        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       ---------------
                                       NO. 03-00-00744-CV
                                       ---------------


    Texas Department of Transportation, Michael W. Behrens, Robert L. Nichols, John W.
                         Johnson, and Ric Williamson, Appellants

                                                  v.

           City of Sunset Valley, Terrance R. Cowan, and Donald Hurwitz, Appellees



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      FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
         NO. 98-05052, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING
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               In this inverse condemnation proceeding, the Texas Department of Transportation

(ATxDOT@) and its named officials appeal the district court=s final judgment in favor of the City of

Sunset Valley and intervenors Terrance Cowan and Donald Hurwitz. In five issues, TxDOT

contends that (1) Sunset Valley is not a Aperson,@ and is therefore not entitled to the protections of

article 1, section 17 of the Texas Constitution; (2) the district court erred by excluding evidence of a

settlement agreement between Sunset Valley and third parties; (3) the district court erred by

rendering a declaratory judgment that TxDOT failed to comply with certain sections of the

administrative code; (4) Cowan and Hurwitz do not have standing to assert equal protection claims

against the state; and (5) Cowan=s nuisance claim is barred by sovereign immunity. In light of our
disposition of TxDOT=s first issue, we will reverse the damage award as to the amount necessary to

compensate appellees adequately for the reasonable cost of a substitute road facility and remand the

case for further proceedings in accordance with this opinion. We will also reverse the district court=s

judgment as to TxDOT=s third issue and render judgment denying Sunset Valley=s claim for

declaratory relief regarding TxDOT=s compliance with the administrative code. Further, we will

reverse the judgment of the district court and render judgment that the intervenors take nothing on

their equal protection claims regarding the absence of city limit and exit signs. The district court=s

judgment in all other respects will be affirmed.


                                         BACKGROUND

               In 1991 and 1992, TxDOT occupied and destroyed a section of Jones Road, one of

Sunset Valley=s major municipal arteries, in the process of expanding U.S. Highway 290. As a result of

this highway expansion, transportation in and around Sunset Valley was significantly hindered, and

the city found it necessary to construct a substitute street at its own expense. In addition, Sunset

Valley complained that TxDOT=s expansion of Highway 290 violated state pollution regulations.

Further, the city objected to TxDOT=s use of high mast floodlights for highway lighting and alleged

that they were a nuisance to motorists and area home owners. Finally, Sunset Valley was dissatisfied

with the expansion project because TxDOT failed to provide city limit and exit signs on the portion

of Highway 290 in the city limits.

               In May 1998, Sunset Valley filed suit against TxDOT. Cowan, the City=s mayor, and

Hurwitz, a city council member, intervened in the suit. TxDOT filed a plea to the jurisdiction which

the district court denied. TxDOT brought an interlocutory appeal to this Court, arguing

                                                   2
       (1) that Sunset Valley lacks standing to sue for inverse condemnation, (2) that Sunset
       Valley lacks standing to bring its claims for damages resulting from increased circuity of
       travel and noise and light pollution, and (3) that TxDOT is immune from suit for
       declaratory relief by virtue of the doctrine of sovereign immunity.


Texas Dep=t of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 733 (Tex. App.CAustin 1999, no pet.).

We affirmed the district court=s denial of TxDOT=s plea, and the cause proceeded to trial.

               Following a jury trial, the district court awarded Sunset Valley the following relief: (1)

$836,192.80 for the cost of a substitute road through Sunset Valley; (2) $810,978.60 in prejudgment

interest; (3) a declaratory judgment that TxDOT violated administrative regulations relating to noise

and lighting; (4) an injunction to abate the private nuisance caused by lighting on Highway 290; and

(5) $34,075 in attorney=s fees. The district court also awarded Cowan and Hurwitz the following

relief: (1) $3,648 in damages and an injunction to abate private nuisance; (2) a declaratory judgment

that TxDOT violated administrative regulations relating to noise and lighting; (3) a declaratory

judgment and injunction for equal protection violations arising from the use of floodlights and failure

to erect city limit signs; and (4) $7,000 in attorney=s fees. TxDOT appeals the judgment.


