                                                                                       ACCEPTED
                                                                                   03-15-00259-CV
                                                                                           5660212
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                              6/12/2015 2:50:55 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK



                         No. 03-15-00259-CV                       FILED IN
                                                           3rd COURT OF APPEALS
                                                                AUSTIN, TEXAS
                              IN THE                       6/15/2015 11:05:55 AM
                    THIRD COURT OF APPEALS                     JEFFREY D. KYLE
                                                                    Clerk
                          AUSTIN, TEXAS
__________________________________________________________________

                               BECKY, LTD.,
                                         Becky

                                    V.

THE CITY OF CEDAR PARK, STEPHEN THOMAS, MATT POWELL, MITCH
FULLER, LYLE GRIMES, LOWELL MOORE, JON LUX, AND DON TRACY,
                                     Appellees
__________________________________________________________________

                       ON APPEAL FROM THE
                 126TH JUDICIAL DISTRICT COURT,
                      TRAVIS COUNTY, TEXAS
__________________________________________________________________

                      BRIEF OF APPELLANT
__________________________________________________________________

 ELIZABETH G. BLOCH                      LEONARD B. SMITH
 State Bar No. 02495500                  State Bar No. 18643100
 Heidi.bloch@huschblackwell.com          lsmith@leonardsmithlaw.com
 Husch Blackwell LLP                     P.O. Box 684633
 111 Congress, Suite 1400                Austin, Texas 78768
 Austin, Texas 78701                     (512) 914-3732
 (512) 472-5456                          (512) 532-6446 (fax)
 (512) 479-1101 (fax)
                                         Attorneys for Becky, Ltd.


                         ORAL ARGUMENT REQUESTED


AUS-6109557-4 521106/1
                           INTERESTED PARTIES


APPELLANT:                                 ATTORNEYS FOR APPELLANT:

Becky, Ltd. (“Becky”)                      Elizabeth G. Bloch
                                           Husch Blackwell LLP
                                           111 Congress, Suite 1400
                                           Austin, Texas 78701

                                           Leonard B. Smith
                                           P.O. Box 684633
                                           Austin, Texas 78768


APPELLEES:                                 ATTORNEYS FOR APPELLEES:

The City of Cedar Park (the “City”),       Cobby Caputo
Stephen Thomas, Matt Powell,               Bradley B. Young
Mitch Fuller, Lyle Grimes, Lowell          Bickerstaff Health Delgado Acosta LLP
Moore, Jon Lux, and Don Tracy              3711 South MoPac Expressway
(the “City Council”), collectively         Building One, Suite 300
referred to as “Appellees.”                Austin, Texas 78746


ADDITIONAL PARTY BELOW:                    ATTORNEYS FOR ADDITIONAL
                                           PARTY BELOW:

Milestone Community Builders, LLC          Andrew F. York
(“Milestone”), a party to the              Armbrust & Brown, PLLC
proceeding below prior to severance.       100 Congress Avenue, Suite 1300
                                           Austin, Texas 78701




                                       i
AUS-6109557-4 521106/1
                                       TABLE OF CONTENTS
INTERESTED PARTIES .......................................................................................... i 
TABLE OF CONTENTS .......................................................................................... ii 
INDEX OF AUTHORITIES.................................................................................... iv 
STATEMENT OF THE CASE .............................................................................. viii 
STATEMENT REGARDING ORAL ARGUMENT ............................................. ix 
ISSUES PRESENTED...............................................................................................x 
STATEMENT OF FACTS ........................................................................................1 
SUMMARY OF THE ARGUMENT ........................................................................5 
ARGUMENT AND AUTHORITIES ........................................................................6 
        I.       Standard of review.................................................................................6 
        II.      Becky’s allegations................................................................................7 
                 A.       The City Council’s versus the Planning Commission’s
                          authority. .....................................................................................8 
                 B.       The City Council has no authority to grant a waiver or
                          variance to its Subdivision Ordinances. ....................................10 
        III.     Appellees cannot claim governmental immunity from suit. ...............12
                 A.       Because Becky’s claims fall within the ultra vires
                          exception to governmental immunity, Becky’s claims
                          against City officials are not barred. . .......................................12
                 B.       Because Becky is seeking declaratory relief for
                          interpretation of municipal ordinances, governmental
                          immunity does not bar Becky’s claims against the City. .........12
        IV.      Becky’s concrete and particularized injuries that resulted from
                 the City’s ultra vires actions give Becky standing to bring suit
                 for declaratory relief. ...........................................................................19
        V.       The facts of Becky’s case are sufficiently developed so that
                 Becky is presenting the court with a justiciable controversy that
                 is ripe for adjudication.........................................................................24 
        VI.      Becky’s claims are not moot because nothing has occurred
                 while this litigation has been pending that would divest Becky
                 of its interest in the claim. ...................................................................25 



                                                           ii
CONCLUSION ........................................................................................................28 
CERTIFICATE OF COMPLIANCE .......................................................................29 
CERTIFICATE OF SERVICE ................................................................................29 
APPENDIX ..............................................................................................................30 




                                                           iii
                                         INDEX OF AUTHORITIES
                                                FEDERAL CASES
Hunt v. Washington State Apple Advertising Commission,
   432 U.S. 333 (1977) ...........................................................................................22
                                                   STATE CASES
Bland Independent Sch. District v. Blue,
   34 S.W.3d 547 (Tex. 2000)..............................................................................6, 7
Brewster v. Roicki,
   No. 04-14-00414-CV, 2015 WL 2255145 (Tex. App.—San Antonio
   May 13, 2015) .....................................................................................................14
Brown v. Todd,
   53 S.W.2d 297 (Tex. 2001)................................................................................19
City of Cedar Park. Texas Department of Transp. v. Sefzik,
    355 S.W.3d 618 (Tex. 2011) .............................................................................18
City of Corpus Christi v. Unitarian Church of Corpus Christi,
    436 S.W.2d 923 (Tex. Civ. App.—Corpus Christi 1968, writ ref’d
   n.r.e.) .....................................................................................................................8
City of El Paso v. Heinrich,
    284 S.W.3d 366 (Tex. 2009) ................................................................ 12, 13, 18
City of Laredo v. Rio Grande H20 Guardian,
    No. 04-10-00872-CV, 2011 WL 3122205 (Tex. App.—San Antonio
   July 27, 2011)......................................................................................................22
City of New Braunfels v. Tovar,
    No. 03-14-00693-CV, 2015 WL 2183479 (Tex. App.—Austin May 7,
   2015) ............................................................................................................ 15, 16
Cobb v. Harrington,
   190 S.W.2d 709 (Tex. 1945) .............................................................................13
Cokins v. City of Lakeway,
   No. 03-12-00083-CV (Tex. App.—Austin, July 25, 2013, no pet.)....................7
Creedmoor-Maha Water Supply Corp. v. Texas Commission on
  Environmental Quality,
   307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.) .........................................14
DaimlerChrysler Corp. v. Inman,
   252 S.W.3d 299 (Tex. 2008) .............................................................................19



