Board of Adjustment of San Antonio v. Wende, No. 00-1015.

CourtSupreme Court of Texas
Writing for the CourtRodriguez
Citation92 S.W.3d 424
Docket NumberNo. 00-1015.
Decision Date23 May 2002
PartiesTHE BOARD OF ADJUSTMENT OF THE CITY OF SAN ANTONIO, Petitioner, v. Steve WENDE, Charles Brown, and The City of Shavano Park, Respondents.
92 S.W.3d 424
THE BOARD OF ADJUSTMENT OF THE CITY OF SAN ANTONIO, Petitioner,
v.
Steve WENDE, Charles Brown, and The City of Shavano Park, Respondents.
No. 00-1015.
Supreme Court of Texas.
Argued November 6, 2001.
Decided May 23, 2002.

Page 425

Steven W. Arronge, William W. Morris, Office of Atty., Bruce Robertson, Jr., San Antonio, for petitioner.

Frank B. Burney, Paul A. Fleck, Gerald T. Drought, Martin Drought & Torres, San Antonio, for respondent.

Justice RODRIGUEZ delivered the opinion of the Court.


The issue is whether San Antonio's Board of Adjustment ("the Board") erred in finding that land leased but not used for quarry purposes before being annexed and subsequently zoned for residential use has a "preexisting nonconforming use" as a quarry such that the residential zoning does not apply. The City of San Antonio's Director of the Department of Building Inspections approved the lessee's filing of a registration statement of nonconforming use based on the preexisting leases. The Board approved the director's determination, and, on writ of certiorari, the trial court affirmed the Board's decision. The

Page 426

court of appeals reversed, holding that the Board misconstrued the City's development ordinances in a manner that led to an absurd result and rendered a provision of the ordinances superfluous. 27 S.W.3d 162. Because we hold that the preexisting leases establish nonconforming use rights under the City's development ordinances, we reverse the court of appeals' judgment and render judgment in favor of petitioners.

I. Facts

Martin Marietta Materials Southwest, Inc., formerly known as Redland Stone Products Company, operates the Beckmann Quarry on property it owns. In April 1998, Martin Marietta leased for quarrying purposes the Schoenfeld and Rogers tracts, which are adjacent to the Beckmann tract. The Beckmann Quarry was annexed into the City of San Antonio in July 1998 and zoned as a quarry district. In November 1998, the City of San Antonio annexed the Schoenfeld and Rogers tracts and zoned them for residential use.

Martin Marietta filed a registration statement of nonconforming use for the Schoenfeld and Rogers tracts with Gene Camargo, the City's Director of the Department of Building Inspections. Camargo approved the registration, thereby giving Martin Marietta the right to use the Schoenfeld and Rogers tracts as part of its quarrying operations in the area. Steve Wende, Charles Brown, and other San Antonio taxpayers, and the City of Shavano Park, a municipality near the quarry, appealed Camargo's decision to the Board.

At the hearing before the Board, Martin Marietta produced evidence, including Camargo's testimony, to support its right to use the property for quarrying as a nonconforming use. Specifically, Martin Marietta argued that its nonconforming use rights were supported by its preexisting (preannexation) leases. The Board affirmed Camargo's decision, and later issued findings of fact and conclusions of law in which it found that "Camargo's determination was correct because a preexisting lease on the property [for quarrying purposes] gave Redland Stone Products Company nonconforming use rights." The taxpayers and the City of Shavano Park sought a writ of certiorari from the district court to reverse the Board's decision. The trial court affirmed the Board's decision. Wende, Brown, and the City of Shavano Park (collectively, "Wende") appealed the trial court's judgment.

