Opinion filed July 10, 2014




                                     In The


        Eleventh Court of Appeals
                                  __________
                              No. 11-12-00159-CV
                                  __________

                          JAY ANTHONY, Appellant
                                        V.
         THE BOARD OF ADJUSTMENT OF THE CITY OF
               STEPHENVILLE, TEXAS, Appellee

                     On Appeal from the 266th District Court
                              Erath County, Texas
                        Trial Court Cause No. CV31528

                      MEMORANDUM OPINION
       The zoning ordinance of the City of Stephenville is the centerpiece of this
litigation. The manner in which the City applied it to property owned by Jay
Anthony is the subject of this appeal. In a writ of certiorari proceeding filed by
Anthony following adverse Board of Adjustment action, the trial court granted the
City’s plea to the jurisdiction and motion for summary judgment, and it denied the
motion for summary judgment that Anthony filed. We affirm.
        Anthony owned property within the City of Stephenville. He wanted to
build a business on the property, and on October 25, 2010, Anthony, his wife
Jamie, and Ann Correll—manager-to-be at the proposed new store—met with
Betty L. Chew, the Director of Community Development for the City, and
discussed their plans with her. The proposed business was to be a 7,811 square
foot convenience store with two enclosed drive-through lanes. Chew informed
them that the proposed use was not a classified use under the City’s zoning
ordinance and therefore was not permitted.
        Thereafter, Chew placed an item on the agenda of the planning and zoning
commission’s December 15, 2010 meeting.            The agenda item called for
consideration of an amendment to the zoning ordinance that would classify the use
and therefore allow the construction of a convenience store with drive-through
service. The commission voted to table the item until its January 2011 meeting.
At the January 19, 2011 meeting, a motion was made to place the property in a
different classification so that the use would be allowed. The motion failed to
pass.
        On March 1, 2011, the proposed amendment was before the city council, and
it referred the proposal back to the planning and zoning commission. The proposal
was again before the city council on April 5, 2011, and once again, it referred the
matter to the planning and zoning commission. No reclassification proposals were
ever sent to the city council. Although we do not believe it to be decisive of the
issues in this appeal, we do note that no appeals were taken as to anything that
occurred from the time of the first meeting with Chew through the April 5, 2011
referral to the planning and zoning commission.
        On August 22, 2011, Shawn Felton signed an application for a commercial
building permit for construction of a structure on property located at 1303 West
South Loop, South Side, Block 35, Lot 27, in the City of Stephenville. The
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application shows that Jay and Jamie Anthony were the property owners and that
Felton was the general contractor. The application was for a commercial building
permit for “Cowboys Convenience Store” with drive-through service. By letter
dated September 30, 2011, the city attorney informed Anthony’s attorney that the
proposed use was not allowed in a B-2 district under the City’s zoning ordinance.
No appeal was taken from this action.
      On November 10, 2011, Jamie Anthony signed an application for a
commercial building permit for construction of a structure on property located at
1303 West South Loop, South Side, Block 35, Lot 27, in the City of Stephenville.
As did the application filed by Felton on August 22, 2011, covering the same
property, the November 10, 2011 application also shows that Jay and Jamie
Anthony were the property owners. The proposed business name was “Cowboy
Convenience Store.” At Chew’s request, the city attorney again notified Anthony’s
attorney that the use was not classified. He also notified the lawyer that the matter
had already been decided and that there was no meaningful difference between the
August application and the November application.          On November 23, 2011,
Anthony filed an appeal of the action on the second application to the Board of
Adjustment. On December 19, 2011, the Board of Adjustment denied the appeal.
      On December 28, 2011, Anthony filed his original petition and application
for writ of certiorari in the district court. The City responded to the petition and
application and also filed a plea to the jurisdiction and a motion for summary
judgment. Anthony also filed his motion for summary judgment. As we have
noted, the trial court granted the City’s plea to the jurisdiction and motion for
summary judgment and denied Anthony’s motion for summary judgment.
      Anthony brings four issues for us to decide. First, he claims that the City’s
real reason for its denial of a permit was that beer and wine would be sold through
the drive-through lanes, and he argues that the City cannot deny an application just
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because beer and wine will be sold because the State has preempted that area.
Next, Anthony maintains that the zoning ordinance is silent as to drive-through
lanes; that the City has allowed other businesses to have drive-through lanes; and
that, therefore, the City could not deny him a permit on that basis.       In his third
issue on appeal, Anthony claims that any procedural defects were waived by the
City when it heard and acted upon his second application. Lastly, in his fourth
issue on appeal, Anthony asserts that a takings claim is in fact ripe for decision.
      First, we note that we need not discuss the fourth issue. Both parties agree
that the takings claim was omitted from an amended petition and therefore was not
before the trial court.
      Because we believe it to be dispositive, we will first address Anthony’s third
issue on appeal.      Below, the City took the position that Anthony’s second
application for a building permit was not materially different from the first and
that, because he did not appeal the denial of the first application to the Board of
Adjustment, he had not exhausted his administrative remedies and the trial court
was without jurisdiction. Through his third issue, Anthony challenges the City’s
position and claims that the second application was a different application and that
he timely appealed that denial to the Board of Adjustment. Anthony agrees that he
did not appeal the denial of the first application, but he argues that he did file an
appeal from the denial of the second application, one that he maintains is
materially different from the first one.
       Subject-matter jurisdiction is essential to the authority of a trial court to