                                                               iv
Federal Sign v. Texas Southern University,
   951 S.W.2d 401 (Tex. 1997) .............................................................................12
Finance Commission of Texas v. Norwood,
   418 S.W.3d 566 (Tex. 2013) .............................................................................21
Heckman v. Williamson Cnty.,
   369 S.W.3d 137 (Tex. 2012) ............................................................ 6, 19, 25, 26
Hendee v. Dewhurst,
   228 S.W.3d 354 (Tex. App.—Austin 2007, pet. denied) ..................................14
In re Gruebel,
    153 S.W.3d 686 (Tex. App.—Tyler 2005, pet. denied) ....................................26
In re Sanchez,
    81 S.W.3d 794 (Tex. 2002)..................................................................................9
Lone Star College Sys. v. Immigration Reform Coalition of Texas,
   (IRCOT), 418, 271 .............................................................................................18
Meeker v. Tarrant County College District,
   317 S.W.3d 754 (Tex. 2010) .............................................................................26
Mission Consolidated I.S.D. v. Garcia,
   372 S.W.3e 629 (Tex. 2012) ................................................................................7
National Collegiate Athletic Association v. Jones,
   1 S.W.3d 83 (Tex. 1999)....................................................................................25
Perry v. Del Rio,
   66 S.W.3d 239 (Tex. 2001)................................................................................24
Quick v. City of Austin,
   7 S.W.3d 109 (Tex. 1999)..............................................................................8, 27
Robinson v. Parker,
   353 S.W.3d 753 (Tex. 2011) .............................................................................24
Save Our Springs Alliance, Inc. v. City of Austin,
   149 S.W.3d 674 (Tex. App.—Austin 2004, no pet.) .........................................26
Save Our Springs Alliance, Inc. v. City of Dripping Springs,
   304 S.W.3d 871 (Tex. App.—Austin 2010, pet. denied) ..................................23
Southwestern Bell Telephone, L.P. v. Emmett,
   No. 13-0584, 2015 WL 1285326 (Tex. March 20, 2015) .................... 14, 15, 16
State v. Gibson Products Co., Inc.,
    699 S.W.2d 640 (Tex. App.—Waco 1985) .......................................................26



                                                         v
Stop the Ordinances Please v. City of New Braunfels,
    306 S.W.3d 919 (Tex. App.—Austin 2010, no pet.) .........................................20
Texas A&M University-Kingsville v. Yarbrough,
   347 S.W.3d 289 (Tex. 2011) .............................................................................26
Texas Department of Parks & Wildlife v. Miranda,
   133 S.W.3d 217 (Tex. 2004) ...........................................................................6, 7
Texas Department of State Health Services v. Balquinta,
   429 S.W.3d 726 (Tex. App.—Austin 2014, pet. dism’d) ..................................22
Texas Department of Transp. v. Sefzik,
   355 S.W.3d 618 (Tex. 2011) .............................................................................18
Texas Department of Transp. v. Sunset Transp., Inc.,
   357 S.W.3d 691 (Tex. App.—Austin 2011, no pet.) .........................................14
Texas Lottery Comm'n v. First State Bank of DeQueen,
   325 S.W.3d 366 (Tex. 2009) .............................................................................18
Texas Nat. Reserve Conservation Commission v. IT-Davy,
   74 S.W.3d 849 (Tex. 2002)...................................................................... 6, 12, 18
V.E. Corp. v. Ernst & Young,
   860 S.W.2d 83 (Tex. 1993)................................................................................26
Waco Independent Sch. District v. Gibson,
  22 S.W.3d 849 (Tex. 2000)................................................................................24
Westbrook v. Penley,
   231 S.W.3d 389 (Tex. 2007) ...............................................................................6
Williams v. Lara,
    52 S.W.3d 171 (Tex. 2001)......................................................................... 19, 26
                                  STATUTORY AUTHORITIES
TEX. CONST, ART. XI § 5. ...........................................................................................8
TEX. CIV. PRAC. & REM. CODE § 37.002(b)...................................................... 17, 18
TEX. CIV. PRAC. & REM. CODE § 37.006(b).............................................................18
                                           MISCELLANEOUS
City of Cedar Park Charter § 7.04 .............................................................................9
City of Cedar Park Charter § 7.04(a) .......................................................................16




                                                         vi
City of Cedar Park Code of Ordinances § 12.03.004(a) ................................... 10, 18
City of Cedar Park Code of Ordinances § 12.03.004(b)................................... 10, 16
City of Cedar Park Code of Ordinances § 12.03.006 ..............................................18
City of Cedar Park Code of Ordinances § 12.15.003 ..........................................2, 24
City of Cedar Park Code of Ordinances § 12.15.003(b)............................................2
City of Cedar Park Code of Ordinances § 12.15.003(c) ............................... 2, 11, 18
City of Cedar Park Code of Ordinances § 12.15.003(c)(1) .....................................11
City of Cedar Park Code of Ordinances § 12.15.003(d)......................................2, 11
City of Cedar Park Code of Ordinances § 12.15.006(a) ..........................................16




                                               vii
                             STATEMENT OF THE CASE
Nature of Case:               Becky, the owner of land that abuts a tract owned by
                              Milestone Community Builders, LLC (“Milestone”),
                              challenges the City’s authority to grant Milestone
                              variances to the subdivision infrastructure requirements
                              in the City’s subdivision ordinances through a contract
                              with Milestone.

Trial Court:                  The Honorable Tim Sulak of the 353rd Judicial District
                              Court, Travis County, Texas.

Trial Court’s Actions:        Judge Sulak granted Appellees’ plea to the jurisdiction
                              by order dated December 23, 2014 (I CR 244 1; Appendix
                              A), and denied Milestone’s plea to the jurisdiction by
                              order dated February 25, 2015 (II CR 6; Appendix B).
                              The December 2014 order became final upon severance
                              of Becky’s claims against Appellees from its claims
                              against Milestone on April 29, 2015 (II CR 23; Appendix
                              C). Becky’s claims against Milestone remain pending
                              and abated in the severed action until completion of this
                              appeal.

Related Action:               Becky previously filed a premature appeal in Case No.
                              03-15-00071-CV, incorrectly believing the order granting
                              Appellees’ plea to the jurisdiction to be a final order.
                              Becky voluntarily dismissed that appeal.




1
 The clerk’s record in the prior appeal was transferred into this case on May 6, 2015, and will be
designated as “I CR.” A second clerk’s record was filed on June 10, 2015, and will be designated
as “II CR.”



                                               viii
               STATEMENT REGARDING ORAL ARGUMENT
      Becky requests oral argument as it would assist this Court in understanding

the facts and allegations of the parties and in analyzing the various possible

grounds for the trial court’s ruling.




                                        ix
                            ISSUES PRESENTED
1.    Does governmental immunity bar Becky’s claims against the individual City
Council members when those officials acted without legal authority, placing their
action within the ultra vires exception to governmental immunity?

2.     Does governmental immunity bar Becky’s claims for declaratory relief
against the City for interpretation of municipal ordinances if the Uniform
Declaratory Judgment Act has waived immunity by requiring that the City be made
a party?

3.     Does Becky have standing to assert its claims, having alleged that it was
personally aggrieved by Appellees’ action and has suffered concrete and
particularized harm?

4.    Are Becky’s claims ripe for adjudication if Becky’s injuries are both
presently concrete and sufficiently imminent due to Appellees’ past failure to
require timely completion of necessary subdivision infrastructure improvements?

5.     Are Becky’s claims moot even though no subsequent change in the law or
nullifying event has occurred to affect the controversy giving rise to Becky’s
claims?




