City of Glenn Heights v. Sheffield Development Company, Inc.--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-99-232-CV

CITY OF GLENN HEIGHTS,

Appellant

v.

SHEFFIELD DEVELOPMENT COMPANY, INC.,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 56414

CONCURRING AND DISSENTING OPINION

I agree with the majority s analysis of the effect the adoption of the revised zoning ordinance had on the landowner s property. I disagree with other parts of the opinion.

re-zoning and prejudgment interest

Based on the issues presented to us, I join that part of the majority opinion upholding the award of compensation for damages due to the re-zoning of the property by the ordinance of April 27, 1998, plus prejudgment interest from that date. I disagree with the conclusion that affirms part of the judgment, reverses part, and remands the cause for more proceedings. Affirming the judgment for damages will be the law of the case not subject to change by the trial court. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); see also Thomas v. Collins, 860 S.W.2d 500, 502 (Tex. App. Houston [1st Dist.] 1993, writ denied) (El Paso Court of Appeals' reversal of trial court's dismissal on the pleadings in a transfer case was "law of the case" and binding on trial court on remand). In light of other considerations I will discuss hereafter and in light of the fact that the cause is being remanded for further proceedings, I would simply rule on the issues presented without affirming that part of the judgment. On remand the trial court s hands would not be tied.

moratorium

I also disagree with that part of the opinion that remands for trial an issue of damages due to the moratorium. The opinion renders judgment that the moratorium did not, as a matter of law, substantially advance a legitimate governmental interest. Acknowledging the validity of City of Dallas v. Crownrich, the majority nevertheless ignores its teachings. City of Dallas v. Crownrich, 506 S.W.2d 654 (Tex. App. Tyler 1974, writ ref d n.r.e.). Under these facts, I would follow Crownrich and deny any recovery based on the moratorium period.

Furthermore, if the actual re-zoning of the property substantially advanced a legitimate governmental interest, as we find and as the trial court found, then under these circumstances the moratorium achieved the same result. The majority would be on more sound footing by finding that the moratorium was valid, then applying the Mayhew analysis to determine if, as in the case of the re-zoning itself, the moratorium unreasonably interfered with Sheffield s right to use and enjoy the property. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex. 1998).

The majority faults the city council for not voting once the city had all the information it needed to make a decision, specifying that date as April 21, 1997. On that date, however, the council returned the issue to P&Z for further consideration. Does the majority hold that April 21 was the date of another taking of another interest in the property? Little guidance is provided about when or how much compensation Sheffield is due for the damaging by moratorium. Even assuming that the majority is correct in deciding that the property was damaged by the moratorium of April 21, 1997, because the interest taken in this instance is the same interest taken by the later zoning change, I would hold that Sheffield is entitled, at most, to begin prejudgment interest on April 21, 1997, on the amount of damages found by the jury. That is to say, under this theory, the taking occurred on the date the moratorium became unreasonable rather than on the date the zoning was changed. // Another trial on damages is unnecessary.

declaratory judgment

Sheffield s point on appeal asserts that a plat submitted during a time the moratorium had expired was deemed approved, as a matter of law, when the city did not act on it within 30 days. Although the point presents a legal question, the majority merely sustains the issue and remands it for further proceedings. Again, no guidance is given on a critical point. Can Sheffield prevail on approval of the plat (thereby gaining the right to develop the property under the former zoning) and recover damages for the moratorium and re-zoning? By affirming the judgment for damages and remanding the declaratory judgment issue, we have set up that possibility. //

If we were to determine that the plat was not approved as a matter of law, we could render judgment for the damages found by the jury plus prejudgment interest. If we determined that the plat was approved as a matter of law, the city s issue and all of Sheffield s other issues are moot and judgment would be rendered approving the plat. The only issue left undecided would be whether Sheffield is entitled to attorney s fees and expenses under the Declaratory Judgment Act.

For these reasons, I disagree with the majority s failure to adequately address this issue.

BILL VANCE

Justice

Concurring and dissenting opinion delivered and filed October 24, 2001

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