Petition for Writ of Certiorari — Madero Development & Construction Co. v. City of El Paso
Supreme Court brief1992
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91- 901
DEC 2
Supreme Court, U.S.
FIP ED
199)
—____—= OF THE Cick |
NO. eae
IN THE
Supreme Court of the United States
OcTOBER TERM, 1992
MADERO DEVELOPMENT AND CONSTRUCTION
COMPANY, INC., a Texas Corporation, and
CHAPARRAL EQUITY CORPORATION,
a Texas Corporation,
Petitioners,
Vv
CITY OF EL PASO, TEXAS,
a Municipal Corporation, and
CITY PLAN COMMISSION,
Respondents.
On Petition for Writ of Certiorari to
The Court of Appeals of Texas,
Eighth District, El] Paso, Texas
PETITION FOR WRIT OF CERTIORARI
R. WAYNE PRITCHARD
GINNINGS, BIRKELBACH, KEITH
& DELGADO
A Professional Corporation
P. O. Box 54
El Paso, Texas 79940
Tel. (915) 532-5929
Fax (915) 532-7073
Attorneys for Petitioners
Madero Development and
Construction Co. and Chaparral
Equity Corporation
ee
Alpha Law Brief Co.—6113 Aletha Lane— Houston, Texas 77081 — 981-9000
|
i
QUESTIONS PRESENTED FOR REVIEW
1. When a landowner has successfully shown that through
regulations effecting density, a land use regulator has
deprived the owner of all economically viable use of
his property and therefore destroyed the owner’s rea-
sonable, investment-backed expectations, without com-
pensation in violation of the 5th Amendment to the
United States Constitution, is it consistent with prior
decisions of this Court to:
A. Hold that in order for such case to be “ripe” for
judicial review, the landowner must first attempt
to obtain a variance in the density restrictions
from the land use regulator when the regulator
has no authority to grant such a variance?
B. Hold that the “ripeness” requirement of justici-
ability can never be satisfied unless the land
owner attempts to obtain a variance?
C. Fail to consider the non-jurisdictional, “pruden-
tial”, aspects of ripeness?
2. Is it consistent with prior decisions of this Court for
lower courts to determine whether it wuld be futile
for the landowner to seek variance based upon a rigid
application of the Williamson variance requirement
without regard to whether such variance could in fact
be granted?
3. Is it consistent with this Court’s hold in First English
Evangelical Lutheran Church v. County of Los An-
geles, 482 U.S. 304, 107 S. Ct. 2378, 96 L.Ed.2d 250
(U.S. 1987), wherein it was held that all takings,
includin,;, temporary ones, require the payment of just
compensation; to require a property owner to seek a
variance before being entitled to the payment of com-
pensation?
eeiiemeieeetecneenenn miele
ii
TABLE OF CONTENTS
Questions Presented for Review
Table of Contents
Table of Authorities
Petition for Writ of Certiorari
Opinions Below
Jurisdiction
Constitutional and Statutory Provisions Involved
Statement of the Case
Reasons for Granting the Writ
Introduction
Whether Or Not A Variance
Lower Courts Have Ignored
Mechanist Application Of
Conclusion
Appendix A
(Opinion, Court of Appeals, Eighth District
EI Paso, Texas Dated January 4, 1991)
Agueni: @ .... . is eee
(Order Denying Motion for Rehearing from
Texas Supreme Court Dated Sept. 5, 1991)
Aggumm@m ©... ieee
(Judgment of the 243rd J udicial District Court
of El Paso, Texas Dated Sept. 19, 1991)
Appendix D
(El Paso City Ordinances, pertinent pro-
visions )
Appendix E
(Texas Local Gov't Code, pertinent pro-
visions )
13a
15a
19a
34a
iil
TABLE OF AUTHORITIES
Page
FEDERAL CASES:
Abbott Laboratories v. Gardner, 387 U.S. 136,
87 S. Ct. 1507, 18 L.Ed.2d 681 (U.S. 1967)
REE NOI Se ee 9, 15, 17,19
Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315,
82 L.Ed.2d 556 (U.S. 1984) ._._.. 14
Ashwander v. Tennessee Valley Authority, 297
U.S. 288, 341, 56 S. Ct. 466, 482, 80 L.Ed.
688 (US. 1935) Re ee 16
Association of National Advertisers, Inc. v. Fed-
eral Trade Commission, 627 F.2d 1151 (D.C.
te ae gi ne eee eee e © 19
Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7
L.Ed.2d 663 (U.S. 1962) ............ 13
Beure-Co. v. United States, 16 Cl. Ct. 42 (Cl.
I oer et os ee, 23
Brown v. Fero Corp., 763 F.2d 798 (6th Cir.
1985), cert. denied, 474 U.S. 947, 106 S. Ct.
344, 88 L.Ed.2d 291 (U.S. 1985) _.. 17
Chamber of Commerce v. United States Dept. of
Energy, 627 F.2d 289 (D.C. Cir. 1980) ; 14
City of New York v. Baker, 878 F.2d 507 (D.C.
Cir. 1989) Ree Secret, 14
Columbia Broadcasting Systems, Inc. v. United
States, 316 U.S. 407, 418-419, 62 S. Ct. 1194,
1200-1201, 86 L.Ed. 1563 (U.S. 1942) 20
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,
477, 95 S. Ct. 1029, 1037, 43 L.Ed.2d 328
ES ee re 16
Dahl v. City of Palo Alto, 372 F.Supp. 647
(N.D. Calif. 1974) .... . §3, 24
Del Monte Dunes at Monterey, Ltd. v. County
of Monterey, 920 F.2d 1501 (9th Cir. 1990) 8
Duke Power Co. v. Carolina Environmental
Study Group, Inc., 483 U.S. 59, 98 S. Ct.
2620, 57 L.Ed.2d 595 (U.S. 1978) _. 12, 14
hy
El Paso Electric v. Federal Energy Regulatory
Commission, 667 F.2d 462 (5th Cir. 1982) 13
Executive 100, Inc. v. Martin County, 922 F.2d
1536 (11th Cir. 1991) 10
First English Evangelical Luthern Church v.
County of Los Angeles, 482 U.S. 304, 107 S.
Ct. 2378, 96 L.Ed.2d 250 (U.S. 1987)
| i, 7, 8, 10, 11, 12
Flast v. Cohen, 392 US. 83, 95, 88 S. Ct. 1942,
1950, 20 L.Ed. 947 (U.S. 1968) 14
Florida Rock Canyon Indus., Inc. v. United
States, 21 Cl. Ct. 161 (Cl. Ct. 1990) 23
Formanek vy. United States, 18 Cl. Ct. 785 (Cl.
Ct. 1989) 23
Herrington v. County of Sonoma, 875 F. 2d 567
(9th Cir. 1988) 23
Hodel v. Irving, 481 U.S. 704, 107 S. Ct. 2076,
95 L.Ed.2d 668 (U.S. 1987) 7
Hoehne v. County of San Benito, 870 F.2d 529,
535 (9th Cir. 1989) 24
Hotel Restaurant Employees Union v. Smith,
846 F.2d 1499 (D.C. Cir. 1988) 12,14
Keystone Bituminous Coal Ass'n v. DeBenedictis,
480 U.S. 470, 107 S. Ct. 1232, 94 L.Ed.2d
472 (U.S. 1987) | naan 7
Kinzli v. City of Santa Cruz, 818 F.2d 1449
(9th Cir. 1987) 9, 10, 11
Lake Nacimiento Ranch Co. v. San Luis Obispo
Cry, 841 F.2d 872 (9th Cir. 1987) 8,9
Littlefield v. City of Afton, 785 F.2d 596 (8th
Cir. 1986) Sao 11
Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L.Ed.
2d 868 (U.S. 1982) 7
Loveladies Harbor, Inc. v. United States, 15 Cl.
Ct. 318 (Cl. Ct. 1991) 23
Lucas v. South Carolina Coastal Council, 60
U.S.L.W. 3208 (Nov. 18, 1991) 8
Page
MacDonald, Sommer & Frates v. County of Yolo,
477 U.S. 340, 106 S. Ct. 2561, 91 L.Ed.2d
285 (U.S. 1986) | Ft ae
Maryland Casualty Co. v. Pacific Coal & Oil Co.,
312 U.S. 270, 273, 61 S. Ct. 510, 512, 85
L.Ed. 826 (U.S. 1941) 20
Neiderhiser v. Borough of Berwick, 840 F.2d
ric ge 9 = Sb; Een ret otter 9
Nollan v. California Coastal Commission, 483
U.S. 825, 107 S. Ct. 3141, 97 L.Ed.2d 677
CRA ee cee. pe eee ee 7
PFZ Properties, Inc. v. Rodriguez, 60 U.S.L.W.
3082 (Nov. 12, 1991) 8
Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6
L.Ed.2d 989 (U.S. 1961) 13, 14
Radio Station WOW, Inc. v. Johnson, 326 US.
120, 65 S. Ct. 1475, 89 L.Ed. 2092 (USS.
PO moi koe eck ean bee 16
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104
S. Ct. 2862, 81 L.Ed.2d 815 (U.S. 1984) 7
Samaad y. City of Dallas, 940 F.2d 925 (Sth
Cir. 1991) ne a i 9
San Diego Gas & Electric Co. v. San Diego, 450
U.S. 621, 101 S. Ct. 1287, 67 L.Ed.2d 551
(U.S. 1981) 7, 26
Shelter Creek Development Corp. v. City of
Oxnard, 838 F.2d 375 (9th Cir. 1988) 8,9
Sinola Lake Owners Association v. City of Simi
Valley, 846 F.2d 1475, 1480 (9th Cir. 1989) 9
United States v. W. T. Grant Co., 345 U.S. 629,
73 S. Ct. 894, 97 L.Ed.2d 1303 (U.S. 1953) 14
Unity Ventures v. County of Lake, 841 F.2d 720
(7th Cir. 1988) 9,10
Weinberger v. Weisenfeld, 420 US. 636, 95 S.
Ct. 1225, 43 L.Ed.2d 514 (U.S. 1975) 24
Whitney Benefits, Inc. v. United States, 926 F.2d
1169 (Fed. Cir. 1991) 10, 24
vi
Williamson County Regional Planning Commis-
mission v. Hamilton Bank of Johnson City,
473 US. 136, 105 S. Ct. 3108, 87 L.Ed.2d
126 (U.S. 1985)
Yee v. City of Escondido, 112 §. Ct. 294 (Oc-
tober 15, 1991)
Zibler v. Town of Moraga, 692 F.Supp. 1195,
(N.D. Calif. 1988)
STATE CASES:
Bat’tles v. Board of Adjustment, 711 S.W.2d 297
(Tex. App.—Dallas 1986, no writ)
Board of Adjustment v. Stovall, 218 S.W.2d 286
(Tex. Civ. App.—Fort Worth 1949, no writ)
Board of Adjustment vy. Willie, 511 S.W.2d 591
(Tex. Civ. App.—San Antonio 1974, writ
ref’d n.r.e.) ,
3owman v. Howell, 618 S.W.2d 913 (Tex. App.
—Fort Worth 1981, no writ)
Bullock v. Briggs, 623 S.W.2d 508 (Tex. App.
——Austin 1981, writ ref’d n.r.e.), cert. denied,
457 U.S. 1135, 102 S. Ct. 2962, 73 L.Ed.2d
1352 (U.S. 1982)
City of El Paso v. Madero Development Corpor-
ation, et al, 803 S.W.2d 396 (Tex. App.—El
Paso 1991, writ denied)
Elbar, Inc. v. Claussen, 774 S.W.2d 45 (Tex.
App.—Dallas 1989, no writ)
Feiler v. Fort Lee Board of Adjustment, 573
A.2d 175 (N.J. Super. Ct. App. Div. 1990)
Giutini v. Aronow, 459 N.Y.S.2d 117 (N.Y.
App. Div. 1983)
Harrington v. Board of Adjustment, 124 S.W.2d
401 (Tex. Civ. App.—Amarillo 1939, writ
ref'd)
Vii
Mesolella v. City of Providence, 508 A.2d 661,
665 (R.I. 1986) eee
People v. Superior Court of County of Sonoma,
91 Cal. App. 3d 95, 101-102 (Cal. Ct. App.
1979) | |
Van Duesen v. Jackson, 312 N.Y.S.2d 853 (N.Y.