                                       x
                             STATEMENT OF FACTS
         Becky owns a 13.49-acre tract of land in Williamson County just to the

northwest of a 37.59-acre tract owned by Milestone. Milestone’s tract includes a

road extension contemplated by the City—Old Mill Road—that would connect

Milestone’s and adjacent tracts to South Lakeline Boulevard, a major roadway.2

The City’s unbuilt but proposed extension of Old Mill Road would provide the

only access to Becky’s tract from South Lakeline Boulevard: 3




         One of a city’s principal obligations is to provide for orderly growth and

development within its corporate limits and extraterritorial jurisdiction. To help


2
    I CR 192.
3
    I CR 210.


                                          1
AUS-6109557-4 521106/1
fund this expense, cities impose a share of the costs of municipal infrastructure

improvements on owners and developers of land such as Milestone. Chapter 212 of

the Local Government Code gives cities regulatory power over the subdivision of

land. Pursuant to this grant of authority, the City has adopted a Subdivision

Ordinance, § 12.01.001 et seq. of the City of Cedar Park Code of Ordinances

(“Subdivision Ordinance”).

      The City’s Subdivision Ordinance provides for a wide variety of subdivision

improvements, whose construction is time sensitive. Section 12.15.003 requires

that for final plat approval, an applicant such as Milestone must either complete all

required subdivision improvements, or alternatively post a bond securing their

completion, in which case the improvements must be completed within “… one (1)

year of the date of final plat approval.” City of Cedar Park Code of Ordinances §§

12.15.003(b) and (c) (Appendix G). Section 12.15.003(d) imposes an automatic

adverse consequence on an applicant who fails to timely complete construction of

subdivision improvements: expiration of the final plat.

      Becky’s claims arise from a Unified Development Agreement (the

“Agreement”) entered into between the City, through the City Council, and

Milestone. The City Council authorized the Agreement on September 12, 2013; the

City’s Planning and Zoning Commission (the “Planning Commission”) approved

Milestone’s final plat on September 17, 2013; and the City executed the




                                         2
Agreement on October 7, 2013.4 That Agreement, contrary to the City’s own

Subdivision Ordinance, exempts Milestone from complying with its requirements,

including the obligation to construct subdivision infrastructure and improvements

such as roadways and utilities within a year from plat approval.

       Specifically, the Agreement requires Milestone to complete “Phase 1” of

Old Mill Road (see map on page 1), without a time deadline, and worse, it does not

require Milestone to complete, timely or otherwise, “Phase 2” of the road.5 This

constitutes a waiver, exemption, or variance from the City’s Subdivision

Ordinance, which requires completion of the subdivision infrastructure within one

year from plat approval. The issue in this case is whether the City Council had

authority to grant Milestone that variance.

       Orderly and timely completion of infrastructure such as roadways is crucial

to continued development, particularly for development of adjoining tracts of land

such as Becky’s, as developed land must have roads that connect with the existing

roadway system. Becky alleged that without the timely completion of Old Mill

Road to the edge of Becky’s property, its property remains landlocked, harming

Becky by hindering its own development and reducing the value of the land or,

alternatively, imposing costs on Becky that should have been borne by Milestone.6


4
  I CR 194.
5
  See I CR 199; Development Agreement at ¶ 3.
6
  I CR 195-96.



                                                3
       Becky brought this suit against both Appellees and Milestone, challenging

the City’s grant of a variance in the Agreement and seeking a declaration of its

rights under the applicable statutes and ordinances. Both Appellees and Milestone

filed pleas to the jurisdiction. Appellees’ plea to the jurisdiction was based on

governmental immunity, standing, mootness, and ripeness.7 Milestone’s plea was

based on standing, mootness, and ripeness.8 In December 2014, the trial court

granted Appellees’ plea to the jurisdiction without specifying which ground it

believed supported the ruling. 9 Becky filed a motion for new trial, including a

request that the court specify the basis for its ruling, pointing out, for example, that

the grounds of mootness and lack of ripeness were mutually exclusive. 10 The trial

court denied the motion and the request for specification. 11

       The trial court then denied Milestone’s plea to the jurisdiction.12 These

inconsistent rulings suggest that the only ground upon which the trial court based

its grant of Appellees’ plea was governmental immunity, since that was the only

ground asserted by Appellees but not Milestone. But because the trial court refused

to specify the basis for its ruling, Becky must address all possible grounds in this

appeal.


7
  I CR 38-47.
8
  I CR 72.
9
  I CR 244.
10
   I CR 245.
11
   I CR 254.
12
   II CR 6.



                                           4
                       SUMMARY OF THE ARGUMENT
      When a plaintiff claims that public officials have acted without authority, i.e.

acted ultra vires, governmental immunity is not implicated and the claim is not

barred. Here, Becky contends that the City Council, having delegated sole

authority to its Planning Commission to approve subdivision plats and grant

variances to the requirements of the City’s Subdivision Ordinance, had no

authority to waive its ordinance requirements or effectively grant a variance to

those requirements through a contract with a private entity. As a party directly and

significantly impacted by the City’s action, Becky has standing to challenge it and

its claims are not moot and are ripe for adjudication.

      Without the ultra vires Agreement, the Old Mill Road extension would have

been built by now, connecting Becky’s tract with South Lakeline Boulevard, or

else Milestone’s plat would have expired. The threat of plat expiration is the

penalty that compels a developer to complete the required infrastructure in a timely

manner. There is good reason why the City’s own ordinances contain strict time

limits for infrastructure completion after plat approval—subdivision development

and the construction of improvements within those subdivisions must be completed

in an orderly and timely fashion. It is the limbo resulting from the ultra vires

Agreement that has harmed and devalued Becky’s property.




                                          5
                      ARGUMENT AND AUTHORITIES
I.    Standard of review.
      At issue is whether the trial court erred in granting Appellees’ plea to the

jurisdiction, a ruling that should be reviewed de novo since whether a court has

subject matter jurisdiction is a question of law. Westbrook v. Penley, 231 S.W.3d

389, 394 (Tex. 2007); Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004); Texas Nat. Res. Conservation Comm’n v. IT-Davy, 74

S.W.3d 849, 855 (Tex. 2002). Appellees’ plea to the jurisdiction here was based on

alleged governmental immunity, lack of standing, lack of ripeness, and mootness.

      When considering a plea to the jurisdiction, courts must focus on the

pleadings. Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). The

question here is whether Becky has alleged facts that affirmatively demonstrate the

court’s jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. Courts are

required to construe the pleadings liberally in favor of the plaintiff, and unless

challenged with evidence, accept all allegations as true and indulge every

reasonable inference and resolve any doubts in favor of the plaintiff, as the

nonmovant. Id. at 226-28.

      When a plea to the jurisdiction challenges the existence of jurisdictional

facts, the trial court may consider evidence and must do so when necessary to

resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 226; Bland Indep.




                                        6
Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). Here, because Appellees’

jurisdictional challenge included evidence, the trial court was authorized to

examine relevant evidence to determine if a fact issue existed. Miranda, 133

S.W.3d at 227. But in recognition of the concept that courts should not consider the

merits of a plaintiff’s case until jurisdictional challenges have been decided, 13 a

trial court cannot grant a plea to the jurisdiction when a fact question regarding the

jurisdictional issue exists. Id. at 227–28. As such, the standard of review of a plea

to the jurisdiction mirrors review of summary judgments, so the question of

“[w]hether a pleader has alleged facts that affirmatively demonstrate a trial court’s

subject matter jurisdiction is a question of law reviewed de novo.” Id. at 226.

