Opinion issued April 17,=20
2008
In The
Court of=20
Appeals
For The
First =
District of=20
Texas
____________
NO.=20
01-05-00904-CV
____________
HOWETH INVESTMENTS, INC. AND JACK =
HOWETH, AS=20
TRUSTEE FOR THE 881 BROGDEN TRUST AND THE 901 BROGDEN TRUST, =
ASSIGNEES OF=20
HOWETH INVESTMENTS, INC., Appellants
V.
THE CITY OF HEDWIG VILLAGE, THE CITY OF =
HEDWIG=20
VILLAGE PLANNING & ZONING COMMISSION, S. FRANK WHITE, ROBERT =
A.=20
WIENER, NORMAN A. WARD, AND KATHERINE VAZQUEZ,=20
Appellees
On Appeal from 189th District=20
Court
Harris County, =
Texas
Trial Court Cause No.=20
2000-53368
O P I N I O=20
N
<=
/SPAN>Appellants, Howeth Investments, Inc. and =
Jack=20
Howeth, as trustee for the 881 Brogden Trust and the 901 Brogden =
Trust,=20
assignees of Howeth Investments, Inc. (collectively, the =E2=80=9CHoweth =
parties=E2=80=9D), appeal from=20
a final, take-nothing judgment rendered after a bench trial. We =
determine=20
(1) whether the Howeth parties have timely challenged all bases on =
which=20
the trial court=E2=80=99s judgment rests; (2) whether the trial =
court erred in=20
denying mandamus, injunctive, and declaratory relief to compel =
appellee=20
the City of Hedwig Village Planning and Zoning Commission =
(=E2=80=9Cthe=20
Commission=E2=80=9D) to issue certificates of no action =
on the Howeth parties=E2=80=99 plat =
applications for two=20
lots of property located within the City of Hedwig Village =
(=E2=80=9Cthe City=E2=80=9D);=20
and (3) whether an ordinance of the City that the Commission =
interpreted=20
to deny the Howeth parties=E2=80=99 plat applications for subdividing these two properties =
was=20
unconstitutionally vague, facially or as applied. We=20
affirm.
Background
<=
/SPAN>Jack=20
Howeth was a real-estate developer and also the former mayor of a=20
neighboring municipality. =
He was also=20
the president of Howeth Investments, Inc. and the trustee for the =
two=20
trusts named above, which in turn were assignees of Howeth =
Investments,=20
Inc. Howeth Investments, Inc. was in the business of purchasing =
and=20
developing real estate.
<=
/SPAN>Two=20
adjacent, undivided properties within=20
the City are involved in this lawsuit. Both properties are located =
on=20
Brogden Street. One of the properties was located at 901 Brogden, =
which=20
the Howeth parties designate as =E2=80=9Cthe Jennings =
property.=E2=80=9D The other was located at 881 Brogden, =
which the=20
Howeth parties designate as =E2=80=9Cthe Dorsey property.=E2=80=9D =
We refer to the=20
individual pieces of property as the Jennings property and the =
Dorsey=20
property, while we refer to them together as =E2=80=9Cthe Brogden =
properties.=E2=80=9D=20
<=
/SPAN>In=20
March 2000, Howeth Investments, Inc. contracted to purchase the =
Brogden=20
properties. The contracts =
for sale of=20
the Brogden properties provided that Howeth Investments, Inc. did =
not have=20
to purchase the respective piece of property if it was unable to =
obtain=20
approval of a subdivision plat dividing the Brogden properties =
into three=20
lots. ![3DFootnote](3D"")
<=
/SPAN>In=20
June 2000, the Brogden properties=E2=80=99 sellers submitted =
preliminary plat=20
applications (=E2=80=9Cthe June preliminary plat=E2=80=9D =
applications) to the Commission=20
for subdivision of the Brogden properties. The June preliminary =
plat=20
applications proposed subdividing each property into two lots. The =
only=20
way to subdivide the Brogden properties separately while still =
meeting the=20
City=E2=80=99s other development requirements was to subdivide =
each property into=20
two sub-lots, with one of the subdivided lots on each piece of =
property=20
having a =E2=80=9Cflag=E2=80=9D configuration. A flag =
configuration is one in which one=20
lot is behind the other relative to the street, so that the back =
lot has=20
access to the street only by virtue of a long driveway; the =
driveway=20
appears from the air to resemble a flagpole, and the rear lot =
appears to=20
be the flag atop the pole. In a flag configuration, the owner of =
the rear=20
lot has fee simple title to the =E2=80=9Cflag pole=E2=80=9D =
driveway.
<=
/SPAN>The=20
Commission scheduled a hearing for July 5, 2000 to consider the June preliminary plat=20
applications. At the hearing, the Howeth parties presented the=20
applications on behalf of the property owners. The Howeth parties =
relied=20
on section 16-38 of the City=E2=80=99s Code of Ordinances for =
approval of the=20
flag-lot configuration:
Sec. 16-38. Lots, =
general=20
provisions.
The purpose of =
this section=20
is to provide general overall guidelines for the establishment of=20
individual lots within a subdivision.
. . .
(c)Key or Flag =
Shaped Lots.=20
Unless unavoidable, key or flag shaped lots shall not be =
permitted.=20
. . . .
Code of Ordinances, City of Hedwig =
Village =C2=A7 16-38=20
(Ord. No. 345, =C2=A7 3.13, 4-11-91).=20
Much of the =
hearing=20
focused on the meaning of =E2=80=9Cunavoidable=E2=80=9D in section =
16-38. A ruling on the=20
applications was deferred until the Commission=E2=80=99s next =
regular meeting=20
(August 2, 2000), so that the City=E2=80=99s attorney, Alan=20
Petrov, could research the meaning of =
=E2=80=9Cunavoidable=E2=80=9D and=20
so that the City=E2=80=99s Building Official, Paul Addington, =
could give input on=20
the applications.
<=
/SPAN>On=20
July 15, 2000, the Howeth parties sought certificates of no action =
from=20
the Commission because it had allegedly not acted timely on the =
June=20
preliminary plat applications under the timelines established by =
the Texas=20
Local Government Code. See Tex. Loc. Gov=E2=80=99t Code =
Ann.=20
=C2=A7 212.009(a) (Vernon 1999) (=E2=80=9CThe municipal =
authority responsible for=20
approving plats shall act on a plat within 30 days after the date =
the plat=20
is filed. A plat is considered approved by the municipal =
authority=20
unless it is disapproved within that period.=E2=80=9D) =
(emphasis added);=20
id. =C2=A7 212.009(d) (Vernon 1999) (requiring that =
planning=20
commission issue certificate of no action upon request if =
commission fails=20
to approve plat within 30-day period). The City=E2=80=99s attorney =
denied the=20
request, asserting that section 212.009 did not apply to =
preliminary=20
plats.