App.Div. 1970)
CONSTITUTIONS:
U.S. Const. art. 1 § 1
U.S. Const. Sth Amendment
U.S. Const. 14th Amendment
Tex. Const. art. 2 § 1
STATUTES:
28 U.S.C. § 1257 (1988)
Tex. Rev. Civ. Stat. Ann. art. 101g
Tex. Loc. Gov't Code Ann. § 211.009(a)(3)
ORDINANCES:
El Paso, Tx., Ordinance § 2.16.030 (1989)
El Paso, Tx., Ordinance 8226 (Dec. 4, 1984)
El Paso, Tx., Ordinance 8561 (Jan. 18, 1986)
PERIODICALS:
Petition for Writ of Certiorari, Lake Nacimiento
Ranch Co. v. County of San Luis Obispo, Cali-
fornia, (No. 87-2104)
Berger, The “Ripeness’ Mess in Federal Land
Use Cases or How the Supreme Court Con-
verted Federal Judges into Fruit Peddlers, Ch.
7, Southwest Legal Foundation Institute of
Planning, Zoning, and Eminent Domain 21st
Annual Meeting (1991)
Page
11
23
Le
THE
Supreme Court of the United States
OcTOBER TERM, 1992
MADERO DEVELOPMENT AND CONSTRUCTION
COMPANY, INC., a Texas Corporation, and
CHAPARRAL EQUITY CORPORATION,
a Texas Corporation,
Petitioners,
v.
CITY OF EL PASO, TEXAS,
a Municipal Corporation, and
CITY PLAN COMMISSION,
Respondents.
On Petition for Writ of Certiorari to
The Court of Appeals of Texas,
Eighth District, El Paso, Texas
PETITION FOR WRIT OF CERTIORARI
The Petitioners MADERO DEVELOPMENT AND
CONSTRUCTION COMPANY, INC. (“Madero”) and
CHAPARRAL EQUITY CORPORATION (“Chaparral
Equity”), respectfully pray that a Writ of Certiorari issue
to review the Judgment of the Supreme Court of Texas
entered June 19, 1991.
OPINIONS BELOW
The Order of the Supreme Court of Texas denying
Petitioners’ Motion for Rehearing (Appendix B) is re-
ported at 34 Tex. Sup. Ct. J. 36. The Opinion of the
Court of Appeals, Eight District of Texas (Appendix A)
is reported at 803 S.W.2d 396 The Judgment of the
243rd Judicial District Court of El Paso County, Texas
appears in Appendix C.
2
JURISDICTION
This case involved a regulatory taking of approxi-
mately 33 acres of undeveloped land known as Madero
Hills. Following over 15 years of Petitioners’ attempts
to develop Madero Hills, the City of El Paso voted to
include Madero Hills in the Planned Mountain Develop-
ment (“PMD”) zoning ordinance effectively depriving
Petitioners of all economically viable use of such property.
Petitioners instituted inverse condemnation proceed-
ings in Federal district court alleging, among other things,
that the actions of the City of El Paso in including Ma-
dero Hills in the PMD were unconstitutional in that
such actions deprived Petitioners of their property with-
out compensation in violation of the 5th and 14th Amend-
ments to the United States Constitution. On December
21, 1988, the Federal district court granted the City of
El Paso’s Motion for Summary Judgment dismissing
Petitioners’ claims as unripe. In January, 1989, Pe-
titioners refiled their action in state district court and on
August 2, 1989, following a two week jury trial, the
trial court granted judgment for Petitioners and awarded
Petitioners $871,200 in damages. On January 4, 1991,
the Court of Appeals for the Eighth District, E] Paso,
Texas reversed the judgment of the trial court and dis-
missed Petitioners claims as unripe. Petitioners’ Ap-
plication for Writ of Error to the Texas Supreme Court
was denied on June 19, 1991. On September 5, 1991,
the Texas Supreme Court denied Petitioners’ Motion
for Rehearing. The Jurisdiction of this Court is invoked
under 28 U.S.C. § 1257 (1988).
3
CONSTITUTIONAL PROVISIONS, STATUTES
AND ORDINANCES INVOLVED
The Fifth Amendment to the United States Constitution
provides in pertinent part as follows:
nd
No person shall * *
or property, without due process of law: nor shall
private property be taken for public use, without
just compensation.
The Fourteenth Amednment to the United States Cons-
titution provides in pertinent part as follows:
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any
person of life, liberty, or prosperty, without due
process of law * * *
Pertinent provisions of the City of El Paso Ordinances
and Texas Local Government Code are attached hereto
as Exhibits “D” and “E” respectively.
STATEMENT OF THE CASE
Richard G. Miller, principal stockholder of Chapar-
ral Equity, purchased approximately 100 acres of real
estate known as “Crazy Cat Mountain” in the late 1960s.
Crazy Cat is geologically described as the “Crazy Cat
Landslide” which fell off the adjacent Franklin Mount-
ains millions of years ago. The Franklin Mountain range
lies within the El Paso City limits descending to the Rio
Grande River creating the “Pass of the North.” The
purchased real estate and the surrounding developments
were zoned R-3. Chaparral Equity initiated the Sierra
Crest Subdivision development in 1975 by requesting
4 -
a rezoning to PUD-1, a planned unit development by
special permit. Approximately 67 acres of the real estate
tract located on the top and sides of the hill was rezoned
and subsequently developed into streets and 113 single
family lots.
Rolando Madero, principal stockholder of Madero
Development and Construction Company, Inc., a Mexi-
can born and educated engineer and architect, served
as Mr. Miller’s subdivision designer. With the assistance
of his family, Mr. Madero purchased the remaining
approximately 33 acres of Crazy Cat Mountain in 1979
with the intention of developing Madero Hills. Madero
Hills lies on the identical slope as the above Sierra
Crest Subdivision.
The R-3 zoning classification in the adjacent estab-
lished Kern Place neighborhood permitted lots as small
as 50 feet wide by 120 feet in depth. R-3 zoning classi-
fication permits a density of approximately 5.8 single-
dwelling units per acre or a total of 174 lots for Madero
Hills. Mr. Madero designed Madero Hills into 79 resi-
dential lots with a street running down the middle of
the subdivision tract.
Mr. Madero over a period of five and one-half years
spent considerable time, effort and money in filing for
and obtaining the City of El Paso’s approval of a master
plan, preliminary approval of a four phase development,
final approval of the first phase, and approval of a grad-
ing permit. During Mr. Madero’s development efforts,
it was not uncustomary for Respondents to change the
rules or invent new obstacles not required of other
developers. For instance, the final approval for the Unit
One was granted subject to twenty-four conditions, many
5
of which had never been imposed on a residential sub-
division in E] Paso and would have been impossible to
accomplish.
As early as 1982, the El Paso City Council decided
to create a more restrictive mountainside zoning classi-
fication. Subdivisions under development, however, in-
cluding Madero Hills would be exempt from this new
classification. The new zoning classification was finally
passed as Ordinance 8226 by the El Paso City Council
on December 4, 1984, and was known as the Planned
Mountain Development or “PMD.” The stated purpose
of the PMD was to directly correlate the density of the
proposed development to the slope of the proposed de-
velopment based upon two self-executing tables.
To circumvent the original planned exemption of
Madero Hills from the PMD required a very deliberate
scheme by which Respondents falsely terminated prior
approvals and disseminated incorrect information. For
instance, the planning department declared the grading
permit revoked whereas the city engineer stated the
permit was still active. Another example was that the
cloth plat map had been submitted and signed by the
city engineer but not distributed by the city personnel
to the other city offices for processing. Ultimately, ap-
parently feeling the pressures from adjacent land owners
to preserve Madero Hills as a scenic easement, on Jan-
uary 14, 1986, the El Paso City Council passed Ordi-
nance 8561 changing the Madero Hills zoning classi-
fication from R-3 to PMD over the objections of the
Petitioners. City Council members and staff acknowl-
edged that there was no consideration given to Pe-
titioners’ economic investment and reasonably invest-
6
ment backed expectations when Madero Hills was re-
zoned.
Fo: »wing the inclusion of Madero Hills in the PMD,
the city staff acknowledged that the slope of Madero
Hills was forty-eight percent (48%) or an equivalent
of a twenty-five degree (25°) angle. Through the self
executing character of the PMD ordinance, the number
of residential units capable of being developed on Madero
Hills was reduced from 174 to seven multi-family dwell-
ings units or 11 single-family dwelling units. It was not
economically feasible to subdivide Madero Hills into
only eleven lots.
Uncontroverted testimony and evidence in the lower
court established that it would have been futile for
the Petitioners to have received any further relief from
the El Paso City Council. In addition to the clearly de-
liberate attempts to include Madero Hills into PMD,
city council members testified regarding their expressed
viewpoint that the city did not want anything on Madero
Hills. Additionally, under the present statutory authority
the Zoning Board of Adjustment (“ZBA”) lacks the
legal authority to change the expressed specific limita-
tions of the PMD ordinance.
In January of 1989, Petitioners instituted this action
against the City of El Paso and the City Zoning Com-
mission (hereinafter sometimes collectively referred to
as the “City of El Paso”) in state court. Following a
two week trial, the jury and the judge (independently )
found that the City of El Paso had deprived Madero
and Chaparral Equity of their property in violation
of the Texas Constitution as well as the United States
Constitution and awarded Petitioners $871,200 in dam-
ages.
"7
/
The Court of Appeals reversed the trial court judg-
ment and dismissed Petitioners’ claims for want of juris-
diction on the basis of ripeness. [In a two to one decision
in which each justice wrote his own opinion, the Court
of Appeals found:
1. Ripeness to be jurisdictional and not subject to
waiver;
2. Petitioners’ claims were not “ripe” for review
because Petitioners had not sought a variance:
and,
3. Petitioners could not invoke the “futility excep
tion” without first seeking a variance.
On February 21, 1991, Petitioners filed their applica-
tion for writ of error with the Texas Supreme Court.
On June 19, 1991, such application was denied and
on September 5, 1991 the Texas Supreme Court denied
Petitioners’ Motion for Rehearing.
REASONS FOR GRANTING THE PETITION
Introduction
Between 1981 and 1987, this Court decided several
cases involving inverse condemnation.’ These decisions,
however, have not resolved many of the issues surround-
ing taking claims’. In First English’, a case in which
1. San Diego Gas & Electric Company v. City of San Diego, 450
U.S. 621, 101 S. Ct. 1287, 67 L.Ed.2d 551 (US. 1981): Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct.
3164, 73 L.Ed.2d 868 (U.S. 1982); Ruckelshaus v. Monsanto Co.,
467 U.S. 986, 104 S. Ct. 2862, 81 L.Ed.2d 815 (U.S. 1984):
Williamson County Regional Planning Commission v. Hamilton Bank
of Johnson City, 473 U.S. 172, 105 S. Ct. 3108, 87 L.Ed.2d 126
(U.S. 1985); MacDonald, Sommer && Frates v. Volo County, 477
U.S. 340, 106 S. Ct. 2561, 91 L.Ed.2d 285 (U.S. 1986): Keystone
Bituminous Coal Ass’n v. DeBenedictis, 450 U.S. 470, 107 S. Ct.
1232, 94 L.Ed.2d 472 (U.S. 1987); Hodel v. Irving, 481 U.S. 704,
107 S. Ci. 2076, 95 L.Ed.2d 668 (U.S. 1987); First English Evan-
8
the property owner did not seek to obtain a variance
from the land use restrictions prior to instituting an in-
verse condemnation action*, this Court held that anv
taking, no matter how temporary. required conpensation
to be paid to the property owner. In disregard to such
ruling, lower courts, including the appellate court in
the instant action, continue to dismiss claims as unripe
where the property owner has not sought a variance.°
No matter whether the regulation as a whole is ultimately
invalidated as denying all reasonable use, or whether,
through a variance, the regulation is invalidated as to a
particular land owner; the fact that a taking has occurred
in both situations mandates the payment of just compen-
sation.
Additionally, in contrast to this Court’s ad hoc factual
resolution of ripeness, lower courts have adopted a me-
chanistic approach. In order to establish that his taking
claim is ripe, lower courts require a property owner to
gelical Lutheran Church v. County of Los Angeles, 482 U.S. 304,
107 S. Ct. 2378, 96 L.Ed.2d 250 (U.S. 1987); Nollan v. California
Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L.Ed.2d 677
(U.S. 1987).
2. As evidenced by the fact that in the present term, this Court has
granted writ of certiorari in two inverse condemnation cases and
in three eminent domain cases. Yee v. City of Escondido, 112 S. Ct.
