condition as defined herein. Upon notice of violation, any such
sign shall be promptly removed or repaired by the owner of the sign or the owner of the premises upon which
the sign is located in accordance with the enforcement provisions set forth in 8. below.
8. Enforcement
a. Authority
The Building Official, or his respective designee(s), any peace officer, and any code enforcement officer is
hereby authorized to issue a citation and to order the repair or removal of any dilapidated, deteriorated,
abandoned, illegal, or prohibited signs from property within the corporate city limits of Plano, in accordance
with the enforcement mechanisms set forth in this section.
CITY OF PLANO, TEX., COMPREHENSIVE ZONING ORDINANCE, art. 3, § 3.1604.
–5–
On February 2, 2012, appellants filed a motion for summary judgment as to their claim
respecting judicial review of the Board’s decision. Appellants asserted in part (1) “[t]he parties
are in agreement and it is undisputed that the sign was damaged and not destroyed” by the 2011
storm; (2) the Board’s decision that section 3.1604(6) requires appellants to remove their
“damaged” sign constitutes an abuse of discretion because that decision ignores the plain
language of the zoning ordinance and renders section 3.1604(7) meaningless; and (3) appellants
are entitled to recover “temporary damages” in the amount of $45,000 as “compensation for the
City’s delay in allowing the billboard to be repaired.”
Appellants’ summary judgment evidence consisted of (1) the pleadings in this case and
(2) the “Record from Board of Adjustment.” Specifically, the portions of the Board’s record
cited by appellants in their motion included (1) an April 27, 2011 letter to McCord from the
building official that notified McCord as to a “violation” respecting the billboard and stated in
part “[t]he violation concerns a damaged nonconforming sign” and “[i]n order to correct this
violation, the damaged nonconforming sign must be removed, and shall not be reinstalled or
replaced” and (2) a document titled “Appeal Summary” that contained “staff findings” stating in
part “[t]he billboard sign was damaged due to storms within the month of April, 2011” and “[t]he
applicant is requesting to overturn the Building Official’s decision and allow the nonconforming
billboard sign to be repaired pursuant to subsection 3.1604 of the Zoning Ordinance, which does
not specifically prohibit ‘repair’ under 6(b) and allows for repair under 7(b).”
Appellees filed a joint response to appellants’ February 2, 2012 summary judgment
motion in which they restated the arguments from their answer/response described above.
Additionally, appellees filed a “plea to the jurisdiction and motion to dismiss” respecting
appellants’ “claim for inverse condemnation and regulatory takings.” Specifically, appellees
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asserted in part that governmental immunity applies because appellants failed to plead a valid
claim as to those matters.
Following a hearing, the trial court (1) denied appellants’ motion for summary judgment
as to the Board’s decision and (2) signed a May 17, 2012 order in which it “affirmed” the
Board’s decision. Further, upon agreement by the parties, appellants’ regulatory taking claim
against the Board was dismissed with prejudice. 4
On November 21, 2012, appellants filed a motion for summary judgment respecting their
Chapter 245 and regulatory taking claims against the City. Appellants asserted in part that the
City violated Chapter 245 because the 2006 ordinance in question constituted a “new” ordinance
that adversely impacted appellants’ “ongoing [b]illboard project” and thus interfered with their
“vested property rights.” Further, as to their regulatory taking claim, appellants contended in
part they have (1) been denied all economically viable use of their property as a result of the
City’s action or, alternatively, been deprived of their “investment-backed expectations” to
“continued use of the [b]illboard” and (2) suffered damage in excess of $1,200,000. The
summary judgment evidence attached to appellants’ November 21, 2012 motion consisted of the
Board’s record described above, the pleadings and orders in this case, and several affidavits
pertaining to the alleged regulatory taking damages and appellants’ attorney’s fees.
