Howeth Investments v. City of Hedwig Vill.
| Decision Date | 17 April 2008 |
| Docket Number | No. 01-05-00904-CV.,01-05-00904-CV. |
| Citation | 259 S.W.3d 877 |
| Parties | HOWETH INVESTMENTS, INC. and Jack Howeth, as Trustee for the 881 Brogden Trust and the 901 Brogden Trust, Assignees of Howeth Investments, Inc., Appellants, v. The CITY OF HEDWIG VILLAGE, the City of Hedwig Village Planning & Zoning Commission, S. Frank White, Robert A. Wiener, Norman A. Ward, and Katherine Vazquez, Appellees. |
| Court | Texas Court of Appeals |
Panel consists of Justices TAFT, ALCALA, and HANKS.
Appellants, Howeth Investments, Inc. and Jack Howeth, as trustee for the 881 Brogden Trust and the 901 Brogden Trust, assignees of Howeth Investments, Inc. (collectively, the "Howeth parties"), appeal from a final, take-nothing judgment rendered after a bench trial. We determine (1) whether the Howeth parties have timely challenged all bases on which the trial court's judgment rests; (2) whether the trial court erred in denying mandamus, injunctive, and declaratory relief to compel appellee the City of Hedwig Village Planning and Zoning Commission ("the Commission") to issue certificates of no action on the Howeth parties' plat applications for two lots of property located within the City of Hedwig Village ("the City"); and (3) whether an ordinance of the City that the Commission interpreted to deny the Howeth parties' plat applications for subdividing these two properties was unconstitutionally vague, facially or as applied. We affirm.
Jack Howeth was a real-estate developer and also the former mayor of a neighboring municipality. He was also the president of Howeth Investments, Inc. and the trustee for the two trusts named above, which in turn were assignees of Howeth Investments, Inc. Howeth Investments, Inc. was in the business of purchasing and developing real estate.
Two adjacent, undivided properties within the City are involved in this lawsuit. Both properties are located on Brogden Street. One of the properties was located at 901 Brogden, which the Howeth parties designate as "the Jennings property." The other was located at 881 Brogden, which the Howeth parties designate as "the Dorsey property." We refer to the individual pieces of property as the Jennings property and the Dorsey property, while we refer to them together as "the Brogden properties."
In March 2000, Howeth Investments, Inc. contracted to purchase the Brogden properties. The contracts for sale of the Brogden properties provided that Howeth Investments, Inc. did not have to purchase the respective piece of property if it was unable to obtain approval of a subdivision plat dividing the Brogden properties into three lots.1
In June 2000, the Brogden properties' sellers submitted preliminary plat applications ("the June preliminary plat" applications) to the Commission for subdivision of the Brogden properties. The June preliminary plat applications proposed subdividing each property into two lots. The only way to subdivide the Brogden properties separately while still meeting the City's other development requirements was to subdivide each property into two sub-lots, with one of the subdivided lots on each piece of property having a "flag" configuration. A flag configuration is one in which one lot is behind the other relative to the street, so that the back lot has access to the street only by virtue of a long driveway; the driveway appears from the air to resemble a flagpole, and the rear lot appears to be the flag atop the pole. In a flag configuration, the owner of the rear lot has fee simple title to the "flag pole" driveway.
The Commission scheduled a hearing for July 5, 2000 to consider the June preliminary plat applications. At the hearing, the Howeth parties presented the applications on behalf of the property owners. The Howeth parties relied on section 16-38 of the City's Code of Ordinances for approval of the flag-lot configuration:
Sec. 16-38. Lots, general provisions.
The purpose of this section is to provide general overall guidelines for the establishment of individual lots within a subdivision.
. . .
(c) Key or Flag Shaped Lots. Unless unavoidable, key or flag shaped lots shall not be permitted.....
Code of Ordinances, City of Hedwig Village § 16-38 (Ord. No. 345, § 3.13, 4-11-91). Much of the hearing focused on the meaning of "unavoidable" in section 16-38. A ruling on the applications was deferred until the Commission's next regular meeting (August 2, 2000), so that the City's attorney, Alan Petrov, could research the meaning of "unavoidable" and so that the City's Building Official, Paul Addington, could give input on the applications.
