Affirmed and Opinion filed July 10, 2018.




                                      In The

                    Fourteenth Court of Appeals

                               NO. 14-18-00014-CV

  VILLAGE OF TIKI ISLAND, VILLAGE OF TIKI ISLAND BOARD OF
 ALDERMEN, VERNON “GOLDIE” TELTSCHICK, TOM FISHER, RON
   SIMONS, KAREN HEARRING, WAYNE CROZIER, AND FREDDIE
                    CARMICHAEL, Appellants

                                         V.
               PREMIER TIERRA HOLDINGS INC., Appellee

                   On Appeal from the 212th District Court
                          Galveston County, Texas
                     Trial Court Cause No. 16-CV-0828

                                 OPINION
      In this land-use case, a city, its mayor, its board of aldermen, and the board’s
members appeal the trial court’s denial of their plea to the jurisdiction filed in
response to a property owner’s declaratory judgment action and takings claim
concerning the property owner’s vested rights in a marina development project the
city has repeatedly refused to approve. We affirm.
                             FACTUAL BACKGROUND

      The plaintiff in this case is Premier Tierra Holdings, Inc. (Premier). Premier
owns a tract of property (the Property) in the Village of Tiki Island (the City), a
general-law municipality in Galveston County. Since 2009, Premier has sought to
develop or sell the Property for a mixed-use marina development project to
include, among other things, residences and elevated dry boat storage (the Project).

      Prior to Premier’s acquisition of the Property, the International Bank of
Commerce (IBC) made a loan secured by the Property to an entity controlled by
Namir Faidi. Faidi proposed the construction of ninety-foot-high structures
containing 240 residential condominium units on the Property, along with a
redeveloped marina that would provide elevated boat storage. Construction
commenced on the project, but it was destroyed during Hurricane Ike. The project
subsequently failed, and Faidi’s development ceased.

      IBC foreclosed on the Property in early 2009 and conveyed it to Premier,
and affiliate of IBC. Premier paid $5.7 million to IBC by inter-company transfer,
and in return received the Property.

      On April 22, 2010, Premier submitted a plat application to the City
reflecting the Project’s plan of development, which included up to one hundred
residential units and up to 250 dry stack enclosed boat slips. At the time the plat
application was filed, the City had no meaningful land-use regulations. The City
also had no subdivision platting or zoning ordinances or any general or
comprehensive plan that would prohibit the Project.

      Five days later, on April 27, 2010, the City approved a new zoning
ordinance (the Ordinance). The Ordinance (1) prohibits dry boat storage and
apartment property classifications anywhere on the Property; (2) limits heights of


                                         2
structures and imposes setbacks; (3) prohibits rentals of less than thirty days; and
(4) requires minimum parking depending on the property classification.

      The Ordinance’s stated purpose is to “zone the entire area of the [City] into
districts” in order to “provide the [City] with a comprehensive plan for the purpose
of promoting health, safety, and the general welfare of the residents of [the City].”
The Ordinance was in part “designed to: (1) Insure safety from fire, hurricanes, and
other dangers, [and] (2) To preserve the character of the [City], its peculiar
suitability for particular uses, and with a view of conserving the value of the [City]
and encouraging the most appropriate use of land throughout the [City].” Premier
believes the Ordinance was specifically adopted in an effort to prevent it from
developing enclosed dry boat storage.

      The City’s governing body, the Board of Aldermen (the Board) rejected
Premier’s plat application on May 18, 2010. Premier attempted to negotiate with
the City to obtain approval for the Project, but its attempts were unsuccessful.

      Premier then sued the City, seeking declarations that its rights in the Project
vested on April 22, 2010, when it filed the initial plat application, and that it was
not required to comply with later-enacted zoning ordinances. See Vill. of Tiki
Island v. Premier Tierra Holdings, Inc., 464 S.W.3d 435, 440 (Tex. App.—
Houston [14th Dist.] 2015, no pet.) (explaining that a permit applicant’s rights
under chapter 245 accrue “on the filing of an original application or plan for
development or plat application that gives the regulatory agency fair notice of the
project and the nature of the permit sought” and are commonly referred to as
“vested rights”) (quoting Tex. Loc. Gov’t Code § 245.002(a-1)).

      In response, the City filed a plea to the jurisdiction. The trial court denied
the City’s plea, and the City filed an interlocutory appeal in this court. Id. at 438.


                                           3
       In the first appeal, the City did not dispute Premier’s assertion that its 2010
plat application triggered the application of chapter 245 to the Project, or that the
City had no zoning ordinances at the time Premier filed its plat application. Id. at
440. This court concluded, however, that Premier’s declaratory judgment action
failed to present a justiciable controversy because: (1) the record did not disclose
the reasons why the City denied the 2010 plat application; (2) Premier never
requested that the City certify the reasons for the denial (as provided in chapter 212
of the Local Government Code); (3) no plat or permit applications had since been
denied for any specified reasons; and (4) Premier did not challenge the City’s
denial of its plat application in any proceeding, including this one. See id. at 440–
41, 442. Consequently, any injury that Premier allegedly suffered or would suffer
in the future was not ripe because Premier “failed to allege or demonstrate that any
official action by the City has caused its alleged injuries.” Id. at 442.

