City of Nassau Bay, Texas v. H. Ray Barrett, and 1438 Kingstree Lane, in Rem
01-15-00148-CV
| Tex. App. | May 6, 2015Background
- Barrett built an enclosed "bath house"/hot tub structure abutting his neighbor’s fence that violated Nassau Bay’s minimum side-setback zoning requirement and was never permitted or varianced.
- The City’s building official determined more than 50% of the structure had been reconstructed without a permit, issued a stop-work order, and required compliance or a variance for rebuilding.
- Barrett appealed to the City Zoning Board of Adjustment (ZBA), received two hearings, and the ZBA denied his variance request and upheld the stop-work order; Barrett did not timely pursue a court appeal under the Local Government Code.
- The City sued to enforce the zoning ordinance; Barrett counterclaimed alleging violations of procedural and substantive due process and a § 1983 claim against the City.
- The City filed a plea to the jurisdiction and alternative summary-judgment motion arguing (1) Barrett’s counterclaim is an untimely collateral attack on final ZBA decisions, (2) Barrett failed to plead a viable due-process claim to waive governmental immunity, and (3) Barrett failed to identify any municipal policy as the moving force for § 1983 liability. The trial court denied the plea and motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Jurisdiction / exhaustion of administrative remedies | Barrett contends ZBA action violated his due-process rights and challenges building official/ZBA decisions in his counterclaim | City: Barrett failed to timely appeal the ZBA decision under Tex. Loc. Gov’t Code § 211.011(b); his suit is an impermissible collateral attack and deprives the court of jurisdiction | Trial court denied City’s plea; City argues denial was error because Barrett failed to exhaust administrative remedies |
| 2. Viability of due-process claims (procedural & substantive) | Barrett alleges procedural and substantive due-process violations arising from enforcement and ZBA denial | City: Barrett lacks a protected property interest in an illegal nonconforming structure; he received notice and two hearings (no procedural- due-process claim); zoning decisions satisfy rational-basis review (no substantive-due-process claim) | Trial court denied City’s plea; City argues dismissal required because Barrett failed to plead a viable due-process claim to waive immunity |
| 3. Municipal liability under § 1983 (policy/moving-force) | Barrett sues the City asserting constitutional violations by City actors | City: Monell bars respondeat-superior liability; Barrett did not identify any official City policy or policymaker responsible or show a policy was the moving force of any deprivation | Trial court denied City’s plea; City argues § 1983 claim is defective for failure to plead/prove a municipal policy or causation |
Key Cases Cited
- Monell v. Dept. of Social Servs., 436 U.S. 658 (1978) (municipalities not liable under § 1983 on respondeat superior; liability requires an official policy or custom)
- Piotrowski v. City of Houston, 237 F.3d 567 (5th Cir.) (2001) (elements and rigorous causation/culpability standards for municipal liability under § 1983)
- Board of County Comm’rs of Bryan County v. Brown, 520 U.S. 397 (1997) (municipal liability requires that a policy be the moving force behind constitutional injury)
- Lazarides v. Farris, 367 S.W.3d 788 (Tex. App. — Houston [14th Dist.] 2012) (administrative remedies under Tex. Loc. Gov’t Code § 211 generally must be exhausted before judicial review of a zoning-board determination)
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (governmental immunity principles and requirement that plaintiffs plead valid constitutional claims to overcome immunity)
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standard for plea to the jurisdiction and burden to plead jurisdictional facts)