                                                                           ACCEPTED
                                                                       01-15-00148-CV
                                                            FIRST COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                                                                  6/26/2015 2:26:32 PM
                                                                 CHRISTOPHER PRINE
                                                                                CLERK

                    No. 01-15-00148-CV

            IN THE FIRST COURT OF APPEALS            FILED IN
                                              1st COURT OF APPEALS
                                                  HOUSTON, TEXAS
                    HOUSTON, TEXAS            6/26/2015 2:26:32 PM
__________________________________________________________
                                              CHRISTOPHER A. PRINE
                                                      Clerk

              CITY OF NASSAU BAY, TEXAS,
                       Appellant

                             v.

       H. RAY BARRETT and 1438 KINGSTREE LANE,
                         Appellees
___________________________________________________________

           Appeal from Cause No. 2013-10661, in the
          152nd District Court of Harris County, Texas
___________________________________________________________

                    APPELLEES’ BRIEF
___________________________________________________________

                            SIMPSON, P.C.

                            Iain G. Simpson
                            State Bar No. 00791667
                            1333 Heights Boulevard, Suite 102
                            Houston, Texas 77008
                            (281) 989-0742
                            (281) 596-5960 (fax)
                            iain@simpsonpc.com

                            APPELLATE COUNSEL FOR
                            RAY BARRETT AND 1438 KINGSTREE LANE

    ORAL ARGUMENT CONDITIONALLY REQUESTED
                                       TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................. v

STATEMENT OF THE CASE ......................................................................... viii

STATEMENT REGARDING ORAL ARGUMENT........................................ ix

RESPONSIVE ISSUE PRESENTED ................................................................... 1

STATEMENT OF FACTS .................................................................................... 2

         Factual Background .................................................................................. 2

         Procedural Background .......................................................................... 10

SUMMARY OF THE ARGUMENT ................................................................. 10

ARGUMENT ....................................................................................................... 13

I.       The Standard of Review ........................................................................ 13

II.      Argument on Responsive Issue One. ................................................. 15

         Barrett’s claim is constitutional in nature, alleging a
         deprivation of protected property rights without due
         process.    As such, administrative waiver—even if it
         occurred—does not bar his claim.

         A.       Barrett’s claim is constitutional in nature and not
                  subject to administrative waiver. ................................................ 16

         B.       The City labels as a non-conforming use a structure
                  that was in place on Barrett’s property for over 20
                  years before the City issued its stop-work order and
                  for the construction of which Barrett received
                  permission from the City official charged with giving


                                                         ii
              it. Is Barrett’s use and enjoyment of his property a
              valuable property interest? .......................................................... 17

III.   Argument on Responsive Issue Two. ................................................. 21

       Barrett produced evidence that Boles’s issuance of a stop-
       work order for work on his property was arbitrary and
       based upon no evidence, analysis, or guideline. Barrett also
       produced evidence that the Boles deliberately interfered
       with the presentation of his complaint to the City, depriving
       Barrett of the hearing he requested. Was Barrett denied due
       process?

       A.     The “50 percent” rule cited by Boles is not
              ascertainable by “general observation” and Boles is
              completely unqualified to make the appropriate
              determination. ................................................................................ 21

       B.     Boles’s issuance of the stop-work order was wholly
              arbitrary. ......................................................................................... 23

       C.     With no authority to do so, Boles changed the nature
              of Barrett’s request to the Board.................................................. 25

       D.     Boles’s and the City’s actions denied Barrett due
              process. ............................................................................................ 26

IV.    Argument on Responsive Issue Three. .............................................. 27

       The City argues that no policy of the City infringed on
       Barrett’s property rights or caused him any damage.
       “Policy” is the act of a final policymaker, standing in for the
       City’s governing body and acting within the scope of his
       duties. Boles—the sole City employee empowered to issue
       stop orders—did so. Was Boles’s action the act of a final
       policymaker?



                                                       iii
         A.       The Nature of Liability. ................................................................ 28

         B.       The Definition of the Policymaker. ............................................. 29

         C.       The City’s Argument. ................................................................... 31

         D.       Boles is a final policymaker within the relevant area. ............. 31

CONCLUSION ................................................................................................... 33

PRAYER ............................................................................................................... 43

CERTIFICATE OF COMPLIANCE ................................................................. 35

CERTIFICATE OF SERVICE ............................................................................ 35

APPENDICES

MUNICIPAL CODE, CITY OF NASSAU BAY,
    Art. 10 – Nonconforming Uses ....................................................App. 1




                                                            iv
                                  INDEX OF AUTHORITIES

Cases

Allen v. City of Baytown,
      No. 01-09-00914-CV, 2011 Tex. App. LEXIS 6894
      (Tex. App.—Houston [1st. Dist.] Aug. 25, 2011, no pet.). .......... 16, 20

Bennett v. Pippin,
     74 F.3d 578 (5th Cir. 1996). ........................................................ 29, 30, 32

Bowie Mem’l Hosp. v. Wright,
     79 S.W.3d 48 (Tex. 2002)....................................................................... 14

Bowlby v. City of Aberdeen,
     681 F.3d 215 (5th Cir. 2012). ............................................................ 16, 20

Brown v. Bryan County, Oklahoma,
     67 F.3d 1174 (5th cir. 1995). ................................................................... 30

City of Chicago v. Morales,
      527 U.S. 41, 119 S. Ct. 1849 (1999). ...................................................... 21

City of Waco v. Texland Corp.,
      446 S.W.2d 1 (Tex. 1969)................................................................. 18, 19

Fuentes v. Shevin,
     407 U.S. 67, 92 S. Ct. 1983 (1972). ........................................................ 20

Grayned v. City of Rockford,
     408 U.S. 104, 92 S. Ct. 2294 (1972). ...................................................... 21

Lamar Corp. v. City of Longview,
     270 S.W.3d 609 (Tex. App.—Texarkana 2008, no pet.).................... 16

Monell v. Dept. of Social Services,
     436 U.S. 658, 98 S. Ct. 2018 (1978). ...................................................... 28


                                                     v
Olmstead v. U.S.,
     277 U.S. 438, 48 S. Ct. 564 (1928). ........................................................ 15

Pembaur v. City of Cincinnati,
     475 U.S. 469, 106 S. Ct. 1292 (1986). .................................................... 32

State of Texas v. Heal,
       917 S.W.2d 6 (Tex. 1996)................................................................. 18, 19

Texas Dep’t of Parks & Wildlife v. Miranda,
      133 S.W.3d 217 (Tex. 2004).............................................................. 13-14

Westgate, Ltd. v. State,
     843 S.W.2d 448 (Tex. 1992)................................................................... 18

Zarnow v. City of Wichita Falls,
     614 F.3d 161 (5th Cir. 2010). .................................................................. 29

Zinermon v. Burch,
     494 U.S. 113, 110 S. Ct. 975 (1990). ...................................................... 20

Statutes

42 U.S.C. § 1983. .............................................................................. 10, 16, 28, 29

TEX. LOC. GOV’T CODE § 211.011 ............................................................... 15, 16

Ordinances

MUNICIPAL CODE, CITY OF NASSAU BAY § 10-300 (1978). .................. 7, 22, 23

MUNICIPAL CODE, CITY OF NASSAU BAY § 17-102 (1972). ............................ 23

Rules

TEX. R. APP. P. 9.4 ............................................................................................. 35


                                                          vi
TEX. R. APP. P. 33.1 ..............................................................................................3

TEX. R. APP. P. 38.2 ..............................................................................................1

Secondary Sources

BLACK’S LAW DICTIONARY (5th Ed., abridged).. ............................................ 25




                                                          vii
                       STATEMENT OF THE CASE

                    Nature of the Underlying Proceeding

      The City of Nassau Bay (hereinafter, the “City”) filed an enforcement

action against Barrett and his residence, in rem, concerning certain zoning

restrictions. Barrett counterclaimed based on an unconstitutional “taking”

without due process.

