Opposition Brief — County Line Joint Venture v. City of Grand Prairie

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0. 88-122 Sep 4 18

JOSEPH F. SPANTOL, JR.

“SLERK

Ec emmmeniil

, In The

Supreme Court of the United States

October Term, 1988

fa’

COUNTY LINE JOINT VENTURE,

Petitioner,

Vs.

CITY OF GRAND PRAIRIE, TEXAS,

Respondent.

ra’

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ra’

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

R, Crayton Hutcuins

Grand Prairie City Attorney

GerorceE A. STAPLES, JR.

SraPpies, Foster & Hampton

701 Texas Commerce Building

860 Airport Freeway West

Hurst, Texas 76054

(817) 281-2222

Attorneys for Respondent

September 16, 1988

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

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QUESTIONS PRESENTED

1. Is the owner of real property entitled to proce-

dural due process notice and hearing either before or after

such owner’s right to use the property is adversely at-

fected by amendments to the zoning ordinances enacted by

a city’s legislative body?

TABLE OF CONTENTS

QUESTIONS PRESENTED

OPINIONS BELOW

CONSTITUTIONAL PROVISIONS, STATUTES

AND ORDINANCES INVOLVED

STATEMENT OF THE CASE

ARGUMENT

CONCLUSION

Page

No. 88-122

In The

Supreme Court of the United States

October Term, 1988

COUNTY LINE JOINT VENTURE,

Petitioner,

Vs.

CITY OF GRAND PRAIRIE, TEXAS,

Respondent.

OPPOSITION TO PETITION FOR CERTIORARI

OPINIONS BELOW

The opinion of the United States District Court for

the Northern District of Texas, Dallas Division (Porter,

J.) (Appendix A, page la) is unreported. The opinion of

the Court of Appeals (Appendix B, page 8a) is reported at

839 F.2d 1042.

CONSTITUTIONAL PROVISIONS,

STATUTES AND ORDINANCES INVOLVED

A. Constitutional Provisions.

The constitutional provisions here nvolved are the

due process clauses of the Fifth and Fourteenth Amend

ments.

B. Statutes.

The staiutory provisions here involved are Sections

211.008 through 211.011, Texas Local Government Cod

(formerly Article 101lle, Texas Revised Civil Statutes)

(App ndix CC, page 19a),

C. Ordinances.

The ordinances here involved are Seetion D-100 of

Grand Prairie’s Comprehensive Zoning Ordinance (Ap

pendix D, page 28a), City of Grand Prairie Ordinances

2750 and 3745, found in Respondent’s Appendix E, page

sla, and Appendix I, page 36a.

STATEMENT OF THE CASE

This ease involves the amendme

zoning ordinance to eliminate permitted uses which cease

for more than SLX Tol ths. The Grand Prat e { tv ( oO

cil zoned Petitioner’s property to permit a number of ae

+ . y ,

tivities including, by reason of a ‘‘specilic use permit’’ zon

ing overlay ordinance (Appendix E, page 31a), aleoholie

beverage sales. Subsequently the City amended its zon-

ing ordinance to provide that all such specifie use permi

would terminate if the use ceased for six months (Appen

dix F’, page 36a).

The City had a procedure whereby a certificate of

occupancy eould he requested from the building official

and, if denied, appealed to the Zoning Board of Adjustment

(Appendix D, page 28a) and from thence to the Texas

courts as contemplated by Section 211.011, Texas Loeal

Government Code (formerly Article 1011lg, Texas Revised

Civil Statutes) (Appendix C, page 23a).

The City also had ordinances requiring licenses for

alcoholic beverage sales, dance halls and amusement di

vices, which are administered by the city secretary. No

appeal process existed for a denial of these licenses

It is uncontested that Petitioner’s previous tenant held

licenses, that he abandoned the property and the licenses

expired. More than six months later a new applicant

sought new license and the, ere denied bv the citv secre

tary based on the ordinance terminating the specifie use

permit.

Although Petitioner could have requested a certificate

of occupancy and if denied, appeal to the Zoning Board of

Adjustment, it instead tried to appea the city secretary's

license denial to the Zoning Board of Adiustment and

when this appeal! was reiected On lurisdict (>! - | rol

(Appendix Cr. page 39a). Petitioner filed this suit

ARGUMENT

The single decision cited by Petitioner as establishing

a conflict among cireuits is Kerly Industries, Inc. vs.

Pima County, 785 F.2d 1444 (9th Cir. 1986), which in-

volved the rights created under a permit granted by a

statutory County Air Quality Control District. Such per-

mits were defined by Arizona statutes, which also estab-

lished provisions for their suspension and revocation. The

Ninth Cireuit held that these state statutes created a prop-

erty right sufficient to require procedural due process

prior to cancellation of such permit. The Ninth Cireuit

also held that the letter of a district employee declaring

the permit null and void was itself a nullity beeanse he

had no such power. and therefore there was no depriva-

tion of property without due process. This holding is en-

tirely consistent with the case at bar and there is no con-

flict between the Third and Fifth Cireuits on any issue

involved in the two cases.

In the case at bar, Petitioner complains that the city

secretary deprived it of a specific use permit and denied

a third party certain licenses not under the zoning ordi-

nanee but which could not be granted in the absence of

proper zoning. As noted by the Fifth Cirenit in the case

below, the city secretary had no power to make zoning

decisions. Fifth Cireuit decision at Appendix B, page

10a. (Also see Appendix G, page 39a). The specific use

permit was created by ordinance of a legislative body,

the City Council (Appendix E, page 3la). This permit

was amended by ordinance of the same body to provide that

it would “automatically terminate upon cessation of the

use for a period of six months, regardless of the intention

of the owner.” (Appendix F, page 36a).

Neither Petitioner nor its prospective tenant Gomez

ever held any of the licenses which the city secretary re-

fused to issue Gomez. There are no statutory provisions

dealing with such licenses. In the absence of any such li-

censes or statutes there was no deprivation of any prop-

erty right.

Furthermore, since Gomez is not a party to this ac-

tion, Petitioner cannot be said to have been denied a pro

cedural due process right by the city secretary’s denial of

licenses to Gomez.

The court below did an excellent job of analyzing the

Fifth Cireuit’s position on the issue of whether the City

Council acted in an administrative or legislative capacity

in enacting the ordinance of which Petitioner complains.

Although the court could have relied on its many prece

dents (Appendix B, page 15a) which clearly hold that

all zoning decisions by a governnWntal body are purely

legislative, the opinion written by Justice Bright, Senior

Judge from the Eighth Cireuit sitting by designation re

fuses to rule so broadl; and holds only that the ordinance

enactment was a purely legislative act thus negating any

possibility of the existence of a procedural due process re-

quirement.

No case cited by Petitioner suggests that there is any

requirement for procedural, as distinguished from sub

stantive, due process as a condition to the acts of a legis

lative body in amending zoning ordinances. There is con

siderable precedent to the contrary. Texaco, Inc. vs.

Short, 454 U.S. 516, 106 S.Ct. 781, 70 L.Ed.2d 738 (1982) ;

Couf vs. DeRBlaker, 652 F.2d 585 (Sth Cir. 1981), cert.

denied, 455 U.S. 921, 102 S.Ct. 1278, 71 L.Md.2d 462 (1982) ;

Shelton vs. City of Colleae Station, 780 F.2d 475 (5th Cir.

1986) (rehearing en bane), eert. denied, — U.S. —, 106

S.Ct. 3276, 91 L.Ed.2d 566 (1986).

