Summary
discussing ripeness and citing City of El Paso v. Madero Dev., 803 S.W.2d 396, 400 (Tex. App.—El Paso 1991, writ denied), cert. denied, 502 U.S. 1073, and Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 393 (Tex. App.—Fort Worth 2008, no pet.)
Summary of this case from City of El Paso v. GrossmanOpinion
NO. 02-17-00091-CV
05-17-2018
THE CITY OF FORT WORTH APPELLANT v. CYNTHIA AND ROBERT ALVAREZ, TRACY ARSENAULT, JOHNATHAN AND MICHELLE BAKER, MICHAEL AND KATHY BARTON, STEVE AND LEAH BERRY, MICKY AND KIM BLACKBURN, LINDA AND DONALD BLYTHE, JASON AND JEANNE BORGHESI, ROBERT AND BEVERLY CARDINAL, DOUG CARR, KENDAL AND VICKI CODDINGTON, BILL AND BECKY COOKSEY, STEPHEN AND JENNIFER CZECH, KENNETH AND JEAN DAVIS, OTIS AND HOLLY ANNA DEBOARD, BOBBY AND TINA DOMBROWSKI, KEVIN AND KATHY ELLIS, GERALD AND SUSAN EVANS, JAMES AND KATRINA FLING, STACY AND BENJAMIN FRITCHEN, DANIEL AND SHERRY HALLUM, WILMA AND ERMEL HARDIN, JEREMY AND DEBRA HAYNES, SEAN AND TARA HEADY, MATTHEW AND ANNA HICKS, ELIZABETH AND JASON HIGGINS, CHRIS AND GINA HOLLINGSWORTH, JAMES AND BEVERLY HUDDLESTON, ROYCE AND LESLEY HURST, QUENTON HYTER, JONATHAN AND ERIN INGOLS, JULIE AND ROCKY JACKSON, JAMES AND HEATHER KING, ROGER AND CINDY MACON, PHILIP LONG, BART AND CHRISTINA MCCLUNG, DIANA AND TIM MCCLURE, CONNIE AND RONNIE MCCRARY, BECKY AND MATT MCMASTER, COREY AND JENNIFER MOONEY, BARRY AND CAROLE MOORE, LAURA MOORE, DEREK AND BETH MUELLER, CHARLIE AND JOANIE MYERS, JAMES AND BARBARA NORMAN, KWANG AND HYE PAK, KEITH AND KATHY PATTERSON, JEREMIAH AND AUDREY PATTON, LAND AND JILL PENDLETON, MARTINE PEREZ, SARA AND CHAD POYNTER, JASON AND KRISTIN ROUFF, MIKE AND SHIRLEY SNODGRASS, JEFF AND COURTNEY SPARKS, JAMES AND JIMALEE SPLAWN, BECKY SPURLOCK, ANNIE AND JAMES STELLATO, HEATHER AND SPENCER STROH, SCOTT AND LILITH SUTHERLAND, PAUL AND LYDIA SZYMANKSKI, TOMMY AND KANDY TINE, JAMES AND TABITHA TUCCIARONE, JOSEPH AND CHARLOTTE ULAKOVIC, RICK AND PATRICIA VANDERVEEN, TIM AND PAULA VANNAMAN, EMILY AND JOHN VASEL, CONNIE AND DALTON WHARTON, STEVEN AND REBECCA WOLVERTON, JAMES AND BONNIE WORD, DEB YOUNG, AND DAVID AND DELILAH ZEIGLER APPELLEES
FROM 141ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 141-286802-16 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. Introduction
This case involves a suit against Appellant City of Fort Worth, among others, to prevent the connection of a street to a new subdivision development. The suit was filed by Appellees Cynthia and Robert Alvarez, Tracy Arsenault, Johnathan and Michelle Baker, Michael and Kathy Barton, Steve and Leah Berry, Micky and Kim Blackburn, Linda and Donald Blythe, Jason and Jeanne Borghesi, Robert and Beverly Cardinal, Doug Carr, Kendal and Vicki Coddington, Bill and Becky Cooksey, Stephen and Jennifer Czech, Kenneth and Jean Davis, Otis and Holly Anna Deboard, Bobby and Tina Dombrowski, Kevin and Kathy Ellis, Gerald and Susan Evans, James and Katrina Fling, Stacy and Benjamin Fritchen, Daniel and Sherry Hallum, Wilma and Ermel Hardin, Jeremy and Debra Haynes, Sean and Tara Heady, Matthew and Anna Hicks, Elizabeth and Jason Higgins, Chris and Gina Hollingsworth, James and Beverly Huddleston, Royce and Lesley Hurst, Quenton Hyter, Jonathan and Erin Ingols, Julie and Rocky Jackson, James and Heather King, Roger and Cindy Macon, Philip Long, Bart and Christina McClung, Diana and Tim McClure, Connie and Ronnie McCrary, Becky and Matt McMaster, Corey and Jennifer Mooney, Barry and Carole Moore, Laura Moore, Derek and Beth Mueller, Charlie and Joanie Myers, James and Barbara Norman, Kwang and Hye Pak, Keith and Kathy Patterson, Jeremiah and Audrey Patton, Land and Jill Pendleton, Martine Perez, Sara and Chad Poynter, Jason and Kristin Rouff, Mike and Shirley Snodgrass, Jeff and Courtney Sparks, James and Jimalee Splawn, Becky Spurlock, Annie and James Stellato, Heather and Spencer Stroh, Scott and Lilith Sutherland, Paul and Lydia Szymankski, Tommy and Kandy Tine, James and Tabitha Tucciarone, Joseph and Charlotte Ulakovic, Rick and Patricia Vanderveen, Tim and Paula Vannaman, Emily and John Vasel, Connie and Dalton Wharton, Steven and Rebecca Wolverton, James and Bonnie Word, Deb Young, and David and Delilah Zeigler (collectively, the homeowners), who live in the Newark Ranch subdivision and object to the connection of Edgemon Way from the Newark Ranch subdivision to the Chisholm Springs development.