On July 15, 2000, the Howeth parties sought certificates of no action from the Commission because it had allegedly not acted timely on the June preliminary plat applications under the timelines established by the Texas Local Government Code. See TEX. LOC. GOV'T CODE ANN. § 212.009(a) (Vernon 1999) ( ) (emphasis added); id. § 212.009(d) (Vernon 1999) (). The City's attorney denied the request, asserting that section 212.009 did not apply to preliminary plats.
At the August 2, 2000 Commission hearing, the Howeth parties again participated in a discussion of the June preliminary plat applications. As at the July 15 hearing, much of the August 2 hearing focused on the meaning of "unavoidable" in section 16-38. Petrov told the Commission that the term unavoidable was not defined in the ordinance, that no case law or legislative history shed light on its meaning, and that it was thus "in the discretion of" the Commission "to come to an agreement on the definition of" the term. Petrov advised that he saw two reasonable definitions of unavoidable: (1) that development of the land was otherwise impossible, an interpretation requiring denial of the preliminary plat applications because the lots could be developed with one home per property, and (2) that subdivision of the land was otherwise impossible, an interpretation that could allow approval of the preliminary plats because neither of the Brogden properties could be subdivided into anything but flag lots without violating the City's length and width requirements for lots. Although Petrov believed that interpretation (2) was the more logical, he advised the Commission that it was in "the Commission's discretion to decide what `unless unavoidable' meant, noting that whatever conclusion the Commission reached, a few words should be added to the sections of the Code to provide clarification." A divided Commission thereafter voted to deny the June preliminary plat applications. Those voting to deny the applications were appellees S. Frank White, the Commission Chairman, and Robert A. Weiner and Norman E. Ward, Commission members. When polled, White and Ward expressed that they did not want flag lots for aesthetic, density, or other reasons that did not involve interpretation of "unavoidable," although Weiner's statement (and a later statement by White) indicated that they had adopted interpretation (1) of "unavoidable." A written decision later sent to the Howeth parties indicated that the decision had been based in part on the flag lots' not having been unavoidable, as the Commission had interpreted that term.
On August 13, 2000, the Brogden properties' sellers simultaneously submitted new preliminary and final plat applications for the Brogden properties ("the August preliminary and final plat" applications). Rather than proposing flag configurations, the August preliminary and final plats gave the rear subdivided lots on each of the Brogden properties ingress and egress by virtue of permanent easements over the front subdivided lots. The subdivision configuration for each lot was similar to that submitted in the June preliminary plats, in that a long driveway resembling a flagpole was still used for access to the rear lot; however, the sizes of the two sub-lots were modified in recognition of the use of an easement, rather than fee simple title, for that driveway. At the Commission's August 30, 2000 meeting, after a discussion including the Howeth parties, a divided Commission voted to deny the August preliminary and final plat applications. Those voting against the applications were White, Ward, Weiner, appellee Kathy H. Vazquez (a Commission member), and two other Commission members who have not been sued.
Some time after the August 30 hearing, the City imposed a moratorium on plat applications in order to discuss the issue of flag lots. In March 2001, the City Council of Hedwig Village amended the City's Code of Ordinances to prohibit flag lots entirely. Code of Ordinances, City of Hedwig Village § 74-123(3) (Ord. No. 498, § 1(16-38), 3-29-2001).
In September 2000, during the moratorium on plat applications and despite the rejection of both the June preliminary plat applications and the August preliminary and final plat applications, Howeth Investments, Inc. nonetheless purchased the Dorsey and Jennings properties. The appellant trusts eventually obtained title to the properties. In May 2001, the Brogden property sellers assigned their interest in the June preliminary plat applications and the August preliminary and final plat applications to the appellant trusts.
The Howeth parties eventually commenced development of a home on the front portion of the Jennings and Dorsey properties (what the Howeth parties...
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