In re Arnold

• Decision Date: 29 July 2014
• Docket Number: No. 13–14–00364–CV.,13–14–00364–CV.
• Citation: 443 S.W.3d 269
• Parties: In re Patricia ARNOLD, Laura McLaughlin, William Priday, and Kevin Robbins.
• Court: Texas Court of Appeals

443 S.W.3d 269

In re Patricia ARNOLD, Laura McLaughlin, William Priday, and Kevin Robbins.

No. 13–14–00364–CV.

Court of Appeals of Texas, Corpus Christi–Edinburg.

July 29, 2014.

Rehearing Overruled Sept. 9, 2014.

Paul Dodson, Corpus Christi, for Relator.

Fred D. Dreiling, Corpus Christi, Michael G. Morris, Corpus Christi, Shirley Selz, Gary, Thomasson, Hall & Marks, Corpus Christi, for Real Party in Interest.

Before Chief Justice VALDEZ and Justices PERKES and LONGORIA.

OPINION

Opinion by Chief Justice VALDEZ.¹

Relators, Patricia Arnold, Laura McLaughlin, William Priday, and Kevin Robbins, filed a petition for writ of mandamus in the above cause on July 2, 2014, seeking to compel the Ingleside City Council, City Manager, and City Secretary² to comply with the referendum process as delineated by the Ingleside City Charter regarding the repeal of four ordinances granting zoning amendments.³ Because we conclude that the initiative and referendum process does not apply to the repeal of individual zoning ordinances, we deny the petition for writ of mandamus.

I. Background

Relators seek referenda for the repeal of two sets of zoning amendments passed by the Ingleside City Council. The first referendum request concerns the September 2013 application by Flint Hills Resources Corpus Christi, LLC, to change the zoning for 663.68 acres of land adjacent to State Roads 1069 and 2725, property known as “Live Oak Preserve,” from zoning as a PUD–Planned Development Unit to an I (“Industrial”) zone and a C–2 (“General Commercial”) zone. In October 2013, the City Council approved the request by the enactment of Ordinance 1087.

The second referendum request concerns the October 2013 applications by WMH Corpus 1, LLC to change the zoning for: (1) 117.87 acres of the Rosa Teal Survey A–262, known as “Southside of Hwy 361,” from the zoning classifications of R–1 (“Single Family Residential District”) and L–1 (“Light Industrial District”) to the classifications of C–1 (“Local Commercial District”) and I (“Industrial District”) with the inclusion of objectionable uses; (2) 152.62 acres of the Rosa Teal Survey A–262, known as “Northside of Hwy 361” from the classification of R–1 (“Single Family Residential District”) to I (“Industrial District”) with the inclusion of objectionable uses; and (3) 12.88 acres for (a) all or parts of Lots 1 through 8, Block 1, all of Lots 1 and 2, Block 2, and part of Block 3, Marina Heights Addition, (b) the most northerly 50' of Tract 10, Block A Caruthers Cove, San Patricio County, Texas, and (c) 10.00 acres, more or less, being a portion of Blocks C, D, and E Caruthers Cove, San Patricio County, Texas, known as 1625 Main, from the zoning classification of I (“Industrial District”) to I (“Industrial District”) with the inclusion of objectionable uses. In November 2013, the City Council approved the requests by the enactment of Ordinances 1089, 1090, and 1091.

After Ordinance 1087 passed, Ingleside residents Vicki Lynn Preston, Kevin Robbins, William Cedric Priday, Ricardo Trevino, Jr., and Mark Edward Mills filed an “Affidavit for Commencement of Proceedings; Petitioner's Committee” with the City. Thirteen days later, the petition committee presented a referendum petition to the City Secretary, Kimberly Drysdale. On November 26, 2013, the City Council held a special meeting, went into executive session, and decided that the referendum process “will be immediately cancelled and halted.” The next day, the City Secretary sent letters to members of the Petitioners' Committee stating that the petition process was being halted. In December, five Ingleside residents, including some relators, attempted to deliver an affidavit for “commencement of proceedings.” The City Manager refused to accept the notice. Despite relators' requests, the City has not instituted a referendum process for any of the four ordinances at issue in this original proceeding.

On February 20, 2014, relators filed suit against the City of Ingleside in cause number S–14–5207CV–C, currently pending in the 343rd District Court of San Patricio County, Texas. The trial court proceedings have been abated due to the pendency of this petition for writ of mandamus.