<=
/SPAN>At=20
the August 2, 2000 Commission hearing, the Howeth parties again=20
participated in a discussion of the June preliminary plat =
applications.=20
As at the =
July 15=20
hearing, much of the August 2 hearing focused on the meaning of=20
=E2=80=9Cunavoidable=E2=80=9D in section 16-38. Petrov told the Commission that the =
term=20
unavoidable was not defined in the ordinance, that no case law or=20
legislative history shed light on its meaning, and that it was =
thus =E2=80=9Cin=20
the discretion of=E2=80=9D the Commission =E2=80=9Cto come to an =
agreement on the=20
definition of=E2=80=9D the term. Petrov advised =
that he saw=20
two reasonable definitions of unavoidable: (1) that development =
of=20
the land was otherwise impossible, an interpretation requiring =
denial of=20
the preliminary plat applications because the lots could be =
developed with=20
one home per property, and (2) that subdivision of the land =
was=20
otherwise impossible, an interpretation that could allow approval =
of the=20
preliminary plats because neither of the Brogden properties could =
be=20
subdivided into anything but flag lots without violating the =
City=E2=80=99s length=20
and width requirements for lots. Although Petrov believed that =
interpretation (2)=20
was the more logical, he advised the Commission that it was in =
=E2=80=9Cthe =
Commission=E2=80=99s discretion=20
to decide what =E2=80=98unless unavoidable=E2=80=99 meant, noting =
that whatever conclusion=20
the Commission reached, a few words should be added to the =
sections of the=20
Code to provide clarification.=E2=80=9D A divided Commission thereafter voted to =
deny the=20
June preliminary plat applications. Those voting to deny the =
applications=20
were appellees S. Frank White, the Commission Chairman, and Robert =
A.=20
Weiner and Norman E. Ward, Commission members. When polled, White and Ward expressed that =
they did not=20
want flag lots for aesthetic, density, or other reasons that did =
not=20
involve interpretation of =E2=80=9Cunavoidable,=E2=80=9D =
although Weiner=E2=80=99s statement (and =
a later statement=20
by White) indicated that they had adopted interpretation (1) of=20
=E2=80=9Cunavoidable.=E2=80=9D A written decision later sent to =
the Howeth parties=20
indicated that the decision had been based in part on the flag =
lots=E2=80=99 not=20
having been unavoidable, as the Commission had interpreted that=20
term.
<=
/SPAN>On=20
August 13, 2000, the Brogden properties=E2=80=99 sellers =
simultaneously=20
submitted new preliminary =
and final=20
plat applications for the Brogden properties (=E2=80=9Cthe August =
preliminary and=20
final plat=E2=80=9D applications). Rather than proposing flag =
configurations, the=20
August preliminary and final plats gave the rear subdivided lots =
on each=20
of the Brogden properties ingress and egress by virtue of =
permanent=20
easements over the front subdivided lots. The subdivision =
configuration=20
for each lot was similar to that submitted in the June preliminary =
plats,=20
in that a long driveway resembling a flagpole was still used for =
access to=20
the rear lot; however, the sizes of the two sub-lots were modified =
in=20
recognition of the use of an easement, rather than fee simple =
title, for=20
that driveway. At the Commission=E2=80=99s August 30, 2000 =
meeting, after a=20
discussion including the Howeth parties, a divided Commission =
voted to=20
deny the August preliminary =
and final=20
plat applications. Those =
voting=20
against the applications were White, Ward, Weiner, appellee Kathy =
H.=20
Vazquez (a Commission member), and two other Commission members =
who have=20
not been sued.
<=
/SPAN>Some=20
time after the August 30 hearing, the City imposed a moratorium on =
plat=20
applications in order to discuss the issue of flag lots. In March =
2001,=20
the City Council of Hedwig Village amended the City=E2=80=99s Code =
of Ordinances=20
to prohibit flag lots entirely. Code of Ordinances, City of Hedwig =
Village=20
=C2=A7 74-123(3) (Ord. No. 498, =C2=A7 1(16-38), =
3-29-2001).
<=
/SPAN>In=20
September 2000, during the =
moratorium=20
on plat applications and despite the rejection of both the June=20
preliminary plat applications and the August preliminary and final =
plat=20
applications, Howeth Investments, Inc. nonetheless purchased the =
Dorsey=20
and Jennings properties. =
The=20
appellant trusts eventually obtained title to the properties. =
In May 2001, the Brogden property =
sellers assigned=20
their interest in the June preliminary plat applications and the =
August=20
preliminary and final plat applications to the appellant=20
trusts.
<=
/SPAN>The=20
Howeth parties eventually commenced development of a home on the =
front=20
portion of the Jennings and Dorsey properties (what the Howeth =
parties=20
considered to be the front lots of each piece of property, as they =
proposed subdividing them). The Howeth parties alleged that, =
during the=20
building process, they were =
singled=20
out by harsh or retaliatory enforcement of ordinances against =
their=20
construction and their realtor, by delay in the approval of =
building=20
permits for the construction, and by the filing of allegedly =
wrongful lis=20
pendens on the Brogden properties. As of the time of trial, the =
Howeth=20
parties had not yet completed either home on either of the Brogden =
properties.
<=
/SPAN>In=20
October 2000, the Howeth parties sued the City, the Commission,=20
and White in his official =
capacity=20
for violations of the Texas Open Meetings Act, for regulatory =
takings, and=20
for mandamus and declaratory relief. In April and June of 2002, Judge Jeff =
Work, who=20
was presiding over the case at the time, entered two interlocutory =
orders=20
disposing of the parties=E2=80=99 cross-motions for summary =
judgment. Judge Work=20
granted the defendants=E2=80=99 motion in part, rendering an =
interlocutory,=20
take-nothing judgment on the Texas Open Meetings Act claim. Judge =
Work=20
also granted the Howeth parties=E2=80=99 motion in part, entering =
the following,=20
interlocutory declarations and order:
DECLARED that the plat applications =
filed by [the=20
Howeth parties] with the [City] on June 6, 2000 were not acted on =
within=20
30 days; . . .
DECLARED that the plat applications =
filed by [the=20
Howeth parties] with the [City] on=20
June 6, 2000 were approved by force of Texas Local Government Code =
212.009; . . .
ORDERED that a writ of mandamus issue as =
against=20
the Chair of [the Commission] . . . instructing =
Respondent White=20
to issue two Certificates of no Action Taken, as a result of the=20
Commission=E2=80=99s failure to consider said Applications within =
the thirty (30)=20
day period required by state law; . . =
. .
It is unclear from the record whether a =
writ of=20
mandamus ever issued, but no one disputes that the Commission did =
not=20
issue certificates of no action after the entry of Judge =
Work=E2=80=99s=20
order.