                                           DISCUSSION

Inverse Condemnation

               In its first issue, TxDOT contends that Sunset Valley is not a Aperson @ under article 1,

section 17 of the Texas Constitution, and therefore is not entitled to the protections of that




                                                   3
provision.1 However, the judgment recites two additional grounds for the district court=s ruling on

Sunset Valley=s inverse condemnation claim:


       Having considered the claim of inverse condemnation, the Court finds that:

       a.     Defendants occupied and appropriated a portion of Jones Road from the Plaintiff
              City of Sunset Valley, and destroyed Jones Road where it intersects with Brodie
              Lane;

       b.     This occupation, appropriation and destruction was uncompensated and in
              violation of the Texas Transportation Code, the Texas common law of trespass
              and nuisance and Art. I, ' 17 of the Texas Constitution. . . .




       1
            Article 1, section 17 of the Texas Constitution provides:

            No person=s property shall be taken, damaged or destroyed for use or applied to
            public use without adequate compensation being made, unless by the consent of
            such person; and, when taken, except for the use of the State, such compensation
            shall be first made, or secured by a deposit of money. . . .

Tex. Const. art. 1, ' 17 (emphasis added).




                                                   4
When a separate and independent ground that supports a judgment is not challenged on appeal, the

appellate court must affirm the lower court=s judgment. San Antonio Press v. Custom Bilt Mach., 852

S.W.2d 64, 65 (Tex. App.CSan Antonio 1993, no writ); Herndon v. First Nat=l Bank of Tulia, 802

S.W.2d 396, 400 (Tex. App.CAmarillo 1991, writ denied); see also Nobility Homes of Tex., Inc. v.

Shivers, 557 S.W.2d 77, 83 (Tex. 1977). Because TxDOT does not challenge the district court=s

ruling that TxDOT=s occupation, appropriation and destruction of Jones Road was in violation of the

transportation code2 and the common law of trespass and nuisance, we must affirm the district court=s

judgment on these unchallenged, separate, and independent grounds.

                Even if TxDOT had challenged all three grounds for the district court=s ruling on

appeal, Conclusion of Law No. 6 states AThe occupation, appropriation and destruction of Jones Road

without compensation to the City of Sunset Valley violated the Texas Transportation Code.@

Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory

supported by the evidence. Westech Eng=g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196

(Tex. App.CAustin 1992, no writ). Incorrect conclusions of law will not require reversal, however, if

the controlling findings of fact will support a correct legal theory. Id.; Valencia v. Garza, 765 S.W.2d

893, 898 (Tex. App.CSan Antonio 1989, no writ). Moreover, conclusions of law may not be

reversed unless they are erroneous as a matter of law. Westech, 835 S.W.2d at 196.




        2
           While TxDOT does not expressly challenge the district court=s ruling concerning the
transportation code in the wording of any issue, its discussion of its first issue includes the contention
that Athe Transportation Code expressly excludes cities from its provisions relating to compensation.@
We disagree.


                                                    5
                Section 203.058(a) of the transportation code requires TxDOT to pay adequate

compensation to a state agency for the acquisition of that agency=s property:


        If the acquisition of real property, property rights, or material by the department from a
        state agency under this subchapter will deprive the agency of a thing of value to the
        agency in the exercise of its functions, adequate compensation for the real property,
        property rights, or material shall be made.


Tex. Transp. Code Ann. ' 203.058(a) (West 1999). The transportation code defines Astate agency@

as Aa department or agency of this state.@ Id. ' 203.001(4). The Texas Supreme Court has held that

municipal corporations such as Sunset Valley are agencies of the State. See Proctor v. Andrews, 972

S.W.2d 729, 734 (Tex. 1998) (AMunicipal corporations [including home rule cities] are created for

the exercise of certain functions of government. . . . In so far as their character is governmental, they

are agencies of the state, and subject to state control.@). Section 203.058(a), therefore, clearly entitles

Sunset Valley to adequate compensation for TxDOT=s Aoccupation, appropriation and destruction of

Jones Road.@ In light of the standards set out above, we cannot say that Conclusion of Law No. 6 is

erroneous. Because TxDOT failed to challenge all three grounds for the district court=s ruling on

appeal, and because we hold that the judgment can be upheld on the ground that the transportation

code entitles Sunset Valley to adequate compensation, we overrule TxDOT=s first issue. See Tex. R.