The City filed (1) a February 15, 2013 “first amended answer” in which it asserted
immunity from suit as to appellants’ Chapter 245 and regulatory taking claims in the alternative
to its general denial and (2) an April 5, 2013 motion for summary judgment or alternatively, plea
to the jurisdiction. In its motion for summary judgment/plea to the jurisdiction, the City
contended in part (1) it was entitled to traditional and no-evidence summary judgment in its
favor because Chapter 245 is inapplicable to this case and no regulatory taking occurred and (2)
4
Appellants’ regulatory taking claim against the City was temporarily abated by the trial court.
–7–
its governmental immunity from suit had not been waived because the “undisputed jurisdictional
facts” established that appellants’ claims respecting violation of Chapter 245 and a regulatory
taking were not “valid.” Additionally, the City requested that it be allowed to “recover its costs”
from appellants.
Appellants filed a combined response to the City’s motion for summary judgment and
plea to the jurisdiction on May 8, 2013. Appellants argued in part (1) even if there is no
permanent taking, “it is still possible that [appellants] would be entitled to temporary damages
for the taking of their property rights between the time the City refused the [b]illboard to be
rebuilt to the time that it is rebuilt” and (2) “[b]ecause [appellants] have raised a fact question on
the jurisdictional issue, the trial court must deny the plea to the jurisdiction as a matter of law.”
Specifically, appellants asserted fact questions had been raised as to the appropriate parcel of
property to be considered in determining whether a taking occurred, the magnitude of the
economic impact from the alleged taking, and the amount of compensation to which they were
entitled. 5
The trial court’s final order described above was dated December 16, 2013. Appellants
filed a timely motion for new trial that was denied by operation of law. This appeal timely
followed.
II. APPELLANTS’ ISSUES
A. Standard of Review
We review a trial court’s summary judgment de novo. See, e.g., Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d
546, 548 (Tex. 1985). With respect to a traditional motion for summary judgment, the movant
5
Additional evidence not relevant to this appeal was attached to the City’s motion for summary judgment/plea to the jurisdiction and
appellants’ response described above.
–8–
has the burden to demonstrate that no genuine issue of material fact exists and it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon, 690 S.W.2d at 548–49. In our
review, we credit evidence favorable to the non-movant if reasonable jurors could and disregard
evidence contrary to the non-movant unless reasonable jurors could not. See, e.g., Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
Although a denial of summary judgment is generally not reviewable, we may review such
a denial when both parties moved for summary judgment and the trial court granted one motion
and denied the other. See, e.g., Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253
S.W.3d 184, 192 (Tex. 2007). In our review of such cross-motions, we review the summary
judgment evidence presented by both sides and determine all questions presented. See id.; City
of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). If we conclude the trial
court committed reversible error, we render the judgment the trial court should have rendered.
See Tex. Mun. Power Agency, 253 S.W.3d at 192; Dallas Morning News, 22 S.W.3d at 356.
A plea to the jurisdiction is a dilatory plea by which a party challenges the court's
authority to determine the subject matter of the action. See, e.g., Harris Cnty. v. Sykes, 136
S.W.3d 635, 638 (Tex. 2004). The burden is on the plaintiff to allege facts affirmatively
demonstrating that the trial court has subject matter jurisdiction. Tex. Dep’t of Criminal Justice
v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); City of El Paso v. Mazie’s, L.P., 408 S.W.3d 13, 18
(Tex. App.—El Paso 2012, pet. denied). Whether a party has alleged facts that affirmatively
demonstrate a trial court’s subject matter jurisdiction is a question of law which is subject to de
novo review. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004);
Mazie’s, 408 S.W.3d at 18.
When a plea to the jurisdiction challenges the pleadings, we look to the pleader’s intent,
construe the pleadings liberally in favor of jurisdiction, and accept the allegations in the
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pleadings as true to determine if the pleader has alleged sufficient facts to affirmatively
demonstrate the trial court’s jurisdiction to hear the case. See, e.g., Heckman v. Williamson
Cnty., 369 S.W.3d 137, 150 (Tex. 2012). 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 its pleading. Id.; Miranda, 133 S.W.3d at 226–27.