       As this court explained, “Premier may have vested rights in the project, but
there is no context within which to declare what they are. Any such declaration
would be a prohibited advisory opinion that would not resolve the parties’
dispute.” Id. at 443. We sustained the City’s plea to the jurisdiction and dismissed
Premier’s case without prejudice. Id.

       In May 2015, after this court’s opinion issued, Premier submitted a rezoning
application under protest in the form of a “Planned Unit District” (PUD).1 At a
public hearing before the City’s Planning and Zoning Commission, Premier
received negative feedback on the dry boat storage, including fire safety concerns.


       1
          As explained in Tiki Island, in 2010, at Premier’s request, the City revised the ordinance
to provide for approval of a PUD to accommodate certain aspects of the Project. 464 S.W.3d at
437. Despite subsequent negotiations for a reduced scale version of the Project as a PUD, in
2011 it became apparent to Premier that the City would not approve the reduced scale version.
See id. at 437–38.

                                                 4
       Premier worked with the City’s fire marshal to address the fire safety
concerns, and hired an expert to prepare a fire study and a deliverable report
termed a Life Safety and Code Analysis (the Safety Analysis). Because the Safety
Analysis would take several weeks, Premier asked that the City defer its decision
on Premier’s PUD application until the Safety Analysis would be available for its
consideration, but the City refused. According to Premier, the City did so because
it “did not want any facts to get in the way.” The City’s Board unanimously denied
the PUD application on March 15, 2016.

       After the City denied Premier’s PUD application, Premier requested
certified reasons for the City’s 2010 denial of Premier’s original plat application.
The City issued certified reasons on April 19, 2016. Among other things, the City
asserted that the 2010 plat application did not conform to “the general plan of the
City and its current and future streets, alleys, parks, playgrounds, and public utility
facilities.”

       On June 22, 2016, Premier submitted a second revised plat under protest to
address the City’s cited items, which the City denied on July 7, 2016. Premier
requested certified reasons for this denial. The City certified its reasons on August
16, 2016. The reasons given were similar to those provided on April 19.

       Premier submitted a third revised plat application under protest on
November 9, 2016. The City again denied the revised plat application—this time
after less than a week, on November 15, 2016. Premier requested certified reasons
for this denial, which the City provided. Again, the reasons given were similar to
those previously provided.

       Premier asserts that in each certification, the City cited to items that did not
exist at the time the Project vested on April 22, 2010, or are irrelevant to normal
plat consideration and requirements. Premier could not file an administrative
                                           5
appeal of the City’s repeated denials of it plat applications, however, as the City
provides no such procedure. See id. at 442 n.3.

       Premier then filed a “Second Amended Petition and Application for Writ of
Mandamus” in the trial court. This petition included a request for a declaratory
judgment concerning its rights in the Project and a takings claim. In its request for
mandamus relief, Premier asked the trial court to compel the Board to perform its
ministerial duty to approve the original plat and each of the subsequent plats
because they satisfied all applicable and duly adopted platting regulations. Premier
attached to its petition its initial and successive plat applications and the City’s
certifications of reasons for denying the plat applications. In addition to naming the
City, Premier added as defendants the Board, the Board’s members, and the City’s
mayor (collectively, the City Parties).2

       The City Parties responded with an amended plea to the jurisdiction, arguing
that the trial court lacked jurisdiction over Premier’s declaratory judgment claim
because the City’s certified reasons for denying Premier’s Project demonstrate that
the Project was denied based on existing regulations rather than the subsequently
enacted Ordinance, and therefore no justiciable controversy existed concerning the
application of chapter 245. The City Parties also argued that Premier failed to state
a viable takings claim. The City Parties did not challenge the trial court’s
jurisdiction over Premier’s request for mandamus.

       After considering the parties’ briefing and arguments, the trial court denied
the City Parties’ plea to the jurisdiction on September 22, 2017. This interlocutory
appeal followed. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).


       2
         The defendant Board members are Tom Fisher, Ron Simons, Karen Hearring, Wayne
Crozier, and Freddie Carmichael, all of whom are sued in their official capacity only. The City’s
mayor, Vernon “Goldie” Teltschick, is sued in both his individual and official capacity.

                                               6
                     ANALYSIS OF THE JURISDICTIONAL ISSUES

      In its first issue, the City Parties contend that the trial court erred in denying
its plea to the jurisdiction because Premier failed to plead a justiciable controversy
as to Premier’s request for declarations of its rights under chapter 245 of the Local
Government Code. In its second issue, the City Parties contend that Premier failed
to plead a viable takings claim. We address each in turn.

I.    Premier’s Request for Declaratory Judgment
      In its first issue, the City Parties contend that the trial court erred in denying
the City’s plea to the jurisdiction as to Premier’s declaratory judgment action for
two reasons. First, the City Parties argue that Premier has not pleaded a claim to
which chapter 245 applies. Second, the City Parties argue that the declarations
Premier seeks are not ripe for review.