App. P. 47.1.

                However, section 203.058(e) of the code provides that the amount of adequate

compensation paid to a state agency is to be determined by the General Land Office: AIf the

department and state agency are unable to agree on adequate compensation, the General Land Office

shall determine the fair, equitable, and realistic compensation to be paid.@ Tex. Transp. Code Ann. '

                                                    6
203.058(e). Jurisdiction can be raised at any point in the proceedings by either the parties or the

court sua sponte. Texas Ass=n of Bus. v. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Buffalo

Realty Corp. v. Enron Corp., 906 S.W.2d 275, 277 (Tex. App.CAmarillo 1995, no writ). While

section 203.058(e) does not deprive the district court of jurisdiction to determine whether Sunset

Valley is entitled to adequate compensation, the district court did not have jurisdiction to decide how

much compensation the city is entitled to receive. See Tex. Transp. Code Ann. ' 203.058(e).

Therefore, we reverse the district court=s damage award and remand the case accordingly.

Exclusion of Evidence

               In its second issue, TxDOT contends that the trial court abused its discretion by

excluding evidence of a 1996 settlement agreement (Athe Agreement@) as it was directly relevant to

the necessity for, and cost of, substitute facilities for Jones Road. The Agreement resulted from a

zoning dispute between Sunset Valley and the J.D. Weaver Family Limited Partnership (Athe Weaver

Family@). The Weaver Family, a landowner and developer in Sunset Valley, sought the city=s

approval to rezone and subdivide portions of its property for development. The Agreement required

Sunset Valley to approve the Weaver Family=s development plans and construct a roadway

connecting two other roads at an intersection with Jones Road. In exchange, the Weaver Family

agreed to donate the land for the roadway.

               The district court sustained Sunset Valley=s objection that the evidence concerning

the Agreement required extensive facts regarding a separate lawsuit not directly relevant to the suit at

bar. See Tex. R. Evid. 402. In addition, the district court sustained the city=s objection that the




                                                   7
evidentiary value of the Agreement would be far outweighed by the danger of confusing and

misleading the jury and causing undue delay. See Tex. R. Evid. 403.

                The admission and exclusion of evidence are within the sound discretion of the trial

court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); Waldrep v. Texas Employers

Ins. Ass=n, 21 S.W.3d 692, 703 (Tex. App.CAustin 2000, pet. denied). We will not reverse a ruling

excluding evidence simply because we disagree with the decision. Beaumont Bank, N.A. v. Buller, 806

S.W.2d 223, 226 (Tex. 1991); Waldrep, 21 S.W.3d at 703. The party complaining of the exclusion of

evidence must show that the trial court erred and that the error probably resulted in an improper

judgment. See Tex. R. App. P. 44.1; Tex. R. Evid. 103(a); Gee v. Liberty Mut. Fire Ins. Co., 765

S.W.2d 394, 396 (Tex. 1989). A successful challenge to an evidentiary ruling usually requires the

complaining party to show, based on the entire record, that the judgment turns on the challenged

evidence. Alvarado, 897 S.W.2d at 753-54.

                At trial, TxDOT contended that the Agreement was admissible because it established

the reason for Sunset Valley=s construction of a replacement road for Jones Road:


        [T]hey built this road in 1998 in theCbecause they had to, not because of Jones Road
        being cut but because they had to because they entered an agreement to build it. And
        we think that=s very relevant to the necessity of the roadway under the substitute of
        facilities doctrine. They didn=t build it because of the need for traffic; they built it
        because they agreed to build it. That=s what this agreementCthat=s why it=s relevant,
        Judge.


