      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00790-CV



  2800 La Frontera No. 1A, Ltd.; 2800 La Frontera No. 2A, Ltd.; 941 Hester’s Crossing
 No. 1A, Ltd.; 941 Hester’s Crossing No. 2A, Ltd.; and 941 Hester’s Crossing No. 3A, Ltd.,
                                        Appellants

                                                v.

                             City of Round Rock, Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 07-175-C368, HONORABLE BURT CARNES, JUDGE PRESIDING



                            M E M O R A N D U M O P I N I ON


               Appellants (collectively “the Owners”) own apartment buildings in the La Frontera

development in Round Rock. After the City of Round Rock re-zoned adjacent land, the Owners

sued the City, alleging that the re-zoning had reduced the value of their property. The trial court

granted the City’s motion for summary judgment. On appeal, the Owners assert that there are

genuine issues of material fact on each of their causes of action and, therefore, that summary

judgment was improper. We will affirm the trial court’s judgment.
                      FACTUAL AND PROCEDURAL BACKGROUND

               In 1999, the City created Planned Unit Development No. 39 (“PUD 39”) on the

application of a developer named “35/45” (the “La Frontera Developer”).1 PUD 39 is better known

as La Frontera, a mixed-use development consisting of multifamily housing, shopping centers, and

office buildings situated at the northwest corner of the intersection of IH-35 and state highway 45.

When PUD 39 was created, the La Frontera Developer, which owned the entire 194-acre tract,

entered into an “agreement and development plan” with the City. The Owners claim that the

agreement specified that amendments, changes, or modifications to PUD 39 could not be made

without the approval of everyone who owned real property within the PUD at the time the

amendment was proposed.2 The original plan for PUD 39 allowed a maximum of 900 apartment

units to be built on the site. Two apartment complexes, the Enclave Apartments and Lakeside

Apartments, were built within PUD 39, containing a total of 777 units. Thus, when the Owners



       1
          A PUD is “[a] land area zoned for a single-community subdivision with flexible restrictions
on residential, commercial, and public uses.” Black’s Law Dictionary 1268 (9th ed. 2009). “A PUD
is primarily an alternative to traditional zoning since it provides a mixing of uses. The location and
identification of the permitted uses are provided on the PUD map or plat, which closely resembles
a subdivision plat. Development approval is generally granted for the PUD at one time rather
than on a lot by lot basis and in that way closely tracks the subdivision approval process.” Id.
(quoting Juergensmeyer & Roberts, Land Use Planning and Development Regulation Law § 7.15,
at 288 (2003)).
       2
          We note that the Owners’ brief actually asserts that “[t]he Agreement and Development
Plan for PUD 39 does not provide that amendments, changes or modification of PUD 39 can be
made with the approval of less than 100% of the owners of the real property which comprises
PUD 39.” (Emphasis in original.) This, of course, is different from saying that amending the PUD
affirmatively requires the consent of all current landowners. The text of the agreement itself merely
states that “[m]ajor changes to this Agreement or the Development Plan must be resubmitted
following the same procedure required by the original PUD application.” It is not clear from the
present record exactly what that procedure was.

                                                  2
bought the complexes, they assumed that only 123 additional multi-family units could be built in the

PUD. Because they thought that a 123-unit apartment complex would be too small to be

commercially viable, and because they believed that the City would need their consent to

allow additional multi-family units in PUD 39, the Owners assumed that they effectively had

123 additional units in reserve for future expansion.

               In April 2006, the La Frontera Developer and other property owners in PUD 39

submitted an application to amend the PUD to increase the total number of multifamily units

allowed. The City asked the Owners for their consent to the amendment, pursuant to the parties’

understanding of the agreement and development plan. The Owners refused, and the amendment

failed. In what the Owners claim was an “end around” the consent requirements for amending

PUD 39, the La Frontera Developer later filed applications to create two new PUDs out of land

within the boundaries of PUD 39. After holding public meetings, the City passed ordinances

creating PUD 70, a 9.04-acre tract zoned for 360 additional multi-family units, and PUD 72, a

17.889-acre tract.

               After creation of the new PUDs, the Owners sued the City, asserting claims of inverse

condemnation, spot zoning, declaratory judgment, promissory estoppel, and a violation of

substantive due process. The district court granted the City’s motion for summary judgment,

dismissing all of the Owners’ causes of action with prejudice. The Owners appeal, asserting the

existence of genuine issues of material fact.




                                                 3
                                   STANDARD OF REVIEW

               Whether a summary judgment is proper is a question of law that we review de novo.

FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). A movant is entitled

to summary judgment if (1) there are no genuine issues of material fact, and (2) it is entitled to

judgment as a matter of law. Tex. R. Civ. P. 166a(c). “[S]ummary judgment for a defendant is

proper only when the defendant negates at least one element of each of the plaintiff’s theories of

recovery, or pleads and conclusively establishes each element of an affirmative defense.”

Sci Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997) (citations omitted). “When

reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we

indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Provident

Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003).


                                          DISCUSSION

Validity of PUD 39’s Agreement Provision

               Before we analyze the Owners’ other issues on appeal, we first address whether the

City is bound by the owner-consent provision of the PUD 39 agreement and development plan.3 We

address this issue first because the Owners request declaratory relief on it and because the effect of

the provision underlies many of the Owners’ arguments.




       3
          As noted in footnote 2 supra, the plain language of the agreement does not actually require
unanimous consent for amendment. The City does not, however, directly contest the Owners’
interpretation of that provision. Accordingly, we will assume, for purposes of this appeal, that the
Owners’ interpretation is correct.

                                                  4
               The City asserts that the Owners’ claims concerning the agreement amount to

impermissible “contract zoning,” which occurs when a governmental entity agrees to zone land in

a certain way in exchange for a landowner’s agreement to use the land in a certain way. See City of

White Settlement v. Super Wash, Inc., 198 S.W.3d 770, 772 n.2 (Tex. 2006). The City claims that

it cannot cede its police power, including its authority to make zoning changes, by agreement.

               Zoning is a legislative function that the City cannot cede. City of Bellaire v. Lamkin,

317 S.W.2d 43, 45 (Tex. 1958); Super Wash, Inc. v. City of White Settlement, 131 S.W.3d 249, 257

(Tex. App.—Fort Worth 2004), rev’d on other grounds, 198 S.W.3d 770 (Tex. 2006). Therefore,

a city cannot “surrender its authority to determine proper land use by contract.” Super Wash, Inc.,

131 S.W.3d at 257.      Zoning decisions must occur via the legislative process and not by

“special arrangement” with a property owner. Id. (citing City of Arlington v. City of Fort Worth,

844 S.W.2d 875, 878 (Tex. App.—Fort Worth 1992, writ denied)).

               The Owners contend that they “do not assert the City is contractually bound to the

development and zoning plan embodied in the PUD 39 Agreement in perpetuity.” Rather, the

Owners argue that “the City was bound to follow the procedures it established for approving

major changes to PUD 39. One of the procedures is obtaining the consent of all landowners within

PUD 39.” In other words, the Owners assert that, in exchange for the La Frontera’s Developer’s

agreement to use the land as specified in the development plan, the City has established a procedure

that requires it to obtain consent from all of the property owners in PUD 39 before performing one

of its legislative functions. We find this distinction unconvincing. Labeling this requirement as a

“procedure” does not change the fact that the City would be “surrender[ing] its authority to



                                                 5
determine proper land use by contract.” See Super Wash, Inc., 131 S.W.3d at 257. Such a

requirement, whether substantive or procedural, is unenforceable. Insofar as any of the Owners’

claims for relief rely on the enforceability of the consent provision of the development plan, they

must fail.

               We will now address the Owners’ points of error.


Inverse Condemnation

                The Owners sued the City for inverse condemnation, alleging that the creation of

PUDs 70 and 72 constituted a regulatory taking under article I, section 17 of the Texas Constitution.4

See Tex. Const. art. I, § 17 (no private property may be taken, damaged, destroyed, or applied to

public use without just compensation). In an inverse condemnation suit, a property owner alleges

that a taking has already occurred and requests just compensation from the government. The general

elements of an inverse condemnation case are: “(1) an intentional act of a government entity;

(2) accomplished for a public purpose; (3) that damages or takes property from a private citizen.”

Domel v. City of Georgetown, 6 S.W.3d 349, 357 (Tex. App.—Austin 1999, pet. denied).




       4
          Although the Owners make no claim under the Fifth Amendment of the United States
Constitution, Texas courts consider federal jurisprudence when reviewing takings claims under the
Texas Constitution, even though the two takings clauses are not identical. See, e.g., Hallco Tex., Inc.
v. McMullen County, 221 S.W.3d 50, 56 (Tex. 2006); Sheffield Dev. Co. v. City of Elgin Heights,
140 S.W.3d 660, 669 (Tex. 2004); City of Austin v. Travis County Landfill Co., 73 S.W.3d 234,
238-39 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 932 (Tex. 1982).

