City of Austin v. Acuña

• Decision Date: 17 March 2022
• Docket Number: 14-20-00356-CV
• Parties: The CITY OF AUSTIN, Texas; the City Council of Austin; Austin Mayor Steve Adler, in His Official Capacity; the Honorable Austin City Council Members Natasha Harper-Madison, Delia Garza, Sabino Renteria, Gregorio Casar, Ann Kitchen, Jimmy Flannigan, Leslie Pool, Paige Ellis, Kathie Tovo, and Alison Alter, in Their Official Capacities; and the Honorable Austin City Manager Spencer Cronk, in His Official Capacity, Appellants v. Francisca ACUÑA, Susana Almanza; Jeffery L. Bowen; William Burkhardt; Alecia M. Cooper; Roger Falk ; Seth O. Fowler; Randy Howard; Mary Ingle; Patricia King; Fred I. Lewis; Barbara McArthur; Allan E. McMurtry; Laurence Miller; Gilbert Rivera; Jane Rivera; John Umphress; James Valadez ; and Ed Wendler, Jr., Appellees
• Court: Texas Court of Appeals

651 S.W.3d 474

The CITY OF AUSTIN, Texas; the City Council of Austin; Austin Mayor Steve Adler, in His Official Capacity; the Honorable Austin City Council Members Natasha Harper-Madison, Delia Garza, Sabino Renteria, Gregorio Casar, Ann Kitchen, Jimmy Flannigan, Leslie Pool, Paige Ellis, Kathie Tovo, and Alison Alter, in Their Official Capacities; and the Honorable Austin City Manager Spencer Cronk, in His Official Capacity, Appellants
v.
Francisca ACUÑA, Susana Almanza; Jeffery L. Bowen; William Burkhardt; Alecia M. Cooper; Roger Falk ; Seth O. Fowler; Randy Howard; Mary Ingle; Patricia King; Fred I. Lewis; Barbara McArthur; Allan E. McMurtry; Laurence Miller; Gilbert Rivera; Jane Rivera; John Umphress; James Valadez ; and Ed Wendler, Jr., Appellees

NO. 14-20-00356-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed March 17, 2022

Mary Byars, Anne L. Morgan, Jane Webre, Austin, for Appellant The City of Austin, Texas.

Mary Byars, Jane Webre, Austin, for Appellants The Honorable Austin City Manager Spencer Cronk, in his Official Capacity, Austin Mayor Steve Adler, in his Official Capacity, The City Council of Austin, The Honorable Austin City Council Members Natasha Harper-Madison, Delia Garza, Sabino Renteria, Gregorio Casar, Ann Kitchen, Jimmy Flannigan, Leslie Pool, Paige Ellis, Kathie Tovo, and Alison Alter, in their Official Capacities.

Douglas M. Becker, Austin, Richard E. Gray, for Appellees.

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.

Tracy Christopher, Chief Justice

In this appeal from a judgment rendered after a non-jury trial, we are called upon to construe the zoning enabling statute. The City of Austin is undertaking a comprehensive revision of its zoning ordinances, and the parties dispute whether the City is required to comply with the statute's written-notice and protest provisions. The statute requires compliance with these provisions for certain zoning "changes," but not for the initial adoption of zoning ordinances. The City Parties maintain that a comprehensive revision of zoning ordinances is more like the initial adoption of city-wide zoning, and thus, those provisions should not apply. A number of property owners disagreed and filed

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this suit. The trial court agreed with the property owners and rendered declaratory and injunctive relief. The City Parties appealed, and the appeal was transferred to this court.¹

We conclude that a comprehensive revision "changes" existing zoning ordinances, and thus, the statute's written-notice and protest provisions apply. The City Parties also contend that the declaratory and injunctive relief rendered departs from the scope of the statute and is overly broad and impermissibly vague, but under the binding precedent of the transferring court, the City Parties failed to preserve these complaints. We accordingly affirm the trial court's judgment.