      A.     Standard of Review and Applicable Law

      Subject matter jurisdiction is essential to a court’s authority to decide a case.
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).
Governmental immunity from suit defeats a trial court’s subject matter jurisdiction,
and is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). We review a trial court’s ruling
on a plea to the jurisdiction de novo. Id. at 226.

      “In a suit against a governmental unit, the plaintiff must affirmatively
demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.”
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). The
plaintiff must allege facts that affirmatively establish the trial court’s subject matter
jurisdiction. Tex. Ass’n of Bus., 852 S.W.2d at 446. In determining whether this
burden has been satisfied, we must construe the pleadings liberally in the plaintiff’s

                                           7
favor and look to the pleader’s intent. Miranda, 133 S.W.3d at 226.

      If the governmental entity challenges the plaintiff’s jurisdictional
allegations, then the plaintiff must adduce some evidence to support jurisdiction.
See id. at 227–28. The trial court then considers the relevant evidence submitted by
the parties. Id. at 227. If the evidence creates a fact question regarding jurisdiction,
then the trial court must deny the plea, and the fact issue will be resolved by the
fact finder. Id. at 227–28. But if the evidence is undisputed, then the trial court
rules on the plea to the jurisdiction as a matter of law. Id. at 228.

      Under the Uniform Declaratory Judgments Act, a person whose rights,
status, or other legal relations are affected by a statute or municipal ordinance may
have determined any question of construction or validity arising under the statute
or ordinance and “obtain a declaration of rights, status, or other legal relations
thereunder.” See Tex. Civ. Prac. & Rem. Code § 37.004(a). A declaratory
judgment is appropriate when a justiciable controversy exists concerning the rights
and status of the parties and the controversy will be resolved by the declaration
sought. Save Our Springs Alliance v. City of Austin, 149 S.W.3d 674, 681 (Tex.
App.—Austin 2004, no pet.) (citing Bonham State Bank v. Beadle, 907 S.W.2d
465, 467 (Tex. 1995)). To constitute a justiciable controversy, there must exist a
real and substantial controversy involving a genuine conflict of tangible interests
and not merely a theoretical dispute. Id.

      Ripeness is a threshold issue that implicates subject matter jurisdiction and
also emphasizes the need for a concrete injury for a justiciable claim to be
presented. Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971
S.W.2d 439, 442 (Tex. 1998). In evaluating ripeness, we consider whether, when
the lawsuit was filed, the facts were sufficiently developed so that an injury has
occurred or is likely to occur, rather than being contingent or remote. Robinson v.

                                            8
Parker, 353 S.W.3d 753, 755 (Tex. 2011). A case is not ripe when its resolution
depends on contingent or hypothetical facts, or upon events that have not yet come
to pass. Save Our Springs Alliance, 149 S.W.3d at 683 (citing Patterson, 971
S.W.2d at 442). We examine both the fitness of the issues for judicial decision and
the hardship occasioned by the court’s denying judicial review. Id.

      Chapter 245 of the Texas Local Government Code creates a system by
which property developers can rely on a municipality’s land use regulations in
effect at the time the original application for a permit is filed. See Tiki Island, 464
S.W.3d at 439. Section 245.002 of that chapter establishes a general rule that
municipal regulatory agencies must consider a permit application under the terms
of the ordinances, rules, and other applicable regulations that are in effect at the
time a permit, development plan, or plat application is filed:

      Each regulatory agency shall consider the approval, disapproval or
      conditional approval of an application for a permit solely on the basis
      of any orders, regulations, ordinances, rules, expiration dates, or
      other properly adopted requirements in effect at the time (1) the
      original application for the permit is filed for review for any purpose,
      including review for administrative completeness; or (2) a plan for
      development of real property or plat application is filed with a
      regulatory agency.
Tex. Loc. Gov’t Code § 245.002(a) (emphasis added). The rights to which a permit
applicant is entitled accrue “on the filing of an original application or plan for
development or plat application that gives the regulatory agency fair notice of the
project and the nature of the permit sought.” Id. § 245.002(a–1).

      In effect, chapter 245 “freezes” the rules at the time the original application
for a permit is filed, and limits the rights of a city to “change the rules in the
middle of the game.” Vill. of Tiki Island, 464 S.W.3d at 440 (quoting Harper Park
Two, LP v. City of Austin, 359 S.W.3d 247, 249–50 (Tex. App.—Austin 2011, pet.

                                          9
denied). However, chapter 245 contains a number of exemptions from its
operation, including certain municipal zoning regulations and other specified land-
use regulations. See Tex. Loc. Gov’t Code § 245.004. A city also may require
compliance with technical requirements relating to the form and content of a
permit application in effect at the time the application was filed, even though the
application is filed after the date an applicant’s rights accrue. See id. § 245.002(f).

      Chapter 245 expressly authorizes enforcement of its provisions through a
request for declaratory relief. Id. § 245.006(a). Further, a municipality’s immunity
from suit is expressly waived in regard to an action under chapter 245. See
id. § 245.006(b).