II.    Becky’s allegations.
       This Court must decide whether Becky has alleged facts that, if true, invoke

the jurisdiction of the trial court to adjudicate the claims. The merits of Becky’s

claims are not yet at issue.14 It is nonetheless helpful to understand the substance of

Becky’s allegations. In a nutshell, Becky asserts that the City, having delegated

sole authority to the City’s Planning Commission to approve plats and grant

variances, had no authority, through its City Council, to grant a variance to

13
   A “plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat an action
‘without regard whether the claims asserted have merit’.” Mission Consol. I.S.D. v. Garcia, 372
S.W.3e 629, 635 (Tex. 2012) (quoting Bland I.S.D. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)).
14
   Appellees did not move for summary judgment on the merits of Becky’s claims. See Cokins v.
City of Lakeway, No. 03-12-00083-CV (Tex. App.—Austin, July 25, 2013, no pet.) (mem. op.)
(“The City did not file a motion for summary judgment on the merits of the Landowners’ claims,
and therefore we express no opinion about the ultimate merits of those claims.”).



                                              7
Milestone. Without authority, the City Council’s action in granting a variance

through the Agreement was ultra vires, rendering at least that portion of the

Agreement void.

      A.    The City Council’s versus the Planning Commission’s authority.
      The City is a home-rule city. As such, it does not depend on the legislature

for specific grants of authority but rather has a constitutional right of self-

government and looks to the legislature only for specific limitations on its power.

TEX. CONST, ART. XI, § 5; Quick v. City of Austin, 7 S.W.3d 109, 122 (Tex. 1999).

As one court noted, in addressing the powers of a home rule city:

      The charter and ordinances of a home rule city must be construed in
      light of constitutional and statutory provisions as they pertain to the
      charter provisions relating thereto. No home rule charter or ordinance
      passed under the home rule statute shall contain any provision
      inconsistent with the general laws of the state. Such a home rule city
      possesses powers not denied by the statute or the constitution so long
      as the City has incorporated those powers in its charter. [citations
      omitted].

      Therefore, if the City of Corpus Christi has such power, it must be
      found within the … provisions of its charter, the statutes or
      authorized ordinances.

City of Corpus Christi v. Unitarian Church of Corpus Christi, 436 S.W.2d 923,

927 (Tex. Civ. App.—Corpus Christi 1968, writ ref’d n.r.e.) (emphasis added).

      In other words, if the City’s governing body, the City Council, has power to

grant variances or waivers to the requirements of its Subdivision Ordinances, that

power must be found in the statutes or in the City’s charter or ordinances. But in



                                         8
fact, the statute and the City’s own charter and ordinances take that authority away

from the City Council and delegate it solely to the City’s Planning Commission.

City of Cedar Park Charter §7.04 states that “The Planning and Zoning

Commission shall … Exercise authority over platting and subdividing of land

within and outside the corporate limits of the City as authorized by law.”

(Appendix E). 15 This delegation of authority to the Planning Commission is

consistent with the legislative mandate in the Local Government Code.

       For the legislature to divest a home-rule city of authority, the legislature’s

intent to do so must be expressed with “unmistakable clarity.” In re Sanchez, 81

S.W.3d 794, 796 (Tex. 2002). Here, the legislature has unmistakably divested the

City’s governing body of authority to approve subdivision plats, placing that

authority in the hands of the City’s Planning Commission:

       The municipal authority responsible for approving plats under this
       subchapter [Regulation of Subdivisions] is the municipal planning
       commission ….

TEX. LOCAL GOV’T CODE § 212.006 (a) (Appendix D). This same statute allows the

governing body—the City Council—to have this authority only “if the




15
  The City’s Charter can also be found at http://www.ci.cedar-
park.tx.us/modules/showdocument.aspx?documentid=3818 at p. 18 (last visited on June 11,
2015).




                                             9
municipality has no planning commission.” Id. Since the City has a planning

commission, the City Council has no authority to approve plats.

       B.     The City Council has no authority to grant a waiver or variance
              to its Subdivision Ordinances.
       Consistent with the Local Government Code, the City’s Subdivision

Ordinance also delegates the authority to grant variances from its requirements

solely to the Planning Commission:

       Variances from the terms of this chapter [Subdivision Regulation]
       shall be granted by the planning and zoning commission under
       the conditions stated in the Texas Local Government Code.

City of Cedar Park Code of Ordinances § 12.03.004(b) (Appendix F; emphasis

added). 16 The ordinance further limits the Planning Commission’s authority to

grant a variance only upon a showing of “unnecessary hardship.” Id. §

12.03.004(a). Milestone never attempted to make such a showing and the Planning

Commission was never asked to consider whether a variance was authorized under

this test.

       As for the timing for completing subdivision infrastructure improvements—

one of the key issues here—the City’s Subdivision Ordinance requires completion

within one year of final plat approval, and sets forth specific requirements for an

applicant to seek and obtain approval for an extension of time, which can only be

16
        The      City’s      Code     of    Ordinances    can     also     be      found     at
http://z2.franklinlegal.net/franklin/Z2Browser2.html?showset=cedarparkset (last visited on June
11, 2015).



                                              10
granted by the Planning Commission. City of Cedar Park Code of Ordinances §

12.15.003(c) (Appendix G). Specifically, an applicant must show proof of hardship

and submit certain documentation, whereupon the Planning Commission may

recommend an extension to the City Council, but in any event, the extension

cannot exceed an additional year. City of Cedar Park Code of Ordinances §

12.15.003(c)(1). None of that happened here. Milestone did not apply for a

variance and the Planning Commission did not grant one.

      The City’s Subdivision Ordinance mandates that the failure to complete the

required improvements within one year results in automatic expiration of the final

plat approval. Id. § 12.15.003(d). Under the Subdivision Ordinance, and without a

properly granted waiver by the only city entity with authority to grant one—the

Planning Commission—Milestone’s final plat approval would have expired. The

Agreement, which purports to grant Milestone a waiver or variance from these

otherwise binding requirements, is a nullity since the waivers and variances were

granted by the City Council—an entity without authority to do so.

      The key point here is that Becky has alleged that the city council acted

without authority when it effectively granted variances to the City’s Subdivision

Ordinance through the Agreement with Milestone. The City, acting through its

City Council, acted ultra vires when it granted that variance since the City Council

had no such authority, having delegated that authority to the Planning Commission.




                                        11
III.   Appellees cannot claim governmental immunity from suit.
       A.    Because Becky’s claims fall within the ultra vires exception to
             governmental immunity, Becky’s claims against City officials are
             not barred.

       When state officials act without legal or statutory authority, declaratory

relief is available to parties against those officials to redress such violations of state

law because they are not acts of the State. Texas Nat. Res. Conservation Comm’n

v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); see also Federal Sign v. Texas

Southern University, 951 S.W.2d 401, 404 (Tex. 1997) (“A private litigant does

not need legislative permission to sue the State for a state official’s violations of

state law.”). In these situations, governmental immunity does not apply because

Texas courts have recognized that suits claiming that officials acted without

authority are not exactly suits against the State. Heinrich, 284 S.W.3d at 368. The

underlying rationale is that such a suit’s intention is not to find the State liable, but

rather is to force state officials to act within their official capacity. IT-Davy, 74

S.W.3d at 855; Federal Sign, 951 S.W.2d at 404.