On appeal, TxDOT contends that the district court erred by refusing to admit the Agreement into

evidence because it was Adirectly relevant to the issues of necessity and cost of substitute facilities@ and

because Acompleted agreements are ordinarily admissible.@ TxDOT does not provide, and we are

                                                     8
unaware of, any place in the trial record reflecting its argument that A[a]lthough offers of compromise

or void compromise agreements are not admissible in evidence, completed agreements are ordinarily

admissible.@ Because the record reflects that TxDOT makes this argument for the first time on appeal,

it cannot serve as the basis for TxDOT=s appellate complaint. See Tex. R. App. P. 33.1(a). Further,

the record reflects Sunset Valley=s argument that the Agreement was irrelevant and that its

evidentiary value would be far outweighed by the danger of confusing and misleading the jury:


       As you can see, there=s a lot of consideration that the City gave in order to get
       donations of land. And it=s unfair to characterize it as free land that the City got. The
       City did give its consideration back for the land in receipt of the roadway. . . . And
       believe me, the other lawsuit [between Sunset Valley and the Weaver Family] is very
       convoluted and there=s questions now about who owns the right-of-way. And the
       otherCother matter is it=sCyou know, if the question is, is there an objective need for
       the roadway, and then if there is a need, what=s the cost, just seems to be irrelevant to
       the question of need or actual cost of the roadwayCI mean, what the cost should have
       been in 1991.


In light of Sunset Valley=s arguments concerning the Agreement=s relevance to the cost of replacing

Jones Road in 1991 and the danger of misleading the jury, we cannot say that the district court abused

its discretion in refusing to admit the Agreement into evidence. Finally, TxDOT has failed to show,

based on the entire record, that the judgment of the district court turned on the exclusion of the

Agreement. See Tex. R. App. P. 44.1(a). Accordingly, we overrule its second issue.


Administrative Rules Violations Claim

               In its third issue, TxDOT argues that the district court erred by granting a declaratory

judgment that TXDOT and its named officials violated environmental regulations relating to noise

and lighting from the expansion of Highway 290. The district court=s final judgment states:

                                                  9
ATherefore, pursuant to Tex. Civ. Prac. & Rem. Code ' 37.001 et seq., and Tex. Gov=t Code

' 2001.038, IT IS HEREBY DECLARED THAT: . . . Defendants failed to [comply with numerous

sections of Title 43 of the Texas Administrative Code].@

                Section 37.001 of the Texas Civil Practice and Remedies Code (The Uniform

Declaratory Judgments Act) does not enlarge the jurisdiction of Texas courts. See State v. Morales,

869 S.W.2d 941, 947 (Tex. 1994). Similarly, section 2001.038 of the Texas Government Code does

not confer jurisdiction upon a court to determine whether an administrative agency has complied

with the administrative code: AThe validity or applicability of a rule . . . may be determined in an

action for declaratory judgment if it is alleged that the rule or its threatened application interferes with

or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.@ Tex.

Gov=t Code Ann ' 2001.038(a) (West 2000). The plain language of section 2001.038 confers

jurisdiction upon a district court to resolve two issues: (1) whether a rule is valid, and/or (2) whether a

rule is applicable. See Texas Gen. Indem. Co. v. Texas Workers= Comp. Comm=n, 36 S.W.3d 635, 637

(Tex. App.CAustin 2000, no pet.); see also Continental Cas. Ins. Co. v. Functional Restoration Assocs.,

19 S.W.3d 393, 398 (Tex. 2000) (AOur objective in construing a statute is to determine and give

effect to the Legislature=s intent. . . . In so doing, we look first to the plain and common meaning of

the statute=s words.@). In this case, the district court did not address either of these considerations;

instead, it determined whether TxDOT=s actions complied with certain sections of the administrative

code. Neither section 37.001 nor section 2001.038 confers jurisdiction upon the district court to

grant a declaratory judgment on this issue.




                                                    10
                ANo right of judicial review of agency action exists unless a statute provides for such

review, the action violates a constitutional right, or the action adversely affects a vested property

right.@ Continental Cas. Ins. Co., 964 S.W.2d at 779. Because neither the district court nor Sunset

Valley points to a statutory grant of jurisdiction for the district court to review TxDOT=s compliance

with the rules, we will sustain TxDOT=s third issue unless its actions violate a constitutional right or

adversely affect a vested property right of the city=s.

