Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/23/2015 3:09:14 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00148-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 7/23/2015 3:09:14 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00148-CV ______________________________________ IN THE COURT OF APPEALS FIRST JUDICIAL DISTRICT HOUSTON, TEXAS
______________________________________ CITY OF NASSAU BAY, TEXAS, Appellant ,
v . H. RAY BARRETT and 1438 KINGSTREE LANE Appellees .
______________________________________ On Appeal from the 152nd Judicial District Court of Harris County, Texas
Trial Court No. 2013-10661 ______________________________________ APPELLANT CITY OF NASSAU BAY TEXAS’ REPLY BRIEF ______________________________________ C HAMBERLAIN , H RDLICKA , W HITE , W ILLIAMS & A UGHTRY William S. Helfand State Bar No. 09388250 Attorney-in-Charge Charles T. Jeremiah State Bar No. 00784338 1200 Smith Street, Suite 1400 Houston, Texas 77002 Telephone: (713) 654-9630 Telecopier: (713) 658-2553 A TTORNEYS F OR A PPELLANT C ITY OF N ASSAU B AY , T EXAS *2 TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES .................................................................................... ii
I. Overview of Appellees’ Reply ........................................................................ 1
II. Dispositive Material Facts Are Undisputed .................................................... 2
III. Appellees’ Due Process Allegation is Specious .............................................. 3
IV. Straub Statement is not Competent Evidence ................................................. 6
V. Building Inspector Not Final Policy Maker .................................................... 8
VI. Conclusion .....................................................................................................11
CERTIFICATE OF SERVICE .................................................................................. v
i *3 TABLE OF AUTHORITIES Page(s) Cases
Bass v. Parkwood Hosp.,
180 F.3d 234 (5th Cir. 1999) ................................................................ 8 Bennett v. City of Slidell ,
728 F.2d 762 (5th Cir. 1984) ................................................................ 9 Campbell v. City of San Antonio ,
43 F.3d 973 (5th Cir. 1995) ................................................................ 10 City of Houston v. Aspenwood Apartment Corp. ,
1999 WL 681939 (Tex.App. – Houston [1st Dist.] 1999, pet. den.) .............................................................................................. 10 City of Houston v. Leach ,
819 S.W.2d 185 (Tex.App. – Houston [14th Dist.] 1991 no pet.) ..................................................................................................... 10 City of Lubbock v. Corbin ,
942 S.W.2d 14 (Tex.App. – Amarillo 1996, pet. den.) ........................ 9 City of Paris v. Abbott ,
360 S.W.3d 567 (Tex.App. – Texarkana 2011, pet. denied) ................ 5 Cox v. City of Dallas ,
2004 WL 2108253 (N.D. Tex. 2004) (unpublished) .......................... 10 Democracy Coalition v. City of Austin ,
141 S.W.3d 282 (Tex.App. – Austin 2004, no pet.) ............................. 8 DePree v. Sanders ,
588 F.3d 282 (5th Cir. 2009) ................................................................ 4 ii
Dodge v. Durdin ,
187 S.W.3d 523 (Tex.App. – Houston [1st Dist.] 2005, no pet.) ....................................................................................................... 7 K.D. Pool and Ven-Ken, Inc. v. Johnson County, Texas ,
2002 WL 245973 (N.D Tex. 2002) (unpublished) ............................... 9 Lee v. Whispering Oaks Home Owners’ Ass’n ,
797 F.Supp.2d 740 (W.D. Tex. 2011) .................................................. 6 Merritt v. Harris County ,
775 S.W.2d 17 (Tex.App. – Houston [14th Dist.] 1989, pet. den.) ................................................................................................ 8 Statutes
City Ordinance ........................................................................................... 1
City’s Zoning Ordinance ................................................................. 4, 8, 10
Policymakers act ........................................................................................ 9
Texas Local Government Code § 211 ....................................................... 6
Zoning Ordinance ...................................................................................... 3
iii *5
Appellant, City of Nassau Bay, Texas (“the City”) replies to Appellees’ Response Brief.
