Appellants, National Media Corporation and Acme Partnership, L.P.// Cross-Appellant, City of Austin v. Appellee, City of Austin // Cross-Appellees, National Media Corporation and Acme Partnership, L.P.

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Court of Appeals of Texas, Austin.

Appellants, National Media Corporation and Acme Partnership, L.P.// Cross-Appellant, City of Austin v. Appellee, City of Austin // Cross-Appellees, National Media Corporation and Acme Partnership, L.P.

NO. 03-16-00839-CV

Decided: March 23, 2018

Before Justices Puryear, Field, and Bourland

MEMORANDUM OPINION

In cross-appeals, the parties dispute the propriety of the trial court's (a) denial of the City of Austin's plea to the jurisdiction and (b) final judgment awarding National Media Corporation and Acme Partnership, L.P. (collectively National Media) declaratory relief and damages for their regulatory-taking claim. The dispute is centered on the City's actions in connection with National Media's application to register an off-premise billboard sign as a “nonconforming sign,” entitling the sign to associated “grandfather” status and potential relocation rights despite current City ordinances otherwise prohibiting off-premise signs. For the following reasons, we will reverse the trial court's judgment and render judgment granting the City's plea to the jurisdiction and dismissing all of National Media's claims for want of jurisdiction.

BACKGROUND

This dispute began in and has been in continuous litigation since 2009 when, under an agreement, National Media acquired “all of [the] sign rights, relocation rights, interests and entitlements, if any, in [a specified] off-premise outdoor advertising display” located on the real property of third party, Anchor Equities, Ltd. National Media paid Anchor Equities a $500 “deposit” upon execution of the parties' agreement and transfer of whatever “rights” Anchor Equities had in the sign, with an additional outstanding $24,500 payment contingent and payable only upon National Media's “receiving all necessary governmental relocation permits, and/or approval for the relocation” of the sign. See Austin, Tex., City Code § 25-10-152(B)(5) (2017) (providing for relocation of otherwise prohibited nonconforming off-premise signs under enumerated conditions). Shortly after execution of the sale agreement, National Media 1 filed an application with the City to register the sign as a “nonconforming off-premise sign.” See id. §§ 25-10-4 (defining “sign,” “off-premise sign,” and “nonconforming sign”), 25-10-103 (prohibiting off-premise signs in all sign districts “[u]nless the accountable official determines that the sign is a nonconforming sign”), 25-10-152(F) (providing registration requirements for nonconforming off-premise signs).

In response to National Media's registration application, on November 19, 2009 the City issued to National Media and Anchor Equities “notices of violation” (NOVs) and sent National Media a “notice of denial of registration.”2 The City's investigation report referenced in and supporting the NOVs noted that the sign had been dismantled in 2003, leaving only “three support poles” but no sign face, and that a “new sign” had been constructed in its place in 2009, complete with a larger-sized face and a fourth support pole, without a permit and past the 90-day replacement window. The investigation report cited a violation of section 25-10-152(D) of the sign code, noting that the sign had been “dismantled more than five years before reconstruction work [on the sign] began. No permit was obtained.” See id. § 25-10-152(D).

National Media then filed a lawsuit against the City, seeking declaratory relief under the Uniform Declaratory Judgments Act (UDJA) and a determination that it is entitled to register the sign. Although National Media and Anchor Equities' sale agreement referenced “relocation rights,” National Media's initial lawsuit did not seek relocation as a remedy or otherwise reference that term, nor did National Media ever file an application for relocation of the sign with the City. See id. § 25-10-152(B)(5). As the cause proceeded, the City filed three separate pleas to the jurisdiction, each of which the trial court denied.