The homeowners anticipate that the Chisholm Springs development will bring an additional 1,300 residents to the area. The City and the homeowners agree that the Chisholm Springs development is in Wise County. See Tex. R. App. P. 38.1(g) ("In a civil case, the court will accept as true the facts stated unless another party contradicts them.").
The City filed a partial plea to the jurisdiction on some of the homeowners' claims, arguing that the claims were not yet ripe because the subject of the homeowners' lawsuit was a preliminary, not final, plat. The trial court denied the City's plea to the jurisdiction, and this accelerated interlocutory appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2017). We affirm in part and reverse in part.
A plat "refers to a 'small piece of land set apart for some special purpose' and to a 'map or plan of delineated or partitioned ground,'" while a subdivision "refers to the 'division of a thing into smaller parts' and to a 'parcel of land in a larger development.'" Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 532 (Tex. 2016) (quoting Black's Law Dictionary (10th ed. 2014)).
In its reply brief, the City asks this court to take judicial notice of its subdivision ordinance, which it attached to its appellate brief. Accordingly, we do so. See Tex. R. Evid. 204 (providing that a court must take judicial notice of a Texas municipal ordinance "if a party requests it and the court is supplied with the necessary information"); see also SWZ, Inc. v. Bd. of Adjustment of City of Fort Worth, 985 S.W.2d 268, 270 (Tex. App.—Fort Worth 1999, pet. denied) ("Municipal ordinances are interpreted by the same rules of construction that apply to statutes."). The City's subdivision ordinance defines "plat" as "[a] map of a specific land area such as a subdivision, showing the location and boundaries of individual parcels of land subdivided into lots with streets, alleys, easements, etc. drawn to scale."
II. Subject Matter Jurisdiction
A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 387 (Tex. App.—Fort Worth 2008, no pet.) (citing Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). Whether a trial court has subject matter jurisdiction is a question of law that we review de novo. Id. (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002)).
The plaintiff has the burden to plead facts affirmatively showing that the trial court has jurisdiction, and we construe those pleadings liberally in favor of the pleader, look to the pleader's intent, and accept as true the factual allegations in the pleadings. Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do, taking as true all evidence favorable to the nonmovant and indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Id. at 387-88 (citing Miranda, 133 S.W.3d at 228; Bland ISD v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)). If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact question will be resolved by the factfinder. Id. at 388 (citing Miranda, 133 S.W.3d at 227-28; Bland, 34 S.W.3d at 555). If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, however, the trial court rules on the plea to the jurisdiction as a matter of law. Id. (citing Miranda, 133 S.W.3d at 227-28; Bland, 34 S.W.3d at 555).
A. The Homeowners' Pleadings
The homeowners alleged that the City had approved a preliminary plat, "PP-16-007, Chisholm Springs," that was erroneous because it
(1) showed Edgemon Way as connecting to the 70.419-acre tract adjacent to the Newark Ranch subdivision when the street instead ended before reaching the tract and was separated by a .0333-acre
strip of land on the north side of Edgemon Way and another gap of 0.0193 acres on the east side of Drain Drive;
(2) showed the entire development as located within the City's extraterritorial jurisdiction (ETJ) when in reality it was not entirely located therein;
(3) contradicted the City's policy and comprehensive plan with regard to the area's rural residential designation for 1+ acre single-family lots; and
(4) contained other defects pertaining to drainage, flooding, and human waste.
