CITY OF SAN ANTONIO, Appellant v. GREATER SAN ANTONIO BUILDERS ASSOCIATION and Indian Springs Greater San Antonio Builders Association and Indian Springs Ltd., Appellees.
No. 04-13-00013-CV.
Court of Appeals of Texas, San Antonio.
Nov. 20, 2013.
417 S.W.3d 597
I believe that without Wilson‘s admissions, the inferences necessary to establish his guilt are not reasonable based on the lack of cumulative force of all the evidence considered in the light most favorable to the verdict. Accordingly, I respectfully decline to join the majority opinion, but I concur in the court‘s judgment.
Opinion by: KAREN ANGELINI, Justice.
The City of San Antonio appeals from a declaratory judgment invalidating its fair notice ordinance. We affirm.
BACKGROUND
Chapter 245 of the Texas Local Government Code
In Texas, title 7 of the local government code governs the regulation of land use, structures, businesses, and related activities. Chapter 245, which is contained in title 7 of the local government code, governs the issuance of local permits by a regulatory agency.
Norbert J. Hart, Michael D. Bernard, City Attorney‘s Office, R. Gaines Griffin, Law Offices of Davidson, Troilo, Ream & Garza, Dan Pozza, Law Offices of Dan Pozza, San Antonio, TX, for Appellant.
S. Mark Murray, Law Office of S. Mark Murray, San Antonio, TX, for Appellee.
Sitting: KAREN ANGELINI, MARIALYN BARNARD, and REBECA C. MARTINEZ, Justices.
Fair Notice Ordinance
In February 2006, the City of San Antonio passed the fair notice ordinance. Section 35-410 of the ordinance requires permit applicants to complete a form, the fair notice form, with all permit applications. San Antonio, Tex., Unified Development Code, § 35-410 (2006). The express рurpose of section 35-410 is “to provide standard procedures for an applicant to accrue rights under Chapter 245 of the Texas
Declaratory Judgment Action
In July 2006, the Greater San Antonio Builders Association (GSABA) and Indian Springs, Ltd., filed the underlying declaratory judgment action, alleging the fair notice ordinance conflicted with chapter 245. GSABA is a non-profit organization whose members include individuals and entities who are concerned with issuеs affecting the real estate industry in the greater San Antonio area. Many members also own real property in the City. Indian Springs is a Texas limited partnership that owns real property in the City. The City is a regulatory agency as that term is defined in chapter 245. See
The City filed a plea to the jurisdiction challenging the standing of GSABA and Indian Springs. The trial court denied the City‘s plea to the jurisdiction, and the City appealed this interlocutory order. We affirmed the order denying the plea to the jurisdiction. City of San Antonio v. Greater San Antonio Builders Ass‘n, No. 04-12-00745-CV, 2013 WL 2247468, at *4 (Tex.App.-San Antonio 2013, no pet.).
Summary Judgment Motions
GSABA and Indian Springs presented the merits of their declaratory judgment action in two traditional summary judgment motions. The first summary judgment motion addressed the ordinance as it affected two categories of plaintiffs: (1) those who had vested rights in their property and had such rights before the enactment of the ordinance and whose rights had been previously acknowledged by the City by way of a vested rights permit or similar document, and (2) those who had vested rights in their property before the еnactment of the ordinance but whose vested rights had not been previously acknowledged by the City. The second summary judgment motion addressed the ordinance as it affected a third category of plaintiffs: those who owned a project, but had not yet obtained vested rights at the time the fair notice ordinance was enacted. Cumulatively, the summary judgment motions asserted that, in passing the fair notice ordinanсe, the City substantively impaired or encumbered vested rights that had already accrued under chapter 245, and substantively impaired or encumbered vested rights that would accrue under chapter 245 in the future. The trial court granted both summary judgment motions, and rendered a final judgment in favor of GSABA and Indian Springs. The City appealed.