      B.     Application of Law to Facts

             1.     Premier has pleaded a claim to which chapter 245 applies.

      According to the City Parties, Premier has not pleaded a claim to which
chapter 245 applies because Premier alleges that the City Parties used the
subsequently enacted Ordinance to interfere with Premier’s vested rights, but the
City Parties maintain that they could not, and did not, deny the plat application
based on the Ordinance. Rather, the City Parties assert that the City’s certifications
reflect that the City denied the plat application based on “existing regulations,”
which is permissible under chapter 245. Because the City Parties did not violate
chapter 245, they reason, Premier does not plead a claim to enforce chapter 245,
and therefore the City Parties’ immunity is not waived under that chapter.

      Premier responds that the City Parties ignore the ongoing dispute over
whether Premier has a vested right to develop the Project with dry boat storage and
apartments under the City’s regulatory scheme at the time of vesting and fails to
acknowledge the allegations in Premier’s second amended petition.


                                           10
       In its petition, Premier alleges that when it submitted its initial plat
application in 2010, the City had no meaningful land use regulations, no
subdivision platting or zoning ordinances, and no general or comprehensive plan.
A letter from Premier’s surveyor, submitted to the City with Premier’s initial plat
application, reflects as much:

       This plat is required by Texas law, but the Village has no subdivision
       platting ordinance, zoning ordinance, general plan or comprehensive
       plan, so I have followed the Texas Subdivision Statute (Texas Local
       Government Code Chapter 212) in preparation of the plat. This plat
       complies with requirements as a final plat, and is in recordable form.
Accordingly, Premier asserts that under sections 245.002(a) and 245.002(a–1), its
vested rights accrued upon filing, so long as there was fair notice of the Project and
the nature of the permit sought.3 See id. § 245.002(a), (a–1).

       The City Parties do not dispute that Premier’s rights in the Project vested
upon filing. Nor do the City Parties deny that they had fair notice of the Project
sought and the nature of the permit Premier requested. Further, the City’s certified
denials reflect the City Parties’ understanding that Premier intended to develop the
Project with residences and dry boat storage. The City Parties also do not dispute
that chapter 212 of the Local Government Code (which Premier’s surveyor
indicated he followed in preparing the plat) was applicable to the plat. In relevant
part, section 212.010 provides that a municipal authority responsible for approving
plats shall approve a plat if:

       (1) it conforms to the general plan of the municipality and its current
       and future streets, alleys, parks, playgrounds, and public utility

       3
           Chapter 245 defines a “project” as an endeavor over which a regulatory agency exerts
its jurisdiction “and for which one or more permits are required to initiate, continue, or complete
the endeavor.” Tex. Loc. Gov’t Code § 245.001(3). Likewise, a “permit” is defined as a form of
authorization “that a person must obtain to perform an action or initiate, continue, or complete a
project for which the permit is sought.” Id. § 245.001(1).

                                                11
       facilities; [and]
       (2) it conforms to the general plan for the extension of the
       municipality and its roads, streets, and public highways within the
       municipality and in its extraterritorial jurisdiction, taking into account
       access to and extension of sewer and water mains and the
       instrumentalities of public utilities[.]

See id. § 212.010(a)(1)–(2).

       Indeed, the City relied on section 212.010 in denying Premier’s initial plat
application based on an allegedly preexisting “general plan.” Specifically, the first
reason cited in the City’s certification of its reasons was that the plat “does not
conform to the general plan of the City and its current and future streets, alleys,
parks, playground, and public utility facilities as provided by Section 212.010.”
Similarly, in the City’s certified reasons for denying Premier’s third plat
application, the City repeated this statement and added that “[t]he City’s general
plan, as reflected in its existing streets and bridges that provide vehicular and
pedestrian access, is not adequate for, and does not contemplate the construction of
a large dry-stack boat storage or other similar large-scale commercial activity at
the location of the property” (emphasis added).

       But, the City Parties do not identify any general plan or existing regulations
that were ostensibly applied to the Project.4 Nor do the City Parties attach any
evidence to their plea. The City Parties likewise make no attempt to explain their
vague reference to a denial based on a general plan that is “reflected in its existing
       4
          In its certifications, the City also repeatedly identified provisions of a “Code of
Ordinances” as another basis for alleged noncompliance, but no such code appears in our record.
The City Parties do not claim that this Code of Ordinances, which Premier alleges concerns
building codes and related matters, existed before Premier filed its initial plat application. Nor do
the City Parties offer any argument as to why a subsequently enacted ordinance governing
building codes should limit Premier’s vested rights. Premier relies on Town of Lakewood Village
v. Bizios to argue that “building codes” are not the equivalent of “rules governing plats and
subdivisions” under chapter 212 and thus are inapplicable to Premier’s plat applications. See 493
S.W.3d 527, 532–33 (Tex. 2016). The City Parties do not respond to this argument.

                                                 12
streets and bridges.” Nor do the City Parties contend that the initial plat application
failed to meet any required technical requirements for plat applications. See
id. § 245.002(f).