<=
/SPAN>By the time of trial in June of 2004, =
the Howeth=20
parties had added as defendants in their individual capacity =
Weiner, Ward,=20
and Vazquez and alleged claims against White in his individual =
capacity.=20
At that same point in time, the Howeth parties asserted the =
following=20
claims against the following defendants:
1.Violation of the=20
Texas Open Meetings Act
Factual Basis:the Commission=E2=80=99s =
holding a closed,=20
executive session during the August 30, 2000 =
meeting
Defendants:the Commission and White, in =
what=20
appears to be his official capacity (and, thus, the City)
Relief Sought:voiding of the August 30, =
2000 votes=20
and the issuance of mandamus to order certificates of no action on =
the=20
June preliminary plat applications
2.Writs of=20
Mandamus
Factual Bases:(1) the =
Commission=E2=80=99s failure to=20
issue certificates of no action on the June preliminary plat =
applications=20
and (2) its denial of all of the Howeth parties=E2=80=99 plat=20
applications
Defendants:the Commission and White, in his =
official=20
capacity
Relief Sought:issuance of mandamus to =
require the=20
Commission (1) to issue certificates of no action on the June =
preliminary=20
plat applications, (2) to approve the June preliminary plat =
applications,=20
and (3) to approve the August preliminary and final plat=20
applications
3.Mandatory=20
Temporary and Permanent Injunctions
Factual Bases:(1) the =
Commission=E2=80=99s failure to=20
issue certificates of no action to approve the any of the Howeth =
parties=E2=80=99=20
plat applications, (2) its failure to approve the August =
preliminary and=20
final plat applications, and (3) its failure to issue building=20
permits
Defendant:The=20
City
Relief Sought:injunctions ordering (1) =
that=20
certificates of no action issue, (2) that the August preliminary =
and final=20
plat applications be approved, (3) that the Brogden properties be =
allowed=20
to begin subdivision, (4) that cause be shown as to why building =
permits=20
had not been issued, (5) that building permits issue =
(alternatively, that=20
no punitive actions be taken for the Howeth parties=E2=80=99 not =
obtaining=20
building permits)
4.Declaratory =
Judgment
Factual Bases:(1) the =
Commission=E2=80=99s failure to=20
issue certificates of no action on the June preliminary plat =
applications=20
and (2) its failure to approve any of the Howeth parties=E2=80=99 =
plat=20
applications
Defendants:N/A
Relief Sought:declarations that (1) the =
flag-lot=20
configuration was =E2=80=9Cunavoidable=E2=80=9D; (2) the June and =
August plat applications=20
met =E2=80=9Call the requirements of the pertinent provisions of =
Texas state law,=20
the Codes and the City Ordinances=E2=80=9D; (3) the Howeth parties =
were entitled=20
to certificates of no action on the June preliminary plat =
applications=20
and, alternatively, that those plat applications be approved; (4) =
the=20
Howeth parties were entitled to approval of the August preliminary =
and=20
final plat applications; and (5) the Commission=E2=80=99s actions =
on August 2,=20
2000 were void for its failure to have issued certificates of no =
action in=20
July
5.Regulatory Takings (inverse =
condemnation) Under=20
the State and Federal Constitutions
Factual Bases:(1) the =
Commission=E2=80=99s denial of all=20
plat applications and (2) the City=E2=80=99s moratorium on plat =
applications and=20
subsequent banning of all flag lots after the Brogden =
properties=E2=80=99 plat=20
applications were rejected in August 2000
Defendants:the Commission and White, in his =
official capacity=20
(and, thus, the City)=20
Relief Sought:(1) declaration that the=20
Commission=E2=80=99s conduct =E2=80=9Cconstitutes an unlawful =
regulatory taking=E2=80=9D entitling=20
the Howeth parties to reasonable compensation, (2) reasonable=20
compensation, and (3) damages for reduction of the Howeth =
parties=E2=80=99=20
=E2=80=9Cinvestment backed expectations=E2=80=9D
6.Violation=20
of State and Federal
Procedural Due Process and Due Course of =
Law (42=20
U.S.C. section 1983
)
Factual Bases:(1) the =
Commission=E2=80=99s depriving the=20
Howeth parties of a meaningful opportunity to be heard and (2) its =
employing a =E2=80=9Cconstitutionally defective process that =
lacked fundamental=20
fairness=E2=80=9D
Defendants:all =
defendants
Relief Sought:damages
7.Tortious=20
Interference with Contractual =
Relationships
Factual Bases:(1) unspecified actions =
that=20
interfered with the Howeth parties=E2=80=99 relationship with its =
real-estate=20
broker (apparently concerning the enforcement of the =
City=E2=80=99s sign=20
ordinance) and (2) unspecified actions that interfered with the =
Howeth=20
parties=E2=80=99 =E2=80=9Cprospective rights with regard to future =
purchasers of=E2=80=9D the=20
Brogden properties
Defendants:all defendants
Relief Sought:damages
8.Violation=20
of State and Federal Substantive Due Process and Due Course of Law =
(42=20
U.S.C. section 1983)
Factual Bases:(1) denial of all plat =
applications,=20
(2) failure to issue certificates of no action, (3) failure to =
comply=20
=E2=80=9Cwith court orders,=E2=80=9D (4) filing of a wrongful lis =
pendens against the=20
Brogden properties, (5) =E2=80=9Cwrongful and punitive =
enforcement=E2=80=9D of the sign=20
ordinance, (6) trespassing onto the Brogden properties to remove =
signs,=20
(7) unlawful use of police power to enforce tree ordinance, and =
(8)=20
=E2=80=9Carbitrary, punitive and disparate=E2=80=9D use of =
permitting=20
process
Defendants:all defendants, with respect to (1) and =
(2), and=20
the individual defendants and the City, with respect to (3) =
through=20
(8)
Relief Sought:damages
9.Violation=20
of State and Federal Equal Protection (42 U.S.C. section=20
1983)
Factual Basis:(1) denial of all plat =
applications,=20
(2) failure to issue certificates of no action, (3) failure to =
comply=20
=E2=80=9Cwith court orders,=E2=80=9D (4) filing of a wrongful lis =
pendens against the=20
Brogden properties, (5) =E2=80=9Cwrongful and punitive =
enforcement=E2=80=9D of the sign=20
ordinance, (6) trespassing onto the Brogden properties to remove =
signs,=20
(7) unlawful use of police power to enforce tree ordinance, and =
(8)=20
=E2=80=9Carbitrary, punitive and disparate=E2=80=9D use of =
permitting=20
process
Defendants:all defendants, with respect to (1) and =
(2), and=20
the individual defendants and the City, with respect to (3) =
through=20
(8)
Relief Sought:damages
<=
/SPAN>Appellees=20
answered, asserting as affirmative defenses, among other matters, =
that (1)=20
governmental immunity from suit barred the Howeth parties=E2=80=99 =
claims for=20
damages for equal protection and due process violations and for =
tortious=20
interference with contracts =
against=20
the City, the Commission, and White in his official capacity; (2) =
the=20
Howeth parties lacked standing to assert any claims because none =
of them=20
owned the Brogden properties at the time that the various plat=20
applications were submitted or denied; and (3) the Howeth=20
parties=E2=80=99 claims for =
damages against=20
the individual defendants in their individual capacities were =
barred by=20
official immunity, qualified immunity, judicial immunity, =
legislative=20
immunity, and the federal Volunteer Protection Act. =
Appellees also asserted a counterclaim =
seeking an=20
injunction to prevent the Howeth parties from selling the Brogden=20
properties as divided tracts until subdivision plats had been =
approved for=20
those properties.
