     Case: 09-20306    Document: 00511092587         Page: 1    Date Filed: 04/27/2010




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                          April 27, 2010
                                     No. 09-20306
                                                                         Lyle W. Cayce
                                                                              Clerk
WEINGARTEN REALTY INVESTORS,

                                                 Plaintiff – Appellee

v.

MR. RON SILVIA; MR. DAVID RUESINK; MS. LYNN MCILHANEY; MAYOR
BEN WHITE,

                                                 Defendants – Appellants


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-3390


Before DAVIS, WIENER, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Weingarten Realty Investors filed suit against the City of College Station,
Texas, its city council members, and its mayor alleging several causes of action,
including tortious interference with a contract.            The Defendants moved to
dismiss the complaint based on legislative and sovereign immunity. The motion
was denied. The Defendants filed an interlocutory appeal of this denial to the
extent that it applies to the tortious interference claim. We agree that the
claimed immunity applies. We REVERSE and REMAND.

*
 Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                           STATEMENT OF FACTS
      In 2006, Weingarten Realty Investors purchased an undeveloped seventy-
acre plot of land in College Station, Texas with the intention of developing the
area into commercial retail property. At the time of the purchase, the property
was not zoned for commercial development. It was listed, though, as commercial
property on the City’s Comprehensive Plan for future land use, a plan on which
Weingarten claims it relied.
      After the purchase, Weingarten filed an application with the City Council
to have approximately forty-eight acres of the property rezoned as general
commercial property. At about the same time, Weingarten allegedly began to
negotiate to sell or lease sections of the property to commercial retailers.
      Prior to voting on Weingarten’s rezoning application, the City Council
received recommendations from the City’s Planning & Zoning Commission
(“Commission”) and from the City’s Acting Director of Planning & Development
Services. The Commission recommended denying the rezoning request, while
the Acting Director recommended approval. After a public hearing during which
many local residents voiced their opposition to Weingarten’s rezoning proposal,
the City Council voted to deny the rezoning application.
      Several months later, Weingarten filed a second application with the City
Council. This time, Weingarten requested that only sixteen acres be rezoned as
general commercial property. The Commission voted to wait for the City to
complete a traffic study of the area before making its recommendation on the
rezoning. A year later, the Commission still had not made a recommendation
on the proposal. Weingarten decided to bring suit.




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      In 2008, Weingarten filed a lawsuit in the United States District Court for
the Southern District of Texas. Weingarten claimed that the City Council and
former mayor tortiously interfered with a contract.       It alleged that these
individuals frustrated its contracts with several large commercial retailers that
had conditionally agreed to purchase or lease sections of the property. The
Defendants moved to dismiss Weingarten’s claims based both on legislative and
sovereign immunity.
      At the parties’ request, the proceedings were stayed to allow for
consideration of Weingarten’s still-pending second rezoning application. After
holding a second public hearing, the Commission voted four to two to recommend
that the City Council deny the rezoning application. The City Council, though,
voted to approve Weingarten’s application, but with restrictions to accommodate
traffic concerns. Weingarten claims these restrictions are so severe that no
commercial developer would agree to build on the property.
      The stay was then lifted, and Weingarten proceeded with its lawsuit.
Thereafter, the district court issued a single-sentence order denying the
Defendants’ motion to dismiss in its entirety.      The individuals named as
Defendants then filed this interlocutory appeal.     They seek reversal of the
district court’s order only to the extent that it declined to apply legislative
immunity and sovereign immunity to the tortious interference claims.
                                 DISCUSSION
      A district court’s refusal to dismiss on the basis of immunity is reviewed
de novo. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252 (5th Cir. 2005).
      In Texas, “individuals acting in a legislative capacity are immune from
liability for those actions.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d


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150, 157 (Tex. 2004) (citation omitted). This immunity applies to city council
members who are performing “legitimate legislative functions.” Id. (citations
omitted). A defendant’s actions are legislative and protected by legislative
immunity if they reflect “a discretionary, policymaking decision of general
application, rather than an individualized decision based upon particular facts.”
In re Perry, 60 S.W.3d 857, 860 (Tex. 2001) (citations omitted).
      To determine whether a particular action is legislative rather than
administrative, two tests operate as guidelines:
      The first test focuses on the nature of the facts used to reach the
      given decision. If the underlying facts on which the decision is
      based are “legislative facts,” such as “generalizations concerning a
      policy or state of affairs,” then the decision is legislative. If the facts
      used in the decisionmaking are more specific, such as those that
      relate to particular individuals or situations, then the decision is
      administrative. The second test focuses on the “particularity of the
      impact of the state action.” If the action involves establishment of
      a general policy, it is legislative; if the action single[s] out specific
      individuals and affect[s] them differently from others, it is
      administrative.

Bryan v. City of Madison, Miss., 213 F.3d 267, 273 (5th Cir. 2000) (quoting
Cuttig v. Muzzey, 724 F.2d 259, 261 (1st Cir. 1984) (alterations in original)). The
defendant bears the burden of demonstrating that the actions were “functionally
legislative.” Lopez v. Trevino, 2 S.W.3d 472, 473 (Tex. App.—San Antonio 1999).
      Weingarten claims that this is not a zoning case in which the Defendants
would be entitled to legislative immunity. Rather, Weingarten argues that the
Defendants acted administratively, not legislatively, when they first voted to
deny the rezoning and then voted to approve it only with severe restrictions.
Weingarten argues that the Defendants’ actions were not taken to establish a


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general zoning policy. Instead, they singled out Weingarten and thwarted its
efforts to develop the property as it wished.
      This case is about zoning. The zoning decision affected contracts and had
other ramifications, but the Defendants’ actions were legislative. Both this court
and Texas state courts have held that zoning is generally a legislative activity.
See, e.g., Bryan, 213 F.3d at 273-74; Weatherford v. City of San Marcos, Tex.,
157 S.W.3d 473, 480-88 (Tex. App.—Austin 2004). The rezoning decision would
fail to satisfy either Weingarten or the residents who did not want a large
commercial development in their backyards. The freedom to make politically-
charged legislative decisions like this is why legislative immunity exists. See
generally Tenney v. Brandhove, 341 U.S. 367 (1951) (detailing the history of
legislative immunity in England, the Colonies, and the United States).
      Zoning decisions are legitimate legislative functions protected by
legislative immunity. This is true even though the City’s Comprehensive Plan
listed the property as an area that would “support large commercial retail use.”
While a city’s zoning regulations “must be adopted in accordance with a
comprehensive plan,” Tex. Local Gov’t Code § 211.004(a), it does not follow that
the comprehensive plan dictates that a city council must approve every rezoning
application that seeks to have certain property zoned in accordance with the
comprehensive plan.      If a city council were required to do so, then a
comprehensive plan would become a de facto set of zoning regulations for the
city. On the contrary, comprehensive plans in Texas must bear the following
statement: “A comprehensive plan shall not constitute zoning regulations or
establish zoning district boundaries.” Id. § 213.005 (emphasis added). Even if
the Defendants are precluded from rezoning the property in a manner that


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directly contradicts the Comprehensive Plan, we have been shown no authority
suggesting that the Defendants must approve an application to rezone the
property in a manner consistent with the Comprehensive Plan.
       The Defendants’ actions were legislative in nature. Therefore, we hold the
Defendants are entitled to absolute legislative immunity.1 We REVERSE the
district court’s order and REMAND for further proceedings consistent with this
opinion.




1
       Since the Defendants are entitled to absolute legislative immunity, we need not address
the issue of whether the Defendants are also entitled to sovereign immunity under the Texas
Tort Claims Act.

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