B. Applicable Law
The Texas Local Government Code provides that the governing body of a municipality
may appoint a “board of adjustment” to, among other functions, hear and decide appeals when
error is alleged in any order, requirement, decision, or determination made by an administrative
official in enforcement of a zoning ordinance. TEX. LOC. GOV’T CODE ANN. §§ 211.008–.009.
A decision of a board of adjustment may be challenged by filing a petition in a district or county
court stating that the board’s decision is illegal in whole or in part and specifying the grounds of
the illegality. Id. § 211.011(a). The trial court may reverse or affirm, in whole or in part, or
modify the decision that is appealed. Id. § 211.011(f).
In an action challenging a decision by a board of adjustment, the trial court sits as a court
of review and the only question before it is the legality of the board’s decision. City of Dallas v.
Vanesko, 189 S.W.3d 769, 771 (Tex. 2006); Town of Bartonville Planning and Zoning Bd. of
Adjustments v. Bartonville Water Supply Corp., 410 S.W.3d 23, 29 (Tex. App.—San Antonio
2013, pet. denied). The board’s decision is presumed to be lawful, and the party attacking it
bears the burden of establishing that the board clearly abused its discretion. See City of San
Antonio Bd. Of Adjustment v. Reilly, 429 S.W.3d 707, 711 (Tex. App.—San Antonio 2014, no
pet.); Tellez v. City of Socorro, 296 S.W.3d 645, 649 (Tex. App.—El Paso 2009, pet. denied).
To establish that the board’s decision is illegal, the party attacking it must present a “very clear
showing of abuse of discretion.” Vanesko, 189 S.W.3d at 771. A board abuses its discretion
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when it acts without reference to any guiding rules or principles, or when it clearly fails to
analyze or apply the law correctly. Id.
In determining whether a board abused its discretion, the trial court may consider the
board’s verified return and any other evidence presented to the trial court. TEX. LOC. GOV’T
CODE ANN. § 211.011(d), (e). As to a board’s factual findings, the trial court may not substitute
its judgment for the judgment of the board. Vanesko, 189 S.W.3d at 771; Bd. of Adjustment for
the City of San Antonio v. Kennedy, 410 S.W.3d 31, 35 (Tex. App.—San Antonio 2013, pet.
denied). To prevail in the trial court, a party challenging a board’s factual findings must
establish that the board could have reasonably made only one decision and not the decision it
made. See Vanesko, 189 S.W.3d at 771; see also Kennedy, 410 S.W.3d at 35 (it is not abuse of
discretion for board to base its decision on conflicting evidence). The abuse-of-discretion review
is necessarily less deferential when considering any legal conclusions made by the zoning board
and is similar in nature to a de novo review. Vanesko, 189 S.W.3d at 771.
We apply the same rules to construe municipal ordinances as those used to construe
statutes. Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex. 2002);
Baird v. City of Melissa, 170 S.W.3d 921, 924–25 (Tex. App.—Dallas 2005, pet. denied). Our
objective in construing municipal zoning ordinance provisions is to discern the city’s intent. See
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). We rely on
the plain meaning of the text as expressing this intent unless a different meaning is supplied by
definition or is apparent from the context, or the plain meaning leads to absurd results. Tex.
Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); see also
Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994) (“Construction of a statute by the administrative
agency charged with its enforcement is entitled to serious consideration, so long as the
construction is reasonable and does not contradict the plain language of the statute.”). “We do
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not confine our review to words, phrases or clauses in isolation, but rather we examine the entire
act to glean its meaning.” Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex.
2001); see also TEX. GOV’T CODE ANN. § 311.021 (West 2013). In giving effect to the
enactment as a whole, we should not assign a meaning to a provision that would be inconsistent
with other provisions of the zoning ordinance. See Meritor Auto., Inc., 44 S.W.3d at 90.