294 (October 15, 1991); PFZ Properties, Inc. v. Rodriguez, 60
U.S.L.W. 3082 (Nov. 12, 1991); Lucas v. South Carolina Coastal
Council, 60 U.S.L.W. 3208 (Nov. 18, 1991).
3. First English Evangelical Luthern Church v. County of Los
Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L.Ed.2d 250 (U.S. 1987).
4. See Petition for Writ of Certiorari, Lake Nacimiento Ranch
Co. v. County of San Luis Obispo, California, No. 87-2104, page 20.
5. See Zibler v. Town of Moraga, 692 F.Supp. 1195, 1197-1202
(N.D. Calif. 1988); See also Shelter Creek Development Corp. v.
City of Oxnard, 838 F.2d 375 (9th Cir. 1988); see also Lake
Nacimiento Ranch Co. v. San Luis Obispo Cty., 841 F.2d 872 (9th
Cir. 1987); see also Del Monte Dunes at Monterey, Ltd. v. County
of Monterey, 920 F.2d 1496, 1501 (9th Cir. 1990).
9
first have filed for and been rejected both a permit as
well as variance application.°
Although this Court has never addressed the applica-
tion of the futility exception, lower court’s seem settled
on the proposition that a property owner must first seek
both a permit as well as a variance application before
the futility exception can be invoked.’ Such requirements
destroy totally any viable use of the futility exception
and mandate the futile act which the futility exception
was created to avoid.
Finally, in addressing both the futility exception as
well as ripeness, lower courts have consistently held ripe-
ness to be jurisdictional and not subject to waiver.* Such
holding is in stark contrast to the two prong ripeness test
elaborated by this Court in Abbott.°
This case provides the unique opportunity for this
Court to resolve all of the above stated inconsistencies
6. See Unity Ventures v. County of Lake, 841 F.2d 770 (7th
Cir. 1988); see also Kinzli v. City of Santa Cruz, 818 F.2d 1449,
opinion amended by, 830 F.2d 968 (9th Cir. 1987), cert. denied,
484 U.S. 1043, 108 S. Ct. 775, 98 L.Ed.2d 861 (U.S. 1988); see
also Shelter Creek Development Corp. v. City of Oxnard, 838 F.2d
375 (9th Cir. 1988); see also Lake Nacimiento Ranch Co. v. San
Luis Obispo Cty., 841 F.2d 872 (9th Cir. 1987).
7. See Zibler v. Town of Moraga, 692 F.Supp. at 1197-1202;
Kinzli v. City of Santa Cruz, 818 F.2d 1449, opinion amended by,
830 F.2d 968 (9th Cir. 1987), cert. denied, 484 U.S. 1043, 108
S. Ct. 775, 98 L.Ed.2d 861 (U.S. 1988): see also Shelter Creek
Development Corp. v. City of Oxnard, 838 F.2d 375 (9th Cir. 1988) ;
see also Lake Nacimiento Ranch Co. v. San Luis Obispo City, 841
F.2d 872 (9th Cir. 1987).
8. See, e.g., Samaad v. City of Dallas, 940 F.2d 925, 934 (Sth
Cir. 1991); Sinmola Lake Owners Association v. City of Simi Valley,
846 F.2d 1475, 1480 (9th Cir. 1989); Neiderhiser v. Borough of
Berwick, 840 F.2d 213, 216 (3d Cir. 1988).
9. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507,
18 L.Ed2d 681 (U.S. 1967).
10
and to provide the guidance both property owners as
well as land use regulators need to effectively manage
taking related issues.
WHETHER OR NOT A VARIANCE CAN BE
OBTAINED IS IRRELEVANT TO THE
DETERMINATION OF WHETHER A
TAKING HAS OCCURRED
In Williamson’ and McDonald", this Court refused
to review taking claims on the basis that the property
owner had an opportunity to obtain a variance from
the the zoning authorities that would permit the de-
velopment of the property to proceed. Implicit in these
holdings was the assumption that the temporary depriva-
tion of all use of property would not constitute a taking
if it could be adequately remedied by a later approval
of the developer’s plans.’”
Applying the perceived rational of Wéilliamson that
all taking claims were unripe without a property owner
first seeking a variance from the land use restrictions,
lower court’s, in a majority of cases, have dismissed
taking claims as being premature where such variance
had not been sought.'* In 1987, this Court rendered
10. Williamson County Regional Planning Commission v. Hamil-
ton Bank of Johnson City, 473 U.S. 172, 105 S. Ct. 3108, 87 L.Ed.2d
126 (U.S. 1985).
11. MacDonald, Sommer & Frates v. County of Yolo, 477 US.
340, 106 S. Ct. 2561, 91 L.Ed.2d 285 (U.S. 1986).
12. See First English Evangelical Luthern Church v. County ot
Los Angeles, 482 U.S. 304, 333, 107 S. Ct. 2378, 2396, 96 L.Ed.2d
250 (U.S. 1987) (Stevens, J., dissenting).
13. See, e.g., Executive 100, Inc. v. Martin County, 922 F.2d
1536, 1540 (11th Cir.), cert. denied, US. —, 112 S. Ct. 55
(U.S. 1991); Unity Ventures v. County of Lake, 841 F.2d 770
li
its decision in First English wherein it was held that
temporary regulatory takings which deny a landowner
all use of his property, are not different in kind from
permanent takings for which the Constitution clearly re-
quires compensation."
In First English, the landowner did not seek to obtain
a variance from the zoning authorities but instead pro-
ceeded to immediately institute an inverse condemnation
action.'° The temporary regulatory taking discussed in
First English is in substance identical to that which is
present in the case at bar.
Here, the interaction of the variance procedure and
inverse condemnation procedure has the property owner
chasing his own tail, so to speak, and never having a
real opportunity for relief. The ZBA had jurisdiction
to grant a variance only if application of the PMD
zoning effected a taking.'® But if the effect was already
that severe, then, under First English, compensation was
already owed. The only thing that any later govern-
mental action could do would be to mitigate the damages
by converting a permanent taking into a temporary one.
Thus the appellate determination below, which held that
(7th Cir. 1988); Kinzli v. City of Santa Cruz, 818 F.2d 1449,
opinion amended by, 830 F.2d 968 (9th Cir. 1987), cert. denied,
484 U.S. 1043, 108 S. Ct. 775, 98 L.Ed.2d 861 (U.S. 1988); Little-
field v. City of Afton, 785 F.2d 596 (8th Cir. 1986).
14. See First English, 482 U.S. at 318, 107 S. Ct. at 2388.
15. See Petition for Writ of Certiorari, Lake Nacimiento Ranch
Co. v. County of San Luis Obispo, California, No. 87-2104, page 20.
16. See Tex. Rev. Civ. Stat. Ann. art. 1011g now codified as
Tex. Local Government Code § 211.009(a)(3) authorizes the ZBA
to grant variances only where “. . . a literal enforcement of the
ordinance would result in unnecessary hardship . . .”: see also
Board of Adjustment v. Willie, 511 S.W.2d 591 (Tex. Civ. App.—
San Antonio 1974, writ ref'd n.re.) (art. 1011g requires denial of
all reasonable use): El Paso Ordinance § 2.16.030 (1989).
12
the property owner had to go back to the ZBA for a
variance before seeking compensation for a taking’’ which
had already occurred is in irreconcileable conflict with
First English. The question of whether a variance can
be granted is simply irrelevant to the determination of
whether a taking has occurred. It is only a mitigation
measure.
From the moment Madero Hills was placed into the
PMD, the City of El Paso unconstitutionally deprived
Petitioners of their property. Once such taking had oc-
curred, the City of El Paso retained the whole range of
options already available—amendnment of the regulation,
withdrawal of the invalidated regulation, of the exercise
of eminent domain.’* No subsequent action, however,
by the City of El Paso can relieve it of the duty to
provide compensation for the period during which the
taking was effective.
LOWER COURTS HAVE IGNORED THIS
COURT’S CAREFUL EXPLANATION OF
THE “PRUDENTIAL” COMPONENT OF
“RIPENESS” BY TAKING THE EASIER
—AND ERRONEOUS—WAY OF
TREATING ALL “RIPENESS”
DECISIONS AS JURISDICTIONAL
This Court’s decisions make it clear that ripeness is
not automatically a jurisdictional issue.’® Rather, this
17. City of El Paso v. Madero Development Corporation, et al.,
803 S.W.2d 396 (Tex. App.—El Paso 1991, writ denied) (attached
hereto at Appendix A).
18. See First English, 482 U.S. at 321, 107 S. Ct. at 2389.
19. See Duke Power Co. v. Carolina Environmental Study Group,
Inc., 438 U.S. 59, 81, 98 S. Ct. 2620, 2635, 57 L.Ed.2d 595 (USS.
1978); see also Hotel Restaurant Employees Union v. Smith, 846
F.2d 1499, 1516-1517 (D.C. Cir. 1988).
13
Court has held that the jursdictional component of
ripeness is merely a narrow aspect of the doctrine. The
more fundamental role of the ripeness doctrine is to de-
termine whether cases, which are within lower court’s
jurisdiction to consider, ought to be considered for pru-
dential reasons.
Lower courts, including the state appellate court herein,
have consistently used the concept of ripeness to avoid
making decisions on the merits in taking cases.*® Such
courts have routinely held ripeness to be jurisdictional
and dismissed taking claims, sua sponte.” To justify
“ripeness” as a jurisdictional concept, lower courts have,
without exception, focused exclusively upon the William-
son finality requirement and ignored the policy consid-
erations outlined by this Court in Abbott. The fact that
ripeness includes both constitutional as well as policy
or prudential considerations cannot be disputed. The
prudential component of ripeness can be seen both in
the futility exception to such requirement as well as in
prior decisions of this Court.
Mootness, standing, ripeness and political question form
the component parts to the Article III “case and con-
troversy” constitutional doctrine of justiciability.** Al-
though nonjusticiability is not to be confused with the
lack of jurisdiction over the subject matter,”* the distinc-
tion between the two concepts has often been blurred.**
20. See cases cited supra notes 5, 6, 8, 14.
21. See cases cited supra note 8.
22. See Poe v. Ullman, 367 U.S. 497, 504, 81 S. Ct. 1752, 1756,
6 L.Ed.2d 989 (U.S. 1961); see also El Paso Electric v. Federal
Energy Regulatory Commission, 667 F.2d 462, 466 (Sth Cir. 1982).
23. See Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L.Ed.2d
663 (U.S. 1962).
24. See Mesolella v. City of Providence, 508 A.2d 661, 665
(R.I. 1986).
a eO
14
Justiciability is a concept of uncertain meaning ind
scope.”® This Court has previously stated that justiciability
is not a legal concept with a fixed content or susceptible
of scientific verification.*“” The doctrine has become a
blend of the constitutional limitations imposed pursuant
to Article II] as well as restraints imposed based upon
policy considerations.*'
This Court has recognized that all the component
parts to justiciability include both jurisdictional as well
as prudential concerns.** Referring to mootness, it has
been said that the prudential component “. . . is a me-
lange of doctrines relating to the court’s discretion in
matters of remedy and judicial administration. Unlike
Article III mootness, these doctrines address not the
power to grant relief but the court’s discretion in the
exercise of that power.” *" Such concepts have been
referred to as “prudential mootness” “’ and “prudential
99 41
ripeness”.
25. See Flast v. Cohen, 392 U.S. 83, 95, 88 S. Ct. 1942, 1950
20 L.Ed. 947 (U.S. 1968).
26. See Poe v. Ullman, 367 US. at 508.
27. Sce Flast v. Cohen, 392 U.S. at 97, 88 S. Ct. at 1951.
28. See, e.g., Duke Power Co. v. Carolina Environmental Study
Group, Inc., 438 U.S 59, 81, 98 S. Ct. 2620, 2635, 57 L.Ed.2d 595
(U.S. 1978) (prudential considerations embodied in ripeness) ;
Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 3324, 82
L.Ed.2d 556 (U.S. 1984) (standing includes prudential concerns) ;
United States v. W.T. Grant Co., 345 U.S. 629, 73 S. Ct. 894, 97
L.Ed. 1303 (U.S. 1953) (mootness includes prudential considerations).
29. See Chamber of Commerce v. United States Dept. of Energy,
627 F.2d 289, 291 (D.C. Cir. 1980).
30. See City of New York v. Baker, 878 F.2d 507, 509 (DC.
Cir. 1989).
31. See Hotel Restaurant Employees Union v. Smith, 846 F.2d
1499, 1516-1517 (D.C. Cir. 1988).
