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The City of Dallas v. 6101 Mockingbird, LLC

Court of Appeals of Texas, Fifth District, Dallas

July 23, 2019

6101 MOCKINGBIRD, LLC, Appellee

          On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-15-06071-E

          Before Justices Bridges, Schenck, and Pedersen, III



         The City of Dallas appeals the denial of its partial plea to the jurisdiction. The trial court found the City's plea to be without merit. We agree. Accordingly, with one modification described below, we affirm the trial court's order denying the City's plea. Because all issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.


         In 2014, 6101 Mockingbird, LLC ("Mockingbird") purchased two joining properties located at the northeast corner of Skillman Avenue and Mockingbird Lane (the "Property"). A gas station and a service center were located on the Property. The Property is zoned commercial retail, requiring a minimum front-yard setback of 15 feet.

          Mockingbird planned on developing the Property for a medical services clinic. On January 7, 2015, Mockingbird filed an Application for Land Subdivision with the City to permit that use. The application requested a plat of the Property with the stated purpose of creating two lots to allow for commercial use other than as a gas station. On January 23, 2015, the City informed Mockingbird that its application for the plat of the Property was conditionally approved. Final approval required compliance with certain listed conditions, including a dedication to the City, in fee simple, of a 10-foot strip of land along Mockingbird Lane.[1] The required dedication was in furtherance of the City of Dallas' thoroughfare plan, which is a long term plan to provide efficient flow of traffic throughout the city and provides for the expansion of roads. In addition, the City has a zoning ordinance that requires a 15 foot setback for development of commercial properties, measured from the edge of the dedicated road or highway.

         On February 5, 2015, Mockingbird notified the City that it believed the required dedication was an illegal taking and requested that the City perform a rough proportionality analysis for the requested right-of-way dedication and the impact from Mockingbird's proposed development.[2]See Dolan v. City of Tigard, 512 U.S. 374 (1994) (discussing municipality's obligation to perform rough proportionality in connection with compelled dedication or exaction). On May 14, 2015, a City of Dallas Engineer notified Mockingbird that he had determined the required dedication was roughly proportional to the impact of the proposed development project, meaning the City would offer no compensation for the required dedication.

         Mockingbird made the required dedication under protest and appealed the rough proportionality determination to the City Plan Commission ("CPC").[3] Mockingbird maintained that it should be compensated for the value of the required 10-foot dedication. Mockingbird submitted an appraisal valuing the strip of land at $327, 603. The CPC concluded Mockingbird failed to meet its burden of proof in order to overturn the City Engineer's finding of no disproportionate impact.

         Mockingbird appealed the CPC's decision to Dallas City Council ("City Council"). City Council affirmed the CPC's determination.

         Mockingbird then brought this lawsuit in county court appealing City Council's decision pursuant to section 212.904(c) of the local government code, which governs the apportionment of municipal infrastructure costs. Tex. Loc. Gov't Code Ann. § 212.904(c). In addition to claiming the City violated section 212.904 because the required dedication was not roughly proportionate to the impact of the redevelopment of the Property, Mockingbird alleged violations of its substantive and procedural due-process rights and that the City's actions constituted compensable exactions or takings under the federal and state constitutions. In doing so, Mockingbird referenced the 10-foot dedication and the measurement of setbacks from the City's Major Thoroughfare Plan line.[4] The City answered, generally denying Mockingbird's claim and asserting that the City's actions did not violate section 212.904 and were not unconstitutional or illegal.

         The City filed a partial plea to the jurisdiction challenging the trial court's subject-matter jurisdiction on four grounds. Those grounds concerned Mockingbird's pleading reference to the setback from the Major Thoroughfare Plan line. In particular, the City claimed Mockingbird (1) failed to satisfy certain prerequisites to suit, (2) failed to plead a valid regulatory taking claim, (3) failed to plead a waiver of immunity to support a substantive due process violation claim, and (4) failed to plead a waiver of immunity to support a declaratory judgment claim. The City supported its plea with the affidavit of the City Engineer who made the rough proportionality determination; letters between Mockingbird and the City, various plats, plans, and photographs related to the Property; transcripts from the CCP and City Council hearings; and materials submitted to the CCP and City Council. Mockingbird responded to the City's partial plea stating it is not asserting that the City's setback regulation is in and of itself an exaction, but that as applied in this case, in combination with the required dedication pursuant to the Major Thoroughfare Plan, an exaction occurred.[5] In support of its response, Mockingbird submitted the declarations of (1) a principal of Mockingbird, establishing Mockingbird applied for a re-plat, the City conditionally approved its application, and that the recorded plat reflects the fee simple dedication of the 10-foot right-of-way that was submitted under protest, (2) the real estate appraiser who performed the appraisal that Mockingbird submitted in the underlying administrative proceedings proving up his appraisal report, (3) the licensed professional engineer Mockingbird hired to testify in the underlying administrative proceedings, proving up his rough proportionality determination that the development project's use as an emergency medical facility will not have an impact on the infrastructure and that the right-of-way dedication is not related to the impact of the proposed development, and (4) Mockingbird's attorney, proving up correspondence between Mockingbird and the City.

          The trial court held a hearing on the City's partial plea to the jurisdiction.[6] At that hearing, Mockingbird once again represented that it was not complaining about the setback itself, but, rather, that the dedication of 10 feet of property impacted the setback.[7] In response to the City's contention that any complaints about the setback are not ripe until and unless a variance is sought and rejected, Mockingbird explained that it did not want a variance because the setback serves an important purpose and Mockingbird would not want to have its building next to the Major Thoroughfare Plan line, as Mockingbird Lane could be expanded to that line to allow for additional traffic flow. The trial court granted the City's plea to the jurisdiction as to Mockingbird's declaratory-judgment claim and denied the City's plea as to Mockingbird's remaining claims.[8] This appeal followed.[9]


         A plea to the jurisdiction is a dilatory plea by which a party challenges a court's authority to determine the subject-matter of the action. Bland Indep. Sch. Dist. v. Blue,34 S.W.3d 547, 554 (Tex. 2000), overruled on other grounds, Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004). The existence of subject-matter jurisdiction is a question of law; thus, we review de novo the trial judge's ruling on a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda,133 S.W.3d 217, 226 (Tex. 2004). Generally, a plea to the jurisdiction may challenge the sufficiency of the claimant's pleadings or the existence of necessary jurisdictional facts. City of Dallas v. East Vill. Ass'n, 480 S.W.3d 37, 42 (Tex. App.-Dallas 2015, pet. denied). When the plea challenges the claimant's pleadings, we determine whether the claimant has pleaded facts that affirmatively demonstrate the trial court's jurisdiction, construing the pleadings liberally and in favor of the claimant. Tex. Ass'n of Bus. v. Tex. Air Control Bd.,852 S.W.2d 440, 446 (Tex. 1993). When the plea appropriately challenges jurisdictional facts, we consider evidence submitted by the parties. Bland, 34 S.W.3d at 555. In performing our review, we confine our review to the evidence that is relevant to the jurisdictional issue, and we do not look to the merits of the claimant's case, but consider only the pleadings and the evidence pertinent to the jurisdictional inquiry. Consumer Serv. ...

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