I. Overview of Appellees’ Reply
In their Response, Appellees urge a myopic and piecemeal analysis which distorts both the factual background and the applicable law in this case. As set
forth in the City’s opening brief, when Appellee refused to remove his
unquestionably noncompliant structure, the City filed this action. Appellee filed a
counterclaim against the City alleging, solely, a deprivation of his right to due
process. In the Record Review, however, Appellee received far more process than
the Constitution requires.
Appellees could have, but decided not to, appeal the decision of the Zoning Board of Adjustment, that uphold the Building Official’s determination and denied
Appellee a variance. Nevertheless, Appellees continue to claim through this
impermissible collateral attack that the building official simply “got it wrong” in
finding that Appellees’ structure was not permitted by City Ordinance, originally
or reconstructed. Appellees’ allegations, even if true, do not present a
constitutional claim and, as discussed in the City’s opening brief, because
Appellees did not file the statutorily required appeal, the trial court simply had no
jurisdiction to review the decision, even if it was illegal.
Instead of analyzing whether the building official and/or Zoning Board of Adjustment made the correct decision, the only issues properly before the Trial
Court are whether (1) Appellee was deprived of his right to due process; and (2)
whether an unconstitutional City policy was the moving force behind such a
deprivation.
In their response brief, Appellees urge this Court to, in effect, mandate that the City of Nassau Bay allow what is now, and always has been, an unquestionably
illegal nonconforming condition that violates, in addition to Appellant’s code,
health and safety provisions of virtually every residential building code in this
state. In other words, Appellees ask the Court to force the City to accept
Appellees’ admitted violation of the Code and except him from an otherwise
appropriate and fully constitutional restriction.
II. Dispositive Material Facts Are Undisputed
It is undisputed that, long prior to Appellee Barrett’s construction of his bath house, the City enacted a zoning ordinance which contained a minimum seven foot
side setback [C.R. 353]. For accessory structures, the setback is three feet. [C.R.
339]. It is undisputed Appellee Barrett’s structure has zero setback. [1] These setback
requirements were in effect before Appellees’ structure was built and have been
ever since. In 1992 Appellee Barrett fixed his structure to the fence running along
*7 the property line, bringing his residential structure in hazardous proximity to his
neighbor’s and in undisputed violation of both setback requirements. [2] To be sure,
Appellees next door neighbor has firmly objected to the attachment of the structure
to his fence. [C.R. 98-99].
Appellee Barrett’s structure was not merely a nonconforming structure, it was an illegal nonconforming structure, and illegal at the time it was constructed;
i t wasn’t “grandfathered” in. Without a variance, which Appellee Barrett concedes
he never obtained, Barrett has no right to maintain a structure which violates the
City’s building Code, even if it was one hundred percent intact. The Building
Inspector had no power to grant variances from the Zoning Ordinance, by the
terms of the Ordinance or otherwise. Notably, Barrett does not claim the setback
requirement which his structure undisputedly violates is unconstitutional, only that
the City should not be permitted to enforce it against him .
III. Appellees’ Due Process Allegation is Specious
In their attempt to persuade the Court, Appellees mislead the Court on a simple issue of law. A constitutional claim cannot rest on a Building Official’s
ability to articulate the nuances of his job, or even his understanding. To support
their position, Appellees attack Mr. Boles or attempt to make him look
*8 incompetent because he didn’t answer hypothetical questions about the building
code to their satisfaction or take his comments out of context. But undoubtedly,
these questions are simply not material. The City’s Zoning Ordinance is in the
record. [C.R. 149-425]. Mr. Boles’ articulation of its requirements or procedures
does not supersede the black letter of the document and nothing changes
Appellees’ inarguable noncompliance.