The homeowners alleged that neither Scott Schambacher, Newark Ranch's original developer, nor his company Newark 718, LTD had ever conveyed an easement over the strips of property but instead had conveyed both strips to the Newark Ranch Homeowners Association (NRHOA) in September 2016.
A city's ETJ is the unincorporated area that is contiguous to the municipality's corporate boundaries and that is located within a specified distance of those boundaries depending on the municipality's population. Bizios v. Town of Lakewood Vill., 453 S.W.3d 598, 599 n.1 (Tex. App.—Fort Worth 2014) (citing Tex. Loc. Gov't Code Ann. § 42.021 (West Supp. 2014)), aff'd, 493 S.W.3d at 538; see Tex. Loc. Gov't Code Ann. § 42.001 (West 2008) (explaining that the State's policy is to designate certain areas as municipal ETJ "to promote and protect the general health, safety, and welfare of persons residing in and adjacent to the municipalities").
The homeowners complained that the preliminary plat had been erroneously placed on the planning commission's consent agenda "because [the planning commission] erroneously believed that Edgemon Way provided a second point for ingress and egress" from the neighborhood and because the preliminary plat erroneously showed that the entire development was within the City's ETJ. The planning commission approved the preliminary plat.
According to the City's ordinance, subdivisions containing more than 30 one-family or two-family dwelling units "shall have a platted and constructed secondary ingress and egress to a public street." Further,
[p]rior to plat approval the city shall determine whether the roadway network serving the development to be platted has adequate capacity to accommodate existing traffic, traffic reasonably anticipated from the development, and traffic reasonably anticipated from other developments approved or for which a formal application has been submitted. Adequate connectivity will address internal connectivity as well as external connectivity. This determination shall be based on information provided by the developer in the plat application and supporting studies, unless the study is waived.Neither party offered the preliminary plat, the plat application, or any supporting studies into the record at the hearing. The City attached what appears to be a barely legible copy of the preliminary plat to its appellate brief, but we cannot consider such documents when they do not appear in the record. See Murphy v. Leveille, No. 02-08-00130-CV, 2009 WL 2619857, at *2 n.3 (Tex. App.—Fort Worth Aug. 26, 2009, no pet.) (mem. op.) (stating that an appellate court must hear and determine a case "based on the record as filed and may not consider documents attached as exhibits to briefs").
The homeowners alleged that during the preliminary plat hearings in January and April 2016, the commissioners "commented and recognized that the proposed plat presented a risk to the well-being and safety of the residents of Newark Ranch" based on the increased number of residents using the rural roads, which "have drainage ditches on both sides and do not have a curb, sidewalk[,] or any alternative path for pedestrians to use."
In their lawsuit against the City and others, the homeowners sought relief from "governmental encroachment by the City of Fort Worth in the form of an unlawful attempt to take Plaintiffs['] private property as well as the City's violation of Plaintiffs['] Constitutional Due Process Rights, negligence and lack of jurisdiction." They also sued the City for negligence in the approval of the preliminary plat and complained that the City lacked jurisdiction over a portion of the platted property, which they claimed was outside the City's ETJ. As to their claims against the City, the homeowners asked for a declaratory judgment and a voiding of the planning commission's approval of the preliminary plat.
The homeowners sued Samir B. and Kaushal S. Lapsiwala and their business, XIA Realty, LLC, for fraud, conspiracy to defraud, negligence, and deceptive trade practices. According to the homeowners, XIA Realty owns the tract adjacent to the homeowners' subdivision and attempted to convey an easement to connect the homeowners' subdivision with the Chisholm Springs development. The homeowners alleged that no access easement was ever granted to XIA or its predecessors in interest.
The homeowners complained that the City violated their procedural and substantive due process rights when they received neither proper notice of the preliminary plat hearing nor the opportunity to present their objections to the preliminary plat. The City's partial plea to the jurisdiction did not challenge these claims.
B. The City's Plea to the Jurisdiction
The City filed a partial plea to the jurisdiction on some of the homeowners' claims, arguing that the following claims were not yet ripe: • the takings claim; • the request to void the planning commission's approval; • the request for declaratory relief regarding the boundary line of Edgemon Way and Drain Drive; • the contention that Edgemon Way does not extend to the XIA Realty lot; • the contention that there is no easement or public right-of-way that provides access across the Edgemon Gap; • the contention that the Edgemon Gap and Drain Gap are privately owned properties; and • the contention that the gap areas in question were abandoned or adversely possessed. The City argued that these claims were not ripe because no final plat had yet been approved and because dedication instruments for required points of ingress and egress are not required in the preliminary platting process. The City attached no evidence in support of its plea.
