Opinion

Robert Nolan Allen D/B/A/ Fetzer Howard Sign Company v. City of Baytown Debbie Sherman and Kevin Byal

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Aug 25, 2011
Status: Published
Cited by: 0 cases
Authority: More cited than 42.2%

conclusory statements not supported by facts are not proper summary judgment proof

How later courts described this case

conclusory statements not supported by facts are not proper summary judgment proof
explaining that although policies behind the two concepts often overlap, they are conceptually distinctive
holding that state law determines which state-created interests constitute property
dismissing appeal not brought by writ of certiorari for lack of subject matter jurisdiction

Written by the judges who cited it.

The opinion

Opinion issued August 25, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00914-CV

———————————

Robert Nolan Allen d/b/a Fetzer Howard Sign Company , Appellant

City of

Baytown, Debbie Sherman and Kevin Byal , Appellees

On Appeal from the County Civil Court at Law No. 4

Harris County, Texas

Trial Court Case No. 943,676

MEMORANDUM

OPINION

Appellant, Robert Nolan

Allen, doing business as “Fetzer Howard Sign Company,” challenges the trial

court’s rendition of summary judgment against him in his lawsuit against

appellee, the City of Baytown (“the City”). [1] In two issues, Allen contends that the trial

court erred in granting summary judgment in favor of the City on the grounds of

lack of subject matter jurisdiction, due to Allen’s failure to exhaust

administrative remedies against the City, and that Allen did not assert a valid

regulatory-takings claim [2]

against the City.

We affirm in part and reverse and

remand in part.

Background

In his original petition, Allen

alleges that he owned and maintained three off-premises

billboard signs in the City and, in September 2008, Hurricane Ike damaged the

creosote poles upon which the signs were placed. Allen removed the signs from the broken

poles, removed the broken poles, and placed “new poles in the ground with the

intention of putting up the signs again.”

However, before he could replace the signs, Debbie Sherman, the City’s

sign inspector, notified Allen that the poles had to be removed and the signs

could not be re-erected or rebuilt pursuant to the City’s sign ordinance. [3] Allen, o n October 8, 2008, filed “applications with the City for permits to

‘reconstruct’ or place three new signs” at the locations of the three damaged

signs. However, on October 23, 2008, the

City’s Chief Building Official denied Allen’s permit applications “because the

City’s regulations prohibit the reconstruction or replacement of off-premises

billboards that have been destroyed, damaged, or taken down.”

Pursuant to the City’s ordinance, Allen filed an appeal from the denial

of his permit applications, but the City Clerk did not receive Allen’s notices

of appeal until November 20, 2008, two weeks after the deadline to file such an

appeal. [4] On January 7, 2009, the City’s Sign

Committee conducted a public hearing to consider Allen’s appeal. The City argued that the committee lacked jurisdiction

to consider the appeal because it was untimely filed, and the committee then

denied Allen’s appeal because a majority of the members present did not vote to

proceed.

After initially filing suit against the City in district court on

February 5, 2009, Allen, on July 13, 2009, nonsuited the case. The next day, Allen filed against the City in

the Harris County Court at Law the instant suit, alleging an unconstitutional

taking of his property and seeking a declaratory judgment. He alleges that he has lost the signs and the

resulting business income. Allen

further alleges that the lands upon which his three signs were erected are

burdened with perpetual easements that cannot be rescinded, and, thus, the lands

are now damaged and essentially worthless in value. He asserts that a regulatory taking of his

property has occurred in that the regulations imposed by the City have denied

him the economically viable use of his property and unreasonably interfered with

his right to use and enjoy his property.

In its answer, the City generally denied Allen’s claim. It then filed a plea to the jurisdiction,

arguing that the trial court lacked subject matter jurisdiction over the suit

because Allen “failed to exhaust his administrative remedies by filing a timely

appeal of the City building official’s denial of his applications for permits

to reconstruct the three signs that were destroyed by Hurricane Ike.” The City subsequently filed a

summary-judgment motion, arguing for “a dismissal of Allen’s suit for want of

jurisdiction” because he had not timely filed suit in a district court within

twenty days after the City’s Sign Committee had denied his appeal of the denial

of his permit applications. [5] And the City otherwise asserted that Allen

had failed to exhaust his administrative remedies. In a footnote, the City alternatively argued

that it had taken nothing from Allen because “his property was taken by

Hurricane Ike” and the “application” of its “sign regulations do not constitute

a taking of Allen’s personal property.”

In regard to Allen’s declaratory judgment action, the City specifically

asserted that he could not rely upon it to avoid the need to exhaust

administrative and statutory remedies.