As discussed in the City’s opening brief, Appellee Barrett had no property right or interest in a nonconforming structure; no one does. Appellee fails to
demonstrate any such interest as would be critical to the assertion of a due process
claim. See , DePree v. Sanders , 588 F.3d 282, 290 (5 th Cir. 2009). Accordingly,
Appellees’ due process claim fails at the outset.
Nor does the contention that Boles changed Appellees request for an appeal to the Zoning Board of Adjustment. Soon after Larry Boles and Mary Chambers
examined the structure, and before Appellee Barrett had even returned from his
lake house, Boles and Chambers discovered Appellee had never obtained a
variance from the City and Appellee admittedly could not produce one. When
Chambers and Boles realized Appellee was required to have a variance for his
clearly illegal nonconforming structure, Boles assisted Appellee by broadening the
scope of Barrett’s request for review. Importantly, this change to the form in no
way limited Appellees’ ability to present his position to the Zoning Board of
Adjustment. But, even if, arguendo, it did those were issues Barrett was required
to raise to the Board and, if not resolved to his satisfaction, on approval in
accordance with the statute.
Moreover, it remains undisputed that Appellee Barrett had notice of the hearing, was heard twice, offered all the documents, testimony and argument he
wished and was fully heard. Appellee Barrett admitted unequivocally that,
irrespective of what Boles wrote on the form, in the first hearing Barrett challenged
both the Building Official’s determination (the stop work order), and he sought a
variance and that the Zoning Board considered and denied both requests. [C.R.
426-27; see also , C.R. 91-93, 113-114]. Damning to his argument are both the law
and Barrett’s knowledge that his only remedy to challenge the Board’s decision
was to timely file suit, which he admittedly failed to do. [C.R. 426-27].
Appellee Barrett was given two hearings and he was permitted to argue the stop work order was invalid, that he didn’t need a variance, and that he should be
granted a variance. Having been permitted the opportunity to make, and have
actually made such points and has them heard and considered, any due process
requirement was clearly satisfied. City of Paris v. Abbott , 360 S.W.3d 567, 582
(Tex.App. – Texarkana 2011, pet. denied). After this, thorough hearing, Appellee
Barrett could have, but chose not to, appeal the City’s discussion to uphold the stop
work order to a District Court within ten days under the mandatory statutory
mechanism for resolving his dispute. Appellee Barrett could have argued the stop
work order was invalid and that a variance should have been granted. He
admittedly chose not to address any of these issues further, Barrett accepted the
decision, until the City chose to enforce it. [C.R. 137, 426-27].
Equally, there is no deprivation of substantive due process. Such claims are reviewed under a rational basis analysis. Under such an analysis “[t]he Court may
ask whether there was a conceivable factual basis for the specific decision made
and nothing more.” Lee v. Whispering Oaks Home Owners’ Ass’n , 797 F.Supp.2d
740, 750 (W.D. Tex. 2011). Undisputedly, the evidence is this case demonstrates a
building official received a complaint, found no permit for the job, and issued a
stop work order because no variance had ever been issued for a structure in clear
violation of City Code. These circumstances inescapably demonstrate a rational
basis for City’s enforcement of its unquestionably constitutional zoning
requirements. Importantly, however, if Appellees disagree with the City, they
were statutorily required to address that under the mechanism provided under
Texas Local Government Code § 211.
IV. Straub Statement is not Competent Evidence
In light, particularly, damning controlling statutes and jurisprudence Appellees’ reliance on the purported statement of Andy Staub is both irrelevant
and unavailing. First and foremost, Andy Straub’s statement doesn’t bear on any
material issue before the Court: whether Appellee was deprived of due process or
whether such a deprivation is attributable to the City. However, Straub’s statement
is plainly and undisputedly incompetent information. Remarkably, while
conceding the Straub statement is neither sworn nor testimony, Appellees
nonetheless rely heavily, though misguided, on this incompetent statement in their
Response. Indeed, in light of Appellees’ acknowledgement Straub’s statement is
not admissible, Appellees’ reliance would surprising except when the Court
observes that Appellees have absolutely no competent evidence to support their
claims. The City timely and firmly objected to Straub’s statement being offered as
summary judgment evidence. [C.R. 619, 624]. Regardless, objections to the
substance of this document are not waived on appeal. See, Dodge v. Durdin , 187
S.W.3d 523, 532 (Tex.App. – Houston [1 st Dist.] 2005, no pet.).