<=
/SPAN>Before=20
trial, the trial court dismissed the Howeth parties=E2=80=99 =
takings claims=20
against all appellees after having concluded that only a Harris =
County=20
court at law had jurisdiction over those claims.
After a bench trial, the court rendered =
a=20
take-nothing judgment on all of the Howeth parties=E2=80=99 =
remaining claims and,=20
by =E2=80=9Cmother hubbard=E2=80=9D clause, rendered judgment =
against appellees=E2=80=99=20
counterclaim for an injunction against the Howeth parties. In that =
final=20
judgment, the court also vacated Judge Work=E2=80=99s =
interlocutory=20
summary-judgment orders. The trial court entered fact findings and =
legal=20
conclusions.
Unchallenged and=20
Improperly Raised Matters
A. Violation=20
of the Texas Open Meetings Act
<=
/SPAN>Under=20
no issue or argument do the =
Howeth=20
parties challenge the rendition of a take-nothing judgment on =
their claim=20
for violation of the Texas Open Meetings Act. We must, therefore, =
affirm=20
the judgment rendered against this claim. See Jacobs v.=20
Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001); Garcia v. =
Nat=E2=80=99l=20
Eligibility Express, Inc., 4 S.W.3d 887, 889 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 1999, no pet.).
B. Tortious=20
interference with Contract
<=
/SPAN>Likewise,=20
under no issue or argument do the=20
Howeth parties challenge the rendition of a take-nothing judgment =
on their=20
claim for tortious interference with contract against any=20
appellee. We thus affirm =
the judgment=20
rendered against this claim. See Jacobs, 65 S.W.3d at 655;=20
Garcia, 4 S.W.3d at 889.
C. Violation=20
of Procedural Due Process
<=
/SPAN>The=20
Howeth parties also do not =
challenge=20
the rendition of a take-nothing judgment on their claim for =
violation of=20
procedural due process. We =
thus=20
affirm the judgment rendered against this claim, as well. See=20
Jacobs, 65 S.W.3d at 655; Garcia, 4 S.W.3d at =
889.
D. Section 1983=20
Claims for Damages Based on Violations of Equal Protection, =
Substantive=20
Due Process, and Substantive Due course of Law
<=
/SPAN>The=20
Howeth parties do not explain under this or any other appellate =
challenge=20
which fact findings or legal conclusions they are challenging. We =
have=20
nonetheless reviewed the substance of all of their appellate =
arguments to=20
determine, as best we can, which fact findings and legal =
conclusions the=20
Howeth parties have implicitly challenged for each appellate =
argument.=20
See=20
City of Pasadena v. Gennedy, 125 S.W.3d 687, 691 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 2003, pet. denied) (construing =
appellant=E2=80=99s=20
challenges, which did not specify to which fact findings or legal=20
conclusions they related, to attack pertinent fact findings and =
legal=20
conclusions supporting complained-of aspects of =
judgment); see also Tex. R. App. P. 38.1(e), =
38.9;=20
Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989) =
(=E2=80=9C[I]t=20
is our practice to construe liberally points of error in order to =
obtain a=20
just, fair and equitable adjudication of the rights of the=20
litigants.=E2=80=9D). Applying this=20
liberal standard, we nonetheless do not find in the Howeth =
parties=E2=80=99=20
opening brief any argument that can reasonably be construed as =
challenging=20
the following fact findings that are material to their =
constitutional=20
claims for damages under section 1983:
=E2=97=8Fthe only=20
actions that the individual defendants took with regard to the =
Howeth=20
parties or their plats was to vote on their plats at the pertinent =
Commission meetings (all individual defendants) or to refuse to =
issue=20
certificates of no action (White) (fact findings 3 and=20
4);
=E2=97=8Fthe Howeth=20
parties did not have an ownership interest in the Brogden =
properties at=20
the time that the plats were denied (fact finding =
8);
=E2=97=8Fthe Howeth=20
parties suffered no damages from the City=E2=80=99s actions in =
connection with the=20
construction of the house built on each of the Brogden properties =
(fact=20
finding 10);
=E2=97=8F=E2=80=9CHad [the=20
Howeth parties] moved forward with the construction of one new single-family =
home on each=20
[of the Brogden properties] =
they=20
could have realized a substantial profit from the sale of [the =
Brogden=20
properties] in their =
undivided=20
condition.=E2=80=9D (fact finding 13)
<=
/SPAN>Neither=20
do we find in the Howeth parties=E2=80=99 opening brief any =
argument that we can=20
construe as a challenge to the following legal conclusions that =
are=20
material to their constitutional claims for damages under section=20
1983:
=E2=97=8FPlat=20
approval is a quasi-judicial function, and individual planning and =
zoning=20
commission members who vote on plats are acting in a =
quasi-judicial=20
capacity (legal conclusion 1);
=E2=97=8Fthe=20
individual defendants were entitled to absolute or quasi-judicial =
immunity=20
for the Howeth parties=E2=80=99 state and federal claims against =
them (legal=20
conclusion 2);
=E2=97=8Fthe earnest=20
money contracts to purchase the Brogden properties did not give =
the Howeth=20
parties a vested interest in =E2=80=9Cthe subject tracts=E2=80=9D =
(legal conclusion=20
8);
=E2=97=8Fthe Howeth=20
parties lacked standing to pursue claims for damages arising out =
of the=20
denial of the various plats (legal conclusion 9); and =
=E2=97=8Fthe Howeth=20
parties did not have a vested property interest in the approval of =
any of=20
their plat applications (legal conclusion =
10).