      We are aware of no authority that authorizes a general-law municipality like
the City to rely on an unwritten “general plan” that is immune from review to deny
a permit applicant’s vested rights in a project. Further, such a plan appears
inconsistent with the Local Government Code, which contemplates that a
municipality’s rules, regulations, and other requirements are effective only upon
their adoption after a public hearing. For example, chapter 212 provides that
“[a]fter a public hearing on the matter, the governing body of a municipality may
adopt rules governing plats and subdivisions of land within the municipality’s
jurisdiction to promote the health, safety, morals, or general welfare of the
municipality and the safe, orderly, and healthful development of the municipality.”
Id. § 212.002. Section 212.044, which specifically references the adoption of
general plans, similarly provides:

      After a public hearing on the matter, the municipality may adopt
      general plans, rules, or ordinances governing development plats of
      land within the limits and in the extraterritorial jurisdiction of the
      municipality to promote the health, safety, morals, or general welfare
      of the municipality and the safe, orderly, and healthful development of
      the municipality.
Id. § 212.044 (emphasis added). Section 212.044’s requirement that a general plan
be adopted after a public hearing is also consistent with chapter 213, which
requires that a city’s comprehensive plan also must be formally adopted after a
public hearing. See id. §§ 213.002, 213.003(a). And chapter 211 provides that
zoning regulations are “not effective until after a public hearing on the matter at
which parties in interest and citizens have an opportunity to be heard.”
Id. § 211.006(a). Moreover, chapter 245 allows a city to consider only “any orders,
                                          13
regulations, ordinances, rules, expiration dates, or other properly adopted
requirements in effect” when the first permit in a series is filed. See
id. § 245.002(a).

       Thus, although the City Parties maintain that they repeatedly rejected
Premier’s plat applications on the basis of “existing regulations” and not the
subsequently enacted Ordinance, the City Parties have presented no argument or
evidence to support their allegations. The City Parties instead primarily rely on an
alleged “general plan” to deny approval of Premier’s plat applications, which just
happens to reach the same result as would applying the Ordinance. Moreover, the
City Parties have not alleged or presented evidence that the other reasons for
denying Premier’s plat applications were either in effect before Premier submitted
its initial plat or are applicable.

       In contrast, Premier has alleged that the City had no general plan at the time
it submitted its initial plat application for a marina development that included
residences and dry boat storage; Premier’s rights in the Project vested on April 22,
2010, when Premier submitted the plat application to the City; within days of
Premier’s submission, the City Parties enacted the Ordinance specifically to
prohibit the Project; and, since then, the City Parties have repeatedly denied every
revised plat application Premier has offered based on an unwritten “general plan”
and other reasons that either were not in effect at the time the Project vested or are
inapplicable to a city’s consideration of plat applications. Premier supports its
allegations with its plat applications, the Ordinance, and the City’s certified
reasons for denying each plat application.

       Additionally, in opposition to the City Parties’ plea, Premier submitted the
affidavit of Jennifer Hoff, a senior vice president of IBC and a vice president of
Premier. In her affidavit, Hoff averred that, among other things, Premier paid $5.7

                                         14
million for the Property in February 2009; Premier always intended to develop or
market the Property for development as a marina with, among other things,
elevated dry boat storage; the City had no zoning ordinance and had not adopted a
comprehensive plan at the time the plat was filed; and Hoff believes that the
Ordinance was adopted in an attempt to “prevent Premier from developing dry
boat storage” in the City.

      Thus, despite the City Parties’ representations to the contrary, a dispute
exists concerning the primary jurisdictional fact on which the City Parties rely:
whether the City Parties have properly denied Premier’s plat applications based on
regulations that preexisted Premier’s initial plat application or whether the City
Parties have improperly refused to recognize Premier’s vested rights in the Project
by denying Premier’s plat applications based on subsequently enacted ordinances,
rules or regulations, or other reasons that are inapplicable or irrelevant. We
therefore reject the City Parties’ argument that Premier has not pleaded a claim to
which chapter 245 applies.

             2.     Premier’s request for declaratory judgment is ripe.

      The City Parties next contend that Premier’s claims for enforcement of
chapter 245 are not justiciable because they are not ripe. In particular, the City
Parties maintain that because they have not yet applied the Ordinance to the
Project, no justiciable controversy has yet arisen. Additionally, the City Parties
argue that because they have conceded that the Ordinance was enacted after the
first plat application was received and that, under chapter 245, the City Parties are
prohibited from applying the Ordinance to the Project, a declaratory judgment
regarding the applicability of the Ordinance could do no more than state that which
is undisputed.

      As we have already explained, Premier seeks a declaratory judgment to
                                         15
confirm the existence and extent of its vested rights to develop the Project and to
determine what aspects of the City’s regulatory scheme apply to the Project.5
Premier’s petition and the evidence show that the City Parties have had multiple
opportunities to determine the existence and extent of Premier’s vested rights in
the Project in Premier’s extensive negotiations with the City Parties, two
amendments to Premier’s plat application, and its submission of a PUD application
as provided in the Ordinance. Premier has also alleged and presented evidence that
further applications would be futile, as the City Parties have now denied Premier’s
initial and successive plat applications three times based on substantially the same
certified reasons. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex.
1998) (“[F]utile variance requests or re-applications are not required.”).