15
Both the constitutional as well as the policy or pru-
dential considerations involved in ripeness were dis-
cussed in the leading “ripeness” case of Abbott.”* In
Abbott, this Court established a two prong test for de-
termining whether a case was “ripe.” First, the issues
present must be fit for judicial decision." The scope
of this requirement is limited to the constitutional re-
straints imposed under Article III.
The second prong of the Abbott “ripeness” test fo-
cuses upon the hardships to the parties in withholding
court consideration.”' It is from this prong of the Abbott
“ripeness” test from which the futility exception discussed
by this Court in Williamson and MacDonald stems.*”
The futility exception is a creation of the prudential con-
siderations outlined in the often quoted opinion of Justice
32. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct.
1507, 18 L.Ed.2d 681 (U.S. 1967).
33. See Abbott, 387 US. at 149, 87 S. Ct. at 1515
34. See Abbott, 387 U.S. at 149, 87S. Ct. at 1515.
35. Beginning in 1974, California courts, both Federal and State
began discussing a “futility exception” to the exhaustion of ad-
ministrative remedies doctrine. In Dahl v. City of Palo Alto, 372
F.Supp. 647, 649 (N.D. Calif. 1974), the court, in response to the
argument that the property owner had failed to exhaust administra-
tive remedies stated that “It is highly improbable that a variance
would or legally could, be granted where as much land as here is
involved (291 acres) and where development would be completely
contrary to the goal of preserving land in its natural or near natural
state. The Court will not require such a useless course.” (Citations
omitted ).
The Dahl exception to exhaustion of administrative remedies was
referred to as the “futility exception” in People v. Superior Court of
County of Sonoma, 91 Cal. App. 3d 95, 101-102 (Cal. Ct. App.
1979). Although discussed in the context of exhaustion of adminis-
trative remedies, it is clear that policy considerations dictate the
application of the futility exception both in ripeness as well as
exhaustion of administration remedies.
16
Brandies occurring in Ashwander v. Tennessee Valley
Authority.*°
Without consideration of “prudential ripeness”, lower
courts have been able to fashion a bright line test for
ripeness. If the land owner has not sought both a variance
as well as permit application, the land owners claim of
taking is not ripe and as is the case before the Court
here, the land owners claim is dismissed for want of
jurisdiction. Such test avoids any real consideration of
the finality required by Williamson and is merely a re-
statement of the exhaustion of administrative remedies
test this Court held against in Williamson.
An analogous line of logic has been developed when
considering the appellate court jurisdictional pre-requisite
of finality contained within 28 U.S.C. § 1257. The final-
ity requirement for appellate court jurisdiction, like
the ripeness finality, has not been administered in a
mechanistic fashion, rather at least 4 exceptions have
been outlined by this Court in which finality does not
have to be present.*’ These finality exceptions were cre-
ated to avoid the “mischief of economic waste and of
delayed justice.” ** Prudential or policy considerations
such as these as well as those developed concerning
ripeness cannot be jurisdictional.
Subject matter jurisdiction, the basis upon which the
Court of Appeals reversed and rendered in this cause,
36. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341-
346, 56 S. Ct. 466, 482, 80 L.Ed. 688 (U.S. 1935).
37. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 477, 95
S. t. 1029, 1037, 43 L.Ed.2d 328 (U.S. 1975).
3%. See Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124,
65 S. Ct. 1475, 1478, 89 L.Ed. 2092 (U.S. 1945).
17
unlike the justiciable concern of ripeness, cannot be
waived.*® Subject matter jurisdiction exists when the
nature of the case falls within a general category of
cases the court is empowered to adjudicate under applic-
able statutory and constitutional provisions.*° The ques-
tion of subject matter jurisdiction is determined from
the face of the plaintiff's pleadings.*’ It is intuitively
obvious from the foregoing that while ripeness may be
the yardstick by which courts determine whether to exer-
cise their jurisdiction, ripeness is not and cannot be
jurisdictional.
Basic to all jurisprudence is the idea that subject matter
jurisdiction eithter exists or it does not exist. There
is no gray area allowing trial courts to exercise subject
matter jurisdiction when such jurisdiction is lacking.
Ripeness, however, is determined by utilizing the two
part Abbott test.‘* Ripeness, therefore, unlike jurisdic-
tion, requires the court to exercise its discretion to deter-
mine if judicial resolution would be desirable.**
39. See Bowman v. Howell, 618 S.W.2d 913 (Tex. App.—Fort
Worth 1981, no writ).
40. See Bullock v. Briggs, 623 S.W.2d 508 (Tex. App.—Austin
1981, writ ref’d n.r.e.), cert. denied, 457 U.S. 1135, 102 S. Ct. 2962,
73 L.Ed.2d 1352 (U.S. 1982).
41. See Elbar, Inc. v. Claussen, 774 S.W.2d 45 (Tex. App.—
Dallas 1989, no writ).
42. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149,
87 S. Ct. 1507, 18 L.Ed.2d 681 (U.S. 1967).
43. See Brown v. Fero Corp., 763 F.2d 798 (6th Cir. 1985),
cert. denied, 474 U.S. 947, 106 S. Ct. 344, 88 L.Ed.2d 291 (USS.
1985).
18
LOWER COURTS CONTINUE TO APPLY AN
EXHAUSTION OF ADMINISTRATIVE
REMEDIES TEST TO DETERMINE
RIPENESS AS A DEVICE FOR
AVOIDING DECISIONS ON
THE MERITS
Exhaustion of administrative remedies can be viewed
conceptually as a horizontal gradient consisting of vary-
ing degrees of finality. At one end of the exhaustion
gradient, a process of administrative review is initiated
while at the other end, administrative review culminates
in an authoritative decision. In a land use context, ad-
ministrative review is initiated through commission hear-
ings and culminates when an application for variance
is denied.
If exhaustion of administrative remedies is viewed
as a horizontal gradient, the Williamson finality require-
ment can be represented by a vertical vector intersecting
such gradient. At any point along the horibontal ex-
haustion plane, ripeness can be satisfied and vertical
court review initiated, provided that exhaustion has sur-
passed the Williamson finality threshold.
In order to determine whether a specific point along
the horizontal exhaustion gradient has surpassed the
Williamson finality threshold, courts must investigate
the facts. Such investigation will determine whether or
not further steps along the horizontal exhaustion gradient
are necessary before a “final” decision has been obtained.
Contrary to investigating facts, however, lower courts
have resorted to a one dimensional analysis based simply
upon determining what point the property owner has
reached along the exhaustion gradient. If further ad-
19
ministrative review is possible, the property owner's
taking claims are dismissed for want of jurisdiction.
This analysis practiced by lower courts is merely a
re-application of the exhaustion doctrine this Court held
against in Williamson. Jurisprudential concerns, such as
those embodied in the exhaustion doctrine, do not bear
on whether a court has jurisdiction but only upon whe-
ther it should exercise that jurisdiction.** The City of El
Paso raised only the affirmative defense of exhaustion
of administrative remedies in its pleadings and failed to
urge lack of ripeness until this cause was on appeal.*”
The state appellate court, without any discussion of
prudential ripeness, held ripeness to be jurisdictional
and dismissed Petitioners’ claims for want of jurisdiction.
The continued re-application of the exhaustion doctrine
by the state appellate court in this action as well as
other lower courts is contrary to the holdings of this
court.
MECHANISTIC APPLICATION OF FINALITY
TEST RESULTS IN LAND OWNER BEING
FORCED TO RESORT TO PIECEMEAL
LITIGATION AND OTHER UNFAIR
PROCEDURES
This Court has previously stated that the finality ele-
ment of ripeness is to be applied in a “pragmatic way”.*"
“Basically, the question in each case is whether the facts
44. See Association of National Advertisers, Inc. v. Federal
Trade Commission, 627 F.2d 1151, 1157 (D.C. Cir. 1979).
45. City of El Paso v. Madero Development Corporation, et al.,
803 S.W.2d 396 (Tex. App.—-El Paso 1991, writ denied) (attached
hereto at Appendix A).
46. See Abbott Laboratories v. Gardner, 387 US. 136, 149, 87
S. Ct. 1507, 1516, 18 L’Ed.2d 681 (U.S. 1967).
20
alleged, under all circumstances, show that there is a sub-
stantial controversy, between the parties having adverse
legal interests, of sufficient immediacy and reality to war-
rant” judicial intervention.*‘ Thus, a regulatory action
may be ripe for review notwithstanding the fact that such
regulation has not been applied to anyone, if the expecta-
tion of such application causes cognizable injury.*”
In contrast to this Court’s clearly pragmatic approach
to ripeness, lower courts, including the appellate court in
the case at bar, continue to consider only the finality
prong of the Abbott ripeness test and refuse to consider
the hardships that would be imposed upon property own-
ers as a result of such ruling. Petitioners’ plight is similar
to that experienced by the land owners in each of the lead-
ing taking cases decided by this court over the past decade.
For 15 years, Petitioners sought to develop Madero Hills.
Feeling the constant pressure exerted by adjacent land
owners to preserve Madero Hills as a scenic easment or
add to the Moutain Park land, the City of El Paso em-
barked upon a series of maneuvers each designed to pre-
clude further development of Madero Hills. Ultimatly, the
City enacted and placed Madero Hills into a PMD zoning
ordinance, which through self executing density restric-
tions, reduced the maximum possible residential units on
Madero Hills from 174 to 11. Development of Madero
Hills at 11 residential units was not economically viable,
therefor, the City had effectively preserved its easement
without complying with the compensation requirements of
the United States Constitution.
47. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 USS.
270, 273, 61 S. Ct. 510, 512, 85 L.Ed. 826 (U.S. 1941).
48. See Columbia Broadcasting Systems, Inc. v. United States,
316 U.S. 407, 418-419, 62 S. Ct. 1194, 1200-1201, 86 L.Ed. 1563
(U.S. 1942).
21
Despite 15 years of attempted development, despite a
clear expressed intent on the part of the City to preclude
development, despite a deprivation of almost 2 million
dollars in investment backed expectations, and despite the
futility of any further attempts at development, the state
appellate court held this matter to not be ripe. A land
owner must ask himself how much he sacrifice and endure
to retain the bundle of sticks the Constitution guarantees
his land possesses.
After a two week trial, an El Paso jury found that Pe-
titioners had been deprived their property without com-
pensation in violation of the Sth Amendment to the United
States Constitution. On appeal, the state appellate court,
in often disjunctive and confusing opinion in which con-
cepts of exhaustion of administrative remedies and ripe-
ness were blended and misapplied, dismissed Petitioners’
claims for lack of ripeness.
Seemingly following a recent trend in lower court de-
cisions, the state appellate court held that a land owner
must first attempt to obtain a variance from the land use
regulation befor his taking claim can satisfy the William-
son finality requirement and prior to invoking the Mac-
Donald futility exception. It is difficult to imagine what
purpose is fulfilled in requiring a land owner to first seek
to obtain that which cannot be granted in order to satisfy
a ripeness requirement.*” Yet, in son. vhat of a bonanza
49. This Court expressly stated in Williamson County Regional
Planning Commission v. Hamilton Bank of Johnson City, 473 US.
172, 105 S. Ct. 3108, 87 L.Ed.2d 126 (U.S. 1985) that “It appears
that variances could have been granted to resolve at least five of
the Commissioner’s eight objections to the Plat’. Williamson at 188.
Additionaly, in Williamson, the zoning board of adjustment could
grant variances from the density requirements. See /d. Resorting
to mechanically applying the Williamson finality rule ignores the
22
for land use regulators, lower courts have now imposed
such a requirement.
Recent taking decisions of this Court construing the
ripeness requirement have fashioned as a shield to taking
claims a defense of finality. This shield was premised upon
the principles of justiciability, judicial economy and other
constitutional prudential considerations. The shield, how-
ever, was not impenetrable. If further attempts at develop-
ment would be futile, a land owner could immediately seek
compensation.
The shield of finality, however, has now been trans-
formed by lower courts into a mighty sword with which
land use regulators can consistantly defeat even the most
egregious of taking claims. Clearly, this Court did not in-
tend to forge even more obstacles and barriers to taking
claims through its decision in Williamson.
RESTRICTING APPLICATION OF FUTILITY
EXCEPTION TO ONLY CASES WHERE BOTH
PERMIT AND VARIANCE APPLICATION
HAVE BEEN SOUGHT AND REJECTED,
DESTROYS SUCH EXCEPTION
“Ripeness” can be satisfied by showing that a land-
owner’s attempts at development would be futile.*® This
futility exception eliminates any reuirement that a land-
owner must resort to piecemeal litigation or otherwise un-
fair procedures in order to show finality.*' Although this
reason for the creation of such rule. If the land use regulators cannot
grant the property owner any relief, then the reason for the creation
of the HWwliamson finality rule has ceased; consequently, such rule
should also cease.