Lastly, Petitioner’s Application for a Writ of Certio-

rari is simply premature. The Fifth Cirenit decision de-

termined only that Petitioner cannot recover vnder a pro-

cedural due process theory. The case was remanded for

further consideration of the other Federal claims and State

claims pending. Except in extraordinary instances, a Writ

of Certiorari is not issued until a final decree. The Con-

queror, 166 U.S. 110, 17 S.Ct. 510, 41 L.Ed. 937 (1897) ;

Hamilton-Brown Shoe Co. vs. Wolf Brothers and Co., 240

U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629 (1916). This case in-

volves no conflict between the decisions of Federal Courts

of different cireuits as to the procedural dne process

claim. The case at bar is not ripe for adjudication by the

Supreme Court because there has been no final adjudica-

tion of Petitioner’s rights to recover under its remaining

State and Federal theories.

CONCLUSION

The city secretary did not terminate Petitioner’s zon-

ing status; this was terminated by an amendment of the

City’s zoning ordinance by its City Council, a legislative

act. Petitioner has no procedural due process protection

from legislative acts. There is no conflict between cir-

cuits on this issue. The decree for which review is sought

is not final.

Yor all of the foregoing reasons, a Writ of Certiorari

should be denied in this ease.

Respectfully submitted,

STAPLES, FOSTER & HAMPTON and

R. CLAYTON HUTCHINS, CITY ATTORNEY

by: /s/ GEORGE A. STAPLES, JR.

George A. Staples, Jr.

701 Texas Commerce Building

860 Airport Freeway West

Hurst, Texas 76054

(817) 281-2222

ATTORNEYS FOR RESPONDENT

CERTIFICATE OF SERVICE TO:

Mr. Wm. Charles Bundren

JACKSON & WALKER

6000 First RepublicBank Plaza

Dallas, Texas 75202

No. 88-122

In The

Supreme Court of the United States

October Term, 1988

COUNTY LINE JOINT VENTURE,

Petitioner,

CITY OF GRAND PRAIRIE, TEXAS,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX TO OPPOSITION TO

PETITION FOR CERTIORARI

SP:

SRE a MS.

EKGs: POT PE i OES ee FRILLS OP SOT LN. — IO AOD On IONE LIGAEN, — IIT a —_—

TABLE OF CONTENTS

Page

Appendix A

Order of District Court for the Northern District

of Texas, Dallas Division, granting summary

judgment to Defendant, dated March 18, 1987 ..... 2a

Appendix B

Opinion of Fifth Circuit Court of Appeals dated

IU I ee 10a

Appendix C

Sections 211.008 - 211.011, Texas Revised Civil

Statutes (formerly Article 1011 g) oe 23a

Appendix D

Section D-100 of Grand Prairie Zoning Ordinance 28a

Appendix E

City of Grand Prairie Ordinance No. 2750 grant-

ing County Line a Specific Use Permit, dated

BG GN og cle lie oe ince gear semen 3la

Appendix F

City of Grand Prairie Ordinance No. 3745 (See-

tion B-713 of the City’s Comprehensive Zoning

Ordinances) relating to termination of specific

use permits, dated February 19, 1985 200. 36a

Appeudix G

Affidavit of City Attorney concerning jurisdic-

‘on of Zoning Board of Adjustment .............. ae 39a

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

County Line Jotnt VENTURE )

Vs. ) No. CA3-86-1919-F

Crry or Granp Prarrizf, TEXAS )

ORDER

Before the Court come cross motions for summary

judement. The Court hereby denies Plaintiff’s motion

and grants Defendant’s motion.

This dispute arises from a change in zoning ordi-

nances.

Plaintiff seeks basically three things. First, Plaintiff

wants a judgment declaring that the lack of any procedural

mechanism to appeal or otherwise challenge the decision of

the city secretary constitutes a denial of Plaintiff’s proce-

dural due process rights. Second, he wants a judgment

declaring the ordinance unconstitutional under the Texas

Constitution. Third, he wants an injunction enjoining the

City from enforcing its ordinances. Plaintiff claims a de-

nial of substantive due process (Complaint § 5.5) but does

not raise this in his motion for summary judgment. The

questions of whether Defendant’s ordinances are unconsti-

tutional or invalid are not federal questions; these are

questions of state law and the Court has pendent jurisdic-

tion over them. United Mine Workers v. Gibbs, 383 US.

715, 726 (1966).

Summary judgment is appropriate when there is no

issue of material fact and it is clear that the movant is

entitled to judgment as a matter of law. See Rule 56(e);

Joe Reguiera, Inc. v. American Distilling Co., Inc., 642

F.2d 826, 829 (5th Cir. 1981). When a motion for summary

judgment is made and supported as provided in this rule,

an adverse party may not rest upon the mere allegations or

denials of his pleading, but his response, by affidavits or

as otherwise provided in this rule, must set forth specifie

facts showing that there is a genuine issue for trial. If

he does not so respond, summary judgment, if appropri-

ate, shall he entered against him. Rule 56(e) (emphasis

added).

The Court first considers Plaintiff’s motion for sum-

mary judgment and first considers Plaintiff’s claim that

Defendant under color of law deprived Plaintiff of his pro-

cedural dne process richts.

It is not clear whether a Plaintiff can state a claim for

the violation of his procedural dne process rights in the

context of a zoning case at all. Traditionally, zoning de-

cisions were considered legislative and therefore no Plain-

tiff could complain of procedural due process violations.

The Fifth Cireuit has said that ‘‘Our opinions repeatedly

characterize local zoning decisions as ‘legislative’ in na-

ture. If this word is used advisedly—as it appears to be—

then the plaintiffs cannot complain of a denial of proce-

dural due process, for no constitutional limitation on legis-

lative procedure is relevant here. Most of the cases de-

veloping procedural limitations on government action in-

volve challenges to administrative decisions. The plain-

tiffs do not cite a single federal case that even discusses

procedural requirements for zoning matters, let alone one

that reverses a zoning decision because of a procedural

failure.”’ Couf v. DeBlaker, 652 F.2d 585, 590 (5th Cir.

1981). The Fifth Cirenit held that ‘‘The only question

which federal distriet courts may consider is whether the

action of the zoning commission is arbitrary and capri-

cious, having no substantial relation to the genera! wel-

fare.’’ South Gwinnett Venture v. Pruitt, 491 F.2d 5, 7

(1974) (en bane) (emphasis added). The Court stated

that such a procedural due process claim was rightfully

dismissed at the district court level. Td.

Whether this is still the rule is uncertain. The Fifth

Cireuit held in another zoning case that ‘‘Even when the

deprivation of a property right triggers procedural due

process standards that may require a state agency to be

able to point to a rational basis employed in reaching its

decision, as opposed to a basis later hypothesized by

others, nothing requires proof of the, as distinguished

from a. basis of decision.’’ Shelton v. City of College Sta-

tion, T80 F.2d 475, 484 (5th Cir. 1986) (en bane). How-

ever, the same decision holds that ‘‘whatever be the role

of procedural due process here, we are persuaded, as were

the district court and the panel, that [a board member’s]

mere membership in a church that also opposed the grant

of the variances does not by itself establish bias... .’’ Id.

at 485-486. The dissent reads the majority as having ad-

mitted that procedural due process scrutiny might prop-

erly apply to a Zoning Board’s decision. I[7/. at 488.

The only similar cases to handle this issue after Shel-

ton do not directly consider the issue of whether a proce-

dural due process claim can be stated in the context of a

zoning decision. The Courts did decide that the procedural

due process claims were without merit. In Horizon Con-

cepis, Inc. v. City of Balch Sprinas, 789 F.2d 1165 (5th

Cir. 1986), the Court rejected claims of deprivation of

procedural due process because the Plaintiff had had op-

portunities to be heard and had ignored most of them. Jd.

at 1168-1169. Another post Shelton decision also held that

there is no procedural due process claim where the Plain-

tiff had an adequate opportunity to he heard. Abraham

v. City of Mandeville, 638 F. Supp. 1198, 1113 (E.D. La.

1986). The Fifth Cirenit apparently has an undeclared

policy of hearing procedural due process claims on zoning

decisions. Therefore, the Court will consider Plaintiff’s

claim that Defendant under color of law deprived Plain-

tiff of his procedural due process rights.'