       Absent a judicial declaration, Premier alleges that it cannot move forward
with its Project as conceived or sell the Property to anyone else for development of
a similar project. And, contrary to the City Parties’ assertion, Premier’s claim for
declaratory relief is not based solely on the Ordinance; instead, Premier asks for
specific declarations that its vested rights permit it to develop the Project as a
multi-use facility that includes, among other things, dry boat storage and
apartments.6

       5
          In its live pleading, Premier requested the following declarations: “(i) the Vested Project
is vested under Chapter 245 as of April 22, 2010; (ii) the Vested Project is property described in
the Plat, specifically included Plat Notes 9–13; and is vested under Chapter 245 and, therefore,
dry boat storage is a permitted use; (iii) any provisions of the Ordinance that could inhibit the
development of the Vested Project through property classification do not apply to the Vested
Project, including but not limited to (a) limitations on the permitted or listing of the prohibited
uses and (b) PUD requirements; (iv) any provisions of the Ordinance that could inhibit the
development of the Vested Project related to building size do not apply to the Vested Project,
including but not limited to (a) height, (b) setback, and (c) parking; and (v) any provisions of the
Ordinance that could inhibit the development of the Vested Project related to (a) landscaping or
tree preservation, (b) open space or park dedication, (c) lot size, (d) lot dimensions, (e) lot
coverage, do not apply to the Vested Project.”
       6
           In its reply brief, the City Parties suggest that Premier’s request for declaratory relief is
                                                   16
       On this record, Premier has demonstrated that a justiciable controversy
exists that requires judicial resolution. Moreover, chapter 245 specifically
authorizes a declaratory judgment action for this purpose. See Tex. Loc. Gov’t
Code § 245.006(a); FLCT, Ltd. v. City of Frisco, 493 S.W.3d 238, 251–52 (Tex.
App.—Fort Worth 2016, pet. denied) (holding that property owner’s declaratory
judgment action to determine the existence and extent of its vested rights under
chapter 245 to develop a convenience store on its property was ripe and presented
a justiciable controversy concerning whether the city could impose local
ordinances prohibiting sales of beer and wine even though no beer and wine
license application was pending); Cont’l Homes of Tex., L.P. v. City of San
Antonio, 275 S.W.3d 9, 20 (Tex. App.—San Antonio 2009, pet. denied) (holding
that owner’s counterclaim for declaratory judgment was ripe and thus presented an
actual controversy over whether the owner had vested rights to develop property
under ordinances in effect at the time of vesting and owner also sought recognition
that all future development was governed by all ordinances, not merely a particular
ordinance). We hold that the trial court did not err in denying the City Parties’ plea
to the jurisdiction and overrule the City Parties’ first issue.




unnecessary because the City Parties agree that the trial court has jurisdiction over Premier’s
mandamus claim directed to the parties’ dispute over whether the Board was justified in denying
Premier’s plat applications. Thus, according to the City Parties, the declaratory judgment action
will resolve nothing because the City acknowledges that Chapter 245 applies and that the City
cannot enforce the Ordinance against the Project. On this record, however, Premier has alleged
facts supported by evidence contrary to the City’s assertion that it agrees with the declaratory
relief Premier seeks, and therefore the resolution of this issue is required before the trial court
can determine whether the Board may be compelled to perform a ministerial duty to approve the
plats as Premier requests. See Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex.
1991) (stating that a writ of mandamus may issue to compel a public official to perform a
ministerial act and explaining that an act is ministerial only “when the law clearly spells out the
duty to be performed by the official with sufficient certainty that nothing is left to the exercise of
discretion”).

                                                 17
II.    Premier’s Takings Claim

       In its second issue, the City Parties contend that the trial court erred in
denying their plea to the jurisdiction because Premier failed to plead a viable
regulatory takings claim. Specifically, the City Parties complain that Premier fails
to plead a viable takings claim because (1) the Ordinance was not applied to the
Property, (2) the claim is not ripe, and (3) Premier has not pleaded facts to support
its legal conclusions concerning the City Parties’ allegedly unreasonable
interference and the existence of any investment-backed expectation.

       A.      Standard of Review and Applicable Law

       The Just Compensation Clause of the Fifth Amendment provides that
“private property [shall not] be taken for public use, without just compensation.”
U.S. Const. amend. V. Similarly, Article I, section 17 of the Texas Constitution
provides, in pertinent part, that “[n]o person’s property shall be taken, damaged, or
destroyed for or applied to public use without adequate compensation being
made.” Tex. Const. art. I, § 17.7 Governmental immunity is waived for valid
takings claims. El Dorado Land Co. v. City of McKinney, 395 S.W.3d 798, 801
(Tex. 2013).

       Premier does not allege a physical taking of the Property, but instead alleges
that the City Parties have intentionally taken Premier’s vested property right to
market, develop, and/or use the Property as a marina with elevated dry boat storage
without Premier’s permission, without adequate compensation, and for public use.
Accordingly, Premier has alleged a regulatory taking based on an unreasonable
interference with its right to use and enjoy its property under the “Penn Central”
factors. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978);

       7
       We consider the federal and state takings claims together, as the analysis for both is
complementary. Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 477 (Tex. 2012).