                                                  6
       (i) The Penn Central Takings Test

               In a regulatory-taking suit, a property owner alleges that a governmental regulation

affects his or her property in a way that amounts to a taking. For a regulatory taking to occur, a

governmental regulation must, at a minimum, diminish the value of an owner’s property. Sheffield

Dev. Co. v. City of Elgin Heights, 140 S.W.3d 660, 670 (Tex. 2004). Not every regulation that

diminishes the value of property, however, is a taking. Id.

               There is no universal test to determine whether a regulation constitutes a taking. Id.

The United States Supreme Court has held that a regulation rises to the level of a taking when it goes

“too far.” Id. (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922)). What qualifies

as “too far” varies by situation. At least two situations are clear-cut: physical invasions of property

and regulations that strip away all economically beneficial uses of land are takings per se. Id. at 671.

In this case, the Owners do not claim that their property was physically invaded or that the City’s

zoning regulations eliminated all the economically beneficial uses of their property.

               In cases like the present one, we decide whether a regulation is a taking by applying

a careful analysis to balance the interests of private property owners and the public. Sheffield Dev.

Co., 140 S.W.3d at 671-72. We are to conduct this “ad hoc, factual inquir[y]” using the following

guiding factors: (1) the economic impact of the regulation on the claimant; (2) the extent to which

the regulation has interfered with the claimant’s reasonable investment-backed expectations; and

(3) the character of the governmental action. Id. at 672. In addition to these “Penn Central” factors,5




       5
        These factors were first enunciated by the Supreme Court in Penn Central Transport Co.
v. New York City, 438 U.S. 104, 124 (1978).

                                                   7
we should consider all relevant attendant circumstances as well. Hallco Tex., Inc v. McMullen

County, 221 S.W.3d 50, 56 (Tex. 2006).

               Our goal is to determine, after analyzing and balancing all relevant evidence, whether

fairness and justice demand that the burden of the regulation be borne by the public or by the private

landowner. Sheffield Dev. Co., 140 S.W.3d at 672. It is possible, however, that “the force of one

of the Penn Central factors may be so overwhelming that it is dispositive of whether a taking has

occurred.” Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 569 (Tex. App.—Tyler 2007, pet. denied)

(citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984)). Our “touchstone” is to “identify

regulatory actions that are functionally equivalent to the classic taking in which government directly

appropriates private property or ousts the owner from his domain.” Lingle v. Chevron U.S.A., Inc.,

544 U.S. 528, 539 (2005). Our inquiry “turns in large part, albeit not exclusively, upon the

magnitude of a regulation’s economic impact and the degree to which it interferes with legitimate

property interests.” Id. Our analysis must not be merely mathematical. Sheffield Dev. Co.,

140 S.W.3d at 677. Rather, while applying the balancing test, we must remember that “[p]urchasing

and developing real estate carries with it certain financial risks, and it is not the government’s duty

to underwrite this risk as an extension of obligations under the takings clause.” Id. at 677.

               Whether a zoning ordinance is a taking is a matter of law for the court to decide.

Id. at 673. “While we depend on the district court to resolve disputed facts regarding the extent of

governmental intrusion on the property, the ultimate determination of whether the facts are sufficient

to constitute a taking is a question of law.” Mayhew, 964 S.W.2d at 932-33. Stated another way,

“[t]he extent of the governmental intrusion may be a question for the trier of fact, but whether the



                                                  8
facts constitute a taking is a question of law.” Hallco Tex., Inc., 221 S.W.3d at 56 (citing Sheffield

Dev. Co., 140 S.W.3d at 673).

               The Owners claim that summary judgment was improper because their taking claim

turns on the following fact issues: (1) “whether the City acted to its own advantage to curry favor

with developers and in disregard of Appellants’ economic interests, reasonable investment-backed

expectations and use and enjoyment of their property;” (2) whether the City created PUDs 70 and

72 solely to promote the interests of the developer; and (3) whether the City should have conducted

a traffic-impact analysis, and whether its failure to do so renders the City’s decision arbitrary

and capricious.

               In analyzing whether the City was entitled to summary judgment, “we take as true all

evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant’s

favor.”   Provident Life & Acc. Ins. Co., 128 S.W.3d at 215-16. In our analysis, we examine the

Owners’ factual allegations in light of the takings test and determine whether, if proved at trial, they

would amount to a taking as a matter of law. If we determine that they would not, then summary

judgment for the City was appropriate; if, however, we determine that they would, then we must

remand the case for a determination of the disputed fact issues. We begin our analysis with the Penn

Central factors, and then consider other relevant evidence. See Sheffield Dev. Co., 140 S.W.3d

at 672.




