Leonard George Mitchell, Jr. v. The State of Texas--Appeal from Criminal District Court of Jefferson County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 9th District Court of Appeals » 2009 » Leonard George Mitchell, Jr. v. The State of Texas--Appeal from Criminal District Court of Jefferson County

State: Texas

Court: Texas Northern District Court

Docket No: 09-09-00245-CR

Case Date: 12/02/2009

Plaintiff: Rosenthal, Stanley

Defendant: The State of Texas--Appeal from County Court of Matagorda County

Preview:IN THE TENTH COURT OF APPEALS No. 10-09-00146-CV BMTP HOLDINGS, L.P., Appellant v. CITY OF LORENA, Appellee

From the 170th District Court McLennan County, Texas Trial Court No. 2008-1516-4 OPINION ON REHEARING
BMTP Holdings, L.P. appeals the granting of the City of Lorena's traditional motions for summary judgment, the denial of BMTP's traditional motion for summary judgment, and the award of attorney's fees to the City of Lorena. BMTP sued the City of Lorena seeking a declaratory judgment that a moratorium and its progeny imposed by the City relating to permits for sewer connections did not apply to its developments and that the City could not refuse to grant permits based on such a moratorium and an inverse condemnation cause of action alleging a regulatory taking. The trial court granted two separate traditional motions for summary judgment in favor of the City and awarded the City its attorney's fees.

BMTP complains that the trial court erred by granting the City's motion for summary judgment and by denying their competing motion on the declaratory judgment action. BMTP further complains that the trial court erred by granting the City's motion for summary judgment on its inverse condemnation claim. BMTP

complains that the trial court abused its discretion in the award of attorney's fees to the City. On original submission, we found that because the moratorium did not apply to BMTP, the judgment of the trial court was reversed in its entirety, and judgment was rendered in favor of BMTP on its declaratory judgment claim, and the inverse condemnation claim and the award of attorney's fees were reversed to the trial court for further proceedings. In its motion for rehearing, the City argues that the original opinion was improperly designated as a "Memorandum Opinion" because it addresses an issue of first impression and therefore, the opinion should be designated as an "Opinion." TEX. R. APP. P. 47.4(a). We will vacate our earlier judgment, withdraw our earlier

memorandum opinion, and issue this opinion and judgment in their place. Concluding that our original analysis was correct, we overrule the motion for rehearing filed by the City and correct only the designation of the opinion as an "Opinion" because it addresses an issue of first impression. TEX. R. APP. P. 47.4(a). Statement of Facts BMTP was a developer of subdivisions in and around the city of Lorena, Texas. BMTP typically acquired and platted land, constructed infrastructure on that land, and then sold individual subdivided lots to builders or individuals who then built residences on those lots. BMTP would generally complete this in phases, which could
BMTP Holdings, L.P. v. City of Lorena Page 2

each last several years. In 2003, the infrastructure of Phase IV of the South Meadows Estates was completed. In early 2003, BMTP submitted a preliminary plat for Phase V of South Meadows Estates to the city manager of Lorena which included the technical details about the infrastructure that BMTP intended to construct. After the city planner and engineers had input, the preliminary plat was reviewed by the Planning and Zoning Commission and then the Lorena City Council voted to approve the preliminary plat. After the approval of the preliminary plat, BMTP began construction of the infrastructure, which included the necessary facilities to service each lot with water, sewer, and other utilities as well as streets, curbs, and gutters. The sewer system was constructed by installing a line that connected to the City's existing line and then extended a sewer tap to each lot within the subdivision to be later connected to a residence when it was constructed. The final plat for Phase V was submitted to the City Council for approval, and was approved by the Council's vote on January 16, 2006. Approval of the plat signified that the City had accepted the plat, that the plat complied with any relevant City ordinances, and that the subdivision was ready for residential construction. Prior to the plat's final approval, the sewer taps were required to be connected to the City's sewer system and tested. Before beginning construction on a residence, an application for a sewer connection was required in order to secure a residential building permit from the City. Although the vote approving the final plat regarding Phase V by the City Council took place on January 16, 2006, the final plat was not delivered to a representative of BMTP until June 5, 2006. The plat was recorded with the McLennan
BMTP Holdings, L.P. v. City of Lorena Page 3

County Clerk by BMTP the same day. When the City Manager delivered the final plat to BMTP's representative, he informed the representative that a moratorium on the issuance of sewer taps had been adopted earlier that day, June 5, 2006. The

infrastructure had been fully completed prior to that date. Additionally, by that time BMTP had sold fifteen of the twenty-one lots in Phase V, and all of the lots in Phase IV but one. The City was aware that it was having substantial capacity problems in its sewer system as early as 2003; however, the City contended that it was not until May of 2006 that they realized the depth of the problem, which led to the initial moratorium. According to the City Manager, it was the responsibility of the City's engineers to review the plat prior to approval and to determine, in part, that the City's infrastructure, including its sewer capacity, was sufficient. It was the opinion of the engineers that the sewer capacity of the City was sufficient to support the subdivision until the end of May, 2006 when the engineers informed the City that the City was operating above its capacity and that the moratorium was needed to attempt to get the problem under control until a new sewer plant could be constructed. The final approval of the plat included a statement by the City Engineer that the plat conformed to the City's subdivision ordinance and recommended approval of the final plat. A second engineer certified that "proper engineering consideration" had been given to the plat that had been signed on June 5, 2006, which was the same day that the first moratorium was voted on by the City Council. The plat did not become effective until it was recorded with the County Clerk of McLennan County, which was on June 5, 2006.
BMTP Holdings, L.P. v. City of Lorena Page 4

The City's moratorium was adopted by an ordinance on its second reading on June 12, 2006 to prevent the connection of any new residential or commercial buildings to the City's sewer system for a period of 120 days. During the 120 days, the City agreed to exempt from the moratorium the fifteen lots in Phase V that had either been sold or were under contract to be sold by BMTP as of June 5, 2006. The original moratorium was extended and reworded at various times until November 17, 2008, when it was repealed and replaced by a new moratorium that was in large part substantively the same as the prior moratoriums. On April 24, 2008, BMTP filed a declaratory judgment action against the City of Lorena seeking a declaration that the City's moratorium in effect at that time did not apply to Phase V; that the City could not enforce the moratorium as to the lots in Phase V because they were previously approved for development; and that the City could not deny building permits for the remaining lots in Phase V due to the moratorium.1 BMTP filed a motion for summary judgment and the City filed a plea to the jurisdiction, both of which were denied by the trial court. The City then filed a

traditional motion for summary judgment. BMTP responded to the City's motion, filed a motion to reconsider the denial of its motion for summary judgment, and amended its petition to include an inverse condemnation cause of action. The trial court granted the City's motion for summary judgment and denied BMTP's motion to reconsider the trial court's prior denial of its motion for summary judgment. The City filed another motion

The petition seeking the declaratory judgment was later amended by BMTP to include all of South Meadows Estates, which included Phase IV.
1

BMTP Holdings, L.P. v. City of Lorena

Page 5

for summary judgment directed against the inverse condemnation claim, which the trial court also granted. The trial court also awarded the City its attorney's fees. Standard of Review Both parties' motions for summary judgment sought judgments that would declare the parties' rights pursuant to the declaratory judgment actions. We review declaratory judgments under the same standards as other judgments. See TEX. CIV. PRAC. & REM. CODE ANN.

Download 10432.pdf