                Contrary to Sunset Valley=s assertion, we did not hold in our opinion addressing

TxDOT=s interlocutory appeals Athat vested property rights, common law rights, and constitutional

rights were affected by [TxDOT=s] violations of their own environmental rules.@ Again, in that

opinion, we addressed the narrow issues of standing and sovereign immunity; we expressly declined to

determine Awhether Sunset Valley should prevail on the merits of its case.@ City of Sunset Valley, 8

S.W.3d at 730. Because Sunset Valley does not point to any authority providing that Athe right to

regulate lighting and minimize sky glow @ is considered a constitutional or vested property right, we

sustain TxDOT=s third issue. Cf. Chemical Bank & Trust Co. v. Falkner, 369 S.W.2d 427, 433 (Tex.

1963) (holding party has vested property right in charter); Brazosport Sav. & Loan Ass=n v. American

Sav. & Loan Ass=n, 342 S.W.2d 747, 750-51 (Tex. 1961) (holding franchise which has been invested

in is vested right); Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 117 (Tex.

App.CAustin 1997, writ denied) (holding plaintiff=s claim that restoration of good conduct time is

vested property interest is not Aindisputably meritless@).3


        3
         In a letter brief, Sunset Valley contends that A[TxDOT=s] interpretation and application of
their own rules potentially interferes with Sunset Valley=s right and privilege to abate nuisances.@
(Emphasis added.) Assuming the cases cited by Sunset Valley support this contention, the terms

                                                   11
Equal Protection

                 In its fourth issue, TxDOT challenges Cowan=s and Hurwitz=s standing to bring equal

protection claims for TxDOT=s failure to place city limit and exit signs on the stretch of Highway 290

through Sunset Valley. Specifically, TxDOT contends that Cowan and Hurwitz failed to plead and

prove a special injury concerning the absence of ACity of Sunset Valley@ signs. We agree.

                 The issue of standing is a legal question which we review de novo. El Paso Cmty.

Partners v. B&G/Sunrise Joint Venture, 24 S.W.3d 620, 624 (Tex. App.CAustin 2000, no pet.). A

lack of standing deprives a court of subject matter jurisdiction because standing is an element of such

jurisdiction. Benker v. Texas Dep=t of Ins., 996 S.W.2d 328, 330 (Tex. App.CAustin 1999, no pet.)

(citing Texas Ass=n of Bus., 852 S.W.2d at 444-45). A plaintiff must plead facts that affirmatively

demonstrate standing; that is, the plaintiff must affirmatively show jurisdiction. Id. To establish

standing, one must show a justiciable interest by alleging actual or imminent threat of injury peculiar

to one=s circumstances and not suffered by the public generally. Id. A[W]here the sole object of a suit

is for the benefit of the public at large and no citizen is to be affected differently from all other citizens,




Aright and privilege @ differ from constitutional or vested rights. A Avested right@ is A[a] right that so
completely and definitely belongs to a person that it cannot be impaired or taken away without the
person=s consent.@ Black=s Law Dictionary 1324 (7th ed. 1999). Because the city does not provide a
single source of authority for the contention that its Aright and privilege to abate nuisances@ is vested
or constitutional, we sustain TxDOT=s third issue. See Tex. R. App. P. 38.1(h).




                                                      12
an individual cannot institute a cause of action because he has no justiciable interest.@ Hardy v.

Hannah, 849 S.W.2d 355, 357 (Tex. App.CAustin 1992, writ denied).

               Community injuries are similar injuries experienced by all or most of the properties in a

given community or section. Felts v. Harris County, 915 S.W.2d 482, 485 (Tex. 1996). A

community injury does not constitute Aan injury peculiar to one=s circumstances.@                See id.

ACommunity damages are not connected with the landowner=s use and enjoyment of property and

give rise to no compensation.@ Id.

               In their September 30, 1999, third amended plea in intervention, Cowan and Hurwitz

contended that they had standing to intervene in the action against TxDOT:


       1.   Intervenor Terrance Cowan is a resident and property owner within Sunset
            Valley, where he serves as Mayor. Mr. Cowan=s home is located north of
            Highway 290, a short distance from the highway. Besides suffering
            discrimination and injuries in common with other residents of Sunset Valley as a
            result of the conduct of Defendants, his property is peculiarly afflicted by noise
            and light from Highway 290. In addition, Mr. Cowan has had his pedestrian
            access to and from most of the city destroyed by Defendants.