                                                   9
               (1) Economic Impact on the Owners

               The first Penn Central factor, the regulation’s economic impact on the claimant, is

undisputed for the purpose of this appeal. The Owners presented expert testimony that the value of

their properties was reduced from $65.6 million to $62.9 million. The City’s expert testimony

suggested a smaller diminution in value, but the City stipulated to the Owners’ figure for the

purposes of this appeal. While significant in absolute terms, this diminution in value of $2.7 million

reflects a loss of only about 4%. The City cites several cases that suggest such a small diminution

in value is rarely if ever held to be a taking. The City claims that because the Owners’ loss was a

small part of their property’s value, they “failed to show that the Zoning Changes unreasonably

interfered with their use of the property.” While it is possible that this one factor could be

dispositive, see Canal Ins. Co., 238 S.W.3d at 569, it is not necessary that we hold it be so in this

case. The City is correct, however, when it asserts that the magnitude of the Owners’ loss weighs

heavily against their claims. See Lingle, 544 U.S. at 539 (“[T]he Penn Central inquiry turns in large

part, albeit not exclusively, upon the magnitude of a regulation’s economic impact and the degree

to which it interferes with legitimate property interests.”).


               (2) Interference with Reasonable Investment-Backed Expectations

               The second Penn Central factor requires us to consider the extent to which the

regulation has interfered with the Owners’ reasonable investment-backed expectations. Insofar as

the Owners’ investment-backed expectations included the belief that the City could not alter the

zoning of any property in PUD 39 without their agreement, we have already explained why those

expectations were not reasonable. The Owners admit that their expectations stem primarily from

                                                  10
their reliance on the PUD 39 agreement and development plan. They also assert that they relied on

the “PUD zoning structure” to insulate them from “arbitrary” zoning changes. The Owners appear

to argue that because their land was within a PUD—a comprehensive “subdivision-like” zoning

plan—the City had a heightened duty when amending the PUD or otherwise re-zoning the land

within it. It is well settled in Texas, however, that “property owners do not acquire a constitutionally

protected vested right . . . in zoning classifications once made.” City of University Park v. Benners,

486 S.W.2d 773, 778 (Tex. 1972). The City retains its legislative authority to re-zone at any time

as public necessity demands. City of Pharr v. Tippitt, 616 S.W.2d 173, 176 (Tex. 1981). The

Owners have not convinced us that there is sufficient justification, for the purposes of this analysis,

to treat the Owners’ reliance on zoning classifications in a PUD differently from any property

owner’s reliance on more conventional zoning classifications. We find it telling that the Owners

admit that the City has the same power to amend a PUD—or to create a new PUD out of an old

one—as it does to re-zone in general. We are unpersuaded by the Owners’ attempt to distinguish

a PUD from “classic” zoning.

               This, of course, does not defeat the Owners’ taking claim. The Owners are alleging

a taking because the City’s regulation diminished the value of their property by interfering with their

reasonable investment-backed expectations, not because they have a “vested interest” in a zoning

classification. Yet, the Owners assert that because their land was in a PUD they were “insulated”

from zoning changes to a greater degree than if it was not. This belief presumably formed part of

their investment-backed expectations.       For the reasons stated above, however, the Owners’




                                                  11
reasonable investment-backed expectations are no greater than any other land owner subject to

“conventional” municipal zoning.6

               Keeping this in mind, we find that the ordinances at issue here caused minimal

interference with the Owners’ reasonable investment-backed expectations. The Owners concede

that the only harm they have suffered is increased competition and a resulting diminution in the value

of their property. The City has not re-zoned the Owners’ property to prohibit a current or proposed

use, nor has the City substantially altered the character of the surrounding land use. The City simply

increased the number of multifamily units permitted within the original boundaries of PUD 39,

which already included a significant number of multifamily units. As the Texas Supreme Court

noted in Mayhew, the “existing and permitted uses of the property constitute the ‘primary

expectation’ of the landowner that is affected by regulation.” 964 S.W.2d at 936. In creating




       6
          The City asserts that the Owners’ taking claim fails as a matter of law because the Owners
cannot have a vested property right in a zoning classification, citing Watergate E. Comm. Against
Hotel Conversion v. District of Columbia Zoning Comm’n, 953 A.2d 1036 (D.C. 2008). In
Watergate East, the court of appeals for the D.C. Circuit held that the claimants had no vested rights
in an existing zoning classification of the Watergate Hotel and therefore could not recover on a
taking claim. Id. at 1046. The Owners argue that Watergate East is inapplicable to this case
because, unlike the claimants in Watergate East, the Owners do not argue that they have vested
rights in a specific zoning classification, only that they have a reasonable investment-backed
expectations with which the City interfered when it passed the re-zoning regulations. We note that
in Watergate East there is no indication that the claimants raised a “Penn Central” regulatory-taking
claim by alleging interference with their investment-backed expectations; rather, they based their
taking claim on the existence of a “‘vested interest’ in the current balance of uses within the PUD,”
which we take to be different from claimants’ reasonable investment-backed expectations with
respect to the then-existing zoning classifications. Id. Accordingly, Watergate East does not control
here, as changes in zoning ordinances based on interference with reasonable investment-backed
expectations often form the basis of regulatory-taking claim. See, e.g., Sheffield Dev. Co.,
140 S.W.3d at 663; Mayhew, 964 S.W.2d at 925.