Further, because statutory construction is a question of law, we review the issue de novo.
McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003); Baird, 170 S.W.3d at 925.
Article I, section 17, of the Texas Constitution provides in part “no person’s property
shall be taken, damaged, or destroyed for or applied to public use without adequate
compensation being made.” TEX. CONST. art. I, § 17. Takings can be classified as either
physical or regulatory. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). While
all property is held subject to the valid exercise of the police power, a regulatory action may,
under some circumstances, constitute a taking requiring compensation. See Hallco Tex., Inc. v.
McMullen Cnty., 221 S.W.3d 50, 56 (Tex. 2006). Where a property owner believes
compensation is due, he may seek redress via an inverse condemnation claim. City of Houston v.
Carlson, 451 S.W.3d 828, 831 (Tex. 2014).
A municipal government enjoys immunity from suit unless its immunity has been
waived. Id. at 830. Without this waiver, courts have no jurisdiction to adjudicate any claim
against the municipality. Id. It is well settled that the Texas Constitution waives government
immunity with respect to inverse condemnation claims. Id. “Nevertheless, such a claim is
predicated upon a viable allegation of taking.” Id. “In the absence of a properly pled takings
claim, the state retains immunity.” Id. Under such circumstances, a court must sustain a
properly raised plea to the jurisdiction. Id.
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C. Application of Law to Facts
1. Trial Court’s Judicial Review of Board’s Decision
We begin with appellants’ second issue, in which they contend the trial court erred by
affirming the Board’s decision to “prohibit repair of the [b]illboard.” Specifically, appellants
argue in part (1) the billboard “falls within the City’s definition of ‘dilapidated or deteriorated’”
in section 3.1602 and thus can be “repaired” pursuant to subsection 3.1604(7) and (2) the
Board’s construction of the ordinance in question “ignores” the plain language of the ordinance
and renders subsection 3.1604(7)(b) “meaningless.”
The Board responds in part (1) it “made a factual finding that the [b]illboard had been
destroyed which may not be second-guessed by this Court”; (2) because the billboard was
“destroyed under the terms of the ordinance as opposed to being ‘dilapidated and deteriorated,’”
appellants “were not permitted to ‘repair’ their [b]illboard under the terms of the ordinance but
were, to the contrary, prohibited from reconstructing same”; and (3) “the Board’s construction of
the City’s ordinance does not contradict the plain language of the ordinance.” According to the
Board’s brief on appeal, although section 3.1604(7) “permits maintenance and repair of signs”
and “applies globally to all signs within the City,” the billboard’s condition “does not fall within
the dilapidated or deteriorated classification governed by § 3.1604(7)” and, therefore, “the
Board’s reliance on § 3.1604(6) was appropriate.” Specifically, the Board contends in part,
[T]he consistent theme in § 3.1602’s definition of “dilapidated or deteriorated” is
the continued presence of a standing sign. In this regard, the definitions cited by
Appellants focus only on the sign being “twisted” or “leaning,” or where
“portions” of the “surface or background” material are missing or broken, not
where, as in this case, the supports and the sign itself have been completely blown
down. Such a reading is consistent with the other portions of § 3.1602’s
definition, each of which indicate that the “dilapidated or deteriorated” descriptor
was intended to apply to standing structures which were not being properly
maintained.
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[citations to record omitted]. In support of that argument, the Board cites the language of section
3.1602 and the photographs of the billboard in the Board’s record described above. Further, the
Board contends its reliance on subsection § 3.1604(6) “did not violate the plain language of the
ordinance” because “the City has enacted additional, specific provisions to address how
nonconforming signs are governed via its enactment of § 3.1604(6).”