decide a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443
(Tex. 1993). A plea questioning the trial court’s jurisdiction raises a question of
law that we review de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).
In reviewing a plea to the jurisdiction, we review the pleadings and any evidence
relevant to the jurisdictional issue. Tex. Dep’t of Criminal Justice v. Miller, 51
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S.W.3d 583, 587 (Tex. 2001). The plaintiff has the burden of alleging facts
sufficient to demonstrate the trial court’s jurisdiction. Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the pleadings illustrate
incurable defects in jurisdiction, a plea to the jurisdiction is properly granted. Id. at
226–27.
      Section 211.010(b) of the Texas Local Government Code requires that a
person who wishes to appeal a decision made by an administrative official to the
board of adjustment must do so “within a reasonable time as determined by the
rules of the board.” TEX. LOC. GOV’T CODE ANN. § 211.010(b) (West 2008). The
time set forth in the City’s zoning ordinance is “ten days after the date of [the]
decision of the Enforcing Officer.” STEPHENVILLE, TEX., ZONING ORDINANCE
§ 21.1B(6) (March 1, 2006).
      Generally, a party must exhaust his administrative remedies before he may
obtain judicial review of an administrative official’s decisions.          Lazarides v.
Farris, 367 S.W.3d 788, 798 (Tex. App.—Houston [14th Dist.] 2012, no pet.). If a
party fails to comply, a trial court is deprived of jurisdiction to hear the case. Id.
Subject-matter jurisdiction cannot be waived. See Univ. of Tex. Sw. Med. Ctr. at
Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004); City of McKinney v.
Eldorado Park, Ltd., 206 S.W.3d 185, 193 (Tex. App.—Eastland 2006, pet.
denied).
      The property is located within zoning district B-2.           The City’s zoning
ordinance for property located in zoning district B-2 contains a classification for a
convenience store. Section 3 of the ordinance provides that a “convenience store”
is “[a]ny area of land including the structures thereon (except that the primary
building shall not exceed 2000 square feet) that is used to provide goods and
services to a neighborhood including food products, snacks, newspapers,
household cleaning supplies, paper goods, lottery tickets, and gasoline.”
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      It is necessary for us to examine both the August 22, 2011 application and
the November 10, 2011 application. Anthony maintains that the first and second
applications are different in two significant ways. The first application was for the
construction of “Cowboys Convenience Store,” a convenience store with drive-
through service. The description of the structure showed 1,742 square feet of
office space, 1,493 square feet of storage or warehouse space, 4,576 square feet of
public or public drive, and 0 square feet of “other,” for a total of 7,811 square feet.
      Anthony’s argument is that the second application was different in two
major ways. First, the second application was for a “retail store other than listed,”
a category provided for in the B-2 zoning district, rather than a “convenience
store” as in the first. Second, the drive-through lanes shown in the first application
were designated as “covered customer parking” in the second application.
      We agree with the City’s position that the second application is essentially
the same as the first and did not materially change the nature of the case as
required in the zoning ordinance.     The description of the structure in the second
application showed 631 square feet of office space, 1,456 square feet of storage or
warehouse space, 1,148 square feet of public or retail space, and 4,576 square feet
of “other,” for a total of 7,811 square feet, the same total footage as contained in
the original application. The differences appear to be the result of (1) deducting
1,111 square feet from the “office space” category and 37 square feet from the
“storage or warehouse space” category, as shown in the first application, and using
the total of those two figures to comprise 1,148 square feet of “public or retail
space” in the second application, and (2) moving 4,576 square feet, shown as
“public or public drive” in the first application, to the “other” category in the
second application. The business name in the second application is essentially the
same as in the first, “Cowboy Convenience Store” as opposed to “Cowboys
Convenience Store.” The plan submitted with the second application is the same
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as the first with the exception that, although the drive-through lanes shown in the
first application are still there, they have been relabeled as covered customer
parking, and Anthony posits that the area is now covered parking although one
could drive through and shop from a vehicle if he or she wanted.
      Anthony also argues that his proposed business cannot fall in the
“convenience store” category as defined in the ordinance because it exceeds 2,000
square feet in size.    Therefore, because it does not fit the definition of a
convenience store, the use qualifies as “retail store other than listed” as provided
for in the zoning ordinance. And, the argument goes, the result is that the second
application materially changes the nature of the case.        Further, according to
Anthony, the end result is that he filed a new application, which was denied; that
he timely appealed that denial to the Board of Adjustment; and that the trial court
had jurisdiction.
      The City counters that the zoning classification pertains to “retail store other
than listed” and that, because a convenience store is explicitly listed, the
classification “retail store other than listed” is not a use that is available to
Anthony. Through its city attorney, the City notified Anthony that the second
application was denied because the matter had already been decided. The City did
not otherwise rule on the application.
      We hold that the second application submitted by Anthony is essentially the
same as the first application that he submitted and that the second application did
not materially change the nature of the case as set forth in the zoning ordinance.
Because Anthony did not appeal from the denial of the first application, the trial
court was without jurisdiction and properly granted the City’s plea to the
jurisdiction. We overrule Anthony’s third issue on appeal. Because we have held
that the trial court did not have jurisdiction in this case, we need not consider
Anthony’s remaining issues.
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      We affirm the judgment of the trial court.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE

July 10, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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