       2.   Intervenor Donald Hurwitz is a resident of and property owner within Sunset
            Valley, where he serves on the City Council. He enjoys the privileges and rights
            common to citizens of Sunset Valley and has been affected and harmed by the
            discrimination of Defendants against Sunset Valley and its residents. In common
            with other residents of Sunset Valley, Mr. Harwitz is affected by the noise and
            light pollution of Highway 290.


With regard to the lack of city limit and exit ramp signs, the plea in intervention states:


       For each of the following municipalities within Travis County, TxDOT posted city-
       limit signs on the main lanes of state highways that traverse them: Austin, Bee Cave,
       Briarcliff, Cedar Park, Creedmore, Jonestown, Lago Vista, Lakeway, Manor, Mustang
       Ridge, Pflugerville, Rollingwood, San Leanna and West Lake Hills. Sunset Valley,

                                                  13
       alone among all Travis County Municipalities, is the only city for which this basic
       signage is not provided. . . . With respect to the Sunset Valley ramps, TxDOT has
       refused to erect signs notifying motorists as to the proper exit ramp for travel to Sunset
       Valley. This is a unique discrimination that is not generally imposed upon other like
       cities.


During trial, Cowan testified concerning the problems associated with the lack of city limit and exit

signs in Sunset Valley: AWe=ve had problems with people findingCfinding us and getting to city hall.@

In addition, Hurwitz testified as follows:


       I=ve been a part of a lot of small towns in a lot of small areas, and I think it=s important
       to have a cohesiveness and people recognize where we are. There=s other issues as
       well. I have a lot of friends in Austin and they have a hard time finding us, and
       particularly since the freeway=s been changed, because it used to be a little simpler to
       explain to them how we got there. It=s also important from a commercial standpoint,
       because we have a lot of shopping there and that helpsChelps us withCwith location,
       and some of our merchants say that they=re in Sunset Valley. I think that=s pretty
       important as well.


Finally, Finding of Fact No. 23 states:


       The Court finds that Defendants have treated Mr. Cowan and Mr. Hurwitz, as
       residents of the City of Sunset Valley, disparately when compared to the residents of
       other municipalities by failing to erect on the main lines of Highway 290 city limit
       signs and signs designating the proper exit ramp to use to travel to Sunset Valley.


               As they relate to the lack of city limit and exit signs, Cowan=s and Hurwitz=s pleadings,

Finding of Fact No. 23, and the intervenors= testimony at trial refer to injuries that are no different

than those experienced by all citizens of Sunset Valley. The pleadings repeatedly recite that Cowan

and Hurwitz are suffering injuries Acommon with other residents of Sunset Valley@ and Aas residents of

Sunset Valley.@ Finding of Fact No. 23 limits the finding of disparate treatment to Cowan and

                                                   14
Hurwitz Aas residents of the City of Sunset Valley.@ The intervenors= testimony concerning the

absence of signs clearly describes injuries borne by the entire community of Sunset Valley. See Felts,

915 S.W.2d at 485. Based on our review of the pleadings, the district court=s findings of fact, and the

testimony at trial, we hold that Cowan and Hurwitz failed to plead and prove a special injury, or Aan

injury peculiar to one=s circumstances and not suffered by the public generally.@ See Benker, 996

S.W.2d at 330. Accordingly, we sustain that portion of TxDOT=s fourth issue relating to Cowan=s

and Hurwitz=s standing to intervene in Sunset Valley=s equal protection action regarding the absence

of city limit and exit signs.

                TxDOT also contends that there is no evidence to support the district court=s finding

that the construction of high mast floodlights for highway lighting resulted in the disparate treatment

of Cowan and Hurwitz; alternatively, TxDOT contends that there is no evidence to support the

district court=s conclusion that Cowan=s and Hurwitz=s disparate treatment was not justified by a

rational basis. Finding of Fact No. 24 states: AThe Court finds the Defendants [sic] decision to erect

and maintain high mast floodlights within and surrounding the City of Sunset Valley singles out Mr.

