Lamar Corp. v. City of Longview

• Decision Date: 21 November 2008
• Docket Number: No. 06-08-00060-CV.,06-08-00060-CV.
• Citation: Lamar Corp. v. City of Longview, 270 S.W.3d 609 (Tex. App. 2008)
• Parties: The LAMAR CORPORATION, Appellant, v. The CITY OF LONGVIEW, Texas, Appellee.
• Court: Texas Court of Appeals

270 S.W.3d 609

The LAMAR CORPORATION, Appellant, v. The CITY OF LONGVIEW, Texas, Appellee.

No. 06-08-00060-CV.

Court of Appeals of Texas, Texarkana.

Submitted: October 29, 2008.

Decided: November 21, 2008.

Rehearing Overruled December 16, 2008.

Michael G. Carroll, Michael G. Carroll, PC, Tyler, TX, for Appellant.

Gary Shaver, Boon, Shaver, Echols & Coleman, PLLC, Longview, TX, for Appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice CARTER.

The City of Longview Director of Planning (Director) denied the Lamar Corporation's (Lamar) application for work permits on three of its billboards. Lamar appealed the Director's decision to the City of Longview Zoning Board of Adjustment (Board) and, based on the argument that an unconstitutional taking of private property without just compensation would result, requested a variance of a city ordinance requiring removal of the billboards. The Board denied to apply the variance, affirming the Director's decision. Lamar filed a suit for declaratory judgment in the district court. Through resolution of cross motions for summary judgment, the district court affirmed the Board's decision, and this appeal ensued. We affirm the district court's summary judgment on the unconstitutional taking issue. However, we dismiss the remaining appeal for want of jurisdiction.

I. Factual and Procedural History

A. Basic Overview of Issues and Ordinances

Within 1,500 feet of Heritage Plaza Park, Lamar erected and maintained three off-premises outdoor billboard signs. Thereafter, the City of Longview (City) passed an ordinance prohibiting billboards within 1,500 feet of a public park. LONGVIEW, TEX., REV. ORDINANCES ch. 85, art. III, § 85-60 (2003). Lamar's billboards were grandfathered in and were allowed to remain under a "nonconforming sign" status.

Nonconforming signs "need not be reconstructed," but are to be "kept in good repair and maintained in a safe condition." LONGVIEW, TEX., REV. ORDINANCES ch. 85, art. IV, § 85-80 (2003). While no sign can be altered until a permit has been issued, "[n]ormal maintenance, painting, repainting or cleaning of a sign with no structural changes" exempts the need to request a permit. LONGVIEW, TEX., REV. ORDINANCES ch. 85, art. I, §§ 85-4, 85-5 (2003). A nonconforming sign loses its status if it "is dismantled for any purpose other than maintenance operations." LONGVIEW, TEX., REV. ORDINANCES ch. 85, art. IV, § 85-81 (2003).

Without a permit, Lamar dismantled all three signs, repaired or replaced all sign face frames and supporting members connecting the posts, and removed all catwalks on the signs. Additionally, Lamar removed and replaced two supporting posts on one sign and one supporting post on another. The Building Inspection Department sent Lamar a notice of violation, insisting that permits for work on the billboards were required. Lamar applied for the sign permits and described the work as "structure repair." The permits were denied. Finding that Lamar essentially rebuilt its signs, the Director decided Lamar had dismantled its billboard for a reason "other than maintenance operations" and informed Lamar that it was required to take the signs down because it had lost its nonconforming status per section 85-81. Lamar appealed the denial of the work permit to the Board and asked the Board to interpret section 85-81 to determine whether Lamar's signs had in fact lost their status in light of Lamar's argument that it was performing maintenance as required by other city ordinances. Lamar also asked for a variance of section 85-81, arguing that an unconstitutional taking of private property without just compensation would occur if Lamar was required to remove its signs. Lamar was notified of the Board's decision to deny a "request to appeal the interpretation of the sign ordinance."

B. Procedural History in District Court

Thereafter, Lamar filed a petition for declaratory relief in Gregg County District Court to declare: 1) the work done on Lamar's billboards was normal maintenance, which did not require a permit; 2) Lamar's signs did not lose their nonconforming status; and 3) Lamar was not required to remove the signs. In an amended petition, Lamar also asked the trial court to declare section 85-81 unconstitutional as a taking of private property without just compensation if the court determined the ordinance prevented "maintenance operations to the support structures."