                                                 12
PUDs 70 and 72, the City has not altered the existing or permitted uses of the Owners’ property and

therefore has not interfered with the “primary expectation” of the Owners.


               (3) Character of the Governmental Action

               The third Penn Central factor is the character of the governmental action. This factor

is the least concrete, and also appears to carry the least weight. See Lingle, 544 U.S. at 539 (“[T]he

Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation’s

economic impact and the degree to which it interferes with legitimate property interests.”). This

factor’s purpose, when viewed in light of the goal of the takings test—to determine if the constitution

requires the burden of the regulation to be borne by the public or the landowner—is to elicit

consideration of whether a regulation disproportionately harms a particular property. See Sheffield

Dev. Co., 140 S.W.3d at 678 (factor includes consideration of whether “the rezoning . . . was general

in character and not exclusively directed at” claimant). If the re-zoning was general in character, that

weighs against the property owner, whereas if the re-zoning impacted the claimant’s property

disproportionately harshly, that weighs in the owner’s favor.

               The Owners assert that the governmental action in this case targeted two small

subsections of an otherwise-cohesive PUD, thereby increasing competition for their apartment

businesses. The Owners also assert that because a PUD is a cohesive unit of development, it should

be partitioned infrequently and only to meet important public needs. They claim that the City

amended PUD 39 solely to satisfy the La Frontera Developer. The Owners cite as evidence for this

contention the fact that the City failed to conduct a traffic-impact analysis or otherwise analyze the

impact on PUD 39 of adding multifamily units. The City responds by citing language from city

                                                  13
ordinances and public meeting minutes that suggests the new PUDs were crafted to “create a more

modern pedestrian-friendly and urban environment.” The City also cites evidence that “the City staff

supported the changes as beneficial and appropriate improvements to the existing development

standards of the PUD.” The Owners dismiss this evidence, which is contained in the public meeting

minutes, as self-serving and not reflective of the true nature of the City’s conduct. They assert that

the City invented the pedestrian-friendly-urban-environment explanation as a pretext to justify the

new PUDs after it realized that the Owners might sue. In support of this argument, the Owners claim

that the changes in the ordinance creating PUD 72 have nothing to do with creating an “urban

environment,” and no modifications were made to PUD 70 at all except to excise the land from

PUD 39.

               The Owners’ fact questions relate to this third Penn Central factor as well as the

circumstances of the ordinance’s enactment, so we will address them now. All three questions are

part and parcel of the same essential inquiry: whether the City created PUDs 70 and 72 for the

public welfare or did so to benefit the private interests of the La Frontera Developer. The Owners

presented evidence that could lead a reasonable fact-finder to conclude that one of the City’s

purposes, or perhaps even its primary purpose, for enacting the ordinances was to benefit the

La Frontera Developer. That evidence does not preclude summary judgment for the City, however,

because the other two Penn Central factors—particularly the first—weigh so heavily against the

Owners that, as a matter of law, there is no taking here.

               The ordinances in this case simply do not go “too far” such that fairness and justice

require their cost to be borne by the public. The relative diminution in value of the Owners’ property



                                                 14
is very small. The degree of interference with their reasonable investment-backed expectations is

modest, as the City’s re-zoning merely allowed increased competition and did not prohibit any

current or future use of their property. The ordinances were also not specifically targeted at the

Owners, particularly given that “[z]oning changes are to be expected, especially in growing

communities.” Sheffield Dev. Co., 140 S.W.3d at 678. With respect to the attendant circumstances,

even assuming the City’s primary motivation was to assist the La Frontera Developer, the first

two Penn Central factors weigh too heavily against the Owners’ claims. In sum, this case is not one

in which the “regulatory actions [] are functionally equivalent to the classic taking in which

government directly appropriates private property or ousts the owner from his domain.” Lingle,