Plaintiff claims that the following are uncontroverted

facts that support his motion for summary judgment.

Plaintiff owns certain property, which has been used for

at least 10 vears as a night elub. During the six-month

period prior to the adoption of § B-713, alcoholic beverages

This conclusion is also supported by Schafer v City of New

Orleans, a pre Shelton case, which notes that there is no pro-

cedural due process deprivation where the Plaintiffs had actual

notice of the introduction of the ordinance and appeared at the

hearing preceding its adoption. Schafer v. City of New Orleans,

743 F.2d 1086, 1089 (5th Cir. 1984). The logical corollary is that

when a person having a valuable property right is not notified

of the introduction of the ordinance and is therefore unable to

attend hearings, then his procedural due process rights are vio-

lated and he may seek redress. Suprisingly, Plaintiff does not

cite this case, nor does Plaintiff raise the issue of whether it was

deprived of procedural due process because it was not notified

of the hearing for the adoption of the ordinances. Plaintiff onlv

mentions that it received no notice of the hearing in connection

with the state law claim that the ordinances are not valid. Since

the issue is not r.ised or briefed, this Court will not decide it.

John Deere Co. v. American Nat. Bank, Stafford, No. 86-2830,

slip op. at 2371 (5th Cir. Feb. 17, 1987).

or mixed beverages were sold at Plaintiff’s property. An

ordinance granting a specifie use permit to sell alcoholic

beverages at Plaintiff’s property was passed and approved

on August 31, 1976. The property is and was, at the time

of termination of the specifie use permit, entirely within

an area zoned ‘‘Commercial—office’’ by the Defendant.

On November 27, 1985, Jose G. Gomez (Plaintiff's lessee)

applied to the City for (i) an aleaholic beverage license ;

(ii) a dance hall license, and, (iii) a mechanical amusement

device license. On Deecember 2, 1985, the Defendant, by

and throuch the Citv Secretary, denied all three of Mr.

Gomez’ applications pursuant to § B-713 of Defendant’s

Comprehensive Zoning Ordinance (the ‘‘Ordinance.*’)

Plaintiff was not personally notified of any hearing at

which time the City Council of the Defendant was to dis-

cuss adoption of the then-proposed § B-713 of the Ordi-

nance relating to the termination of specific use permits)

or of any hearing at which time the City Council of the

Defendant was to diseuss adoption of the then proposed

§§ B-710 and B-711 of the Ordinance (relating to proposed

requirements to obtain a specifie use permit for the on-

premise sale of aleoholic beverages.

Defendant directly controverts Plaintiff's allegedly

uncontroverted fact that the City Secretary of Defendant

denied all of Mr. Gomez’ applications pursuant to § B-715.

See affidavit of Defendant City Secretary Sue Shawver.

Therefore, Plaintiff is not entitled to summary judgment

on his procedural due process claim, because there is a

renuine issue of material fact as to whether the Defend-

ant’s City Secretary denied Plaintiff's lessee’s applica-

tions pursuant to § B-713.

The Court now turns to the Defendant’s motion for

summary judgment. Defendant argues that it is entitled

to summary judgment on the ground that it did not violate

Plaintiff's procedural due process rights.

Defendant’s summary judgment evidence is as fol-

lows. The Defendant has a procedure for requesting the

right to use premises which was not utilized by Plaintiff.

See affidavit of R. Clayton Hutchins, Defendant's City

Attorney; affidavit of Jerry Sylo, Planning Technician

of Defendant; Plaintiff's answer to Defendant's request

for admission No. 2, (wherein Plaintiff admits that neither

he nor his lessee has ever made application for a certifi-

cate of occupancy for the property in question). Plaintiff

has not attempted to controvert Defendant’s uncontroverted

facts by means of any summary judgment evidence as re-

quired by Rule 56(e).

Because Plaintiff has not applied for a certificate of

occupancy, Plaintiff has not complied with Ordinance

In its Response to Defendant's Motion for Summary judg-

ment and Reply to Defendant's Response to Plaintiff's Motion

for Partial Summary Judgment, Plaintiff alleges that it is “undis-

puted that because Plaintiff's specific use permit had been

terminated, any request for a Certificate of Occupancy would

have been futile.” Plaintiff does not supply or indicate any sum-

mary judgment evidence establishing that it is undisputed that

such a reauest would have been “futile.” Quite the contrary,

the Court only sees Defendant's evidence that such a request

if made in conformance with the City’s ordinances, would not

have been futile. Plaintiff has not attempted to controvert such

evidence

B-1001, which provides’ that before a building may be used,

it must have been inspected to see that it complies with

the City’s Building Code. Because Plaintiff does not com-

ply with B-1001, plaintiff does not comply with B-700. Or-

dinanee B-700 provides* that before a person can use prop-

erty for the sale or distribution and on-premise consump-

tion of aleohol, he must first obtain a specific use permit

and that to obtain such a permit, he must alsu comply

with all other ordinances of the City, which would logical.

ly inelude B-1001,

The Court does not see how the Plaintiff can com

plain of having been deprived of property without pro

cedural due process when the Plaintiff hasn’t even at-

tempted to use the procedures available to hun.

‘B-1001: No building hereafter erected, converted or struc-

turally alterec! shall be used, occupied or changed in use and no

land may be used until a Certificate of Occupancy and Compli-

ance shall have been issued by the Building inspector of the City

of Grand Prairie stating that the building or proposed use of land

or building complies with the provisions of this Ordinance and

other building laws of the City of Grand Prairie.

48-700 ALCOHOLIC BEVERAGES. SALE OR DISTRIBUTION

AND ON-PREMISE CONSUMPTION OF:

ANY PERSON, FIRM OR CORPORATION THAT PROPOSES TO

USE ANY PROPERTY IN THE CITY ZONED COMMERCIAL-

OFFICE, COMMERCIAL, CENTRAL AREA, LIGHT INDUSTRIAL,

HEAVY INDUSTRIAL, OR PLANNED DEVELOPMENT FOR THE

SALE OR DISTRIBUTION AND ON-PREMISE CONSUMPTION

OF ALCOHOLIC BEVERAGES SHALL BE REQUIRED TO OBTAIN

SPECIFIC USE ZONING AFTER APPLICATION THEREFOR AND

PLIBLIC HEARING BEFORE THE PLANNING AND ZONING CC M-

MISSION AND THE CITY COUNCIL AS OTHERWISE PROVIDED

IN THE ZONING ORDINANCE OF THE CITY; PROVIDED THAT

THE APPLICATION FOR SUCH LAND USE, IN ADDITION TO

BUT NOT LIMITATION OF, ANY OTHER REQUIREMENT IN SAID

ZONING ORDINANCE, AS A CONDITION FOR THE SAID USAGE

OF PROPERTY, COMPLY WITH ALL ORDINANCES, REGULA-

TIONS AND CONDITIONS OF THE CITY OF GRAND PRAIRIE,

AND ALL STATE AND FEDERAL LAWS AND REGULATIONS

The Court therefore grants summary judgment for

Defendant on the ground that there is no genuine issue

of material fact econeerning Defendant's summary judd

ment evidence, and the Defendant is entitled to judgment

as a matter of law. Horizon Concepts, 789 F.2d at 1168

1169: Abraham, 638 I’. Supp. at 1115.

Since Plaintiff's one federal claim has been dismissed,

the Court declines to exercise pendent jurisdiction over

Plaintiff's state claims. Gibbs, 383 U.S. at 726. Further.

review of municipal zoning is within the domain of the

states, Shelton v. City of Collea Station, 780 F.2d 475,

477 (5th Cir. 1986), and the district courts should avoid

exercising pendent jurisdiction over a zoning matter Smith

City of Picayune, 795 F.2d 482, 489 (5th Cir. 1986) (Hig-

ginbotham, J. concurring). Therefore, this Court dis

misses the rest of the action without prejudice,

So ORDERED this 18th day of March, 1987.

s/ Robert W. Porter

ROBERT W. PORTER

UNITED STATES DISTRICT

JUDGE

10a

APPENDIX B

County Line Joint Venture

Grand Prairie, Tex.

