City of Crowley v. Ray

• Decision Date: 23 August 2018
• Docket Number: NO. 02-17-00409-CV,02-17-00409-CV
• Citation: 558 S.W.3d 335
• Parties: The CITY OF CROWLEY, Appellant v. Doug RAY, Appellee
• Court: Texas Court of Appeals

558 S.W.3d 335

The CITY OF CROWLEY, Appellant

v.Doug RAY, Appellee

NO. 02-17-00409-CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: August 23, 2018

Rehearing Denied September 20, 2018

John R. Lively, Fort Worth, for Appellee.

Fredrick 'Fritz' Quast, for Appellant.

PANEL: SUDDERTH, C.J.; WALKER and MEIER, JJ.

BILL MEIER, JUSTICE

I. INTRODUCTION

Appellant The City of Crowley pursues its second interlocutory appeal in this litigation stemming from Appellee Doug Ray’s efforts to develop a residential subdivision in the City. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2017). In the first four of its five issues, the City argues that the trial court lacks subject-matter jurisdiction over Ray’s inverse-condemnation claim because the claim is unripe, because Ray failed to exhaust administrative remedies, because the City is immune from suit, and because the claim fails as a matter of law. In its fifth issue, the City challenges the trial court’s authority to award attorneys' fees after summarily disposing of Ray’s claim for declaratory relief. We will affirm.

II. BACKGROUND

The crux of the underlying dispute centers around Ray’s complaint that the City prohibited him from developing his property in accordance with the City’s adopted floodplain criteria. We do not tackle that merits question in this interlocutory appeal, because it is not before us, but it nevertheless plays a prominent role in our analysis of the City’s issues. Some history is therefore required to contextualize it.

A. Ray’s Place II—Phases 1 and 2

In January 1999, the City requested that the Federal Emergency Management Agency (FEMA) revise the Flood Insurance Rate Map (FIRM) and the Flood Insurance Study (FIS) report for Tarrant County, Texas and Incorporated Areas to include a flood study that Jerry Parché Consulting Engineers performed in connection with a proposed residential subdivision located south of the North Fork of Deer Creek in the City. In response to the request, FEMA issued a Letter of Map Revision (LOMR) dated March 9, 1999, and a corrected LOMR effective July 20, 1999. In his affidavit attached to Ray’s response to the City’s plea to the jurisdiction, Ronald W. Morrison, a registered professional engineer, stated that the March and July 1999 LOMRs "revised the FIRM and FIS reports, both dated August 2, 1995," were "reviewed by the City consultant Teague Nall and Perkins," and "were adopted by the City of Crowley."¹

In May 1999, Ray purchased 2 two-acre tracts located adjacent to, or just north of, the North Fork of Deer Creek to develop a multifamily residential subdivision. Ray collectively named the properties Ray’s Place II. The August 1995 FIRM and FIS reports, as modified by the March and July 1999 LOMRs, "cover" the properties. The 1999 LOMRs, based upon the Parché study, listed the 100-year floodplain elevation where Ray’s Place II is located at 751 feet.

In October 2001, Ray submitted a preliminary plat for the entire four acres of Ray’s Place II, consisting of seventeen lots and sixteen buildings. When the City requested information about the 100-year floodplain based on a fully developed watershed, Ray responded with the 1999 LOMRs. The City approved the preliminary plat.

Having decided at some point to develop Ray’s Place II in two separate phases, Ray then submitted a proposed final plat for the northernmost 1.3 acres, which he called Ray’s Place II, Phase 1.² The City did not ask Ray to submit a new flood study along with the final plat, which it approved in October 2002. Thus, at least as to Phase 1’s development, Ray recounted that the 1999 LOMRs were "sufficient to provide the information regarding the 100-year floodplain location." Ray obtained building permits, constructed six fourplexes, and leased the units before selling them in May 2005 for approximately $242,000 per lot.

Ray began developing Phase 2—the southern 2.7 acres of Ray’s Place II—around December 2006. As happened with Phase 1, when Ray submitted a preliminary plat for Phase 2 (covering lots 1–6 and 13–17), the City requested that he supply information about the 100-year floodplain, and Ray responded that he was relying upon the figures contained in the Parché study, which were incorporated into the FIRM via the 1999 LOMRs. The City approved the preliminary plat in April 2007.

The following month, Ray submitted a proposed final plat for Phase 2, but unlike with the Phase 1 development, the City informed Ray that he had to have a new flood study performed. Ray complied and submitted a new flood study by Nave Engineering, Inc. The Nave study touched on the City’s reason for requesting an updated flood study:

In 1998 Jerry Parche Consulting Engineers (JPC) submitted a LOMR request for the North Fork of Deer Creek for the Stone Brook Addition to the south of the project site. At that time the rational method was used to determine the 100-year runoff discharge for the site.

