TX Appeals Court Finds Insufficient Facts to Show Waiver of Immunity for Failure to Enforce Zoning Ordinance against Church’s Property

Denton County Cowboy Church built a church building and an outdoor rodeo arena on its property that hosted weekly rodeo events. The Church then purchased another twelve-acre tract adjoining the original property, and then began construction of a 350-foot by 175-foot rodeo arena. Four months after the Church began construction, it filed an application with Ponder for a commercial building permit, which the Town of Ponder issued. Appellants – Peter Schmitz, Sean Pollock, and Larry and Becky LaDuke – brought a suit seeking a temporary restraining order and injunctions prohibiting the Church from continuing construction. Appellants amended their petition, alleging nuisance injuries and claims against Ponder for impermissible spot zoning. The trial court dismissed these claims.

At the outset, the court first noted that since many of the claims sought only a declaration of rights or alleged an ultra vires claim without naming any individual actors, rather than attacking the validity of the amendments voted on by the Town Council, the trial court properly dismissed them. On appeal, appellants argued that Ponder’s immunity for the declaratory judgment claims was waived under section 37.004 of the Uniform Declaratory Judgments Act (UDJA) and section 154.99 of Ponder’s zoning ordinance. Here, however, the court found that Ponder’s actions in granting the zoning change and issuing the SUP were not an “ordinance” within the meaning of section 37.004(a), as the Town Council merely voted on motions to change the zoning classification of the new property and to issue the SUP. Accordingly, the court held Ponder’s immunity was not waived. Furthermore, because the court found there was no valid government action, it held that the trial court did not err by determining appellants failed to allege a viable takings claim upon which their section 1983 claim could be based.

Appellants’ next argued that Ponder acted outside its authority in issuing the building permits and approving the zoning change and issuance of an SUP by vote of the Town Council. However, because appellants sued only Ponder and did not name any town officials as defendants, the court held that the trial court did not err by dismissing those claims without allowing appellants to file amended pleadings.

Lastly, appellants argued that the trial court had jurisdiction to determine declaratory judgment claims against the Church because they alleged sufficient jurisdictional facts to show that the Church sought impermissible spot zoning from Ponder. The court first determined that nothing in the local government code section 211.012(c) precluded or limited any common law or other right of a landowner directly affected by a neighbor’s use of property from seeking intervention from the court. Additionally, the court noted nothing in RLUIPA purported to deprive a trial court of jurisdiction to consider whether a church’s use of its property encroaches upon a neighboring property owner’s right to use and enjoy their property. However, since only Schmitz testified at the hearing on the plea to the jurisdiction, and he was the only plaintiff who presented evidence relative to whether he had suffered a particularized injury. Specifically, Schmitz claimed that the operation of the old Arena had substantially interfered with his use and enjoyment of his property due to excessive noise, light, and odor, which sometimes prohibited him from using his backyard. Schmitz further claimed that the same type of injuries would occur temporarily due to the construction activities. Based on these allegations, the court held that Schmitz sufficiently alleged at least a reasonable likelihood that his claim would soon ripen and was therefore sufficient to plead a particularized injury.

For the aforementioned reasons, the court affirmed the trial court’s dismissal of Pollock’s and the LaDukes’ claims against the Church and Town of Ponde, affirmed the trial court’s dismissal of Schmitz’s claims against Ponder, and reversed the dismissal of Schmitz’s claims against the Church and remanded that part of the case to the trial court.

Schmitz v Denton County Cowboy Church, 2017 WL 3821466 (Tx. App. 8/31/2017)