                                                                                       ACCEPTED
                                                                                  04-15-00053-CV
                                                                       FOURTH COURT OF APPEALS
                                                                            SAN ANTONIO, TEXAS
                                                                              2/4/2015 6:58:33 PM
                                                                                    KEITH HOTTLE
                                                                                           CLERK



                          NO. 04-15-00053-CV
                                                                  FILED IN
                                                           4th COURT OF APPEALS
                         In the Court of Appeals            SAN ANTONIO, TEXAS
                                                           2/4/2015 6:58:33 PM
                                 for the
                                                             KEITH E. HOTTLE
                             Fourth District                       Clerk

                          San Antonio, Texas

                             THELMA FRANCO,
                                      Appellant
                                     V.

               RODERICK J. SANCHEZ, AS DIRECTOR OF
       DEVELOPMENT SERVICES FOR THE CITY OF SAN ANTONIO,
 THE CITY OF SAN ANTONIO, PLANNED PARENTHOOD SOUTH TEXAS, AND
                   DELANTERO INVESTORS, LTD.,
                                   Appellees

   On Appeal from the 288th Judicial District Court of Bexar County, Texas
                        (Cause No. 2015-CI-00039)

APPELLANT’S OPPOSED MOTION FOR TEMPORARY STAY AGAINST
     RODERICK SANCHEZ AND THE CITY OF SAN ANTONIO
       FROM ISSUING A CERTIFICATE OF OCCUPANCY

                                   DENNIS J. DROUILLARD
                                   State Bar No. 00793641
                                   Riverview Towers
                                   111 Soledad, Suite 339
                                   San Antonio, Texas 78205
                                   Telephone: (210) 299-7680
                                   Facsimile: (210) 299-7780
                                   E-mail:     DennisDrouillard@aol.com
                                   COUNSEL FOR APPELLANT
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

       Comes now Appellant, Thelma Franco, and files this Opposed Motion for

Temporary Stay Against Roderick Sanchez and the City of San Antonio from

Issuing a Certificate of Occupancy and requesting a stay of the issuance of a

Certificate of Occupancy pending resolution of this interlocutory appeal, and in

support thereof would respectfully show this Court the following:

                                         I. Request

       Mrs. Franco seeks a temporary stay to stop the City of San Antonio and Mr.

Sanchez from issuing a Certificate of Occupancy for the location at 2140 Babcock

Road. The effect of this request is to preserve this Court’s jurisdiction to review

the trial court’s denial of the temporary injunction Mrs. Franco sought.

       Without such a stay, the City and Mr. Sanchez could issue a Certificate of

Occupancy that results in changed circumstances that obviates the need for an

interlocutory review of the trial court’s decision. Such a changed circumstance

would deprive this Court of jurisdiction.

                                     II. Introduction

       The underlying dispute in the trial court centers upon Mrs. Franco’s efforts

to obtain relief because of the City’s1 refusal2 to grant her an administrative


1
  Mrs. Franco sued both the City of San Antonio and Mr. Roderick J. Sanchez, in his official
capacity. Mr. Sanchez was sued because he was the official against whom mandamus was
sought. Regardless, suit against a governmental official in his official capacity is the same as


                                               2
hearing wherein she sought to appeal to the City’s Board of Adjustment a zoning

decision3 by one of the City’s administrative officials regarding the location of

2140 Babcock Road.

       The underlying record—including the Reporter’s Record of January 28,

2015—will more fully demonstrate the zoning concerns alleged.

       In general, Mrs. Franco alleged that the location under construction is to be

operated by Planned Parenthood South Texas as an ambulatory surgical center to

conduct thousands of abortions per year. Planned Parenthood has admitted that the

location is intended as more than a neighborhood center but is intended as a

regional center to service South and West Texas.

       Mrs. Franco alleged in the trial court that the location is designated within a

C-1 zoning district but that under the City’s Unified Development Code (UDC) an

ambulatory surgical center of such intense commercial use should only be within a

C-2 or C-3 zoning district. The record from below is expected to show that the

suit against the governmental entity. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844
(Tex. 2007) (citing to decisions regarding claims under 42 U.S.C. § 1983 in Kentucky v.
Graham, 473 U.S. 159, 165 (1985) and Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 581
(Tex. 2001)). Additionally, the City has not disavowed the action and inaction of Mr. Sanchez.
Therefore, Mrs. Franco may characterize the action of Mr. Sanchez as being that of the City.
2
  Refusal is a benign word considering that the Reporter’s Record is expected to reflect testimony
indicating that the City did not even retain or file the administrative appeal.
3
  Despite Mrs. Franco’s position, the City essentially contests in the trial court that the subject
action constitutes an administrative decision by an official that is subject to appeal under either
the City’s Unified Development Code (UDC) (which is the City’s municipal zoning law) or TEX.
LOC. GOV’T CODE § 211.010.