I. BACKGROUND

The City of Austin is developing a comprehensive revision of its Land Development Code (the "LDC Revision"). Its zoning commission, named the Planning Commission, held a public hearing on October 26, 2019, and published a newspaper notice of the hearing, but did not provide individual written notice to property owners. In addition, City personnel have stated in public memoranda, at public hearings, and on the City's website, that zoning protests may not be used to protest broad legislative amendments, including comprehensive revisions such as the LDC Revision. Nevertheless, more than 14,000 property owners have filed protests.

Nineteen property owners ("the Protesting Parties") filed this suit against the City of Austin, the City Council, and in their official capacities, the mayor, the council members, and the city manager, alleging that the failure to provide written notice of the Planning Commission's public hearing and to recognize property owners’ protest rights violate Chapter 211 of the Texas Local Government Code. After a bench trial on stipulated facts and many exhibits, the district court agreed and granted the Protesting Parties’ requested declaratory and injunctive relief.

In their first appellate issue, the City Parties contend that the trial court erred in finding that the City Parties violated Texas Local Government Code §§ 211.006 and 211.007 by failing to provide written notice to all affected property owners of the Planning Commission's public hearing and by failing to recognize property owners’ protest rights. In their second issue, the City Parties argue in the alternative that the declaratory and injunctive relief rendered departs from the scope of the statute and is overly broad or impermissibly vague.

II. STANDARD OF REVIEW

The central dispute in this case presents questions of statutory construction. These are questions of law to which we apply the de novo standard of review. See Bush v. Lone Oak Club, LLC , 601 S.W.3d 639, 647 (Tex. 2020). In construing a statute, our primary objective is to give effect to the legislature's intent as expressed in the statute's language. In re Tex. Educ. Agency , 619 S.W.3d 679, 687 (Tex. 2021) (orig. proceeding). We begin with the statute's text, for that is the most reliable guide to the legislature's intent. See Silguero v. CSL Plasma, Inc. , 579 S.W.3d 53, 59 (Tex. 2019) ; Sunstate Equip. Co., LLC v. Hegar , 601 S.W.3d 685, 690 (Tex. 2020). We apply the text's plain meaning unless (1) the legislature has prescribed

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definitions, (2) the words have acquired a technical or particular meaning, (3) a contrary intention is apparent from the context, or (4) a plain-meaning construction leads to nonsensical or absurd results. Tex. Educ. Agency , 619 S.W.3d at 687. We interpret the statute's terms consistently throughout the statute. Sunstate , 601 S.W.3d at 690. We will not turn to extrinsic sources unless "the text reveals the statute is ambiguous, or applying its plain meaning would produce an absurd result" that the legislature could not have intended. Id.

III. NOTICE

In a home-rule city, a zoning commission must recommend zoning districts and zoning regulations to the city's governing body. TEX. LOC. GOV'T CODE ANN. § 211.007(a). Under the default procedure, which was followed here, the zoning commission must hold public hearings on its preliminary report before submitting a final report to the city's governing body. Id. § 211.007(b). The governing body then holds a public hearing on the final report. Id. This case is concerned with notice of public hearings before the zoning commission, not public hearings solely before the City Council.

A. The statutory text requires written notice of proposed changes in zoning classifications.

The City Parties first assert that the written-notice provision applies to proposed zoning changes only with respect to individual properties or small areas, and that the LDC Revision instead is similar to initial zoning for three reasons.

First, the City Parties argue that the LDC Revision is based on policy considerations applicable to the City as a whole. This argument is not persuasive because all zoning regulations must be adopted in accordance with a comprehensive plan. See TEX. LOC. GOV'T CODE ANN. § 211.004(a). Even an individual property can be rezoned based on policy considerations that apply to the entire city. See, e.g., City of Pharr v. Tippitt , 616 S.W.2d 173, 175 (Tex. 1981) (rezoning of a single 10.1-acre lot); see also City of Waxahachie v. Watkins , 154 Tex. 206, 210–13, 275 S.W.2d 477, 480–81 (1955) (rezoning area of less than a half acre).

Second, the City Parties contend that the LDC Revision process has been widely publicized. This argument is beside the point. The Protesting Parties allege only the violation of the state zoning statute, not the denial of due process. The zoning statute's notice requirements "must be rigidly performed," and if the statute requires written notice that the City Parties failed to give, then the actions taken without such notice are invalid. Bolton v. Sparks , 362...