544 U.S. at 539.


        (ii) The “Substantial Advancement” Takings Test

                The Owners argue that another takings test also applies in this case; they assert that

the City’s ordinances effect a taking of their property because the ordinances “do not substantially

advance legitimate state interests.” Although the United States Supreme Court previously held that

a regulation “effects a taking if [it] does not substantially advance legitimate state interests,” Agins

v. Tiburon, 447 U.S. 255, 260 (1980), it rejected this test in 2005, see Lingle, 544 U.S. at 540 (“We

conclude that [the ‘substantial advancement’ test] prescribes an inquiry in the nature of a due

process, not a takings, test, and that it has no proper place in our takings jurisprudence.”). Following

Agins, the Texas Supreme Court has also applied the “substantial advancement” test to state

regulatory-taking claims, but it has had no opportunity to address whether the test still applies in

light of Lingle. We believe that, post-Lingle, the Texas Supreme Court would no longer recognize

                                                  15
the substantial-advancement test. Even assuming that the test is still valid, however, we find

no taking.

                “‘A broad range of governmental purposes and regulations’ will satisfy [the

substantial advancement test].” Mayhew, 964 S.W.2d at 934 (quoting Nollan v. California Coastal

Comm’n, 483 U.S. 825, 834-35 (1987)).


        The “substantial advancement” requirement examines the nexus between the effect
        of the ordinance and the legitimate state interest it is supposed to advance. This
        requirement is not, however, equivalent to the “rational basis” standard applied to
        due process and equal protection claims. The standard requires that the ordinance
        “substantially advance” the legitimate state interest sought to be achieved rather than
        merely analyzing whether the government could rationally have decided that the
        measure achieved a legitimate objective.


Id. (citations omitted). In applying the test, we may consider the City’s statements, positions, or

findings issued before or after the re-zoning decision. Sheffield Dev. Co., 140 S.W.3d at 675. The

City need not prove with certainty that its re-zoning will substantially advance the supposed

legitimate state interest. Id. at 676. “[T]he actual effects of the City’s rezoning are for the future and

can only be projected and estimated.”          Id.   Thus, a zoning decision meets the substantial

advancement test if a zoning authority “could reasonably conclude that the [zoning decision] would

substantially advance a legitimate state interest.” Id. We do not review the wisdom of the City’s

decision, only its constitutionality. Mayhew, 964 S.W.2d at 935.

                The City asserts that its ordinances promote a “mixed-use, pedestrian friendly, urban

development” that will “enhanc[e] the quality of life of its citizens.” The Owners contend that the

City’s stated goal is a pretext—that its real goal was only to benefit the La Frontera Developer by



                                                     16
making its land more valuable. Even if that were true, however, we are not required to consider the

City’s actual purpose. Instead, we look for a “nexus between the effect of the ordinance and the

legitimate state interest it is supposed to advance.” Id. at 934 (emphasis added). We hold that the

City’s stated goal passes this test. The City could reasonably have concluded that increasing housing

density in a PUD already zoned for multifamily housing, shopping centers, and office space would

advance the legitimate state interest of enhancing the quality of life of citizens by decreasing traffic,

lowering commuting times, and encouraging citizens to walk.

                Because there is no taking under either test, we overrule this issue.


Spot Zoning

                The Owners assert that genuine issues of material fact exist as to whether the City

performed “spot zoning” by creating PUDs 70 and 72 out of land formerly zoned within PUD 39.

Spot zoning is an “unacceptable amendatory ordinance that singles out a small tract for treatment

that differs from that accorded similar surrounding land without proof of changes in condition.”

Tippitt, 616 S.W.2d at 177. It is “a preferential treatment which defeats a pre-established

comprehensive plan; [i]t is piecemeal zoning, the antithesis of planned zoning.” Id. Even in the

absence of changed conditions, however, a city does not commit spot zoning if a re-zoning

amendment bears a “reasonable relation to the general welfare and to an orderly plan of zoning

development.” Benners, 485 S.W.2d at 780.

                Whether a zoning ordinance is valid is a question of law. Tippitt, 616 S.W.2d at 175.

A zoning ordinance is presumed to be valid, and the courts have no authority to interfere with it

unless it is “unreasonable and arbitrary—a clear abuse of municipal discretion.” Hunt v. City of

                                                   17
San Antonio, 462 S.W.2d 536, 539 (Tex. 1971). If reasonable minds could differ about whether a

zoning ordinance is substantially related to the public health, safety, welfare, morals, or general

welfare, then there is no abuse of discretion, and the ordinance stands. Id. “An extraordinary burden

rests on one attacking the ordinance to show that no conclusive or even controversial issuable facts

or conditions exist” to support the City’s use of its municipal police power. Id. On the other hand,

that presumption vanishes in the presence of spot zoning. Tippitt, 616 S.W.2d at 178.

