Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mbogo v. City of Dallas

Court of Appeals of Texas, Fifth District, Dallas

June 19, 2018

HINGA MBOGO, HINGA'S AUTOMOTIVE CO., AND 3516 ROSS AVENUE, DALLAS, TEXAS, Appellants
v.
CITY OF DALLAS, MICHAEL S. RAWLINGS, IN HIS OFFICIAL CAPACITY ASMAYOR OF THE CITY OF DALLAS, TEXAS; SCOTT GRIGGS, IN HIS OFFICIALCAPACITY AS CITY COUNCIL MEMBER; ADAM MEDRANO, IN HIS OFFICIALCAPACITY AS CITY COUNCIL MEMBER; CASEY THOMAS, II, IN HIS OFFICIALCAPACITY AS CITY COUNCIL MEMBER; CAROLYN KING ARNOLD, IN HEROFFICIAL CAPACITY AS CITY COUNCIL MEMBER; RICKEY D. CALLAHAN INHIS OFFICIAL CAPACITY AS CITY COUNCIL MEMBER; MONICA R. ALONZO, INHER OFFICIAL CAPACITY AS CITY COUNCIL MEMBER; TIFFINNI A. YOUNG, INHER OFFICIAL CAPACITY AS CITY COUNCIL MEMBER; ERIK WILSON, IN HISOFFICIAL CAPACITY AS CITY COUNCIL MEMBER; MARK CLAYTON, IN HISOFFICIAL CAPACITY AS CITY COUNCIL MEMBER; B. ADAM MCGOUGH, IN HISOFFICIAL CAPACITY AS CITY COUNCIL MEMBER; LEE M. KLEINMAN, IN HISOFFICIAL CAPACITY AS CITY COUNCIL MEMBER; SANDY GREYSON, IN HEROFFICIAL CAPACITY AS CITY COUNCIL MEMBER; JENNIFER S. GATES, IN HEROFFICIAL CAPACITY AS CITY COUNCIL MEMBER; PHILLIP T. KINGSTON, INHIS OFFICIAL CAPACITY AS CITY COUNCIL MEMBER Appellees

          On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-07983

          Before Justices Bridges, Myers, and Schenck

          MEMORANDUM OPINION

          DAVID L. BRIDGES JUSTICE

         Appellants Hinga Mbogo, Hinga's Automotive Co., and 3516 Ross Avenue, Dallas, Texas (Hinga) appeal from the trial court's order granting the City's plea to the jurisdiction, which dismissed Hinga's counterclaims and third-party claims against the City and its officials.[1] In three issues, Hinga challenges the constitutionality of zoning ordinances under article I, sections 16, 17, and 19 of the Texas Constitution, contending that the City's failure to further exempt his property from certain zoning requirements amounts to an unconstitutional retroactive application and deprives him of settled expectations in the use of his property. We affirm the trial court's order.

         Background

         Hinga opened Hinga's Automotive Company, a general repair shop on Ross Avenue in Dallas, Texas, in 1986. At that time, the City's zoning ordinances allowed automobile-related businesses on Ross Avenue.

         In 1988, the City issued the "Planned Development District 298 Bryan Area Study." The study recognized that "[e]stablishing linkages to regional activity centers (objective 8), was recommended to take advantage of the area's proximity to the Central Business District and to many other attractions in the downtown area." It further acknowledged the following:

Ross Avenue has the potential to be a corridor prime for economic development. At present, a large number of automotive related uses exist along the corridor. These uses are not conducive to having professional offices located next door due to noise and odors associated with many of them. Also, fencing material used to protect the contents of these establishments creates the look of a maximum security facility along the corridor.

         The study found the number of used car lots and vehicle repair shops along Ross Avenue an "issue of concern" that gave the area "an industrial feel as opposed to an urban character." The study also found that "many of these types of uses are non-conforming in the sub-districts in which they exist."

         Subsequently, the City passed ordinance no. 20049, which created Planned Development District No. 298 (PD 298).[2] Once PD 298 was passed, "vehicle or engine repair or maintenance" was prohibited on Ross Avenue where Hinga's business was located. At that time, Hinga was fully aware that continuing his business became a "nonconforming use." The Dallas Development Code defines "nonconforming use" as "a use that does not conform to the use regulations of this chapter, but lawfully established under the regulations in force at the beginning of operation and has been in regular use since that time." Dallas, Tex., Dallas City Code § 51A-2-2.102(90) (2017).[3]

         In 1991, Hinga purchased the property with three business partners and later invested approximately $80, 000 in improving the building for auto repairs by installing lifts, ventilation, specialized equipment, and an emissions-testing machine. Hinga made these improvements knowing use of the property was nonconforming.

         The City reevaluated the 1988 Bryan Area Study in March 2004 "to determine if development was meeting the objectives" of the study and "to make recommendations to adjust regulations that were falling short."

         The City subsequently passed Ordinance No. 25960 on April 27, 2005, which amended PD 298 and codified specific provisions related to nonconforming uses in Dallas Development Code section 51P-298.108(b). In addition to establishing deadlines for nonconforming use property to comply, it allowed the owner of a nonconforming use to appeal to the board of adjustment for a later compliance date if the owner would not be able to recover his investment in the use by the conformance date in the subsection. Dallas City Code § 51P-298.108. Uses that became nonconforming on April 25, 2005 were issued a compliance date of April 26, 2010, and uses that were nonconforming prior to April 25, 2005, received a compliance date of April 26, 2008. Id. Such compliance dates were deemed necessary "to achieve the desired urban scale development and improve opportunity to maximize development potential."