In his response to the City’s summary-judgment motion, Allen asserted

that his claim for an unconstitutional taking of his property arises from “the

leasehold interest [he] maintains for the maintenance and operation of

billboards.” He argued that the taking

of his property is in violation of article I, section 17 of the Texas

Constitution because it is “not possible for a city ordinance to regulate or

create any statute or administrative remedy which would deny a party their

constitutional claim.” Allen asserted

that “a party does not have to exhaust administrative or statutory remedies

when the claim involves one of a constitutional issue or right” and there is

“nothing about the City municipal code that bars [his] right to bring a

regulatory takings claim.” Allen further

asserted that the City’s “vague argument (in a footnote) that the takings claim

must fail as a matter of law” could not be considered as a properly pleaded

ground for summary judgment. [6]

The trial court granted the City’s summary-judgment motion, ordering that

Allen “take nothing” against the City and that his “remaining claims” against

the City be “dismissed for want of subject matter jurisdiction.”

Standard of Review

To prevail on a summary-judgment motion, a movant has the burden of

proving that he is entitled to judgment as a matter of law and there is no

genuine issue of material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth , 900 S.W.3d 339 , 341

(Tex. 1995). When a defendant moves for

summary judgment, it must either (1) disprove at least one element of the

plaintiff’s cause of action or (2) plead and conclusively establish each

essential element of its affirmative defense, thereby defeating the plaintiff’s

cause of action. Cathey , 900 S.W.2d at 341. We may affirm a summary judgment only

when the record shows that a movant has disproved at least one element of each

of the plaintiff’s claims or has established all of the elements of an

affirmative defense as to each claim. Am.

Tobacco Co. v. Grinnell ,

951 S.W.2d 420, 425 (Tex. 1997); Farah , 927 S.W.2d at 670. In

deciding whether there is a disputed material fact issue precluding summary

judgment, proof favorable to the non-movant is taken as true, and the court

must indulge every reasonable inference and resolve any doubts in favor of the

non-movant. Randall’s Food Mkts.,

Inc. v. Johnson , 891 S.W.2d

640, 644 (Tex. 1995); Lawson v. B Four Corp. , 888 S.W.2d 31, 34 (Tex. App.—Houston [1st Dist.] 1994, writ

denied). When a summary judgment does

not specify the grounds on which the trial court granted it, the reviewing

court will affirm the judgment if any theory included in the motion is

meritorious. Harwell v. State Farm

Mut. Auto. Ins. Co. , 896

S.W.2d 170, 173 (Tex. 1995); Summers v. Fort Crockett Hotel, Ltd. , 902 S.W.2d 20, 25 (Tex.

App.—Houston [1st Dist.] 1995, writ denied).

The absence of subject matter

jurisdiction may be raised by a plea to the jurisdiction , as well as by other procedural vehicles, such as a

motion for summary judgment. Tex. Dep’t of Parks & Wildlife v.

Miranda ,

133 S.W.3d 217 , 225–26 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). In reviewing a challenge to a court’s subject

matter jurisdiction, the court may review the pleadings and any other evidence

relevant to the issue. Id. at

554–55. Because subject

matter jurisdiction presents a question of law, we review the trial court’s

decision de novo. Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928

(Tex. 1998) ; Kalyanaram v. Univ. of Tex. Sys. , 230 S.W.3d 921, 927 (Tex. 2007).

Subject Matter

Jurisdiction

In his

first issue, Allen argues that the trial court erred in granting the City’s

summary-judgment motion on the ground that he had not exhausted administrative

remedies because he was “not required to exhaust administrative remedies.” Allen (1) has

asserted a claim against the City for an unconstitutional taking of his

property and (2) he seeks a declaration that section 118-131(c)

of the City’s ordinance “means” that he “has the right to re-erect his signs if

the cost of repair of the signs is less than sixty (60%) percent of the cost of

erecting a new sign” and “he is in compliance with the ordinance and that the

City of Baytown must issue a permit to allow [him] to re-erect the signs.” As noted by the City, Allen did not timely

file a petition for review in a district

court to challenge the Sign Committee’s denial of his appeal.

The City

responds that his failure to timely appeal the Sign Committee’s decision by

filing a petition for writ of certiorari constitutes a failure to exhaust

administrative remedies and therefore bars his claims.

Declaratory Judgment

Under the City’s

ordinances regulating billboard signs, the owner of a sign must obtain an

operating permit for each sign and the construction or placement of any new

off-premise billboard within the City is prohibited. Baytown, Tex., Code of Ordinances, ch. 118,

art. III, Div. 4, subd. 4, § 118-358.

Central to this dispute in this case is the following ordinance:

When any sign or a substantial part of

a sign is destroyed, damaged, or taken down or removed for any purpose other

than maintenance operations or for changing the letters, symbols, or other

matter on such sign, it shall not be re-erected, reconstructed or rebuilt,

except in full conformance with this chapter.

A sign or substantial part of it is considered to have been destroyed

only if the cost of repairing the sign is more than 60 percent of the cost of

erecting a new sign of the same type at the same location.

Id.

§ 118-131(c). It is also “unlawful for a

person to intentionally or knowingly erect, construct, build, reconstruct or

alter a sign without a prior written building permit.” Id.

§ 118-127.