STANDARD OF REVIEW
We review a trial court‘s summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex.2004); City of San Antonio v. En Seguido, Ltd., 227 S.W.3d 237, 240 (Tex.App.-San Antonio 2007, no pet.). When reviewing a summary judgment we take as true all evidence favorable to the nonmovant, аnd we indulge every reasonable inference and resolve any doubts in the nonmovant‘s favor. Joe, 145 S.W.3d at 156-57; En Seguido, 227 S.W.3d at 240. The party moving for a “traditional” summary
DECLARATORY JUDGMENT
On appeal, the City argues the fair notice ordinance, like all ordinances, was entitled to a presumption of validity, and GSABA and Indian Springs failed to satisfy their burden to overcome this presumption in the summary judgment proceedings below. The City further argues there is no conflict between chapter 245 and the fair notice ordinance; to the contrary, the fair notice ordinance is consistent and in harmony with chapter 245. In response to these arguments, GSABA and Indian Springs argue they met their summary judgment burden by conclusively establishing that the fair notice ordinance conflicts with chapter 245.1
When reviewing the validity of a сity ordinance, we begin with the presumption that the ordinance is valid. City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex.1982); RCI Entm‘t, Inc. v. City of San Antonio, 373 S.W.3d 589, 595 (Tex.App.-San Antonio 2012, no pet.). The party challenging the ordinance bears the burden to establish its invalidity. RCI Entm‘t, 373 S.W.3d at 595. An ordinance that attempts to regulate a subject matter preempted by a state statute is unenforceable to the extent it conflicts with a state statute. Dallas Merchant‘s & Concessionaire‘s Ass‘n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex.1993); RCI Entm‘t, 373 S.W.3d at 595. We will not hold an ordinance and a state statute repugnant to each other if we can reach a reasonable construction leaving both in effect. In re Sanchez, 81 S.W.3d 794, 796 (Tex.2002); RCI Entm‘t, 373 S.W.3d at 595-96. However, if it is not possible to reconcile the ordinance and the state statute, the state statute trumps the ordinance. See Dallas Merchant‘s, 852 S.W.2d at 490-92.
Historically, the right to develop property in Texas was subject to regulatory changes brought by the local regulatory agency. Harper Park Two, LP v. City of Austin, 359 S.W.3d 247, 249 (Tex.App.-Austin 2011, pet. denied). However, the Texas legislature modified this rule by enacting chapter 245. See id.;
In enacting chapter 245, the legislature found the statute‘s requirements were necessary to prevent “administrative and legislative practices that often resulted in unnecessary governmental regulatory uncertainty that inhibited the economic development of the state[,] increased the costs of housing and other forms of land development[,] and often resulted in the repeal of previously approved permits causing decreased property and related values, bankruptcies, and failed projects.” See Act of May 11, 1999, 76th Leg., R.S., ch. 73, § 1(b), 1999 Tex. Gen. Laws 432; see also Harper Park Two, 359 S.W.3d at 250.
In the case before us, the City asserts the fair notice ordinance is necessary for it to carry out its responsibilities under chapter 245. According to the City, the fair notice ordinance ensures it will have enough information about a project to determine whether the project has changed and, therefore, is subject to current development regulations. GSABA and Indian Springs counter that the fair notice ordinance impairs and encumbers important substantive rights. They take the position that the fair notice ordinance allows the City to prevent owners from obtaining or utilizing vested rights that have already been authorized by the legislature.
The summary judgment evidence submitted by GSABA and Indian Springs included the deposition testimony of Roderick J. Sanchez, the City‘s Director of Development Services. Sanchez testified that his department interprets and enforces the fair notice ordinance. Sanchez acknowledged that what constituted vested rights was defined by state statute, and the definition of vested rights did not vary based on the location of the project. Nevertheless, Sanchez stated there were no circumstances under which the City would recognize vested rights in the absence of a completed fair notice form. If an owner seeking recognition of vested rights did not submit the fair notice form, his application would be deemed incomplete and the City would not begin its review to determine whether or not the owner had vested rights. Sanchez noted that the information an owner was required to provide under the fair notice ordinance was much more detailed than the information that was required before the passage of the fair notice ordinance. Before the passage of the fair notice ordinance, an owner could identify an endeavor without having all the information required on the City‘s fair notice form, and the City would issue vested rights permits without all of this information. Sanchez also acknowledged that before the passage of the fair notice ordinance, but after chapter 245 was enacted, the City required only “evidence of a project” to recognize vested rights, and this evidence could have been as simple as a master development plan.
