Peter Schmitz, Sean Pollock, Larry LaDuke, and Becky LaDuke v. Denton County Cowboy Church and the Town of Ponder, Texas

ACCEPTED
02-16-00114-cv
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
12/19/2017 10:39 AM
DEBRA SPISAK
CLERK
____________________
NO. 02-16-00114-CV FILED IN
2nd COURT OF APPEALS
____________________ FORT WORTH, TEXAS
12/19/2017 10:39:25 AM
IN THE COURT OF APPEALS DEBRA SPISAK
SECOND DISTRICT OF TEXAS Clerk
FORT WORTH, TEXAS
____________________
Peter Schmitz, Sean Pollock and Larry & Becky LaDuke,
Appellants
v.
Denton County Cowboy Church and
the Town of Ponder, Texas,
Appellees
____________________
APPELLEE TOWN OF PONDER’S RESPONSE TO
APPELLANTS’ MOTION FOR REHEARING
____________________
On Appeal from the 431st Judicial District, Denton County, Texas;
Trial Court Cause No. 15-06454-431, the Hon. Jonathan Bailey Presiding
____________________
Matthew C.G. Boyle
State Bar No. 24001776
4201 Wingren, Suite 108
Irving, Texas 75062-2763
(972)650-7100 Phone
(972)650-7105 Fax
mboyle@boyle-lowry.com
IDENTITY OF PARTIES AND COUNSEL
PLAINTIFFS/APPELLANTS COUNSEL
Peter Schmitz, Sean Pollock, and Robert E. Hager
Larry & Becky LaDuke State Bar No. 08689500
rhager@njdhs.com
M. Shelby Pearcy
State Bar No. 24067756
spearcy@njdhs.com
500 N. Akard
Suite #1800
Dallas, Texas 75201
Telephone: (214) 965-9900
Facsimile: (214) 965-0010
Gregory J. Sawko
State Bar No. 17692700
gsawko@dentonlawyer.com
1172 Bent Oaks Drive
Denton, Texas 76210
Telephone: (940) 382-4357
Facsimile: (940) 591-0991
DEFENDANTS/APPELLEES COUNSEL
Town of Ponder, Texas Matthew C. G. Boyle
State Bar No. 24001776
mboyle@boyle-lowry.com
Matthew L. Butler
State Bar No. 24073984
mbutler@boyle-lowry.com
4201 Wingren, Suite 108
Irving, Texas 75062
Phone: 972-650-7100
Fax: 972-650-7105
Denton County Cowboy Church Lance Vanzant
Texas Bar No. 24009736
Lvanzant@hbwvlaw.com
Dorwin L. Sargent, III
Texas Bar No. 24088352
dsargent@hbwvlaw.com
512 W. Hickory, Suite 100
P.O. Box 50149
Denton, Texas 7620 l
940-387-3518 - Tel.
866-546-9247 – Fax
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, the Town of Ponder (“Ponder” or the “Town”), Appellee in
the above entitled and numbered cause, and files this, its Response to Appellants’
Motion for Rehearing filed September 29, 2017 (the “Motion”).
I. SUMMARY OF RESPONSE
The Ponder Town Council’s rezoning of the Denton County Cowboy
Church’s (the “Church”) property constituted a valid legislative action and Ponder’s
governmental immunity has not been waived. Appellants have not and can never
plead an applicable waiver of Ponder’s governmental immunity based on the
pleadings and evidence in the record. Appellants seek rehearing based on their
substantive challenge to Ponder’s rezoning of the Church’s property and a related
claim that somehow Ponder violated the Open Meetings Act (Chapter 551 Texas
Government Code). Appellants have failed to meet their burden to establish the
Court’s jurisdiction and cannot do so now. Appellants’ live pleading is their Fourth
Amended Petition and the trial court held an all-day evidentiary hearing on all
matters raised in this appeal on December 30, 2015. Appellants still failed to meet
its burden to plead an applicable waiver of Ponder’s immunity and the factual
applicability of any claimed source of waiver.
