Appeal from the County Civil Court at Law No. 1 Harris
County, Texas Trial Court Cause No. 1109638
consists of Chief Justice Frost and Justices Wise and Hassan.
Commons at Lake Houston, Ltd. sued the City of Houston for
inverse condemnation and a declaratory judgment regarding a
newly amended ordinance that regulates development in the
500-year floodplain. The City filed a plea to the
jurisdiction, contending that The Commons' claims were
not ripe. The trial court denied the plea. We reverse the
trial court's order and render a judgment dismissing The
Commons' claims without prejudice.
Standard of Review
is a component of subject-matter jurisdiction, which may be
challenged by a plea to the jurisdiction. See Riner v.
City of Hunters Creek, 403 S.W.3d 919, 921-22 (Tex.
App.-Houston [14th Dist.] 2013, no pet.). When a plea to the
jurisdiction challenges the pleadings, we review de novo
whether the pleader has alleged facts that affirmatively
demonstrate the court's jurisdiction. Tex. Dept. of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004). When a plea to the jurisdiction challenges the
existence of jurisdictional facts, we consider the relevant
evidence submitted by the parties. Id. at 227. If
the evidence is undisputed or fails to raise a fact question
on the jurisdictional issue, then the trial court rules on
the plea as a matter of law, id. at 228, and we
review the ruling de novo, see id. at 226.
Commons owns a roughly 318-acre tract of land near Lake
Houston. The Commons has begun development of the land into a
master-planned community known as "The Crossing."
Significant portions of The Crossing are located within the
100-year or 500-year floodplains.
City has approved several general plans for The Crossing, and
The Commons recorded subdivision plats consistent with the
general plan and a final plat for part of The Crossing. The
City approved a drainage plan and construction plans
concerning water, sanitation, sewage, drainage facilities,
and paving for part of The Crossing. The Commons began
working on water, sewage, and drainage lines, investing
millions of dollars towards amenities for the development of
wake of Hurricane Harvey, the City passed Ordinance No.
2018-258 to amend the existing floodplain development
ordinance in Chapter 19 of the City's Code of Ordinances.
The old ordinance required that new residential structures
within the 100-year floodplain had to be built at least one
foot above the flood elevation. Among other changes, the new
ordinance requires that new residential structures within the
500-year floodplain must be built at least two feet above the
flood elevation. See Hous., Tex., Code of Ordinances
§§ 19-2, 19-33,
Commons sued the City before the effective date of the
ordinance and ultimately asserted claims for inverse
condemnation and a declaratory judgment. The Commons alleged
that the application of the amended ordinance to its property
would substantially damage the market value of the property,
and the current development plan would be unfeasible.
the suit was pending, a person who worked on the The Crossing
project for The Commons-Stephen Sheldon-emailed a managing
engineer who worked for the City about what impact the
"Vested Rights" statute might have if a general plan
had been filed for a master-planned subdivision. In the
email, Sheldon wrote, "I'm hoping you might be able
to answer a question related to the ordinance that I'm
having trouble tracking down." Sheldon concluded:
I realize you aren't an attorney, but I was hoping either
this had come up already in internal discussions (in which
case you might know the answer as to whether [the statute]
applies) or you might be able to forward this e-mail to an
attorney who worked on this ordinance, who might have this
answer. Trying to do some advance planning for a couple of
large tracts, and want to make sure I plan correctly!
Sheldon did not mention The Commons, The Crossing, or any
details related to The Crossing.
The City's engineer responded in relevant part:
You are right, I'm not an attorney. What I can tell you
is that while the plat would in fact be grandfathered and
would not have to be re-platted due to the ordinance change,
the particulars of the improvements (requirements for
elevation of structures and mitigation requirements) are not
part of the plat. The required elevation of structures and
grading plans including required floodplain storage
mitigation can only be grandfathered if that particular ...