                               Subject of Relief

      The case comes before the Court on appeal from the denial of the

City’s Plea to the Jurisdiction as to Barrett’s counterclaim.




                                      viii
            STATEMENT REGARDING ORAL ARGUMENT

     Barrett requests oral argument only conditionally. The answers to

the questions raised by the City’s interlocutory appeal are found in

established Texas and federal jurisprudence. The appeal presents no novel

question or issue. Barrett believes that oral argument is unlikely to further

the Court’s understanding in any meaningful way. Nevertheless, should

the City be granted oral argument, Barrett requests equal time.




                                     ix
                        No. 01-15-00148-CV

              IN THE FIRST COURT OF APPEALS

                    HOUSTON, TEXAS
__________________________________________________________

                CITY OF NASSAU BAY, TEXAS,

                             Appellant

                                  v.

        H. RAY BARRETT and 1438 KINGSTREE LANE,

                         Appellees
___________________________________________________________

           Appeal from Cause No. 2013-10661, in the
          152nd District Court of Harris County, Texas
___________________________________________________________

                    APPELLEES’ BRIEF
___________________________________________________________

 Pursuant to TEX. R. APP. P. 38.2, Appellees file this Appellees’ Brief.

              RESPONSIVE ISSUES PRESENTED

 Barrett’s claim is constitutional in nature, alleging a deprivation
 of protected property rights without due process. As such,
 administrative waiver—even if it occurred—does not bar his
 claim.

 Barrett produced evidence that Boles’s issuance of a stop-work
 order for work on his property was arbitrary and based upon
 no evidence, analysis, or guideline. Barrett also produced


                                  1
      evidence that the Boles deliberately interfered with the
      presentation of his complaint to the City, depriving Barrett of
      the hearing he requested. Was Barrett denied due process?

      The City argues that no policy of the City infringed on Barrett’s
      property rights or caused him any damage. “Policy” is the act
      of a final policymaker, standing in for the City’s governing
      body and acting within the scope of his duties. Boles—the sole
      City employee empowered to issue stop orders—did so. Was
      Boles’s action the act of a final policymaker?

                         STATEMENT OF FACTS

Factual Background

      The case before the Court arises from conflict between an outspoken

citizen and a city official. The stage on which it played out was a tangential

use of City authority or lack thereof.

      It is undisputed that Barrett purchased the property located at 1438

Kingstree Lane, Nassau Bay, in 1974 and has resided there ever since. It is

also undisputed that Barrett has deep roots in the local community, having

served on the City’s Planning Commission and later as a member of the

board of the NASA Area Management District. Barrett was, for many

years, on friendly terms with both the Mayor and building official of the

City. CR 484.

      In 1983, following Hurricane Alicia’s widespread destruction of the

City, Barrett, assisted by a contractor, built a patio that included a hot tub


                                         2
and fence onto the side of his house. CR 479-80. The patio was simply

intended to replace a prior patio, there when Barrett purchased the

property, made of wooden decking that included a trellis, beginning next

to the house and extending to the fence. CR 481. The hurricane destroyed

that trellis and the fence to which it reached. Id. When Barrett and his

contractor commenced repairs following the hurricane, they replaced the

trellis and the fence and installed a hot tub beneath a large holly tree. CR

483. The only difference between the old deck and trellis—what existed

before the hurricane—and the new was the presence of the hot tub. CR

487.

        The storm’s damage affected the City’s permitting processes. Due to

the widespread destruction caused by Alicia, the City received a huge

volume of applications for building permits. CR 607. 1 The sheer number

of applications precluded the usual permitting process, and it became

necessary to grant permits only for major situations or projects. Id. Smaller

1       The cited page from the record is the Affidavit of Andy Straub, a retired building
official of the City of Nassau Bay, who served during times relevant to this matter. In
its brief, the City argues—and Barrett agrees—that, before the trial court, the City
objected to the admissibility of Straub’s affidavit as unsworn. See City of Nassau Bay’s
Brief, at 12, n. 8. Nevertheless, the City never obtained a ruling on its objection, and it is
unclear from the record whether the trial court considered Mr. Straub’s testimony or
not. Regardless, the City has waived any complaint concerning the admissibility of Mr.
Straub’s testimony by failing to obtain a ruling on its objection. See TEX. R. APP. P.
33.1(a) (requiring that timely objection and a showing that the trial court ruled on the
objection is a prerequisite to any appellate complaint).


                                              3
projects received verbal permission or authorization. Id. Barrett’s project fit

into this category. Id.

      In 1992, Barrett had additional work done on the patio area.

Dissatisfied with the trellis, which allowed leaves and debris to fall into his

hot tub, he extended the roof of his home over the hot tub to the fence line,

replacing the 12-foot trellis with a 12-foot section of roofing having no

holes in it. CR 488-89. However, the roof left one hole for the holly tree—

the one growing next to the hot tub—to grow through. CR 490. Barrett’s

contractor also enclosed the area with cedar walls around the patio and a

window. Id. The fence, itself formed two of the “walls” of the structure. CR

498. Barrett did not apply to the City for a permit for this work because he

spoke to Mr. Straub, then serving as the City’s building official. CR 491;

607. Mr. Straub reviewed the plans and gave Barrett approval to proceed

with the project. CR 491-92; 607.      Such verbal assurance is within the

authority of a City building inspector, as confirmed by the City’s own

current building inspector, Larry Boles. CR 571. Mr. Boles observed in his

testimony before the trial court that a building inspector can “go out and

observe construction as it’s ongoing and say ‘that’s fine and go forward.’”

Id.




                                      4
       In approximately 2010, the holly tree next to Barrett’s hot tub died,

whether due to drought or old age. CR 494. With hurricane season coming

again, Barrett decided to remove the tree.             CR 494-95.     While Barrett

intended a certain refurbishment of the enclosed area, he intended no new

construction at that time. CR 495-96. Nevertheless, removal of the dead

tree required removal of two “less than 8-foot” sections of the fence/walls,

and removal of approximately 8 feet of deck boards. CR 499-500. Barrett

purchased new deck boards to replace the rotted old ones. CR 500. Part

way through the replacement of boards, Mr. Boles stopped by the property

and issued an order to cease work. CR 554.