In addition to the language of section 3.1602 quoted by the Board in its argument
described above, that section also states in part that a sign is “dilapidated and deteriorated” when
“the structural support or frame members are visibly bent, broken, dented, or torn” or “the sign
or its elements are twisted, leaning, or at angles other than those at which it was originally
erected (such as may result from being blown or the failure of a structural support).” See CITY
OF PLANO, TEX., COMPREHENSIVE ZONING ORDINANCE, art. 3, § 3.1602 (emphasis added). The
definitions in section 3.1602 do not define or contain the term “destroyed,” nor does section
3.1604 contain that term or specifically address “destroyed” signage. See id. §§ 3.1602, 3.1604.
The photographs of the billboard cited by the Board show one support pole standing and other
parts of the billboard on the ground nearby. On this record, we cannot agree with the Board that
the billboard’s condition “does not fall within the ‘dilapidated or deteriorated’ classification’
governed by § 3.1604(7).” Id. § 3.1604(7).
Pursuant to subsection 3.1604(7)(b), a dilapidated or deteriorated sign shall be “removed
or repaired by the owner” in accordance with other provisions of the act. Id. § 3.1604(7)(b); see
also id. § 3.1604(7)(a) (“maintenance” of sign can include “replacement of defective parts” as
long as basic design or structure is not altered). The record shows that in its response in the trial
court, the Board described subsection 3.1604(7)(b) as providing property owners “the option to
make repairs.” We conclude that description is consistent with the plain language of the
ordinance. Id. § 3.1604(7)(b). Further, on this record, we conclude (1) the Board abused its
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discretion by not allowing appellants the option to make repairs as provided under subsection
3.1604(7)(b) and (2) the trial court erred by affirming the Board’s decision.
We decide in favor of appellants on their second issue. 6
2. “Temporary” Regulatory Taking
Next, we address together appellants’ first and fourth issues. In those issues, appellants
contend they pleaded a valid claim as to a “temporary and/or permanent” regulatory taking and
“the evidence includes disputed fact issues” respecting that claim. Further, appellants assert that
if they are allowed to repair the billboard, the portion of their fourth issue respecting a
“permanent” taking need not be addressed by this Court, but they are still entitled to recover
“temporary damages including rentals or lost profits for that period of time when the [b]illboard
was unusable.”
The City responds in part the trial court properly granted its plea to the jurisdiction as to a
regulatory taking because the facts alleged by appellants are not “enough to constitute a taking”
and the City was therefore protected by governmental immunity.
Subsequent to the filing of the parties’ appellate briefs in this Court, the Texas Supreme
Court delivered its opinion in Carlson. See 451 S.W.3d at 828. In that case, an investigation by
the City of Houston revealed various alleged structural, electrical, and plumbing problems in a
condominium complex. Id. at 829. Of primary concern was evidence that an underground
parking facility might fail, posing serious risk to dozens of units located above the garage. Id.
The city declared the condominiums uninhabitable and posted a notice throughout the complex
stating (1) the condominium owners had ten days to apply for a certificate of occupancy and (2)
6
In their third issue, appellants complain as to the trial court’s granting of the City’s motion for summary judgment/plea to the jurisdiction
respecting appellants’ Chapter 245 claim and the denial of appellants’ motion for summary judgment as to that claim. During oral submission
before this Court, appellants stated that their issue respecting violation of Chapter 245 “does not come into play” if this Court concludes the trial
court erred by affirming the Board’s decision in question. In light of our conclusion above that the trial court did so err, we need not address
appellants’ third issue. See TEX. R. APP. P. 47.1.
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failure to comply with the notice “may subject you to a municipal court citation.” Id. at 829–30.
The owners did not apply for an occupancy certificate or make the requisite repairs. Id. at 830.
After a month passed without compliance, the city did not issue a citation, but rather ordered all
residents to vacate the complex within thirty-one days pursuant to a city ordinance that
authorized officials to “order the use discontinued immediately” when a structure “creates a
serious and immediate hazard.” Id. After an administrative hearing, the city upheld the order to
vacate. Id. The order to vacate was later reversed by a district court based on due process
violations and the owners sold the complex for redevelopment. Id.