There is no record or evidence that Ponder acted in an arbitrary or capricious
manner when the Ponder Town Council approved the Church’s request to rezone its
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property. Appellants’ first and third issues in the Motion are founded on a baseless
allegation that Ponder acted in an arbitrary or capricious manner in rezoning the
Church’s property. The applicable standard for determining whether or not the
Ponder Town Council acted in an arbitrary or capricious manner is whether or not
reasonable minds could differ as to whether the zoning change has a substantial
relationship to the public health, safety, and welfare. Based on the provisions of the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and the Church’s
efforts to expand its religious offerings as part of the requested zoning change, it is
impossible to conclude that reasonable minds could not differ as to the merits of the
zoning change. There is undisputed evidence in the record that the Church’s
requested zoning change was supported by RLUIPA. Correspondingly, there is no
evidence to support Appellants allegation that the zoning amendment was arbitrary
and capricious. There is an available remedy for cases where a city council does
indeed approve a zoning change in an arbitrary or capricious manner, but where
reasonable minds can differ on whether such change has a substantial relationship to
the public health, safety, and welfare, there is simply no waiver of governmental
immunity.
The bare allegations of an Open Meetings Act violation in Appellants’ Motion
are also insufficient to establish a waiver of Ponder’s immunity. Furthermore, many
such allegations are being raised for the first time on appeal. Appellants’ pleadings
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do not allege sufficient facts to establish a waiver of Ponder’s immunity with regard
to an Open Meetings Act violation. Furthermore, at the evidentiary hearing in the
trial court, Appellants presented absolutely no evidence and made no argument that
a violation of the Open Meetings Act had occurred as part of Ponder’s approval of
the rezoning of the Church’s property. As such, the Trial Court did not err in granting
Ponder’s plea to the jurisdiction.
As to Appellants’ third issue in the Motion, Appellants failed to meet their
burden to establish a waiver of Ponder’s immunity based on a claim pursuant to 42
USC §1983 (“Section 1983”). Even with a generously liberal construction that
Appellants’ pleadings include a regulatory takings claim, Appellants’ pleadings and
the evidence in the record do not sufficiently support a viable takings claim.
Appellants have no rights or entitlement to zoning of their Church neighbor’s
property. Further, Appellants’ claim under Section 1983 is not ripe because
Appellants failed to pursue the available State law remedies, which is a mandatory
prerequisite to such a claim. Lastly, as to the actual property owned by Appellants,
there is zero evidence in the record that Ponder’s approval of a zoning change on the
Church’s property denied Appellants all economically viable use of their property.
Accordingly, Appellants failed to meet their burden to establish the Court’s
jurisdiction as to their claim under Section 1983.
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II. ARGUMENT
A. Appellants have not and cannot plead the factual applicability of a waiver
of Ponder’s immunity
Sovereign immunity from suit defeats a trial court's subject matter jurisdiction
unless the state expressly consents to suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d
636, 638 (Tex. 1999). The only waiver of immunity as to municipalities under the
Declaratory Judgment Act is to determine the validity of an ordinance or franchise.
Tex. Civ. Prac. & Rem. Code § 37.007(b); City of Dallas v. Turley, 316 S.W.3d 762,
769-71 (Tex. App.—Dallas 2010, pet. denied). Section 154.58(B) of the Ponder
Zoning Ordinance provides that the Ponder Zoning Ordinance can be amended by
action of the Town Council. C.R. at 306. The Ponder Town Council approved the
change in zoning for the Church’s property on August 24, 2015. C.R. at 264-66.
Based on Section 154.58(B), the Town Council’s approval of the Church’s requested
zoning change is tantamount to the adoption of an ordinance because said approval
amended the Ponder Zoning Ordinance. Appellants allege that the zoning change for
the Church’s property is invalid, but in order to establish the Court’s jurisdiction,
Appellants still bear the burden to allege facts affirmatively demonstrating that the
trial court has subject-matter jurisdiction. See Tex. Ass'n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 446 (Tex. 1993). For the waiver to be effective, a plaintiff must
plead a constitutional or legislative waiver with facts that make the waiver
applicable. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598
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(Tex. 2001) (the pleader must allege facts to demonstrate a valid constitutional
claim); Tex. Ass’n of Bus, 852 S.W.2d at 446 (the pleader must allege facts that
affirmatively demonstrate the court’s jurisdiction to hear the cause); See State v.
Lueck, 290 S.W.3d 876, 884 (Tex. 2009) (holding a pleading cannot stand on bare
allegations).