       Removal of a dead tree does not require a City permit. CR 548. Nor

does the laying or repair of a side patio, whatever its composition,

provided it stands less than 30-inches tall and, thus, does not require

handrails. Id. 2 Replacing fence boards does not require a permit, either,

though installing a new fence does. CR 549. According to Mr. Boles,

replacing more than 20 boards on a fence constitutes replacement of the

entire fence.    Id.   Nineteen boards on a fence is “maintenance”; 21 is

“replacement.” Id. This fine distinction, by Mr. Boles’s own admission, is


2      Barrett’s deck was 10-12 inches off the ground and did not require handrails. CR
557.


                                           5
nowhere to be found in the City’s building rules. Id. Nevertheless, it is the

rule that Mr. Boles enforced, along with his continuing conviction that the

structure was over 50 percent destroyed by the work being done.

      Boles issued a “stop work” order on the grounds that Barrett

required a permit for the work being done. CR 551. In particular, Boles

based his decision on his opinion that the structure on Barrett’s property

was “more than 50-percent destroyed,” thus rendering any repair or

replacement effectively new construction, requiring a permit.                  CR 552.

Boles never performed a survey of the property or took any measurements

of either the overall structure or the removed portion, basing his decision

strictly upon “general observation.” CR 552, 556.

      For his part, Barrett denied that any structure was 50 per cent or

greater destroyed by the work being performed, and mathematics would

appear to back him up. The entire enclosed deck structure was 12 feet by

20 feet. CR 505. The work being performed removed only an eight-foot

section of non-supporting wall.           Id.   By the calculations of Barrett—a

licensed professional engineer in the State of Texas—this constituted, at

most, a 22 percent removal of the structure. CR 505-06. 3


3     In fact, both Boles and Barrett were mistaken. As will be discussed infra, the City
ordinance that contains the “50 percent” rule bases its determination, not on the


                                           6
      Boles conceded that, in order for his “over 50 percent” determination

to be correct, the deck had to be considered an “accessory structure” that

was not part of the living space of the house, itself. CR 552. Thus, it

allowed separate estimation, apart from the square footage of the main

home.    Id.   This distinction, like Boles’s 19-and-21-board distinction, is

found nowhere in the City’s building code. CR 552-53. He based his

“common sense” determination on the fact that, though it shared a roofline

with the rest of the house, the enclosed deck was not part of the living

space. CR 553. There was no doorway between the house and the deck, and

there was no air conditioning or other climate control inside the enclosed

deck structure. Id. Asked in his deposition whether the building code made

such a distinction, Boles did not know. Id.

      Boles also noted that the structure’s placement next to the fence

violated the seven-foot setback requirement of the City’s building code.

CR 553. That setback requires that the house’s roof be seven feet back from

the property line.4 CR 557. For purposes of the property line setback


percentage of the structure that is destroyed but upon the percentage of the structure’s
value that is destroyed, as determined by the City’s tax assessor. See MUNICIPAL CODE,
CITY OF NASSAU BAY § 10-300. There is no indication in the record that Boles ever
conducted any sort of valuation of the structure on Barrett’s property, either as part of
the Barrett’s house or as a standalone structure.

4     An “accessory structure” need only have a three-foot setback. CR 557. Evidence


                                           7
requirement, Boles considered Barrett’s enclosed deck a part of his main

home. Id. But, for purposes of calculating the amount of the structure that

had been destroyed, Boles considered it an “accessory structure.” Id. But

for purposes of the setback, he considered it a part of the main house. Id.

Boles defined the structure differently, based upon which particular code

provision was to be enforced. Id. Nevertheless, the stop work order issued

by Boles related only to the 50 percent destruction observation. CR 603.

      In protest of the stop-work order, Barrett sought a hearing before the

Zoning Board of Adjustment. CR 507. Barrett sought only a hearing to

remove the stop-work order on his property.                 CR 528.     But, when he

arrived at his meeting with the Board, the discussion centered on a request

for a variance that he had ostensibly requested. Id. The one who changed

Barrett’s request was Boles. CR 568. While Barrett argued that he did not

need a variance, only a lifting of the stop-work order, Boles took it upon

himself to change Barrett’s request—and the presumptions that went along

with it—into something entirely different. Id. Boles could cite nothing in

the City’s ordinances or codes giving him the right to change a citizen’s

application to the Board. CR 585. Indeed, he testified that nothing gave



in the record shows that Barrett and the City discussed a three-foot setback as a possible
solution to their impasse. CR 576-77.


                                            8
him such authority. Id. Boles never consulted or contacted Barrett before

changing the substance of his application to the Board. Id. Boles could not

recall taking such action on any other application. CR 586. Ultimately, the

Board denied Barrett a variance.

     In testimony before the trial court, Boles acknowledged that Barrett’s

enclosed deck has existed for at least twenty years, all the while posing no

danger. CR 574. Boles agreed that if the structure was only 40 percent

destroyed, there would be no enforcement action for the City to bring; it

could not meet the requirements to remove the structure as a non-

conforming one. CR 576. The same would be true if the destruction

were only 22 percent, and Barrett would never have had to go before

the Board. CR 576.

     In a second hearing, convened at the recommendation of the City

attorney, the Board discussed with Barrett a three-foot setback for his

enclosed deck. CR 576-77. Nevertheless, Boles takes the position that the

Board could not authorize such a setback because the enclosed deck was

not an “accessory structure.” CR 577. Except when it was. CR 552. Boles

never lifted his stop order, and the City manager, Mary Chambers, testified

that no one has the authority to lift a stop-work order. CR 595. To this day,

the work on Barrett’s property remains unfinished.


                                     9
Procedural Background

     The City of Nassau Bay brought suit against Barrett and his property

in rem, seeking injunctive relief and civil penalties. CR 4-7. Barrett made

an appearance and asserted a counterclaim pursuant to 42 U.S.C. § 1983,

asserting constitutional violations, as well as claims against the City under

Texas law and various third-party claims.       CR 15-32.    The trial court

ultimately dismissed Barrett’s claims under Texas law and his third-party

claims. CR 33. This order did not affect Barrett’s constitutionally based

counterclaim against the City.

     The City then moved for dismissal of Barrett’s constitutional claims

in a plea to the jurisdiction. CR 44. Barrett responded and produced

evidence in support of is response. CR 431-616. The trial court denied the

City’s plea, and the City took this interlocutory appeal. CR 629, 634-35.

                    SUMMARY OF THE ARGUMENT

     The City’s argument in the trial court, the testimony of its witnesses,

and much of its argument before this Court is based upon an incorrect

premise. It suffers from a foundational infirmity that renders everything

built upon that foundation unstable. The City first assumes that the

enclosed deck on Barrett’s property is a non-conforming use of his land

and then characterizes his complaint as an attack on the Zoning Board’s


                                     10
refusal to grant him a variance. But the City approaches the case from

entirely the wrong place.