Shortly after the trial court denied the City's third plea to the jurisdiction, in late 2011, the City issued to National Media a formal “use determination” signed by Greg Guernsey, the Director of the City's Planning and Development Review Department, in which he determined that “the construction, installation, or maintenance of an off-premises sign at the [site] does not qualify as a legal non-conforming use” under the City's zoning code. See id. § 25-2-945 (defining “abandonment of nonconforming use” and providing that person may not “resume abandoned nonconforming use”). Guernsey further stated in his “use determination” that it was his “understanding that [National Media] did not appeal the November 19th [2009] denial of registration ․ under the mistaken belief that there was no appeal process [and that] ․ this use determination is appealable to the Board of Adjustment.” See id. § 25-2-2(C) ( “A use determination may be appealed to the Board of Adjustment.”); see also Tex. Loc. Gov't Code §§ 211.008–010 (providing for municipality's creation of Board of Adjustment, outlining Board's authority, and authorizing appeal to Board of decision made by administrative officer of municipality). National Media appealed the “use determination” to the Board of Adjustment, and—after that body upheld the City's determination—amended its pleadings to include a request for judicial review of the Board's decision pursuant to section 211.011 of the local government code. See Tex. Loc. Gov't Code § 211.011 (providing for review in district court by verified petition for writ of certiorari directed to Board and requiring Board to file verified return with court “concisely stat[ing] any pertinent and material facts that show the grounds of the decision under appeal”).

After a sufficient time for discovery had elapsed, both parties filed cross-motions for summary judgment, and the trial court denied National Media's motion and granted the City's traditional and no-evidence motion, dismissing all of National Media's claims with prejudice. National Media appealed to this Court, and we reversed the trial court's summary judgment in favor of the City, concluding that the Board's decision was “illegal” because it improperly upheld the City's application of the “inapplicable” zoning code to the facts rather than the more specific sign code. See National Media Corp. v. City of Austin, No. 03-12-00188-CV, 2014 WL 4364815, at *3 (Tex. App.—Austin Aug. 27, 2014, no pet.) (mem. op.). However, rather than rendering judgment in favor of National Media on its cross summary-judgment motion, we remanded the cause to the trial court “for action consistent with” the opinion. Id. While that appeal was pending before this Court, a third-party contractor performing work for the new landowner on which the sign stood “razed” the sign in connection with the construction of apartments on the site.

After remand and upon its discovery that the sign had been razed, National Media amended its pleadings to (a) add a request for an additional declaration that it is entitled to relocate the sign as it “would have been qualified to do ․ but for the City's illegal denial” of registration, and (b) assert a takings claim under both state and federal law, seeking damages for “adequate and just compensation for the taking of their property interest” in the sign. National Media filed two motions for partial summary judgment on its new claims, and the City filed yet another plea to the jurisdiction as well as a motion for summary judgment. The trial court denied the City's plea and motion and granted National Media's motions for partial summary judgment. It later conducted a bench trial on damages, after which it rendered a final judgment incorporating its previous partial summary judgments, ordering declaratory relief, and awarding National Media attorney's fees in excess of $110,000 and damages in excess of $80,000 for the City's “regulatory taking.”

Both the City and National Media appeal the trial court's final judgment. The City contends that the trial court did not have jurisdiction over National Media's claims and erred in denying its plea to the jurisdiction and motion for summary judgment. National Media contends that the trial court erred in using an incorrect method of valuation—the “cost approach” instead of fair market value—to determine the amount of just compensation due.

DISCUSSION

We first consider the City's jurisdictional challenges and then, if necessary, the merits of the parties' respective summary-judgment motions and the court's damages award. A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Whether the trial court has jurisdiction is a question of law, Texas Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002), and we review the trial court's ruling on a plea to the jurisdiction de novo, Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). We likewise review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under a de novo standard, an appellate court conducts an independent analysis of the record to reach its own legal conclusions and does not defer to the trial court's conclusions. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).

Because the City is a subdivision of the state, it possesses governmental immunity from suit, which bars National Media's suit unless the City's immunity has been waived clearly and unambiguously by the legislature. City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex. 2014); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Without this legislative waiver, courts have no jurisdiction to adjudicate any claim against the municipality. Carlson, 451 S.W.3d at 830. It was National Media's burden to allege facts that affirmatively establish subject-matter jurisdiction, including waiver of the City's immunity. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 466 (Tex. 1993); Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App.—Austin 1994, writ denied).