After construing the City Development Code's nonconforming use provisions and definitions, and examining the common law and other cities' zoning ordinances, the court of appeals noted that the Board's construction of the provisions would allow a person to obtain nonconforming use rights not only by leasing property for a nonconforming purpose, but also by merely intending to use a property for a nonconforming use. It reasoned that such a construction produced an absurd result because it would be so "diametrically at odds with the fundamental conception of nonconforming uses throughout this country." 27 S.W.3d at 170. Additionally, for reasons explained below, the court of appeals concluded that the Board's construction rendered a portion of the City's Development Code superfluous. Id. at 171. Accordingly, the court of appeals held that the preexisting leases were not sufficient to establish nonconforming use rights. Id. Martin Marietta and the Board petitioned this Court for review.

II. Mootness

Before addressing the merits of this case, we must first determine whether the controversy has become moot. Wende argues that the case is moot for three

Page 427

reasons. First, Wende suggests that the controversy is mooted by the recent enactment of Local Government Code section 43.002(a)(2), which allows a landowner to establish nonconforming use rights based on a preannexation planned use. Second, Wende argues that while the appeal has been pending in this Court, the City has rezoned the land at issue from residential to quarry district, giving Martin Marietta all the relief it seeks. And finally, Wende points out that Martin Marietta and the City of Shavano Park have entered into a settlement agreement that prohibits Shavano Park from interfering with Martin Marietta's mining of the tracts and an operating agreement that affords Wende the protections sought to keep quarry operations from moving closer to residential communities. Wende contends that the settlement agreement and operating agreement thus moot this controversy.

Martin Marietta and the Board disagree. The Board responds that it is not a party to the settlement agreement, and urges that the court of appeals' opinion erroneously rewrites the City ordinances at issue. Martin Marietta adds that any rezoning that has occurred confers rights inferior to those it would have under nonconforming use, and the referenced settlement and operating agreements resolve only a federal lawsuit and a state court nuisance suit not at issue in this appeal.

It is well settled that "a controversy must exist between the parties at every stage of the legal proceedings, including the appeal." Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001). "If a controversy ceases to exist — the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome' — the case becomes moot." Id. (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)).

We agree with the Board and Martin Marietta that the controversy is not moot. While Local Government Code section 43.002(a)(2) appears to "grandfather" planned use of annexed property subject to certain filings and applications, TEX. LOC. GOV'T CODE § 43.002(a)(2)(A)-(B) (Supp. 2002), Wende concedes that it does not apply to this case because the provision did not become effective until 1999,1 after the 1998 annexations at issue in this case. Additionally, we agree with Martin Marietta that any rights it received by virtue of the recent rezoning of its property for quarry use are inferior to the nonconforming use rights it seeks. For instance, the right to quarry under the rezoning is subject to challenge for three years after the effective date of the rezoning. See id. § 51.003(a)(1) (Supp.2002). The three-year window does not apply to the nonconforming use rights that the Board affirmed, making the nonconforming use rights superior. Finally, the settlement agreement and the operating agreement do not dispose of the controversy between the Board and Wende, and they do not eliminate the nonconforming use dispute between Wende and Martin Marietta.

III. Analysis

Having decided that the controversy is not moot, we turn to the merits. In order to resolve this case, we must construe several provisions of San Antonio's Unified Development Code. Martin Marietta filed its registration statement of nonconforming use under section 35-3064(a) of the City's Unified Development Code, which is entitled "Registration of nonconforming uses and structures," and provides that "[t]he owner of a nonconforming use or structure may register such nonconforming

Page 428

use or structure by filing with the department of building inspections a registration statement." SAN ANTONIO, TX., UNIFIED DEVELOPMENT CODE § 35-3064(a). Subsection (d) explains that "[t]he owner of a nonconforming use or structure in newly annexed territory is permitted one (1) year after the effective date of the annexation to register such use or structure." Id. § 35-3064(d) (emphasis added).

Development Code section 35-1041, entitled "Definitions," provides that the "terms, phrases, words, and their derivations shall have the meaning given in this section." Id. § 35-1041. That section then defines the terms "use" and "nonconforming use." "Use" means "[t]he purpose for which land or structures thereon is designed, arranged, or intended to be occupied or used, or for which it is occupied, maintained, rented or leased." Id. "Nonconforming use" means "the use of an existing property or structure after the effective date of this chapter, which does [not]2 comply with the use regulations applicable to the district in which the property is located." Id.