                                                3
location sits next to Mrs. Franco’s subdivision known as Dreamhill Estates and that

even during current construction the intensity of vehicular traffic has increased

substantially within the subdivision.

      On January 2, 2015—the same afternoon that the City refused the

administrative appeal—Mrs. Franco filed suit in state district court seeking a writ

of mandamus against Mr. Sanchez and the City whereby she sought a judicial

order directing the acceptance and filing of the administrative appeal. In the suit,

she alleged that Mr. Sanchez and the City either refused to perform a ministerial

act or abused their discretion.

      On January 7, 2015, Mrs. Franco filed a supplemental petition in the trial

court during which she sought a temporary restraining order and a temporary

injunction against both Mr. Sanchez and the City to enjoin the issuance of several

municipal approvals, including a Certificate of Occupancy for the location.

      On January 14, 2015, Mr. Sanchez and the City entered into an agreed

temporary restraining order with Mrs. Franco.

      On January 28, 2015, the trial court conducted a hearing on the issue of a

temporary injunction and issued a letter ruling on January 29, 2015 wherein the

trial court denied the request for temporary injunction.




                                          4
               III. Some of the Zoning Law Impacting the Case

      The City’s UDC at Section 35-401(d) reads:

            Certificates of Occupancy.

            (1) Requirement. Except as provided in subsection (2)
            below, all uses, including nonconforming uses, shall
            obtain a certificate of occupancy as required by the
            International Building Code.

            (2) Exceptions. The following shall not require
            certificates of occupancy:

            • Home occupations subject to section 35-378

            (3) Records. The director of development services shall
            maintain a record of all certificates of occupancy and
            copies shall be furnished, upon request, to any person
            having a proprietary or tenancy interest in the property
            affected.

            (Ord. No. 98697 § 4) (Ord. No. 2010-11-18-0985, § 2,
            11-18-10) (emphasis is contained in original text;
            underlining added)


      From the above quotation, the City adopted and incorporated the

International Building Code (IBC) as applied to a Certificate of Occupancy at

UDC § 35-401(d)(1). The pertinent section of the IBC reads:




                                         5
             R110.1 Use and occupancy.
             No building or structure shall be used or occupied,
             and no change in the existing occupancy
             classification of a building or structure or portion
             thereof shall be made until the building official has
             issued a certificate of occupancy therefor as
             provided herein. Issuance of a certificate of
             occupancy shall not be construed as an approval of
             a violation of the provisions of this code or of
             other ordinances of the jurisdiction. Certificates
             presuming to give authority to violate or cancel the
             provisions of this code or other ordinances of the
             jurisdiction shall not be valid.

             Exceptions:
             1. Certificates of occupancy are not required for
             work exempt from permits under Section R105.2.

             2. Accessory buildings or structures.

INT’L CODE COUNCIL, 2012 INT’L BUILDING CODE § R110.1 (Jun. 2011) (italics in
original).

      Based upon IBC § R110.1, it is clear that the location at 2140 Babcock Road

cannot open without the City’s issuance of a Certificate of Occupancy. Since

testimony below indicated an anticipated opening of the location to be on or about

March 1, 2015, and since one would expect some time to seek and obtain a

Certificate of Occupancy, the City may issue such a certificate at any time.

Regardless, based upon testimony below, it is likely that changed circumstances

may result and this Court lose jurisdiction over the interlocutory matter by March

1, 2015 unless a stay is issued.


                                          6
                                  IV. Basis for Request

       Pursuant to TEX. R. APP. P. 29.3, the Court is authorized to issue temporary

relief to protect the position of Mrs. Franco thereby ensuring that this Court does

not lose jurisdiction over a review of the interlocutory matter.

