Posted by: Patricia Salkin | October 30, 2020

TX Appeals Court Holds Owner Failed to Exhaust Administrative Remedies Regarding Question of Nonconforming Use

This post was authored by Matthew Loescher, Esq.

One year after Defendant Stefan purchased his property, he allowed a women’s group from his church to hold a Christmas reception on it. Stefan received no money for allowing his property to be used for the event, but Stefan claimed that his church gave him a receipt showing a $2,000 donation that Stefan was able to utilize on his tax return. The following summer, the City adopted Chapter 18 of the Code of Ordinances of the City of Dickinson, Texas, entitled “Zoning.” In June 2002, Stefan filled out a City of Dickinson form entitled “Nonconforming Use Registration,” on which he disclosed that he had been using the property as “business & multi-family” before adoption of the Zoning Ordinance; however, Stefan did not specify the business use to which he referred. In February 2017, the City received a complaint from one of the residents on Plantation Bend about a pavilion that was under construction in Stefan’s front yard. Zachary Meadows, the City’s Zoning Official could not find any records regarding a nonconforming use on the property. Meadows issued a warning to Stefan that if Stefan continued to use the property in an unauthorized manner, the City would issue citations for violation of the Zoning Ordinance. The Board of Adjustment denied Stefan’s appeal of Meadow’s decision and, after the trial court denied the City’s plea to the jurisdiction, the City filed this interlocutory appeal.

In this case Stefan sought declaratory relief; however, he did not invoke chapter 245 or point to it as a basis for any relief. Additionally, Stefan did not mention the word “project” or assert that his claims involved any project; nor did Stefan assert in his live pleading that any entity considered his application for a permit based on orders, regulations, ordinances, rules, expiration dates, or other requirements that took effect after Stefan filed the original application for the permit. As such, Stefan’s pleading, even liberally construed, did not contain a chapter 245 claim for declaratory relief. Accordingly, the court held that Stefan failed to seek judicial review of the Board of Adjustment’s decision under section 211.011.

The City contended that the trial court lacked jurisdiction over Stefan’s declaratory-judgment claim because Stefan failed to exhaust his administrative remedies by filing a petition for writ of certiorari under Local Government Code section 211.011 to obtain judicial review of the Board of Adjustment’s decision. Under Local Government Code section 211.011, Stefan had the statutory right to obtain judicial review of the Board of Adjustment’s decision. The deadline for Stefan to have filed the petition for writ of certiorari was ten days after the date on which the Board of Adjustment filed its decision. Here, instead of filing the petition for writ of certiorari, Stefan filed a petition seeking declaratory relief. Since Stefan failed to exhaust his administrative remedies by seeking review of the Board of Adjustment’s decision under Local Government Code section 211.011, the court held that the trial court lacked subject-matter jurisdiction over Stefan’s declaratory-judgment claim, and the trial court therefore erred in denying the City’s plea to the jurisdiction as to this claim.

City of Dickinson v Stefan, 611 S.W. 3d 654 (TX App. 10/27/2020)


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