                The supreme court employs several criteria to determine whether an ordinance

constitutes spot zoning. First, “the approved zoning plan should be respected and not altered for the

special benefit of the landowner when the change will cause substantial detriment to the surrounding

lands or serve no substantial public purpose.” Tippitt, 616 S.W.2d at 176. Second, “[t]he nature and

degree of an adverse impact upon neighboring lands is important. Lots that are rezoned in a way that

is substantially inconsistent with the zoning of the surrounding area, whether more or less restrictive,

are likely to be invalid.” Id. at 177. Third, “[t]he suitability or unsuitability of the tract for use as

presently zoned is a factor.” Id. Fourth, “[t]he amendatory ordinance must bear a substantial

relationship to the public health, safety, morals or general welfare or protect and preserve historical

and cultural places and areas. The rezoning ordinance may be justified, however, if a substantial

public need exists, and this is so even if the private owner of the tract will also benefit.” Id.

(citations omitted).

                The Owners claim that by “carving” PUDs 70 and 72 from PUD 39 and then applying

differing standards and regulations to the new PUDs, the City has acted contrary to its

comprehensive zoning plan. The Owners also assert that the City presents no evidence of changed



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conditions that warrant a change in zoning. They claim that there are “genuine issues of material

facts [sic] as to whether the ordinances creating PUD 70 and PUD 72 were arbitrary, capricious,

unreasonable, abusive and not substantially related to the public health, safety, morals or general

welfare.” The Owners cite evidence that suggests that the impetus for the zoning change was the

desires of the La Frontera Developer to re-zone for increased profitability. The Owners also note

that the City conducted no traffic-impact analysis and no studies of its ability to provide necessary

public services to the new multifamily developments.

               The City responds that the zoning changes are consistent with the use of the

surrounding land. It also notes that most zoning decisions begin with a request from a developer,

and nothing about the City’s communications with the developer in this case make its re-zoning

decision improper. The City cites to evidence that the City Council considered impact on adjacent

properties and the provision of necessary municipal services and found no problems. The City

also cites to the ordinances themselves, which recite that they were passed to foster a more

pedestrian-friendly urban environment. The City does not rely on changed conditions to justify its

re-zoning, but rather claims that the re-zoning bears a reasonable relation to the general welfare and

to an orderly zoning-development plan.

               We conclude that the contested ordinances do not constitute spot zoning. First, we

agree with the City that it has generally adhered to an “orderly plan of zoning development.” See

Benners, 485 S.W.2d at 780. The amendatory ordinances creating PUDs 70 and 72 did not create

a land use “substantially inconsistent” with the land in PUD 39. Second, the zoning restrictions on

the new PUDs are similar to those in PUD 39. The same types of buildings may be built in



                                                 19
PUDs 70 and 72 as on the surrounding land. No new uses have been included. The new PUDs do

not allow, for example, an industrial plant or a warehouse to be built in the middle of an otherwise

mixed-use suburban landscape. In short, the zoning changes in this case are not the type that

generally constitute spot zoning. Cf. Thompson v. City of Palestine, 510 S.W.2d 579, 581-82 (Tex.

1974) (spot zoning occurred where 4.1-acre residential tract surrounded by other residential land was

re-zoned as multi-use land permitting over 100 different uses from “multi-family dwellings and

trailer camp or mobile home park to a warehouse or office center”); Hunt, 462 S.W.2d at 538-40

(spot zoning occurred where two lots in single-family-zoned area were re-zoned to allow “hospitals,

clinics, apartment houses, private clubs, fraternity and sorority houses, child and day care nurseries”);

Weaver v. Ham, 232 S.W.2d 704, 709 (Tex. 1950) (spot zoning occurred where small parcel of land

in single-family zone was re-zoned to apartments). The Owners admit that the land-use changes

effected by the City’s ordinances are but small alterations to the general requirements of PUD 39.

Third, the record suggests that the ordinances were substantially related to the general welfare of

the city.

                Because spot zoning did not occur in this case, we presume the contested ordinances

were valid. See Hunt, 462 S.W.2d at 539. Consequently, the City’s summary-judgment burden is

light. “In moving for a summary judgment, [the government has] the burden of establishing

affirmatively by summary judgment proofs that conditions either conclusively support passage of

the ordinance or make the action debatable or issuable. Only thus may the proponents establish

validity of the ordinance as a matter of law.” Baccus v. City of Dallas, 454 S.W.2d 391, 392 (Tex.

1970). Therefore, if the City’s summary judgment evidence makes it at least debatable whether the



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contested ordinances were substantially related to the public health, safety, morals, or general

welfare, we must affirm the summary judgment.