       This rationale gave rise to the ultra vires exception to governmental

immunity laid out in City of El Paso v. Heinrich, in which the Texas Supreme

Court stated: “[S]uits to require state officials to comply with statutory or

constitutional provisions are not prohibited by sovereign immunity…” because

they do not attempt to control state action. Heinrich, 284 S.W.3d at 372. Becky’s




                                           12
action for declaratory relief does not attempt to control state action, and therefore

governmental immunity as to the City Council is not implicated. Rather, Becky’s

purpose in bringing the present suit is to declare that City officials acted

wrongfully and without legal authority, or in other words, ultra vires. See Cobb v.

Harrington, 190 S.W.2d 709, 712 (Tex. 1945) (“The acts of officials which are not

lawfully authorized are not acts of the State, and an action against the officials by

one whose rights have been invaded or violated by such acts, for the determination

and protection of his rights, is not a suit against the State within the rule of

[governmental immunity].”).

      To qualify for the ultra vires exception to governmental immunity, a suit

“must not complain of a government officer’s exercise of discretion, but rather

must allege, and ultimately prove, that the officer acted without legal authority or

failed to perform a purely ministerial act.” Heinrich 284 S.W.3d at 372. In bringing

this suit, Becky seeks to enforce the existing rules and regulations set forth in the

City’s Subdivision Ordinance and in the Texas Local Government Code, not alter

discretionary government policies. Under this ordinance, the members of the Cedar

Park City Council, acting on behalf of the City, had no authority to supersede the

Planning Commission when they waived the subdivision requirements for

Milestone in the Agreement.




                                         13
      To determine whether a party has asserted a claim that falls within the ultra

vires exception to governmental immunity, courts will construe statutory

provisions defining the scope of authority, apply them to the plaintiff’s alleged

facts, and decide whether those facts, as alleged, constitute acts that exceed the

government official’s authority or show failure to perform a purely ministerial act.

Texas Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 701–702 (Tex.

App.—Austin 2011, no pet.); Creedmoor-Maha Water Supply Corp. v. Texas

Comm’n on Envtl. Quality, 307 S.W.3d 505, 516 n.8 (Tex. App.—Austin 2010, no

pet.) (quoting Hendee v. Dewhurst, 228 S.W.3d 354, 368–369 (Tex. App.—Austin

2007, pet. denied)).

      If a statute does not leave room for interpretation or discretion, an action that

violates the clear statutory mandate will be deemed ultra vires. See Brewster v.

Roicki, No. 04-14-00414-CV, 2015 WL 2255145 (Tex. App.—San Antonio May

13, 2015) (affirming denial of a plea to the jurisdiction when the defendant had no

statutory discretion to deviate from a decision of the tax assessor-collector). In

many respects, this case is similar to Southwestern Bell Telephone, L.P. v. Emmett,

No. 13-0584, 2015 WL 1285326, at *1 (Tex. March 20, 2015). In that case, the

plaintiff brought an action for declaratory relief against the City of Houston and

members of the County Commissioners’ Court, the governing body of the Harris

County Flood Control District, in light of an agreement between the city and the




                                         14
district for demolition and reconstruction of various bridges. Southwestern Bell

WL 1285326, at *1. The plaintiff alleged that the commissioners engaged in ultra

vires conduct when they ignored their statutory obligations under the Texas Water

Code to pay for plaintiff’s costs to relocate its facilities since the commissioners

were the cause of the relocation. Id. at *7–8.

      The court held that the commissioners failed to comply with this statutory

requirement and attempted to pass the expense onto the plaintiff, who was not a

party to the city’s agreement with the district. Id. Because the statute did not leave

any room for discretion, the commissioners did not have the authority to decide

who would bear relocation expenses. Id. at *8. The court held that the

commissioners’ actions constituted ultra vires conduct, and therefore the trial court

erred in granting the defendants’ plea to the jurisdiction based on governmental

immunity. Id.

      Similarly, in City of New Braunfels v. Tovar, this Court affirmed an order

denying a plea to the jurisdiction asserted by a municipality and three members of

the city’s civil service commission. City of New Braunfels v. Tovar, No. 03-14-

00693-CV, 2015 WL 2183479 (Tex. App.—Austin May 7, 2015). In that case, the

plaintiff argued that the commission members acted in contravention of the Texas

Local Government Code when they denied him the statutorily-approved grant of

extra points on a written examination that would make him eligible for promotion.




                                         15
Id. By failing to comply with statutorily-mandated action, and without statutory

discretion otherwise, the challenge to the commission members’ actions invoked

the trial court’s jurisdiction through the ultra vires exception to governmental

immunity. Id. at *4.

         Our case is similar to Southwestern Bell and Tovar in that Becky has alleged

that governmental officials have acted inconsistently with the mandates,

requirements, and delegations of authority found in the relevant statutes and City

ordinances. 17 As Southwestern Bell and Tovar explain, unauthorized conduct,

which the City Council committed in this case, establishes ultra vires conduct.

         As noted above, the Planning Commission derives its authority over the

subdivision plat approval process from two distinct sources—the statute and the

City’s own Charter and Subdivision Ordinance. Section 212.006(a) of the Local

Government Code states that “[t]he municipal authority responsible for approving

plats under this subchapter is the municipal planning commission,” and the City of

Cedar Park Charter § 7.04(a) requires the Planning Commission to “exercise

authority over platting and subdividing of land within and outside the corporate

limits of the City as authorized by law.” The Subdivision Ordinance vests the

exclusive authority to approve and grant variances in the Planning Commission,

and it may only do so upon a showing of unnecessary hardship. Sec. 12.03.004(b)


17
     I CR 192-96.



                                          16
(“[v]ariances from the terms of [the Subdivision Regulation chapter] shall be

granted by the planning and zoning commission”). Nothing vests any discretion or

authority in the City Council to approve or grant variances to the requirements of

the Subdivision Ordinance.

      Milestone could not have been granted a waiver from the one-year

infrastructure completion mandate by any entity other than the Planning

Commission. Any purported waiver or variance by the City Council is ultra vires,

since that body does not have any authority to grant such a waiver or variance. The

City Council cannot create authority by a contract with a private entity if that

authority is delegated elsewhere by state law and the City’s own charter and

ordinances. Because the City Council acted without legal authority, governmental

immunity does not bar Becky’s claims against the individual Appellees to

challenge that ultra vires conduct. And that challenge goes hand in hand with the

declaratory relief Becky seeks against the City itself.

      B. Because Becky is seeking declaratory relief for interpretation of
      municipal ordinances, governmental immunity does not bar Becky’s
      claims against the City.

      The stated purpose of the Uniform Declaratory Judgments Act (UDJA) is to

provide parties with “relief from uncertainty and insecurity with respect to rights,

status, and other legal relations.” TEX. CIV. PRAC. & REM. CODE § 37.002(b).

Without legislative waiver, however, governmental immunity bars actions against




                                          17
political subdivisions of the state, such as the City of Cedar Park. Texas Dep’t of

Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011).

      According to the Texas Supreme Court, section 37.006(b) of the UDJA

contains such a waiver when a municipality’s ordinances are at issue. This section

requires that in an action for declaratory relief involving the validity or

constitutionality of a municipal ordinance, “the municipality must be made a

party,” thereby waiving governmental immunity. TEX. CIV. PRAC. & REM. CODE §

37.006(b). Since § 37.002(b) is construed and administered liberally, courts have

concluded that this waiver includes claims seeking interpretation of a statute or

ordinance and is not limited to constitutionality or validity claims. Texas Lottery

Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 634–35 (Tex. 2010);

City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009); Lone Star Coll.