       Additionally, under TEX. LOC. GOV’T CODE § 211.010(c), the Legislature

granted an automatic statutory stay when an administrative appeal is taken to the

municipality’s Board of Adjustment. That section reads:

                 An appeal4 stays all proceedings in furtherance
              of the action that is appealed unless the official
              from whom the appeal is taken certifies in writing
              to the board facts supporting the official’s opinion
              that a stay would cause imminent peril to life or
              property. In that case the proceedings may be
              stayed only by a restraining order granted by the
              board or a court of record on application, after
              notice to the official, if due cause is shown.

TEX. LOC. GOV’T CODE § 211.010(c).

       Reading that legislative stay makes clear that the presumption is for a stay.

The City seems to have gotten around that automatic stay by refusing to accept and

set the appeal which counsel for Mrs. Franco attempted to file on January 2, 2015.




4
 Tex. Loc. Gov’t Code § 211.010(a) makes clear that this appeal is referencing an administrative
appeal to the Board of Adjustment.



                                               7
      Mrs. Franco seeks to protect her position in a review of the interlocutory

matter. Had her administrative appeal been pending, she would have enjoyed the

automatic statutory stay under the Local Government Code.

                             CONCLUSION AND PRAYER

      Based upon the foregoing, Mrs. Franco seeks temporary relief staying the

City and Mr. Sanchez from issuing a Certificate of Occupancy for the location of

2140 Babcock Road until this appeal is concluded. Mrs. Franco seeks any other

relief to which she may be justly entitled.

                                        Respectfully submitted,




                                        _______________________________
                                        DENNIS J. DROUILLARD
                                        State Bar No. 00793641

                                        Law Office of Dennis Drouillard
                                        Riverview Towers
                                        111 Soledad, Suite 339
                                        San Antonio, Texas 78205
                                        Telephone: (210) 299-7680
                                        Facsimile: (210) 299-7780

                                        ATTORNEY FOR PLAINTIFF,
                                        THELMA FRANCO




                                          8
                         CERTIFICATE OF COMPLIANCE

       Though TEX. R. APP. P. 52.10(a) pertains to original proceedings, in an
abundance of caution, the undersigned certifies that counsel for all Appellees were
notified in an e-mail on February 3, 2015 that this motion was to be filed. The
undersigned further certifies that this motion will be e-filed to all parties as a
means to give expedited notice under TEX. R. APP. P. 52.10(a).




                                      _______________________________
                                      Dennis J. Drouillard
                                      Attorney for Appellant


                         CERTIFICATE OF CONFERENCE

       The undersigned certifies that he provided expedited notice as indicated
above and that though he has not received an affirmative notice from Appellees’
respective counsel that they intend to oppose this motion, he has received a Motion
to Dismiss the appeal from Appellee Sanchez. Though the undersigned has yet to
read the full Motion to Dismiss, Sanchez’ motion makes it safe to represent that at
least one Appellee opposes this motion for temporary relief.




                                      _______________________________
                                      Dennis J. Drouillard
                                      Attorney for Appellant




                                        9
                         CERTIFICATE OF SERVICE

     The undersigned certifies that a true and correct copy of the foregoing
motion was delivered to following in accordance with the Texas Rules of
Appellate Procedure by the method indicated on February 4, 2015:

     Counsel for Appellee Roderick Sanchez, As Director of Development
     Services for the City of San Antonio:

           Mr. Shawn Fitzpatrick
           FITZPATRICK & KOSANOVICH, P.C.
           Post Office Box 831121
           San Antonio, Texas 78283-1121
           Via E-file to skf@fitzkoslaw.com

     Counsel for Appellee City of San Antonio:

           Ms. Deborah Lynne Klein
           Assistant City Attorney
           OFFICE OF THE CITY ATTORNEY FOR THE
             CITY OF SAN ANTONIO
           Litigation Division
           111 Soledad, Tenth Floor
           San Antonio, Texas 78205
           Via E-file to Deborah.Klein@sanantonio.gov

     Counsel for Appellee Planned Parenthood South Texas:

           Mr. Mark G. Sessions
           STRASBURGER & PRICE, LLP
           2301 Broadway
           San Antonio, TX 78215-1157
           Via E-file to Mark.Sessions@strasburger.com




                                     10
                     CERTIFICATE OF SERVICE

Counsel for Appellee Delantero Investors, Ltd.

      Mr. Merritt Clements
      STRASBURGER & PRICE, LLP
      2301 Broadway Street
      San Antonio, TX 75215
      Via E-file to Merritt.Clements@strasburger.com

Signed on February 4, 2015.




                                      Dennis J. Drouillard
                                      Attorney for Appellant




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