COUNTY LINE JOINT VENTURE,

Plaintiff-Appellant,

THE CITY OF GRAND PRAIRIE, TEXAS,

Defendant-Appellee.

No. 87-1304.

United States Court of Appeals,

Fifth Cireuit.

March 18, 1988.

Appeal from the United States District Court for the

Northern District of Texas.

Before CLARK, Chief Judge, BRIGHT,* and GEE,

Circuit Judges.

BRIGHT, Cireuit Judge:

County Line Joint Venture (County Line) brought

suit for injunctive relief and monetary damages against

the City of Grand Prairie, Texas (City) on the grounds

that it violated County Line’s constitutional and state-cre-

ated rights by applying a city zoning ordinance which auto-

matically extinguished County Line’s specific use permit

(SUP) for six months of non-use. The constitutional vio-

lla

lations allegedly committed by the City include a denial

of procedural due process, substantive due process, equal

protection and fifth and fourteenth amendment taking. The

district court’ granted summary judgment in favor of the

City on the procedural due process issue and dismissed

the entire action. We affirm the district court’s grant of

summary judgment as to the procedural due process issue

but reverse the district court’s dismissal of this action and

remand for further proceedings consistent with this

opinion.

I. BACKGROUND

County Line owns certain real property located in

Grand Prairie, Texas. In 1976, County Line sought and

received an SUP permitting it to sell aleoholic beverages

on the premises? In February 1985, the city councii passed

an ordinance entitled § B-713 which automatically termi-

nates all SUPs that are not used for a period of six

months.? The City gave public notice in a local newspaper

1The Hon. Robert W. Porter, Chief United States District

Judge for the Northern District of Texas.

2The city zoned the property for commercial use. However,

an SUP, as an amendment to the zoning ordinance, in this case

permitted the sale of alcoholic beverages where they could not

otherwise be sold.

3Section B-71 provides as follows:

A. All specific use permits approved in accordance

with the provisions of this ordinance in its original form or

as hereafter amended shall automatically terminate upon

cessation of the use for a period of six months, regardless

of the intention of the owner.

(Continued on following page)

that it was considering such an amendment and subse-

quently held a public hearing on the proposed ordinance.

On November 27, 1985, County Line’s current tenant

applied to the city secretary for an alcoholic beverage

license, dance hall license, and a mechanical amusement de-

vice license. The city secretary checked the records to

determine whether issuance of such licenses was appropri-

ate. Her research disclosed that the property had been

unoccupied for approximately one year and that pursuant

to Ordinance 4 B-713, County Line no longer possessed an

SUP. Because no license could be issued without an SUP,

the secretary denied the license applications.

Following the city secretary’s denial, County Line

attempted to appeal the city secretary’s decision regarding

the SUP’s termination to the zoning board of adjustments

and appeals. The zoning board determined that it lacked

jurisdiction to hear any complaint regarding a city secre-

tary decision because the zoning board had jurisdiction

(Continued from previous page)

B. Any specific use permit granted by the City Council

shall automatically terminate if a building permit has not

been obtained on the premises within one year from the

date the ordinance granting the specific use permit is

adopted.

C. On any tract of land for which a specific use permit

has been granted and the use has ceased as of the date of

this ordinance, such specific use permit shall automatically

terminate six months after the adoption of this ordinance

unless the use has been reinstated by that time.

D. Specific use permits in existence as of the date of

this ordinance shall automatically terminate one year from

the date of this ordinance if a building permit has not been

obtained by that time.

Grand Prairie, Tex., Ordinances § B-713.

13a

over zoning matters which, by definition, did not include

the city secretary’s licensing decisions of an official of

the city. County Line brought this claim for relief for

violation of its civil rights and pendant state claims in

United States District Court.

Both parties moved for summary judgment on the

procedural due process claim. The district court granted

sulamary judgment in favor of the City, and it apparently

assumed that there were no other remaining federal claims.

The district court then declined to exercise jurisdiction

over the remaining pendant state law claims. With such a

disposition, the district court granted a dismissal of the

action. County Line then brought the present appeal.

We now turn to County Line’s claim that its con-

stitutional rights have been violated by the City of Grand

Prairie.

Il. DISCUSSION

A. Procedural Due Process

In an attempt to delineate the relationship between

property owners’ rights and zoning ordinances, courts and

commentators indicate that the existence of procedural due

process rights depends upon how the court views zoning

ordinances and decisions. D. Mandelker, J. Gerand & E.

Sullivan, Federal Land Use Law, § 2.03 (1986); Develop-

ments in the Law—Zoning, 91 Harv.L.Rev. 1427 (1978).

The City asserts that this court should view the City’s con-

duct in adopting and applying § B-713 as a legislative act.

Generally, if the court views the governmental conduct

as legislative, the property owner has no procedural due

l4a

process rights. ‘‘When the legislature passes a law which

affects a general class of persons, those persons have all

received procedural due process—the legislative process.

The challenges to such laws must be based on their sub-

stantive compatibility with constitutional guarantees.”

2 R. Rotunda, J. Nowak & J. Young, Treatises on Consti-

tutional Law; Substance and Procedure, § 17.8, p. 251

(1986). The large number of people affected by the legis-

lative process ensures that the legislature will act reason-

ably. Rogin v. Bensalem Township, 616 F.2d 680, 693-94

(3d Cir. 1980), cert. dented, 450 U.S. 1029, 101 S.Ct. 1737,

68 L.Kid.2d 223 (1981).

County Line urges this court to view the ordinance

and its application under an administrative/adjudicative

model. County Line argues that it has a protectable pro-

perty interest in the SUP and that the City violated its

right to procedural due process when the City considered

and enacted the statute without giving County Line per-

sonal notice. See Board of Regents v. Roth, 408 U.S. 564,

92 S.Ct. 2701, 33 L.Ed2d 548 (1972). Further, County Line

argues that the City violated County Line’s right to pro-

cedural due process when the City failed to give County

Line personal notice and a hearing prior to the time the

ordinance operated to extinguish its SUP. County Line

also contends that the Citv violated its due process rights

when the city secretary denied the requested licenses be-

‘ause County Line did not have the proper zoning.

If the action of the city council is viewed as adminis-

trative/adjudicative, procedural due process rights may

attach. These procedural rights follow only if the land-

owner establishes a property right created by state or

lda

local law. The amount of process due depends upon the

balancing of interests as enunciated in Mathews v. Eld-

ridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).4

Conduct of a municipal body is likely to be deemed

legislative when an elected group, such as a city council,

makes a general zoning decision which applies to a large

group of interests. Conversely, a municipal body’s action

may be more likely termed adjudicative if an appointed

group, such as a zoning board, makes a specific decision

regarding a specific piece of property. See Developments,

supra.

As a preliminary matter to resolving whether the city

council acted in an administrative or legislative capacity in

enacting the ordinance, we review this court’s decision in —

South Gwinnett Venture v. Prwtt, 491 F.2d 5 (5th Cir.)

(en bane), cert. denied, 416 U.S. 901, 94 S. Ct. 1625, 40

L.Ed.2d 119, cert. denied, 419 U.S. 837, 95 S.Ct. 66, 42

L.Ed2d 64 (1974); Couf v. DeBlaker, 652 F.2d 585 (5th

Cir.1981), cert. dented, 455 U.S. 921, 102 S.Ct. 1278, 71

L.Ed.2d 462 (1982); and Shelton v City of College Station,

780 F.2d 475 (5th Cir.) (en bane), cert. denied—U.S.—,

106 S.Ct. 3276, 91 L.Ed2d 566, cert. dented, —U.S.—, 107

S.Ct. 89, 93 L.Ed2d 41 (1986)

4The court in Mathews identified three interests which must

be balanced. Those factors are as follows:

First, the private interest that will be affected by the official

action; second, the risk of an erroneous deprivation of such

interest through the procedures used, and the probable

value, if any, of additional or substitute procedural safe-

guards, and finally, the Government's interest, including

the function involved and the fiscal and administrative

burdens that the additional or substitute procedural require-

ment would entail.