      Barrett’s use is not a non-conforming use. He has no need of a

variance.   He never appealed the Zoning Board’s decision because the

Board never even considered the right question.            Barrett received

permission from the City’s own building official when he and his

contractor first did the work that the City now decries as a public hazard

some 20 years before the City ever undertook enforcement action. Barrett

had the assurance of the City official charged with enforcement of City

building codes that his property use was a permissible one. Indeed, that

official testified as much before the trial court.

      As such, the question is not whether Barrett required a variance, but

whether Boles’s stop-work order was rationally based on the law and

whether Barrett received appropriate opportunity to be heard on this

infringement of his private property rights. The evidence, in the form of

Boles’s own statements, shows that Boles acted arbitrarily in issuing his

stop-work order in the first place, making broad “general observations”

based on no concrete measurements, at all, and incorrect criteria, despite

the specificity of the code he claimed to be enforcing. In addition, the code

provision Boles claimed to be enforcing was based upon valuation by the


                                       11
Nassau Bay tax assessor—though it was less than clear from his deposition

testimony that Boles even realizes this. At any rate, he is neither the tax

assessor nor an appraiser of any sort.

     Moreover, it shows that Boles was entirely willing to re-define the

nature of Barrett’s property in order to find a violation—categorizing it as

an “accessory structure” for purposes of finding one violation and as a part

of the main building for purposes of finding a separate one. There would

be a violation in some way. Boles would see to that.

     The final question is whether the City allowed Barrett a fair hearing

on his complaint. Once again, Boles stepped in to reformulate Barrett’s

complaint into something more to his own liking. He unilaterally

changed—with, by his own admission, no authority to do so—Barrett’s

complaint concerning Boles’s stop-work order into a request for a variance,

thus reversing the presumptions inherent to such a proceeding. A variance

assumes that a property owner is at odds with the existing plan and needs

permission to avoid it. Barrett presented evidence showing that he had no

need of additional permission beyond what he already had.

     The common thread is Boles, a final policymaker for the City. Boles

played fast and loose with his evaluation of the work done on Barrett’s

property, defined the same portions of the property differently for


                                     12
purposes of different enforcement provisions, and then took the

extraordinary measure of changing Barrett’s application to better reflect

Boles’s understanding of his complaint, in the name of providing “better

service” to a citizen.

                                ARGUMENT

I.    The Standard of Review

      A plea to the jurisdiction seeks to dismiss a case for want of

jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27

(Tex. 2004). When reviewing jurisdiction, courts must first examine the

pleadings, liberally construing those pleadings in favor of jurisdiction and

always looking to the pleader's intent. Id., at 226. The allegations found in

the pleadings may either affirmatively demonstrate or negate the trial

court's jurisdiction. Id., at 226-22. If the pleadings do neither, this raises an

issue of pleading sufficiency and the plaintiff must have an opportunity to

amend the pleadings. Id. When a plea to the jurisdiction challenges the

existence of jurisdictional facts, trial courts may consider relevant evidence

submitted by the parties to resolve the jurisdictional issues raised, even

where those facts may implicate the merits of the cause of action. Id., at 227.

If that evidence creates a fact issue as to the jurisdictional issue, then it is


                                       13
for the fact-finder to decide. Id., at 227-28. Only if the relevant evidence is

undisputed or fails to raise a fact question on the jurisdictional issue, can

the trial court rule on the jurisdictional issue as a matter of law. Id., at 228.

In considering the evidence submitted by the parties, the trial court is

required to take as true all evidence favorable to the nonmovant and

indulge every reasonable inference and resolve any doubts in the

nonmovant's favor. Id.

      A trial court has no discretion in determining what the law is or in

applying the law to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52

(Tex. 2002). Thus, an improper determination of the law or an incorrect

application of it to the facts is per se arbitrary or unreasonable and an abuse

of discretion. Id. But where, as in the case at bar, the facts are disputed,

the trial court holds broad discretion. The City sought no clarification from

the trial court as to the basis for its denial of the City’s plea. Consequently,

any ground, whether based in law or in fact, that will support the trial

court’s decision obligates this Court to affirm that decision.




                                       14
II.   Argument on Responsive Issue One:

      Barrett’s claim is constitutional in nature, alleging a deprivation
      of protected property rights without due process. As such,
      administrative waiver—even if it occurred—does not bar his
      claim.

      The City first argues that Barrett is barred from pursuing his

counterclaim against the City because he failed timely to appeal the

decision of the City’s Zoning Board of Adjustment in accordance with TEX.

LOC. GOV’T CODE § 211.011(b). Chapter 211 of the Local Government Code

delineates, generally, the extent of Municipal Zoning Authorities. It has

little to say regarding the activities of building officials like Boles.

      TEX. LOC. GOV’T CODE § 211.011 provides for judicial review of the

decision of a zoning board and requires that any petition to a district our

county court requesting such review be presented within 10 days after the

date the decision is filed in the board’s office. TEX. LOC. GOV’T CODE §

211.011(b). But, in making its argument, the City once again characterizes

Barrett’s claim as a request for permission to build, rather than simply an

exercise of his “right to be let alone.” See Olmstead v. U.S., 277 U.S. 438, 478,

48 S. Ct. 564 (1928).




                                        15
      A.    Barrett’s claim is constitutional in nature and not subject to
            administrative waiver.

      Barrett’s counterclaim against the City is based upon constitutional

right and federal law, specifically 42 U.S.C. § 1983. CR 15-32. Barrett

obtained the permission of the City’s then building official—Mr. Straub—

when he first enclosed the deck area adjacent to his home. CR 607. There,

it remained for over 20 years before the City’s current enforcement action

was commenced.

      Where a constitutional taking issue is brought, it can be considered

even though other claims are dismissed for failure to exhaust

administrative remedies under § 211.011, TEX. LOC. GOV’T CODE. Lamar

Corp. v. City of Longview, 270 S.W.3d 609, 614-15 (Tex. App.—Texarkana

2008, no pet.). The exhaustion of administrative remedies is not necessary

for a claim for the violation of a constitutional or federal statutory right.

Allen v. City of Baytown, No. 01-09-00914-CV, 2011 Tex. App. LEXIS 6894

(Tex. App.—Houston [1st Dist.] Aug. 25, 2011, no pet.) (mem. op.). See also

Bowlby v. City of Aberdeen, 681 F.3d 215, 222 (5th Cir. 2012) (“[E]xhaustion of

state remedies is not required before a plaintiff can bring suit under § 1983

for denial of due process.”).



                                      16
      B.    The City labels as a non-conforming use a structure that was
            in place on Barrett’s property for over 20 years before the City
            issued its stop-work order and for the construction of which
            Barrett received permission from the City official charged
            with giving it. Is Barrett’s use and enjoyment of his property
            a valuable property interest?

