City of Glenn Heights v. Sheffield Dev. Co.

• Citation: 55 S.W.3d 158
• Decision Date: 09 August 2001
• Docket Number: No. 05-00-01238-CV,05-00-01238-CV
• Parties: (Tex.App.-Dallas 2001) CITY OF GLENN HEIGHTS, TEXAS, Appellant v. SHEFFIELD DEVELOPMENT COMPANY, INC., Appellee
• Court: Court of Appeals of Texas

Page 158

55 S.W.3d 158 (Tex.App.-Dallas 2001)

CITY OF GLENN HEIGHTS, TEXAS, Appellant v. SHEFFIELD DEVELOPMENT COMPANY, INC., Appellee

No. 05-00-01238-CV

Court of Appeals of Texas, Dallas

August 9, 2001

On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DV99-09321-K

[Copyrighted Material Omitted] Robert R. Brown, Brown & Hofmeister, L.L.P., Dallas, for appellant.

Arthur J. Anderson, Winstead Sechrest & Minick, P.C., Dallas, for appellee.

Before Justices James, Moseley, and Roach¹

OPINION

Opinion By Justice Moseley

Sheffield Development Company, Inc. ("Sheffield") sued the City of Glenn Heights ("the City") seeking a writ of mandamus, injunctive relief, and a declaratory judgment that chapter 245 of the Texas Local Government Code requires the City to accept Sheffield's plat application, even though the application did not comply with the zoning in effect at the time it was submitted. The trial court granted Sheffield's motion for summary judgment. In its sole issue on appeal, the City argues the trial court erred in granting Sheffield's motion for summary judgment. In support of this issue, the City argues (1) chapter 245 of the Texas Local Government Code does not apply to the rezoning of the subject property; (2) the claims presented by Sheffield in this case are precluded by res judicata; and (3) Sheffield's final judgment in a previous lawsuit constitutes an election of remedies. For the reasons set forth below, we reverse the trial court's judgment and remand this cause for further proceedings.

BACKGROUND²

A. Introduction

In December 1996, Sheffield purchased an approximately 194-acre tract located in the City ("the subject property"). The subject property is located within a larger tract of land known as planned development district 10 ("PD 10"), which was established by the City on October 20, 1986 through the adoption of ordinance 391-86 ("the old ordinance"). The old ordinance zoned PD 10 for single family residential uses. The ordinance "adopted" an attached Concept Site Plan, House Size Concept Plan, and Lot Concept Plan, envisioning the development of primarily 6,500-square- foot lots, but with some 7,500- and 9,000-square-foot lots. However, the old ordinance required that a Detailed Site Plan be filed and approved before the issuance of any plats or permits for the development of the subject property. On April 27, 1998, the City adopted ordinance 641-98 ("the new ordinance"), which rezoned the subject property SF-2 and required minimum 12,000-square- foot lots.

B. Sheffield I

On September 30, 1997, Sheffield sued the City in Ellis County, Texas ("Sheffield I"). ³ Sheffield alleged the City's development moratorium and "downzoning" of the subject property by passing the new ordinance (which required larger lots) constituted a taking of Sheffield's property without compensation in violation of the Texas Constitution, denied Sheffield due process and equal protection under the Texas Constitution, and violated various common-law rights.

The trial court bifurcated the trial of Sheffield I into a liability phase and a damage phase. The liability phase was tried to the court in December 1998. At the close of Sheffield's case-in-chief in the liability phase, the trial court granted the City's motion for directed verdict on all of Sheffield's claims except its inverse condemnation claim based upon the taking of property without compensation. After the conclusion of the bench trial on the liability phase, the trial court ruled the City's rezoning of the subject property constituted a taking under the "investment-backed expectations" theory of regulatory takings discussed in Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998), cert. denied, 119 U.S. 1218 (1999). The trial court subsequently set a jury trial on the damage phase of Sheffield I for July 6, 1999.