<=
/SPAN>=E2=80=9C[A]n=20
appellate court will overrule a challenge to fact findings that =
underpin a=20
legal conclusion or disposition when other fact findings that also =
support=20
that legal conclusion or disposition go unchallenged.=E2=80=9D =
Britton v. Tex.=20
Dep=E2=80=99t of Crim. Justice, 95 S.W.3d 676, 682 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2002, no pet.); see Long v. Long, 196 S.W.3d 460, =
468=E2=80=9369=20
(Tex. App.=E2=80=94Dallas 2006, no pet.). =E2=80=9CThe same result =
obtains when more than=20
one legal conclusion independently supports a judgment or ruling, =
but the=20
appellant challenges only one of those legal conclusions on =
appeal.=E2=80=9D=20
Britton, 95 S.W.3d =
at 682;=20
see Long, 196 S.W.2d at 468=E2=80=9369. The rules are grounded in the =
overarching rule=20
that, absent fundamental error, we may not raise a challenge on an =
appellant=E2=80=99s behalf when that challenge is absent from its =
brief. See=20
Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) =
(=E2=80=9CWe have held=20
repeatedly that the courts of appeals may not reverse the judgment =
of a=20
trial court for a reason not raised in a point of =
error.=E2=80=9D).=20
<=
/SPAN>1. Section=20
1983 Claims for Damages for Violations of Substantive Due Process =
and Due=20
course of Law
<=
/SPAN>Under=20
these rules, we must overrule the Howeth parties=E2=80=99 =
appellate challenges to=20
judgment rendered on their section 1983 claims for damages against =
all=20
appellees based on =
violations of=20
substantive due process and substantive due course of law for =
denial of=20
the June and August plat applications, for failure to issue =
certificates=20
of no action, and for actions post-dating the denial of all plat=20
applications. =
<=
/SPAN>First, such=20
substantive claims for violations of due process and due course of =
law=20
required that the Howeth parties have a vested property interest =
that was=20
affected by the complained-of actions. See City of Amarillo v.=20
Hancock, 150 Tex. 231, 234, 239 S.W.2d 788, 791 (1951) =
(indicating=20
that, for plaintiff to bring self within protection of due process =
clause,=20
right adversely affected by action of administrative body must be =
vested=20
property right); see also Pedraza v. Tibbs, 826 S.W.2d 695, =
697=20
(Tex. App.=E2=80=94Houston [1st Dist.] 1992, writ dism=E2=80=99d =
w.o.j.) (=E2=80=9CVested rights=20
. . . are protected by the due process provisions of =
both the=20
Texas and United States Constitutions.=E2=80=9D).
<=
/SPAN>Nonetheless,=20
on appeal, the Howeth parties did not timely challenge legal =
conclusions 8=20
through 10=E2=80=94that they had no vested property rights at the =
time of the=20
complained-of actions and that they lacked standing to pursue =
claims for=20
damages arising out of the plat applications=E2=80=99 =
denial.
Likewise, they did not timely challenge =
fact=20
finding 8=E2=80=94that they =
had no ownership=20
interest in the Brogden properties at the time that the plats were =
denied.=20
The failure timely to =
challenge this=20
finding and these conclusions is fatal to the Howeth =
parties=E2=80=99 section 1983=20
claims for damages based on violations of substantive due process =
and due=20
course of law by any=20
appellee.
Accordingly, we may not reverse the take-nothing =
judgment=20
rendered on these claims against any appellee. See Britton, 95 S.W.3d at =
681.
=
Second,=20
to the extent that their section 1983 claim for damages for these=20
constitutional violations was based on any actions post-dating the =
plat=20
applications=E2=80=99 denials, the Howeth=20
parties do not challenge the trial =
court=E2=80=99s factual=20
finding 10, that they suffered no damages from the City=E2=80=99s =
actions in=20
connection with the construction =
of the=20
house on each of the Brogden properties. The Howeth parties have =
also=20
failed to challenge factual finding 13, that they could have =
realized a=20
substantial profit had they moved forward with the construction of =
a=20
single home on each of the Brogden properties and sold each =
property=20
undivided. Neither do the Howeth parties timely challenge =
the trial=20
court=E2=80=99s legal conclusion 9, that they =E2=80=9Clacked =
standing to pursue claims=20
for damages arising out of the denial of the subject =
plats.=E2=80=9D A claim for damages based on violations =
of=20
substantive due process or due course of law under section 42 =
U.S.C.=20
section 1983 obviously requires that damages have occurred and =
that the=20
claimant have standing to pursue those damages. Accordingly, this =
is an=20
additional reason that we may not reverse the take-nothing judgment =
rendered on=20
these claims against any appellee.=20
See id.
<=
/SPAN>Third,=20
the trial court concluded, in legal conclusions 1 through 3, that =
the=20
individual defendants were entitled to four types of =
immunity=E2=80=94official=20
immunity, qualified immunity, judicial immunity, and immunity =
under the=20
Federal Volunteer Protection Act=E2=80=94for all of the Howeth =
parties=E2=80=99 causes of=20
action against them, including those asserted under section 1983 =
for=20
constitutional violations. Nowhere in their opening brief do the =
Howeth=20
parties expressly or impliedly challenge legal conclusions 1 and =
2, in=20
which the trial court determined that the individual defendants =
were=20
entitled to judicial immunity for all of the Howeth =
parties=E2=80=99 causes of=20
action, necessarily including those under section 1983 for =
violations of=20
substantive due process and due course of law.
Finally, =
the Howeth=20
parties do not attack factual findings 3 and 4, that the only =
actions that=20
the individual defendants took with regard to the Howeth parties =
or their=20
plats was to vote on their plats at the pertinent Commission =
meetings (all=20
individual defendants) or to refuse to issue certificates of no =
action=20
(White), or legal conclusion 1, that plat approval is a =
quasi-judicial=20
function and that individual planning and zoning commission =
members who=20
vote on plats are acting in a quasi-judicial capacity. The Howeth parties=E2=80=99 failure to =
attack these=20
findings and conclusions is fatal to their challenge to the =
judgment=20
rendered on their section =
1983 claim=20
for damages against the individual defendants for these alleged=20
constitutional violations.
<=
/SPAN>2. Section=20
1983 Claims for Damages for Violations of Equal=20
Protection
<=
/SPAN>Because=20
of the Howeth parties=E2=80=99 failure timely to challenge on =
appeal key fact=20
findings and legal conclusions, we must also overrule their =
appellate=20
challenges to judgment rendered on their section 1983 claims for =
damages=20
against all appellees based =
on=20
violations of equal protection for the denial of the June and =
August plat=20
applications, for failure to issue certificates of no action, and =
for=20
actions post-dating the denial of all plat =
applications.
<=
/SPAN>First,=20
as for the equal protection =
claim=20
for damages against =
the=20
individual defendants, =
nowhere in=20
their opening brief do the Howeth parties expressly or impliedly =
challenge=20
legal conclusions 1 and 2, in which the trial court determined =
that the=20
individual defendants were entitled to judicial immunity for all =
of the=20
Howeth parties=E2=80=99 causes of action, necessarily including =
those claims for=20
violations of equal protection. Nor do =
they=20
challenge factual findings 3 and 4, that the only actions that the =
individual defendants took with regard to the Howeth parties or =
their=20
plats was to vote on their plats at the pertinent Commission =
meetings (all=20
individual defendants) or to refuse to issue certificates of no =
action=20
(White), or legal conclusion 1, that plat approval is a =
quasi-judicial=20
function and that individual planning and zoning commission =
members who=20
vote on plats are acting in a quasi-judicial capacity. The Howeth parties=E2=80=99 failure to =
attack these=20
findings and conclusions is fatal to their challenge to the =
judgment=20
rendered on their equal protection claim against the individual=20
defendants. See=20
id. We=20
thus cannot reverse the take-nothing judgment rendered on the =
Howeth=20
parties=E2=80=99 equal protection claims against the individual=20
defendants. See id.