         Despite Hinga's opposition to the amended ordinance, he was required to bring his property into compliance by April 26, 2010. While other automotive businesses left the area, Hinga continued to run his business through his initial compliance period. In April 2010, he requested a new compliance date. The Board of Adjustment gave him a new compliance date of April 13, 2013 "for the nonconforming vehicle or engine repair or maintenance shop currently being operated on the property."

         In August 2013, before the expiration of the extended compliance date, Hinga filed a zoning change application with the City to create a specific use permit (SUP) in which vehicle or engine repair or maintenance use would be permitted and to obtain a SUP for a ten-year period. The City passed ordinance no. 29099, which created a subarea within PD 298, allowing a SUP for vehicle or engine repair or maintenance use and passed ordinance no. 29101 granting Hinga a SUP for a two-year period, ending on August 14, 2015.

         Hinga's SUP expired, but he submitted an application for a new SUP to extend the property use for three years with eligibility for one automatic two-year renewal. A senior planner with the City told Hinga that because his request was modest and he received approval two years ago, she would recommend approval of the new SUP.

         On February 4, 2016, the City Plan Commission held a public hearing to consider Hinga's SUP. During the hearing, Hinga's attorney recognized that "10 or 20 years from now, Hinga's Automotive probably wouldn't fit into the way Ross Avenue is going to look. But right now it fits in just fine, and it's actually a benefit." Hinga, along with other citizens in support of him, also spoke during the hearing. Hinga's goal was to continue his business long enough for the property value to increase so he could sell to a developer and recoup his investment rather than "los[e] his retirement savings if he just sells for whatever he can get now." Linda Collins, president of the Bryan Place Neighborhood Association spoke in opposition. She emphasized that many other auto repair shops had complied with the ordinance and moved locations. Further, Hinga "was told quite clearly that there would be no more extensions" after 2013. She also reminded the City Plan Commission that Hinga already had a new location, with his sign hanging and a phone number listed, so denying his request would not severely impact him. She encouraged the City to finally enforce the zoning codes that had been in place for years and "make the transformation happen" on Ross Avenue. Many other individuals from the neighborhood also spoke in opposition to any further SUP for the property.

         One commissioner reminded Hinga of the hearing two years earlier when the City first approved the SUP. During that hearing, Hinga said he only needed two years to either sell, relocate, or retire. Hinga recalled making the statement, but argued nothing had changed in the two years and he was still unable to sell his property for a "fair" offer. However, he admitted he never listed the property for sale but based his opinion on what real estate agents told him.

         At the conclusion of the hearing, the City Plan Commission recommended denial of Hinga's SUP. He then appealed the denial of the recommendation to the City Council for further consideration. City Council held another public hearing on April 13, 2016 and denied Hinga's appeal.

         After August 15, 2015, Hinga continued to run his business without a SUP in violation of PD 298. The City sued Hinga on July 5, 2016 for a temporary and permanent injunction to stop him from operating his auto repair business in violation of PD 298. It sought fines of $1, 000 a day for each day that Hinga operated the auto shop after his SUP expired. Hinga answered, counterclaimed, and filed third-party claims against the City, the Mayor, and City Council members alleging their efforts to enforce the ordinances violated article I, sections 16, 17, and 19 of the Texas Constitution. The City, Mayor, and Council members filed a plea to the jurisdiction seeking dismissal of Hinga's counterclaims and third-party claims. After a hearing, the trial court granted the plea to the jurisdiction. This accelerated interlocutory appeal followed.

         Plea to the Jurisdiction Standard of Review

         A plea to the jurisdiction is a dilatory plea in which a party challenges a court's authority to determine the subject matter of the action. Rawlings v. Gonzalez, 407 S.W.3d 420, 425 (Tex. App.-Dallas 2013, no pet.). The existence of subject matter jurisdiction is a question of law; therefore, we review de novo the trial court's ruling on a plea to the jurisdiction. Id.

         A governmental entity's plea to the jurisdiction can be based on pleadings or evidence. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When, as here, a jurisdictional challenge implicates the merits of the plaintiff's cause of action, we consider the relevant evidence submitted by the parties to determine jurisdictional issues raised. Id. at 227.

         The standard of review for a jurisdictional plea based on evidence "generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)." Id. at 228; City of Dallas v. Prado, 373 S.W.3d 848, 852 (Tex. App.-Dallas 2012, no pet.). We take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Prado, 373 S.W.3d at 853. The burden is on the City, as movant, to meet the standard of proof. Id. 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. Id. However, 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. Id.

         In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits against the State unless the State consents to suit. Miranda, 133 S.W.3d at 224. This governmental immunity likewise protects a city (referred to as governmental immunity) when it exercises discretionary powers of a public nature involving judicial or legislative functions. City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex. 1997); Tex. Dep't of Aging & Disability Servs. v. Beltran, 350 S.W.3d 410, 413 n.2 (Tex. App.-El Paso 2011, pet. denied) (although the terms are often used interchangeably, sovereign immunity refers to the State's immunity, while governmental immunity from liability protects political subdivisions of the State such as counties, cities, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.