Brooks Hardee, as Trustee for and on behalf of The Farmco Trust, En Seguido, Ltd., Jack Rich, as Independent Executor of Cliff E. Morton, John M. Schaefer, CEM Investments, and SWLN/Delaware, Inc. v. The City of San Antonio--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00740-CV
Brooks HARDEE, as Trustee for and on the behalf of The Farmco Trust, En Seguido, Ltd.,
Cliff E. Morton, John M. Schaefer, CEM Investments, Inc., and SWLN/Delaware, Inc.,
Appellants
v.
THE CITY OF SAN ANTONIO,
Appellee
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CI-05439
Honorable Martha B. Tanner, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: May 21, 2008

 

AFFIRMED

Brooks Hardee, as Trustee for and on the behalf of The Farmco Trust, En Seguido, Ltd., Cliff E. Morton, John M. Schaefer, CEM Investments, Inc., and SWLN/Delaware, Inc. (the "Developers") appeal the trial court's order granting a plea to the jurisdiction filed by the City of San Antonio. For purposes of this appeal, the Developers have substantially narrowed the issue presented to "[w]hether the Developers' request for a declaratory judgment that they are not required to comply with Ordinance 86715 is ripe." We affirm the trial court's order.

Procedural History and Issue Presented on Appeal

The crux of the underlying dispute is whether the Developers are entitled to vested rights with regard to the development of several tracts of land (the "Property"). (1) In their petition, the Developers request an injunction to prevent the City from enforcing "any of the Development Ordinances" against the Property and a declaration that "any Development Ordinances . . . passed or otherwise made effective after April 13, 1978, and/or November 9, 1983, are not effective against and may not be applied to or enforced against the development of the Property." (2) In its plea to the jurisdiction, the City asserted that these claims were not ripe for judicial consideration because the City had never made a decision regarding the application of the various ordinances to the development of the Property. The City explained that no decision had been made because the determination of whether vested rights exist to prevent the application of such ordinances to a development is dependent upon the project sought to be developed. The City further asserted that the Developers failed to provide the City with information regarding the proposed project so that a determination regarding vested rights could be made. The trial court granted the plea to the jurisdiction, and the Developers appeal.

 
Discussion

Subject-matter jurisdiction is essential to the authority of a court to decide a case. Save Our Springs Alliance v. City of Austin, 149 S.W.3d 674, 680 (Tex. App.--Austin 2004, no pet.). A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of a specific cause of action. Id. Because subject-matter jurisdiction presents a question of law, we review the district court's decision de novo. Id.

A declaratory judgment is appropriate only if there is a justiciable controversy about the rights and status of the parties and the declaration will resolve the controversy. City of Helotes v. Miller, 243 S.W.3d 704, 708 (Tex. App.--San Antonio 2007, no pet.). The constitutional roots of justiciability doctrines, such as ripeness, lie in the prohibition against Texas courts giving advisory opinions. Id. A case is not ripe when its resolution depends on contingent or hypothetical facts, or upon events that have not yet come to pass. Save Our Springs Alliance, 149 S.W.3d at 683.

Chapter 245 of the Texas Local Government Code creates a system by which property developers can rely on the land-use regulations in effect at the time an original application for a permit is filed. Id. at 681. In pertinent part, section 245.002 of the Code requires a regulatory agency to consider the approval, disapproval, or conditional approval of an application for a permit based solely on the regulations in effect at the time a plan for development of real property or plat application is filed with a regulatory agency. Tex. Loc. Gov't Code Ann. 245.002(a)(2) (Vernon 2005). In City of San Antonio v. En Seguido, Ltd., 227 S.W.3d 237, 242-43 (Tex. App.--San Antonio 2007, no pet.), this court clarified that rights vest for purposes of section 245.002 in a particular project and are no longer vested if the project changes. (3)

In this appeal, the Developers do not contend that the City erroneously approved, disapproved or conditionally approved any permit. The only issue the Developers argue is ripe for consideration is their contention that they are not required to submit an application pursuant to Ordinance 86715 before the City must determine if they have vested rights. At the hearing before the trial court and in its brief, however, the City agreed that no such application was required but asserted that the Developers had to provide information, either formally or informally, identifying the nature of the proposed project in order for the City to make a decision regarding the Developers' vested rights. See id. (noting rights vest in a particular project and are no longer vested if the project changes).