Because Appellees now attempt to exploit the absence of a written ruling on the City’s admittedly proper objection, the City moves this Court separately and
contemporaneously, in the interest of justice, to permit leave supplement the record
with the transcript of the hearing on the plea to the jurisdiction where the Judge
Schaffer’s implicit, if not express ruling – finding that the Straub statement is not
competent admissible evidence, is clear.
Indeed, the statement itself contains no assertion that it is sworn, contains hearsay and conclusory assertions such as the obviously false assertion that
Appellee’s structure “complied with all codes and ordinances at the time” which is
indeed, an objectionable conclusion of law.
V. Building Inspector Not Final Policy Maker
Appellees also bore the burden of demonstrating a City policy was the moving force behind the deprivation, here their contention that the building
inspector was the final policymaking authority. See, e.g., Bass v. Parkwood Hosp .,
180 F.3d 234, 244 (5 th Cir. 1999). [3] “The identification of policymaking officials is
a question of state law which may include valid local ordinances and regulations.
It is not a question of federal law and it is not a question of fact.” Merritt v. Harris
County , 775 S.W.2d 17, 24 (Tex.App. – Houston [14 th Dist.] 1989, pet. den.)
(citations omitted). The citizens of Nassau Bay have not empowered their
Building Inspector to formulate policy on behalf of the City. In fact, he is not even
the final decision maker. The City’s Zoning Ordinance embodies the City’s
policies on zoning, the building official’s duties, and permitting. “The authority to
make municipal policy is the authority to make final policy without any constraints
on the official’s discretionary decisions.” Id . Although the Building Inspector
makes decisions, they are not final, nor do they amount to policymaking.
*13 For attribution, “[l]iability must rest on official policy, meaning the city government’s policy and not the policy of an individual official.” Bennett v. City
of Slidell , 728 F.2d 762, 769 (5 th Cir. 1984). Of course, policymaking authority “is
more than discretion and it is far more than the final say so…” Id . “City
policymakers not only govern conduct; they decide the goals for a particular city
function and devise the means of achieving those goals. Policymakers act in place
of the governing body in the areas of their responsibility.” Id .
In Bennett , as in this case, the building inspector’s job was to execute or administer the city policy, established by the city council in its building code. Id ,
at 769-770. His decisions were appealable to the board of zoning adjustments.
Although his decisions were discretionary and ministerial, this didn’t amount to
policymaking authority within the meaning of the law. Accordingly, the Fifth
Circuit Court of Appeals unequivocally held that the building inspector was not a
policymaker whose acts could subject the City to liability. Indeed, there appears to
be no reported case where the either the Fifth Circuit Court of Appeals or any
Texas Court has ever held that a building inspector was a final policymaker for
purposes of attribution under the Monell analysis. See also, City of Lubbock v.
Corbin , 942 S.W.2d 14, 20 (Tex.App. – Amarillo 1996, pet. den.) (Building Code
Inspector, whose decisions were appealable to the Building Board of Appeals, was
not final policymaker); K.D. Pool and Ven-Ken, Inc. v. Johnson County, Texas ,
2002 WL 245973 at *5 (N.D Tex. 2002) (unpublished) (Director of County Public
Works Department as a matter of law was not a final policymaker for the county);
City of Houston v. Aspenwood Apartment Corp ., 1999 WL 681939 at *9 (Tex.App.
– Houston [1 st Dist.] 1999, pet. den.) (building official not final policymaker).