The City’s ordinance

provides that the decisions of the

City’s sign administrator may be appealed to the City’s Sign Committee,

“provided the appealing party shall give notice of appeal in writing to the

city clerk no less than ten days following the decision appealed from.” Id.

§ 118-64. Moreover, a sign owner may

appeal the decisions of a municipal sign board to a state district court by

filing a verified petition for writ of certiorari within twenty days after the

date the decision is rendered by the board.

Tex. Local Gov’t Code Ann .

§ 216.014 (Vernon 2009).

Here,

the City argues that the trial court did not err in granting its summary-

judgment motion “and dismissing Allen’s claims for lack of jurisdiction”

because he failed to file a timely petition for review” in a district court of

the Sign Committee’s denial of his appeal of the City’s denial of his permit

applications to reconstruct his signs. See id .

The City asserts that Allen’s

“attempt to mask his error by mischaracterizing his claim as a regulatory

taking claim that falls outside the legislative remedy of Chapter 216 [of the

Local Government Code] is without merit.”

The

procedure for reviewing the legality of a municipal sign board’s decision

pursuant to section 216.014

is in all material respects identical to the procedure for reviewing the

decision of a zoning board of adjustment.

See and compare Tex. Local Gov’t Code Ann. § 211.011

(Vernon 2000); J.B. Adver., Inc. v. Sign Bd. of Appeals of City of

Carrollton , 883 S.W.2d 443, 446 (Tex. App.—Eastland 1994, pet.

denied). Thus, zoning board case law is

instructive in reviewing the decision of a sign board. J.B.

Adver., Inc. , 883 S.W.2d at 446 .

The

requirement that one timely file a petition for writ of certiorari to challenge

a zoning board decision is part of an administrative remedy, [7]

which is provided by the Texas Local Government Code and must be exhausted

before board decisions may be challenged in court. See

City of San Antonio v. El Dorado Amusement

Co. , 195 S.W.3d 238, 250 (Tex. App.—San Antonio 2006,

pet. denied). Thus, a suit not brought in compliance with

such a pertinent statutory provision constitutes an impermissible collateral

attack on the board’s decision. Id.

(dismissing appeal not brought by writ of certiorari

for lack of subject matter jurisdiction).

When properly brought, the only question which may be raised by a

petition for writ of certiorari is the legality of the Board’s order. See

Tex. Loc. Gov’t Code Ann. § 216.014; City of San Angelo

v. Boehme Bakery , 144 Tex. 281 , 190

S.W.2d 67, 69 (1945) (construing prior statute); El Dorado Amusement

Co. , 195 S.W.3d at 250 ; Bd. of Adjustment of

City of Piney Point Village v. Amelang , 737 S.W.2d 405, 406

(Tex. App.—Houston [14th Dist.] 1987, writ denied) . A petition for writ

of certiorari must be filed within ten days of the Board’s order. El

Dorado , 195 S.W.3d at 250 .

As noted by the City, it is true that Allen did not timely file a petition

in a district court to challenge the Sign Committee’s denial of his

appeal. And he now seeks a declaration

that “he [was] in compliance with the [City’s] ordinance and . . .

[it] must issue [him] a permit to allow [him] to re-erect the signs.” In Lamar Corporation v. City of Longview ,

the Texarkana Court of Appeals held that a sign owner’s petition for

declaratory relief, rather than a petition for a writ of certiorari, was

“insufficient to confer jurisdiction on the district court.” 270 S.W.3d 609, 614 (Tex. App.—Texarkana 2008, pet.

denied) The

court emphasized that “filing a petition for writ of certiorari is necessary in

order to exhaust administrative remedies and avoid the review from being

considered a collateral attack on the Board’s decision.” Id. Thus, the court concluded that the district

court did not have subject matter jurisdiction over the sign owner’s request

for declaratory relief. Id.

Accordingly,

we hold that the trial court did not have subject matter jurisdiction over

Allen’s declaratory judgment action, and we overrule this portion of his first

issue.

Regulatory-Takings

Claim

regard to Allen’s regulatory-takings claims, we note that s everal appellate courts have expressly rejected the City’s

argument and held that a constitutional takings issue may be considered even

though other claims are dismissed for failure to exhaust administrative

remedies. See Hitchcock v. Board of Trustees , 232 S.W.3d 208, 219 (Tex.

App.—Houston [1st Dist.] 2007, no pet.);

Lamar Corp. , 270 S.W.3d at 614 ; Centeno

v. City of Alamo Heights , No. 04-00-00546-CV, 2001 WL 518911 , at *3 (Tex.

App.—San Antonio May 16, 2001, no pet.).

In Lamar , the court concluded that the

district court did not have jurisdiction to consider the sign owner’s

declaratory judgment request, but it did have jurisdiction to consider the

owner’s unconstitutional takings claim because one may obtain judicial review of

an administrative action if the decision adversely affects a vested property

right or otherwise violates a constitutional right. Id. ;