The City's plea to the jurisdiction challenged the trial court's authority to determine two of the three claims 3 raised in National Media's live pleadings: (1) the claim seeking certain declarations under the UDJA—i.e., that National Media was entitled to register and relocate the sign—and (2) the claim asserting a regulatory taking under both state and federal law. The City contends that these claims are barred by governmental immunity (as well as other jurisdictional defects). We will address each of National Media's claims in turn.

National Media's declaratory-judgment claims

It is settled law that the UDJA is “merely a procedural device for deciding cases already within a court's jurisdiction.” Texas Parks & Wildlife Dep't v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011). It does not extend a trial court's jurisdiction, and a litigant's request for declaratory relief does not confer jurisdiction on a court. IT-Davy, 74 S.W.3d at 855. Accordingly, if a plaintiff asserts claims for declaratory relief against a state or its political subdivisions, it must demonstrate that the legislature has expressly waived immunity therefor. See Texas Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 622 (Tex. 2011) (The UDJA does not waive governmental immunity for actions in which a plaintiff “seeks a declaration of his or her rights under a statute or other law.”).

Although the UDJA waives sovereign immunity in particular cases, National Media's claims do not fall within the scope of those express waivers.4 See Sefzik, 355 S.W.3d at 622 (noting that UDJA waives immunity for declaratory-judgment actions challenging validity of statute and that plaintiff was not making such challenge); City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009) (noting distinction between plaintiff who is challenging validity of city's bylaws or governing statute, for which immunity is waived, and plaintiff who is merely challenging city's actions under relevant laws, for which immunity is not waived). A municipality's immunity bars a party's action seeking declaratory relief determining issues such as whether a billboard complies with ordinances, is entitled to nonconforming status, or requires a particular permit. See Lamar Corp. v. City of Longview, 270 S.W.3d 609, 612, 614 (Tex. App.—Texarkana 2008, no pet.) (Because “Legislature intended appeals of Board [of Adjustment] decisions to be brought through a petition for writ of certiorari, [the plaintiff's] original and amended petition for declaratory relief and allegations contained therein were insufficient to confer jurisdiction on the district court.”); see also City of Dall. v. Texas EZPawn, L.P., No. 05-12-01269-CV, 2013 WL 1320513, at *3 (Tex. App.—Dallas Apr. 1, 2013, no pet.) (mem. op.) (holding that UDJA did not waive city's immunity where plaintiff sought merely interpretation of city ordinance and declaration that its business did not meet ordinance's definition of “alternative financial establishment”). National Media is not challenging the validity of the City's ordinances, see Sefzik, 355 S.W.3d at 622, nor does it contend that any other waiver of immunity applies to its declaratory-judgment claims. Accordingly, the trial court did not have jurisdiction over those claims, see id., and it erred in denying the City's plea to the jurisdiction with respect to them.5

National Media's takings claims

It is “well settled” that the Texas Constitution waives governmental immunity with respect to takings claims. Carlson, 451 S.W.3d at 830; see Tex. Const. art. I, § 17; see also Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016) (“Sovereign immunity does not shield the government from liability for compensation under the takings clause.”). “A taking is the acquisition, damage, or destruction of property via physical or regulatory means.” Carlson, 451 S.W.3d at 831 (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998); State v. Hale,146 S.W.2d 731, 736 (Tex. 1941)). A takings claim is predicated upon a viable allegation of a physical or regulatory taking. See id. at 830 (citing Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex. 2012)). A regulatory taking is a condition of property use “so onerous that its effect is tantamount to a direct appropriation or ouster.” Id. at 831 (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005) (citation omitted)). “In the absence of a properly pled takings claim, the state retains immunity.” Hearts Bluff Game Ranch, 381 S.W.3d at 476. If a plaintiff fails to plead a viable takings claim, a court must sustain a properly raised plea to the jurisdiction. See Carlson, 451 S.W.3d at 830 (holding that because plaintiffs did not challenge any particular property-use restriction, and challenged only procedural regulation authorizing orders to vacate uninhabitable buildings, they did not allege viable takings claim).

