City of Nassau Bay, Texas v. H. Ray Barrett, and 1438 Kingstree Lane, in Rem
01-15-00148-CV
| Tex. App. | Jul 23, 2015Background
- City of Nassau Bay enforces a zoning ordinance requiring 7-foot side setbacks for residences and 3-foot setbacks for accessory structures; Barrett’s bathhouse has zero setback and was attached to the property-line fence.
- Barrett never obtained a variance; the building inspector issued a stop-work order and determined the structure violated the ordinance.
- Barrett requested a hearing before the Zoning Board of Adjustment, was heard twice, presented evidence, and the Board denied his requests (to overturn the stop-work order and to grant a variance).
- Barrett did not timely appeal the Board’s decision under the statutory scheme (Texas Local Government Code § 211); instead he brought a counterclaim alleging a due-process violation and sought to attribute liability to the City.
- The City moved to dismiss for lack of jurisdiction (plea to the jurisdiction), arguing: (1) Barrett had no property right in an illegal nonconforming structure so no due-process deprivation, and (2) any alleged deprivation was not caused by an official City policy because the building inspector is not a final policymaker.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barrett was deprived of procedural due process | Barrett claims the administrative process was defective (form changes, alleged mischaracterization) and thus deprived him of due process | City says Barrett received all process due: notice, two hearings, opportunity to present all evidence; any procedural complaints should have been raised to the Board and appealed timely | City: No procedural due-process deprivation — Barrett was heard and had statutory appeal remedy he did not pursue |
| Whether Barrett had a protected property interest in the structure | Barrett implies a vested right in the existing structure | City argues the structure was illegal at construction, not grandfathered, and without a variance Barrett had no property right in the nonconforming/illegal structure | City: No cognizable property interest in an illegal nonconforming structure; due-process claim fails |
| Whether the alleged misconduct is attributable to City policy (Monell liability) | Barrett contends the building inspector’s actions reflect City policy and caused the deprivation | City contends the building inspector enforces City-adopted ordinances; his decisions are reviewable by the Zoning Board and thus are not final policymaking acts that can bind the City | City: Building inspector is not a final policymaker; isolated actions of a subordinate cannot establish municipal policy |
| Admissibility and weight of Andy Straub’s unsworn statement | Barrett relies on Straub’s statement to show municipal practice or compliance history | City objects: statement is unsworn, hearsay, contains legal conclusions and is incompetent summary‑judgment evidence | City: Straub statement is inadmissible and irrelevant to the core due-process and attribution issues |
Key Cases Cited
- DePree v. Sanders, 588 F.3d 282 (5th Cir.) (no protected property interest in certain claimed entitlements for due-process purposes)
- Bass v. Parkwood Hosp., 180 F.3d 234 (5th Cir.) (municipal liability requires official policy attributable to the municipality)
- Bennett v. City of Slidell, 728 F.2d 762 (5th Cir.) (building inspector enforcing an adopted code is not necessarily a final policymaker)
- Campbell v. City of San Antonio, 43 F.3d 973 (5th Cir.) (Monell principles and limits on municipal liability for subordinate acts)
- Merritt v. Harris County, 775 S.W.2d 17 (Tex. App.) (identifying policymaking authority is governed by state law)
- City of Paris v. Abbott, 360 S.W.3d 567 (Tex. App.) (administrative hearing and statutory appeal satisfy due-process requirements)