Posted by: Patricia Salkin | October 3, 2015

TX Court of Appeals Holds that Owner’s Declaratory Judgment Action over Alleged Vested Rights Did Not Present a Justiciable Controversy

Premier Tierra Holdings, Inc., owned a tract of property in the Village of Tiki Island, located in Galveston County. Premier desired to develop or sell the property for a mixed-use marina development, so it filed a declaratory judgment action against the City seeking a determination of its vested rights under chapter 245 of the Texas Local Government Code. Premier asserted that chapter 245 required the City to consider the approval of an application for a permit solely on the basis of the regulatory scheme existing at the time the first plat application for a project is filed, and therefore certain provisions of the City’s zoning ordinance could not be applied to its project because Premier filed its plat application before the City approved the ordinance. Premier sought a declaratory judgment action against the City, and the 212th District Court, Galveston County, denied city’s plea to the jurisdiction.

The court noted at the outset that chapter 245 contains a number of exemptions from its operation, including certain municipal zoning regulations and other specified land use regulations. Under it, a city also may require compliance with technical requirements relating to the form and content of a permit application in effect at the time the application was filed, even though the application is filed after the date an applicant’s rights accrue. The City argued that Premier never appealed the denial of its plat application, and did not challenge the City’s denial in this lawsuit. Because the project could not go forward, the City argued any request for declaratory relief would be moot. Although the court agreed with the City that Premier failed to present a justiciable controversy, it disagreed that Premier’s claims failed on two separate and distinct grounds of mootness. Alternatively, the court concluded that Premier’s request for declaratory relief failed to present a justiciable controversy because the record did not disclose the reasons why the City denied the 2010 plat application; Premier had never requested that the City certify the reasons for the denial; no plat or permit applications had since been denied for any specified reasons; and Premier had not challenged the City’s denial of its plat application in this or any other proceeding.
Here, the court found Premier’s failure to request the City to certify the reasons for its denial of the 2010 plat application, its failure to seek any further plat or permit applications that could have been challenged if denied, and its calculated refusal to challenge the denial of the 2010 plat application as “irrelevant” effectively precluded the trial court from considering and determining the basis for the City’s disapproval of Premier’s plat application. The court therefore sustained the City’s plea to the jurisdiction, and rendered judgment dismissing Premier’s case without prejudice.

Village of Tiki Island v Premier Tierra Holdings, Inc., 464 S.W. 3d 435 (TX App. 5/5/2015)

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