Bauer v. City of Waco

• Decision Date: 09 December 2020
• Docket Number: No. 10-19-00020-CV,10-19-00020-CV
• Parties: DAVID A. BAUER, LARRY W. JACKSON, AND BAUER JACKSON, LTD, Appellants v. CITY OF WACO, Appellee
• Court: Texas Court of Appeals

DAVID A. BAUER, LARRY W. JACKSON,AND BAUER JACKSON, LTD, Appellants v. CITY OF WACO, Appellee

No. 10-19-00020-CV

STATE OF TEXAS IN THE TENTH COURT OF APPEALS

December 9, 2020

From the 74th District Court McLennan County, Texas

Trial Court No. 2011-4140-3

MEMORANDUM OPINION

David A. Bauer, Larry W. Jackson, and Bauer Jackson, Ltd., (the developers} sought to develop land (the property) in the City of Waco. After various applications for permits were filed, where some were granted and some withdrawn, and proposed plats were denied and then approved after City-recommended modifications were made, the developers sued the City for declarations pursuant to Texas Local Government Code Chapter 245, asserting they had "vested rights" to build a lake on the property under City ordinances in effect at the time the lake was first proposed, prior to the modifications of those ordinances. Following multiple amendments to their petition, the developers also raised dedicatory exaction and takings claims and a declaratory judgment claim regarding an 8-inch water line on the property and, after amending the petition for the seventh time, a declaratory judgment claim regarding a lift station. The City filed a motion for summary judgment, plus two supplemental motions, which the trial court granted as to the developers' entire case. Because the trial court did not err in granting summary judgment on each of the developers' claims, the trial court's judgment is affirmed.

SUMMARY JUDGMENT

In one issue, the developers contend the trial court erred in granting summary judgment regarding their entire case and assert they are entitled to attorney's fees. They complain as well about the City's argument in its first supplemental motion for summary judgment that Bauer and Jackson had no justiciable interest in part of the lawsuit.

Standard of Review

We review a trial court's summary judgment de novo. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015); Nichols v. McKinney, 553 S.W.3d 523, 527 (Tex. App.—Waco 2018, pet. denied). Our review is limited to consideration of the summary judgment evidence presented to the trial court. See TEX. R. CIV. P. 166a(c) (no oral testimony may be considered in support of a motion for summary judgment). We take as true allevidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A party moving for traditional summary judgment must state specific grounds, and a defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action or who conclusively establishes all the elements of an affirmative defense is entitled to summary judgment. KCM Fin. LLC, 457 S.W.3d at 79; Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

Summary judgments must stand on their own merits. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Accordingly, the non-movant has no burden to respond to or present evidence regarding the motion until the movant has carried its burden. See id.; Nichols, 553 S.W.3d at 527. And when the trial court's judgment does not specify which of several grounds proposed was dispositive, we affirm on any ground presented in the motion that has merit and was preserved for review. See Joe v. Two Thirty Nine J.V., 145 S.W.3d 150, 157 (Tex. 2004).

Chapter 245—Vested Rights

In their first cause of action, the developers sought declaratory relief regarding its "vested rights" under Chapter 245 of the Texas Local Government Code. See TEX. LOC. GOV'T CODE Ch. 245. The developers requested four declarations:

1. the December 7, 2010, and later amendments relative to the excavation of material, specifically sections 28.747(92) and 28.748(2) of the Waco City Ordinances, are inapplicable to the Property because the developers' rights under Chapter 245 to construct a lake, of the sizeshown in its 2009 and 2010 plans submitted to the City, were vested prior to the amendments;

2. their vested rights include the right to build lakes and water supply reservoirs under the M-2 zoning ordinances in effect at the date they presented plans for development to the City in 2009 and on September 8, 2010 or on October 8, 2010--the date the City issued the first permit under which the developers began construction of the lake;

3. the City cannot limit the size of the lakes or reservoirs or the time period in which they are to be completed; and

4. the City cannot prevent the developers from removing excavated material or dictate the hours the material can be removed.

