City of San Antonio v. Headwaters Coal., Inc.

• Decision Date: 25 April 2012
• Docket Number: No. 04–11–00344–CV.,04–11–00344–CV.
• Citation: 381 S.W.3d 543
• Parties: CITY OF SAN ANTONIO, Appellant, v. HEADWATERS COALITION, INC., A Sponsored Ministry of the Congregation of Sisters of Charity of the Incarnate Word and the River Road Neighborhood Association, Appellees.
• Court: Texas Court of Appeals

381 S.W.3d 543

CITY OF SAN ANTONIO, Appellant,

v.HEADWATERS COALITION, INC., A Sponsored Ministry of the Congregation of Sisters of Charity of the Incarnate Word and the River Road Neighborhood Association, Appellees.

No. 04–11–00344–CV.

Court of Appeals of Texas,

San Antonio.

April 25, 2012.

Dan Pozza, Law Offices of Dan Pozza, Deborah L. Klein, Assistant City Attorney, San Antonio, TX, for Appellant.

Thomas G. Kemmy, Attorney at Law, William Bebb Francis, III, The Francis Law Firm, PC San Antonio, TX, for Appellee.

Sitting: SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice.

OPINION

Opinion by: SANDEE BRYAN MARION, Justice.

This is an accelerated appeal from the trial court's temporary injunction in favor of appellees, Headwaters Coalition, Inc., A Sponsored Ministry of The Congregation of Sisters of Charity of The Incarnate Word (hereinafter, “Headwaters”) and The River Road Neighborhood Association (hereinafter, “River Road”). This appeal arises from a dispute over the location of the City of San Antonio's proposed drainage project along Broadway and Hildebrand. Because we conclude appellees did not establish a probable right of recovery, we reverse and dissolve the temporary injunction and remand for further proceedings.

BACKGROUND

In 2007, the City enacted an ordinance

[o]rdering a bond election to be held on the 12th day of May, 2007, in the City of San Antonio, ... on a proposed bond issue for streets, bridges, and sidewalk improvements, drainage improvements, parks, recreation, open spaces, and athletics improvements, ...; specifying that said election shall be held jointly with other participating local political subdivisions within Bexar County; making provision for the holding of this election; and providing for an effective date.

...

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SAN ANTONIO [that “the following PROPOSITIONS shall be submitted in accordance with law:”]

...

Drainage Improvements Proposition

Proposition No. 2

“Shall the City Council of the City of San Antonio, Texas be authorized to issue bonds of the City in the principal amount of $152,051,818 for the purpose of making public improvements for public purposes, to wit: providing drainage improvements and facilities for the removal of, and protection from, harmful excesses of water, whether constant or periodic, any other drainage or storm water improvements, and acquiring lands and rights-of-way necessary thereto, with respect to:

Drainage Improvements

[list of twenty-six improvements, including:] Broadway Corridor, Phase III A (Carnahan to 150 ft. north of Davis Road)

After enacting the ordinance, the City made brochures available to the public that described the project. On May 12, 2007, the ballot presented to the voters stated as follows:

Drainage Improvements

Proposition No. 2

[Spanish translation]

“The issuance of bonds in the amount of $152,051,818 for drainage improvements” [Spanish translation]

____ For [Spanish translation]

____ Against [Spanish translation]

Voters approved the proposition.

Testimony at the hearing indicated that, prior to the May 2007 election, City staff assumed that the work to alleviate flooding on Broadway from Davis Court to Carnahan would involve placing drains under Broadway in that section of the road. Also prior to the election, the City created Community Bond Committees that were responsible for recommending capital improvement projects for possible inclusion in the 2007–2012 Bond Program. Barbara Witte–Howell, a River Road resident, was one of the committee members. The City took Witte–Howell and other committee members to the proposed location of the project on Broadway and explained where the project would be located and that the project called for the discharge of storm water into the San Antonio River at the existing Carnahan Channel. Witte–Howell and others recommended the Broadway Project to city council.

However, after the election, in late 2008, the City retained the engineering firm of Freese & Nichols to study the drainage issue and to design a drainage system for the project. The engineers determined that waters off Broadway flowed from Davis Court to the Broadway/Hildebrand intersection and then naturally flowed down Hildebrand to outfall into the San Antonio River, west of Broadway. The engineers also determined the pre-existing drain pipes and outfall were insufficient to convey the amount of water necessary to alleviate flooding on Broadway. As a result, the City still plans to begin the project at Broadway 150 feet north of Davis Road, but when the improvements reach the Broadway/Hildebrand intersection; the pipes, drains, and curb inlets will be placed under Hildebrand and not Broadway. This project is referred to as “Alternative I.”

