Tabrizi v. City of Austin

• Decision Date: 25 April 2018
• Docket Number: No. 08-16-00209-CV,08-16-00209-CV
• Citation: 551 S.W.3d 290
• Parties: Ali and Dona TABRIZI, Appellants, v. CITY OF AUSTIN, Greg Guernsey, in His Official Capacity as Director of Planning and Zoning Department, J. Rodney Gonzales, in His Official Capacity as Acting Director of the Development Services Department, and Charles Lesniak, in His Official Capacity as Environmental Officer for the City of Austin, Appellees.
• Court: Texas Court of Appeals

551 S.W.3d 290

Ali and Dona TABRIZI, Appellants,

v.CITY OF AUSTIN, Greg Guernsey, in His Official Capacity as Director of Planning and Zoning Department, J. Rodney Gonzales, in His Official Capacity as Acting Director of the Development Services Department, and Charles Lesniak, in His Official Capacity as Environmental Officer for the City of Austin, Appellees.

No. 08-16-00209-CV

Court of Appeals of Texas, El Paso.

April 25, 2018

ATTORNEY FOR APPELLEES: Hon. Matthew W. Tynan, Assistant City Attorney, City of Austin—Law Department, P.O. Box 1546, Austin, TX 78767-1546.

ATTORNEY FOR APPELLANTS: B. Russell Horton, George, Brothers, Kincaid & Horton L.L.P., 114 West 7th Street, Suite 1100, Austin, TX 78701.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief JusticeTexas cities enjoy governmental immunity and cannot be sued absent some recognized waiver of that immunity.¹ What recourse, then, does a property owner have when a city applies, or misapplies, its municipal land use regulations so as to deny a fair use of their property? At the extreme, if the City substantially deprives a landowner of all economically viable uses of the property, the City is subject to a constitutional takings claim which overcomes governmental immunity.² If the land use regulation is illegal or unconstitutional, a property owner may seek a declaration to that affect, which also overcomes immunity.³ In this case, the owners of a parcel of land in Austin pursued two other options.⁴ They filed a declaratory judgment action against the city to construe several of its ordinances. Additionally, they sued various city officials claiming they acted ultra vires by misapplying city ordinances. The trial court dismissed both these claims on a plea to the jurisdiction, and further denied the land owners leave to amend their petition.

We agree with the trial court that governmental immunity precludes a declaratory judgment claim against the City of Austin to construe its ordinances. The holding is somewhat academic in this case, however, because we must construe the same ordinances to determine if the land owners have validly asserted an ultra vires claim against several City officials. In doing so, we conclude that the trial court correctly construed the ordinances (and thus correctly dismissed the ultra vires claims). Finally, we conclude the trial court did not err in denying leave to amend, and affirm the judgment below.

BACKGROUND

This case arises from a dispute between the Ali and Donna Tabrizi (the Tabrizis) and the City of Austin (the City) over the Tabrizis' desire to build a house on an undeveloped piece of land. The Tabrizis allege in their last live pleading that they purchased the lot in 2013, which was a .56 acre "remainder" lot from four subdivisions developed around it. Their lot is not itself in a subdivision, nor has it been platted. It has, however, been on the tax roles for more than forty years and is zoned for residential use.

When the Tabrizis investigated obtaining a building permit, they were told by the City that they would need to first obtain a plat, which required them to file a subdivision application. Title 25 of the City’s municipal code governs development. Subdivision and platting regulations are found in Chapter 25-4 of that title. See Austin, Tex. Austin City Code, ch. 25-4 et. seq. (2018) (hereinafter, City Code). But as a part of that application process, the City required the Tabrizis to comply with its environmental restrictions, as found in Chapter 25-8. That chapter includes a section addressing "critical environmental features." Id. at 25-8, § 25-8-281. As it turns out, there is a "seep" on the back end of the Tabrizis' lot which is one type of critical environmental feature referenced in the code.⁵ Eventually, the Tabrizis' proposed a subdivision that divided their property into two lots—one that would remain undeveloped and buffer the seep—and the other to be used for their residence. Nonetheless, the City rejected their application and a further request to obtain a variance from the environmental rules.

The Tabrizis then sought to circumvent the subdivision platting altogether. Under Chapter 25-4, a property is exempt from platting if it (1) is five acres or less, (2) existed in its current configuration on January 1, 1995, (3) was receiving utility services on January 1, 1995, as authorized under the rules of a utility provider, (4) is located on an existing street, and (5) complies with the requirements for roadway frontage. Id . at ch. 25-4, § 25-4-2(D). The only predicate at issue in this case was whether the lot had received utility service on January 1, 1995. The lot abuts a street with curbs and gutters. The Tabrizis contended that the curb and gutter drainage facilities qualified the lot as receiving utility service. The City disagreed and declined to grant an exemption.

