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Schmitz v. Denton County Cowboy Church

Court of Appeals of Texas, Second District, Fort Worth

August 31, 2017

PETER SCHMITZ, SEAN POLLOCK, LARRY LADUKE, AND BECKY LADUKE APPELLANTS
v.
DENTON COUNTY COWBOY CHURCH AND THE TOWN OF PONDER, TEXAS APPELLEES

         FROM THE 431ST DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 15-06454-431

          PANEL: LIVINGSTON, C.J.; GABRIEL and PITTMAN, JJ.

          OPINION

          TERRIE LIVINGSTON CHIEF JUSTICE.

         When a municipality allegedly refuses to enforce its zoning regulations against a property owner subject to those regulations and takes void actions attempting to change the zoning designation of that owner's property, what recourse, if any, does a neighboring property owner have against either the municipality or the purportedly nonconforming property owner? In addressing this question, the trial court dismissed all of the claims brought by four homeowners--appellants Peter Schmitz, Sean Pollock, and Larry and Becky LaDuke--against appellees the Town of Ponder and Denton County Cowboy Church on a pretrial plea to the jurisdiction. The trial court's findings and conclusions show that it decided these claims not only on traditional subject matter jurisdiction grounds--i.e., standing and ripeness--but also on grounds related to the ultimate merits of the relief appellants requested in their live pleading. Having determined that appellants failed to plead and bring forward jurisdictional facts showing a waiver of Ponder's immunity for failure to enforce its zoning ordinance against the Church's property and for actions taken in an August 24, 2015 Town Council meeting--and that appellants cannot replead to establish a waiver of immunity for those claims--we affirm the trial court's dismissal of appellants' claims against Ponder. We also affirm the dismissal of Pollock's and the LaDukes' claims against the Church. But because we conclude that the trial court erred by dismissing Schmitz's claims against the Church, we reverse the dismissal of those claims and remand that part of the case to the trial court.

         Background

         In 2008 the Church bought an approximately seven-acre tract in Ponder, Texas zoned Single Family-2 Residential (the Old Property) under Ponder's zoning ordinance. The Church built a church building on the Old Property and an outdoor rodeo arena (Old Arena) that at the time of the hearing on the plea to the jurisdiction hosted weekly rodeo events. In 2014, the Church purchased a roughly twelve-acre tract adjoining the Old Property to the west (the New Property) that at the time was also zoned Single Family-2 Residential (SF-2). The New Property is located "directly north of and adjacent to" appellants' homes, which are zoned Single Family-1 Residential. According to Ponder's comprehensive plan, appellants' properties are designated for future low-density residential zoning.

         In February 2015, the Church began construction of a 350-foot by 175-foot rodeo arena on the New Property with over 61, 000 square feet of building space planned (the New Arena). Around four months after the Church began construction of the New Arena, it filed an application with Ponder for a commercial building permit. Ponder issued a permit on July 13, 2015 for construction of an "open arena on 3 sides [with] [f]ull concession-rest room area." Appellants' attorney then sent Ponder a letter demanding that it revoke the building permit and requesting that it instruct the Church to cease all construction on the New Arena.

         On July 30, 2015, appellants sued the Church and Ponder, seeking a temporary restraining order and temporary and permanent injunctions prohibiting the Church from continuing construction of the New Arena and requiring Ponder to suspend the issued building permit and any future building permits "until they are able to show that the [New] Property is zoned for the use as a rodeo arena or until such time as the Court orders otherwise." Appellants also sought numerous declaratory judgments against both Ponder and the Church related to their contention that the construction of the New Arena violated Ponder's zoning ordinance and was not permitted under the New Property's zoning classification.

         On August 10, 2015, the Town Council--acting as Ponder's Planning and Zoning Commission[1]--notified appellants and other property owners within 200 feet of the New Property that a hearing was scheduled for August 24, 2015 to (1) consider a change in the zoning designation of the New Property from SF-2 to Agricultural (AG) and (2) consider issuing a specific use permit (SUP) to the Church to build a "Multi-Use Event Center" on the New Property. At the August 24, 2015 meeting, the Town Council acting as the Planning and Zoning Commission--with one member abstaining--voted not to recommend a change to the New Property's zoning classification. But after convening as the Town Council, recessing into a closed executive session, and then reconvening in a public hearing, the Town Council--with all members voting--approved the proposed zoning classification change. The Town Council also voted to issue the requested SUP.

         In September 2015, appellants' counsel filed a protest with Ponder, contending that the building permit had been wrongfully issued in violation of Ponder's ordinances and should be revoked. That same month, Ponder filed a plea to the jurisdiction in this suit, claiming that appellants had not adequately pled facts in their original petition that would waive its immunity from suit and challenging the existence of jurisdictional facts. In addition, Ponder argued that appellants' request for declaratory relief did not plead an actual controversy.

         On October 5, 2015, the Church submitted a new building permit application for the New Arena. Ponder issued a new building permit the same day.

         Appellants amended their petition four times between September and December 2015, adding claims against the Church alleging nuisance injuries and claims against Ponder for impermissible spot zoning. The Church filed its own plea to the jurisdiction, in which it claimed that appellants lack standing to sue to enforce Ponder's zoning ordinances, that no live controversy exists between appellants and the Church, that the claim for nuisance injuries arising from the New Arena is unripe and moot, and that the applicable statute of limitations had run on any claims for nuisance injuries related to the operation of the Old Arena.