The summary judgment evidence submitted by GSABA and Indian Springs also included the fair notice ordinance and the fair notice form mandated by the ordinance. The fair notice ordinance provides that the City will not recognize vested rights unless and until the owner completes and submits the fair notice form.
Under chapter 245, the filing of the first permit, or plan for development, or plat application, in a development project determines the regulations that will be used to govern the remainder of the project. Specifically, section 245.002(a-1) provides: “Rights to which a permit applicant is entitled under this chapter accrue on the filing of an original aрplication or plan for development or plat application that gives the regulatory agency fair notice of the project and the nature of the permit sought.”
Nevertheless, as shown above, the fair notice ordinance creates an additional procedure for obtaining recognition of vested rights under chapter 245. This additional procedure may wholly preclude the recognition of vested rights accruing under chapter 245. In other words, the fair notice ordinance effectively redefines the manner in which vested rights аccrue under chapter 245. Under the fair notice ordinance, the City can deny the exercise of vested rights based upon the owner‘s failure to provide information beyond that which was required to vest rights in the first place. Thus, the fair notice ordinance directly conflicts with chapter 245.
For these reasons, we hold that GSABA and Indian Springs overcame the presumption of validity and conclusively established thаt the fair notice ordinance conflicts with chapter 245.
In arguing that the summary judgments were improperly granted, the City criticizes the trial court for not trying to har-
The City also faults the trial court for not severing the objectionable provisions from the fair notice ordinance. The City, however, did not present the severance clause argument in its response to the first summary judgment motion. “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal аs grounds for reversal.”
The City did present the severance clause argument in its response to the second summary judgment motion. There, the City argued that “[i]f the court believes that some of the requirements of the [f]air [n]otice [o]rdinance are so burdensome that vested rights might be prevented from recognition, the [c]ourt should use the severability clause contained in Section 6 of [the] [o]rdinance [ ] to strike out only the invalid parts and leave the remainder of the [o]rdinance in effect.” The severance clause provides:
Should any Article, Section, Part, Paragraph, Sentence, Phrase, Clause or Word of this ordinance, for any reason be held illegal, inoperative, or invalid, or if any exception to or limitation upon any general provision herein contained be held to be unconstitutional or invalid or ineffective, the remainder shall, nevertheless, stand effective and valid as if it had been enacted and ordained without the portion held to be unconstitutional or invalid or ineffective.
San Antonio, Tex., Ordinance 2006-02-16-0241 (February 16, 2006).
Here, GSABA and Indian Springs chаllenged the validity of the entire ordinance; they did not challenge the validity of a particular article, section, part, paragraph, sentence, phrase, clause, or word of the ordinance. Additionally, the trial court concluded the entire ordinance was invalid, not merely part of it. Under these circumstances, we conclude the trial court did not err in failing to apply the severance clause to salvage parts of the ordinance.
Finally, the City claims that section 245.002(f) expressly authorizes its fair notice ordinance.4 We disagree. Section 245.002(f) does not go so far as to authorize a regulatory agency to wholly redefine the manner in which vested rights accrue under chapter 245. It merely provides that a regulatory agency is not prohibited from requiring compliance with technical application requirements. See
We hold the trial court did not err in granting summary judgment in favor of GSABA and Indian Springs.
ATTORNEY‘S FEES
Next, the City challenges the trial court‘s attorney‘s fees award. The trial court awarded GSABA and Indian Springs $115,000.00 in attorney‘s fees incurred at the trial level, and additional amounts in
We review the award of attorney‘s fees for an abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998); Peacock v. Schroeder, 846 S.W.2d 905, 912 (Tex.App.-San Antonio 1993, no writ). Attorney‘s fees awarded under the Declаratory Judgment Act must be “equitable and just.”
CONCLUSION
The trial court‘s judgment is affirmed.