Generally, Chapter 245 of the Local Government Code recognizes a developer's "vested rights" in a project and requires a regulatory agency to review a permit application based on the regulations in effect at the time the original application is filed. See TEX. LOC. GOV'T CODE § 245.002; Milestone Potranco Dev., Ltd., v. City of San Antonio, 298 S.W.3d 242, 248 (Tex. App.—San Antonio 2009, pet. denied). Chapter 245 may be enforced through mandamus or declaratory or injunctive relief, and a political subdivision's immunity from this type of suit is waived. Id. § 245.006(a), (b). Further, court costs and attorney's fees may be awarded to the prevailing party. Id. (c).

The City asserted several grounds on which the trial court should grant summary judgment. In one of those grounds, the City claimed that a declaration of the developer's vested rights would not resolve the dispute because the text of the pre-amendment ordinance does not support the developers' claim. In support of this ground, the City attached copies of the prior ordinance in question along with the ordinance as amendedand an added ordinance which affects the developers' plans.

On appeal, however, the developers do not address this ground. When a party moves for summary judgment on multiple grounds and the trial court does not specify the basis for its summary judgment, "the appealing party must show it is error to base it on any ground asserted in the motion." Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). If the appealing party fails to negate or challenge all possible grounds on which summary judgment could have been granted, we will uphold the judgment on those grounds. Lesher v. Coyel, 435 S.W.3d 423, 429 (Tex. App.—Dallas 2014, pet. denied); see Heister v. W. Shamrock, No. 10-01-00366-CV, 2003 Tex. App. LEXIS 5160, *2 (Tex. App. Waco June 18, 2003, no pet.) (mem. op.).

Accordingly, because the developers did not challenge the summary judgment of their Chapter 245-vested rights claim on all the grounds asserted by the City, the trial court did not err in granting summary judgment as to the developers' first cause of action.

Exaction Claim

The developers' second cause of action was a claim for a taking of the property resulting from a "dedicatory exaction." According to the developers' seventh amended petition, on January 4, 2013, they submitted plats to the City which complied with all of the requirements contained in previous requirement letters from the City regarding the developers' preliminary and final plats for a development on the property called the South Fork Addition. However, the City Council voted to deny the preliminary and finalplats. Later in January, the City sent the developers a letter which required the developers to dedicate a 20-foot wide, minimum, general utility easement for the watermain which was already installed on the property as a condition of receiving final approval of the development of the property. The developers submitted revised plans, under protest, which complied with this requirement.

The developers complained in their petition that the requirement to dedicate a 20-foot easement for the City's 8-inch watermain, or alternatively a 19-foot, 4-inch easement, was an exaction which resulted in a regulatory taking and inversely condemned and damaged the property without just compensation. They also sought money damages, costs, and reasonable attorney's fees.

The City moved for summary judgment on this cause of action for several different reasons. One of those reasons was that the developers' claim was not ripe because they did not request a variance after the plat was denied and the 20-foot easement requirement for the 8-inch watermain was imposed. For a regulatory taking claim to be ripe, there must be a final decision regarding the application of the regulations to the property at issue. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998). A "final decision" usually requires both a rejected development plan and the denial of a variance from the controlling regulation. Id. The City presented summary judgment evidence that the developers did not request a variance to the 20-foot easement requirement.

The developers do not argue on appeal that the trial court erred in basing itssummary judgment for this cause of action on the developers' failure to request a variance. Again, because the developers did not challenge the summary judgment of their exaction claim on a ground presented by the City, the trial court did not err in granting summary judgment as to the developers' second cause of action. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Lesher v. Coyel, 435 S.W.3d 423, 429 (Tex. App.—Dallas 2014, pet. denied); see Heister v. W. Shamrock, No. 10-01-00366-CV, 2003 Tex. App. LEXIS 5160, *2 (Tex. App. Waco June 18, 2003, no pet.) (mem. op.).

Watermain Taking Claims/Watermain Easement Size

In their third cause of action, the developers contend the City unlawfully installed the 8-inch watermain on property that remained outside the South Fork Addition and claim the unlawful installation resulted in a taking of the property, without just compensation, pursuant to Article I, Section 17 of the Texas Constitution. Alternatively, in their fourth cause of action, the developers contend that if installation of the watermain by the City was...