On May 11, 1999, after the liability phase but before the damage phase of Sheffield I, HB 1704 became effective, codified as chapter 245 of the Texas Local Government Code. Chapter 245 provides that an application for a permit must be considered in light of the zoning that was in effect at the time the application was filed. See Tex. Loc. Gov't Code Ann. 245.002(a), (b) (Vernon Supp. 2001). If a series of permits is required for a project, the zoning that will govern all permits necessary for the project is the zoning in effect at the time the application for the first permit in the series is filed. Id. ⁴

Three days after HB 1704 became effective, Sheffield's attorney sent a letter to the City contending that "it is clear that HB 1704 allows [Sheffield] to develop under the old PD 10." On May 24, 1999, the City's attorney responded with a letter stating the election of remedies doctrine would preclude Sheffield from obtaining a judgment for permanent damages on its inverse condemnation claim (which was based on the passage of the new ordinance), and then asserting it has the right (under newly-passed chapter 245) to develop the subject property pursuant to the old ordinance. The City further suggested that if Sheffield intended to assert such a right, it should do so in Sheffield I before going forward on the damages phase for the permanent taking. On June 3, 1999 Sheffield filed its fifth amended petition in Sheffield I; however, the only additional language added a claim for temporary damages (in addition to its permanent damages claim) should the City reinstate the original zoning applicable to PD 10.

The damages phase of Sheffield I was tried before a jury in July 1999. The jury found the City's taking of the subject property by passing the new ordinance resulted in permanent damages in the amount of $485,000. On August 4, 1999, the trial court entered an amended final judgment and filed findings of fact and conclusions of law reflecting the liability and damages findings by the court and jury, respectively. Both parties appealed the final judgment in Sheffield I; that case is currently pending in the Tenth District Court of Appeals at Waco.

On November 7, 1999, Sheffield submitted an application entitled "Preliminary Plat/Development Plat/Detailed Site Plan," for development of the subject property with the smaller sized lots allowed by the old ordinance. On December 6, 1999, the City rejected Sheffield's application because it did not comply with the minimum 12,000-square-foot lot zoning applicable under the new ordinance.

C. The Instant Suit

On November 24, 1999, Sheffield filed the instant lawsuit in Dallas County requesting a writ of mandamus, injunctive relief, and a declaratory judgment to the effect that, based on chapter 245 of the Texas Local Government Code, the new ordinance does not apply to its plat application. Sheffield moved for summary judgment, arguing the old ordinance's adoption and attachment of the "Concept Site Plan" rendered the old ordinance a "permit." Accordingly, Sheffield argued, chapter 245 required the City to consider its plat application in light of the old ordinance (which allowed the smaller lot sizes contemplated by the application) rather than the new ordinance (which requires larger lots). The chapter 245 argument was the sole basis for Sheffield's summary judgment motion.

In response to Sheffield's motion for summary judgment, the City argued the old ordinance's attachment of a "Concept Site Plan" did not render it a "permit," and, therefore, chapter 245 did not apply to Sheffield's plat application. The City further raised the affirmative defenses of res judicata and election of remedies, and argued they precluded Sheffield's ability to recover on a chapter 245 claim after obtaining a judgment for permanent damages on an inverse condemnation claim in Sheffield I.

On July 17, 2000, the trial court granted Sheffield's motion for summary judgment, declaring that the City wrongfully denied Sheffield's plat application. The trial court further ordered that, in accordance with chapter 245, the new ordinance shall not be applied to Sheffield's plat application, and the court enjoined the City from doing so. The City appealed.

STANDARD OF REVIEW

Prior to our discussion of the standard of review applicable to this case or the merits of Sheffield's arguments on appeal, we address the City's request that this Court take judicial notice of various municipal zoning ordinances attached to its brief. Sheffield objected to this request and moved to strike the relevant attachments because they were not presented to the trial court.

We recognize courts may take judicial notice of certain matters at any time, even on appeal. See SEI Bus. Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 840-41 (Tex. App.-Dallas 1991, no writ). As a general rule, however, appellate courts do so "only to determine jurisdiction over an appeal or to resolve matters ancillary to decisions which are mandated by law (e.g., calculation of prejudgment interest when the court renders judgment)." Id. at 841. To go further runs the risk of effectively rendering this Court into one of original, not appellate, jurisdiction. Id. The proffered materials do not affect our jurisdiction over this appeal or resolve a matter ancillary to a decision mandated by law.

Moreover, this appeal concerns whether the trial court was confronted with an issue of material fact, based on the record before it, such as to make its rendition of summary judgment erroneous. Asking this Court to take judicial notice of matters that were not presented to the lower court, either through a sponsoring witness or, as in this case, through a request for the trial court to take judicial notice, does not change the nature or scope of our review. If the City thought the materials in question were relevant to raise an issue of material fact, it should have presented them to the trial court. Because the City did not do so, we will not consider them on appeal.

The standards for reviewing a summary judgment are well...