      Barrett first built the existing deck—extending to the fence line—and

installed a hot tub in 1983, following Hurricane Alicia. CR 479-80. He

enclosed his deck and hot tub in 1992.       CR 488-89.    At that time, he

consulted Mr. Straub—the City’s building official—who gave his blessing

to the work. CR 607. Barrett has put the property to this use ever since.

The City now argues that his doing so is illegal.

      The City’s argument is based, almost in its entirety, on the premise

that the structure on Barrett’s property was a non-conforming use and that,

consequently, the City can effectively do no wrong in its enforcement

action, the entire burden being upon Barrett to show his right to use his

own property. But Mr. Straub’s affidavit testifies both to the existence of a

City policy allowing verbal permission for minor structures and projects,

and his own participation—as the City’s building official—in seeing to it

that the structure complied with all codes and ordinances at the time it was

built. CR 607. The affidavit created an issue of fact as to whether Barrett’s



                                     17
use of his property was, in fact, entirely proper, and it entirely undercuts

the assumed premise on which the City’s entire argument is based. It

provided ample factual basis for the trial court to find that Barrett built

with City permission. And, if Barrett’s use was a permitted one, and Mr.

Straub’s affidavit says that it was, his use of his property was an exercise of

his property rights, now denied by the City.

      An effective “inverse” condemnation may occur when the

government unreasonably interferes with the landowner’s right to use and

enjoy his property, such as by unreasonably restricting development.

Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992). A direct, current

restriction on present use will give rise to a claim for a taking. Id., at 452-

53.

      In State of Texas v. Heal, 917 S.W.2d 6 (Tex. 1996), the Texas Supreme

Court examined a constitutional “taking” claim based upon diminished

access to property. In doing so, it examined its prior decision of City of

Waco v. Texland Corp., 446 S.W.2d 1 (Tex. 1969). Texland involved a

company in the business of warehousing. 917 S.W.2d, at 10 (citing Texland,

446 S.W.2d, at 4). The company's warehouse was located beneath a recently

constructed viaduct. Id. The viaduct was supported by piers located close


                                      18
to the warehouse. Id. One pier was even located directly in front of the

loading dock. Several witnesses testified that the location of the piers

created a serious interference. Id. As the company was in the business of

warehousing and transporting stored goods, which necessarily involved

large commercial delivery trucks, these piers severely impeded the trucks'

maneuverability with respect to backing up and parking. Id. The lack of

maneuverability made the property virtually unusable for its intended

purpose because trucks capable of transport could not access the premises.

Id. The Texas Supreme Court found that the diminished use of the property

added up to a constitutional taking because the land could no longer be

used in the way that the property owner previously had. Id.

     The lesson of Texland is succinct: traditional use counts. The way that

a landowner has traditionally used his land matters to the question of a

taking. Freedom of use is a property right.       When government action

impairs use and enjoyment of the property, a compensable “taking” has

occurred. Unlike Texland, Barrett’s counterclaim does not allege diminished

access but actual direct restriction on his use of his own property, a use for

which he had City permission and to which he has steadily and

consistently put that property for over 20 years before Boles suddenly


                                     19
found fault with it. Barrett’s claim is rooted in constitutional grounds that

need not be raised in an administrative appeal. See Allen v. City of Baytown,

2011 Tex. App. LEXIS 6894. The City’s first issue should be overruled.

III.   Argument on Responsive Issue Two:

       Barrett produced evidence that Boles’s issuance of a stop-work
       order for work on his property was arbitrary and based upon
       no evidence, analysis, or guideline. Barrett also produced
       evidence that the Boles deliberately interfered with the
       presentation of his complaint to the City, depriving Barrett of
       the hearing he requested. Was Barrett denied due process?

       In procedural due process claims the deprivation by government

action   of   a   constitutionally   protected   interest   is   not   in   itself

unconstitutional. Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975 (1990).

It is the deprivation without due process of law that creates the violation.

Id. Thus, even due process violations with minimal damages are

constitutionally cognizable claims because the right to procedural due

process is an absolute one, not dependent upon the merit of the substantive

assertion. Bowlby, 681 F.3d, at 222. A procedural due process injury is

complete at the time process is denied. Id. Consequently, no later hearing

can undo the fact that an arbitrary taking that was subject to a right of

procedural due process has already occurred. Id. (citing Fuentes v. Shevin,



                                      20
407 U.S. 67, 82, 92 S. Ct. 1983 (1972).

      It is a basic principle of due process that an enactment is void for

vagueness if its prohibitions are not clearly defined. See City of Chicago v.

Morales, 527 U.S. 41, 56, 119 S. Ct. 1849 (1999).     Moreover, when law

enforcement power is bestowed upon a government official, that power

must be accompanied by minimal guidelines for its exercise. Id., at 82. An

ordinance that provides absolute discretion to an enforcing officer provides

no notice to citizens as to what conduct or activity will violate that

ordinance. Vague laws lead to arbitrary enforcement. Grayned v. City of

Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294 (1972). Whether or not the

City’s zoning ordinances are vague, the manner in which Boles undertook

their enforcement was almost entirely arbitrary.

      A.    The “50 percent” rule cited by Boles is not ascertainable by
            “general observation” and Boles is completely unqualified to
            make the appropriate determination.

      Boles testified before the trial court that the structure on Barrett’s

property was more than 50 percent destroyed, in order to arrive at his

decision that it could no longer be a protected non-conforming use. CR

552. Boles is not an appraiser. Id. He never performed any calculations

concerning the area destroyed or its value. Id. Although the City failed to


                                          21
include its current code in the record, that code does contain a “50 percent”

rule. See MUNICIPAL CODE, CITY OF NASSAU BAY § 10-300. The rule states:

      Should such [a nonconforming] structure or building be
      destroyed by any means to an extent of more than fifty (50) per
      cent of its assessed value at the time of destruction, as
      determined by the Nassau Bay tax assessor, it shall not be
      reconstructed except in conformity with the provisions of this
      ordinance.

MUNICIPAL CODE, CITY    OF   NASSAU BAY § 10-300(b). See App. 1. The “50

percent” rule is not based upon general observation or upon the amount of

the structure destroyed, except as it impacts the value of the overall

structure. Boles simply ignored this fact. Moreover, it is the value as

determined—not by an unqualified individual like Boles—but by the

Nassau Bay tax assessor that counts. App. 1. Boles not only used the

wrong criteria for his decision, he was not even remotely qualified to make

the decision in the first place, being neither the tax assessor nor any sort of

individual having a background in property valuation.          Boles did not

simply miscalculate. He completely failed to apply any sort of relevant

measure to the question. The trial court could easily have found that

Boles’s entire approach was so haphazard and off-the-mark that it

amounted to a complete failure of due process. There is no question that it



                                      22
was wholly arbitrary.