                                             18
Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 672–73 (Tex. 2004);
see also City of Houston v. Maguire Oil Co., 342 S.W.3d 728, 735–36 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied) (discussing the multiple distinct
theories a plaintiff may invoke in challenging a government regulation as an
unconstitutional taking).

      A “Penn Central” takings claim may arise when a governmental entity has
denied a landowner approval to develop his property. See City of Lorena v. BMTP
Holdings, L.P., 409 S.W.3d 634, 644–46 (Tex. 2013) (applying Penn Central
factors to developer’s regulatory takings claim that city approved landowner’s
subdivision plat and subsequently enforced a moratorium against the property);
Mayhew, 964 S.W.2d at 935–36 (applying Penn Central factors to town’s rejection
of landowner’s development plan). In Penn Central, the United States Supreme
Court identified three key factors to guide our analysis: (1) the economic impact on
the claimant; (2) the extent of interference with the claimant’s investment-backed
expectations; and (3) the character of the government’s action. City of Lorena, 409
S.W.3d at 644 (citing Penn Cent., 438 U.S. at 124). In addition to these factors, we
should consider all surrounding circumstances. See id. The extent of the
governmental intrusion may be a question for the trier of fact, but whether the facts
alleged constitute a taking is a question of law. Sheffield, 140 S.W.3d at 673.

      B.     Application of Law to Facts

             1.    Premier has alleged facts to support a taking based on the
                   denial of its vested rights in the Project.
      The City Parties first complain that Premier’s allegations are insufficient to
allege a takings claim because the Ordinance was not applied to the Property. We
have already explained in detail that despite the City Parties’ repeated assertions
that they have not applied the Ordinance, Premier has alleged facts supported by

                                         19
evidence that raise a fact issue concerning whether the City Parties’ repeated
rejections of Premier’s plats are based on legitimate reasons or the City Parties’
refusal to recognize Premier’s vested rights. Additionally, Premier points out that
before it purchased the Property, the previous owner was in the process of
constructing a marina with dry boat storage. After that project was destroyed
during Hurricane Ike, Premier purchased the Property from IBC for use as a
marina with dry boat storage. The City Parties do not contest this allegation.
Viewed in the light most favorable to Premier, the existence of a similar marina
development in the area before Premier acquired the Property supports Premier’s
assertion that the City had no existing regulations prohibiting such development at
the time Premier purchased the Property.

            2.     Premier’s regulatory takings claim is ripe.

      The City Parties next assert that Premier’s claim is not ripe because its live
pleading affirmatively demonstrates that the City Parties did not apply the
Ordinance to the Property, and therefore the City Parties have not made a final
decision concerning “the extent of permitted development” under the Ordinance.
We have rejected the City Parties’ cursory ripeness argument in our discussion of
Premier’s declaratory judgment action and the same analysis applies here.

            3.     Premier has pleaded facts to support its legal conclusions.

      Lastly, the City Parties argue that Premier has not pleaded facts to support
two of its legal conclusions. According to the City Parties, Premier has failed to
allege facts to support its claims that any interference by them was unreasonable
and that an investment-backed expectation existed.

                   a.    Unreasonable interference

      The City Parties assert that Premier has not pleaded facts to support its legal

                                         20
conclusion that any interference by them was unreasonable because “[t]he mere
fact that a regulation has destroyed the most profitable use of property does not
establish a compensable taking,” citing Edwards Aquifer Authority v. Bragg, 421
S.W.3d 118, 139 (Tex. App.—San Antonio 2013, pet. denied).

      According to the City Parties, Premier alleges no more than that the City’s
regulations prevent it from pursuing one particular type of development that would
include a large, multistory dry stack boat storage facility. The City Parties maintain
that the City’s denials of Premier’s plat applications does not establish a taking
because Premier “has never pursued any alternative developments.” The City
Parties cite no authority for the proposition that Premier is obligated to propose or
undertake some other, unspecified type of development that differs from Premier’s
investment-backed expectations before Premier may allege a viable takings clam.
Indeed, “[t]he existing and permitted uses of the property constitute the ‘primary
expectation’ of the landowner that is affected by the regulation.” Hearts Bluff
Game Ranch, Inc. v. State, 381 S.W.3d 468, 491 (Tex. 2012) (quoting Mayhew,
964 S.W.2d at 936).

      In this case, Premier claims it has a vested property interest in the use and
enjoyment of its property as dry boat storage when it filed its plat application on
April 22, 2010, and that dry boat storage buildings were permitted when Premier’s
rights vested. Premier alleges that the City Parties have “created a direct restriction
on Premier’s use of its property, and has unreasonably interfered with Premier’s
use and enjoyment of its property.” In support of its allegations, Premier
incorporates the facts alleged in its petition, including the following: the City had
no zoning Ordinance or other duly adopted ordinances or plans that would prohibit
dry boat storage when Premier’s rights vested on April 22, 2010; the City
subsequently adopted the Ordinance prohibiting dry boat storage buildings; the

                                          21
City has since rejected Premier’s initial platting application and two revised
platting applications based on one or more zoning ordinances or on items that are
either not duly adopted, irrelevant, or inapplicable; and the City’s actions have
followed years of negotiations and litigation that have caused Premier to suffer an
uncompensated taking of private property well in excess of $2 million.

