Court of Appeals of Texas, Seventh District, Amarillo
JON E. JACKS, APPELLANT
THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF BRYAN, TEXAS, APPELLEE
Appeal from the 272nd District Court Brazos County, Texas
Trial Court No. 16-003188-CV-272, Honorable Travis B. Bryan,
QUINN, C.J., and PIRTLE and PARKER, JJ.
C. Parker Justice.
Jon E. Jacks, appeals the trial court's grant of summary
judgment in favor of appellee, the Zoning Board of Adjustment
of the City of Bryan, Texas, and denial of Jacks' motion
for summary judgment. We affirm the trial court's
purchased a piece of property in a residential subdivision
with the intent of building a commercial laundromat on the
land. Because the original plan for the subdivision had been
filed with the City in 1960, Jacks contends that he possesses
vested rights under chapter 245 of the Texas Local Government
Code that require that only those zoning laws and regulations
that were in effect in 1960 apply to Jacks' property.
Relying on an e-mail "denial" from Martin
Zimmermann, Planning Manager for the City, Jacks pursued an
appeal of this decision to the Board. The Board denied
Jacks' request because, inter alia, he failed to
identify any specific regulation that had changed since 1960
that affected Jacks' development of the property, and
because Jacks failed to identify any permit application that
he had submitted to the Board that had been denied. Following
the Board's denial, Jacks appealed the Board's
decision in the district court. Jacks filed a motion for
summary judgment that included both traditional and
no-evidence grounds. The Board filed a motion for summary
judgment asserting both traditional and no-evidence grounds.
After holding a hearing, the trial court granted the
Board's motion and denied Jacks' motion. As a result,
Jacks timely filed the instant appeal.
appeal, Jacks presents five issues. His first issue contends
that the trial court erred in failing to find that Jacks
possessed vested rights in the property pursuant to chapter
245 of the Texas Local Government Code. Jacks' second
issue contends that the trial court erred by considering
evidence on appeal that was not presented to the Board prior
to its decision to deny Jacks' vested property rights. By
his third issue, Jacks contends that the trial court
considered defective affidavits as proper summary judgment
evidence. Jacks' fourth issue contends that the trial
court erred in finding that the Board properly analyzed and
applied chapter 245 of the Texas Local Government Code. By
his fifth issue, Jacks contends that the trial court erred in
denying Jacks' no-evidence motion for summary judgment.
One and Four
first issue contends that the trial court erred in failing to
find that Jacks possessed vested rights in the property under
chapter 245 of the Texas Local Government Code. See
Tex. Local Gov't Code Ann. § 245.002 (West 2016).
Relatedly, Jacks' fourth issue contends that the trial
court erred in concluding that the Board properly analyzed
and applied chapter 245. Because these two issues are so
interrelated, we will address them together.
courts review a trial court's summary judgment de novo.
Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review the
evidence presented in the motion and response in the light
most favorable to the party against whom the summary judgment
was rendered, crediting evidence favorable to that party if
reasonable jurors could and disregarding contrary evidence
unless reasonable jurors could not. Id. (citing
City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005), and Johnson v. Brewer & Pritchard, P.C.,
73 S.W.3d 193, 208 (Tex. 2002)). When, as here, a party moves
for both traditional and no-evidence summary judgment, we
first review the trial court's judgment under the
standards of Rule 166a(i), because if the nonmovant failed to
meet the no-evidence standard, there is no need to analyze
whether the movant's summary judgment proof satisfied the
less stringent burden under Rule 166a(c). See Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
no-evidence motion for summary judgment is essentially a
motion for a pretrial directed verdict. See Tex. R.
Civ. P. 166a(i); Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). After an adequate time for
discovery, a party without the burden of proof may, without
presenting evidence, seek summary judgment on the ground that
there is no evidence to support one or more essential
elements of the non-movant's claim or defense.
Tex.R.Civ.P. 166a(i); Rust v. Tex. Farmers Ins. Co.,
341 S.W.3d 541, 550 (Tex. App.-El Paso 2011, pet. denied).
The motion must specifically identify the element(s) for
which there is no evidence because Rule 166a(i) does not
permit conclusory or general no-evidence challenges.
Tex.R.Civ.P. 166a(i); Timpte Indus., Inc., 286
S.W.3d at 310. The trial court is required to grant the
motion if the nonmovant fails to produce summary judgment
evidence that raises a genuine issue of material fact on the
challenged element(s). See Tex. R. Civ. P. 166a(i);
Rust, 341 S.W.3d at 550. However, when the nonmovant
presents more than a scintilla of probative evidence to raise
a genuine issue of material fact, a no-evidence summary
judgment is improper. Rust, 341 S.W.3d at 550
(citing Smith v. O'Donnell, 288 S.W.3d 417, 424
section 245.002, once an application for the first permit of
a property-development project is filed for review with an
appropriate municipal agency, all subsequent applications
for permits shall be considered under the laws and
regulations in effect at the time that the first application
for a permit was filed. Id. § 245.002(a). The
statute clearly and unambiguously calls for the filing of a
subsequent application for a permit as necessary to invoke a
claim of vested rights. BCCA Appeal Grp., Inc. v. City of
Houston, 496 S.W.3d 1, 20 (Tex. 2016) (quoting State
v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006), for the
proposition that when a "statute is clear and
unambiguous, we must apply its words according to their
common meaning without resort[ing] to rules of construction[.
. . .]"). By requiring a vested-rights claimant to file
an application for a permit to invoke alleged vested rights,
the statute provides a triggering mechanism which puts the
municipal agency on notice of the claim as well as
identifying the nature of that claim. Consequently, we
construe section 245.002(a) as requiring the filing of an
application for a permit to invoke a claim for vested
property rights under chapter 245.
alleged by the Board in its motion for summary judgment,
Jacks has not identified an application for a permit that he
has filed with the Board that has been denied or that has
been wrongly decided under current laws or regulations rather
than under the laws and regulations that existed in 1960. In
fact, the only permits that remained pending while Jacks
sought review from the trial court were permits filed with
the Site Development Review Committee, which is a separate
department from the Board with separate
responsibilities. Because the statute contemplates that the
assertion of vested rights in application of previous laws is
raised by the filing of an application for a permit, we
cannot conclude that Jacks has properly invoked application
of section 245.002(a). See Tex. Local Gov't Code
Ann. § 245.002(a). As such, we cannot conclude that the
trial court erred in granting the Board's summary
judgment because there is no evidence that Jacks properly
raised the issue of his vested rights by filing an