=
Second,=20
the =
Howeth=20
parties do not =
challenge the=20
trial court=E2=80=99s factual finding 10, that they suffered no =
damages from the=20
City=E2=80=99s actions in connection with the construction =
of the=20
house on each of the Brogden properties, or factual finding 13, =
that they=20
could have realized a substantial profit had they moved forward =
with the=20
single homes=E2=80=99 construction and sold each property =
undivided. An equal =
protection claim=20
seeking monetary damages under section 42 U.S.C. section 1983 =
requires=20
that damages have occurred. As=20
for their =
equal=20
protection claim against the City and the Commission for damages =
based on=20
the denial of all plat applications and the failure to issue certificates of no =
action, the=20
Howeth parties have not timely challenged the trial =
court=E2=80=99s fact finding=20
13, concerning damages, and its legal conclusion 9, that they =
=E2=80=9Clacked=20
standing to pursue claims for damages arising out of the denial of =
the=20
subject plats.=E2=80=9D It is fundamental that one seeking to =
recover damages have=20
standing to recover the damages that he seeks. See Douglas v. =
Delp,=20
987 S.W.2d 879, 883 (Tex. 1999) (analyzing whether spouse or =
husband=E2=80=99s=20
bankruptcy estate had standing to pursue various claims for =
damages). The=20
Howeth parties=E2=80=99 failure timely to attack these findings =
and this=20
conclusion is fatal to their challenge to the judgment rendered on =
their=20
equal protection claim against the City. See=20
id. We thus =
cannot reverse=20
the take-nothing judgment rendered on the Howeth parties=E2=80=99 =
section 1983=20
claims for damages against any appellee for violations of equal =
protection. =
See=20
id.
E. Summary
<=
/SPAN>In=20
sum, for the reasons set forth above, we may not reverse the =
judgment to=20
the extent that it disposed of the following causes of=20
action:
1.for violation of the Texas Open =
Meetings=20
Act;
2.for=20
tortious interference with contract (against all =
appellees);
3.for=20
violations of procedural due process and due course of law =
(against all=20
appellees);
4.for=20
damages, under section 1983, for violations of substantive due =
process and=20
due course of law (against all appellees);
5.for damages, under section 1983, for =
violations=20
of equal protection (against all appellees).
Accordingly, with respect to the =
individual=20
defendants, there are no claims on which we may reverse the=20
judgment. With respect to =
the City,=20
the Commission, and White in his official capacity, the only =
claims or=20
requests for relief that we may consider when reviewing the Howeth =
parties=E2=80=99 appellate issues are those=20
(1) for writ of mandamus, injunctive relief, and declaratory =
judgment=20
relating to the refusal to issue certificates of no action and the =
denial=20
of the June preliminary plat applications (issue one) and (2) to =
declare=20
City ordinance section 16-38(c) void for being unconstitutionally =
vague,=20
either facially or as applied (issue three). See Code of=20
Ordinances, City of Hedwig Village =C2=A7 16-38 (Ord. No. 345, =
=C2=A7 3.13,=20
4-11-91). We overrule issue two, concerning =
section 1983=20
claims for damages for violations of substantive due process, =
substantive=20
due course of law, and equal protection, in its =
entirety.
Standard of=20
Review
<=
/SPAN>The=20
trial court entered fact findings and legal conclusions. =
A judgment =E2=80=9Cmay not be supported =
upon appeal by a=20
presumed finding upon any ground of recovery or defense, no =
element of=20
which has been included in the findings of fact; but when one or =
more=20
elements thereof have been found by the trial court, omitted =
unrequested=20
elements, when supported by evidence, will be supplied by =
presumption in=20
support of the judgment.=E2=80=9D Tex. R.=20
Civ. P. 299.
<=
/SPAN>Again,=20
because the Howeth parties do not explain under any of their =
issues which=20
fact findings or legal conclusions they are challenging, we have =
attempted=20
to glean from the substance of their appellate arguments which =
fact=20
findings and legal conclusions they challenge. See=20
Gennedy, 125 S.W.3d at 691; see also Tex. R. App. P. 38.1(e), =
38.9;=20
Sterner, 767 S.W.2d at 690. Given the way that they have phrased =
their=20
appellate arguments, we further construe the Howeth parties to =
have raised=20
legal-sufficiency challenges to the fact findings that they have=20
implicitly attacked.
<=
/SPAN>We=20
review legal conclusions de novo. Gennedy, 125 =
S.W.3d at=20
691. Regarding fact findings, =
=E2=80=9C[w]hen, as here, we=20
have a complete reporter=E2=80=99s record on appeal, we review the =
trial court=E2=80=99s=20
fact findings under the same standards for legal sufficiency as =
govern the=20
review of jury findings.=E2=80=9D Id. As with challenges to =
jury=20
findings, =E2=80=9C[w]hen the complaining party =
challenges the legal=20
sufficiency of the evidence underlying an adverse finding on which =
it had=20
the burden of proof, the party must demonstrate on appeal that the =
evidence conclusively established all vital facts in support of =
the=20
issue.=E2=80=9D Id. at 692. =E2=80=9CWe employ a two-part =
test in reviewing such a=20
challenge.=E2=80=9D Id. =E2=80=9CWe first look for evidence =
supporting the finding,=20
ignoring all evidence to the contrary.=E2=80=9D Id. =
=E2=80=9CIf there is no=20
evidence supporting the finding, we then examine the entire record =
to see=20
if the contrary proposition is established as a matter of =
law.=E2=80=9D Id.=20
We apply this standard of review to the Howeth parties=E2=80=99 =
legal-sufficiency=20
challenges to the court=E2=80=99s fact findings on the elements of =
their=20
claims.
<=
/SPAN>To determine =
whether there is=20
some evidence to support a fact finding, =E2=80=9Cwe must view the =
evidence in a=20
light that tends to support the finding of disputed fact and =
disregard all=20
evidence and inferences to the contrary.=E2=80=9D Wal-Mart =
Stores, Inc. v.=20
Miller, 102 S.W.3d 706, 709 (Tex. 2003). If more than a =
scintilla of=20
evidence supports the fact finding, we must uphold it. See =
id. More=20
than a scintilla of evidence exists if the evidence =
=E2=80=9C=E2=80=98rises to a level=20
that would enable reasonable and fair-minded people to differ in =
their=20
conclusions.=E2=80=99=E2=80=9D Ford Motor Co. v. Ridgway, =
135 S.W.3d 598, 601 (Tex.=20
2004) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 =
S.W.2d 706,=20
711 (Tex. 1997)). Conversely, evidence that is =
=E2=80=9C=E2=80=98so weak as to do no more=20
than create a mere surmise=E2=80=99=E2=80=9D is no more than a =
scintilla and, thus, no=20
evidence. Id. (quoting Kindred v. Con/Chem., Inc., =
650=20
S.W.2d 61, 63 (Tex. 1983)). =E2=80=9CThe final test for legal =
sufficiency must always=20
be whether the evidence at trial would enable reasonable and =
fair-minded=20
people to reach the verdict under review.=20
. . . [L]egal-sufficiency review in the proper =
light must=20
credit favorable evidence if reasonable [fact finders] could, and=20
disregard contrary evidence unless reasonable [fact finders] could =
not.=E2=80=9D=20
City of Keller, 168 S.W.3d at 827; accord Chubb Lloyd=E2=80=99s Ins. =
Co. of Tex. v.=20
H.C.B. Mech., Inc., 190 S.W.3d 89, 92 (Tex. =
App.=E2=80=94Houston [1st Dist.]=20
Dec. 8, 2005, no pet.).