Subsequently, a group of owners (the “owners”) filed an inverse condemnation action,
alleging their property was taken when residents were forced to vacate. Id. They sought
compensation for years of lost use and other unspecified damages. Id. The trial court sustained
the city’s plea to the jurisdiction, concluding the owners had not alleged a taking. Id. The
Fourteenth Court of Appeals in Houston reversed and the city filed a petition for review. Id.
The supreme court reversed the court of appeals’ decision. The supreme court observed
that the owners (1) “do not contest any of [the city’s] property-use restrictions” or the “standards
imposed” by the city, but rather “object only to the penalty imposed and the manner in which the
city enforced its standards” and (2) “complain, for example, that the city did not specify the
alleged violations,” that “the punishment was excessive,” and that “the safety regulations were
misapplied vis-à-vis their property.” Id. at 831–32. Further, the supreme court stated the owners
“appear to suggest that a civil-enforcement procedure alone can serve as the basis of a
regulatory-takings claim,” but “have identified no authority for such a proposition.” Id. at 832.
Then, the supreme court reasoned as follows:
We do not doubt, and the city does not deny, that the order to vacate interfered
with the use of the respondents’ property. Yet nearly every civil-enforcement
action results in a property loss of some kind. The very nature of the action
dictates as much. Nevertheless, that property is not “taken for public use” within
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the meaning of the Constitution. Accordingly, where a party objects only to the
“infirmity of the process,” no taking has been alleged.
Id. at 832–33 (citations omitted). Additionally, the supreme court stated “it is immaterial that the
city may have been mistaken regarding the actual safety of the complex” because “[e]ven
assuming the city made a mistake, the [owners’] allegations would ‘amount to nothing more than
a claim of negligence on the part of [the city], for which [it] is immune under the Texas Tort
Claims Act.’” Id. at 833 (quoting Dalon v. City of DeSoto, 852 S.W.2d 530, 538 (Tex. App.—
Dallas 1992, writ denied)). The supreme court concluded that because the owners “simply have
not alleged a taking,” the city retained its immunity from suit and dismissal for want of
jurisdiction was proper. Id.
In the case before us, appellants do not contest the sign regulations in the City’s zoning
ordinance, but rather complain about the City’s misapplication of certain regulations as to their
property. Based on Carlson, we conclude appellants have not alleged a taking and the trial court
properly granted the City’s plea to the jurisdiction respecting appellants’ taking claim. 7 See id. at
831–33.
We decide appellants’ first and fourth issues against them.
3. Costs of Court
As described above, (1) the City requested that it be allowed to “recover its costs” in the
trial court and (2) the trial court awarded the City its “costs of court” in the final judgment. In
7
The parties do not cite or address Carlson in this appeal. In a February 4, 2015 post-submission letter to this Court, appellants cite City of
Galveston v. Murphy, No. 14-14-00222-CV, 2015 WL 167178 (Tex. App.—Houston [14th Dist.] Jan. 13, 2015, no pet. h.), as supplemental
authority in support of their argument that they have properly pleaded a regulatory taking. In Murphy, the City of Galveston appealed a denial of
its plea to the jurisdiction in a case brought by a property owner complaining as to two separate decisions by city officials. See id. at *1.
Specifically, the property owner complained in part that the city improperly relied on certain zoning standards to revoke the property’s non-
conforming status, rather than applying the properly applicable zoning standard. Id. at *3 n.4, The city argued in part on appeal that the property
owner “waived” its right to raise a takings claim as to the city’s revocation of the property’s “’grandfathered’ non-conforming status” by failing
to pursue an appeal with the city’s Zoning Board of Adjustment in accordance with the city’s zoning standards. Id. at *7. The Fourteenth Court
of Appeals in Houston described the issue as one of “ripeness” and concluded in part the trial court did not err by denying the city’s plea to the
jurisdiction because the city did not meet its burden to establish that its revocation decision was not final and authoritative. Id. at *8.