A duly adopted zoning approval is presumed to be valid and the burden is on
the party seeking to prevent its enforcement to prove that the ordinance is arbitrary
or unreasonable in that it bears no substantial relationship to the health, safety,
morals or general welfare of the community. City of Pharr v. Tippitt, 616 S.W.2d
173, 176 (Tex. 1981). “If reasonable minds may differ as to whether or not a
particular zoning ordinance has a substantial relationship to the public health, safety,
morals or general welfare, no clear abuse of discretion is shown and the ordinance
must stand as a valid exercise of the city's police power.” Id. (quoting Hunt v. City
of San Antonio, 462 S.W.2d 536, 539 (Tex.1971)).
Within the context of this case, the requested zoning amendment implicated
RLUIPA because the Property in question is used for religious exercise as part of the
Church’s religious activities. Under RLUIPA, “[n]o government shall impose or
implement a land use regulation in a manner that imposes a substantial burden on
the religious exercise of a person, including a religious assembly or institution,
unless the government demonstrates that imposition of the burden on that person,
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assembly, or institution (A) is in furtherance of a compelling governmental interest;
and (B) is the least restrictive means of furthering that compelling governmental
interest.” 42 U.S.C.A. § 2000cc (West).1 The judiciary is ill-suited to opine on
theological matters, and should avoid doing so. Merced v. Kasson, 577 F.3d 578, 590
(5th Cir. 2009) (citing Employment Division, Department of Human Resources v.
Smith, 494 U.S. 872, 887 (1990) (“Repeatedly and in many different contexts, we
have warned that courts must not presume to determine the place of a particular
belief in a religion or the plausibility of a religious claim.”)).
The evidence is undisputed that the Church intends to the use Property for
religious exercise. See 2 R.R. at 230-41. At the December 30, 2015, hearing in the
trial court, the Church’s Pastor Jeff Tackett testified that the requested zoning change
was motivated by Pastor Tackett’s sincere religious convictions and that without the
zoning approval, the exercise of those religious beliefs would be substantially
burdened. See 2 R.R. 240-241. In order for Appellants to prevail on their claim of
spot zoning, they must prove that the Town’s decision to rezone the Property was
arbitrary or unreasonable and that no reasonable minds could differ as to whether the
amended zoning ordinance has a substantial relationship to the public health, safety,
1
An analysis under the Texas Religious Freedom and Restoration Act mirrors the Federal standard,
using this four-part test: (1) whether the government's regulations burden the plaintiff's free
exercise of religion; (2) whether the burden is substantial; (3) whether the regulations further a
compelling governmental interest; and (4) whether the regulations are the least restrictive means
of furthering that interest. See Barr v. City of Sinton, 295 S.W.3d 287, 299 (Tex. 2009)
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morals or general welfare. Given Pastor Tackett’s testimony it is impossible for
Appellants to ever plead sufficient facts that demonstrate Ponder’s Town Council
acted arbitrarily when there is a federal mandate that requires the Town not to burden
the Church’s religious exercise. Consequently, Appellants have not pled a viable spot
zoning claim because they can never plea the factual applicability of a waiver of
Ponder’s immunity. For these reasons, Ponder’s immunity from suit is not waived.
B. Appellants bare allegations of an Open Meetings Act violation fails to
provide the factual applicability of a waiver of Ponder’s immunity
In their Motion, Appellants argue for the first time that Ponder’s “Town
Council deliberated in closed session without notice and decided by voting or polling
in closed session to approve the [zoning] request.” Regarding an alleged Open
Meetings violation, Appellants’ Fourth Amended Petition simply seeks a declaration
that the “Town of Ponder’s zoning change regarding the Property was procured in
whole or in part through violations of the Texas Open Meetings Act[.]” C.R. at 234.
Appellants pled no facts to support such a claim. C.R. at 222 – 393. Similarly, at the
evidentiary hearing on Ponder’s plea to the jurisdiction, Appellants failed to submit
any evidence that would support a claim under the Open Meetings Act.
Despite Appellants’ assertion to the contrary, sufficient notice of the executive
session was posted on the August 24, 2015, agenda. See 4 R.R. Exhibit 5 (“The City
Council reserves the right to adjourn into executive session at any time during the
course of this meeting to discuss any of the matters listed above, as authorized by
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Texas Government Code Section 551.071 (Consultation with Attorney)”). The Open
Meetings Act specifically permits the Ponder Town Council to convene in a closed-
door session for private consultation with its attorney “when the governmental body
seeks the advice of its attorney about…pending or contemplated litigation[.]” Tex.
