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Waco v. Citizens To Save Lake Waco

Court of Appeals of Texas, Tenth District

July 10, 2019

CITY OF WACO, Appellant

          From the 414th District Court McLennan County, Texas Trial Court No. 2017-290-5

          Before Chief Justice Gray, Justice Neill, and Judge Youngblood [7]



         Lake Waco sued the City for breach of contract and for a permanent injunction. The trial court denied the City's plea to the jurisdiction. In two issues, the City contends the trial court erred because the City is immune from suit and because the Texas Commission on Environmental Quality has exclusive jurisdiction of the issues raised in the underlying case. Because we determine that the claims raised by Lake Waco in its underlying suit are not ripe, we remand the case to the trial court with instructions to vacate its Order Denying Defendant's Plea to the Jurisdiction and to dismiss Lake Waco's suit for want of jurisdiction.


         Some time ago, the City bought a landfill on Highway 84 from the City of Woodway. The permit number for this landfill was 948. In 1987, the City filed an application with the Department of Health (TDH) seeking an amendment to the permit to expand the landfill. The application for the expansion permit was designated 948-A.

         In February of 1992, permit 948-A was issued. Within 30 days, Wanda Glaze, a citizen who lived near the landfill, appealed the agency's decision to a Travis County District Court. She named TDH and several others, including the City, as defendants. By mid-October, 1992, the City and Wanda executed a settlement agreement in which, among other things not relevant to our decision, the City agreed that it would "not expand the 948-A beyond its current boundaries." (Emphasis added.) The 1992 suit was dismissed with prejudice in December of 1992. Although the order of dismissal indicated that the parties requested an order dismissing the case, no details of the settlement were incorporated into the order.

         On or about April 20, 2004, the City purchased a 159-acre tract which was adjoined to the western side of the area which comprised 948-A. In June of 2005, the City held a public meeting about its planned expansion of the 948-A landfill. Lake Waco[1] reminded the City about the settlement agreement. No application was filed at that time. In 2011, the City bought a 133-acre tract which adjoined the 159-acre tract purchased in 2004. In 2016, the City held meetings with Lake Waco to discuss a proposed landfill encompassing the 133- and 159-acre tracts which, combined, adjoin and are contiguous to the 948-A landfill. Again, Lake Waco advised the City that the proposed landfill violated the settlement agreement. The City allegedly replied that the proposed landfill was not an expansion, but a "new permit."

         On January 31 of 2017, Lake Waco filed its original petition against the City for breach of contract and to permanently enjoin the City from pursuing the construction and operation of the proposed landfill and from taking any other action that "expands" the 948-A landfill beyond its current boundaries.[2] The City filed a plea to the jurisdiction alleging it was immune from suit and the trial court had no jurisdiction because Lake Waco had no standing to bring its suit.[3] The City's plea was denied.

         After briefing was complete on appeal, we recognized that Lake Waco's suit may not be ripe and requested briefing on the issue by both parties.[4] Both parties assert that Lake Waco's suit is ripe. We disagree with the parties.


         It is fundamental that a court has no jurisdiction to render an advisory opinion on a controversy that is not yet ripe. Camarena v. Tex. Emp't Comm'n, 754 S.W.2d 149, 151 (Tex. 1988). Ripeness is a threshold issue that implicates subject matter jurisdiction and emphasizes the need for a concrete injury for a justiciable claim to be presented. In re Depinho, 505 S.W.3d 621, 624 (Tex. 2016); Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011). In evaluating ripeness, we consider whether, at the time a lawsuit is filed, the facts are sufficiently developed so that an injury has occurred or is likely to occur, rather than being contingent or remote. Id.; Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 2000). A case is not ripe when the determination of whether a plaintiff has a concrete injury can be made only "on contingent or hypothetical facts, or upon events that have not yet come to pass." Robinson, 353 S.W.3d at 756; Gibson, 22 S.W.3d at 852. Although a claim is not required to be ripe at the time of filing, if a party cannot demonstrate a reasonable likelihood that the claim will soon ripen, the case must be dismissed. Robinson, 353 S.W.3d at 755; Perry v. Del Rio, 66 S.W.3d 239, 251 (Tex. 2001).


         Lake Waco contends that "the City ha[s] taken concrete steps to expand the 948-A Landfill site…including purchasing land, drawing up written plans for the expanded landfill, and specifically informing Lake Waco of its intent to proceed with the expanded landfill." Nothing in the record, however, indicates that the City has actually expanded or now intends to expand the 948-A landfill. The only action the City has taken is the purchase of two tracts of land adjacent to the 948-A landfill. Although in 2005 the City initially discussed the expansion of the 948-A landfill after the 2004 purchase of the 159-acre tract, no application for an amended permit or a new permit, since that time, has been filed. And according to the City, the permitting process takes a long time to complete. Lake Waco does not dispute the length of time for the permitting process. The previous application process ...

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