      B.     Boles’s issuance of the stop-work order was wholly arbitrary.

      Boles issued a “stop work” order on the grounds that Barrett

required a permit for the work being done. CR 551. In particular, Boles

based his decision on his opinion that the structure on Barrett’s property

was “more than 50-percent destroyed.” CR 552.5 Even as he applied

incorrect criteria, Boles applied that incorrect criteria sloppily and

arbitrarily. He never performed a survey of the property or took any

measurements of either the overall structure or the removed portion,



5      Even if the City claims that Boles operated under a different portion of the
ordinance—a part that it actually included in the record—the provisions of the City’s
“Nonconforming Uses and Structures” subsection of the version of the zoning
ordinance produced by the City says nothing about any “50 percent” rule. CR 192. It
states only:

      If a structure occupied by a nonconforming use is destroyed by fire, the
      elements or other cause, reconstruction in accordance with applicable
      building ordinances will be permitted, but the nonconforming use cannot
      be expanded.

MUNICIPAL CODE, CITY OF NASSAU BAY § 17-102. CR 192. The ordinance allows the
continuing existence of nonconforming uses in existence on the date on the effective
date of the ordinance, June 14, 1971. CR 150, 192. The similar ordinance cited as
MUNICIPAL CODE, CITY OF NASSAU BAY § 10-300 in argument under III.A., supra, appears
to have superseded that cited by the City, having been adopted May 22, 1978. See
https://www.municode.com/library/tx/nassau_bay/codes/code_of_ordinances?nod
eId=COORNABATE




                                         23
basing his decision strictly upon “general observation.” CR 552, 556. As

discussed previously, mathematics shows Boles’s ballpark estimate to be

far off the mark. The entire enclosed deck structure was 12 feet by 20 feet.

CR 505. The work being performed removed only an eight-foot section of

non-supporting wall and a portion of the decking, itself. Id.

     Further, even if Boles’s criteria and calculations had been correct, the

manner in which he arrived at them was where the violation lay. By his

own admission, Boles spent no more than 20 minutes at Barrett’s property

and took not one measurement before issuing a stop order that could not

be lifted by anyone. CR 595.

     Further, Boles’s approach to enforcement reflected an overall “bait-

and-switch” mentality, geared toward finding a reason to stop Barrett’s

work. Boles went so far as to classify the structure on Barrett’s property

differently for purposes of different enforcement provisions. For purposes

of the property line setback requirement, Boles considered Barrett’s

enclosed deck a part of Barrett’s main home. CR 557. But, for purposes of

calculating the amount of the structure that had been destroyed for

purposes of the unwritten “50 percent rule,” Boles considered it an

“accessory structure.” Id. Had it been considered part of the entire house,


                                     24
even Boles—and his “general observation—could see that the house was

not 50 percent destroyed. In short, Boles defined the structure differently,

based upon which particular code provision he meant to enforce. Id. There

can be little clearer case of arbitrary enforcement.

      C.    With no authority to do so, Boles changed the nature of
            Barrett’s request to the Board.

      The City argues in its briefing that Barrett has been afforded all the

process that he is due, noting that he has had hearings before the City’s

Zoning Board and an opportunity to present evidence. See Appellant’s Brief,

at 19. But Barrett has never received the hearing that he requested. Indeed,

Boles saw to that by stepping in—with no authority, whatsoever—to

change Barrett’s hearing request from a simple request to have Boles’s

improper, arbitrary stop-work order lifted to a request for a variance. CR

568. Once again, Boles was a loose cannon, changing Barrett’s hearing

request to better support Boles’s own actions.

      The difference between the process Barrett requested and what he

was afforded cannot be understated. A “variance” is an authorization to a

property owner to depart from the requirements of zoning regulations in

using his property. BLACK’S LAW DICTIONARY (5th Ed., abridged), at 805.



                                      25
One who seeks a variance seeks permission, by definition. But Barrett’s

position, from the inception of this litigation, has been that he had

permission from the City’s own building officials. One of those officials

confirmed both the City’s policy of verbal issuance of permission for minor

projects and his own participation and permission given to Barrett’s

project, in particular. CR 607. In short, Barrett did not need permission,

but Boles’s alteration of his hearing request attempted to force him to seek

it.

      D.   Boles’s and the City’s actions denied Barrett due process.

      Boles was a highly placed City official at all relevant times. He was a

policymaker, with authority to stop work on Barrett’s property without

review by any other individual or body. CR 576, 595. Boles played “fast

and loose” with definitions under the City’s ordinance, classifying Barrett’s

property as one sort of structure for purposes of one sort of enforcement

action and as another sort of structure for purposes of a different sort. An

enforcement that is entirely triggered by one individual’s interpretation of

the law—applying, piecemeal, different and conflicting sections as he sees

fit—is the very definition of arbitrary enforcement. Whether or not the

City’s ordinance, itself, is facially vague, Boles’s enforcement and


                                     26
application of that ordinance certainly was.

      In addition, Boles enforced a specific rule—the “50 percent” rule—in

an entirely non-specific manner and without any information to justify that

enforcement. Boles is not an appraiser. Boles is not the Nassau Bay tax

assessor.   The “50 percent” rule, articulated by § 10-300 of the City’s

municipal code requires a valuation by the City’s tax assessor. Boles is

neither qualified to give a valuation nor does he hold the office of tax

assessor. Nevertheless, City policy put the power of a stop order entirely

in his hands, to be exercised in as arbitrary a fashion as he chose to, and

ultimately did, use it without regard to any applicable criteria. The City’s

second issue should be overruled.

IV.   Argument on Responsive Issue Three:

      The City argues that no policy of the City infringed on Barrett’s
      property rights or caused him any damage. “Policy” is the act
      of a final policymaker, standing in for the City’s governing
      body and acting within the scope of his duties. Boles—the sole
      City employee empowered to issue stop orders—did so. Was
      Boles’s action the act of a final policymaker?

      With its third issue, the City argues that there is no evidence that any

policy of the City was the cause of any violation of Barrett’s federally




                                     27
protected rights. It is wholly undisputed that Boles placed a stop-work

order, preventing any further work on Barrett’s private property.

      A.     The Nature of Liability

      Local government entities can be liable for actions of their employees

that deprive another of a constitutional right only when that action

amounts to an enforcement of official government policy. See Monell v.

Dept. of Social Services, 436 U.S. 658, 690, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d

611, 635 (1978). But a course of action may yet reflect informal “policy”

despite a lack of formal adoption by the governing body. While “the

touchstone of the § 1983 action against a government body is an allegation

that official policy is responsible for a deprivation of rights protected by the

Constitution, local governments, like every other § 1983 ‘person,’ by the

very terms of the statute, may be sued for constitutional deprivations

visited pursuant to governmental ‘custom’ even though such a custom has

not received formal approval through the body's official decision[-]making

channels.”    436 U.S., at 690-91.     The plain language of § 1983 itself




                                       28
designates deprivation of rights through “custom” as an actionable

constitutional tort. 6

       B.     The Definition of the Policymaker

       A policymaker is one who takes the place of the governing body in a

designated area of administration. Zarnow v. City of Wichita Falls, 614 F.3d

161, 167 (5th Cir. 2010).           State law determines whether a particular

individual is a municipality’s final decision maker with respect to a certain

sphere of activity.          Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996).