National Media's pleadings neither allege a physical taking of its property by the City nor challenge the constitutionality of any of the particular sign ordinances at issue. National Media also does not contend that the City's initial denial of registration for specific violations—i.e., for dismantling the sign and failing to obtain a permit prior to repairing or replacing the sign, which constitute violations of the sign code—was a regulatory taking.6 Rather, its pleadings allege that the City's “illegal denial of the Sign registration [under the zoning code] ․ resulted in a per se taking of [its] vested property right.” Its pleadings continue: the City's “illegal application and enforcement of the Zoning Code (1) effectuated a total regulatory taking of [its] property interest in the Sign or (2) has unreasonably interfered with [its] use and enjoyment of its property.” However, this Court's determination that the City acted illegally when it applied the zoning code to National Media's sign-registration application does not create a viable takings claim where none existed in the first instance. National Media does not explain how the “razing” of the sign by a third party—not the City—transformed its claims for declaratory-judgment and judicial review of the Board's zoning decision into takings claims.

It is without question that reasonable regulations of and restrictions on use of private real property are legitimate exercises of the government's police power. Mayhew, 964 S.W.2d at 934. However, when a challenged land-use restriction denies the owner of all economically viable use of its land or unreasonably interferes with the owner's right to use and enjoy the real property, it constitutes a regulatory taking. See id. at 933, 935. National Media does not allege that any particular provisions of the City's sign code are unreasonable restrictions on the use of the real property at issue. Nor does it contend that the City's requiring compliance with the sign code in order to acquire or maintain nonconforming status constitutes a regulatory taking. Instead, it takes issue with the City's determination that National Media is not entitled to registration because its sign does not meet the applicable requirements, and that the City reached that conclusion via an improper procedure (i.e., by applying the inapplicable zoning code). But National Media has not cited any authority to expand regulatory-takings law to include such challenges, and we have found none.

While National Media's pleadings recite that the City's actions “effectuated a total regulatory taking” and “unreasonably interfered” with its property use and enjoyment, it is the factual substance of the pleadings (as supported by the jurisdictional evidence), that is controlling when we review a trial court's ruling on a plea to the jurisdiction. See Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011) (considering substance of constitutional claim in reviewing plea to jurisdiction and noting that immunity was retained unless “viable claim” pleaded); Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (reviewing grant of plea to jurisdiction de novo and considering whether facts that were pleaded affirmatively demonstrated that subject-matter jurisdiction exists). Here, the pleaded facts and jurisdictional evidence demonstrated that the City determined that National Media was not entitled to registration because its actions with respect to dismantling, repairing, and replacing the sign without a permit constituted prohibited actions precluding the conferring 7 of nonconforming status. See Miranda, 133 S.W.3d at 227 (noting that if jurisdictional challenge implicates merits of plaintiff's cause of action, courts consider relevant evidence submitted by parties to resolve jurisdictional issues raised). National Media has not directed us to any authority recognizing a viable regulatory-takings claim arising out of such governmental conduct.

Our review of the record leads us to conclude that National Media's pleadings—in complaining of the City's “illegal” actions in wrongly applying the zoning code to deny sign registration and foreclose a relocation permit—simply do not plead a viable regulatory taking under any of the theories recognized by the supreme court. See Carlson, 451 S.W.3d at 830; Mayhew, 964 S.W.2d at 934–35; see also House of Praise Ministries, Inc. v. City of Red Oak, No. 10-15-00148-CV, 2017 WL 1750066, at * 7 (Tex. App.—Waco May 3, 2017, no pet.) (mem. op.) (holding that plaintiff had not pleaded regulatory taking where it did not contest property-use restriction, only city's enforcement of code restrictions requiring either specified property repairs or demolition); CPM Trust v. City of Plano, 461 S.W.3d 661, 673 (Tex. App.—Dallas 2015, no pet.) (holding that trial court did not have jurisdiction over takings claim asserting that city improperly ordered removal of billboard after city had determined that plaintiff's “repair” of billboard damaged by storm violated ordinance prohibiting altering, removing, or replacing billboard).