424 US. at 335, 96 S.Ct. at 903.

l6a

In Pruitt, the plaintiffs/appellants owned land zoned

partially for residential use and partially for commercial

use. The landowners sought to have the property rezoned

to accommodate apartments. The local planning commis-

sion recommended the change, but the county commission-

ers denied the request. The landowners asserted that the

county commissioners violated the owners’ rights to equal

protection and due process of law when the commission,

according to the owners, failed to explain the basis for its

decision. The court, en bane, held that ‘‘local zoning is a

quasi-legislative procedure, not subject to federal juridi-

eal consideration in the absence of arbitrary action.’’ 491

2d at 7. The court went on to hold that this view is

applicable to the adoption of comprehensive zoning plans

as well as the reclassification of a particular piece of prop-

erty.

Thus, Pruitt expresses the viewpoint that a zoning

decision, made by an elected body such as a county com-

mission, should be deemed legislative, not administrative.

In Couf, a developer purchased waterfront property

with the intent of building condominiums. At the time of

purchase, the zoning permitted the desired building. How-

ever, by the time the developer finally applied for a build-

ing permit, the city commission instructed the planning

commission that all property on the waterfront, including

the developer’s property, be ‘‘down zoned,’’ and the plan-

ning commission should refuse to accept applications for

building permits. The developer asserted that he was de-

prived of his property without due process of law.

The court determined that Pruitt controlled the dis-

position of the procedural due process claim. The court

stated, as follows:

a ee eee Oe

lva

Our opinions repeatedly characterize local zoning

decisions as *‘legislative’’ in nature. (Citations omit-

ted.) If this word is used advisedly—as it appears to

be—then the plaintiffs cannot comp!ain of a denial of

procedural due process, for no constitutional limita-

ticn on legislative procedure is relevant here. (Cita-

tions omitted.)

652 F.2d at 590. Again, this court reaffirmed its view that

zoning decisions, at least those made by elected bodies, are

legislative, thus no procedural due process rights apply.

In Sheldon, the landowner sought a variance for the

parking requirements which would be enforced if the land-

owner changed the type of business conducted on the

premises. 780 F.2d at 477. All three attempts to convince

the city zoning board to grant the variance failed. The

landowner then brought suit, claiming a violation of sub-

stantive and procedural due process. The en bane court

in Shelton not only reaffirmed the view that the procedural

aspect of zoning decisions are viewed under the legislative

model but also considered, at great length, whether a claim

of substantive due process violation should be viewed

under the legislative or administrative model. The court

flatly rejected the administrative model in favor of the

legislative model.

The dissent in Shelton took issue with the majority’s

conclusion that a zoning board of adjustment, as an ap-

pointed body with limited power, could be cloaked with the

deference given to legislative actions. The dissent con-

tended that an appointed body making specifie decisions

regarding specific property ought to be held to a higher

standard. See 780 F.2d at 488 (Rubin & Tate, J..J., dis-

senting).

18a

Although we recognize that circumstances may arise

in which the zoning decision of a governmental body, such

as a county commission or a city council, may require some

procedural due process, the circumstances presented in this

ease do not call for such a ruling.

The enactment of the ordinance was a result of a

purely legislative act by the city council of Grand Prairie,

an elected body which wiclds broad power to make a de-

cision in the area of city planning and zoning. The ordi-

nance in question applies generally to all SUPs in exis-

tence and those thereafter created. County Line pre-

sented no evidence that the city council aimed the ordi-

nance specifically at County Line rather than calling for

termination of all SUPs which had suffered non-use for a

neriod of at least six months. Because the city council

possesses extensive legislative powers and had enacted an

ordinance general in scope, we must apply the legislative

model to the ordinance here in question and reject County

Line’s argument that it has a cognizable claim for relief

for violation of procedural due process.

County Line’s alternative argument—that the action

by the city secretary deprived it of procedural due pro-

cess—lacks any merit. The city secretary possessed no

power to make zoning decisions. Thus, her decision had

no effect on the existence or non-existence of the SUP.

Indeed, the city secretary’s decision could very well have

been wrong.

This case has similarities to the circumstances re-

‘ealed in Texaco, Inc. v. Short, 454 U.S. 516, 102 S.Ct. 781,

79 L.Ed.2d 738 (1982). In Texaco, owners of severed min-

eral interests appealed the application of an Indiana stat-

19a

ute which automatically extinguished a mineral interest if

not used for a period of twenty years.’ The statute did

not provide for notice to the owner of the mineral estate

prior to the lapse, but it did provide that the surface owner

may give notice to the mineral owner subsequent to the

lapse.

The mineral interest owners argued a denial of proce-

dural due process, first because the state failed to notify

them of the requirements of the new law, and second be-

cause the statute did not require the surface owner to give

notice prior to the lapse. The Supreme Court found no

merit in either argument.

The Court rejected the argument that the mineral

owner should have been given notice of the requirements

of the new law even though the owner establishes a prop-

erty interest. The Court stated that ‘‘[i]t is well estab-

lished that persons owning property within a State are

charged with knowledge of relevant statutory provisions

affecting the contro! or disposition of such property.’”®

‘The Indiana statute, known as the Mineral Lapse Act, Ind.

Code §§ 32-5-11-1 to 8 (1976), provides that the owner of the

mineral interest who fails to use the interest for a period of

twenty years automatically loses the interest, with the interest

reverting back to the surface owner. A use of the interest in-

cludes the actual or attempted production of minerals, or the

paying of taxes or royalties. The owner could also prevent a

lapse if the owner files a statement of claim with the local re-

corder of deeds.

®The Court in Texaco also stated that ‘a legislature need do

nothing more than enact and publish the law, and afford the

citizenry a reasonable opportunity to familiarize itself with its

terms and to comply.” 454 U.S. at 532, 102 S.Ct. at 793. The

Court found that the two-year grace period, which allowed a

(Continued on following page)

20a

Id. at 532, 102 S.Ct. at 793 (citing North Laramie Land

Co. v. Hoffman, 268 U.S. 276, 283, 45 S.Ct. 491, 494, 69

L.Ed. 953 (1925).

After holding that the mineral interest owners were

presumed to know the contents of the lapse statute, the

Court addressed the issue of whether, given that knowl-

edge, the owners were entitled to a pre-lapse notice from

the surface owners. Id. 454 U.S., at 533, 102 S.Ct. at 794.

The Court, after noting the difference between a self-exe-

cuting statute and a subsequent judicial determination of

a lapse, determined that the mineral interest owner is not

entitled to notice of the application of the self-exeeuting

statute. In doing so, the Court held that the notice re-

quirements of Mullane v. Central Hanover Bank & Trust

‘‘o., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), were

inapplicable. As the Court in Texaco stated:

The reasoning in Mullane is applicable to a judi-

cial proceeding brought to determine whether a lapse

of a mineral estate did or did not oceur, but not to the

(Continued from previous page)

mineral interest owner to protect an interest which would other-

wise lapse upon the effective date of the statute, foreclosed any

argument that the mineral interest owners did not have a reason-

able —- to familiarize themselves with the law. In this

case, the City did not provide a grace period. Rather, non-use

for a six-month period after the effective date of the ordinance

resulted in automatic extinguishment of the SUP. In light of the

interest involved in this case, an SUP, compared with the interest

involved in Texaco, a fee in the mineral interest, we determine

that the six-month period in which County Line should have in-

formed itself of the ordinance to be reasonable, particularly be-

cause the City gave public notice of its consideration and subse-

quent adoption of the ordinance. See id. (courts should show

great deference to legislative judgment regarding adequacy of

grace period).