Generally, an official who has autonomy and authority to develop goals

and the means for achieving those goals within a particular operating

sphere can be a final policymaker for purposes of § 1983. 614 F.3d, at 167.



6      The statute states:

       Every person who, under color of any statute, ordinance, regulation,
       custom, or usage, of any State or Territory or the District of Columbia,
       subjects, or causes to be subjected, any citizen of the United States or other
       person within the jurisdiction thereof to the deprivation of any rights,
       privileges, or immunities secured by the Constitution and laws, shall be
       liable to the party injured in an action at law, suit in equity, or other
       proper proceeding for redress, except that in any action brought against a
       judicial officer for an act or omission taken in such officer’s judicial
       capacity, injunctive relief shall not be granted unless a declaratory decree
       was violated or declaratory relief was unavailable. For the purposes of this
       section, any Act of Congress applicable exclusively to the District of
       Columbia shall be considered to be a statute of the District of Columbia.

28 U.S.C. § 1983.


                                            29
In this regard, even a single decision may constitute the making of policy if

it is made by an official having final responsibility for the particular area of

administration. 74 F.3d, at 586 (citing Brown v. Bryan County, Oklahoma, 67

F.3d 1174, 1183 (5th Cir. 1995).). It is the power structure and vesting the

official with authority that is key.

      Thus, in Bennett, a county sheriff who assaulted a plaintiff to whom

he gained access by virtue of his position as the top law-enforcement

official in Archer County was held to be a policymaker in that area, and his

actions were attributed to the county.         Id.   Archer County raised the

argument that a well-defined and well-established anti-harassment policy

shielded it from any potential liability.      Id. That is, it argued that its

disagreement with what the policymaker did shielded it. But the Fifth

Circuit disagreed. That the sheriff’s actions may have violated express

county policy was inapposite.          “When a final policy maker makes the

relevant decision, and when that decision is within the sphere of the policy

maker's final authority, ‘the existence of a well-established, officially-

adopted policy will not insulate the [locality] from liability.’” Id.




                                         30
      C.     The City’s Argument

      The City argues that the final policymaker in terms of zoning laws is

the City Council.       Appellant’s Brief, at 25. But the City’s argument is

disingenuous.      Indeed, it once again operates on the assumption that

Barrett’s complaint concerns a permitting problem, as a opposed to a stop-

work problem. Barrett does not allege that the City’s zoning ordinances

deprived him of the established use of his land. He complains that Boles’s

haphazard, arbitrary, and capricious use of a stop-work order did. The

final policymaker with regard to issuance of stop-work orders is Boles,

himself.

      D.     Boles is a final policymaker within the relevant area.

      As the County building official, Boles had the authority both to give

verbal permission for the work on Barrett’s home and to stop that work.

CR 571. Boles testified to the trial court that a building inspector can “go

out and observe construction as it’s ongoing and say ‘that’s fine and go

forward.’” Id. Ms. Chambers testified that no one has the authority to lift a

stop-work order issued by Boles. CR 595.7 Thus, as a City official having


7     Even Mr. Boles testified that he was powerless to lift his own stop order. CR 576.
However, Boles’s position suffers from the same logical infirmity that dogs every City
witness’s testimony and the City’s argument before this Court—the assumption that


                                          31
final authority over the issuance of stop-work orders, Boles qualifies as a

final policymaker within the meaning of the law. See Pembaur v. City of

Cincinnati, 475 U.S. 469, 106 S. Ct. 1292 (1986) (“Municipal liability attaches

only where the decision maker possesses final authority to establish

municipal policy with respect to the action ordered.”). Again, a single

act—such as the issuance of a stop-work order—is an act of policy if it is

taken by a final policymaker acting within the scope of his duties. Bennett,

74 F.3d, at 586. It is undisputed that Boles had the authority to issue the

stop-work order he did. The City’s own witnesses testify that order could

not be reversed by anyone else. The stop-work order issued by Boles—the

actual municipal act of which Barrett complains—is, therefore, municipal

policy. It is a custom or usage of the City of Nassau Bay. It is a matter for

which the City may be liable under 28 U.S.C. § 1983, and it waives the

City’s immunity. The City’s third issue should be overruled.




Barrett’s structure was a “non-conforming use,” despite receiving the approval of the
City official charged with building code enforcement and despite Barrett’s being
informed by that same official that there was no need for him to obtain a permit. CR
607. That he might have made a factual error seems never to have occurred to Boles,
though it does appear to have occurred to the trial court.


                                         32
                              CONCLUSION

     There are many justifications upon which the trial court could have

rested its Order denying the City’s Plea to the Jurisdiction. The City chose

not to seek clarification of the actual bases for the decision, requesting no

findings of fact and no conclusions of law. But this much is clear. Boles

exceeded his authority and his qualifications by arbitrarily stopping work

on Barrett’s property.   Boles was neither qualified nor empowered to

evaluate what constituted 50 percent of the value of the structure on

Barrett’s property, according to the City of Nassau Bay tax assessor—what

the ordinance notes as the relevant criteria. What he did evaluate was,

apparently, something entirely of his own invention—a “50 percent rule”

contained nowhere in the ordinance he claimed to be enforcing. The trial

court could very easily have found—based on the facts—that Boles’s action

was entirely arbitrary. The trial court could also have found that Boles’s

action in changing Barrett’s application to the Board as greatly exceeding

his authority and, in fact, depriving Barrett of the mastery of his own

complaint.

     Ultimately, Barrett simply relied upon the word of a City

policymaker having authority over building within the City. Boles sought


                                     33
to move the goalposts, according to his own imagining of the City’s

ordinance. The trial court did not abuse its discretion by recognizing the

actions of a loose-cannon City employee for what they were. The trial

court’s Order denying the City of Nassau Bay’s Plea to the Jurisdiction

should be affirmed.

                                  PRAYER

      For the foregoing reasons, Appellees Ray Barrett and 1438 Kingstree

Lane, in rem, respectfully request that the trial court’s Order be affirmed.

                                      Respectfully submitted,

                                      SIMPSON, P.C.

                                      /s/ Iain G. Simpson
                                      ______________________________
                                      Iain G. Simpson
                                      State Bar No. 00791667
                                      1333 Heights Boulevard, Suite 102
                                      Houston, Texas 77008
                                      (281) 989-0742
                                      (281) 596-6960 (fax)

                                      APPELLATE COUNSEL FOR
                                      RAY BARRETT AND 1438 KINGSTREE LANE




                                      34
                    CERTIFICATE OF COMPLIANCE

      I hereby certify that the foregoing Appellees’ Brief is computer-
generated, containing 8,056 words according to the word-count function of
the application used to create it in the areas required to be counted by Rule
9.4, Texas Rules of Appellate Procedure, and complies with the Rule’s
word-count requirements. The Brief is printed in 14-point typeface, except
for the footnotes, which are in 12-point typeface.