Sys. v. Immigration Reform Coalition of Texas (IRCOT), 418 S.W.3d 263, 271

(Tex. App.—Houston [14th Dist.] 2013, pet. denied). Therefore, claims against a

municipality seeking a declaration construing an ordinance and the rights of the

parties thereunder are not barred by governmental immunity.

      Here, Becky’s rights and other legal relations are affected by the City’s

subdivision ordinances, and it is entitled to request declaratory relief for the proper

construction and application of §§ 12.03.004(a) and (b), 12.03.006, and

12.15.003(c) of the City of Cedar Park’s Subdivision Ordinances in light of Tex.




                                          18
Local Gov’t Code § 212.006, so that the court may determine the parties’ rights,

status, and legal relations under those ordinances. Because the UDJA requires that

the City be joined as a party in Becky’s suit seeking construction of these

ordinances, the City cannot claim that governmental immunity bars the claims

against it. Becky’s claims against the City are therefore within the UDJA’s

legislative waiver of governmental immunity.

IV.   Becky’s concrete and particularized injuries that resulted from the
      City’s ultra vires actions give Becky standing to bring suit for
      declaratory relief.
      The injury that Becky suffered as a result of the City’s unlawful conduct is

sufficiently distinct and particularized to grant Becky standing. A plaintiff with

standing is one who suffers an alleged injury that is concrete, particularized, and

actual or imminent. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304–05

(Tex. 2008). A court’s subject matter jurisdiction depends on the existence of a

personal injury that is fairly traceable to the defendant’s conduct and the likelihood

that the court will be able to redress plaintiff’s injury. Brown v. Todd, 53 S.W.2d

297, 305 (Tex. 2001) (noting that federal standing requirements may provide

guidance to Texas courts); Heckman v. Williamson Cnty., 369 S.W.3d 137, 150

(Tex. 2012). Additionally, a plaintiff must establish an “interest in a conflict

distinct from that of the general public.” Williams v. Lara, 52 S.W.3d 171, 178

(Tex. 2001); Brown, 53 S.W.2d at 302.




                                         19
      Restricting a person’s use of property in a way that is economically harmful

is recognized as a validly concrete, actual, and particularized injury for standing

purposes. In Stop the Ordinances Please v. City of New Braunfels, the court found

that the plaintiffs’ injury was sufficient for standing purposes when they alleged

that the City’s ordinance prohibiting certain larger ice chests on the Guadalupe and

Comal Rivers unreasonably restricted their rights to use and lease personal

property. Stop the Ordinances Please v. City of New Braunfels, 306 S.W.3d 919,

928 (Tex. App.—Austin 2010, no pet.). Moreover, the ordinance caused plaintiffs

actual and present injury by rendering valueless the larger ice chests that plaintiff

had purchased for renting out to customers, and by causing them to incur

additional expense to comply with the ordinance. Id.

      A similar harm to Becky’s property has occurred in this case in that the

waiver or variance granted by the City to Milestone has denied and delayed

Becky’s ability to effectively use and develop its property. Moreover, the City’s

action has shifted development costs from Milestone’s tract to Becky’s tract,

thereby reducing the market value of Becky’s property. Without the ultra vires

variance to the City’s strict time deadlines for completion of subdivision

infrastructure, Milestone would have been required to complete construction of the

subdivision improvements by September 17, 2014, or its plat approval would have

expired. The City’s unauthorized conduct has rendered Becky’s tract of land




                                         20
stranded and landlocked for an indefinite period of time. The lack of access to the

land has caused Becky to suffer an unreasonable restriction of its right to use and

develop its property. This harm constitutes a concrete injury that is certainly

traceable to the City’s actions and may be redressed by a favorable judgment

declaring the Milestone Agreement void to the extent it purports to grant a variance

to the Subdivision Ordinance.

      As the Texas Supreme Court has held, a plaintiff’s standing, particularly

when seeking declaratory relief, does not require that an actual legal injury or

deprivation of a vested right has already occurred. It is sufficient to show a threat

of impairment to the plaintiff’s rights. In Finance Comm’n of Tex. v. Norwood, 418

S.W.3d 566, 583 (Tex. 2013), homeowners challenged a governmental entity’s

interpretation of a home equity loan statute and sought declaratory relief. The court

held that the homeowners were not required to show they had already suffered

harm. Instead, the homeowners had standing by showing that a prospective interest

was impaired:

      The Homeowners need not allege a more imminent impairment to
      their rights or allege a threat with more specificity. While the certainty
      and extent of injury would become clearer as the time for closing a
      home equity loan approached, the terms were fixed, and the
      application of the Commissions’ interpretations became apparent, to
      require a homeowner to wait to that point to challenge an
      interpretation would be to deny review or deny credit, or both.




                                         21
       Here, Becky’s harm is not only threatened to increase in the future, it is

immediate since the existence of the Agreement itself currently impairs the value

of Becky’s property. As this Court recently noted:

       we have recognized that even in the absence of vested rights or other
       legal entitlements to future transactions, a business can have standing
       to challenge the legality of governmental actions based on pleadings
       or proof that the actions impose regulatory burdens, damage or
       destroy markets for its services, or impede business opportunities.

Texas Dep’t of State Health Services v. Balquinta, 429 S.W.3d 726, 741 (Tex.

App.—Austin 2014, pet. dism’d). Significantly, Appellees did not challenge or

negate Becky’s allegations of both actual and threatened harm.

       Texas courts have recognized an important element of the standing doctrine:

substantial risk of injury is sufficient to confer standing. City of Laredo v. Rio

Grande H20 Guardian, No. 04-10-00872-CV, 2011 WL 3122205, at *5 (Tex.

App.—San Antonio July 27, 2011). In City of Laredo, the plaintiffs correctly

argued they possessed standing as property owners who were going to be adversely

affected by new rezoning ordinances. 18 City of Laredo, 2011 WL 312205, at *3–4.

Although the negative effects from the ordinances had not yet materialized by the

time of trial, the plaintiffs were nonetheless subject to a substantial risk of injury,



18
   The plaintiffs were members of a nonprofit corporation who were arguing for associational
standing. In proving this, they were required to demonstrate that their members would otherwise
have standing to sue in their own right. See Hunt v. Washington State Apple Advertising
Comm’n, 432 U.S. 333, 343 (1977) (laying out a three-part test for associational standing).



                                              22
which the court defined as a diminishment of plaintiffs’ property values. Id. at *4.

The court also rejected any argument that these injuries were hypothetical.

      Lastly, Becky has been personally aggrieved by the City’s conduct in a way

that distinguishes Becky from the public at large. Becky’s injury is not a

hypothetical or generalized one that any member of the public could claim. The

present controversy over the completion of necessary infrastructure improvements

arises from the City’s decision to act without legal authority in granting Milestone

a variance under the Agreement, and that decision directly affects Becky’s

adjoining tract of land. Therefore, Becky has a unique, distinguishable, and

personal interest in the property that has been directly and adversely affected by

the City’s unauthorized actions. See Save our Springs Alliance, Inc. v. City of

Dripping Springs, 304 S.W.3d 871, 880 (Tex. App.—Austin 2010, pet. denied)

(noting that although the plaintiffs’ interest in property was not the subject of the

contested action, the impairments to plaintiffs’ property interest created a

sufficiently particularized and distinct injury from that of the general public). This

distinct and particularized injury, along with the actual and imminent threats to

Becky’s property rights, gives Becky standing to bring this suit.




