Posted by: Patricia Salkin | June 16, 2015

TX Appeals Court Holds Planning Director Failed to Submit Appeal to Board of Adjustment Over Church’s Proposed Use of an Amphitheater and Remands to Trial Court for Further Determination

In 2007, PromiseLand Church West, Inc. sought to develop a 53–acre project on Highway 71 in Austin to build a chapel, multipurpose building, and an outdoor amphitheater. Hill Country and Covered Bridge were residential neighborhood associations in the area surrounding the Church’s construction site, and both opposed the Church’s request to build an outdoor amphitheater, arguing that the Church’s proposed amphitheater would be used for outdoor entertainment events, including live music performances, concerts, ballets, graduations, and theatrical performances. Guernsey, the City’s planning and development review director, sent an email dated December 23, 2008 in which he stated since the worship building and the outdoor amphitheater were both being primarily used for religious assembly uses, there was no problem with these two facilities co-locating on the property. On July 6, 2011, the Church applied for a site plan permit to begin construction on the project, including the amphitheater, and the City approved the application on October 12, 2011, subject to a restrictive covenant.

On October 21, 2011, representatives from Hill Country filed an administrative appeal with the City regarding the City’s use determination of the Church site, and on October 27, 2011, an attorney for the City rejected Hill Country’s appeal and stated that the appeal was untimely because it was not filed within twenty days from the City’s use determination by Guernsey on December 23, 2008. Then, on December 12, 2011, counsel for Hill Country sent written correspondence to the City contesting the City’s October 27, 2011 letter. Hill Country argued that its appeal did not relate to Guernsey’s December 23, 2008 email, but rather to the City’s use interpretations and determinations made in the October 2, 2011 restrictive covenant. Hill Country requested that the City forward its appeal to the Board of Adjustment. The City maintained its position that absent “clearer requirements” from the code of ordinances, it would treat Guernsey’s December 23, 2008 email as an “appealable decision” and declined to follow the appeal.

As to Hill Country and Covered Bridge’s ultra vires claims against Guernsey, absent waiver by the Legislature, sovereign and governmental immunity generally deprive courts of subject-matter jurisdiction over suits against the State, its agencies, or officers or employees acting within their official capacity. Here, Section 25–2–2(A) of the land development code stated that “the director of the Planning and Development Review Department shall determine the appropriate use classification for an existing or proposed use activity.” Thus, Guernsey had the statutory discretion to make these determinations and actions. However, this was not true of Hill Country and Covered Bridge’s second set of ultra vires claims relating to Guernsey’s failure to forward an appeal of his actions to the City of Austin Board of Adjustment. Here, the court determined that Hill Country had appropriately cited the controlling provisions related to administrative appeals procedures and the ministerial duties that respectively belong to Guernsey and the Board of Adjustment, and Guernsey’s failed to comply with the controlling provisions and failed to perform the purely ministerial act of forwarding its appeal to the Board of Adjustment. Since the due process claims were dependent on the ultra vires finding, they were found unripe. Accordingly, the court affirmed the trial court’s judgment in part and reversed and remanded to the trial court to hear Hill Country’s ultra vires action based upon Guernsey’s failure to forward Hill Country’s appeal to the Board of Adjustment.

Hill Country Estates Homeowner’s Association v Guernsey, 2015 WL 2160510 (TX App. 5/7/2015)

The opinion can be accessed at:

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