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Oak Point Board of Adjustment v. Houle

Court of Appeals of Texas, Second District, Fort Worth

December 12, 2019

Oak Point Board of Adjustment, Appellant
v.
Jeff Houle, Appellee

          On Appeal from County Court at Law No. 2 Denton County, Texas Trial Court No. CV-2018-03798

          Before Gabriel, Birdwell, and Womack, JJ.

          MEMORANDUM OPINION

          DANA WOMACK, JUSTICE

         I. Introduction

         In two issues, appellant Oak Point Board of Adjustment (Board) appeals from the trial court's denial of its plea to the jurisdiction and a related order on appellee Jeff Houle's petition for writ of certiorari, which Houle brought under Section 211.011 of the Texas Local Government Code.[1] See Tex. Loc. Gov't Code Ann. § 211.011. In its first issue, the Board asserts that while this appeal has been pending, Houle's claims against it have become moot. Because we agree, we vacate the challenged orders and dismiss Houle's claims against the Board for want of jurisdiction.

         II. Background

         The City of Oak Point (City) has a zoning ordinance establishing a 50-foot front-yard setback in the residential neighborhood at issue in this appeal. Houle resides in that neighborhood, as does a nearby neighbor, Bobby Pope. In March 2018, Pope got a permit from the City allowing him to build a shed in an area of his property that was supposedly outside the front-yard setback. But sometime after the shed was built, the City learned that the construction plans upon which it had based its decision to grant Pope's permit contained a miscalculation of the location of Pope's front property line. As a result, instead of being located outside the front-yard setback, Pope's newly constructed shed actually encroached four feet into it. This discovery led the City to initiate a variance request with the Board in order to secure approval for the encroachment. In November 2018, the Board held a public hearing on the request and then approved it, subject to the conditions that the variance would apply only to the existing shed and that the 50-foot setback would remain in effect for any new structure that was proposed, as well as to Pope's newly built shed if it were ever moved.

         Dissatisfied with the Board's decision to grant the variance, Houle attempted to challenge it by filing a pro se petition for writ of certiorari in the county court at law. See Tex. Local Gov't Code Ann. § 211.011. The parties dispute whether Houle named the Board as a defendant in his original petition, but resolving that dispute is not necessary to the disposition of this appeal. See Tex. R. App. P. 47.1. For our purposes, it is enough to say that Houle ultimately amended his petition, and it is undisputed that his live pleading names both the City and the Board as defendants. In his amended petition, Houle asserts that the Board's variance decision was illegal because it was "arbitrary, capricious, [and] unauthorized, [was] not supported] by evidence, and [was] contrary to law." As to the City, Houle alleged that its "procedures in enforcing its zoning ordinances violate[d] due process and equal protection." Houle further alleged that the City's and the Board's conduct had "amounted to gross negligence, bad faith, or malice."

         The specific relief Houle wanted from the trial court was for it to issue a writ of certiorari directed to the City and the Board to review both the City's building permit decision and the Board's variance decision; to hold a hearing and review those respective decisions; and to issue an order reversing those decisions.

         Both the City and the Board responded to Houle's petition by filing pleas to the jurisdiction, but they did so based on differing theories. The theory the Board asserted was that Houle's petition had not been timely filed. The trial court granted the City's plea, a decision that is not at issue in this appeal. But the trial court denied the Board's plea. The trial court then granted Houle's amended petition for writ of certiorari. That order contained an express finding that Houle's petition "was filed in the proper time and [was] sufficiently pled." The Board filed this interlocutory appeal seeking review of both the order denying its plea to the jurisdiction and the order granting Houle's amended petition.

         III. Discussion

         In its brief, the Board asserts that Houle's claims against it have become moot on account of events that have transpired while this appeal has been pending. Specifically, the Board claims that Pope's shed has been moved to an area of his property that is entirely outside the front-yard setback. To support its assertion that Pope's shed now sits entirely outside the front-yard setback, the Board attached to its brief an affidavit from Oak Point City Planner Michael Coker. In the affidavit, Coker avers that on May 14, 2019, he went to Pope's residence to verify the location of the shed. Coker states that he measured the shed's position relative to Pope's front property line and confirmed that the shed rests entirely behind the front-yard setback. In his brief, Houle does not dispute the Board's assertion that the shed no longer infringes the setback, and although he attached numerous documents to his brief, nothing in the attached documents contradicts Coker's testimony that the shed no longer encroaches the setback.

         A. Mootness

         Our jurisdiction extends only to cases in which an actual controversy exists. See Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012). Thus, we have no authority to decide a case that has become moot during the pendency of the litigation. See Briones v. Brazos Bend Villa Apartments, 438 S.W.3d 808, 812 (Tex. App.-Houston [14th Dist.] 2014, no pet.). An issue may become moot when a party seeks a ruling on some matter that, when rendered, would not have any practical legal effect on a then-existing controversy. See Meeker v. Tarrant Cty. Coll. Dist., 317 S.W.3d 754, 759 (Tex. App.-Fort ...


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