<=
/SPAN>The=20
trial court in a bench trial is the sole judge of =
witnesses=E2=80=99 credibility,=20
and it may choose to believe one witness over another; a reviewing =
court=20
may not impose its own opinion to the contrary. City of =
Keller, 168=20
S.W.3d at 819. Because it is the province of the trial court in a =
bench=20
trial to resolve conflicting evidence, we must assume that it =
resolved all=20
conflicts in accordance with its fact findings. Id. at=20
819=E2=80=9320.
Challenges=20
Concerning the June Preliminary Plat =
Applications
<=
/SPAN>In part of issue one, the Howeth parties =
argue=20
that the trial court erred in concluding that they were not =
entitled to=20
mandamus, injunctive, or declaratory relief to obtain certificates =
of no=20
action from the Commission for the June preliminary plat =
applications=20
because the Commission did not rule on those applications within =
30 days.=20
In the remainder of issue one, the Howeth parties alternatively argue that the trial court =
erred in=20
concluding that they were not entitled to declaratory relief because =
=E2=80=9C[t]he City simply=20
denied the June 2000 [preliminary] plat [applications] for =
arbitrary and=20
capricious reasons.=E2=80=9D
A. The=20
Law Relating to Plat Approval
<=
/SPAN>=E2=80=9CPlat approval, like zoning, is =
an exercise of the=20
police power.=E2=80=9D City of Round Rock v. Smith, 687 =
S.W.2d 300, 302=20
(Tex. 1985). =E2=80=9CThe police power is a grant of authority =
from the people to=20
their governmental agents =E2=80=98to promote the public =
convenience or the=20
general prosperity, as well as regulations designed to promote the =
public=20
health, the public morals, or the public safety.=E2=80=9D =
Id. (quoting=20
Lombardo v. City of Dallas, 124 Tex. 1, 11, 73 S.W.2d 475, =
479=20
(1934)).
The purpose of plat approval is to =
ensure that=20
subdivisions are safely constructed and to promote the orderly =
development=20
of the community. Plat approval protects future purchasers from =
inadequate=20
police and fire protection, inadequate drainage, and insures =
sanitary=20
conditions. Public health, safety, and morals are general public=20
interests.
Id.
<=
/SPAN>Furthermore,=20
=E2=80=9C[i]n deciding whether to approve or disapprove a proposed =
plat the=20
planning commission must interpret and construe the city plan, =
applicable=20
ordinances and state statutes to determine whether the proposed =
plat=20
complies with these laws.=E2=80=9D Id. at 303. As one =
commentator has=20
explained:
[T]he Texas subdivision enabling act =
makes what=20
appears to be a direct grant of undefined police power to the =
governing=20
body to enact subdivision regulations, while leaving local =
municipal=20
planning commissions free to formulate standards used in reviewing =
approval of plats of new subdivisions=20
. . . .
John Mixon & Justin Waggoner, =
The=20
Role of Variances in Determining Ripeness in Takings Claims Under=20
non-Zoning Ordinances & Subdivision Regulations of Texas=20
Municipalities, 29 St. Mary=E2=80=99s=20
L. Rev. 765, 779 (1998) (emphasis added) (footnotes and =
citations=20
omitted). For these reasons, =E2=80=9Cplat approval or disapproval =
is a=20
quasi-judicial exercise of the police power.=E2=80=9D City of Round Rock, 687 S.W.2d at =
307.
<=
/SPAN>=E2=80=9C[P]lat=20
approval is a discretionary function that only a governmental unit =
can=20
perform.=E2=80=9D Id.; accord Woodson Lumber Co. v. City =
of College=20
Station, 752 S.W.2d 744, 747 (Tex. App.=E2=80=94Houston [1st =
Dist.] 1988, no=20
writ). Nonetheless, =
in situations=20
in which the plat applicant =E2=80=9Chas done all that the =
statutes and law=20
demands,=E2=80=9D the approval of the plat =E2=80=9Cbecomes a mere =
ministerial duty=20
. . . .=E2=80=9D City of Corpus Christi v. =
Unitarian Church of=20
Corpus Christi, 436 S.W.2d 923, 927 (Tex. Civ. =
App.=E2=80=94Corpus Christi=20
1968, writ ref=E2=80=99d n.r.e.) (applying same rule to planning =
commission=E2=80=99s=20
denial of building permit); cf. Medina County Comm=E2=80=99rs =
Court v.=20
Integrity Gr., Inc., 21 S.W.3d 307, 309 (Tex. App.=E2=80=94San =
Antonio 1999,=20
pet. denied) (=E2=80=9CUnder section 232.002 of the Local =
Government Code, the=20
authority of the commissioners court to approve subdivision plats =
is not=20
discretionary if the plat meets the statutory requirements set =
forth in=20
section 232.001.=E2=80=9D).
<=
/SPAN>Mandamus=20
will lie for the violation of this =E2=80=9Cmere ministerial =
duty.=E2=80=9D That is, when=20
a planning commission, =E2=80=9Cin its construction of the law, =
deprives a citizen=20
of an unquestionable legal right and there is no other adequate =
remedy,=20
the court having power to issue mandamus may review the =
matter.=E2=80=9D=20
Unitarian Church of Corpus Christi, 436 S.W.2d at 927; =
Medina=20
County Comm=E2=80=99rs Court, 21 S.W.3d at 309 (=E2=80=9CA =
writ of mandamus will issue=20
to compel a public official to perform a ministerial act. An act =
is=20
ministerial when the law clearly spells out the duty to be =
performed by=20
the official with sufficient certainty that nothing is left to the =
exercise of discretion.=E2=80=9D) (citation omitted).