                                         23
V.    The facts of Becky’s case are sufficiently developed so that Becky is
      presenting the court with a justiciable controversy that is ripe for
      adjudication.
      Just as Becky has standing to bring this suit based on its actual and imminent

concrete injury, it necessarily follows that Becky’s case is also ripe for

adjudication. Justiciable claims require concrete injuries, but the ripeness doctrine

mimics the standing doctrine in that a concrete injury that is likely to occur is

sufficient for ripeness purposes. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849,

852 (Tex. 2000). “Although a claim need not be fully ripened at the time suit is

filed, the facts must be developed sufficiently for the court to determine that an

injury has occurred or is likely to occur.” Robinson v. Parker, 353 S.W.3d 753,

755 (Tex. 2011); Perry v. Del Rio, 66 S.W.3d 239, 251 (Tex. 2001) (recognizing

that cases may ripen after filing if the sufficiently developed facts allow the court

to discern an injury that has or will likely occur).

      Here, Becky has suffered both presently and imminently concrete injury.

Presently, the City’s purported failure to timely require the completion of Old Mill

Road as mandated by the City of Cedar Park Ordinances § 12.15.003 has caused

Becky to incur diminishing property values or increased development costs, which

will continue into the future if the controversy between the parties is not resolved.

Further, the restriction on Becky’s use and access to its property is an infringement

on Becky’s property rights. In addition to assuredly decreased future property




                                           24
value, Becky’s already existing standing was bolstered by the fact that during the

pendency of this action, Becky submitted its own application for a preliminary plan

and final plat on its tract of land on October 24, 2014.19 The City indicated in its

response to this filing that Becky may be required to bear the expenses for the Old

Mill Road extension itself, instead of requiring Milestone to bear the expenses.20

The imminence of this additional harm supplements Becky’s concrete injuries that

have already occurred and give rise to a justiciable controversy.

         There is nothing contingent about Becky’s injuries, and the facts of this

controversy are sufficiently developed to allow it to be justiciable. The City’s ultra

vires actions have indefinitely landlocked Becky’s tract of land. This is a current

fact; it is not hypothetical. The present and future diminution of the land’s property

value does not depend on hypothetical facts or situations that have not come to

pass. Thus, Becky’s claims constitute a justiciable controversy that is ripe for

adjudication.

VI.      Becky’s claims are not moot because nothing has occurred while this
         litigation has been pending that would divest Becky of its interest in the
         claim.
         If a justiciable controversy ceases to exist while litigation is pending, the

case has become moot and the court cannot exercise its jurisdiction. Heckman v.

Williamson Cnty., 369 S.W.3d 137, 162 (Tex. 2012); Nat’l Collegiate Athletic

19
     I CR 195.
20
     I CR 196.



                                           25
Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). A case may become moot when the

issues presented are not “live” or the parties no longer have a legally cognizable

interest in the outcome since the time of filing. Williams v. Lara, 52 S.W.3d 171,

184 (Tex. 2001). Additionally, moot claims are those for which a court’s judgment

on the merits will have no effect on the parties’ rights or interests. Heckman, 369

S.W.3d at 162; V.E. Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993).

      Events that occur outside the courtroom during the pendency of litigation but

have an effect on the existence of a justiciable controversy may render a claim

moot. See Texas A&M University-Kingsville v. Yarbrough, 347 S.W.3d 289, 291

(Tex. 2011) (declaring a professor’s claim that a negative performance evaluation

undermined her application for tenure moot when the university awarded her

tenure); Meeker v. Tarrant County College Dist., 317 S.W.3d 754, 762 (Tex. 2010)

(concluding that plaintiff’s claims for injunctive and declaratory relief against a

district chancellor were moot when a contract ended the chancellor’s service to the

district). A claim may also become moot if the law on which the claim hinges is

changed or it no longer rests on any existing right or fact. See In re Gruebel, 153

S.W.3d 686, 690 (Tex. App.—Tyler 2005, pet. denied) (confirming plaintiff’s

claims became moot when the City amended its zoning ordinance); State v. Gibson

Products Co., Inc., 699 S.W.2d 640 (Tex. App.—Waco 1985) (ruling that the




                                        26
State’s action to enjoin a corporation from violating a certain law was moot when

the law was repealed).

      In its plea to the jurisdiction, the City relied upon Save Our Springs Alliance,

Inc. [SOS] v. City of Austin, 149 S.W.3d 674 (Tex. App.—Austin 2004, no pet.), in

an attempt to demonstrate mootness. But that case merely highlights why the

claims here are not moot. In SOS, the plaintiff challenged a development

agreement as being contrary to an ordinance. While the case was pending,

however, the city “amended the Ordinance according to the terms of the

development agreement. This amendment was a legislative act by the City.” SOS,

149 S.W.3d at 681. In other words, the city legislatively amended its ordinance,

which the city had the right and authority to do, so that the development agreement

no longer conflicted with the ordinance. This mooted the plaintiff’s argument that

there was a conflict since the conflict no longer existed.

      No such facts are present here. The City has not amended its Subdivision

Ordinance, and certainly not in a manner that would resolve the conflict between

the Agreement and the requirements of the Ordinance. Nothing has occurred in this

case to eradicate the justiciable controversy or strip Becky of the interests it seeks

to protect. Not only are the City’s applicable ordinances still in effect, but no new

legislation since the time of filing supersedes any existing law. Therefore, Becky’s




                                          27
claims are not moot as a result of any subsequent event or amendment to the

applicable law.

                                   CONCLUSION
      Trial courts are often too quick to dismiss lawsuits on alleged jurisdictional

grounds, depriving plaintiffs such as Becky of an opportunity to address the merits

of their claims. Governmental immunity does not bar Becky’s claims against either

the City itself or the City Council members in their official capacities. The ultra

vires exception to governmental immunity and the UDJA’s implied waiver of

immunity for acts taken without legal authority are both applicable here, providing

the trial court with subject matter jurisdiction to reach the merits.

      In addition, Becky has alleged particularized injuries that are sufficiently

concrete and imminent to confer Becky with standing and a claim ripe for

adjudication that has not become moot. Becky therefore requests that this Court

reverse the judgment below and remand the case to the trial court. Becky requests

such other relief to which it may be entitled.

                                          Respectfully submitted,

                                          HUSCH BLACKWELL, L.L.P

                                          BY:/s/ Elizabeth G. Bloch
                                             ELIZABETH G. BLOCH
                                             Texas Bar No. 02495500
                                             Heidi.bloch@huschblackwell.com
                                             111 Congress Avenue, Suite 1400
                                             Austin, Texas 78701



                                          28
                                            (512) 472-5456
                                            (512) 479-1101 (facsimile)

                                            Leonard B. Smith
                                            Texas Bar No. 18643100
                                            lsmith@leonardsmithlaw.com
                                            P.O. Box 684633
                                            Austin, Texas 78768
                                            (512) 914-3732
                                            (512) 532-6446 (facsimile)

                                            Attorneys for Becky, Ltd.

                     CERTIFICATE OF COMPLIANCE
      I hereby certify that the foregoing document contains 6,467 words,
according to the word count of the computer program used to prepare it, in
compliance with Rule 9.4(i)(2).