2la

self-executing feature of the Mineral Lapse Act. The

due process standards of Mullane apply to an ‘‘ad-

jndication’’ that is ‘‘to be accorded finality.’’ The

Court in Mullane itself distinguished the situation in

which a State enacted a ¢eneral rule of law govern-

ing the abandonment of pronerty.

454 U.S. at 535, 102 S.Ct. at 795 (footnote omitted).7

County Line may have rights flowing from existing

administrative remedies. Before opening for business,

County Line must obtain a certificate of oceupancy. Grand

Prairie, Tex., Ordinances § B-1001. To obtain a certifi-

cate, the premises must be properly zoned. See id. If the

City denies County Line’s application for failure to have

proper zoning (no SUP), the denial could be appealed to

the zoning board of-adjustment and appeals. In this way,

the zoning board would have the jurisdiction and opportu-

nity to hear the issue of the SUP extinguishment. If

County Line obtained no relief from the zoning board, it

could appeal the matter in state court. In this way, the

decision of the zoning board and that of the courts are ‘‘to

be accorded finality’’ and at these stages, we presume

County Line will be given an opportunity to be heard.

See Texaco, 454 U.S. at 535, 102 S.Ct. at 795.

’The Court similarly rejected the owners’ argument that they

were entitled to specific notice and hearing based on Bell v.

Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (notice

and hearing before driver's license suspension); Fuentes v. Shevin,

407 US. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (notice and

hearing before pre-judgment replevin order); Memphis Light,

Gas & Water Div. v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d

30 (1978) (notice and hearing before termination of service by

public utility). The Court noted that the above cases are dif-

ferent because, in those cases, the interests were “taken only

after a specific determination that the deprivation was proper.”

454 US. at 537, 102 S.Ct. at 796 (footnote omitted).

22a

B. Other Federal Claims

From a review of the pleadings we determine that, in

addition to its proeedural dre process claim, County Line

asserts that the ordinance violates County Line’s rights to

substantive due process and equal protection by being arbi-

trary and eapricious and further that the termination con-

stitutes an improper taking under the fifth and fourteenth

amendments. County Line alse asserts pendant state law

violations. Both parties moved for summary judgment on

the issues of procedural due process and state law viola-

tions. The district court’s opinion did not address the

other federal claims asserted by County Line. Thus, the

claims are still pending before the district court. We ob-

serve that the district court may stay consideration of

additional claims pending exhaustion by County Line of

its administrative remedies, if any, or the district court

may proceed to resolve these remaining matters.

Ill. CONCLUSION

Accordingly, we affirm the district court’s grant of

summary judgement for the City on the procedural due

process issue. We remand the case for further considera

tion of the other federal claims and state claims pending

any further administrative proceedings initiated by the

appellant. AFFIRMED IN PART AND REMANDED.

93a

APPENDIX C

Sections 211.008-211.011

Texas Revised Civil Statutes

(Formerly Art. 1011g)

' 211.008. Board of Adjustment

(a) The governing body of a municipality may pro-

vide for the appointment of a board of adjustment. In

the regulations adopted under this subchapter, the gov-

erning body may authorize the board of adjustment, in

appropriate cases and subject to appropriate conditions

and safeguards, to make special exceptions to the terms

of the zoning ordinance that are consistent with the gen-

eral purpose and intent of the ordinance and in accordance

with any applicable rules contained in the ordinance.

(b) <A board of adjustment must consist of five mem-

bers to be appointed for terms of two years. The appoint-

ing authority may remove a board member for cause on

a written charge after a public hearing. A vacancy on the

board shall be filled for the unexpired term.

may provide for the appointment of four alternate board

members to serve in the absence of one or more regular

members when requested to do so by the mayor or city

manager. An alternate member serves for the same

period as a regular member and is subject to removal in

the same manner as a regular member. A vacancy among

the alternate members is filled in the same manner as a

vacancy among the regular members.

(d) Kach ease before the board of adjustment must

be heard by at least four members,

Q4a

(e) The board shall adopt rules in accordance with

any ordinance adopted under this subchapter. Meetings

of the board are held at the call of the chairman and at

other times as determined by the board. The chairman

or acting chairman may administer oaths and compel the

attendance of witnesses. All meetings of the board shall

be open to the publie.

(f) The board shall keep minutes of its proceedings

that indicate the vote of each member on each question or

the fact that a member is absent or fails to vote. The

board shall keep records of its examinations and other offi-

cial actions. The minutes and records shall be filed imme-

diately in the board’s office and are public records.

) 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 official 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 re-

quires 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,

25a

or modify the administrative official’s order, requirement,

decision, or determination from which an appeal is taken

and make the correct order, requirement, decision, or de-

termination, and for that purpose the board has the same

authority as the administrative official.

board is necessary to:

(1) reverse an order, requirement, decision, or

determination 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.

§ 211.010. Appeal to Board

(a) Any of the following persons may appeal to the

board of adjustment a decision made by an administrative

official:

(1) a person aggrieved by the decision; or

(2) any officer, department, board, or bureau

of the municipality affected by the decision.

(b) The appellant must file with the board and the

official from whom the appeal is taken a notice of appeal

specifying the grounds for the appeal. The appeal must

be filed within a reasonable time as determined by the

rules of the board. On receiving the notice, the official

from whom the appeal is taken shall immediately transmit

to the board all the papers constituting the record of the

action that is appealed.

of the action that is appealed unless the official from

26a

whom the appeal is taken certifies in writing to the board

facts supporting the official’s opinion that a stay would

cause imminent peril to life or property. In that case,

the procecdings may be stayed only by a restraining order

granted by the board or a court of record on application,

after notice to the official, if due cause is shown.

(d) The board shall set a reasonable time for the

appeal hearing and shall give public notice of the hearing

and due notice to the parties in interest. A party may

appear at the appeal hearing in person or by agent or at-

torney. The board shall decide the appeal within a reason-

able time.

§ 211.011. Judicial Review of Board Decision

(a) Any of the following persons may present to a

court of record a verified petition stating that the decision

of the board of adjustment is illegal in whole or in part

and specifying the grounds of the illegality:

(1) a person aggrieved by a decision of the

board;

(2) a taxpayer; or

(3) an officer, department, board, or bureau of

the municipality.

(b) The petition must be presented within 10 days

after the date the decision is filed in the board’s office.

may grant a writ of certiorari directed to the board to re-

view the board’s decision. The writ must indicate the

time by which the board’s return must be made and served

on the petitioner’s attorney, which must be after 10 days

27a

and may be extended by the court. Granting of the writ

does not stay the proceedings on the decision under ap-

peal, but on application and after notice to the board the

court may grant a restraining order of due cause is shown.

(d) The board’s return must be verified and must

concisely state any pertinent and material facts that show

the grounds of the decision under appeal. The board is

not required to return the original documents on which

the board acted but may return certified or sworn copies

of the documents or parts of the documents as required

by the writ.

mony is necessary for the proper disposition of the mat-

ter, it may take evidence or appoint a referee to take evi-

dence as directed. The referee shall report the evidence

to the court with the referee’s findings of fact and con-

clusions of law. The referee’s report constitutes a part of

the proceedings on which the court shall make its decision.

(f) The court may reverse or affirm, in whole or in

part, or modify the decision that is appealed. Costs may

not be assessed against the board unless the court deter-

mines that the board acted with gross negligence, in bad

faith, or with malice in making its decision.