50. MacDonald, Sommer & Frates v. County of Yolo, 477 US.
340, 351 n.7, 106 S. Ct. 2561, 91 L.Ed.2d 285 (U.S. 1986).
51 See Td.
23
Court has never addressed the application of the futility
exception, lower court’s have all but curtailed any possible
application. While the U.S. Claims Court has taken a
pragmatic view of this issue, insisting on a close examina-
tion of the facts and governmental demonstration of what
else a property owner could meaningfully do to “finalize”
a decision,*” many other courts treat the issue as a talis-
manic one. These latter courts arbitrarily require all prop-
erty owners to jump through identical hoops, regardless of
whether they offer any real opportunity at relief.°* This
judicially created paradox mandates the precise conduct
the futility exception was created to avoid.”
In the opinion below, the State appellate court adopted
the futility exception paradox. Such requirement totally
contradicts the essence of the futility exception as embodi-
ed in the prior decisions of this Court.The lower court’s
holding that this case was not ripe was predicated solely
on the basis that Petitioners were obligated to seek a var-
iance which may have increased the density of lots permitt-
ed, thereby identifying the “degree of taking” for damage
calculations. While pursuit of a variance may be required
in some cases, there is no obligation to seek a variance
where relief cannot be granted.’” Uncontroverted testi-
52. See Florida Rock Canyon Indus., Inc. v. United States, 21
Cl. Ct. 161 (Cl. Ct. 1990); Formanek v. United States, 18 Cl. Ct.
785 (Cl. Ct. 1989); Beure-Co. v. United States, 16 Cl. Ct. 42
(Cl. Ct. 1988); Loveladies Harbor, Inc. v. United States, 15 Cl. Ct.
381 (Cl. Ct. 1988).
53. See Zibler v. Town of Moraga, 692 F.Supp. 1195, 1197-1202
(N.D. Calif. 1988).
54. See Berger, The “Ripeness” Mess in Federal Land Use Cases
or How the Supreme Court Converted Federal Judges into Fruit
Peddlers, Ch. 7, Southwest Legal Foundation Institute of Planning,
Zoning, and Eminent Domain 21st Annual Meeting (1991).
55. See Herrington v. County of Sonoma, 857 F.2d 567, 570 n.2
(9th Cir. 1988), cert. denied, 489 U.S. 1090, 109 S. Ct. 1557, 103
L.Ed.2d 860 (U.S. 1989).
24
mony and evidence in the lower court established that it
would have been futile for the Petitioners to have received
any further relief from the El Paso City Council. In addition
to the clearly deliberate attempts to include Madero Hills
into PMD, city council members testified regarding their
expressed viewpoint that the city did not want anything on
Madero Hills. Once such a clear and “final signal”
announcing the views of the City of El Paso towards
further development on Madero Hills had been received,
further development efforts by Petitioners would have
been futile.** The law does not require a litigant to do a
vain or useless thing.”*
There is no need to exhaust administrative remedies
where the statute on its face cannot grant the relief re:
quested."* The ZBA cannot grant a variance if the only
hardship shown is financial.” Additionally, there is no
authority for the ZBA to grant a bulk variance for a whole
development, a concept which has been referred to as “de
facto rezoning.” “°
56. In Hoehne v. County of San Benito, 870 F.2d 529, 535 (9th
Cir. 1989), the Ninth Circuit expressly found futility based upon,
as is the case in the instant action, testimony regarding the attitude
of zoning authorities against further development as well as rezoning
in response to development applications. The appellate court decision
in this case is in conflict with Hoehne as well as this Court’s prag-
matic approach regarding ripeness and futility.
57. Dahl v. City of Palo Alto, 372 F.Supp. 647, 649 (N.D.
Calif. 1974).
58. See Weinberger v. Weisenfeld, 420 U.S. 636, 641, 95 S. Ct.
1225, 1229-1230, 43 L.Ed.2d 514 (U.S. 1975); see also Whitney
Benefits, Inc. v. United States, 926 F.2d 1169, 1172 (Fed. Cir. 1991).
59. See Bat’tles v. Board of Adjustment, 711 S.W.2d 297 (Tex.
App.—Dallas 1986, no writ).
60. See Feiler v. Fort Lee Board of Adjustment, 573 A 2d 175
(N.J. Super. Ct. App. Div. 1990); see also Giutini v. Aronow, 459
N.Y.S.2d 117 (N.Y. App. Div. 1983); see also Van Duesen v.
Jackson, 312 N.Y.S.2d 853 (N.Y. App. Div. 1970).
25
It is factually undisputed and unchallenged that the
only hardship to Petitioners in including Madero Hills in
the PMD zoning ordinance was financial. Such “hardship”
does not empower the ZBA to grant any variance, conse-
quently, seeking a variance from the ZBA would have
been futile.
Additionally, the law in Texas is clear that only a city
council is empowered to establish the density of a tract
submited to the municipality for subdivision. It is equally
clear that El] Paso, Texas, Ordinance §2.16.030 (variance
power of ZBA) does not increase the power conferred
upon the ZBA by the State of Texas to approve variances.
Despite these restraints upon the power of the ZBA, the
lower appellate court in the instant action would require
Petitioners to apply to the ZBA for a variance. The ZBA
can only grant a variance in exceptional cases and then
only in such a manner as will be in harmony with the
general purpose of the PMD zoning ordinance and in
accordance with the general or specific rules contained
within such ordinance.*' To permit a zoning board of
adjustment to grant a variance increasing density is not in
harmony with the general purpose of a zoning ordinance
and would be an improper delegation of legislative autho-
rity in violation of Article 2 $1 of the Texas Constitution
and Article | $1 of the United States Constitution.*” The
granting of a variance to Petitioners for the development
of Madero Hills would have been an improper delegation
of legislative authority and therefor seeking such a vari-
ance a futile act.
61. See Board of Adjustment v. Stovall, 218 S.W.2d 286 (Tex.
Civ. App.—Fort Worth 1949, no writ).
62. See U.S. Const. art. 1 $1; Tex. Const. art. 2 $1: see also
Stovall at 288; Harrington v. Board of Adjustment, 124 S.W.2d
401 (Tex. Civ. App.—Amarillo 1939, writ ref’d).
26
CONCLUSION
No matter how temporary a taking may be, the Consti-
tution requires that a property owner be compensated for
such taking. This Court has ruled as unconstitutional the
process in Californai restricting the remedy of property
owners to merely seeking to invalidate a regulation. Such
process has been referred to as a regulatory game in which
the property owner never won. Even if the property owner
was successful in invalidating the ordinance, the zoning
authority could simply change the regulation, requiring
the property owner to repeat the process, ad infinitum.”
There is no difference between the regulatory game
this Court held as unconstitutional in First English and
that practiced by the City of El Paso in the instant action.
The common factor to both is that no matter whether the
regulation is invalidated or a variance obtained, the land
owner has been unconstitutionally deprived of his
property. The fact that a permanent taking may be
transformed into a temporary one is irrelevant to the
determination of whether a taking has occurred. Yet,
without further guidance from this Court, the regulatory
game declared unconstitutional in First English has en-
dured. The names may have changed to “variance” and
“lack of ripeness” but the process of denying property own-
ers their Constitutional guaranteed rights repeates itself
and will until this Court instructs otherwise. For all the
reasons addressed in this petition, Petitioners respectfully
request that their Petition for Writ of Certiorari be
granted.
63. San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621,
655-56 n.22, 101 S. Ct. 1287, 67 L.Ed.2d 551 (U.S. 1981).
R. WAYNE PRITCHARD
27
Respectfully submitted,
GINNINGS, BIRKELBACH, KEITH
& DELGADO
A Professional Corporation
P. O. Box 54
El Paso, Texas 79940
Tel. (915) 532-5929
Fax (915) 532-7073
Attorneys for Petitioners
—
la
APPENDIX A
CITY OF EL PASO, Texas, a Municipal
Corporation and City Plan
Commission, El Paso, Appellants,
Vv.
MADERO DEVELOPMENT and Construction
Company, Inc., a Texas Corporation, and
Chaparral Equity Corporation,
a Texas Corporation, Appellees.
NO. 08-89-00322-CV.
Court of Appeals of Texas,
El Paso.
January 4, 1991.
Rehearing Overruled January 30, 1991.
Landowners brought action against city and its plan-
ning commission, alleging inverse condemnation of prop-
erty by rezoning. The 243rd District Court, El Paso
County, Herb Marsh, J., entered judgment against city
and planning commission, and they appealed. The Court
of Appeals, Woodard, J., held that (1) landowner’s
action was not ripe, absent disclosure in record that
landowner had applied for variances; (2) want of juris-
diction of subject matter of suit will arrest cause at any
stage of proceedings, and it is not subject to waiver, and
(3) futility doctrine did not provide exception to ripeness
requirement.
2a
Reversed and rendered; cause dismissed.
Fuller, J., filed concurring opinion.
Osborn, CJ., filed concurring and dissenting opinion.
Eduardo Mranda, Asst. City Atty., El Paso, Robert
H. Freilich, Terry D. Morgan, Freilich, Leitner, Carlisle
& Shortlidge, Kansas City, Mo., for appellants.
Alejandro Acosta, Jr., John S. Birkelback, Ginnings,
Birkelbach, Keith & Delgado. El Paso, for appellees.
Before OSBORN, C.J., and FULLER and WOOD.
ARD, JJ. 7
OPINION
WOODARD, Justice.
This is an appeal from a $871,200.00, plus interest,
judgment against the City and its planning commission
based upon inverse condemnation of property by re-
zoning. The jury established the amount of damages, and
the trial court determined a “taking” as a matter of law.
We reverse and render.
Point of Error No. One alleges the trial court erred in
failing to apply the ripeness doctrine.
In September of 1980, the landowner filed its prelimi-
nary plat with the City Plan Commission. Phase One
of the plan, consisting of 1.87 acres, received preliminary
approval subject to various conditions in July, 1981.
Phases Two, Three and Four, consisting of thirty-two
acres. were approved likewise in December 1982 and
3a
February 1984. Phase One was the only plan that re-
ceived final approval, subject to certain conditions, and
this was effected on December 1982 and February 1984.
this was effected on December 2, 1982. In August of 1985
the landowner was notified by letter that there had been
no activity on Phase One of the subdivision since the Plan
Commission had approved it, and pursuant to the City’s
ordinance, “|fJailure to submit the recording plat within
one year from the date of the City Plan Commission ap-
proval of the final plat shall terminate all proceedings
unless an extension of a specified amount of time is
approved by the City Plan Commission.” The letter
further stated the subdivision file was officially closed.
In January of 1986, the land was rezoned for “Planned
Mountain Development (PMD)” which entailed more
restrictive use.
[1] A controversy in administrative law is “ripe” for
ihe courts when it has “legally matured” within its prov-
ince. The ripeness doctrine is to prevent the courts, by
avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative
policies, and also to protect the agencies from judicial
interference until an administrative decision has been
formalized and its effects felt in a concrete way by the
challenging parties, Abbott Laboratories v. Gardner, 387
U.S. 136, 87 S. Ct. 1507, 18 L.E.2d 681 (1967).
[2, 3] An administrative action must be final before
it is judicially reviewable, Williamson County Regional
Planning Commission v. Hamilton Bank of Johnson City,
473 U.S. 172, 105 S. Ct. 3108, 87 L.Ed.2d 126 (1985).
The finality requirement is concerned with whether the
initial decision maker has arrived at a definitive position
4a
on the issue that inflicts an actual concrete injury. It
is not the same as an exhaustion of remedy requirement
that generally refers to administrative and judicial pro-
cedures by which an injured party may seek review
of an adverse decision and obtain a remedy if the decision
is found to be unlawful or otherwise inappropriate. /d.
“Although ‘[t]he question of what constitutes a “taking”
for the purposee of the Fifth Amendment has proved
to be a problem of considerable difficulty, . . . among
the factors of particular significance in the inquiry are
the economic impact of the challenged action and the
extent to which it interferes with reasonable investment-
backed expectations.” Those factors simply cannot be
evaluated until the administrative agency has arrived
at a final, definitive position regarding how it will apply
the regulations at issue to the particular land in question.
ld.