                                      /s/ Iain G. Simpson
                                      ______________________________
                                      Iain G. Simpson



                       CERTIFICATE OF SERVICE

      I hereby certify that a copy of the foregoing Appellees’ Brief was
served this 26th day of June, 2015, via facsimile, hand delivery, electronic
service, or certified U.S. Mail, on the following:

William S. Helfand
bill.helfand@chamberlainlaw.com
Charles T. Jeremiah
charles.jeremiah@chamberlainlaw.com
1200 Smith Street, Suite 1400
Houston, Texas 77002

COUNSEL FOR CITY OF NASSAU BAY, TEXAS



                                          /s/ Iain G. Simpson
                                          ____________________________
                                          Iain G. Simpson



                                     35
APPENDIX 1
ARTICLE 10. - NONCONFORMING USES



10-100. - Nonconforming uses, lots, buildings, structures and nonconforming uses of buildings,
structures, and premises.

     Scope. It is the intent of this section to permit the continuation of those uses of land and structures
and characteristics of use which were lawful before the passage of this ordinance, but which would be
prohibited, regulated or restricted under the terms of this section or future amendments; to permit such
nonconformities to continue until they are removed, but to discourage their survival; that nonconforming
structures may be enlarged upon, expanded or extended, subject to the property development regulations
of the district in which the structure is located, but that said structures may not be used as a basis for
adding other structures or uses prohibited elsewhere in the same district.
10-200. - Nonconforming uses of land.

    10-201. The lawful use of land existing at the time of the passage of this ordinance, although such
use does not conform to the provisions hereof, may be continued, subject to the following provisions:
     (a) No such nonconforming use shall be enlarged or increased nor extended to occupy a greater
         area of land than was occupied at the effective date of adoption of this ordinance, unless such
         use is changed to a use permitted in the district in which such use is located.
     (b) No such nonconforming use shall be moved in whole or in part to any other portion of the lot or
         parcel occupied by such use at the effective date of adoption of this ordinance.
     (c) If any such nonconforming use of land ceases for any reason for a period of more than six (6)
         months, any subsequent use of such land shall conform to the regulations specified by this
         ordinance for the district in which such land is located.
     (d) No structure which does not conform to the requirements of this ordinance shall be erected in
         connection with such nonconforming use of land.
    10-202. Community unit development specific use permits. Any and all community unit development
specific use permits granted before the passage of this ordinance shall continue in full force and effect.
10-300. - Nonconforming buildings and structures.

     The lawful existence of a structure or building at the effective date of adoption of this ordinance,
although such structure or building does not conform to the property development regulations of this
ordinance for minimum lot areas and dimensions, minimum yard setback requirements, maximum
building height, total floor area, lot coverage and minimum floor area requirements, or other
characteristics of the structure, or its location on the lot, may be continued so long as it remains otherwise
lawful, subject to the following provisions:
     (a) Nonconforming buildings and structures may be enlarged upon, expanded or extended subject
         to all the property development regulations including minimum lot area and dimensions of the
         district in which the building or structure is located. No such building or structure shall be
         enlarged upon or altered in any way which increases its nonconformity. Such building or
         structure or portion thereof may be altered to decrease its nonconformity except as may be
         hereafter provided. Such nonconforming buildings or structures shall not be used as a basis for
         adding other structures or uses prohibited elsewhere in the same district.
     (b) Should such structure or building be destroyed by any means to an extent of more than fifty (50)
         per cent of its assessed value at the time of destruction, as determined by the Nassau Bay tax
         assessor, it shall not be reconstructed except in conformity with the provisions of this ordinance.
     (c) Reserved.


                                                                                                       Page 1
     (d) Should such structure or building be moved for any reason for any distance whatever, it shall
         thereafter conform to the property development regulations for the district in which it is located
         after it is moved.
     (Ord. No. 2009-648, § I, 6-6-09)
10-400. - Nonconforming uses of buildings, structures and premises.

      If a lawful use involving individual structures, buildings, and/or premises in combination thereof exists
at the effective date of adoption of or amendment to this ordinance that would not be allowed in the
district in which it is located under the terms of this ordinance, the lawful use may be continued so long as
it remains otherwise lawful, subject to the following provisions:
     (a) No existing structure devoted to a use not permitted by this ordinance in the district in which it is
         located shall be enlarged, extended, constructed, reconstructed, moved, or structurally altered
         except in changing the use of the structure to a use permitted in the district in which it is located,
         except as may otherwise be provided herein.
     (b) A nonconforming use may be extended throughout any part of a building or structure which is
         manifestly arranged as designed for such use at the time of adoption or amendment of this
         ordinance, but no such use shall be extended to occupy any land outside such building.
     (c) Any structure or building, or structure or building and premises in combination, in or on which a
         nonconforming use is superseded by a permitted use, shall therefore conform to the regulations
         for the district in which such structure is located, and the nonconforming use may not thereafter
         be resumed.
     (d) When a nonconforming use of a structure or building, or structure or building and premises in
         combination is discontinued or abandoned for six (6) consecutive months or for eighteen (18)
         months during any three-year period except when government action impedes access to the
         premises, the structure, or structure and premises in combination, shall not thereafter be used
         except in conformance with the regulation of the district in which it is located.
          Where nonconforming use status applies to a structure and premises in combination, removal
          or destruction of the structure shall eliminate the nonconforming status of the land unless the
          land itself is in a nonconforming use. Destruction for the purpose of this section is defined as
          damage to an extent of more than fifty (50) per cent of the assessed value of the structure at the
          time of destruction.

10-500. - Alterations, construction, repairs and maintenance, and change.

(a) Alterations. A nonconforming building may be maintained and repairs and alterations may be made,
    except that in a building which is nonconforming as to use regulations, no structural alterations shall
    be made except those required by law. Repairs such as plumbing or the changing of partitions or
    other interior alterations are permitted.
(b) Construction. This ordinance shall not be deemed to require a change in the plans, construction, or
    designated use of any building on which actual construction was lawfully begun prior to the effective
    date of the passage of or amendment to this ordinance, and upon which actual built-construction has
    been diligently carried on. Actual construction is hereby defined to include the placing of construction
    materials in permanent position and fastened in a permanent manner. Where demolition or removal
    of an existing building has been substantially begun preparatory to rebuilding, such demolition or
    removal shall be deemed to be actual construction, provided that work shall be diligently carried on
    until completion of the building involved.
(c) Normal repairs and maintenance. On any building devoted in whole or in part to any nonconforming
    use, work may be done in any period of twelve (12) consecutive months on normal repairs, or on
    repairs or replacement of nonbearing walls, fixtures, wiring or plumbing to an extent not exceeding
    twenty (20) per cent of the current assessed value of the building, provided that the cubic volume of



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the building as it existed at the time of passage of our amendment to this ordinance shall not be
increased.




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