28a

APPENDIX D

Section D-100 of Grand Prairie Zoning Ordinance

SECTION D-100 BOARD OF ADJUSTMENTS

AND APPEALS

D-101 Organization. There is hereby created a Board of

Adjustment consisting of five (5) members, each

to be appointed by resolution of the City Council

for a term of two vears and removable for cause

by the appointing authority upon written charges

and after public hearing. Vacancies shall be filled

for the unexpired term of any member, whose

place becomes vacant for any cause, in the same

manner as the original appointment was made.

Two members heretofore appointed shall serve un-

til June 1, 1972, or until their successors are ap-

pointed and three members, as heretofore appoint-

ed, shall serve until June 1, 1973, or until their

successors are appointed, and thereafter each

member reappointed or each new appointee shall

serve for a full term of two vears unless removed

as hereinabove provided. Provided, however, that

the City Council may appoint four alternate mem-

bers of the Board of Adjustment who shall serve

in the absence of one or more of the regular mem-

bers when requested to do so by the Mayor or City

Manager, as the case may be, so that all cases to

be heard by the Board of Adjustment will always

be heard by a minimum number of the four mem-

bers. The alternate members, when appointed,

shall serve for the same period as the regular

members, which is for a term of two years, and

any vacancy shall be filled in the same manner

and they shall be subject to removal the same as

the regular members.

D-102. The Board shall adopt rules to govern its proceed-

ings provided, however, that such rules are not

inconsistent with this Ordinance of statutes of the

> Noda, D9 Ranta iy 2

D-103

D-107

29a

State of Texas. Meetings of the Board shall be

held at the call of the Chairman and at such other

times as the Board may determine. The Chair-

man, or in his absence, the Acting Chairman, may

administer oath and compel the attendance of wit-

nesses. All meetings of the Board shall be open

to the public. The Board shall keep minutes of

its proceedings, showing the vote of each member

upon each question, or if absent or failing to vote,

indicate such fact, and shall keep records of its

examinations and other official actions, all of

which shall be immediately filed in the office of

the Board and shall be a public record.

Appeals to the Board of Adjustment can be taken

by any person aggrieved or by an office, depart-

ment or board of the municipality affected by any

decision of the administrative officer. Such ap-

peal shall be taken within fifteen (15) days time

after the decision has been rendered by the ad-

ministrative officer, by filing with the officer

from whom the appeal is taken and with the

Board of Adjustment, a notice of appeal specify-

ing the grounds thereof. The officer from whom

the appeal is taken shall forthwith transmit to

the Board all the papers constituting the record

upon which the action appealed from was taken.

ACTION OF THE BOARD

1. In exercising its powers, the Board may, in

conformity with the provisions of Articles

1011-a and including 1011-j of the 1925 Civil

Statutes of Texas as amended, revise or re-

form, wholly or partly, or may modify the

order, requirement, decisions, or deterimina-

tion appealed from and make such order, re-

quirement, decisions, or determination appeal-

ed from and make such order, requirement,

decision or determination as ought be made

and shall have all the powers of the officer

from whom the appeal is taken including the

30a

power to impose reasonable conditions to be

complied with by the applicant.

The coneurring vote of four (4) members of

the Board shall be necessary to revise any

order, requirement, decision or determination

of any such administrative official, or ‘o «i

cide in favor of the applicant on any matter

upon which it is required to pass under this

Ordinance or to affect any variance in said

Ordinance.

Any person or persons, jointly er severally,

aggrieved by any decision of the Board of

Adjustment or any taxpayer or any officer,

department or board of the municipality may

present to a court of record a petition, duly

verified, setting forth that such decision is

illegal, in whole or part, specifying thie

grounds of the illegality. Such petition shall

be presented to the court within ten (10) days

after the filing of the decision in the office of

the Board and not thereafter.

3la

APPENDIX E

OrprnanceE No. 2750

AN ORDINANCE AMENDING THE ZONING MAP

AND ORDINANCE SHOWING THE LOCATION,

BOUNDARY AND USE OF CERTAIN PROPERTY BY

THE GRANTING OF A SPECIFIC USE PERMIT FOR

ON-SITE USE O# ALCOHOLIC BEVERAGES AT

2515-H WEST JEFFERSON, TO WIT: TRACT 6-1 OUT

OF THE TAPLEY HOLLAND SURVEY, ABSTRACT

750 TARRANT COUNTY, TEXAS; SAID ZONING MAP

AND ORDINANCE PASSED ON JANUARY 27, 1971,

AND RECORDED IN BOOK 8, PAGES 405 TO 509 OF

THE ORDINANCE RECORDS OF THE CITY OF

GRAND PRAIRIE, TEXAS; REPEALING ALL ORDI-

NANCES OR PARTS OF ORDINANCES IN CON-

FLICT HEREWITH; CONTAINING A SAVINGS

CLAUSE; AND TO BECOMEE EFFECTIVE UPON ITS

PASSAGE AND APPROVAL.

WHEREAS, the owners of the property described

hereinbelow filed application with the City of Grand

Prairie, Texas, petitioning an Amendment of the Zoning

Ordinance and Map of said City so as to obtain a specific

use permit to allow on-site use of alcoholic beverages at

2515-H West Jefferson on said property which is presently

zoned Commercial Office; and

WHEREAS, the Planning and Zoning Commission of

Grand Prairie, Texas, held a public hearing on said appli-

cation on August 23, 1976 after written notice of such pub-

lic hearing before the Planning and Zoning Commission on

the proposed specific use permit for on-site use of alco-

holic beverages at 2515-H West Jefferson had been sent to

32a

owners of real property lying within 200 feet of the pro-

perty on which the specific use permit for on-site use of

aleoholie beverages at 2515-H West Jefferson is proposed,

said Notice having been given not less than ten (10) days

before the date set for hearing to all such owners who

rendered their said property for City taxes as the owner-

ship appears on the last approved City Tax Roll, and such

Notice being served by depositing the same, properly ad-

dressed and ostage paid, in the City Post Office; and

WHEREAS, after consideration of said application,

the Planning and Zoning Commission of the City of Grand

Prairie, Texas voted unanimously to recommend to the

City Council of Grand Prairie, Texas, that a specific use

permit be granted to allow on-site use of alcoholic bever-

ages at 2515-H West Jefferson on said property; and

WHEREAS, Notice was given of a further public

hearing to be held by the City Council of the City of Grand

Prairie, Texas, in the City Hall Plaza Building at 7:30

o’clock P.M. on August 31, 1976, to consider the advisa-

bility of amending the Zoning Ordinance and Map as rec-

ommended by the Planning and Zoning Commission, and

all citizens and parties at interest were notified that they

would have an opportunity to be heard, such Notice of the

time and place of such hearing having been given at least

fifteen (15) days prior to such hearing by publication in

the Grand Prairie Daily News, Grand Prairie, Texas, a

newspaper of general circulation in such municipality ; and

WHEREAS, all citizens and parties at interest have

been given an opportunity to be heard on all the matter of

the proposed specific use permit and the City Council of

the City of Grand Prairie, Texas, being informed as to the

location and nature of the specific use proposed on said

a a ae

33a

property, as well as the nature and usability of surrounding

property, have found and determined that the property in

question, as well as other property within the city limits

of the City of Grand Prairie, Texas, has changed in char-

acter since the enactment of the original Zoning Ordi-

nance to the extent that a specific use may be made of said

property as herein provided and by reason of changed con-

ditions, does consider and find that this amendatory Ordi-

nance should be enacted since its provisions are in the pub-

lic interest and will promote the health, safety and welfare

of the community.

