Posted by: Patricia Salkin | July 25, 2020

TX Appeals Court Reverses Grant of Summary Judgement to City Secretary in Residents’ Challenge to Comprehensive Plan

This post was authored by Matthew Loescher, Esq.

In this case, Elizabeth Carruth, Matthew Tietz, Janis Nasseri, Judith Kendler, and Stephen Palma, residents and qualified voters of the City of Plano, appealed the summary judgment in favor of the city secretary of the City of Plano in their suit seeking to compel the City Secretary to present a citizen’s referendum petition concerning the Plano Tomorrow Comprehensive Plan to the Plano City Council. 

The City Secretary first argued that section 213.003 impliedly withdrew comprehensive development plans from the field of initiative and referendum by mandating procedural requirements, including a public hearing and review by the planning commission, before cities can act on such plans. The court rejected this argument, finding it ignored that the statute also allowed a municipality to bypass the procedures set forth in subsection (a) and adopt other procedures in its charter or by ordinance. As such, the legislature did not limit the power of home-rule municipalities to adopt comprehensive plans. Thus, it did not indicate with “unmistakable clarity” its intent to withdraw the voters’ retained power to invoke the referendum process with respect to such plans. 

The court next found that the legislature’s enactment of section 211.015 “recognized the distinction between the public’s right to vote on land-planning issues and a right to challenge individual zoning ordinances when vested property rights are implicated.” The court further determined that the zoning statutory scheme, which imposed extensive procedural mandates, conflicted with the public’s initiative or referendum power, and did not apply to comprehensive plans. In reaching this decision, the court noted that the legislature, in enacting Chapter 213 of the local government code, did not with “unmistakable clarity” withdraw comprehensive plans from the field in which the referendum process was operative.

 Having held that neither the Charter nor the general law had withdrawn comprehensive plans – either expressly or implicitly – the court reversed the trial court’s decision granting the City Secretary summary judgment and denying appellants’ summary judgment motion. 

Carruth v Henderson, 2020 WL 4197056 (TX App. 7/22/2020)

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