Texson Management Group, Inc. v. the City of Weslaco, Texas

NUMBER 13-99-645-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ TEXSON MANAGEMENT GROUP, INC., Appellant, v. THE CITY OF WESLACO, TEXAS, Appellee. ___________________________________________________________________ On appeal from the 92nd District Court of Hidalgo County, Texas. ___________________________________________________________________ O P I N I O N Before Chief Justice Seerden and Justice Hinojosa and Yañez Opinion by Chief Justice Seerden This is an accelerated appeal from the trial court's entry of a temporary injunction. Tex. Civ. Prac. & Rem. Code Ann. 51.014(4) (Vernon 1998). By three issues, Texson Management Group, Inc., appellant, challenges several substantive bases upon which the injunction was issued. Specifically, Texson contends that by granting the injunction, the trial court: (1) abused its discretion because the injunction alters the status quo; (2) incorrectly applied the law to undisputed facts by enforcing a void zoning action; and (3) enforced a zoning action which violates its due process rights. We affirm the injunction. Facts On August 20, 1997, Texson Management Group, Inc. ("Texson"), filed an application for a conditional use permit with the City of Weslaco ("City") pursuant to Weslaco Municipal Ordinance number 76-4, as amended (the "Ordinance"). On its application, Texson stated its purpose in seeking the permit was to open and operate what it termed a "residential transitional treatment center." This essentially means the facility would serve as a "Halfway House." The Ordinance The Ordinance provides the City with a means of permitting certain businesses to operate in parts of the City without regard to existing zoning ordinances. Certain uses are strictly defined as conditional, including "Mental, Drug, or Alcohol Group Therapy Centers." The ordinance provides the City Commission with the power to impose restrictions upon the use for which the permit is sought. The ordinance sets out a specific procedure by which a permit may be granted, but does not provide a specific procedure by which a permit may be revoked or terminated. Approval of the Permit Pursuant to the Ordinance, several public hearings were held prior to granting Texson's application. On September 17, 1997, after public notice had been given, the Planning and Zoning Commission held its first hearing. The record reflects that John Bonner, President and Chairman of the Board for Texson, testified that Texson operated "substance abuse treatment facilities." He did not elaborate on the types of offenders the facility would house. A second hearing was held before the City Commission on October 7, 1997. Bonner stated that Texson's service was treating individuals with substance abuse problems. At the close of all statements, a motion was made to grant the conditional use permit: for the purpose of establishing a facility to serve as a community residential and/or residential outpatient facility for substance abuse treatment programs and house offenders released on community supervision "parole" or mandatory supervision and referred by the Community Supervision and Corrections Department and/or the Texas Department of Criminal Justice. The motion carried unanimously and the permit was granted with the above stipulation of purpose. On October 8, 1997, Juan Ortiz, Senior Planner in the Planning Department for the City, sent a letter to Texson which stated: This is to advise you that the City Commission of Weslaco met at their regular meeting Tuesday October 07, 1997 to consider your request for a conditional use permit . . . within the limits of the City of Weslaco. The City Commission approved your request. There is no evidence in the record, however, that any other physical document evidencing such a permit ever existed. The Controversy Texson's facility opened in December of 1997. By June of 1998, concerns arose over the fact that several sex offenders were housed in the facility. On July 7, 1998, Bonner appeared before the City Commission again to discuss this problem during a public hearing. The minutes of the meeting reflect that Bonner provided a profile of the residents in the facility. He stated the facility's capacity was one hundred residents. When asked if the facility housed sex offenders, Bonner replied that, as of that date, four individuals with sex offender backgrounds were present, but that those individuals were to be transferred as soon as possible. Bonner further stated that until the facility received an individual, management had no knowledge of the nature of the individual's offense. He pointed out that most of the sex offenders were not sent to the facility on a sex offense charge. On February 2, 1999, the City Commission held another public meeting on the matter. The minutes of the meeting summarize Bonner's presentation as follows: He stated the facility was not a halfway house, but a transitional treatment center. Mr. Bonner stated in their written presentation to the City Commission they had specifically indicated that the facility was community residential that would provide substance abuse programs. . . . Mr. Bonner indicated during their previous presentation they had notified the City Commission that the state made the assignments of the residents and they did not have any control of the type of residents that were sent to their facility. He stated the issue was the sex offenders and only a few were at the facility. . . . He assured the Commission that . . . they never had fifty (50) sex offenders at the facility. Mr. Bonner stated they had provided services to over 