{4} In this case, as in the Williamson case, the record
does not disclose that the landowner has applied for
variances to the zoning. It therefore, leaves open the
possibility that it could develop the subdivision according
to its plat, or if not according to its plat, with some
compromise to its plat after obtaining certain variances
and that this would give it reasonable beneficial use of
its property. The fact that the City notified the landowner
that the file was “officially closed” due to inactivity would
not obviate this procedure. The “closing of a file,” per
se, does not indicate a definitive position on the consti-
tutional issue that inflicts an actual, concrete injury, and
any problems or prohibitions in relation to the reopening
of the file have not been made a part of the issue in this
case.
Sa
[5-8] Appellees contend the Appellants waived the
“ripeness doctrine” as the Appellants made it their basis
for a directed verdict when the Plaintiffs/Appellees rested
their case, and then proceeded with their own evidence.
Jacobini v. Hall, 719 S.W.2d 3°6 (Tex. App.—Fort Worth
1986, writ refd n.r.e.). The “Motion for Directed Ver-
dict” clearly embodies the “ripeness doctrine” in_ its
underlying grounds and ends with the following para-
graph:
Defendants are entitled to an instructed verdict
on each of Plaintiffs’ claims. The evidence clearly
shows that there is no question of fact to submit
to a jury, and that the question of whether De-
fendants’ conduct amounts to a taking within the
terms of Texas Constitution Article I, Section 17,
is a question of law which is premature and can-
not yet be submitted to the court.
The motion, in essence, notifies the court that the Plain-
tiffs have not established the condition precedent to
empower the court to proceed with the adjudication of
the subject matter. It expressly requests a directed verdict,
but inferentially urges abatement or dismissal for want
of jurisdiction. A principal purpose of a pleading is to
inform the court and the opposing party of the facts
relied on and of the pleader’s claims. It is to be “con-
sidered for all that it means instead of what is is called,”
Gratehouse v. Gratehouse, 417 S.W.2d 592 (Tex. Civ.
App.—Waco 1967, no writ); Tex. R. Civ. P. 71. Gen-
erally, there are three jurisdictional elements: (1) juris-
diction over the subject matter; (2) jurisdiction over the
person or res; and (3) power to render the particular
relief awarded. Mobil Oil Corporation v. Matagorda
County Drainage District No. 3, 580 S.W.2d 684 (Tex.
6a
Civ. App.—Corpus Christi 1979), reversed on other
grounds, 597 S.W.Ad 910 (Tex. 1980). Subject matter
jurisdiction exists when the nature of the case falls within
a general category of cases the court is empowered,
under applicable statutory and constitutional provisions,
to adjudicate. Bullock v. Briggs, 623 S.W.2d 508 (Tex.
App.—Austin 1981, writ ref’d n.r.e.), cert. denied, 457
U.S. 1135, 102 S. Ct. 2962, 73 L.Ed.2d 1352 1982).
Jurisdiction of the subject matter is the power to deal
with the general abstract question, to hear the particular
facts in any case relating to this question and to de-
termine whether or not they are sufficient to invoke
the exercise of that power. Brown v. French, 413 S.W.
2d 924 (Tex. Civ. App.—Amarillo), reversed on other
grounds, 424 S.W.2d 893 (Tex. 1967). Want of juris-
diction of the subject matter of a suit will arrest a cause
at any stage of the proceedings. Southwestern Bell Tele-
phone Company vy. City of Kountze, 548 S.W.2d 87]
(Tex. Civ. App.—Beaumont 1976, no writ). It is not
subject to waiver. Armstrong v. West Texas Rig Com-
pany, 339 §.W.2d 69 (Tex. Civ. App.—El Paso 1960,
writ ref'd n.r.e.).
[9-13] The “ripeness doctrine” involves the issue of
jurisdiction of the subject matter and power to render
a particular relief. In Williamson, 473 U.S. at 200, 105
S. Ct. at 3123, 87 L.Ed.2d at 147, the Court stated
“{iJn sum, respondent’s claim is premature, whether it
is analyzed as a deprivation of property without due
process under the Fourteenth Amendment, or as a taking
under the Just Compensation Clause of the Fifth Amend-
ment.” [Emphasis added]. In MacDonald, Sommer &
Frates v. County of Yolo, 477 U.S. 840, 348, 106 S.
Ct. 2561, 2566, 91 L.Ed.2d 285, 294 (1986), the Court
7a
stated “[i]t follows from the nature of a regulatory takings
claim that an essential prerequisite to its assertion is a
final and authoritative determination of the type and
intensity of development, legally permitted on the subject
property.” [emphasis added]. By a “claim being pre-
mature,” there is no claim that the court has jurisdiction
or power to adjudicate. By a claim having “an essential
pre requisite to its assertion,” there is no claim that the
court has jurisdiction or power to adjudicate until the
essential prerequisite has been complied with. The “final
determination” is a condition precedent to conferring
jurisdiction to the trial court. There can be no “taking”
by eminent domain until this condition is complied
with. The burden of establishing jurisdiction, of proving
a justiciable controversy, clearly falls on the moving
party. Reuter v. Cordes-Hendreks Coiffures, Inc., 422
S.W.2d 198 (Tex. Civ. App.—Houston [14th Dist.]
1967, no writ).
[14] Appellees attempt to invoke the “futility doc-
trine” as espoused in MacDonald, Sommer & Frates v.
County of Yolo, 477 U.S. 340, 106 S. Ct. 2561, 91
L.Ed.2d 285 (1986), as an exception to the “ripeness”
requiremet. They claim that by the Appellants determin-
ing the slope of the area to be of forty-eight percent
grade, the number of residential plots would be reduced
from 150 to 11 plots under the PMD zoning, and ac-
cording to their witnesses render the property valueless.
They contend the Zoning Board of Adjustment had no
authtority to make variances not in keeping with the
specific intent and extent of the PMD ordinance [Board
of Adjustment of the City of San Antonio v. Willie, 51%
S.W.2d 591 (Tex. Civ. App.—San Antonio 1974, writ
ref'd n.r.e.)], and any request for them to do so would
8a
be futile. This, therefore, would obviate the necessity
of seeking a “final” determination. E/ Paso, Tex., Ordi-
nances ch. 2.16 § 2.16.030 (1989) provides that the
Board is empowered to authorize variances as will not
be contrary to the public interest; and where a literal
enforcement of the zoning laws, due to the nature of
the property, would result in unnecessary hardship to
an extent preventing any reasonable use of the property
whatsoever, and so that the spirit of the zoning laws
shall be observed and substantial justice done.
[15] It follows from the naturue of a_ regulatory
takings claim that an essential prerequisite to its as-
sertion is a final and authoritative determination of the
type and intensity of development legally permitted on
the subject property. A court cannot determine whether
a regulation has gone “too far” unless it knows how
far the regulation goes. This is a question of degree—
and therefore cannot be disposed of by general propo-
sitions. MacDonald, Sommer & Frates v. County of Yolo,
477 U.S. 340, 106 S. Ct. 2561, 91 L.Ed.2d 285 (1986).
There is then, a question of degree in determining
whether a particular variance would violate the spirit
of the zoning laws. Some number of density of lots over
eleven may or may not, and that must be determined
by the Zoning Board of Adjustment acting within its
guidelines. After this degree is attained the degree of
taking can be arrived at. These degrees not only affect
whether there is a taking but are relevant to the market
value of the property for the purposes of establishing
damages, if there is a taking.
[16] Appellees further attempt to invoke the futility
doctrine by testimony that two of the city aldermen
9a
stated words to the effect that they wished to impede the
development of the property by zoning the property PMD.
Therefore, it would be futile to attempt to obtain vari-
ances in view of the city’s mind-set. Individual legislators
are incompetent witnesses in regard to laws enacted be-
cause any law expresses the collective will of the legisla-
tive body and must be interpreted in that light. Mayhew
v. Town of Sunnyvale, 774 S.W.2d 284 (Tex. App.—
Dallas 1989, writ denied).
Point of Error Number One is sustained. Judgment of
the trial court is reversed and the cause is dismissed for
want of jurisdiction.
FULLER, Justice, concurring.
On February |, 1989, the Appellants filed their Original
Answer in which the City clearly stated that Appellees
had not exhausted their administrative remedies because
they had failed to pursue the acquisition of a variance
or special exception from the Zoning Board of Adjust-
ment for the City of El Paso. Further, such failure to
exhaust their administrative remedies precluded Madero
from seeking relief for a “taking” of property in the dis-
trict court under Article I, § 17 of the Texas Constitution.
At the hearing on its Motion for Summary Judgment,
the City clearly stated to the trial judge:
MR. CAYLOR: May it please the Court, the legal
issue which is being brought to the Court this morn-
ing can be expressed in one word, “ripeness.” The
City’s position with respect to that legal issue can be
expressed in one sentence, and that is, that this case
is not ripe to be presented to this Court because the
City has never taken any final action under the
ordinance which is being challenged by the Plaintiffs
today.
10a
On the Motion for Directed Verdict filed at close of
Madero’s case-in-chief, Appellants again clearly pointed
out the contention of want or lack of jurisdiction of the
trial court to proceed based on lack of ripeness of the
controversy.
I agree that the trial court erred in proceeding to trial
and entering judgment because the matter of “taking”
simply was not “ripe” for judicial determination.
OSBORN, Chief Justice, concurring and dissenting.
I concur in part and respectfully dissent in part.
There can be no question that the ripeness doctrine,
when properly raised, will prohibit the trial of issues such
as are raised in this case. I concur with the majority
opinion that there can be no trial on the merits where
an administrative decision is not final and the case in
effect is not ripe for trial of the issues in dispute.
My dissent concerns when and how that issue must be
raised. In this case, there was nothing pending before any
administrative board or commission at the time this case
was tried. There was a procedure whereby a request could
be made for a variance or change in administrative zoning
orders. Any change in prior zoning provisions would
necessarily change the use which could be made of the
land in question. At the time of trial, the Appellees did
not have pending any request for a variance. The Appel-
lants in their answer alleged that the Appellees had not
exhausted its administrative remedies. It did not file a
plea in abatement which if granted would have avoided
a trial at a time when it was contended the case was
not ripe for trial on the merits.
The issue was raised again in a Motion for Summary
Judgment. This is not an appeal from the granting of such
lla
a motion, and the issues raised in a summary judgment
hearing may not be raised again after a trial on the merits
based upon the summary judgment order. Ackermann v.
Vordenbaum, 403 S.W.2d 362 (Tex. 1966); Note, Ap-
peal and Error: Reviewability of Order Denying Motion
for Summary Judgment After Trial on Merits, 16 Okla.
L.Rev. 335 (1963).
The ripeness doctrine was again raised in a Motion
for Directed Verdict filed at the close of the Plaintiffs’
case. The motion was overruled and another motion
was not presented at the close of all the evidence. This
resulted in the issues raised by the motion being waived
for appellate review unless raised in some other manner.
On this issue, the cases are legion. Jacobini v. Hall, 719
S.W.2d 396 (Tex. App.—Fort Worth, 1986, writ ref'd
n.r.e.); Shindler v. Marr & Associates, 695 S.W.2d 699
(Tex. App.—Houston [Ist Dist.] 1985, writ ref’d n.r.e.);
Montgomery Ward & Company v. Garza, 660 S.W. 619
(Tex. App.—Corpus Christi 1983, no writ); Texas Steel
Corporation v. Martinez ,518 S.W.2d 264 (Tex. Civ.
—Fort Worth 1976, writ ref’d n.r.e.); Horizon Properties
Company v. Douglas, 588 S.W.2d 111 (Tex. Civ. App.
App.—El Paso 1974, writ ref’d n.r.e.); 3 R. McDonald,
Texas Civil Practice § 11.28 (1983).
If the ripeness doctrine is a jurisdictional issue, then
this Court should not rely upon a Motion for Instructed
Verdict or Motion for Summary Judgment as the basis for
the issue having been raised. We should, sua sponte, de-
termine that this court is without jurisdiction and dismiss
the case. Southwestern Bell Telephone Company v. City
of Kountze, 543 S.W.2d 871 (Tex Civ. App.—Beaumont
1976, no writ). That apparently is what the court has
done without saying so.
12a
I conclude, admittedly without a great deal of suppport-
ing authority, that the ripeness doctrine is not jurisdic-
tional and is an issue that must be properly raised in the
trial court or it is waived. In MacDonald, Sommer &
Frates v. County of Yolo, 477 U.S. 340, 106 S. Ct. 2561,
91 L.Ed.2d 285 (1986), the issue was raised in the trial
court by a demurrer to the complaint. We have abolished
the demurrer in Texas. I concluded that the issue should
have been raised by a plea in abatement, and absent some
procedure which properly raised the issue in the trial
court, the ripeness doctrine was waived and should not
be the basis for a reversal, sua sponte, after the basis for a
reversal, sua sponte, after the case has been tried on the
merits. Therefore, | dissent.