Cowan and Mr. Hurwitz, as residents of the City, for disparate treatment.@ Because we attach to

findings of fact the same weight that we attach to a jury=s verdict upon jury questions, we review

Finding of Fact No. 24 for the legal and factual sufficiency of the evidence. Westech, 835 S.W.2d at

195.

                The record reflects that Nancy Clanton, a lighting engineer, testified regarding the

problems associated with the use of high mast floodlights for highway lighting on the portion of

Highway 290 in Sunset Valley. Clanton testified that she had never seen floodlights used for highway


                                                  15
lighting and that the roadway lighting through Sunset Valley was the worst she had ever seen.

Clanton also testified that the stretches of Highway 290 on either side of Sunset Valley consisted of

proper highway fixtures pointing at the road. In addition to Clanton=s testimony, Cowan testified as

follows:


       The floodlights from 290 shine directly into my property, particularly the portion of
       my property that=s in front of my house. That=s on the back of the lot. As a matter of
       fact, at midnight or 3:00 in the morning, I can read a newspaper from those floodlights
       on my lot. . . . When the floodlights went up, that changed the rural character of my
       home. In addition, it also created for me a safety concern in that at night, because it=s
       lit up all the time, I=m concerned about letting my daughters or my wife go out beyond
       the house, beyond the trees into that area, because anybody passing through there can
       see them. It=s like they=re spotlighted there.


               TxDOT=s discussion on this portion of its issue contains no authority. See Tex. R.

App. P. 38.1(h). The citations to the record in its brief reflect the testimony of Robert Stuard,

TxDOT=s engineer, to the effect that Ain the normal course of business >anything that we do we don=t

want to create a nuisance=@ and that Awe try to incorporate into our design how we=re actually going

to handle traffic and build the project with the least impact on businesses and homes that are nearby.@

Based on our review of the record, we hold that Finding of Fact No. 24 is not so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust. See Westech, 835 S.W.2d at

195.

               Further, Conclusion of Law No. 28 states: AThe Court finds the Defendants= unequal

treatment of Mr. Cowan and Mr. Hurwitz regarding high mast floodlights as found in Finding of Fact

24 is neither reasonably nor rationally related to a substantial difference.@ As stated previously,

conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory

                                                  16
supported by the evidence. Westech, 835 S.W.2d at 196. An appellate court will not reverse even an

incorrect conclusion of law if the controlling findings of facts will support a correct legal theory. Id.;

Valencia v. Garza, 765 S.W.2d 893, 898 (Tex. App.CSan Antonio 1989, no writ). Moreover,

conclusions of law may not be reversed unless they are erroneous as a matter of law. Westech, 835

S.W.2d at 196.

                 In its brief, TxDOT contends that its lighting expert, Karl Burkett, established the

rational basis for the lighting system in Sunset Valley. Burkett testified concerning the advantages of

high mast lighting and characterized floodlights and high mast fixtures as Astate of the art.@ However,

the record of his testimony reflects that Burkett did not specifically articulate a rational basis for the

use of high mast floodlighting fixtures like those on the stretch of Highway 290 through Sunset Valley.

                 In response to TxDOT=s arguments concerning Burkett=s testimony, Sunset Valley

emphasizes that AAppellees have no complaint over the high masts; rather their complaint is with the

fact that floodlights are placed atop these masts.@4 In fact, Burkett expressly testified that the high

mast floodlights on the stretch of Highway 290 through Sunset Valley do not meet TxDOT=s current

lighting standards:


        4
         The lack of Burkett=s testimony on the subject of high mast floodlighting is illustrated in the
following exchange on redirect examination:

            Q: Okay. Is high mast lighting used on other roadways?

            A: Yes.

            Q: And is it used in other states?

            A: Yes.


                                                   17
       Q: The high mast floodlights that currently exist in the City of Sunset Valley, they
          do not meet current design standards?

       A: That is correct.


Further, Clanton testified that the use of high mast floodlights caused glare:


       Q: Now, theseCthis lighting system that you observed in Sunset Valley with the
          floodlighting and everything, does it have any implications for highway safety?
       A: The implications that I would see with highway safety is when you introduce
          glare on a highway, you have theCthe phenomenon, as I talked about it earlier,
          calledCyou could either have discomfort glare, which is not as common because
          you need quite a bit of light to really cause discomfort, but there definitely could
          be disability glare, where when light comes in to your eye and gets trapped, you
          cannot see beyond.