The City filed a plea to the jurisdiction which was never heard. It also filed a motion for summary judgment on Lamar's claims for declaratory judgment and summary judgment on the City's counterclaim that Lamar's signs lost their nonconforming status and should be removed. Lamar filed its own motion for summary judgment on its claims, arguing that, since the signs were only dismantled for maintenance operations, they did not lose their nonconforming status. Lamar alternatively argued that, if the City's interpretation of section 85-81 was correct, the ordinance would constitute an unconstitutional taking as applied to it. The trial court denied Lamar's motion for summary judgment granted the City's motion, affirmed the Board's decision that the signs lost their nonconforming status, and ordered the signs be removed.

The standard for reviewing a traditional motion for summary judgment is well established. See Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We review de novo a summary judgment to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. denied). A party moving for traditional summary judgment is charged with the burden of establishing that there are no genuine issues of material fact and it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). When both sides move for summary judgment, the court is to review both sides' summary judgment evidence, determine all questions presented, and render the judgment the trial court should have rendered. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

II. With the Exception of the Unconstitutional Taking Issue, There Is No Subject-Matter Jurisdiction Over This Dispute

Texas law specifies that, because the Board is a quasi-judicial body, the district court sits only as a court of review by writ of certiorari. TEX. LOCAL GOV'T CODE ANN. § 211.011 (Vernon 2008); City of San Antonio v. El Dorado Amusement Co., 195 S.W.3d 238, 249 (Tex.App.-San Antonio 2006, pet. denied); W. Tex. Water Refiners, Inc. v. S & B Beverage Co., 915 S.W.2d 623, 626 (Tex.App.-El Paso 1996, no writ); Bd. of Adjustment of City of Corpus Christi v. Flores, 860 S.W.2d 622 (Tex.App.-Corpus Christi 1993, writ denied); see Currey v. Kimple, 577 S.W.2d 508, 512 (Tex.Civ.App.-Texarkana 1978, writ ref'd n.r.e.) (construing prior statute). This certiorari requirement is an administrative remedy provided by the Texas Local Government Code, which must be exhausted before board decisions may be brought before the courts. El Dorado Amusement Co., 195 S.W.3d at 250. A suit not brought pursuant to statutory provisions is an impermissible collateral attack. Id. (dismissing appellant's appeal not brought by writ of certiorari for lack of subject-matter jurisdiction). When properly brought, the only question which may be raised by a petition for writ of certiorari is the legality of the Board's order. TEX. LOCAL GOV'T CODE ANN. § 211.011(a); City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67, 69 (1945) (construing prior statute); El Dorado Amusement Co., 195 S.W.3d at 250; Bd. of Adjustment of City of Piney Point Village v. Amelang, 737 S.W.2d 405, 406 (Tex.App.-Houston [14th Dist.] 1987, writ denied).

Before we apply the facts of our case to the rule outlined above, we note that one case calls into question the principle that filing a writ of certiorari is a jurisdictional requirement. Teague v. City of Jacksboro, 190 S.W.3d 813 (Tex.App.-Fort Worth 2006, pet. denied). Teague involved an appeal of a condemnation matter governed by a rule similar to Section 211.011. TEX. LOCAL GOV'T CODE ANN. § 214.0012 (Vernon 2008); Teague, 190 S.W.3d at 815. The appeal was effectuated through an action for declaratory and injunctive relief. Relying on an El Paso Court of Appeals decision stating that Section 214.0012 required the filing of a writ of certiorari as a jurisdictional prerequisite, the City of Jacksboro filed a plea to the jurisdiction. Teague, 190 S.W.3d at 815; Martinez v. City of El Paso, 169 S.W.3d 488, 492 (Tex. App.-El Paso 2005, pet. denied) (although court dismissed case due to inadequate briefing, it went on to elaborate there was no jurisdiction over administrative appeal where plaintiff filed petition for bill of review instead of petition for writ of certiorari). The court in Teague denied the plea, reasoning that the Martinez case was in conflict with the Texas Supreme Court's decision in Davis v. Zoning Board of Adjustment of City of La Porte, 865 S.W.2d 941 (Tex.1993). Our review of the overturned decision in Davis reveals that a petition for writ of certiorari was filed. Davis v. Zoning Bd. of Adjustment of City of La Porte, 853 S.W.2d 650, 651 (Tex. App.-Houston [14th Dist.] 1993), rev'd, 865 S.W.2d 941. Moreover, the Texas Supreme Court in Davis merely held that the issuance of a writ of certiorari is not a jurisdictional requirement.¹ Davis, 865 S.W.2d at 942. For these reasons, we disagree with Teague and reassert, based on the abundance of other caselaw addressing...