Additionally, the court of appeals stated in a footnote, “We can discern, and the City points to, no reason aside from ‘waiver’ why the [property
owner] would not be able to allege takings theories based on two regulatory actions by the City.” Id. at *7 n.12. Carlson was not cited or
addressed in Murphy. Further, the case before us does not involve the issue of whether a decision revoking a “’grandfathered’ non-conforming
status” was final and authoritative. We do not find Murphy persuasive.
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their prayer in their appellate brief, appellants request in part that “the trial court’s finding that
the City recover costs of court from Plaintiffs be reversed and remanded.”
Generally, a successful party is entitled to recover its costs from its adversary. See TEX.
R. CIV. P. 131; Gumpert v. ABF Freight Sys., Inc., 312 S.W.3d 237, 239 (Tex. App.—Dallas
2010, no pet.). “We review the award of costs under an abuse of discretion standard.” Canine,
Inc. v. Golla, 380 S.W.3d 189, 197 (Tex. App.—Dallas 2012, pet. denied) (citing Furr’s
Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 376 (Tex. 2001)); accord Gumpert, 312 S.W.3d
at 239. The general rule in Texas is that expenses incurred in prosecuting or defending a suit are
not recoverable as costs unless recovery for those items is expressly provided for by statute, rule,
or under principles of equity. Gumpert, 312 S.W.3d at 239. Whether a particular expense is
recoverable under statute or rule as a court cost is a question of law, which we review de novo.
Id.; see Bundren v. Holly Oaks Townhomes Ass’n, Inc., 347 S.W.3d 421, 440 (Tex. App.—Dallas
2011, pet. denied).
The record in the case before us contains an “Itemized List of Costs” filed post-judgment
by the City in the trial court. That list includes costs pertaining to subpoenas, a deposition, and
mediation following the trial court’s May 17, 2012 interlocutory order affirming the Board’s
decision. The record does not show whether any of those costs are taxable regarding the claim,
addressed above as to appellants’ second issue, where we concluded the trial court erred, nor
does the record show what costs from that list, if any, were included in the trial court’s judgment
that awarded “costs of court” to the City. Therefore, we remand this case to the trial court for
determination of what “costs,” if any, are recoverable by the City in light of our conclusions
above.
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III. CONCLUSION
We decide (1) in favor of appellants on their second issue and (2) against appellants on
their first and fourth issues. We need not address appellants’ third issue.
We (1) reverse the portions of the trial court’s judgment “affirming” the Board’s decision
in question and awarding “costs of court” to the City; (2) render judgment reversing the Board’s
decision that the billboard in question must be removed and cannot be repaired; and (3) remand
this case to the trial court for further proceedings respecting the “costs” claimed by the City. The
trial court’s judgment is otherwise affirmed.
/ Douglas S. Lang
DOUGLAS S. LANG
JUSTICE
140104F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CPM TRUST, KLM SECURE TRUST, On Appeal from the 429th Judicial District
AND RMP PARKER CENTRAL, LLC, Court, Collin County, Texas
Appellants Trial Court Cause No. 429-03394-2011.
Opinion delivered by Justice Lang, Justices
No. 05-14-00104-CV V. Stoddart and Schenck participating.
CITY OF PLANO, TEXAS AND THE
BOARD OF ADJUSTMENT OF THE
CITY OF PLANO, TEXAS, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE the portions of the trial court’s
judgment (1) affirming the decision of the Board of Adjustment of the City of Plano, Texas, and
(2) awarding costs of court to the City of Plano, Texas. We RENDER judgment reversing the
Board of Adjustment of the City of Plano, Texas’s decision that the billboard in question must be
removed and cannot be repaired and REMAND this cause to the trial court for further
proceedings respecting the costs of court awarded by the trial court to the City of Plano, Texas.
In all other respects, the trial court’s judgment is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 7th day of April, 2015.
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