<=
/SPAN>For=20
this reason, one=E2=80=99s remedy for a planning =
commission=E2=80=99s arbitrary or=20
capricious denial of a plat application=E2=80=94or of a =
certificate of no action=20
under the 30-day rule of =
Local=20
Government Code section 212.009(a) and (d)=E2=80=94is generally to =
seek mandamus=20
relief or a mandatory injunction in the trial court. See =
Woodson Lumber=20
Co. v. City of College Station, 752 S.W.2d 744, 747 (Tex. =
App.=E2=80=94Houston=20
[1st Dist.] 1988, no writ) =
(=E2=80=9CIf a=20
landowner believes the City=E2=80=99s action is arbitrary, then it =
may obtain=20
relief by mandamus or mandatory injunction requiring the City to =
approve=20
the plat.=E2=80=9D); see =
also Myers v.=20
Zoning & Planning Comm=E2=80=99n of the City of W. Univ. =
Place, 521 S.W.2d=20
322, passim (Tex. App.=E2=80=94Houston [1st Dist.] 1975, =
writ ref=E2=80=99d=20
n.r.e.) (considering appeal =
from=20
denial of mandamus to compel zoning and planning =
commission=E2=80=99s issuance of=20
certificate of no action on submitted plat); Kirschke v. City =
of=20
Houston, 330 S.W.2d 629, 631, 634 (Tex. Civ. =
App.=E2=80=94Houston [1st Dist.]=20
1959, writ ref=E2=80=99d n.r.e.) (noting in dictum that mandamus =
or mandatory=20
injunction may be sought to compel city to issue building=20
permits), disapproved on =
other=20
grounds by City of Austin v. Teague, 570 S.W.2d 389, 394 (Tex. 1978). =
Declaratory=20
judgment has also been sought as a remedy. See Unitarian Church =
of=20
Corpus Christi, 436 S.W.2d at 925 (noting that declaratory =
judgment=20
was sought).
B. The =
Relevant Texas=20
Local Government Code Provisions
<=
/SPAN>Chapter 212 of the Texas Local =
Government Code=20
provides that the owner of a tract of land within city limits or =
in its=20
extraterritorial jurisdiction who subdivides the tract must =
=E2=80=9Chave a plat=20
of the subdivision prepared.=E2=80=9D Tex.=20
Loc. Gov=E2=80=99t Code Ann. =C2=A7 212.004(a) (Vernon =
1999). Section=20
212.004 then provides that, to be recorded, the plat must (1) =
describe the=20
subdivision by metes and bounds; (2) =E2=80=9Clocate the =
subdivision with respect=20
to a corner of the survey or tract or an original corner of the =
original=20
survey of which it is a part=E2=80=9D; and=20
(3) state the dimensions of the subdivision and of various items =
within=20
the tract that are to be dedicated to public and other limited =
uses.=20
Id. =C2=A7 212.004(b) (Vernon 1999). Section 212.004 also requires that the =
owner or=20
proprietor of the tract (or that person=E2=80=99s agent) =
acknowledge the plat in=20
the manner required for the acknowledgment of deeds. Id.=20
=C2=A7 212.004(c) (Vernon 1999). The=20
statute further provides that the plat must be filed and recorded =
with the=20
county clerk of the county in which the tract is located and that =
certain=20
filing and recording provisions of the Texas Property Code apply.=20
Id. =C2=A7 212.004(d), (e) (Vernon 1999). A person desiring approval of a plat =
must apply=20
to, and file a copy of the plat with, the municipal planning =
commission.=20
Id. =C2=A7 212.008 (Vernon 1999). =E2=80=9CThe =
municipal authority=20
responsible for approving plats must approve a plat or replat that =
is=20
required to be prepared under this subchapter and that satisfies =
all=20
applicable regulations.=E2=80=9D Id. =C2=A7 212.005 =
(Vernon 1999).=20
<=
/SPAN>=E2=80=9CThe=20
municipal authority responsible for approving plats shall act on a =
plat=20
within 30 days after the date the plat is filed. A plat is =
considered=20
approved by the municipal authority unless it is disapproved =
within that=20
period.=E2=80=9D See =
id.=20
=C2=A7 212.009(a). We =
refer to this=20
rule as =E2=80=9Cthe 30-day rule.=E2=80=9D The same statute =
further provides that =E2=80=9Cif the=20
municipal authority responsible for approving plats fails to act =
on a plat=20
within the prescribed [30-day] period, the authority on request =
shall=20
issue a certificate stating the date that plat was filed and that =
the=20
authority failed to act on the plat within that period.=E2=80=9D =
Id.=20
=C2=A7 212.009(d) (Vernon 1999). The applicant may then use =
the=20
certificate of no action in lieu of the municipal =
authority=E2=80=99s endorsement=20
of approval. See id.
C. The=20
Local Ordinances
<=
/SPAN>Chapter=20
16 of the City=E2=80=99s Code of Ordinances concerns platting of =
property. Within=20
chapter 16, plats are divided into preliminary and final plats. =
Code of=20
Ordinances, City of Hedwig Village =C2=A7 16-2 (Ord. No. 345, =
=C2=A7 1.03, 4-11-91).=20
A =E2=80=9Cpreliminary plat=E2=80=9D is =E2=80=9C[a] map or =
drawing of a proposed subdivision=20
prepared in accordance with the provisions of this chapter, =
illustrating=20
the features of the development for review and preliminary =
approval by the=20
Commission, but not suitable for recording with the County Clerk =
of Harris=20
County.=E2=80=9D Id. A =E2=80=9Cfinal plat=E2=80=9D is =
=E2=80=9C[a] complete and exact subdivision=20
plan prepared in conformity with the provisions of this chapter =
and in a=20
manner suitable for recording with the County Clerk of Harris=20
County.=E2=80=9D Id. =
<=
/SPAN>Under=20
chapter 16, it is unlawful for anyone to subdivide any tract, lot, =
or=20
parcel of land within city limits =E2=80=9Cunless and until a =
preliminary and=20
final plat of such subdivision has [sic] been approved in =
accordance with=20
the terms of this chapter.=E2=80=9D Code of Ordinances, City of =
Hedwig Village =C2=A7=20
16-13(a) (Ord. No. 345, =C2=A7 1.04, 4-11-91). The=20
preliminary plat accompanying a preliminary-plat application must =
include,=20
among other things, the property=E2=80=99s legal description, =
together with the=20
County name and the survey and abstract number; reference =
=E2=80=9Cto at least one=20
established corner of a nearby recorded subdivision or the nearest =
public=20
street right-of-way intersection=E2=80=9D; and the location of all =
building=20
setback lines within the plat boundaries. Code of Ordinances, City =
of=20
Hedwig Village =C2=A7=C2=A7 16-12, 16-13(b), (f), (q) (Ord. No. =
345, =C2=A7=C2=A7 2.02,=20
2.03, 4-11-91). The final =
plat=20
accompanying a final-plat application must incorporate all=20
preliminary-plat requirements and must also, among other things, =
reflect=20
any previously imposed conditions and requirements of final =
approval and=20
must contain all engineering and surveying data in sufficient form =
and=20
building lines and easements. Code of Ordinances, City of Hedwig =
Village=20
=C2=A7=C2=A7 16-14, 16-15(c), (e), (h) (Ord. No. 345, =
=C2=A7=C2=A7 2.04, 2.05,=20
4-11-91). The chapter =
further=20
provides as follows:
The Commission shall review each plat =
submitted to=20
it on a preliminary basis and upon a final basis. The Commission =
shall=20
approve any plat if it is in compliance with the provisions of =
this=20
chapter and other rules and regulations as may have been or may be =
adopted=20
by the City Council governing plats and/or the subdivision of =
land. Upon=20
the receipt of a plat, the Commission=E2=80=99s authorized actions =
are as=20
follows:
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