City of Helotes v. Miller

San Antonio Court of Appeals No. 04-06-00564-CV, 10-3-2007.

Texas Lawyer



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FACTS: Balous Miller was the owner of approximately 31 acres of land located at the intersection of State Highway 16 and Scenic Loop Road in Bexar County. The land was outside the municipal limits of the city of Helotes.

In September 2004, Miller contracted to sell approximately 28 acres of the land to Wal-Mart Stores Texas LP for the purpose of commercial/retail development. The sale was contingent upon Wal-Mart being able to develop the property for a retail store. Miller retained the remaining land to develop compatible commercial sites.

In November 2004, Miller designated Wal-Mart as his agent to act on his behalf in connection with the development of the property, and Wal-Mart applied for licenses and permits and entered into services contracts. Subsequently, according to Miller, Wal-Mart obtained the following: 1. a permit to construct access driveway facilities on the highway right-of-way; 2. a utility services agreement with the San Antonio Water System; and 3. permits issued by the city for development of the property.

At some point in early 2005, the city initiated annexation proceedings on the property and passed interim development controls. In August 2005, the city passed a resolution opposing "the development of a Wal-Mart, or other"big box' department store within the municipal corporate limits or the extraterritorial jurisdiction" of the city.

The resolution also stated the city "may take those actions authorized by law to prevent the location of a Wal-Mart or other"big box' department store within the city's municipal corporate limits or the extraterritorial jurisdiction."

On Nov. 10, 2005, Miller filed an original petition for declaratory relief. In his petition, Miller alleged the annexation proceeding was still pending and additional interim development controls had since been imposed prohibiting: 1. property owners from filing any "application for zoning of property in the annexation area," 2. property owners from filing any "application for approval of a preliminary subdivision plat, a subdivision plat, or replat of property in the annexation area;" and 3. the city from accepting any "application for zoning of property in the annexation area."

Miller asked the court to declare that his land use rights vested as of Oct. 24, 2004 and that the city may not abridge those vested rights to inhibit, impede or preclude the commercial development of the property.

In December 2005, Wal-Mart announced that the location was "no longer being considered." Through its engineering firm, Wal-Mart requested and received a refund on the application fees from the city in the amount of $14,435.

In July 2006, the city filed its plea to the jurisdiction, arguing the trial court did not have jurisdiction because a "justiciable controversy" did not exist on the grounds that: 1. Miller's claim became moot after Wal-Mart abandoned the project; and 2. Miller's claim was not ripe, because there is no existing project in which he has vested rights. The trial court denied the plea. The city appealed.

HOLDING: Affirmed.

When a plea to the jurisdiction challenges the pleadings, the court stated that an appeals court must determine whether the plaintiff has pleaded facts that affirmatively established the trial court's subject-matter jurisdiction. A declaratory judgment, the court stated, is appropriate only if there is a justiciable controversy about the rights and status of the parties and the declaration will resolve the controversy.

Ripeness and mootness, the court stated, are threshold issues that implicate subject-matter jurisdiction. Ripeness emphasizes the need for a concrete injury for a justiciable claim to be presented. A case becomes moot if a controversy ceases to exist or the parties lack a legally cognizable interest in the outcome.

On appeal, Miller contended that Wal-Mart's decision to abandon its plans did not render his claim moot, because there still remained a development project for which a determination of his rights was necessary. The city argued that Miller's claim was not ripe, because the Texas Local Government Code requires that permits be issued or denied for a controversy to be ripe for adjudication and no permits had been issued to Miller or denied.

The court disagreed with the city and concluded a real and substantial controversy exists. Under Texas Local Government Code ยง245.002(a), the court noted that the Texas Legislature has created a system under which property developers may rely on land-use regulations in effect at the time "the original application for [a] permit is filed."

Thus, the court concluded that Miller alleged sufficient facts to survive a plea to the jurisdiction. Miller, the court stated, though his agent Wal-Mart filed an original application for a permit, obtained driveway permits, executed a contract with SAWS, obtained review by the city's fire department of the property, and filed multiple preliminary plats with the city.

The fact that Miller's anchor tenant withdrew from the commercial development project, the court stated, did not automatically moot the question of what regulations control the development of the property.

The question then became whether the project remained the same. Miller argued that he intended to develop the property with another large retail store, such as Wal-Mart, as the anchor tenant. Thus, Miller's argument was sufficient to at least raise a fact issue on whether Miller's current intended development of the property was the same as the land use contemplated when Miller, through his agent, filed the original application in late 2004.

OPINION: Marion, J.; Marion, Speedlin and Simmons, JJ.

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