The Austin court has directly spoken to the action a regulatory agency must take before a claim is ripe for judicial determination pursuant to Chapter 245. Save Our Springs Alliance, 149 S.W.3d at 683-84. The Austin court stated:

A regulatory agency ought to have the opportunity to make a final determination as to which set of land-use regulations apply to a specific plat before a court intervenes. The individual and particular nature of this statutory scheme requires that individual permits be issued or denied for a controversy to be ripe for adjudication. Otherwise, a court would be ruling on a hypothetical application of land-use regulations to plats and interfering with the functions of land-use regulatory agencies before they would have the opportunity to perform those functions themselves.

 

Id. at 684.

In this case, the Developers submitted a letter to the City seeking to verify "that the City Tree Ordinance regulations do not apply to four (4) development projects." The letter stated that the four projects were "the subject of permits that were filed, or applied for and approved by the City, before the City Tree Preservation Ordinance was adopted." The only detail provided with regard to the four projects was a chart containing the following information:

Project

Permit

Approval Date

1. Villages of West Creek Sewer Contract August 24, 1984 2. Southton Park Plat June 14, 1927 3. Loop 410 & IH35 Tract Zoning Application/Ordinance December 13, 1973 4. Lakeside POADP April 17, 1987

This letter was not an application for a permit that the City was required to approve, disapprove, or conditionally approve pursuant to Chapter 245. The City's response was that the City's process for reviewing projects to determine if they are exempt is through a vested rights permitting process. This is the process the Developers have exclusively focused on in this appeal, contending that they are not required to apply for such a permit because Ordinance 86715, which created the procedure, was passed after they claim their rights were vested. In its letter, the City explained that the vested rights permitting process enables the staff to verify the vesting "by confirming that the initiation date of the vested rights began before the ordinance was implemented, that the project is the same as the one that the vested rights is based on, that there has not been a change of use and that there is not an increase in density." Alternatively, the City noted that the Developers would be permitted to rely on a tree permit if it was issued before the ordinance was in effect and was still valid. In response to the City's letter, the Developers did not seek through any means, either formal or informal, to obtain a decision from the City with regard to whether the tree ordinance would apply to the project referred to as "Lakeside."

At the time the Developers filed the underlying lawsuit, the City had not been given the opportunity "to make a final determination as to which set of land-use regulations apply" to the project proposed to be developed on the Property. (4) Id. at 684. Nor had the City issued or denied any individual permits based on the application of specific land-use regulations. See id. Moreover, the record established that the City had not mandated compliance with Ordinance 86715 by the Developers before the City would issue or deny a permit or make some other final determination, and Chapter 245 does not contain any provision requiring the City to provide an advisory opinion with regard to the existence of vested rights. Therefore, no claim for declaratory or injunctive relief seeking to enforce Chapter 245 is ripe for judicial consideration. (5) See id. Accordingly, the trial court did not err in granting the plea to the jurisdiction.

Conclusion

The trial court's order is affirmed.

Alma L. L pez, Chief Justice

1. Although the Developers seemingly lump all of these tracts together, the evidence presented to the trial court reveals that different tracts have different histories in regard to their proposed development.

2. The Developers also request a declaration that the Unified Development Code and zoning provisions adopted pursuant to that Code are void. Under the express terms of the trial court's order, these claims remain pending before the trial court.

3. We note that the injunctive relief requested by the Developers appears to be inconsistent with our prior holding since it seeks to enjoin the enforcement of ordinances against the "Plaintiffs' Property" and not a specific project. Similarly, the declaratory relief requests a declaration relating to the "development of the Property" as opposed to a specific project.

4. The absence of such a determination makes this case distinguishable from the facts presented in City of Helotes v. Miller, 243 S.W.3d 704 (Tex. App.--San Antonio Oct. 3, 2007, no pet.). In Miller, the City of Helotes passed resolutions and development controls specifically targeted at preventing the intended development of the project in question, thereby making a determination with regard to the development. 243 S.W.3d at 706-07. See also, Continental Homes of Texas, L.P. v. City of San Antonio, No. 04-07-00038-CV, 2008 WL 1733231, at * 9 (Tex. App.--San Antonio, April 16, 2008, no pet. h.). Continental is distinguishable because the City had already made a determination about the project when they issued a vested rights permit. Subsequently, the City sued to enforce the tree ordinance against the project, and, in fact, obtained a permanent injunction against the developers.

5. We note the trial court's order addressed the ripeness of the claims asserted in the Developers' petition as opposed to the narrow claim the Developers contend is ripe in this appeal.