Gov’t. Code § 552.071. A pleading that simply alleges Ponder’s Town Council
convened in executive session is not a valid waiver of Ponder’s immunity.
C. Appellants failed to allege a viable takings claim
Appellants allege that “Defendant Town of Ponder violated Plaintiffs’
Constitutional rights under Section 42 U.S.C. 1983.” C.R. at 240. Yet, Appellants
have only broadly alleged, without any supporting authority or facts, that the Town
violated their property rights and procedural and substantive due process rights. See
C.R. at 242-44. In reality, the only right that Appellants are truly asserting is that
they have the right to the continued non-use of the Church’s property and the
enforcement of the Town’s own ordinances. Appellants simply do not have an
entitlement in the zoning of their neighbor’s property and have no property interest
in the enforcement of the Town’s ordinances. See Summer v. Bd. of Adjustments of
the City of Spring Valley Village, No. 01-14-00888-CV, 2015 WL 6163066, at *10-
11 (Tex. App. – Houston [1st Dist] Oct. 20, 2015, no pet. history) ( “[t]here is simply
no protected property interest in having a zoning ordinance enforced against one's
neighbors.”).
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Furthermore, Appellants’ Section 1983 claim is not ripe because they have not
pursued all State law remedies. For a section 1983 takings claim to be ripe, the
property owner must first show that he has unsuccessfully sought compensation for
the taking under Article I, section 17 of the Texas Constitution. See Town of Flower
Mound v. Stafford Estates Ltd. P'ship, 71 S.W.3d 18, 48–49 (Tex. App.—Fort Worth
2002), aff'd, 135 S.W.3d 620 (Tex. 2004). While the two claims may be brought
simultaneously, Appellants have not pled a viable regulatory takings claim.
Plaintiff’s Fourth Amended Petition does not contain any factual allegations that
would support a takings claim. C.R. at 235-44.
A compensable regulatory taking may occur when a governmental agency
imposes restrictions that either (1) deny landowners of all economically viable use
of their property, or (2) unreasonably interfere with landowners' rights to use and
enjoy their property. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex.
1998). In determining whether the government has unreasonably interfered with an
owner’s right to use and enjoy property requires a consideration of two factors: the
economic impact of the regulation and the extent to which the regulation interferes
with distinct investment-backed expectations. Id.
Appellants’ pleadings do not allege that Ponder’s adoption of the zoning
ordinance denied them of all economically viable use of their property or
unreasonably interfered with their rights to use and enjoy their property. Appellants’
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bare allegations that they lost quiet use of their property or that their property values
diminished are insufficient regulatory takings allegations. Because Appellants failed
to plead a viable regulatory takings claim, the Trial Court did not err in granting
Ponder’s plea to the jurisdiction.
III. PRAYER
For each and all of the foregoing reasons, Ponder asks this Court to deny
Appellants’ Motion for Rehearing and retain its opinion affirming the Trial Court’s
order granting Ponder’s Plea to the Jurisdiction and dismissing all of Appellants’
claims with prejudice.
Respectfully submitted,
BOYLE & LOWRY, L.L.P.
/s/ Matthew L. Butler
Matthew C.G. Boyle
State Bar No. 24001776
mboyle@boyle-lowry.com
Matthew L. Butler
State Bar No. 24073984
mbutler@boyle-lowry.com
4201 Wingren, Suite 108
Irving, Texas 75062
(972)650-7100 Phone
(972)650-7105 Fax
ATTORNEYS FOR APPELLEE
TOWN OF PONDER
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CERTIFICATE OF SERVICE
This will certify that a true and correct copy of the foregoing Response Brief
has been sent to the following parties via electronic service on the 19th day of
December, 2017.
Robert E. Hager
rhager@njdhs.com
500 N. Akard
Suite #1800
Dallas, Texas 75201
Telephone: (214) 965-9900
Facsimile: (214) 965-0010
Gregory J. Sawko
gsawko@dentonlawyer.com
1172 Bent Oaks Drive
Denton, Texas 76210
Telephone: (940) 382-4357
Facsimile: (940) 591-0991
Lance Vanzant
Lvanzant@hbwvlaw.com
Dorwin L. Sargent, III
dsargent@hbwvlaw.com
512 W. Hickory, Suite 100
P.O. Box 50149
Denton, Texas 7620l
940-387-3518 - Tel.
866-546-9247 – Fax
/s/ Matthew L. Butler
Matthew L. Butler
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