600 residents since their opening in December, 1997 and less than 10% had a background of some type of sexual offense . . . . He pointed out that sex offenders were not allowed outside the facility without staff's supervision. On February 12, 1999 a notice of a regular meeting of the Weslaco City Commission was again posted. Among the items on the agenda for that meeting was "Reconsideration and review of the conditional use permit for the Halfway House. . . . Possible action." At the subsequent meeting, held on February 16,1999, Ramon Vela, Weslaco City Attorney, stated that he had met with counsel for Texson and that it appeared the issue "would be resolved." Another notice was posted prior to the March 2, 1999 meeting of the City Commission. The agenda again noted that the conditional use permit for the "Halfway House" would be reconsidered and reviewed with the possibility of some action. At this meeting, the Commission decided to cease the operation of the Texson facility by August 31, 1999. Vela stated that Texson management had confirmed that they would vacate the facility by that date. However, the item was tabled before a vote on the motion was taken. On March 16, 1999, the City Commission again considered revoking the conditional use permit. After a brief discussion, the Commission unanimously passed a motion revoking the permit. The Temporary Injunction On September 13, 1999, the City filed its original petition for declaratory judgment and for temporary and permanent injunctions. In addition to reciting the actions taken by the City described above, the petition includes a statement that Texson had informed the City on August 31, 1999, that it had been unable to find an alternative activity for its property and thus, was not going to stop operations. The factual recitation concludes with a statement that Texson continues to operate its facility without a viable conditional use permit and with full knowledge that it no longer has such a permit. On the same day, the trial court granted a temporary restraining order which restrained Texson from operation of a "Community Residential Facility" for substance abuse treatment programs within the City. The order set a hearing for September 23, 1999 on the temporary injunction. On that morning, Texson filed a brief in opposition to the City's request for temporary injunction and in support of its own request for temporary restraining order and/or temporary injunction. Texson argued that the City failed to give adequate notice of its intent to revoke the permit and that necessary procedures were not followed in revoking the permit, thus making the City's action void. Moreover, Texson contended that it had not received adequate notice of the meeting to revoke the permit and, as such, that it had been denied due process in light of the fact that it had undertaken a multi-year lease on the subject property with annual lease payments of $60,000, and had spent approximately $567,000 to renovate an otherwise unuseable building. Texson also alleged that the relief sought in the injunction, closure of the facility, subverted the status quo rather than preserving it. The court took evidence from several witnesses. Juan Ortiz, the City Planning Director, testified that, at the public hearings on October 7, 1997 and July 7, 1998, the issue of housing sex offenders was a major concern. He stated that the motion to grant the permit, made on October 7, 1997, did not include the authority for Texson to house sex offenders. The Mayor of Weslaco, Gene Braught, testified that it was his understanding, based on Bonner's representations, that the permit was issued only to house substance abuse treatment residents. Braught articulated that the permit was revoked on March 16, 1999 because Texson had not complied with the conditions that the City Commission had set inasmuch as the facility housed sex offenders. Bob Davis, a realtor and owner of/or partner in properties on three sides of the Texson facility, testified that women in his office were afraid to be alone after reports surfaced that a former resident of the Texson facility had allegedly raped a four-year-old girl. James Lauderdale, a nearby business owner, stated that he believed his property has been significantly devalued by the presence of the facility. Chief Juan Martinez of the Weslaco Police Department testified that sex offenders are required to register with his office when they move into Weslaco. He stated that from the time the Texson facility opened, fifty-seven sex offenders living in that facility had registered in his office. Martinez stated that since sex offenders have been registering, a total of 105 had registered in his office. Martinez also corroborated the alleged rape of the four-year-old by a former resident of the facility. Finally, Bonner testified. He recalled that the issue of sex offenders had come up at the pre-approval public hearings. Bonner stated that at the hearings, "a member of the Texas Department of Criminal Justice [stated] that there could be sex offenders located at this facility." Bonner acknowledged that nothing in the minutes of the public hearings reflects any discussion of housing sex offenders at the facility. After hearing this testimony and receiving into evidence, without objection, the minutes of all relevant meetings, the trial court granted the temporary injunction. The Appeal We note that the order granting the temporary injunction does not include a provision for a trial date. Neither party raises this defect in its brief. Both sides stated at oral argument that the lack of a trial setting could readily be cured by