TxDOT=s arguments address the rational basis for the use of high mast lighting generally. TxDOT

does not provide evidence of highway characteristics unique to that stretch of Highway 290 through

Sunset Valley justifying the use of high mast floodlights. Based on our review of the record, we

cannot say that Conclusion of Law No. 28 is erroneous as a matter of law. Accordingly, the

remainder of TxDOT=s fourth issue is overruled.


Sovereign Immunity

               In its fifth and final issue, TxDOT contends that appellees= nuisance claims based on

the use of high mast floodlights are barred by sovereign immunity. TxDOT argues appellees have

failed to discharge their burden of pleading and proving TxDOT=s waiver of sovereign immunity, and

that the district court erred in allowing them to recover for nuisance.




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               Generally, state agencies are immune from suit unless that immunity is waived. Texas

Dep=t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000). However, A[g]overnmental entities may be

liable for nuisances created or maintained in the course of non-negligent performance of

governmental functions.@      Wickham v. San Jacinto River Auth., 979 S.W.2d 876, 880 (Tex.

App.CBeaumont 1998, no pet.).          A>[N]on-negligence= means beyond negligence, as in gross

negligence or an intentional act. But if a nuisance is caused by the negligent performance of a

governmental function, then the governmental entity is protected from liability because of

governmental immunity.@ Tarrant County v. English, 989 S.W.2d 368, 374-75 (Tex. App.CFort

Worth 1998, pet. denied).

               A nuisance is defined as Aa condition that substantially interferes with the use and

enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary

sensibilities attempting to use and enjoy it.@ Montgomery County v. Fuqua, 22 S.W.3d 662, 668 (Tex.

App.CBeaumont 2000, pet. denied). ATo maintain a cause of action for nuisance, a plaintiff must be

able to show the alleged nuisance is inherent in the condition or thing itself, beyond that arising from

alleged improper or negligent use.@ Id.

               The jury found that the use of high mast floodlights as roadway lighting constituted a

nuisance, and because there is more than a scintilla of evidence to support that finding, we will

uphold it. See Able, 35 S.W.3d at 613. Further, Finding of Fact No. 16 states:


       The Court finds the Defendants have installed, operated and maintained floodlights
       (rather than roadway lights) on high masts on Highway 290 within and near Sunset
       Valley, in a manner which intentionally and knowingly causes bright light to shine off of
       and away from the highway and directly onto the homestead of Plaintiff-Intervenor


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        Cowan and the properties of others living within residential neighborhoods near
        Highway 290.


(Emphasis added.)

                Because findings of fact are reviewed by the same standards as jury findings, we uphold

Finding of Fact No. 16.        See Workers Union v. Arriba, Ltd., 882 S.W.2d 576, 582 (Tex.

App.CHouston [1st Dist.] 1994, no writ). In light of the evidence that Cowan complained to

TxDOT about the nuisance created by the direction of the floodlights, accompanied by TxDOT=s

failure to remedy the situation, we hold that TxDOT was amenable to suit under the theory of non-

negligent nuisance. Therefore, we overrule TxDOT=s fifth issue.


                                          CONCLUSION

                We reverse the district court=s damage award and remand to that court to obtain a

determination by the General Land Office in accordance with section 203.058(e) of the Texas

Transportation Code. Having sustained TxDOT=s third issue, we reverse that portion of the district

court=s judgment declaring that TxDOT violated the administrative code and render judgment

denying Sunset Valley=s request for declaratory relief. Further, we reverse the judgment of the district

court as to that portion of TxDOT=s fourth issue challenging Cowan=s and Hurwitz=s standing and

render judgment that the intervenors take nothing on their equal protection claims regarding the

absence of city limit and exit signs. The district court=s judgment is in all other respects affirmed.




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                                             Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Yeakel and Puryear

Affirmed in Part; Reversed and Remanded in Part; Reversed and Rendered in Part

Filed: June 13, 2002

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