Posted by: Patricia Salkin | September 21, 2018

TX Appeals Court Holds Proposed Amendments to Petition Were Insufficient to Support Ultra Vires Claim as Exception to Governmental Immunity

This post was authored by Matthew Loeser, Esq.

Ali and Donna Tabrizi wanted to build a house on an undeveloped piece of land. When they investigated obtaining a building permit, they were told by the City that they would need to first obtain a plat, which required them to file a subdivision application. The Tabrizis brought action against city and three of its employees in their official capacity seeking a declaration that municipal land use regulations did not apply to landowners’ subdivision application, that landowners were excepted from platting, and that actions of employees were ultra vires. The district court dismissed claims on defendants’ plea to the jurisdiction and denied land owners leave to amend their petition.

Speciffically, the Tabrizis’ suit sought a declaration under the Texas Declaratory Judgment Act (“DJA”), which expressly allows for a “person whose rights, status, or other legal relations are affected by a municipal ordinance to have determined any question of construction or validity arising under the ordinance and obtain a declaration of rights, status, or other legal relations thereunder.” The court noted, however, that the DJA was not a general waiver of sovereign immunity, but only waived immunity for certain claims. Here, the court found that the conflict was academic as it was required to construe the exact same ordinances to resolve the Tabrizis’ ultra vires claims against the City officials.

Regarding the ultra vires claim, the Tabrizis contended the trial court erred in overlooking deposition testimony from the City’s chief environmental officer, as it allegedly would have shown he was unable to cite any direct authority for applying the environmental rules to platting applications. The court disagreed, finding that an agency employee’s inability to articulate the construction of a statute in a deposition, or in an affidavit, could not overcome its construction of clear statutory language. Under the terms of the City’s code, the court found that that more than a survey was required for platting. As such, the court overruled Issue Two as it claimed the City officials lacked the authority in applying Chapter 25-8 to a subdivision application.

Lastly, the Tabrizis argued that City officials acted ultra vires in denying them an exemption from the subdivision platting requirement under a grandfathering exception. The Tabrizis pleaded that the street gutter abutting the lot qualified as “utility service,” which entitled them to the exception. However, the Tabrizis did not claim that the City officials violated a ministerial duty; instead, they argued the definition of a public utility was sufficiently clouded to create a fact issue, and therefore prevented a summary dismissal of their claim. The court found that this question of whether the City officials acted without legal authority, turned on whether the officials had the discretion to interpret Section 25-4-2(D) as they apparently did: limiting it to electric, water, wastewater, or gas services hook-ups. However, even assuming the officials had some, but not total discretion, to define the otherwise undefined “utility service” term, the Tabrizis failed to plead that the officials’ interpretation conflicted with the ordinary meaning of “utility service” under Section 25-4-2(D). Accordingly, the court held that the Tabrizis had not asserted a valid ultra vires claim for the denial of the exemption.

Tabrizi v City of Austin, 551 SW 3d 290 (TX App. 4/29/2018)

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