                                            /s/ Elizabeth G. Bloch
                                            Elizabeth G. Bloch

                        CERTIFICATE OF SERVICE
      I certify that a true and correct copy of the foregoing instrument has been
served upon the following counsel of record via electronic filing and/or facsimile
on the 12th day of June, 2015:


      Cobby Caputo
      ccaputo@bickerstaff.com
      Bradley B. Young
      byoung@bickerstaff.com
      Bickerstaff Heath Delgado Acosta LLP
      3711 South MoPac Expressway
      Building One, Suite 300
      Austin, Texas 78746

                                                   /s/ Elizabeth G. Bloch
                                                   Elizabeth G. Bloch



                                       29
                                 APPENDIX
A.   Order Granting Defendants’ Plea to the Jurisdiction

B.   Order Denying Defendant Milestone Community Builders LLC’s Plea To
     The Jurisdiction And Motion To Dismiss For Lack Of Jurisdiction

C.   Order Granting Plaintiff's Motion To Sever And Abate

D.   TEX. LOCAL GOV’T CODE § 212.006 (a)

E.   City of Cedar Park Charter – selected excerpts

F.   City of Cedar Park Subdivision Ordinance – Sec. 12.03.004 Variances

G.   City of Cedar Park Subdivision Ordinance – Sec. 12.15.003 Completion of
     Improvement




                                      30
APPENDIX A
             244
                                                                        DC        BK15079 PG948

                                                                                                             Flied in The District Court
                                                                                                              of Travis County, Texas

                                                            CAUSE NO. D-1-GN-14-001293                           FEB 25 2015
                                                                                                            At         J(}t()() kM
     BECKY, LTD.,                                                             §                   IN THE DIS~Rekli,JdGtfYtcJerk
                Plaintiff,                                                    §
                                                                              §
     vs.                                                                      §                      TRAVIS COUNTY, TEXAS
                                                                              §
     MILESTONE COMMUNITY BUILDERS                                             §
     LLC, THE CITY OF CEDAR PARK, et al.,                                     §
                 Defendants.                                                  §                      126th JUDICIAL DISTRICT


            ORDER DENYING DEFENDANT MILESTONE COMMUNITY BUILDERS LLC'S
              PLEA TO THE JURISDICTION AND MOTION TO DISMISS FOR LACK OF
                                     JURISDICTION

                    After considering Defendant Milestone Community Builders, LLC's ("Milestone") Plea

     to the Jurisdiction and Motion to Dismiss for Lack of Jurisdiction, the evidence, and arguments

     presented, the Court finds that Plaintiffs Motion should be DENIED.

                    IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Milestone's Plea to

     the Jurisdiction and Motion to Dismiss for Lack of Jurisdiction is hereby DENIED.

                    SIGNED this               ~ay of February, 2015.



                                                                             TI  ULAK
                                                                             JUDGE PRESID NG




Case# D-1-GN-14-001293

·1·1nrr1
003909435
           iiii'l illii iifli lilll iilli illi'l iliii rrliillfl.liii        APPENDIX B
                                                                                                                                           6
APPENDIX C
             23
APPENDIX C
             24
Texas Local Government Code

Title 7. Regulation of Land Use, Structures, Businesses, and Related Activities
Subtitle A. Municipal Regulatory Authority
Chapter 212. Municipal Regulation of Subdivisions and Property Development
Subchapter A. Regulation of Subdivisions

§ 212.006. Authority Responsible For Approval Generally

      (a) The municipal authority responsible for approving plats under this
      subchapter is the municipal planning commission or, if the municipality has
      no planning commission, the governing body of the municipality. The
      governing body by ordinance may require the approval of the governing
      body in addition to that of the municipal planning commission.

      …




                                     APPENDIX D
City of Cedar Park Charter

Section 2.02 General Powers Adopted

The City shall have, and may exercise, all the powers enumerated in Article 1175,
Chapter 13, Title 28, of the Revised Civil Statutes of the State of Texas of 1925 as
now or hereafter amended; with exclusions or alterations that may be specifically
included in this Charter.

Section 3.07 General Powers and Duties

All powers of the City shall be vested in the Council, except as otherwise provided
by law or this Charter, and the Council shall provide for the exercise thereof and
for the performance of all duties and obligations imposed on the City by law.

Section 7.04 Planning and Zoning Commission: Powers and Duties

The Planning and Zoning Commission shall:

          (a) Exercise authority over platting and subdividing of land within and
          outside the corporate limits of the City as authorized by law;

          (b) Recommend to the Council approval or disapproval of proposed
          changes in the City’s Zoning Ordinance and Plan;

          (c) Recommend to the Council plans for the physical development of the
          City; and

          (d) Perform all other functions of the Planning and Zoning Commission
          under the laws of the State of Texas.




                                         APPENDIX E
City of Cedar Park Subdivision Ordinance
Sec. 12.03.004 Variances

(a) When an applicant can show that a provision of these regulations would cause
unnecessary hardship if strictly adhered to and where, because of some condition
peculiar to the site in the opinion of the planning and zoning commission, a
departure may be made without destroying the intent of such provisions, the
planning and zoning commission may authorize a variance.

(b) Variances from the terms of this chapter shall be granted by the planning and
zoning commission under the conditions stated in the Texas Local Government
Code, and provided further that the planning and zoning commission shall have no
authority to grant a variance based on a special or unique condition which was
created as a result of the method by which a person voluntarily subdivides that
land, and provided that pecuniary hardship to the applicant, standing alone, shall
not be deemed to constitute grounds for a variance.

(c) A variance may be applied for as part of a plat or replat request or as a separate
request if the property is already platted. The applicant shall be responsible for
providing all necessary information pertinent to the request, including the
justification for such variance.




                                      APPENDIX F
City of Cedar Park Subdivision Ordinance
Sec. 12.15.003 Completion of improvements

(a) Prior to the signing of the approved final plat by the chairman of the planning
and zoning commission and the planning director, the applicant shall:

         (1) Complete all improvements required by this chapter in accordance
         with the approved construction plans ….
         …

(b) Alternative to completing improvements. The city may waive the requirement
that the applicant complete all improvements required by this chapter prior to the
signing of the approved final plat, contingent upon securing from the applicant a
guarantee, as provided for by this section, for completion of all required
improvements …. Such guarantee shall take one (1) of the following forms:

         (1) Performance bond. The applicant shall post a performance bond with
         the city, as set forth herein, in an amount equal to one hundred ten
         percent (110%) of the estimated construction costs for all remaining
         required improvements, using the standard city form.
         …

(c) Time limit for completing improvements. The period within which required
improvements must be completed shall be incorporated in the surety instrument
and shall not in any event, without prior approval of the city, exceed one (1) year
from date of final plat approval.

         (1) The planning and zoning commission may, upon application of the
         applicant and upon proof of hardship, recommend to the council
         extension of the completion date set forth in such bond or other
         instrument for a maximum period of one (1) additional year. …

(d) Failure to complete improvements. Approval of final plats shall be deemed to
have expired in subdivisions for which no assurances for completion have been
posted or the improvements have not been completed within one (1) year of final
plat approval, unless otherwise approved by the city. In those cases where a surety
instrument has been required and improvements have not been completed within
the terms of said surety instrument, the city may declare the applicant and/or surety
to be in default and require that all the improvements be installed. …



                                       APPENDIX G