      Premier has also supported its allegations with evidence including its initial
and amended plats, the subsequently enacted Ordinance prohibiting dry boat
storage, the City’s three certifications of reasons for rejecting Premier’s plat
applications based on the included dry boat storage, and the affidavit of Premier’s
vice president, Jennifer Hoff, who averred that that the City’s refusal to approve
the Project “has resulted in Premier’s inability to either construct a marina with
elevated dry boat storage or market the Property as a marina with elevated dry boat
storage which was Premier’s intention when it acquired the Property.”

      In response, the City Parties merely deny that they have applied the
Ordinance and otherwise assert only that the City rejected Premier’s plat
applications primarily based on “existing regulations.” But the City Parties have
presented no evidence of these “existing regulations” or any of the other asserted
grounds for repeatedly denying Premier’s plat applications.

      Construing Premier’s pleadings liberally in favor of jurisdiction, looking to
Premier’s intent, and accepting the allegations in the pleadings as true, we
conclude that Premier’s petition adequately alleges that a taking occurred through
regulatory action that unreasonably interfered with Premier’s right to use and enjoy
its property. See Vill. of Tiki Island v. Ronquille, 463 S.W.3d 562, 576–77 (Tex.
App.—Houston [1st Dist.] 2015, no pet.) (holding that homeowner adequately
pleaded that city’s ordinance prohibiting short-term rentals inexcusably interfered
with her right to use and enjoy her property when her pleadings alleged that short-

                                        22
term rentals were permitted before the ordinance was adopted; she relied on city
officials’ assurances that short-term rentals were permitted; the ability to rent short
term was a major part of her decision to purchase her house; the ability to rent
short-term enhanced the value of her property; and the prohibition on short-term
rental decreased the value of her property).

                    b.    Investment-backed expectation

      Second, the City Parties assert that Premier has failed to plead any facts to
support any investment-backed expectation at any relevant time, namely when
Premier’s affiliate, IBC, loaned money to Faidi. The City Parties maintain that
Premier has failed to plead any factual allegations that IBC loaned the money to
Faidi with an investment-backed expectation that the Property would include dry
stack boat storage. The City Parties do not explain why such an allegation is
necessary, as IBC was not then the property owner. Nor do the City Parties explain
why it is significant that Premier was IBC’s affiliate when IBC foreclosed on the
Property and subsequently conveyed it to Premier.

      Contrary to the City Parties’ contention, Premier’s petition includes the
following allegations to support its claim of an investment-backed expectation:

      At the time Premier acquired the Property, it had a reasonable
      investment-based expectation . . . to develop and/or market the
      Property as a marina with elevated dry boat storage. Shortly after
      acquiring the Property, Premier began marketing the Property and
      receiving offers to purchase the Property. Both Premier’s marketing
      attempts and offers to purchase the Property included elevated dry
      boat storage. It was Premier’s intention to profit from the sale of the
      Property or from the development of the Property itself.
      Through Premier’s marketing campaign to sell the Property as a
      marina with elevated dry boat storage, it received offers to purchase
      the Property from many entities, including, but not limited to: Ersa
      Grae Corporation; Amerifund Capital Group, LLC; Claremont

                                          23
      Property Company; The Fingers Companies; United Equities, Inc.;
      AmeriFund Capital Development, LLC; M. Nasr and Partners; P.C,
      Rose Properties, Inc.; Vintage Development Group; Seven Kings
      Holdings; Atlantic Marine; Isis Investments, LP; and Thomas F.
      Noons. One such offer was for the purchase price of $10,000,000.

      . . . Importantly, none of these offers . . . were consummated due to
      the fact that [the City] and the Aldermen interfered with Premier’s
      vested rights and intention to market the Property as a marina with
      elevated dry boat storage. . . . To this day, Premier still cannot sell the
      Property in accordance with its vested rights as [the City] refuses to
      allow Premier to develop the Property with elevated dry boat storage.
      This has resulted in significant adverse economic impact to Premier as
      Premier cannot sell or develop the Property as a marina with elevated
      dry boat storage.
Premier also alleges that the City Parties’ actions have amounted to years in which
Premier has been unable to use and enjoy its property and that the City Parties have
interfered with Premier’s investment-backed expectations by improperly
attempting to enforce subsequently enacted statutes and regulations against
Premier. Premier’s allegations are also supported by Hoff’s affidavit.

      We conclude that Premier has adequately pleaded a viable takings claim by
alleging that at the time it acquired the Property, it had a reasonable investment-
backed expectation to develop or market the Property as a marina with elevated dry
boat storage, and that the City Parties have interfered with Premier’s investment-
backed expectations by repeatedly denying Premier’s vested rights to its Project
based on items irrelevant to plat applications or ordinances adopted after Premier’s
rights vested. See id. at 577–78. We overrule the City Parties’ second issue.




                                          24
                                    CONCLUSION

      We overrule the City Parties’ issues and affirm the trial court’s order
denying the City Parties’ first amended plea to the jurisdiction.




                                       /s/     Ken Wise
                                               Justice



Panel consists of Justices Christopher, Donovan, and Wise.




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