Since that time Teague Nall and Perkins (TNP) has conducted [a] flood study and replaced the culverts at S. Hampton Road just downstream of the project site. At that time it was determined that the discharge for the North Fork of Deer Creek was higher than the flows found in the JPC study. Additionally Carter and Burgess, Inc. (CBI) conducted a flood study for the proposed Creekside Addition upstream of the project site and produced discharges similar to those found in the TNP study. As a result the City of Crowley requested that the North Fork of Deer Creek hydrology and hydraulic models be updated for the proposed project.

Neither side offers much insight into the specific results of the Nave study, but it evidently affected the City’s opinion about the minimum finished floor elevations for Phase 2. Specifically, both Ray and Cheryl McClain, the City’s planning and zoning administrator, explained that the City requires finished floor elevations to be, at a minimum, two feet above a property’s floodplain elevation. Relying on the 1999 LOMRs, which were based on the Parché study and which set the 100-year floodplain elevation for the location of Ray’s Place II at 751 feet, Ray testified that to build Phase 2, the minimum finished floors would have to be no less than 753 feet and that the Phase 2 buildings were initially designed to have a finished floor elevation of 755 feet. But instead of "allow[ing him] to develop [Phase 2] using the effective floodplain" elevation of 751 feet, Ray testified that the City is requiring that the finished floors be "10 feet above the City’s current floodplain criteria," or at an elevation of no less than 761 feet.³ Ray calls the City’s minimum 761.5-foot finished floor elevation arbitrary, but Teague Nall and Perkins advised the City in a memo that "[t]he updated flood study [the Nave study] will be used for establishing minimum finished floor elevations," and page seven of the Nave study contains the following statement:

C. Minimum Finished Floors

The minimum finished floors for lots adjacent to the floodplain are 761.50'. This elevation is 2.00' above the 100-year floodplain water surface.

It thus appears that the Nave study did not reach the same conclusion that the Parché study had about the 100-year floodplain elevation for the area where Phase 2 is located and that the City is utilizing the Nave study’s figures, not the 1999 LOMRs'.⁴

Ray estimated that to raise the property up by 10 feet, he would have "to bring in about 270,000 yards of dirt, build retaining walls, pour more footings on foundations to taper up because it starts right at the edge of the original Phase 1. We couldn't put one unit on it without raising the dirt." He opined that it is no longer economically feasible to develop the property and that it has no potential use without "raising the dirt."

B. Litigation

In 2009, Ray sued the City for declaratory relief and Teague Nall and Perkins for negligence and other claims. The City argued in a plea to the jurisdiction that it was immune from Ray’s suit because he had failed to allege a valid claim for declaratory relief, but the trial court denied the City’s plea, and this court affirmed the trial court’s interlocutory order. See City of Crowley v. Ray , No. 02-09-00290-CV, 2010 WL 1006278, at *5, *7 (Tex. App.—Fort Worth Mar. 18, 2010, no pet.) (mem. op.). Before the trial court granted the City summary judgment on some of Ray’s claims for declaratory relief, Ray filed an amended petition that added a claim against the City for inverse condemnation, averring that the City’s actions effected an unconstitutional taking of property. The City then filed another jurisdictional plea, this time arguing that Ray’s inverse-condemnation claim is unripe and that its governmental immunity had not been waived. After a hearing at which testimonial and documentary evidence was admitted, the trial court denied the City’s plea, and this interlocutory appeal followed.⁵

III. STANDARD OF REVIEW

The City premised its jurisdictional challenge on both ripeness and governmental immunity. Ripeness, like standing, is a component of subject-matter jurisdiction and may be raised in a plea to the jurisdiction. Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998), cert. denied , 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999). Immunity from suit likewise defeats a trial court’s subject-matter jurisdiction and is therefore properly asserted in a plea to the jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225–26 (Tex. 2004).

A plea to the jurisdiction may challenge either the pleadings or the existence of jurisdictional facts. Id. at 226–27. When the pleadings are challenged, we consider whether the pleader has alleged sufficient facts to demonstrate the court’s subject-matter jurisdiction over the matter, construing the pleadings liberally in favor of the plaintiff and looking to the pleader’s intent. Id. ; see City of Waco v. Kirwan , 298 S.W.3d 618, 621 (Tex. 2009). When the existence of jurisdictional facts...