Furthermore, we conclude that National Media does not have a viable takings claim because it did not have a vested property interest at the time of the alleged taking. See Scott v. Alphonso Crutch LSC Charter Sch., Inc., 392 S.W.3d 165, 170 (Tex. App.—Austin 2010, pet. denied) (reversing denial of plea to jurisdiction because constitutional challenge to agency order based on takings claim and due-process claim require vested property interest); Cypress Forest Pub. Util. Dist. v. Kleinwood Mun. Util. Dist., 309 S.W.3d 667, 675 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding that valid takings claim requires showing of vested property interest and reversing denial of plea to jurisdiction for plaintiff's failure to plead such interest); City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 311 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (noting that plaintiff must show that it has vested property interest, which is more than “a mere expectancy,” to assert valid takings claim); see also Hallco Tex., Inc. v. McMullen Cty., 221 S.W.3d 50, 56 (Tex. 2006) (“absent a cognizable property interest, a claimant is not entitled to compensation under article I, section 17”). National Media insists that it had a “vested property interest” in registration of the sign and, therefore, a permit to relocate it. A right is “vested” when it has some definitive, rather than potential, existence. Scott, 392 S.W.3d at 170. However, National Media does not allege that the City had previously issued the sign grandfathered status and was now seeking to revoke that status, or that the sign had been in compliance with annual registration and other sign-code requirements but was, nonetheless, denied concomitant privileges.

To have a property interest in a governmental benefit, such as a permit, a person must have more than a unilateral expectation of that benefit. Sefzik v. Texas Dep't of Transp., 267 S.W.3d 127, 137 (Tex. App.—Corpus Christi-Edinburg 2008), rev'd in part on other grounds, Sefzik, 355 S.W.3d at 622 (“Sefzik's permit application [to erect an outdoor-advertising sign] merely sought a governmental benefit to which he was not already entitled. As such, Sefzik merely had an expectation of the governmental benefit—his expectation is not a protected property right.”) (citing Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Smith v. Travis Cty. Bail Bond Bd., 559 S.W.2d 693, 694 (Tex. Civ. App.—Austin 1977, no writ)). A party's mere expectation of a permit is not a protected property interest. Shrieve v. Texas Parks & Wildlife Dep't, No. 03-04-00640-CV, 2005 WL 1034086, at *5–6 (Tex. App.—Austin May 5, 2005, no pet.) (mem. op.). As in Sefzik, “[t]his is not a case where a permit has been granted but has later been taken away by the State without cause.” Sefzik, 267 S.W.3d at 138.

Under the applicable sign ordinances, National Media had merely a unilateral expectation of receiving a permit to relocate the sign. Receiving a permit to relocate is not a matter of right, but is contingent upon many factors, including: the sign owner's not being “in violation of the registration requirements for any sign owned by that sign owner within the City's jurisdiction” (among others, the registration requirements include “initial [ ] regist[ration of] the sign by August 31, 1999, or within 180 days after the date the sign becomes subject to the City's planning jurisdiction”—it is undisputed that the owner of the sign at issue did not register it in 1999); the sign's not having been “dismantled before an application for a permit authorizing the ․ relocation is filed”; and the sign being located within specifically enumerated geographical boundaries, such as “within 500 feet of ․ a residential structure located in a residential base zoning district.” See Austin, Tex., City Code § 25-10-152(B)(5)(a), (F)(1)(c), (e). National Media also did not have a vested right to registration of the alleged “nonconforming sign” (which registration would have triggered its eligibility to apply for relocation); it had merely a unilateral hope or expectation of such registration because to “install, move, structurally alter, maintain, or [even simply] use a sign” in any capacity, the sign owner must be in compliance with the provisions (including the registration provisions) of the sign code. Id. § 25-10-2(B).