C. The Homeowners' Verified Response to the City's Plea
The homeowners responded that their claims for declaratory relief were ripe because (1) the "adoption of the preliminary plat was a final determination of the Plans Commission," (2) they had exhausted all of their administrative remedies, and (3) a determination of the City's jurisdiction over the tracts was ripe for the court to decide. To their response, the homeowners attached the affidavit of Scott Schambacher, Newark Ranch subdivision's original developer, an interlocal agreement between the City and Wise County, and the affidavit of James C. Fling, an attorney and Newark Ranch subdivision resident, who testified in support of the factual allegations in the homeowners' pleadings and sponsored as exhibits an April 2016 email chain between Fling and various City personnel.
Fling averred that the first preliminary plat for the Chisholm Springs development was denied "for technical reasons," and that the second one—the one at issue here—was approved by the planning commission only after members of the commission "vocally expressed their disagreement with the requirement that they approve the plat and encouraged the Newark Ranch Homeowners to change the process." Fling further averred that "[t]he properties the subject of this suit are located outside the extraterritorial jurisdiction of the City of Fort Worth."
The April 2016 email chain began with Fling's complaint to the mayor, among others, about the preliminary plat's placement on the consent agenda and the advice rendered by the city attorney to the planning commission that they had to approve it. It was followed by a response from one of the city attorneys, explaining that state law did not address preliminary plats but that local government code section 212.005 required planning commissions to approve all plats that conformed with the City's subdivision rules and regulations.
Local government code section 212.005, "Approval by Municipality Required," provides that the municipal authority responsible for approving plats "must approve a plat or replat that is required to be prepared under this subchapter [Subchapter A. Regulation of Subdivisions] and that satisfies all applicable regulations." Tex. Loc. Gov't Code Ann. § 212.005 (West 2016).
Schambacher stated in his affidavit that he was the managing member of Newark 718, LTD and NRHOA's president, that Newark 718 acquired ownership of the portion of land east of Drain Drive in December 2004, and that Newark 718 conveyed the property to NRHOA in September 2016. Schambacher averred that neither he nor Newark 718 had ever granted any easement, right of way, or other conveyance related to the property in question to the Lapsiwalas, XIA Realty, or their predecessors in interest and that no road has ever been built over the property, which is demarcated by fencing.
The interlocal agreement reflects that in May 2010, the City and Wise County agreed to allow the City to regulate subdivision plats located in the portion of Wise County that falls within the City's ETJ and to approve all permits related thereto. See Tex. Gov't Code Ann. § 791.001 (West 2012), § 791.011 (West Supp. 2017) (authorizing local governments to contract with each other); Tex. Loc. Gov't Code Ann. § 242.001 (West 2016) (providing for the regulation of subdivisions in ETJ).
The interlocal agreement defines the City's ETJ through an attachment incorporated by reference but also provides that if the City's ETJ expands, the "City shall continue to be granted exclusive jurisdiction to regulate subdivision plats and approve related permits in its ETJ . . . until Exhibit A to this Agreement is amended to take into account such ETJ expansion." Exhibit A, dated March 2010, illustrates the area constituting the City's ETJ, which covers portions of Wise County. Notably, Exhibit A does not identify the location of the property under dispute here.
D. The City's Reply
The City replied that it had no challenges to the allegations in the homeowners' pleadings and was not relying on any jurisdictional facts besides those within the pleadings.
E. The Hearing
At the hearing on the City's plea, the city attorney asked to approach the bench, stating, "I have got a little packet of information for you," along with a proposed order. The "packet" was not offered into evidence, but the homeowners' counsel acknowledged that he had a copy of the proposed order. The homeowners' counsel then stated that the homeowners did not have a negligence claim against the City, and the trial court granted the City's plea on that claim "[t]o the extent they're suing [the City] for negligence."
The City argued that the homeowners' takings claim was not ripe because nothing had been taken yet and that the rest of the homeowners' claims were not ripe because of the distinction between a preliminary plat—which had been approved but which conveyed nothing and was not recorded—and a final plat requiring further government action that would "have metes and bounds or survey information" and would be a recorded instrument.
