CPM Trust, KLM Secure Trust and Ralph (Deceased) and Muriel Pinkus, LLC v. City of Plano, Texas and the Board of Adjustment of the City of Plano, Texas
461 S.W.3d 661
| Tex. App. | 2015Background
- A billboard erected c.1961 on property annexed by Plano in 1984 was damaged by a storm in April 2011; photographs show one support pole still standing and other parts on the ground.
- Plano’s 2006 Sign Regulations include: (1) §3.1604(6) prohibiting moving/altering/replacing a legal nonconforming sign unless brought into compliance, and (2) §3.1604(7) permitting maintenance/repair of dilapidated or deteriorated signs as defined in §3.1602.
- The City’s building official ordered removal of the damaged nonconforming billboard; the property owners appealed to the Board of Adjustment, which upheld the removal order.
- Owners sued seeking (a) judicial review/ reversal of the Board’s decision via certiorari, (b) declaratory relief under Texas Local Gov’t Code ch. 245 (vested property rights), and (c) inverse condemnation/regulatory-takings damages.
- The trial court affirmed the Board and granted the City summary judgment on the Chapter 245 / takings claims; owners appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether the billboard qualifies as “dilapidated or deteriorated” and therefore may be repaired under §3.1604(7) | The sign meets §3.1602’s definitions (bent/broken/twisted/support failure) and §3.1604(7) allows repair; Board’s reading renders (7) meaningless | The Board found the sign was "destroyed," not merely dilapidated, so §3.1604(6) applies and repair/rebuild is prohibited | Reversed Board and trial court; sign fits "dilapidated/deteriorated" definitions and owners may elect repair under §3.1604(7) |
| 2. Whether the trial court erred in denying plaintiffs’ summary judgment seeking reversal of the Board | Owners argued Board abused discretion by ignoring plain ordinance language and denying repair option | Board argued factual finding of destruction was reasonable and entitled to deference | Court held Board abused its discretion on this point and reversed the Board’s decision |
| 3. Applicability of Chapter 245 (vested rights) and whether summary judgment on that claim was erroneous | Owners argued 2006 ordinance unlawfully impaired an ongoing billboard project and vested rights exist under Ch. 245 | City argued Chapter 245 is inapplicable and moved for summary judgment/plea to jurisdiction | Court did not decide this issue (owners said it would be moot if repair allowed) |
| 4. Whether plaintiffs pleaded a compensable regulatory taking (temporary or permanent) | Owners sought temporary damages for period sign was unusable and alleged taking/deprivation of investment-backed expectations | City argued plaintiffs challenged only enforcement/misapplication of ordinance (not the ordinance itself) and thus failed to plead a taking; governmental immunity applies | Court held, following City of Houston v. Carlson, that plaintiffs did not allege a taking but rather a challenge to enforcement/misapplication; plea to jurisdiction properly granted |
Key Cases Cited
- Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) (standard for reviewing traditional summary judgment)
- Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546 (Tex. 1985) (summary judgment burden rules)
- Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184 (Tex. 2007) (review of cross-motions for summary judgment)
- City of Dallas v. Vanesko, 189 S.W.3d 769 (Tex. 2006) (standard for judicial review of board of adjustment decisions)
- City of Houston v. Carlson, 451 S.W.3d 828 (Tex. 2014) (enforcement- or process-based complaints do not, by themselves, state a regulatory-taking claim)