13a
APPENDIX B
THE SUPREME COURT OF TEXAS
P. O. Box 12248
Supreme Court Building
Austin, Texas 78711
John T. Adams, Clerk
September 5, 1991
Mr. John S. Birkelbach
Ginnings, Birkelbach,
Keith & Delgado
P. O. Box 54
El Paso, TX 79940
Mr. Alejandro Acosta, Jr.
Ginnings, Birkelbach,
Keith & Delgado
P. O. Box 54
El Paso, TX 79940
Mr. Terry D. Morgan
Freilich, Leitner, Carlisle
& Shortlidge
4600 Madison, Suite 1000
Kansas City, MO 64112
Mr. David C. Caylor
City Attorney
2 Civic Center Plaza,
9th Floor
El Paso, TX 79901
RE: Case No. D-0849
Mr. R. Wayne Pritchard
Ginnings, Birkelbach,
Keith & Delgado
P. O. Box 54
E] Paso, TX 79940
Mr. Eduardo Miranda
Assistant City Attorney
+2 Civic Center Plaza
E! Paso, TX 79901-1196
Mr. Robert H. Freilich
Freilich, Leitner, Carlisle,
& Shortlidge
4600 Madison, Suite 1000
Kansas City MO 64111
Style: MADERO DEVELOPMENT and CONSTRUC-
TION COMPANY, INC., a TEXAS CORPORA-
TION, and CHAPARRAL EQUITY CORPORA-
TION, a TEXAS CORPORATION v. CITY OF
14a
EL PASO, TEXAS, a MUNICIPAL CORPORA-
TION, and CITY PLAN COMMISSION, EL
PASO
Dear Counsel:
Today, the Supreme Court of Texas overruled peti-
tioner’s motion for rehearing of the application for writ
of error in the above styled case.
Sincerely,
JOHN T. ADAMS, Clerk
By: /s/ COURTLAND CROCKER
Courtland Crocker, Deputy
15a
APPENDIX C
NO. 89-443
IN THE DISTRICT COURT
OF EL PASO COUNTY, TEXAS
243RD JUDICIAL DISTRICT
MADERO DEVELOPMENT AND
CONSTRUCTION COMPANY, INC.,
a Texas Corporation, and
CHAPARRAL EQUITY CORPORATION,
a Texas Corporation,
Plaintiffs,
¥.
CITY OF EL PASO, TEXAS, a
Municipal Corporation, and
CITY PLAN COMMISSION, EL PASO,
Defendants.
CORRECTED JUDGMENT
(Filed August 31, 1989)
On the 19th day of June, 1989, came on to be heard
the above-entitled and numbered cause in which MA-
DERO DEVELOPMENT AND CONSTRUCTION
COMPANY, INC. and CHAPARRAL EQUITY COR-
PORATION are the Plaintiffs, and the CITY OF EL
PASO, TEXAS and CITY PLAN COMMISSION, EL
PASO, are the Defendants. The parties appeared in
person and by attorney of record and announced ready
for trial. Having been previously demanded, a jury con-
sisting of twelve (12) good and lawful jurors was duly
empaneled and the case proceeded to trial.
l6a
At the conclusion of the evidence, the Court submitted
the case to the jury by special questions. The Charge
of the Court, including the special questions, and the
verdict of the jury are incorporated herein for all purposes,
The jury found as follows:
QUESTION NO. 1
Do you find from a preponderance of the evidence
that in applying the PMD zoning ordinance to Plain-
tiff's Madero Hills property, the City has “taken” Plain-
tiffs Madero Hills property?
Answer: “We do” or “we do not”
ANSWER: We do.
QUESTION NO. 2
What do you find to be the difference in the market
value, if any, of Plaintiffs Madero Hills property im-
mediately prior to the inclusion of Madero Hills into
the PMD zoning ordinance and immediately after the
inclusion of Madero Hills into the PMD zoning ordi-
nance?
Answer in dollars and cents, if any.
ANSWER: $871,200.
The Court, after hearing all the evidence and argu-
ments, finds as an independent conclusion and as a
matter of law, that the City’s application of the PMD
zoning ordinance to Madero Hill’s property resulted in
a taking of the property for which Plaintiffs must be
compensated.
In regard to the word “Plaintiffs” as it was typed
in .Question One, and word “Plaintiffs” as typed in
Question Two, the Court finds, after considering the
charge, the pleadings, the evidence and the record, that
17a
the intention of the verdict is to be ascertained and
construed as a verdict taken by both Plaintiffs against
both Defendants. z
Judgment therefore is rendered upon the verdict in
favor of the Plaintiffs and against the Defendants.
IT IS, THEREFORE, QRDERED, ADJUDGED,
AND DECREED that Plaintiffs have and recover judg-
ment from and against Defendants, jointly and severally,
in the amount of Eight Hundred Seventy One Thousand
Two Hundred Dollars ($871,200.00), plus pre-judg:
ment interest from December 2, 1986 to August 30,
1989 of Two Hundred Thirty Eight Thousand Nine
Hundred Twenty-three Dollars ($238,923.00), for a
total of One Million One Hundred Ten Thousand One
Hundred Two Dollars ($1,110,123.00).
IT IS FURTHER ORDERED that the judgment
hereby rendered shall bear interest at the rate of ten
percent (10% ), compounded annually, from August 31,
1989 until paid.
All costs of Court expended or incurred in this cause
are hereby adjudged against CITY OF EL PASO and
CITY PLAN COMMISSION, jointly and severally, De-
fendants. All writs and processes for the enforcement
and collection of this judgment or the costs of court may
issue as necessary. All other relief not expressly granted
herein is denied.
SIGNED this 31st day of August, 1989.
By: /s/ (Signature Illigible)
JUDGE
l8a
APPROVED AS FORM ONLY:
Eduardo Miranda
Attorney for Defendants
/s/ ALEJANDRO ACOSTA, JR.
Attorney for Plaintiffs
Date Entered of Record 8-31-89
Certified True and Correct
EDIE RUBALCABA,
District Clerk,
El Paso, Texas
By:
19a
APPENDIX D
008226
AN ORDINANCE AMENDING CHAPTER 25
(ZONING) OF THE EL PASO CITY CODE,
THE PENALTY BEING AS PROVIDED IN
SECTION 25-96 OF THE CODE
BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF EL PASO, TEXAS:
1. That Section 25-24 RMD Residential Mountain Dis-
trict of the El Paso City Code (Zoning) shall be and is
hereby amended to read as follow:
“Sec. 25-24. PMD Planned Mountain Development
District :
25-24.1 Purpose of the district. The purpose of this
district is to promote the following city objectives:
(1) To protect significant natural features of the
mountain development area and preserve the
City’s unique visual setting as part of the com-
prehensive plan.
(2) To provide an alternative approach to conven-
tional flatland development by allowing transfer
of residential densities through clustering of
dwellings in order to preserve larger areas of
open space.
(3) To minimize scarring and disturbances of the
natural character of the mountain development
area through control of grading and cut/fill
operations as defined in the Grading Ordinance.
(4) To control water runoff and soil erosion.
(5) To provide a safe means of ingress and egress
for vehicular and pedestrian traffic to and within
the mountain development area.
20a
(6) To encourage sound engineering practices re-
lated to mountain developpment.
25-24.2 Minimum district area. The minimum area
for a planned mountain development district where
common or public open space is to be provided shall
be three (3) acres. Extensions to the original district,
from a common boundary, may be considered in incre-
ments of less than three (3) acres provided that all
other requirements are observed. Where buildable areas
and private open space are provided on each lot the
three (3) acre minimum requirement does not apply
and the provisions of section 25-24.9 shall be met.
25-24.3 Ownership control. Where required, the
common open space shall be owned by an incorporated
or unincorporated association to assure that it will be
permanently maintained in its natural state. Open space
may be made public if dedicated or transferred in trust
to the City and the city council accepts such dedication
or transfer without affecting any other provision of
this ordinance.
25-24.4 Permitted uses.
(1) Detached single-family dwelling.
(2) Two-family dwelling, attached single-family
dwelling (including condominiums) and multi-
family dwellings.
(3) Publicly owned park, parkway, is siiicieade hik-
ing trail, recreation facility.
(4) Public and private school accredited by the State
of Texas to give elementary and high school
training.
(5) Church.
(6) Facilities and structures necessary for render-
ing public utility service.
(7)
2la
Neighborhood recreational facilities, open or en-
closed, such as swimming pools, tennis courts,
other playing surfaces, picnic areas, or other
recreational areas, including necessary acces-
sory facilities such as bath houses, sun or rain
shelters, storage buildings, and parking areas,
for the exclusive use of members of and to be
operated and managed by a non-profit neigh-
borhood organization, neighborhood associa-
tion or similar type of neighborhood group.
25-24.5 Permitted accessory uses. Permitted uses in
accordance with Section 25-24.4 may also have the
following accessory uses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Building for domestic storage.
Garage, private.
Garden house, toolhouse, playhouse or green-
house incidental to residential uses.
Home occupation as defined in this Code.
Swimming pool and game court, for use of
occupants.
Signs as regulated in Section 25-24.6.
Keeping of animals for personal use or enjoy-
ment and not as a business, when in compliance
with Chapter 5 of the El Paso City Code.
Temporary buildings, or structors, including relo-
catable office or storage units, the uses of which
are incidental to construction operations during
development being conducted on the same lot
or subdivision and which shall be removed upon
completion or abandonment of such construc-
tion, or upon the expiration of a period of two
(2) years, whichever is sooner.
Temporary buildings or structures, including a
relocatable office unit for use as a sales or
(10)
(11)
(12)
(13)
(14)
(15)
22a
rental office for an approved real estate develop-
ment or subdivision, located on the same lot as
said real estate development or subdivision and
which shall be removed upon completion or
abandonment date of the two (2) years, which-
ever is sooner.
Yard sale or garage sale for disposal of used
household items, provided such sales are not
held more frequently than once a year on the
same lot, are not conducted for more than two
(2) days, and include items assembled only
from households in the immediate neighbor-
hood.
Off-street parking and loading spaces.
Residential type television or radio receiving
antennas, roof-mounted, and not exceeding five
(S) feet in height above the highest point in
the roof.
Federally licensed amateur and CB radio sta-
tions complying with FCC regulations. Installa-
tion of radio towers and mast shall require ap-
proval of the building official to @ertify com-
plance with the building code of the City of
El Paso.
Satellite receiving dishes and other satellite re-
ceiving antennas conforming with Section 25-
64.3 (10).
Accessory uses as follows in attached single
family developments or multi-family develop-
ments where permitted by special permit:
(a) An office located in a main building for
administration of a development contain-
ten (10) or more dwelling units.
(b) A laundry room for use of occupants of a
development.
23a
(c) A sauna or exercise room or similar facility
for use of occupants of a development.
(d) Coin-operated vending machines for candy,
tobacco, ice, soft drinks and sundries, in-
side a building.
(16) Maintenance facilities for permitted uses.
25-24.6 Signs. Signs may be placed on a building or
land subject to the general sign regulations of Section
25-62.
25-24.7 Uses permitted by special permit. The fol-
lowing uses may be permitted by special permit, if
approved by the city council, with or without condi-
tions, following a recommendation by the city plan
commission, in accordance with the procedure, guides,
and standards of section 25-83. These uses may be per-
mitted concurrently with the establishment of a PMD
District subject to all of the procedural requirements
of a special permit.
(1) Resort lodge.
(2) Art galleries, museums, libraries and other simi-
lar philantropic institutions.
(3) Dude ranch.
(4) Golf course on a site with a slope less than
15%.
(5) Tennis clubs, with game courts and swimming
pools for use of occupants or their guests in
accordance with the conditions stated in Sec-
tion 25-63.
(6) Private clubs requiring a liquor district in con-
junction with a golf course or tennis club.
(7) Convalescent, nursing or rest homes.
24a
(8) Personal care homes providing that the facility
cares for no more than 7 recipients and that it
is in accordance with Section 25-63.14.
(9) Retail shopping facilities occupying an area of
two (2) acres or less.
(10) Church on a site less than (3) acres.
(11) Theatre-—indoor or open air.
(12) Picnic areas.