The City's subdivision ordinance defines "preliminary plat" as "a formal document showing the detailed concept of the subdivision, presented with the required accompanying material to the plan commission for approval." It defines "final plat" as
The one official and authentic map of any given subdivision of land prepared from actual field measurement and staking of all identifiable points by a surveyor with the subdivision location references to a survey corner or other established reference and all boundaries, corners and curves of the land division sufficiently described so that they can be reproduced without additional references. Angular measurements and bearings shall be accurate to the nearest tenth of a foot. The final plat of any lot, tract or parcel of land shall be recorded in the plat records of the appropriate county.See generally Tex. Loc. Gov't Code Ann. § 212.004(b), (c) (West 2016) (requiring that a plat that will be recorded to be acknowledged "in the manner required for the acknowledgment of deeds," to describe the subdivision by metes and bounds, to locate the subdivision with respect to a corner of the survey or tract or an original corner of the original survey of which it is a part, and to state the dimensions of the subdivision and of each street, alley, square, park, or other part of the tract intended to be dedicated for public use or for the use of purchasers or owners of lots fronting on or adjacent to the street, alley, square, park, or other part of the tract); Tex. Prop. Code Ann. § 12.002(b), (f) (West 2014) (stating that a person commits a misdemeanor offense punishable by confinement in county jail for up to 90 days and up to a $1,000 fine if he files for record in the county clerk's office a plat or replat of a subdivision without the legally-required approvals and documents).
The homeowners' counsel responded that the planning commission did not have jurisdiction because "this does not fall into the ETJ" and that the preliminary plat did not follow the City's zoning requirements and ordinances. The homeowners' counsel also argued that there would be no additional hearing or any further opportunity for the homeowners to be heard with regard to the final plat.
The City's ordinance provides that all final plats shall be administratively approved by the executive secretary except for vacated plats, any replats that create additional single-family or two-family zoned lots, "or if the location or width of interior streets and pedestrian circulation routes are significantly altered."
The trial court asked what could be done with a preliminary plat, and the homeowners' counsel replied that the developer could begin construction and that "they have already started . . . they've already surveyed . . . they're already out there putting -- moving dirt, getting ready to go, people have already crossed this property that's the subject of this suit, so the work has commenced on this already." The city attorney replied that because a preliminary plat does not convey property, if anyone was on the site "doing any kind of construction, they're doing [so] under the color of some other instrument" and that obtaining approval of a final plat is "a long, arduous process where all of those property interests must be proven up," while a preliminary plat expires in two years "unless a certain amount of work has been done and they've asked for an extension."
The city attorney informed the trial court, "I have highlighted relevant portions of the subdivision ordinance, which I've included in the little packet that I provided to you, and I ask that you take judicial notice of the [C]ity's ordinance." The trial court did not respond to the request for judicial notice, and, again, the "little packet" was not offered into evidence and is not a part of the record before us.
The City's ordinance reflects that a preliminary plat is required if there will be dedication or construction of public or private streets, if five or more lots will be platted, or if development of the property is to be platted in phases. A preliminary plat is not recorded and will expire two years from the date of its approval by the planning commission "unless progress towards completion of the project has been demonstrated prior to that expiration date, or a [ordinance-compliant] request for an extension has been made."
A final plat "shall conform to the approved preliminary plat and meet all of the requirements of the plan commission" and "may include all or any portion of the area included in the approved preliminary plat." A final plat usually does not require a public hearing unless there are significant alterations or a replat, and it will be "administratively approved by the plan commission's executive secretary preceding the filing of the plat for record" but not deemed approved until, among other things, "[t]he dedication instrument is completed and signed." See Tex. Loc. Gov't Code Ann. § 212.011 (West 2016) (stating that the approval of a plat is not considered an acceptance of any proposed dedication and does not impose on the municipality any duty regarding the maintenance or improvement of any dedicated parts until the appropriate municipal authorities make an actual appropriation of the dedicated parts by entry, use, or improvement but that the disapproval of a plat is considered a refusal by the municipality of the offered dedication indicated on the plat).
The parties disputed whether a lawsuit could be filed based on reliance on a preliminary plat. The homeowners' counsel asserted that the preliminary plat gave the developer the opportunity to begin construction, while the city attorney argued that the preliminary plat did not give anyone the ability to begin construction and that, for example, construction of infrastructure would not begin until the final plat was approved. The city attorney asserted, "If they are grading on property, it's because they're grading on personal property that either the developer owns or someone else owns and the developer is - -." The trial court interrupted to ask whether a permit was required to do that. The city attorney responded that his guess was that they could because "[w]e're talking about property that's in the [C]ity's ETJ, so we don't have the level of oversight regulation that we do for property that's in the, you know, city limits."