On March 31, 2011, a City Council agenda item called for consideration of hiring a contractor to undertake drainage construction. The day before the council meeting, appellees filed suit requesting a temporary restraining order to prevent the council from voting on the agenda item. The trial court denied the request. The City Council then enacted an ordinance authorizing execution of the construction contract.

On April 11, 2011, appellees filed an amended petition seeking a declaratory judgment and an injunction to prohibit the City from “using 2007–2012 General Obligation Bond funds”

to construct any outfall structure on the San Antonio River, in conjunction with the Broadway Corridor, Phase III A (Carnahan to 150 ft. north of Davis Road) project, including, but not limited to “Alternative I” as described in the January 28, 2009, Freese and Nichols report and the March 17, 2011, Miraflores Park Mitigation presentation[,]

to enter onto Hildebrand Road and install culverts to convey storm water in conjunction with the Broadway Corridor, Phase III A (Carnahan to 150 ft. north of Davis Road) project, including, but not limited to “Alternative I” as described in the January 28, 2009, Freese and Nichols report and the March 17, 2011, Miraflores Park Mitigation presentation[, and]

for any project that does not substantially comply with the terms of the bond.

Following hearings held on April 11 and 12, 2011, the trial court notified counsel it intended to grant the temporary injunction and asked counsel to prepare an order. Because the parties could not agree on an order, the trial court heard further arguments from the parties and, on May 11, 2011,¹ signed an order restraining the City from

using the portion of 2007–2012 General Obligation Bond funds raised for the drainage project known as Broadway Corridor III A during the 2007 election to construct any part of “Alternative I” as described in the January 28, 2009, Freese and Nichols report and the March 17, 2011, Miraflores Park Mitigation presentation[,]

using the portion of 2007–2012 General Obligation Bond funds raised for the drainage project known as Broadway Corridor III A during the 2007 election, for any drainage system or street improvement located anywhere else other than Broadway, beginning at Carnahan and continuing to 150 ft. north of Davis Court. That is, [the City] is free to use the bond funds for the Broadway Corridor III A along Broadway beginning at Carnahan and continuing to 150 ft. north of Davis Court, but not elsewhere[,]

constructing the outfall structure described in “Alternative I” in the January 28, 2009, Freese and Nichols report and the March 17, 2011, Miraflores Park Mitigation[, and]

commencing construction on a Drainage Project that includes connecting any partial portion of the Broadway Corridor Phase III A project to a separate drainage project on Hildebrand; stated another way, [the City] is restrained from commencing constructing a project that includes the portion of the Broadway Corridor Phase III A project between Davis Court and Hildebrand as doing so would effectively move the location of the Broadway Corridor drainage project and disrupt the status quo pending litigation.

The parties agreed to stay the proceedings pending the City's interlocutory appeal of the injunction to this court.

STANDING

For the first time on appeal, the City challenges the standing of the appellees to bring the underlying suit for an injunction. The City contends appellees do not have standing because Headwaters was not a property owner at the time of the bond election and does not pay property taxes, and River Road presented no evidence that it, or any of its members, pay property taxes.

The Texas Supreme Court has stated that standing is determined at the time suit is filed in the trial court. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 n. 9 (Tex.1993); see also Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 550 (Tex.App.-San Antonio 2011, no pet.). Therefore, the issue is whether either or both appellees had standing when they filed suit. Standing focuses on the question of who may bring an action. Patterson v. Planned Parenthood of Hous., 971 S.W.2d 439, 442 (Tex.1998). When, as here, standing is not conferred by statute, taxpayers must show they have suffered a particularized injury distinct from that suffered by the general public in order to have standing to challenge a government action or assert a public right. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555–56 (Tex.2000) (citation omitted). An injury need not affect “vested” property rights to confer standing; the harm may be economic, recreational, or environmental. Tex. Rivers Prot. Ass'n v. Tex. Nat'l Res. Conservation Comm'n, 910 S.W.2d 147, 151–52 (Tex.App.-Austin 1995, writ denied).

Because standing is a component of subject-matter jurisdiction, it cannot be waived and, as here, may be raised for the first time on appeal. City of Laredo v. R. Vela Exxon, Inc., 966 S.W.2d 673, 679 (Tex.App.-San Antonio 1998, pet. denied). When reviewing standing for the first time on appeal, we look to the facts alleged in the petition, we construe...