               We think that is the case here. While some evidence suggests an impetus for the

contested re-zoning in this case was to assist a private developer, reasonable minds could differ as

to whether the ordinances creating PUDs 70 and 72 are substantially related to the public health,

safety, morals, or general welfare. Therefore, the district court did not err in granting summary

judgment for the City. We overrule this issue.


Substantive Due Process

               The Owners argue that a genuine issue of material fact exists as to whether the City

violated their substantive due process rights by acting arbitrarily and capriciously. The City violated

the Owners’ substantive due process right if the contested ordinances had “no foundation in reason

and were a mere arbitrary or irrational exercise of power having no substantial relation to the public

health, the public morals, the public safety or the public welfare.” Mayhew, 964 S.W.2d at 938. To

be constitutional, an ordinance must be designed to achieve a legitimate governmental objective and

be rationally related to its purpose. Id. If it is at least fairly debatable that the ordinance was

rationally related to a legitimate government objective, the ordinance must be upheld. Id. We are

not concerned with whether the ordinance was effective; we ask only if the City could rationally have

believed at the time of enactment that the ordinance would promote its objective. Id. We will not

set aside an ordinance unless it is clearly arbitrary and unreasonable. Id.

               For the reasons discussed above, it is at least “fairly debatable” that the City’s goal

of creating a “pedestrian-friendly urban environment” is rationally related to the re-zoning

                                                  21
ordinances. While the Owners claim that the City’s stated goal is a pretext, the City has submitted

sufficient summary-judgment evidence to make that conclusion at least debatable, therefore meeting

their summary-judgment burden. See Baccus, 454 S.W.2d at 392. We overrule this issue.


Promissory Estoppel

                The Owners claim that detrimental reliance, an element of promissory estoppel, “is

generally a question of fact” and, therefore, that the City was not entitled to summary judgment.

Promissory estoppel, normally an equitable remedy in contract law, is available when a promisee has

acted to its detriment in reasonable reliance on an otherwise unenforceable promise. El Paso

Healthcare Sys. Ltd. v. Piping Rock Corp., 939 S.W.2d 695, 698 (Tex. App.—El Paso 1997, writ

denied). A municipality generally cannot be estopped from performing its governmental functions.

City of White Settlement, 198 S.W.3d at 773-74. As the Owners correctly note, however, an

exception to this rule exists to prevent manifest injustice if granting estoppel would not interfere with

the municipality’s exercise of its governmental functions. Id. The supreme court has applied this

exception in only two cases, however. Id. at 775. In both cases there was evidence that city officials

affirmatively mislead the other parties—both of whom were potential claimants—and that, as a

direct result of the claimants’ reliance on the city officials’ misrepresentations, the claimants lost

their ability to sue. Id. There was no other alternative remedy for either claimant. Id.

                We are not persuaded that the present case is so exceptional that it requires equitable

relief to prevent a manifest injustice. The Owners have other potential avenues of relief—their other

claims in this lawsuit. The availability of other potential relief weighs heavily against granting

promissory estoppel. Id. The supreme court has thus far only applied equitable estoppel against the

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government when its misconduct resulted in a complete denial of a litigant’s day in court. See id.

That did not occur here. Therefore, we do not think this is a case where justice requires us to make

an exception. We overrule this issue.



Declaratory Judgment

               The Owners requested declarations that: (1) “their rights vested in La Frontera

PUD 39 when they purchased their property in reliance upon the zoning classifications set out in the

La Frontera PUD 39 Agreement;” (2) the ordinance that created PUD 39 required the consent of all

property owners before it could be amended; (3) and the ordinances creating PUDs 70 and 72 are

void because the City acted arbitrarily and capriciously in passing them. The Owners also sought

attorney’s fees under chapter 37 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.

Code § 37.009 (West 2008) (“The court may award . . . attorney’s fees as are equitable and just.”).

               We have already held that the Owners have no vested rights in a zoning classification,

see Benners, 486 S.W.2d at 778, and cannot make the City “surrender its authority to determine

proper land use by contract,” Super Wash, Inc., 131 S.W.3d at 257. We have also held that the City

did not act arbitrarily or capriciously in passing the ordinances at issue. Because the City has

presented sufficient evidence to make it at least debatable as to whether the ordinances in question

were substantially related to the City’s legitimate police power, the ordinances are valid. The

Owners, therefore, were not entitled to declaratory relief on any of these issues, and attorney’s fees

were unwarranted.




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                                       CONCLUSION

               Having overruled the Owners’ five issues on appeal, we affirm the judgment of the

trial court.




                                            __________________________________________

                                            J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Affirmed

Filed: January 12, 2010




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