City of Nassau Bay, Texas v. H. Ray Barrett, and 1438 Kingstree Lane, in Rem
01-15-00148-CV
| Tex. App. | Jun 26, 2015Background
- Barrett bought and lived at 1438 Kingstree Lane since 1974; he built/altered a patio/hot tub area in 1983 and enclosed it further in 1992 after receiving verbal approval from then-city building official Andy Straub.
- The enclosed deck/patio existed for >20 years; in ~2010 Barrett removed a dead holly tree and replaced some decking and fence boards; building official Larry Boles inspected and issued a stop-work order.
- Boles based the stop-work order on an informal "over 50%" destruction determination (invoking a municipal 50% valuation rule), without measurements, valuation, or using the tax-assessor valuation procedure stated in the ordinance.
- Barrett requested a hearing to lift the stop-work order; Boles (without authority) reframed Barrett's request as an application for a variance before the Zoning Board; the Board denied relief and the stop-work order was not lifted.
- Barrett asserted a § 1983 procedural-due-process/inverse-condemnation counterclaim; the trial court denied the City's plea to the jurisdiction as to Barrett's federal claim, finding factual disputes. The City appealed interlocutorily.
Issues
| Issue | Plaintiff's Argument (Barrett) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Whether Barrett's federal due-process/taking claim is barred by failure to exhaust administrative remedies under Tex. Loc. Gov't Code § 211.011 | Claim is federal/constitutional under § 1983 so exhaustion is not required; he had longstanding permission and a protected property interest | Barrett should have appealed the Board decision under § 211.011 and cannot bypass administrative remedies | Trial court found jurisdictional fact issues; denial of plea to jurisdiction stands (factual dispute over constitutionality/permission) |
| Whether Boles's stop-work order was arbitrary and lacked procedural safeguards (the "50%" rule enforcement) | Boles used improper criteria, made a value-based 50% call without appraisal or tax-assessor valuation, took no measurements, and applied inconsistent classifications to the structure | City defends enforcement under municipal ordinance and Boles's enforcement discretion | Trial court found disputed facts about arbitrariness and procedure; issue inappropriate for dismissal at jurisdictional stage |
| Whether Barrett was deprived of due process because Boles unilaterally changed Barrett's requested relief to a variance | Barrett sought only lifting of the stop-order; Boles altered the request (without authority), changing procedural presumptions and denying the hearing Barrett sought | City says Barrett had hearings and opportunities to present evidence before the Board | Trial court recognized fact questions about whether Barrett received the process he requested; plea to jurisdiction denied |
| Whether the City's conduct is attributable municipal policy (municipal liability) because Boles was a final policymaker | Boles had final authority to issue stop-work orders and none could lift them; a single act by a final policymaker can be municipal policy under Monell/Pembaur | City contends policy decisions rest with City Council and not with individual inspectors | Trial court found factual disputes over policymaker status and causation such that dismissal was improper |
Key Cases Cited
- Zinermon v. Burch, 494 U.S. 113 (recognizing that deprivation without procedural due process gives rise to a § 1983 claim)
- Fuentes v. Shevin, 407 U.S. 67 (procedural due-process protections for deprivation of property)
- Monell v. Dept. of Social Services, 436 U.S. 658 (municipal liability under § 1983 for official policy or custom)
- Pembaur v. City of Cincinnati, 475 U.S. 469 (a single act by a final policymaker can constitute municipal policy)
- Texland Corp. v. City of Waco, 446 S.W.2d 1 (Tex.) (traditional use and diminution of property rights in takings context)
- Westgate, Ltd. v. State, 843 S.W.2d 448 (Tex.) (governmental restriction on present use can constitute a taking)
- Bowlby v. City of Aberdeen, 681 F.3d 215 (5th Cir.) (exhaustion of state remedies not required before bringing § 1983 due-process claim)
- Bennett v. Pippin, 74 F.3d 578 (5th Cir.) (analysis of when an official is a final policymaker)
- Zarnow v. City of Wichita Falls, 614 F.3d 161 (5th Cir.) (state law determines municipal final policymaker status)
- Grayned v. City of Rockford, 408 U.S. 104 (void-for-vagueness and arbitrary enforcement principles)