(13) Major facilities for generation of energy, water
treatment plants, commercial and public radio
television broadcasting and microwave receiv-
ing facilities, storage yards for public utilities
and similar uses.
(14) Public or governmental buildings and _ uses.
(15) Wind-driven electric generation or wind driven
pumps complying with the provisions of Sec-
tion 25-63.12.
25-24.8 Common or public open space and related
lot size standards. Where common or public open space
is provided in the Planned Mountain Development Dis-
trict, the common or public open space shall be shown
on the required site plan and subdivision plat. To retain
the significant natural features of the montain develop-
ment area, the common or public open space increases
and densities decrease as the slope of the terrain in-
creases. When a proposed development containing com-
mon or public open space is to be accomplished in
phases, the initial phase which is platted shall contain
a minimum of three (3) acres and each phase shall
individually maintain the common or public open space
required. The following standards for single-family de-
tached dwellings, two-family dwellings, single-family
attached dwellings and multi-family dwellings shall be
observed:
25a
(1) Common or public open space required and
density limitations.
(a) Where the required minimum common or
public open space is provided given the
slope of the terrain, the maximum dwelling
units permitted per gross acre shall be as
follows:
Minimum Common
Maximum or Public Open Space
Density or Percent of Site to
Percent Per Gross Remain in Natural
Slope Acre State
O- 5 20 5.50
4-10 25 5.00
10-15 30 4.50
15 - 20 40 3.75
20 - 25 45 3.00
25 - 30 50 2.25
30 - 35 bs 1.25
35 - 40 60 75
over 40 65 .25
(2) Minimum lot areas.
Minimum Lot
Area in
Square Feet
(a) Single-family detached
dwelling 5,000
(b) Single-family attached
dwelling 3,000
(c) Two-family dwelling 6,000
(d) Multi-family dwelling none
(e) Church 3 acres
25-24.9 Buildable area and related lot size standards.
Buildable areas for single-family detached dwellings,
26a
where private open space is provided in lieu of com-
mon or public open space, shall comply with the
standards contained in the following table. To retain
the significant natural features of the mountain de-
development area, densities decrease as slope of the
terrain increases. .
Maximum
Buildable
Percent Minimum Minimum Minimum Area in
Lot Lot Area Width Depth Percent of
Slope (sq. ft.) (feet) (feet) Lot Area
O- 5 6,000 60 90 80
5-10 8,000 70 100 75
10-15 10,000 a 110 70
15 - 20 12,000 80 110 60
20 - 25 16,000 100 120 55
25 - 30 20,000 125 150 50
30 - 35 24,000 130 170 45
35 - 40 1 acre 175 190 40
over 40 2 acres 230 270 30
25-24.10 Private and common or public open space.
Where a minimum of twenty (20) percent of the gross
area of a site is designated as common or public
open space in addition to complying with section
25-24.9, the minimum lot standards pertaining to the
lower percent slope shown for the line immediately
above the one indicating the slope of the site shall
apply.
25-24.11 Yard and set back standards.
(1) A minimum distance of ten (10) feet between
detached structures, plus two (2) additional
feet of separation for each additional story over
two (2).
(2) A minimum ten-foot setback for all structures
abutting platted public or private right-of- way,
27a
except that garages or carports perpendicular
to any right-of-way shall have a minimum
twenty-foot setback.
(3) Buildable areas, where required, shall be shown
on the site plan and subdivision plat and deeds
and covenants must reflect that structures, walls.
or service areas will be within the buildable
areas.
(4) Where a site plan is not required for detached
single-family dwellings pursuant to Section 25-
24.13 (2), the following minimum yard re-
quirements shall be observed:
(a) 10’ front yard
(b) 10’ rear yard
(c) 5’ side yard
(d) 10’ side yard abutting a side street
25-24.12 Height standards. The height of each
building or structure shall not exceed two and one
half (2%) stories or thtirty-five (35) feet, measured
from the lowest living area floor level and shall not
exceed thirty-five (35) feet from the highest elevation
of the lot, except that the city plan commission may
recommend and the city council may approve height
limits in excess of those mentioned above where it
can be demonstrated that the additional height will
not have a detrimental effect on surrounding land uses.
25-14.13 Property development standards. The fol-
lowing property development standards shall apply
to all land, buildings and structures within the PMD.
(1) Subdivision plat. Buildings and structures in
the PMD shall be erected only on land where
a plat or replat has been approved by the city
plan commission, filed of record in accordance
with Ordinance No. 7714, and indicates com-
pliance with the provisions of this section. Each
(3)
(4)
(5)
28a
attached or detached single-family dwelling
must be platted on an individual lot prior to
issuance Of occupancy permits.
Site plan. Where the minimum yard standards
of section 25-24.11 (4) are observed, detached
single-family dwellings shall not require a site
plan. Under all other conditions, a site plan
complying with all of the requirements of sec-
tion 25-82 is required for all property within
the PMD. No building permit shall be issued
until the site plan is approved by city council.
If the development is to be undertaken in a
series of phases, a development schedule indi-
cating phasing shall be submitted concurrently
with the site plan required by section 25-82.
Common or public open space. Where required,
the total amount and distribution of common
or public open space shall be shown on the
site plan and subdivision plat and shall be
expressed as the percent of the site which will
remain in its natural state. Satisfactory pro-
visions for assuring continued retention of the
common or public open space shall be pro-
vided in accordance with the procedures set
forth in section 25-67.
Percent slope. The percent slope of the pro
posed planned mountain development used to
determine the common open space shall be
shown on the required site plan and subdivision
plat.
Perimeter treatment. The perimeter treatment
of the proposed planned mountain develop-
ment shall be designed to insure compatibility
with adjacent existing or potential develop-
ment by provision of compatible land uses and
structures. A minimum setback of ten (10)
of separation for each story or fraction thereof
ol
(6)
(7)
(8)
(9)
(10)
29a
shall be maintained between any structure and
the outside boundary of the proposed planned
mountain development.
Private streets. Where authtorized by the city
plan commission in approving a_ subdivision
plat, streets may be privately owned.
Preservation of the environment. In all planned
mountain developments, existing vegetation,
animal life, arroyos, flood prone areas, steep
slopes, and other natural features shall be con-
sidered in the planning, design and layout of
Right-of-way and pavement widths. The right-
of-way and pavement widths for internal ways,
streets and alleys within and adjacent to the
proposed planned mountain development shall
(a) determined from the standards contained
in Subdivision Ordinance No. 7714 and
any applicable ordinance governing pri-
vate streets.
(b) in conformity with the estimated needs of
the entire planned mountain development
and the traffic to be generated thereby.
(c) adequate and sufficient in size, location
and design to accommodate the maximum
traffic, parking, loading needs and _ the
access for fire-fighting equipment vehicles
while preventing undue scarring and grad-
ing.
Off-street parking and loading. The minimum
requirements for off-street parking and loading
set forth in sections.
Utilitites and public services. Every planned
mountain development shall be adequately
30a
served by essential utilities and public services
such as water, sanitary sewer, storm drainage,
police, fire and other similar services.
25-24.14 Property grading standards. Grading in
the PMD must be in accordance with Chapter 11A
(Grading Ordinance) of the El Paso City Code.
25-24.15 Work standards for construction.
(1)
(2)
(3)
(4)
(5)
Utility service facilities shall be placed under-
ground and wherever practical shall lie within
street right-of-way.
Disturbed soil surfaces shall be stabilized by
compaction and revegetation where practical
to minimize blowing dust, landslides, falling
rocks, debris and excessive water runoff.
Any person performing grading or excavation
operations shall take precautions to minimize
erosion, protect any water-ways or arroyos and
other natural features and to protect the health,
safety and welfare of persons and public and
private property from damage.
All developers or property owners shall be re-
sponsible for storage and hauling of loose dirt,
debris, etc., resulting from the proposed planned
mountain development to an approved location
for disposal.
The drainage plan, prepared by a professional
engineer registered in the State of Texas, which
takes into consideration the health, safety and
general welfare of all persons and property
within and adjacent to the proposed planned
moutain development, adjacent arroyos, chan-
nels, and any other collection systems which
lie between the proposed development and ap.
proved drainage collection basins, shall be
carried out as required by the Subdivision Ordi-
nance.
31a
(6) Sand and gravel extraction, borrow pits, quarry-
ing, rock crushing and any other processing
of earthen material is expressly prohibited, ex-
cept that such activities may be permitted when
conducted as an incidental use in preparing
a site for uses otherwise permitted by Sections
25-24.4 and 25-24.7 and when’ conducted in—-
accordance with an approved site plan.
25-24.16 Environmental assessment
(1) To ascertain how the proposed development
will affect the site and adjacent areas, an
environmental assessment may be required by
the city plan commission and approved by the
city council in conjunction with the subdivision
plat required by section 25-24.13. The assess-
ment shall be prepared in accordance with the
environmental guide published by the depart-
ment of planning, research and development
of the City of El Paso, Texas on March 24,
1983 and as may subsequently be revised.
(2) If the city council finds after a recommendation
of the city plan commission and the El] Paso
Mountain Committee, that there is evidence
of an adverse effect upon the environment as
expressed in the environmental assessment or
as determined at the public hearing, the city
council may approve specific modifications to
the site plan which lessen or eliminate the
adverse effects.”
2. That Section 25-6 of the El Paso City Code (Zon-
ing) shall be and is hereby amended by adding the
following:
“Acreage, Gross: The total area of a proposed de-
velopment, within a planned mountain development
district, shown on the original subdivision plat or
site plan submitted.
32a
Open space, private: The part of a lot owned by
a person or entity in a planned mountain develop-
ment specifically designated as open area to re-
main undisturbed in its natural state.
Open space, public: The land dedicated to and
accepted by the City of El Paso in a planned
mountain development specifically designated as open
area to remain undisturbed in its natural state.
Slope, percent of: The percent average slope shall
be determined by using the following equation:
S = average slope, percent
S = .0023 IL I = contour interval in feet
—— L = contour length in feet
‘A = parcel area in acres”
3. That Section 25-6 of the El Paso City Code (Zon-
ing) shall be and is hereby amended by changing the
following definitions to read as follows:
“Dwelling, multi-family: A building, or portion
thereof, designed or used for occupancy by two
(2) or more families, all living independently of
each other in separate dwelling units.
Dwelling, attached single-family: A row or group
of two (2) or more adjoining dwelling units each
of which is separated from the others by a common
property line.
Open space, common use: Land owned by an in-
corporated or unincorporated association in a
planned residential or planned mountain develop
ment, specifically developed for common. recrea-
tional areas, designated as open area for the use
and enjoyment of all the owners of the development
or in the planned mountain development district
as land to remain undisturbed in its natural state,
except for golf courses where allowed under Section
33a
25-24.7; does not include streets, drives and alleys,
private yards and patios of individual building sites
or other areas designed primarily to serve other
functions, such as parking or storage areas except
for hiking trails and walking paths where approved
by the city council.”
Passed and approved this 4th day of December, 1984.
ATTEST:
(Signature Illigible)
City Clerk
APPROVED AS TO FORM:
(Signature Illigible)
City Attorney
APPROVED AS TO CONTENT:
(Signature Illigible)
Depariment of Planning, Research
and Development
(Signature Illigible)
Mayor
34a
APPENDIX E
TEXAS LOCAL GOVERNMENT CODE
§ 211.009. Authority of Board
(a) The board of adjustment may:
(1) hear and decide an appeal that alleges error in
an order, requirement, decision or determination made
by an administrative offical in the enforcement of
this subchapter or an ordinance adopted under this
subchapter;
(2) hear and decide special exceptions to the terms
of a zoning ordinance. when the ordinance requires
the board to do so; and
(3) authorize in specific cases a variance from the
terms of a zoning ordinance if the variance is not
contrary to the public interest and, due to special con-
ditions, a literal enforcement of the ordinance would
result in unnecessary hardship, and so that the spirit
of the ordinance is observed and substantial justice
is done.
(b) In exercising its authority under Subsection
(a)(1), the board may reverse or affirm in whole or
in part, or modify the administrative official’s order,
requirement, decision, or determination from which an
appeal is taken and make the correct order, require-
ment, decisions, or determination, and for that purpose
the board has the same authtority as the administrative
official.
(c) The concurring vote of four members of the
board is necessary to:
35a
(1) reverse an order, requirement, decision, or de-
termination of an administrative official;
(2) decide in favor of an applicant on a matter on
which the board is required to pass under a zoning
ordinance; or
(3) authorize a variation from the terms of a zoning
ordinance.
$s
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.