         Although appellants sought emergency relief, they were not able to obtain a hearing until December 30, 2015. After the hearing, the trial court denied appellants' request for a temporary injunction and granted both pleas to the jurisdiction. The trial court issued the following findings of fact and conclusions of law explaining its ruling:

         FINDINGS OF FACT

1. The Court adopts and incorporates by reference herein the Agreed Stipulation of Facts Between Plaintiffs and Defendant the Town of Ponder, Texas, filed on December 29, 2015.
2. The Plaintiff, Peter Schmitz ("Schmitz"), is an individual residing at 418 Madison Place, Ponder, Denton County, Texas 76259.
3. The Town of Ponder ("Ponder") is a general law municipality.
4. The Denton County Cowboy Church ("Church") is nonprofit Texas Corporation.
5. The Church owns two parcels of real estate in Ponder, Texas. A parcel (the "Old Property") at 400 Robinson Road that hosts the Church's Sanctuary and an outdoor arena (the "Old Arena"). A second parcel (the "New Property") immediately to the Old Property's West hosts an outdoor arena (the "New Arena") currently under construction.
6. Mr. Schmitz's residence is directly adjacent to the New Property.
7. The Church is in the process of constructing the New Arena upon the New Property.
8. The Church has yet to hold an arena ministry event in the New Arena.
9. The Church has yet to install any lighting system upon the New Arena.
10. The Church has yet to install any sound system upon the New Arena.
11. The Plaintiff Sean Pollock ("Pollock") presented no evidence of ownership of any real property interest.
12. The Plaintiff Larry Laduke ("L. Laduke") presented no evidence of ownership of any real property interest.
13. The Plaintiff Becky Laduke ("B. Laduke") presented no evidence of ownership of any real property interest.
14. Pollock failed to prove by a preponderance of the evidence any interference with the use and enjoyment of his real property interest.
15. Schmitz presented no evidence of interference with the use and enjoyment of any real property interest.
16[.] L. Laduke presented no evidence of interference with the use and enjoyment of any real property interest.
17. B. Laduke presented no evidence of interference with the use and enjoyment of any real property interest.
18. Pollock presented no evidence of interference with the use and enjoyment of any real property interest.

         CONCLUSIONS OF LAW

19. This Court has personal jurisdiction over all of the parties.
20. Plaintiffs do not have standing to bring a zoning enforcement action.
21. The only proper party to enforce a zoning ordinance is a municipality.
22. Ponder cannot delegate or assign its zoning enforcement authority.
23. Pollock's alleged injury is not traceable to the actions of the Church.
24. The Church's arena ministries constitute a religious exercise under the Religious Land Use and Institutionalized Persons Act ("RLUIPA").
25. The Church intends to use both the Old Property and the New Property for the purpose of religious exercise.
26. A decision in favor of Plaintiffs would constitute a substantial burden upon the religious exercise of the Church and its members under RLUlPA.
27. Plaintiffs' alleged nuisance damages are speculative, and thus their nuisance claims are unripe.

         Standard of Review

         We review the trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); City of Wichita Falls v. Jenkins, 307 S.W.3d 854, 857 (Tex. App.-Fort Worth 2010, pet. denied). The plaintiff has the burden of alleging facts that affirmatively establish the trial court's subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Eden Cooper, LP v. City of Arlington, No. 02-11-00439-CV, 2012 WL 2428481, at *3 (Tex. App.-Fort Worth June 28, 2012, no pet.) (mem. op.). We construe the pleadings liberally in favor of the plaintiff and look to the pleader's intent. Miranda, 133 S.W.3d at 226. Whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is a question of law. Id.; Jenkins, 307 S.W.3d at 857.

         If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. Miranda, 133 S.W.3d at 227; Jenkins, 307 S.W.3d at 857. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the factfinder. Miranda, 133 S.W.3d at 227-28; Jenkins, 307 S.W.3d at 857. But if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228; Jenkins, 307 S.W.3d at 857. This standard generally mirrors that of a traditional summary judgment. Miranda, 133 S.W.3d at 228; Jenkins, 307 S.W.3d at 857; see Tex. R. Civ. P. 166a(c).

         Allegations in Fourth Amended Petition

         In appellants' Fourth Amended Petition, the live pleading at the time the trial court granted the plea to the jurisdiction, appellants requested numerous declarations that the Church

• violated sections 154.36 and 154.57 of Ponder's zoning ordinance by beginning construction of improvements and clearing the New Property without a valid permit and continuing construction of the New Arena without a valid permit;
• violated section 154.20(A) of Ponder's zoning ordinance by beginning construction of the New Arena without proper zoning in place and without first seeking a change of the improper zoning;
• violated sections 153.009(B) and 154.57(A) of Ponder's zoning ordinance by failing to properly plat the New Property in accordance with the zoning ordinance and failing to submit a conforming plat with the application for a building permit;
• violated sections 154.36(A)(3) and (B)(7), 154.37, and 154.20 of Ponder's zoning ordinance by failing to submit a conforming site plan with the SUP application, failing to apply for an SUP that would allow a permitted use under the zoning ordinance, and failing to submit a site plan with all of the information required by the zoning ordinance; and
• violated section 154.21 and Table 2 of Appendix B of Ponder's zoning ordinance because the New Arena violates the height, area, and setback regulations.

         They also sought declarations that

• Ponder spot zoned the New Property in violation of its zoning ordinance and comprehensive plan; thus, the zoning change is unenforceable;
• Ponder acted outside its authority and the law by not following its zoning ordinance--including in its issuance of the building permit and SUP--and by granting the zoning change to the Church;
• Ponder failed to follow its zoning ordinance and the requirements of the local government code for ...

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