Under the ordinances at issue, the City had the discretion to determine whether the sign was entitled to grandfather status and relocation: “Unless the accountable official determines that the sign is a nonconforming sign, the following signs are prohibited: ․ off-premise sign[s].” Austin, Tex., City Code § 25-10-103 (2017); see id. §§ 25-10-4(8) (“NONCONFORMING SIGN means a sign that was lawfully installed at its current location but does not comply with the requirements of this chapter.”), 25-10-152(D)(1) (“The sign owner may not replace or relocate the sign if it is dismantled before an application for a permit authorizing the replacement or relocation is filed.”), 25-10-152(F)(1)(e) (“A sign owner is prohibited from relocating a sign if the sign owner is in violation of the registration requirements for any sign owned by that sign owner within the City's jurisdiction.”), 25-10-211 (“A person may not install, move, structurally alter, or structurally repair a sign unless the building official has issued a sign installation permit.”). The City's failure to exercise its discretion in the manner in which National Media favors does not equate to a regulatory taking of vested property rights or the revocation of such vested rights. Cf. County of El Paso v. Navar, 511 S.W.3d 624, 632 (Tex. App.—El Paso 2015, no pet.) (where plaintiff was contending that county was unreasonably requiring mobile-home operators to comply with standards not previously pronounced or enforced to obtain certificates to operate when operator had previously been granted grandfather status and issued such certificates, plaintiff properly pleaded taking). Accordingly, National Media did not have a vested property interest in a registered sign or a relocation permit at the time of the alleged taking.

Because National Media did not allege a viable taking, the City retained its immunity from suit, and dismissal for want of jurisdiction was proper. See Carlson, 451 S.W.3d at 833; CPM Trust, 461 S.W.3d at 673; see also City of New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 517 (Tex. App.—Austin 2014, no pet.) (holding that when federal takings claim is based on same facts as state takings claim, federal claims are “subsumed” into state claims and, accordingly, properly dismissed pursuant to plea to jurisdiction dismissing state claim). The trial court erred in denying the City's plea to the jurisdiction with respect to National Media's takings claims.

National Media's remaining claim

Because we have determined that the trial court did not have jurisdiction over National Media's takings and UDJA claims, there is only one remaining claim over which the trial court had authority: review of the Board of Adjustment's decision upholding the City's use determination and concomitant denial of registration of the sign. See Tex. Loc. Gov't Code § 211.011(a) (permitting party to challenge Board decision by filing petition in district court). The local government code provides that the governing body of a municipality may appoint a “board of adjustment” to hear and decide appeals when error is alleged in any order, requirement, decision, or determination made by an administrative official in the enforcement of a zoning ordinance. See id. §§ 211.008–.009. When faced with a challenge to a Board decision, the trial court sits as a court of review, and the only question before it is legality of the Board's decision. See CPM Trust, 461 S.W.3d at 669.

The procedure in chapter 211 of the local government code is the procedure that the legislature “has expressly provided ․ for challenging an action taken by a city's zoning board of adjustment.” City of San Antonio v. El Dorado Amusement Co., 195 S.W.3d 238, 249 (Tex. App.—San Antonio 2006, pet. denied); see Lindig v. City of Johnson City, No. 03-08-00574-CV, 2009 WL 3400982, at *8 (Tex. App.—Austin Oct. 21, 2009, no pet.) (mem. op.). This certiorari requirement is an administrative remedy provided by the local government code, which must be exhausted before board decisions may be brought to the courts. Lindig, 2009 WL 3400982, at *8 (citing Lamar Corp., 270 S.W.3d at 613). “A suit not brought pursuant to the statutory provisions is an impermissible collateral attack.” El Dorado Amusement, 195 S.W.3d at 250.

After we previously determined that the Board's decision was illegal, see National Media, 2014 WL 4364815, at *3, we remanded this cause to the trial court for further proceedings consistent with our opinion that the zoning code was inapplicable to the parties' dispute and that the sign code is the applicable code, see id. However, rather than abate the proceedings to allow the City an opportunity to apply the sign code, the trial court allowed the cause to proceed to trial. National Media thereafter added its takings and relocation claims, and the trial court eventually awarded it summary judgment on those claims as well as damages, basing its rulings in part on our determination that the Board's decision was illegal.