The trial court asked the homeowners' counsel if his clients were seeking an injunction. The homeowners' counsel replied that they were seeking declaratory relief but not an injunction at that point. The city attorney stepped in to add that the homeowners would not be seeking an injunction against the City because the City was not doing anything: "There is no property out there that we're even interested in. Those are not going to be city streets, those are county streets. It is - - if they're going to enjoin anybody, it would need to be the developer . . . ."
When pressed by the trial court, the homeowners' counsel agreed that an injunction might be the best option but that it was "difficult for [his clients] to look down that road," particularly since a bond would have to be filed, causing the trial judge to ask, "You can't get 20 bucks from each one of these people?"
The homeowners' counsel reiterated that the homeowners "ha[d] requested to have some kind of clarification as far as ETJ. The map that's provided, as you see in there, is not very specific. That's what the - - basically, Your Honor, the discovery process will allow us to confirm our claim that there is no - - that the [C]ity did not have jurisdiction over this property. At that point we have other options, we don't have to wait until trial."
The city attorney replied that the claims related to the ownership of the gap areas were not ripe "because further [C]ity action gets to go in and verify" property ownership of the alleged gap areas. He stated,
What happens in the preliminary platting process is the developer presents the [C]ity with a plat, and they say, this is my plan, and then the - - because some plans are very large, a preliminary plat can be final platted in phases, and generally that's what happens.The homeowners' counsel complained that the final plat construction "will be mostly complete before it is final" because the preliminary plat had been approved despite its lack of compliance with the City's ordinances.
And so everybody will get together at the [C]ity and look at all of these property interests and make sure that everything is correct. The definition of final plat includes - - there has to be actually [sic] staking on the ground, so - - before the final plat - - before the final plat is recorded.
The trial court inquired, "Why aren't we suing the guy that's moving the dirt[,] saying you don't have the right to move the dirt yet?" The homeowners' counsel answered that his clients were trying to correct the first problems that arose "after due process was violated by the [C]ity." When asked by the trial court what his clients wanted the court to do, the homeowners' counsel replied that he would like the City's plea to be denied so that his clients could continue the discovery process and "prove up that the [C]ity did not have jurisdiction on this, and at that point we can move forward either with discussions with the [C]ity, or at that point we have other remedies that can come before trial."
The city attorney repeated that the trial court did not have jurisdiction over some of the issues that were not ripe and that the City's plea to the jurisdiction was only a partial plea and was not brought on the homeowners' due process claims.
At the conclusion of the hearing, the trial court denied the City's partial plea to the jurisdiction on all but the homeowners' negligence claim.
III. Discussion
In its single issue, the City argues that the trial court erred by denying its plea to the jurisdiction on ripeness because the subject of the litigation is a preliminary plat, not a final plat. Specifically, the City contends that the homeowners' claims are not ripe because the claims involve surveying and validating property interests for future streets, which—per the ordinance's definition of "final plat"—will occur during the final platting process, not during the preliminary platting process.
The homeowners argue, in response, that the City and the City's planning commission did not have jurisdiction over the land at issue such that the preliminary plat should be vacated or amended to exclude that land and that they exhausted their administrative remedies at the point that the planning commission approved the preliminary plat.
The homeowners argue that a taking occurs when the City "approve[s] the preliminary plat, the taking ensues, and then after the taking has occurred, [the City] reviews it to determine ownership rights." But see Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 105 S. Ct. 3108, 3116 (1985) ("[A] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.").
A. Ripeness Complaints
Ripeness is an element of subject matter jurisdiction. Cherry Hill, 257 S.W.3d at 393 (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S. 1144 (1999)). Specifically, ripeness pertains to a court's power to render the particular relief requested. City of El Paso v. Madero Dev., 803 S.W.2d 396, 400 (Tex. App.—El Paso 1991, writ denied), cert. denied, 502 U.S. 1073 (1992). A case is not ripe when its resolution depends upon contingent or hypothetical facts or upon events that have not yet come to pass. Cherry Hill, 257 S.W.3d at 393 (citing Waco ISD v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000)). The ripeness doctrine is derived in part from the constitutional prohibition against advisory opinions, which in turn stems from separation-of-powers principles. Id. (citing Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998)).
The ripeness doctrine also has a pragmatic, prudential aspect that aims to conserve judicial resources for real and current controversies instead of abstract, hypothetical, or remote disputes. Id. (citing Patterson, 971 S.W.2d at 443; Mayhew, 964 S.W.2d at 928). In the context of land use regulations, for example, a court cannot determine whether a regulation has gone "too far" until it knows how far the regulation goes. City of El Paso, 803 S.W.2d at 398-99, 400 (observing that the ripeness doctrine exists to prevent courts—by avoidance of premature adjudication—from entangling themselves in abstract disagreements over administrative policies and to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties).