Indeed, “[t]o infer the existence of a city policy from the isolated misconduct of a single, low level officer and then to hold the city liable on the basis of that
policy would amount to permitting precisely the theory of strict respondeat
superior liability rejected in Monell .” City of Houston v. Leach , 819 S.W.2d 185,
200 (Tex.App. – Houston [14 th Dist.] 1991 no pet.), citing, City of Oklahoma City
v. Tuttle , 471 U.S. 808, 831, 105 S.Ct. 2427, 2440 (1985). “[L]iability does not
attach merely because a city employed a tortfeasor.” Cox v. City of Dallas , 2004
WL 2108253 (N.D. Tex. 2004) (unpublished), citing, Monell at 694, and Campbell
v. City of San Antonio , 43 F.3d 973, 977 (5 th Cir. 1995).
Nowhere did the City vest the building official with the power to formulate City policy. The City has enacted its zoning and permitting policies through an
Ordinance passed by the City Council. [4] Further, as authorized by the State of
Texas, the City of Nassau Bay has elected to form a Zoning Board of Adjustment
which can review and reverse the Building Official’s decisions. The City’s Zoning
Ordinance makes clear, the “Building official” is “charged with the administration
*15 and the enforcement of the zoning ordinances and building code of the City of
Nassau Bay, Texas.” [C.R. 398].
Indeed, Appellees own argument undermines his contention. Appellees throughout their brief claim that “Boles exceeded his authority,” and acted
“arbitrarily,” and was not “empowered to evaluate what constituted 50 percent of
the value.” [Response, p. 33]. He did not establish City policy, and according to
Plaintiff he did not even carry out City policy as set forth in the Ordinance. A
finding that the building inspector was a final policymaking authority of the City
would be contrary to the record and would flout the letter and spirit of Monell .
VI. Conclusion
Clearly, Appellees failed to establish a deprivation of their right to due process. Even if they were deprived of due process, there is no basis for attribution
to the City of Nassau Bay, as there is no showing that City policy was the moving
force behind any such deprivation. Accordingly, City of Nassau Bay, Texas prays
that this Court reverse the trial court’s denial of its Plea to the Jurisdiction, and
render that the Appellee’s Counterclaim be dismissed for lack of subject matter
jurisdiction, and for general relief.
Respectfully submitted, /s/ William S. Helfand William S. Helfand Attorney-in-Charge SBOT No. 09388250 bill.helfand@chamberlainlaw.com Charles T. Jeremiah SBOT No. 00784338 Charles.jeremiah@chamberlainlaw.com ATTORNEYS FOR APPELLANT OF COUNSEL:
CHAMBERLAIN, HRDLICKA, WHITE,
WILLIAMS & AUGHTRY
1200 Smith Street, Suite 1400
Houston, Texas 77002-4401
(713) 654-9630
(713) 658-2553 (Fax)
iv *17 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Appellant’s Brief has been served via CM/ECF System and/or by CD and certified mail, return receipt
requested, on this 23 rd day of July 2015, to:
Iain Gordon Simpson
Simpson, P.C.
1333 Heights Blvd, Ste 102
Houston, Texas 77088
Email: iain@simpsonpc.com
Jeffrey N. Todd
The Law Firm of Alton C. Todd
312 S. Friendswood Drive
Friendswood, Texas 77546
Email: Jeff@actlaw.com
/s/ William S. Helfand 1949618.2 130083.000001
v
[1] Hence, it makes no difference whether the structure was an “accessory.” It undisputedly violated the City’s setback requirement either way.
[2] Notably, the enclosure occurred nearly ten years after Hurricane Alicia, demonstrating the misleading nature of Appellees’ argument that the Hurricane “affected the City’s permitting process.”
[3] “The ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Democracy Coalition v. City of Austin , 141 S.W.3d 282, 289 (Tex.App. – Austin 2004, no pet.) (emphasis in original) (citation omitted).
[4] Appellees did not complain of any action by the Nassau Bay City Council [C.R. 112].