This original proceeding ensued on July 2, 2014. The Court has requested and received a response to the petition for writ of mandamus from the real parties in interest. By one issue, relators contend that the referendum provisions of the Ingleside City Charter apply to ordinances approving zoning amendments. In contrast, real parties assert that long-standing Texas case law, rules of statutory construction, and the plain wording of Chapter 211 of the Texas Local Government Code establish that the initiatory process does not apply to the adoption, amendment, or repeal of individual zoning ordinances. See generally Tex. Loc. Gov't Code Ann. . §§ 211.001 –.010 (West, Westlaw through 2013 3d C.S.).

Article VI of the Ingleside City Charter contains the relevant procedures for the initiative and referendum process:

A. Initiative: The qualified voters of the City shall have power to propose ordinances to the City Council, and if the City Council fails to adopt an ordinance so proposed without any change in substance, to adopt or reject it at a city election, provided that such power shall not extend to the budget or capital program or any ordinance relating to appropriation of money, levy of taxes or salaries of City officers or employees. Such initiative power may be used to enact a new ordinance, or to repeal or to amend section of an existing ordinance.

B. Referendum: The qualified voters of the City shall have power to require reconsideration by the City Council of any adopted ordinance and, if the City Council fails to repeal an ordinance so reconsidered, to approve or reject it at a City election, provided that such power shall not extend to the budget or capital program or any emergency ordinance relating to appropriation of money or levy of taxes.

Ingleside, Tex., Charter, art. VI, § 6.01 (Nov. 6, 1979, as amended February 13, 2001).

The Charter further provides that the referendum process can be invoked as follows:

Any five qualified voters may commence initiative or referendum proceedings by filing with the City Secretary an affidavit stating they will constitute the petitioners' committee and be responsible for circulating the petition and filing it in proper form, stating their names and residence addresses and specifying the address to which all notices to the committee are to be sent, and setting out in full the proposed initiative ordinance or citing the ordinance sought to be reconsidered.

Id. at § 6.02 (Nov. 6, 1979). The Charter further sets specific requirements applicable to the petitions. Id. at § 6.03 (Nov. 6, 1979, as amended Feb. 24, 2004). Once a referendum petition has been filed, the City Secretary must complete a certificate regarding the sufficiency of the petition. Id. at § 6.04(A) (Nov. 6, 1979, as amended May 4, 1996). If the petition is certified as sufficient, the certificate is presented to the City Council. Id. at § 6.04(B). Once the petition is filed with the City Secretary, the ordinance in issue “shall be suspended from taking effect,” and the suspension only terminates when: (1) there is a final determination of insufficiency of the petition; (2) the petitioners' committee withdraws the petition; (3) the City Council repeals the ordinance; or (4) upon the certification of the election results by the election officials. Id. at § 6.05 (Nov. 6, 1979). When the petition has been determined sufficient, the City Council must promptly reconsider the referred ordinance by voting its repeal. Id. at § 6.06(A) (Nov. 6, 1979). If the Council does not repeal the referred ordinance within thirty days after the date the petition was finally determined sufficient, “it shall submit the ... referred ordinance to the voters of the City.” Id. If a majority votes against the referred ordinance, “it shall be considered repealed upon certification of the election results.”Id. at § 6.07(B) (Nov. 6, 1979).

II. Mandamus

Mandamus is appropriate when the relator demonstrates that the trial court clearly abused its discretion and the relator has no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex.2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.2004) (orig. proceeding). The relator has the burden of establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex.2003) (orig. proceeding).

A trial court clearly abuses its discretion if it reaches a decision that is so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding) (per curiam). The adequacy of an appellate remedy must be determined by balancing the benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex.2008) (orig. proceeding).

Pursuant to section 273.061 of the Texas Election Code, this Court has jurisdiction “to compel the performance of any duty imposed by law in connection with the holding of an election....” See Tex. Elec.Code Ann. § 273.061 (West, Westlaw through 2013 3d C.S.); In re Peacock, 421 S.W.3d 913, 916 (Tex.App.-Tyler 2014, orig. proceeding) ; In re Lee, 412 S.W.3d 23, 24 (Tex.App.-Austin 2013, orig. proceeding). Election matters pertaining to the referendum and initiative process may be reviewed by mandamus. See, e.g., In re Bouse, 324 S.W.3d 240, 241 (Tex.App.-Waco 2010, orig. proceeding [mand. denied] ); see also In re Porter, 126 S.W.3d 708, 711 (Tex.App.-Dallas 2004, orig. proceeding) (holding that provisions in a city charter created ministerial duties enforceable by mandamus); Duffy v. Branch, 828 S.W.2d 211, 212–13 (Tex.App.-Dallas 1992, orig. proceeding) ...