DocketNumber: NO. 14-17-00063-CV
Citation Numbers: 557 S.W.3d 235
Judges: Brown, Jewell, Wise
Filed Date: 6/5/2018
Status: Precedential
Modified Date: 1/21/2022
This case involves an inverse-condemnation suit brought by appellants Joe Murphy, Yoram Ben-Amram, and Galtex Development, LLC (collectively, the Property Owners), against appellee the City of Galveston, Texas. By previous interlocutory appeal, this court considered the trial court's denial of the City's initial plea to the jurisdiction. We reversed in part the trial court's order and rendered judgment dismissing the Property Owners' takings claims with regard to the City's denial of a Specific Use Permit (SUP) for the property at issue. City of Galveston v. Murphy ,
On remand, the trial court considered the City's second plea to the jurisdiction, which asserted that the trial court lacked *238subject-matter jurisdiction because the Property Owners failed to exhaust their administrative remedies regarding the City's revocation of the property's non-conforming status. The trial court granted the City's second plea. The Property Owners do not dispute that they did not take an administrative appeal to challenge the City's revocation decision. Nevertheless, the Property Owners argue that they otherwise raised a fact issue to defeat the City's entitlement to dismissal. The Property Owners also contend that this court should revisit its decision to reverse in part and render judgment dismissing the Property Owners' takings claim for the City's denial of the SUP. We affirm.
I. BACKGROUND
Our January 2015 opinion from the prior appeal contains a detailed factual and procedural background of the case.
In June 2016, the City filed a second plea to the jurisdiction-arguing that although local zoning standard, section 29-212, gave the Property Owners the right to take an administrative appeal from the loss of the property's non-conforming status to the Zoning Board of Adjustment (ZBA), the Property Owners did not do so. Therefore, because the Property Owners failed to exhaust their administrative remedies, the trial court did not have subject-matter jurisdiction.
The trial court held an evidentiary hearing on September 27 and 28, 2016. Catherine Gorman, who was the City's Senior Planner and Assistant Historic Preservation Officer, testified for the City. Gorman testified that she was familiar with the City's zoning standards at the time. Gorman explained that although the property was located in the East End Historical District zoned for single-family dwellings, it had been subject to "non-conforming" or "grandfather" use as a multi-family dwelling because the apartment buildings existed prior to the creation of the district and the zoning standards. Gorman further explained that at the time, under section 29-111(a)(4) of the zoning standards, if a non-conforming multi-family dwelling went six months or longer without being actually occupied for multi-family use, then it would lose its "grandfather" status.
According to Gorman, any adverse zoning decision such as loss of "grandfather" status can be appealed to the ZBA under *239section 29-112(c).
Gorman testified that, after the property had been vacant for at least six months, Ben-Amram received an email from a City compliance officer regarding the loss of the property's non-conforming status under section 29-111(a)(4). According to Gorman, Ben-Amram (1) could have appealed the revocation decision to the ZBA, (2) could have submitted an application for a SUP on the property, or (3) both. Gorman stated that Ben-Amram only filed for a SUP and did not file an appeal with the ZBA with respect to the revocation of the property's "grandfather" status. Gorman stated that she did not know of any "appeal mechanism under the administrative procedure set up in the zoning standards for appealing directly from a denial of grandfather status to the District Courts."
During the hearing, the City also presented excerpts from the City's zoning standards; excerpts from title 7, subtitle A, chapter 211, subchapter A, entitled "General Zoning Regulations," of the Texas Local Government Code; and an email dated May 10, 2010, to Ben-Amram from City Code Enforcement Officer Kandelle Wells, notifying Ben-Amram that the property had lost its "legally non-conforming status" under section 29-111(a)(4).
The Property Owners presented testimony from Elizabeth Beeton, former City Councilmember, and from Douglas Godinich, former City Secretary. The Property Owners also presented excerpts from the deposition of Wendy O'Donohoe, who was Director of the City's Planning and Community Development Department.