The Tabrizis then filed this lawsuit against the City and three of its employees in their official capacity. The Tabrizis' last amended petition seeks a declaration that (1) the requirements of Chapter 25-8 (the environmental rules) do not apply to their subdivision application and that the actions of the several officials were ultra vires by applying 25-8 to their application, and (2) they meet the exception from platting as found in Section 25-4-2 because the lot was "receiving utility service" on January 1, 1995.

The City and its officials filed a plea to the jurisdiction supported in part with the affidavit of Charles Lesniak, the chief environmental officer for the City. The Tabrizis objected to portions of his affidavit. Eventually his entire deposition was attached to the plea to the jurisdiction record. The trial court sustained the objections to Lesniak’s affidavit, but viewed the matter as a legal dispute that could be decided from the petition and the City ordinances. Based on its review, the trial court concluded that it had no jurisdiction to consider a declaratory suit against the City to construe its ordinances. The court also concluded the ultra vires claims failed because the City officials were acting pursuant to their authority under the development ordinance. The Tabrizis sought leave to amend their petition, which the trial court denied. This appeal follows.

STANDARD OF REVIEW GOVERNING LAW

When it applies, governmental immunity protects political subdivisions of the State, including cities, from suit. See Wichita Falls State Hospital v. Taylor , 106 S.W.3d 692, 694 n.3 (Tex. 2003). A governmental unit’s immunity implicates a trial court’s subject matter jurisdiction. Engelman Irrigation Dist. v. Shields Brothers, Inc. , 514 S.W.3d 746, 751 (Tex. 2017). Governmental immunity generally applies to municipalities when they are performing governmental as opposed to proprietary functions. Wasson Interests, Ltd. v. City of Jacksonville , 489 S.W.3d 427, 439 (Tex. 2016) ; City of Austin v. Utility Associates, Inc. , 517 S.W.3d 300, 307-08 (Tex.App.—Austin 2017, pet. denied). Platting determinations are a governmental function. City of Round Rock v. Smith , 687 S.W.2d 300, 302 (Tex. 1985).

As here, a governmental unit may raise its immunity through a plea to the jurisdiction. Texas Dept. of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225-26 (Tex. 2004) ; County of El Paso v. Navar , 511 S.W.3d 624, 629 (Tex.App.—El Paso 2015, no pet.). The function of the plea is "to defeat a cause of action without regard to whether the claims asserted have merit." Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). As the plaintiffs, the Tabrizis carry the burden to demonstrate that the trial court has subject-matter jurisdiction over their claims. Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 540, 542 (Tex. 2003) ; City of El Paso v. Waterblasting Technologies, Inc. , 491 S.W.3d 890, 895 (Tex.App.—El Paso 2016, no pet.). To determine if they have met that burden, we consider the facts alleged in the petition and, "to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties." Whitley , 104 S.W.3d at 542 ; see also Miranda , 133 S.W.3d at 227 ; Bland Independent School Dist. , 34 S.W.3d at 555. "We construe the pleadings liberally, taking them as true, and look to the pleader’s intent." Creedmoor-Maha Water Supply Corp. v. Texas Commn. on Envtl. Quality , 307 S.W.3d 505, 513 (Tex.App.—Austin 2010, no pet.), citing Miranda, 133 S.W.3d at 226-27. If the record includes jurisdictional evidence controverting the pleaded allegations, we take as true all evidence favorable to the non-movant and indulge every reasonable inference and doubt in the nonmovant’s favor. Miranda , 133 S.W.3d at 228 ; Creedmoor-Maha , 307 S.W.3d at 513.

We review de novo the question of whether a plaintiff has alleged facts sufficient to affirmatively demonstrate a trial court’s subject matter jurisdiction, and whether the jurisdictional facts establish a trial court’s jurisdiction (or lack thereof). State Dept. of Highways and Public Transp. v. Gonzalez , 82 S.W.3d 322, 327 (Tex. 2002) ; Bland Independent School Dist. , 34 S.W.3d at 554 ; see also Tex. Natural Res. Conservation Comm'n v. IT-Davy , 74 S.W.3d 849, 855 (Tex. 2002).

DISCUSSION

The Tabrizis raise five issues for our review that contend the trial court erred: in dismissing the claim against the City (Issue One); dismissing the ultra vires claims against the City officials (Issues Two and Three); and in denying them leave to amend their petition (Issues Four and Five). We take each in turn.

The Declaratory Judgment Act does not waive Governmental Immunity to Construe an Ordinance

In their first issue, the Tabrizis contend that the trial court erred in dismissing the claim against the City because a court has jurisdiction to construe a statute against a governmental entity so long as no monetary relief is sought. The Tabrizis' suit seeks a declaration under the Texas Declaratory Judgment Act (the DJA). That act...