The Development Code also contains section 35-3067, which provides:

Nonconforming rights may be granted to newly annexed areas in accordance with the following provisions and upon payment of the fees specified in Exhibit

C. All applications for nonconforming use rights must be filed within sixty (60) days of the effective date of annexation.

(a) Incomplete construction.

(1) Construction may be completed on any structure legally under construction upon annexation provided:

a. The owner ... applies to the director of building inspections for a permit to authorize further work on the structure stating the proposed use of the structure and attaching thereto the plans and specifications relating to the construction; and

b. The construction is completed within two (2) years of the...

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    ...between the parties at every stage of the legal proceedings, including the appeal." Bd. of Adjustment of City of San Antonio v. Wende , 92 S.W.3d 424, 427 (Tex. 2002) ; see also Williams v. Lara , 52 S.W.3d 171, 184 (Tex. 2001) (citing United States v. Munsingwear, Inc. , 340 U.S. 36, 39, 7......
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    ...to apply to actions taken by a company before it contracts with the State. See Bd. of Adjustments of City of San Antonio v. Wende , 92 S.W.3d 424, 432 (Tex. 2002) (statutes should be read to avoid superfluities). Because the statute reaches such decisions, its scope is necessarily broader t......
  • Heckman v. Williamson Cnty., No. 10–0671.
    • United States
    • Supreme Court of Texas
    • June 8, 2012
    ...justiciability doctrine of standing “is a constitutional prerequisite to maintaining suit”). 31.See, e.g., Bd. of Adjustment v. Wende, 92 S.W.3d 424, 427 (Tex.2002) (“It is well settled that a controversy must exist between the parties at every stage of the legal proceedings, including the ......
  • Kinnison v. City of San Antonio, Civil Action No. SA-08-CV-421-XR
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • July 21, 2010
    ...courts construe municipal ordinances in the same manner that they construe statutes. Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex.2002). Texas courts "apply a 'strict rule of construction' to statutory enforcement schemes and imply causes of action only when th......
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123 cases
  • In re Allstate Fire & Cas. Ins. Co., NO. 14-20-00430-CV
    • United States
    • Court of Appeals of Texas
    • January 7, 2021
    ...between the parties at every stage of the legal proceedings, including the appeal." Bd. of Adjustment of City of San Antonio v. Wende , 92 S.W.3d 424, 427 (Tex. 2002) ; see also Williams v. Lara , 52 S.W.3d 171, 184 (Tex. 2001) (citing United States v. Munsingwear, Inc. , 340 U.S. 36, 39, 7......
  • Amawi v. Pflugerville Indep. Sch. Dist., 1:18-CV-1091-RP
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • April 25, 2019
    ...to apply to actions taken by a company before it contracts with the State. See Bd. of Adjustments of City of San Antonio v. Wende , 92 S.W.3d 424, 432 (Tex. 2002) (statutes should be read to avoid superfluities). Because the statute reaches such decisions, its scope is necessarily broader t......
  • Heckman v. Williamson Cnty., No. 10–0671.
    • United States
    • Supreme Court of Texas
    • June 8, 2012
    ...justiciability doctrine of standing “is a constitutional prerequisite to maintaining suit”). 31.See, e.g., Bd. of Adjustment v. Wende, 92 S.W.3d 424, 427 (Tex.2002) (“It is well settled that a controversy must exist between the parties at every stage of the legal proceedings, including the ......
  • Kinnison v. City of San Antonio, Civil Action No. SA-08-CV-421-XR
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • July 21, 2010
    ...courts construe municipal ordinances in the same manner that they construe statutes. Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex.2002). Texas courts "apply a 'strict rule of construction' to statutory enforcement schemes and imply causes of action only when th......
  • Request a trial to view additional results

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