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Sakonchick v. Travis County

Court of Appeals of Texas, Third District, Austin

October 30, 2019

Stephen Sakonchick II, Appellant
v.
Travis County, Texas, Appellee

          FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-18-006114, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Kelly and Smith

          MEMORANDUM OPINION

          Edward Smith, Justice

         Stephen Sakonchick II appeals from a district court's order sustaining a plea to the jurisdiction and dismissing with prejudice his constitutional challenge to a construction permit Travis County issued to the owners of a commercial property near Sakonchick's home. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (allowing accelerated interlocutory review of trial court's disposition of governmental unit's jurisdictional plea). We will affirm the order as modified herein.

         BACKGROUND

         The dispositive facts of this dispute are largely uncontested. For more than 25 years, Sakonchick has owned a home on in a neighborhood known as the Bee Creek Hills Addition ("Bee Creek") in western Travis County and within the City of Austin's extra-territorial jurisdiction. See Tex. Gov't Code 42.001-.904 (defining and governing extra-territorial jurisdictions). Bee Creek's only means of vehicular ingress and egress is along Canon Wren Drive, a cul-de-sac accessible from westbound Bee Cave Road (also known as FM 2244) just west of the Capital of Texas Highway (also known as State Highway Loop 360).

         The Overlook at Rob Roy ("The Overlook") is a real estate development featuring a four-story mixed-use office building on the northeast corner of Bee Cave Road and Canon Wren Drive. The office building fronts on Bee Cave Road but is accessible from both Bee Cave Road and Canon Wren Drive, and The Overlook's land abuts some of Bee Creek's residential lots. Like Bee Creek, The Overlook is in an unincorporated area of Travis County but within the City of Austin's extra-territorial jurisdiction.

         The Overlook's owners applied for a basic development permit to construct a parking garage and a second driveway on Canon Wren Drive. Travis County apparently did not notify the homeowners in Bee Creek of the pending permit application, but Sakonchick and his neighbors eventually learned of the application. Concerned about the possibility of increased traffic, Sakonchick began calling Travis County to voice his objections to the proposed construction and subsequently submitted his concerns in writing. Travis County ultimately issued basic development permit No. 16-12039 on August 14, 2018, to allow the "[a]ddition of a 65 space [sic] parking garage and associated water quality and stormwater detention ponds" at The Overlook. The County then sent notice of the issued permit to the residents of Bee Creek.

         Unhappy that Travis County failed to address his concerns before issuing the permit, Sakonchick sued Travis County and The Overlook's owners in Travis County district court, pleading various theories under state and federal law and seeking to enjoin construction of the garage. He subsequently named the City of Austin as an additional defendant. When the defendants removed the case to federal court, see 28 U.S.C. § 1441 (allowing removal of any suit over which the federal courts would have original jurisdiction), Sakonchick successfully moved to remand the case back to state court after amending his complaint to delete all federal claims, see id. § 1447(c) (governing remand of removed cases). His live petition for relief alleges that Travis County violated his right to due course of law, see Tex. Const. art. I, §19, by issuing the permit without first providing Sakonchick with notice and a hearing. Travis County filed a plea to the jurisdiction, which the district court sustained after an evidentiary hearing. Sakonchick filed timely appeal.

         DISCUSSION

         Sakonchick presents three issues on appeal: first, he contends the district court erred by sustaining Travis County's plea to the jurisdiction; second, he argues in the alternative that the district court erred by denying him an opportunity to amend his pleadings to cure any jurisdictional defect; and third, he argues that even if his claim against Travis County is properly dismissed for want of jurisdiction, the district court erred by dismissing the claim with prejudice.

         Plea to the Jurisdiction

         In his first issue, Sakonchick contends the district court erred by finding no jurisdiction over his claim. Travis County disagrees, arguing that Sakonchick cannot overcome its immunity from suit and that the district court therefore properly sustained its plea. We review the district court's disposition of a plea to the jurisdiction de novo. City of New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 512 (Tex. App.-Austin 2014, no pet.).

         As a political subdivision of the state, Travis County benefits from governmental immunity. See Tooke v. City of Mexia, 197 S.W.3d 325, 330 & n.11 (Tex. 2006). "In Texas, governmental immunity has two components: immunity from liability, which bars enforcement of a judgment against a governmental entity, and immunity from suit, which bars suit against the entity altogether." Id. at 332. Immunity from suit does not extend to claims arising from an unconstitutional act. See City of Houston v. Downstream Envtl., L.L.C., 444 S.W.3d 24, 38, 39- 40 (Tex. App.-Houston [1st Dist.] 2014, pet. denied) (reversing district court's denial of plea to the jurisdiction after concluding plaintiffs had not alleged viable due process ...


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