The Property Owners requested that the trial court take judicial notice of the prior proceedings in the case-the transcript of the February 18, 2014 evidentiary hearing on the City's first plea to the jurisdiction, as well as exhibits admitted during the hearing, and excerpts from the February 10, 2011 City Council Regular Meeting. The trial court took judicial notice; these items also were admitted as exhibits.
On October 17, 2016, the trial court *240signed an order granting the City's plea.
II. ANALYSIS
A. Standard of review
We review de novo the trial court's ruling on a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda ,
"[T]his standard generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).... By requiring the [governmental entity] to meet the summary judgment standard of proof in cases like this one, we protect the plaintiffs from having to put on their case simply to establish jurisdiction."
Under this standard, we credit as true all evidence favoring the nonmovant and draw all reasonable inferences and resolve any doubts in the nonmovant's favor. Miranda ,
B. Administrative remedies
Section 211.008 of the Texas Local Government Code, "Board of Adjustment," authorizes the appointment of a board of adjustment by the government body of a municipality and provides requirements for membership, adoption of rules, and proceedings. See
Section 29-112 of the City's zoning standards, "Board of Adjustment," generally tracks the language of chapter 211 of the *241Local Government Code. See
C. Exhaustion
The exhaustion rule requires that plaintiffs "pursue all available remedies within the administrative process before seeking judicial relief." Lazarides v. Farris ,
Here, the City presented evidence that the Property Owners could have filed an administrative appeal to the ZBA pursuant to the zoning standards and chapter 211 within a reasonable time after the City informed Ben-Amram that the property was in violation of section 29-111(a)(4) and had lost its non-conforming status. The City presented evidence that the Property Owners failed to appeal this decision to the ZBA. Because the Property Owners did not appeal the loss of the property's "grandfather" status to the ZBA, they failed to exhaust their administrative remedies, and the trial court did not have subject-matter jurisdiction over their takings claims. See Lazarides ,
The Property Owners do not dispute that they failed to appeal the loss of the property's "grandfather" status to the ZBA. In their first issue, however, the Property Owners argue that the trial court erred in granting the City's plea to the jurisdiction based on exhaustion because they raised a fact issue that the doctrines of equitable estoppel and business compulsion apply to their claims. We disagree.
1. Not an exceptional case requiring estoppel
The Property Owners first contend that because the City did not inform them of the option to appeal the revocation decision to the ZBA and instead only informed them of the option to apply for a SUP on the property, the City should be estopped from insisting on exhaustion.
"Estoppel, an equitable defense, 'arises where by fault of one, another has been induced to change his position *242for the worse.' " Office of Atty. Gen. of Tex. v. Scholer ,
The general rule is that a city cannot be estopped from performing its governmental functions.
The Property Owners rely on Roberts v. Haltom City . In Roberts , the Texas Supreme Court held a city could be estopped from enforcing a portion of its charter that required a party bringing suit against the city to file a written notice of claim within thirty days of injury.
Unlike in Roberts , justice does not require estoppel here. This is not a case where City officials "affirmatively misled" the Property Owners. See Super Wash,
Ben Amram did not testify any City official told him that the City would not enforce the six-month actual-occupancy zoning standard against the property. Ben-Amram did not testify that any City official told him that he should not, or would not need to, appeal the loss of the property's non-conforming status to the ZBA or that the requirement to exhaust that decision through such an administrative appeal was waived. That no City official mentioned the exhaustion requirement to appeal the revocation decision to the ZBA does not amount to affirmatively misleading Ben-Amram that he would not be subject to such a requirement pursuant to the applicable zoning standards. See Super Wash,
Additionally, the evidence does not support that estoppel was the Property Owners' "only available remedy." See
Finally, the Property Owners do not point to any evidence that the City received any direct benefit in connection with its decision to revoke the property's non-conforming status. See
*244We conclude that the Property Owners have failed to present an exceptional case where justice requires estoppel. See id. at 776. We need not address the second element of the exception to the anti-estoppel rule, whether estoppel would not interfere with a governmental function. See Trudy's ,
2. Business compulsion not preserved
The Property Owners next argue that the City's actions in "concealing" their right to appeal the revocation decision to the ZBA while at the same time "coercing" Ben-Amram to make costly repairs amounted to business compulsion. The City argues that the Property Owners failed to preserve this argument. The Property Owners did not raise business compulsion and only raised estoppel in their response to the City's plea to the jurisdiction.