Declaratory judgment actions are subject to a ripeness review, and such actions are premature if governmental proceedings remain pending that will affect the parties' respective rights. Cherry Hill, 257 S.W.3d at 393. In Texas Bay Cherry Hill, L.P., the City prevailed on a plea to the jurisdiction against the owner of a low-income apartment complex who brought claims for declaratory judgment, injunctive relief, and inverse condemnation, among others, after the City sued to abate a common nuisance—crime—in the context of an area redevelopment plan and then dismissed the suit. 257 S.W.3d at 385-87. In its lawsuit, Cherry Hill alleged that the nuisance suit had been a sham. Id. at 387. The City prevailed on all of Cherry Hill's requested declarations because those requests expressly related to the City's exercise of eminent domain powers in connection with the City's plan, the plan itself expressly stated that the City would not use its eminent domain powers in connection therewith, and at the time Cherry Hill filed suit, the City had yet to actually exercise any eminent domain power. Id. at 393-94 (stating that Cherry Hill could assert its declaratory judgment action "if and when the City does attempt to exercise its eminent domain power").
Further, to establish a takings claim, a plaintiff must prove (1) the governmental entity intentionally performed certain acts, (2) that resulted in a "taking" of property, (3) for public use. Id. at 395. Takings are classified as either physical or regulatory. Town of Flower Mound v. Rembert Enters., Inc., 369 S.W.3d 465, 477 (Tex. App.—Fort Worth 2012, pet. denied) (op. on reh'g). A physical taking is an unwarranted physical appropriation or invasion of land, while a regulatory taking may occur when a governmental entity either imposes severe economic restrictions on the property owner's use of his property or imposes restrictions that unreasonably interfere with his right to use and enjoy the property. Id.
While a physical invasion may be relatively easy to identify for ripeness purposes, a regulatory takings claim is not "ripe" until the governmental entity charged with implementing a regulation reaches a final decision regarding the application of the regulation to the property. Coble v. City of Mansfield, 134 S.W.3d 449, 458 (Tex. App.—Fort Worth 2004, no pet.) (citing Mayhew, 964 S.W.2d at 929). When a plaintiff fails to allege facts that constitute a taking, dismissal for want of jurisdiction is appropriate, and whether alleged facts are sufficient to constitute a takings claim is a question of law. Cherry Hill, 257 S.W.3d at 395. In Cherry Hill, for example, the trial court correctly granted a plea to the jurisdiction on the apartment complex's inverse condemnation claim when the City's redevelopment plan existed only on paper and would have no effect "unless and until" it was implemented, preventing Cherry Hill from alleging facts constituting a regulatory taking. Id. at 396.
Here, with regard to the homeowners' claim that the City attempted to take their property through governmental encroachment, we agree with the City's position that the approval of a preliminary plat, which transferred no actual ownership interests from anyone to anyone else and imposed no restrictions on the homeowners, did not constitute a taking. Likewise, until the developer attempts to dedicate anything to the City (assuming, for the sake of argument, that the property in question properly lies within the City's ETJ), the homeowners' requests for declaratory relief as to the City with regard to boundary lines, easements, public rights-of-way, title, abandonment, or adverse possession are not ripe because further action—both governmental and nongovernmental, i.e., by the developer—is required. See Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 480 (Tex. 2012) ("We have held that a lack of a direct governmental restriction of the owner's use of her land or a lack of regulatory authority over the land-use decision at issue is dispositive in takings cases."), cert. denied, 569 U.S. 947 (2013). Accordingly, we sustain this portion of City's sole issue.
The homeowners argue that the City "has already admitted that a final decision on PP-16-007 has been made," but that is nothing more than a final decision on a preliminary plat.
But we must still address the City's partial plea to the jurisdiction as to the homeowners' request to void the planning commission's approval of the preliminary plat, which turns on the property's location inside or outside of the City's ETJ.
B. The ETJ Question
In its appellate brief, the City states,
The City has an interlocal agreement with Wise County that permits the City's Plan Commission to entertain plats in Wise County that are in the City's extraterritorial jurisdiction ('ETJ'). (CR119) The Chisholm Springs development is in Wise County. (App. CFW 007).The homeowners respond that
The preliminary plat showed Edgemon Way connecting to a strip of land between Edgemon Way and the Chisholm Spring[s] development, . . . which is not in the extraterritorial jurisdiction of the
City of Fort Worth and the City's Plan Commission has no jurisdiction over same.
