In a memorandum opinion authored by Justice Tijerina, the Corpus Christi Court of Appeals has affirmed a Bexar County district court’s denial of the City of San Antonio’s plea to the jurisdiction in a suit brought by the owners of a cement batching plant. The City sought dismissal on the basis that the owners failed to exhaust administrative remedies and that the district court had no jurisdiction to stay the criminal and civil administrative orders of another court (i.e., San Antonio municipal court).

The case, Board of Adjustments for the City of San Antonio and the City of San Antonio v. Arturo and Elizabeth Lopez(No. 13-20-00199-CV), arose from zoning changes and subsequent decisions by the city and the board of adjustment (BOA) that made it impossible for the Lopezes to operate their business, which commenced in 1995, one year prior to the property’s annexation by the city. In 2003, the city issued the Lopezes a certificate of occupancy to continue operating the business, followed in 2004 by a grant of non-conforming use rights. In 2018, however, the city issued the Lopezes more than 200 citations for alleged violations related to the floodplain on the property. In June of that year, the city revoked the Lopezes’ non-conforming use permit and COO and ordered the Lopezes to cease doing business on the property. When the Lopezes applied for new permits, the city denied them. In December 2018 the Lopezes appeard before the BOA to contest the city’s action. When the BOA denied their protest, the Lopezes, as required by the Local Government Code, timely filed a writ of certiorari (an unusual proceeding) in district court. As part of that proceeding, the Lopezes alleged inverse condemnation and unconstitutional taking without just compensation and sought injunctive relief to keep their business open and stop prosecution of the civil and criminal violations. At the same time, they filed an application for rezoning the property, and the city granted a temporary COO pending that process. Ultimately, the city denied rezoning in February 2020, at which time the Lopezes asked the court for a TRO and temporary injunction alleging irreparable harm from the city’s action.

The city filed a plea to the jurisdiction, alleging that the Lopezes failed to exhaust their administrative remedies when they did not fully pursue rezoning, thus rendering litigation of the non-conforming use issue premature. Under the writ of certiorari process prescribed by §211.011, Local Government Code, an aggrieved property owner must present a verified petition to the district court within 10 days after the BOA’s decision is filed (the Lopezes did that here). The court may then grant the writ directed to the BOA, which must review its decision and make a verified return to the court stating the pertinent facts that show the grounds of its decision. As the court of appeals noted, the statute provides that the only way a property owner can obtain review of a BOA decision is by the writ of certiorari process, which must be initiated within the 10-day period. Under the city’s argument regarding rezoning, the Lopezes would have lost that opportunity. The court thus rejected the city’s argument.

With respect to the unlawful taking claim, the city made the same exhaustion argument. Citing authority from the San Antonio Court of Appeals, Justice Tijerina determined that a trial court could hear constitutional violations even when other claims are dismissed for failure to exhaust administrative remedies, such as the rezoning process in this case. Regardless, the Lopezes exhausted the administrative remedy prescribed by §211.011, mooting the city’s contention. Finally, the court of appeals disagreed with the city’s argument that the trial court did not have jurisdiction to stay another court’s docket of criminal and civil administrative cases. Here Justice Tijerina relied on State v. Morales, 869 S.W.2d 941 (Tex. 1994), which held that a civil court has jurisdiction over the constitutionality of the enforcement of a criminal statute when: (1) there is evidence that the statute is being unconstitutionally applied by rule, policy, or other noncriminal means subject to the court’s equity power; and (2) such enforcement threatens irreparable injury to a vested property or personal right. He found both prongs of the test satisfied: the Lopezes presented evidence that the city’s application of its ordinances raised constitutional issues and that enforcement of the ordinances was causing and would cause irreparable injury because they deprived the Lopezes of their business with no recourse. The trial court’s stay of the municipal court’s enforcement of the cited violations was thus proper.

This case strikes us as a good example of what happens when a local government comes down with a too-heavy hand on someone who proves willing to take up the matter in court (where others might have given in). Thanks to the Corpus Christi court’s decision, the city will either have to reconsider its actions to put the Lopezes out of business or try to prove how they can do that without justly compensating them.

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