We therefore conclude that the trial court did not err in granting the City's second plea to the jurisdiction, and we overrule the Property Owners' first issue.
D. Reexamining our previous opinion not warranted
In their second issue, the Property Owners request that this court reconsider our prior holding "based upon errors in the prior opinion and subsequent events which confirm the futility of any further appeals or applications by" the Property Owners. In their brief, the Property Owners merely reprise their prior arguments and rely on their prior evidence and authorities. We conclude there is no reason for us to revisit our prior holding that the City was entitled to dismissal on the Property Owners' takings claims based on the City's denial of the SUP application. See Jacobs v. Jacobs ,
We overrule the Property Owners' second issue.
III. CONCLUSION
Having overruled both of the Property Owners' issues, we affirm the trial court's judgment.
To its plea, the City attached: sections 29-111 and 29-112 of the City of Galveston Zoning Standards; excerpts from Ben-Amram's deposition, with exhibits; excerpts from a February 10, 2011 City Council meeting; this court's opinion in City of Galveston v. Murphy filed January 13, 2015; and City of Galveston Ordinance 11-057.
Section 29-111(a)(4) of the zoning standards provides:
(a) A NON-CONFORMING STATUS SHALL EXIST UNDER THE FOLLOWING PROVISIONS OF THIS ORDINANCE:
...
(4) When a multi-family residential use in the Historic District was in existence at time of adoption of these Zoning Standards, or prior to adoption of any amendment thereto which makes any such structure non-conforming, provided, that there has not been a discontinuance of actual occupancy as a multiple-family use for any consecutive period of time of six (6) months or longer.
Section 29-112(c) provides:
Appeal Process: Appeals to the Board can be taken by any person aggrieved or by an officer, department or board of the municipality affected by any decision of the Building Official. Such appeal shall be taken within a reasonable time after the decision has been rendered by the administrative officer, by filing with the officer from whom the appeal is taken and with the Board, a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed was taken.
Section 29-112(o) provides:
Appeal from Decision of Board: Any person aggrieved by any decision of the Board, or any officer, department or other Board of the City, may appeal the decision or action of the Board by filing a petition for the same in a court of competent jurisdiction, setting forth that such decision is illegal in whole or in part, and specifying the grounds for the alleged illegality. Such petition shall be filed with the Court within ten (10) days from the day the Board renders its decision, and not thereafter. The time period set forth herein shall be deemed jurisdictional.
That same day, the trial court denied the Property Owners' motion to strike the City's plea. The Property Owners do not challenge this order on appeal.
In their brief, the Property Owners also rely on City of Fredericksburg v. Bopp ,
The Property Owners also rely on Houston Lighting & Power Co. v. City of Wharton ,
In their reply brief, the Property Owners rely on Trudy's . Trudy's , however, does not support their position. In Trudy's , there was no evidence that the city intended to affirmatively mislead the restaurant or that the city received any direct benefit with regard to its decision not to permit any off-site handicapped parking. Id. at 910. In addition, the restaurant's own conduct in constructing its deck without obtaining city approval did not favor finding estoppel. Id. at 911-12. Even considering "economic harm" to the restaurant in its pursuit of the off-site parking and the restaurant's reasonable reliance on the city's initial decision to permit such parking, the court concluded the restaurant had not raised a fact issue that this was an exceptional case where justice required estoppel. Id. at 912-13.
In any event, the Property Owners do not explain or present any specific evidence regarding this element of estoppel. See Super Wash ,
The Property Owners' written response to the City's plea in its entirety consisted of the following:
Without waiving or superseding any other pleading or response, but supplementing the same, Plaintiffs would show that Defendant the City of Galveston is estopped to assert or claim non-compliance with resort to the Zoning Board of Adjustments. See Roberts v. Haltom City ,543 S.W.2d 75 , 79-80 (Tex. 1976).
The Property Owners attached a copy of Roberts to the response.