This citation is to the interlocal cooperation agreement attached to the homeowners' response to the City's plea to the jurisdiction.
This citation is to a document attached to the City's appellate brief that was not offered or admitted into the record during the hearing in the trial court. See Murphy, 2009 WL 2619857, at *2 n.3.
As set out above in our standard of review, we consider relevant evidence submitted by the parties to resolve the jurisdictional issues raised and take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Cherry Hill, 257 S.W.3d at 387-88.
The City attached no evidence to its plea to the jurisdiction and offered no evidence into the record at the hearing on its plea. To their response to the City's plea, the homeowners attached Fling's affidavit, in which their counsel and a fellow homeowner averred, "The properties the subject of this suit are located outside the extraterritorial jurisdiction of the City of Fort Worth . . . [t]he properties are not part of the City's extraterritorial jurisdiction."
The interlocal cooperation agreement, which the homeowners attached to their response to the City's plea, states that the City and Wise County agreed for the City to have exclusive jurisdiction to regulate all subdivision plats and approve all related permits in the City's ETJ and that
[f]or the purposes of this agreement, City's ETJ is described by the area indicated on Exhibit A, attached hereto and made part hereof by this reference. The recognition of the ETJ shall not be deemed an admission by City or County in any dispute with any other person or municipality regarding the boundaries of City's ETJ.
The agreement also provided that if the City's ETJ expanded, the City would continue to have exclusive jurisdiction to regulate subdivision plats and approve related permits until Exhibit A could be amended to take into account the ETJ's expansion and that if the City's ETJ contracted, the County would have exclusive jurisdiction to regulate subdivision plats and approve related permits in the areas of the County no longer in the City's ETJ until Exhibit A could be amended to take into account the ETJ's reduction.
Exhibit A, dated March 2010, shows the City's ETJ in Wise County, as well as waterways, municipal boundaries, and county boundaries, but it does not show the location of the property under dispute in this case. Despite the city attorney's reference during the hearing to "a little packet of information" and his request for judicial notice of the City's subdivision ordinance, we have no indication as to what documents from the City, if any, the trial court may have considered before denying the City's plea.
The trial court denied the City's plea with regard to the homeowners' request to void the planning commission's approval of the preliminary plat. If the controverted property falls, as alleged by the homeowners, outside of the boundaries of the interlocal agreement between the City and Wise County, which provides that Wise County has exclusive jurisdiction to regulate subdivision plats "in areas in the County that are no longer in the City's ETJ," then the City's planning commission lacked jurisdiction to act, and its approval of the preliminary plat would be of no effect. See Tex. Loc. Gov't Code Ann. § 212.0025 (West 2016) (stating that a municipality's authority to regulate plats or subdivisions in its ETJ "is subject to any applicable limitation prescribed by" an interlocal agreement under section 242.001), § 242.001(e) ("In an unincorporated area outside the extraterritorial jurisdiction of a municipality, the municipality may not regulate subdivisions or approve the filing of plats, except as provided by The Interlocal Cooperation Act, Chapter 791, Government Code."); Town of Lakewood Vill., 493 S.W.3d at 532 (observing that local government code sections 212.002 and 212.003 combine to "expressly give all municipalities authority to enforce rules and ordinances 'governing plats and subdivisions of land' within their ETJs" (emphasis added)).
In its appellate brief, the City states that the issue of whether the subject property is within the City's ETJ "is ripe for litigation" and claims that it did not include this issue in its plea to the jurisdiction. But in its plea to the jurisdiction (and also in its appellate brief), the City argues that the homeowners' "request to void the Plan Commission's approval" is not ripe, even though this determination turns on whether the property is within the City's ETJ. The City also asserts in its appellate brief that "the subject property is within the City's ETJ," but because this fact is contradicted by the homeowners in their brief (and in their pleadings and evidence), we may not accept the City's assertion as true. See Tex. R. App. P. 38.1(g).
Because the City brought forth no evidence to contradict the homeowners' allegations as to the disputed property's location outside of the City's ETJ, and because we must view the homeowners' allegations and evidence in the light most favorable to them, we conclude that the trial court did not err by denying this portion of the City's plea. Accordingly, we overrule the remainder of the City's sole issue.
IV. Conclusion
We affirm the portion of the trial court's order as to the question of whether the disputed property is within the City's ETJ such that the City and its planning commission have jurisdiction over it. We reverse the portion of the trial court's order with regard to the City's takings claim and the homeowners' claims that relate to the ownership and boundaries of the disputed property because those claims are not yet ripe, and we remand this case to the trial court for further proceedings.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
CHIEF JUSTICE PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ. DELIVERED: May 17, 2018