Posted by: Patricia Salkin | November 29, 2007

Texas Appeals Court Finds Question Remains Regarding Vested Rights

A property owner sued the City claiming vested rights that preexisted the City’s annexation of his land, since he had previously contracted with Wal-Mart to develop part of the property, and the other part was to be dedicated to commercial use. Prior to the annexation, Wal-Mart, acting as the owner’s agent, applied for a driveway permit and water service.  However, Wal-Mart ultimately withdrew its requests.  The owner argued, however, that he is entitled to develop the property free of the subsequent adopted zoning regulations because he initiated the development prior to the annexation. 

The Court noted that in Texas, “property developers may rely on land-use regulations in effect at the time ‘the original application for [a] permit is filed…” citing Tex. Loc. Gov’t Code Ann. §245.002(a)).  The Code provides in part that, “a municipality may not, after annexing an area, prohibit a person from: (1) beginning to use land in the area in the manner that was planned for the land before the ninetieth day before the effective date of the annexation if: (a) one or more licenses, certificate, permits, approvals, or other forms of authorization by a governmental entity were required by law for the planned use; and (b) a completed application for the initial authorization was filed with the governmental entity before the date the annexation proceedings were instituted.”  Because the owner, through his agent, did file applications for permits prior to the annexation, the fact that Wal-Mart ultimately withdrew from the project “does not automatically moot the question of what regulations control the development of the property.” The Court said that the question is whether the “project” remains the same, and that this is a question of fact for the trial court.  

City of Helotes v. Miller, 2007 WL 2846400 (Tex. App. San Antonio, 10/3/2007).

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