However, the fact that this Court previously overturned the Board's decision upholding the City's use determination and application of the zoning code to deny National Media's registration of the sign does not automatically grant National Media the right to register (or relocate) the sign. The sign must nonetheless meet the registration (and relocation) requirements within the sign code, and such determinations are, at least in the first instance, within the province of the City. See Austin, Tex., City Code § 25-10-103 (2017). If those determinations and actions in accordance therewith are first made by the City, and a party is aggrieved thereby, there is no remedy through the judiciary apart from the process provided by the local government code, see Tex. Loc. Gov't Code § 211.011. Here, National Media has not exhausted its administrative remedies by appealing any City determination based on the sign code—or any City determination about sign relocation—to the Board for review. See id. Accordingly, the trial court did not have jurisdiction to consider whether National Media was entitled to register or relocate the sign under the sign code.

CONCLUSION

The trial court erred in denying the City's plea to the jurisdiction. Accordingly, we reverse its judgment and render judgment granting the City's plea to the jurisdiction and dismissing all of National Media's claims.

Reversed and Rendered

FOOTNOTES

1.   National Media Corporation acted in its capacity as general partner of Acme Partnership, L.P. in filing the application.

2.   The City's denial notice did not reference specific ordinances but stated the reasons for denial: “Sign previously at this location was dismantled. Repairs/replacement of sign was not permitted and completed within allowed timeframe.” These reasons correspond to violations of the City's sign code. See Austin, Tex., City Code § 25-10-152(D) (2017) (prohibiting “replacement” of sign that has been “dismantled” before application authorizing replacement has been filed and requiring replacement to be completed within 90 days).

3.   The City did not contend that the trial court did not have jurisdiction over National's third claim—judicial review of the Board of Adjustment's decision upholding the City's use determination, see Tex. Loc. Gov't Code § 211.011 —which claim was the subject of our prior opinion. See National Media Corp. v. City of Austin, No. 03-12-00188-CV, 2014 WL 4364815, at *3 (Tex. App.—Austin Aug. 27, 2014, no pet.) (mem. op.).

4.   Nor does National Media's appeal of the Board of Adjustment's decision under section 211.011 of the local government code, see Tex. Loc. Gov't Code § 211.011, waive the City's immunity with respect to the declaratory-judgment claims, because the only question that may be raised by a petition for writ of certiorari under section 211.011 is the legality of the Board's order. City of San Antonio v. El Dorado Amusement Co., 195 S.W.3d 238, 250 (Tex. App.—San Antonio 2006, pet. denied). The declaratory relief that National Media sought under the UDJA exceeded the scope of the issue appealed first to the Board and then by writ of certiorari to the district court.

5.   Because we conclude that the City's governmental immunity for the UDJA claims was not waived, we need not reach the City's standing arguments.

6.   Indeed, National Media added its takings claims only after this Court determined that the zoning code does not apply to this dispute and after the landowner razed the sign.

7.   In its briefing, National Media repeatedly refers to the sign as a “grandfathered sign” implicating “vested [property] rights.” However, National Media has not identified any evidence in the record demonstrating that the City determined in the first instance that the sign is, in fact, “nonconforming” and thus “grandfathered.” It is not enough that a sign—in some form or other—existed prior to coming within the jurisdiction of the City's sign ordinances; rather, the current iteration of a “sign” is what the city code requires to have been “lawfully installed” in order to be deemed “nonconforming.” See Austin, Tex., City Code § 25-10-4(8) (2017) (defining “nonconforming sign” as “a sign that was lawfully installed at its current location but does not comply with” current requirements). Nor can a sign owner unilaterally declare that its sign is “grandfathered” and force the City to acknowledge such characterization. Rather, the “accountable [City] official” must “determine” that the sign is “nonconforming” and, thus, “grandfathered.” Austin, Tex., City Code § 25-10-103 (2017) (stating that off-premise signs are prohibited within City “unless the accountable official determines that the sign is a nonconforming sign”). There is no evidence in the record—or any allegation—that a City “accountable official” determined that the sign is a nonconforming sign.

David Puryear, Justice

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