NOW, THEREFORE, BE IT ORDAINED BY THE

CITY COUNCIL OF THE CITY OF GRAND PRAIRIE,

TEXAS:

That the Zoning Ordinance and Map of the City of

Grand Prairie, Texas, showing the locations and boun-

daries of certain districts, and said Zoning Ordinance and

Map having been made a part of an Ordinance entitled:

‘AN ORDINANCE AMENDING IN ITS ENTIRE-

TY CHAPTER 36 OF THE CODE OF ORDI-

NANCES KNOWN AS THE ZONING ORDI-

NANCE OF THE CITY OF GRAND PRAIRIE,

TEXAS, AS PASSED AND APPROVED BY THE

CITY COUNCIL ON THE 27TH DAY OF JANU-

ARY, 1971. TOGETHER WITH ALL AMEND-

MENTS THERETO AND ENACTING A REVISED

ORDINANCE ESTABLISHING AND PROVIDING

FOR ZONING REGULATIONS: CREATING USE

DISTRICTS IN ACCORDANCE WITH A COM-

PREHENSIVE PLAN....”

and passed and approved January 27, 1971, recorded in

Ordinance Book B, Page 405 to 509, inclusive, as amended,

iit) ‘

gagescribed area

| act ) 0 | it . s MI =

iJU | irral ‘ I I as

l at tiv vite tel > il ‘ I 4 ! ae

mposed as a | I v t Orainal

NONE

lf s further Or ed ft 1 ? cas . qt ’ Cidus

sentence or part of this Ordinance sha ed ed or ad

idged my ii ( ou T OT ee orton? } si iic iy? to | nvali

| ,

6) : such . lidity S " no atts ‘ nair oT , ia

the remail er of ft} = Gy nit ‘

All or is tit ~ ’ rts ; " ’ ;

with are CCITICA rey} .

hat t (ord ] :

, na alt 5 meen

te ‘ 1"] ]

oOJA

s/ Wetpox Parknum

Mayor,

City of Grand Prairie, Texas

s Mr BA F'LAGG

City secretary

APPROVED AS TO F ORM AN

LLEGALITY

s/ R. CLayvtron Hvurcuins

P&Z Casi No 760?023

36a

APPENDIX F

Orpinance No, 3745

AN ORDINANCE AMENDING ORDINANCE NO.

2299, BEING THE COMPREHENSIVE ZONING ORDI-

NANCE OF THE CITY OF GRAND PRAIRIE, TEXAS,

BY ADDING THERETO A NEW SECTION B-713 PRO-

VIDING FOR AUTOMATIC TERMINATION OF SPE

CIFIC USE PERMITS; CONTAINING A SAVINGS

CLAUSE; REPEALING ALL ORDINANCES IN CON

FLICT HEREWITH; AND TO BECOME EFFECTIVE

UPON PASSAGE, APPROVAL AND PUBLICATION.

WHEREAS, the Planning and Zoning Commission of

the City of Grand Prairie, Texas, met in regular session on

the 11th day of February, 1985, after publication in the

Grand Prairie Daily News on the Ist day of February,

1985; and

WHEREAS, after consideration and publie hearing

the Planning and Zoning Commission recommended to the

City Council of the City of Grand Prairie, Texas, that Ord-

inance No. 2299, same being the comprehensive zoning ordi-

nance of the City, be amended to provide for automatic

termination of specific use permits.

NOW, THEREFORE, BE IT ORDAINED BY THE

CITY COUNCIL OF THE CITY OF GRAND PRAIRIE,

TEXAS:

SECTION 1: THAT Ordinance No. 2299, same

being the Comprehensive Zoning Ordinance of the City of

Grand Prairie, Texas, is hereby amended by adding ther:

to a new Section B-713 related to termination of specific

use permits, which section shall read in its entirety as

follows:

eae Loe

one BPS

ot Sa” OP

37a

‘*B-713. Termination of Specific Use Permits.

A. All specifie use permits approved in accordance

with the provisions of this ordinance in its original form

or as hereafter amended shall automatically terminate

upon cessation of the use for a period of six months, re-

gardless of the intention of the owner.

B. Any specific use permit granted by the City Coun-

cil shall automatically terminate if a building permit has

not been obtained on the premises within one year from

the date the ordinance granting the specifie use permit is

adopted.

C. On any tract of land for which a specific use per-

mit has been granted and the use hae ceased as of the

date of this ordinance, such specifie use permit shall auto-

matically terminate six months after the adoption of this

ordinance unless the use has been reinstated by that time.

D. Specific use permits in existence as of the date of

this ordinance shall automatically terminate one year from

the date of this ordinance if a building permit has not

been obtained by that time.

‘*

SECTION 2: If any section, subsection, sentence,

clause, phrase or portion of this ordinance is for any rea-

son held invalid or unconstitutional by any court of com-

petent jurisdiction, such shall be deemed a separate, dis-

tinct and independent provision and such holding shall not

affect the validity of the remaining portions thereof.

SECTION 3: All ordinances or parts of ordinances

in conflict with this ordinance are hereby repealed.

SECTION 4: THAT this ordinance shall be in full

force and effect from and after its passage, approval and

publication.

38a

PASSED AND APPROVED BY THE CITY COUN-

CIL OF THE CITY OF GRAND PRAIRIE, TEXAS,

this the 19th day of February, 1985.

/3/ J. V. Deso III

Mayor, City of

Grand Prairie, Texas

ATTEST :

/s/ Sue SHAWVER

City Secretary

39a

APPENDIX G

Affidavit of City Attorney Concerning Jurisdiction

of Zoning Board of Adjustment

AFFIDAVIT

STATE OF TEXAS )

COUNTY OF DALLAS

BEFORE ME, THE UNDERSIGNED AUTHORITY,

on this day personally appeared R. Clayton Hutchins, who,

being by me sworn, deposes as follows:

My name is R. Clayton Hutchins. 1 am over 21 years

of age, of sound mind, capable of making this affidavit,

and am fully competent to testify to the matters stated

herein.

I am presently employed by the City of Grand Prairie,

Texas, in the capacity of City Attorney.

Shortly after December 2, 1985, but before December

17, 1985, I was contacted by Jane Allen, an attorney with

Haynes and Boone in Dallas, who represented County Line

Joint Venture. Her call related to the denial of the alco-

holic beverage, amusement device and dance hall permits

for the property located at 2515-H Jefferson by Sue Shaw-

ver, City Secretary, on the 2nd day of December, 1985.

The permit was denied because the property was not zoned

for the sale of alcoholic beverage, dance hall or amusement

devices. The specific use permit zoning had expired due

to non use for a period greater than six (6) months as

provided in § B-713 of the Zoning Ordinance of the City.

In the conversation I told Ms. Allen that if she wished to

40a

present evidence or proof that the establishment had in

fact heen open and operated for the sale of aleoholie bev-

erages during the six months prior to the denial of the

aleoholie beverage permit, the City could consider that evi-

dence. None was ever presented.

On December 17, 1985, Joseph G. Warner and Jane G.

Allen submitted an application to appeal denial of the

aleoholic beverage permit to the Zoning Board of Adjust-

ments and Appeals. In the alternative applicant asked for

a variance to the zoning ordinance. I indicated by hand-

written notation dated January 7, 1986 that the Zoning

Board of Adjustments had no jurisdiction of the case.

The Board had no jurisdiction for the following rea-

sons:

1. The denial of an alcoholic beverage permit or license

per se is not a zoning matter. Pursuant to V.A.C.S. Art.

1011f, the Zoning Board of Adjustments and Appeals only

has jurisdiction over zoning matters.

2. Since the regulations related to alcoholic beverage

permits are not contained in the zoning ordinance of the

City, the Board could not grant a variance since its only

authority to grant variances relates to those matters con-

tained in the zoning ordinance.

3. The applicant had never applied for a certificate

of occupancy and compliance the denial of which would

4la

trigger jurisdiction of the Zoning Board of Adjustments

and Appeals.

/s/ R. Clayton Hutchins

R. Clayton Hutchins

City Attorney

City of Grand Prairie, Texas

SWORN TO AND SUBSCRIBED BEFORE MF, the un-

dersigned authority on this 14th day of Nov., A.D., 1986.

/s/ Rosemary Bawlby

Notary Public in and for

Dallas County, Texas

My Commission Expires 7-13-89.

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.