Schmitz v. Denton Cnty. Cowboy Church

• Decision Date: 10 May 2018
• Docket Number: NO. 02-16-00114-CV,02-16-00114-CV
• Citation: 550 S.W.3d 342
• Parties: Peter SCHMITZ, Sean Pollock, Larry LaDuke, and Becky LaDuke, Appellants v. DENTON COUNTY COWBOY CHURCH and the Town of Ponder, Texas Appellees
• Court: Texas Court of Appeals

550 S.W.3d 342

Peter SCHMITZ, Sean Pollock, Larry LaDuke, and Becky LaDuke, Appellants

v.DENTON COUNTY COWBOY CHURCH and the Town of Ponder, Texas Appellees

NO. 02-16-00114-CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: May 10, 2018

Rehearing Denied June 21, 2018

ATTORNEYS FOR APPELLANTS: ROBERT E. HAGER, M. SHELBY PEARCY, NICHOLS, JACKSON, DILLARD, HAGER & SMIT, L.L.P., DALLAS, TEXAS, GREORY J. SAWKO, SAWKO & BURROUGHS, P.C., DENTON, TEXAS.

ATTORNEYS FOR APPELLEE DENTON COUNTY COWBOY CHURCH: LANCE VANZANT, DORWIN L. SARGENT, III, HAYES, BERRY, WHITE & VANZANT, LLP, DENTON, TEXAS.

ATTORNEYS FOR APPELLEE TOWN OF PONDER, TEXAS: MATTHEW C.G. BOYLE, IRVING, TEXAS.

PANEL: GABRIEL and PITTMAN, JJ.¹

MEMORANDUM OPINION² ON REHEARING

LEE GABRIEL, JUSTICE

We issued our opinion and judgment in this appeal on August 31, 2017. Appellants Peter Schmitz, Sean Pollock, Larry LaDuke, and Becky LaDuke (collectively, Appellants) filed motions for rehearing and for en banc reconsideration. Appellee Denton County Cowboy Church (the Church) also filed a motion for rehearing. After requesting responses to the rehearing motions, we now grant Appellants' motion for rehearing,³ grant the Church’s motion for rehearing, withdraw our August 31, 2017 opinion and judgment, and issue the following memorandum opinion on rehearing without rebriefing or further argument. See Tex. R. App. P. 49.3.

In this appeal we are asked whether the trial court abused its discretion by denying Appellants' request for a temporary injunction or erred by granting the pleas to the jurisdiction filed by the Church and appellee The Town of Ponder, Texas (the Town) in the context of Appellants' suit for a declaratory judgment, injunctive relief, civil-rights violations, and nuisance injuries arising from the Town’s facilitation of and the Church’s activities at its current and future rodeo arenas. Other than Appellants' declaratory- and injunctive-relief claims directed to the Town’s alleged violations of the Texas Open Meetings Act (TOMA), Appellants failed to raise a clear and unequivocal waiver of the Town’s governmental immunity. The Church established that Appellants did not have standing to enforce the Town’s zoning scheme through declaration or injunction; however, Schmitz demonstrated his standing to seek redress from the Church for his private-nuisance injuries. Finally, Appellants failed to establish on appeal that the trial court clearly abused its discretion by denying their request for a temporary injunction. Therefore, we affirm in part and reverse in part the trial court’s orders and remand limited portions of this case to the trial court for further, consistent proceedings.

I. BACKGROUND⁴

A. SPECIAL-USE PERMIT AND ZONING CHANGE

In 2008, the Church bought a seven-acre tract of land (the original tract) located in the Town, which is incorporated as a Type-A, general-law municipality. See Tex. Loc. Gov't Code Ann. § 5.001 (West 2008). At that time, the original tract was zoned as SF-2—"Single-Family Residential District–2"—which "provides for a minimum residential building site of 8,000 square feet and a minimum living area of 1,200 square feet." Ponder, Tex., Code of Ordinances tit. XV, chap. 154, § 154.03 (2017). This equates to approximately four to five single-family homes per acre.⁵ The Church began conducting weekly "rodeo events" in an outdoor rodeo arena that the Church built on the original tract in 2009.

On January 31, 2014, the Church bought an SF-2, 12-acre tract (the new tract) that adjoined the original tract and was directly north of Appellants' homes, which are similarly located in an area zoned for low-density residences. In 2015, the Church began constructing on the new tract "a 350-foot x 175-foot arena," which would be a building consisting of "over 61,000 square feet." After starting construction, the Church applied for a commercial-building permit, which the Town issued on July 13, 2015. The permit allowed the Church to construct an "OPEN ARENA ON 3 SIDES. FULL CON[C]ESSION-REST ROOM AREA." On July 21, 2015, Appellants by letter requested that the Town revoke the commercial-building permit and that the Town notify the Church to stop construction on the new tract. On August 5, 2015, the Church filed an application for a specific-use permit for a multi-use event center on the new tract.