the trial court. As a practical matter, Texson concedes that, for all practical purposes, no additional evidence will be presented at a hearing on a permanent injunction and that the facts and law have essentially been developed. As such, we conclude the existing order is temporary only in designation. By its second issue, Texson contends that in granting the temporary injunction, the trial court incorrectly applied the law to undisputed facts by enforcing a municipal zoning action that is allegedly void under state law. Texson argues that conditional use permits constitute zoning regulations and that state law specifies a mandatory procedure for the amendment, repeal, or other change of a zoning regulation. See Tex. Loc. Gov't Code Ann. 211.002, 006-007 (Vernon 1998). Texson argues that because certain elements of this procedure were not followed, the action to revoke the permit is void. Similarly, by its third issue, Texson contends that by granting the injunction, the trial court has enforced the revocation of its conditional use permit in violation of Texson's vested rights to the property and its use. A city's adoption and amendment of a zoning ordinance is an exercise of its legislative power. Thompson v. City of Palestine, 510 S.W.2d 579, 581 (Tex. 1974). An amendment of any ordinance is accomplished by the ratification of some legal document which defines the term of such an amendment. See Sherwood Lanes, Inc. v. City of San Angelo, 511 S.W.2d 597, 598 (Tex. Civ. App.--Austin 1974, writ ref'd n.r.e.) (grant of specific use permit accomplished by enacting ordinance); City of Lubbock v. Whitacre, 414 S.W.2d 497, 499 (Tex. Civ. App.--Amarillo 1967, writ ref'd n.r.e.) (same). Our review of the record reveals no legal document which purports to amend the comprehensive zoning ordinance of the City of Weslaco. Rather, the record includes a letter which states that the permit which Texson sought had been granted. This letter does not state with any specificity the terms of the permit. Such informal procedures indicate to us that the City's practice is akin to the grant of a use, rather than an amendment of the comprehensive zoning ordinance. Additionally, a city is vested with broad discretion to exercise its police power to promote "the public health, safety, morals, or general welfare" of the community. Tex. Loc. Gov't Code Ann. 211.001 (Vernon 1998). It is well-settled that a city can amend zoning ordinances as public necessity demands, under the auspices of its police power, and by so doing, may eliminate almost any existing use. See City of Pharr v.Tippitt, 616 S.W.2d 173, 176 (Tex. 1981); City of Univ. Park v. Benners, 485 S.W.2d 773, 778 (Tex. 1972); Williamson Pointe Venture v. City of Austin, 912 S.W.2d 340, 343 (Tex. App.--Austin 1995, no writ). In order to show that an exercise of the police power was not lawful, Texson "was under the burden of showing that no conclusive, or even fairly issuable facts or conditions exist in support of that exercise." Benners, 485 S.W.2d at 779. It is evident from the record that the City, based on the alleged rape of a young girl by a man associated with the Texson facility and the other objections of citizens to the housing of sex offenders in the facility, has sought to eradicate the danger associated with the facility. The City's action was a permissible exercise of its police power. Moreover, contrary to Texson's third issue, "no property owner has a vested interest in particular zoning categories." Williamson Pointe Venture, 912 S.W.2d at 343 (emphasis supplied) (citing City of Pharr, 616 S.W.2d at 176)). Otherwise, "a lawful exercise of the police power by the governing body would be precluded." Benners, 485 S.W.2d at 778. Texson cites us to no authority, and we find none, which suggests otherwise. Contrary to its assertions, furthermore, Texson was not deprived of notice of the City's intent to revoke the permit. The record clearly shows that the City Commission considered this issue at a series of public meetings and that prior to each of these meetings, notice was posted that the issue would be considered and that action might be taken. We are not called upon in this case to decide what, if any, liability the City may have in connection with the revocation of the permit and express no opinion on the subject. Thus, we find that the City validly revoked Texson's conditional use permit. Accordingly, we overrule Texson's second and third issues. By its first issue, Texson contends that the injunction does not maintain the status quo. The status quo to be preserved is "the last, actual, peaceable, uncontested status that preceded the controversy." State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975); AIG Risk Mgmt., Inc. v. Motel 6 Operating L.P., 960 S.W.2d 301, 309 (Tex. App.--Corpus Christi 1997, no pet.). After reviewing the record, it is clear that Texson knew about the City's action in March, 1999, and had agreed to vacate the premises by August 31, 1999. Texson never complained about the validity of the City's action until it became final, and then, Texson simply chose to ignore the action, rather than contesting it. Had Texson wanted to maintain its continued operation of the facility as the status quo, it could have and should have sought its own injunctive relief. Not having done so, Texson cannot now complain of an otherwise uncontested action taken almost six months earlier. Texson's first issue is overruled. The order of the trial court is AFFIRMED. __________________________________ ROBERT J. SEERDEN, Chief Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this 23rd day of March, 2000.