The Town sent a public-hearing notice to all property owners within 200 feet of the new tract and informed the property owners that the Town’s council, acting as its planning and zoning commission,⁶ would conduct a public hearing on August 24, 2015, to "consider recommendations regarding a specific use permit request" by the Church to build a "Multi Use Event Center" on the new tract:

The Event Center would be used to house among other things, youth ministry, fellowship, and sermons as well as cowboy related rodeo type events, which currently occur and have been occurring for the past several years on [the original tract] in the outdoors, uncovered and uncontained.

The Event Center would be fully enclosed on the South end to shield the adjacent residential neighborhood from nuisances such as bright lights, loud speakers and dust. The West side will have a 4ft bottom "skirt" and open the remaining 10ft. The East side will also have a 4ft bottom "skirt", and additionally will contain a full concession, lounge, and restroom facility. The North end will be fully enclosed to help shield against the elements.

All of the event lighting would be contained within the Event Center, whereas currently in the open air arena that is being used, the lighting spills out into the neighboring community.

The sounds emanating from the speakers can be turned down inside the Event Center and will be muted and more contained, whereas now in the open air arena that is being used, the sounds spill out into the neighboring community.

The Event Center would contain much more of the dust and dirt kicked up at events, whereas currently in the open air arena being used, the dust is stirred up and carried far and wide, including into the neighboring community.

The Town also notified the property owners that the hearing was for the additional purpose of deciding the Town’s recommendation and request for a "zoning change [of the new tract] to AG (Agricultural)."⁷ See Ponder, Tex., Code of Ordinances tit. XV, ch. 154, § 154.58(C)(2) (2017). In the zoning-change notice, the Town recognized that the "surrounding properties to the North, and West [of the new tract] are currently zoned AG" and that the change to the new tract "would be in keeping with rural location and allow for agricultural uses of the property."

The Town then posted a notice that the council would immediately convene in special session after meeting as the commission on August 24, 2015. On its posted agenda, the council stated that it would consider and act on the Church’s application for a specific-use permit and that "[t]he event center is considered to be part of the church and should be allowed under the Federal Religious Land Use and Institutionalized Persons Act" (RLUIPA).

At the noticed meeting, Appellants' attorney and seven adjacent homeowners—including Schmitz, Larry LaDuke, and Pollock—spoke against the zoning change. A Church representative urged the commission to recommend approval of the zoning change to Agricultural. The recommendation to rezone the new tract failed after a two-to-two vote with one abstention.⁸ The commission then considered the Church’s specific-use permit request. Three citizens spoke against the permit, and the Church’s representative addressed some of their concerns. The commission then recommended, by a three-to-one vote with one abstention, "to allow for a specific use permit" for the new tract.

At the conclusion of the commission’s meeting, the Town’s council opened its meeting and considered the zoning change to the new tract and the Church’s request for a specific-use permit.⁹ Two residents again spoke against the zoning request, and the Church’s representative stated that the Church would attempt to address the surrounding neighbors' concerns with the proposed arena on the new tract. The five-member council then unanimously voted to adjourn into "executive session" to "Consult[ ] with Attorney," citing section 551.071 of the government code—part of TOMA. See Tex. Gov't Code Ann. § 551.071 (West 2017). When the council reconvened on the issue, Appellants' attorney spoke against the zoning change and the Church’s representative again urged its approval. Schmitz pointed out to the council that of the notified residents who responded in writing to the notices of the proposed zoning change and specific-use permit, one was unopposed and eight were opposed to their approval. By a three-to-one vote with one abstention, the council approved "the zoning change from SF-2 to AG" for the new tract. The council then voted to approve, by the same vote margin, the requested special-use permit for the Church to build a multi-use event center on the new tract with the following provision: "That the arena be constructed according to the approved plans, designed to mitigate nuisance caused by noise, dust and lighting and that all activities conducted thereon adhere to all existing codes of ordinances."

On September 14, 2015, Appellants filed a protest with the Town, arguing that the special-use permit should be revoked because it was issued in violation of the Town’s ordinances. The Church sought a new commercial-building permit for the proposed arena on the new tract, which the Town issued on October 5, 2015.¹⁰

B. LITIGATION

Before the Town held its August 24, 2015 meeting on the Church’s permit request and zoning change, Appellants filed suit against the Church and the Town. In their petition,¹¹ Appellants requested declarations under the Uniform Declaratory Judgments Act (the UDJA) that the Church’s construction of the arena on the new tract violated the Town’s ordinances in several respects and that the...