
OPINION

No. 04-06-00564-CV

THE CITY OF HELOTES,
Appellant

v.

Balous MILLER,
Appellee

From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CI-18026
Honorable Michael Peden, Judge Presiding

Opinion by:	Sandee Bryan Marion, Justice
 
Sitting:	Sandee Bryan Marion, Justice
		Phylis J. Speedlin, Justice
		Rebecca Simmons, Justice

Delivered and Filed:	October 3, 2007

AFFIRM

	This is an appeal from the trial court's denial of the City of Helotes's plea to the jurisdiction. 
We affirm.
BACKGROUND
	Appellee, Balous Miller, is the owner of approximately thirty-one acres of land located at the
intersection of State Highway 16 and Scenic Loop Road in Bexar County, Texas.  The land is outside
the municipal limits of the appellant, the City of Helotes ("the City").  In September 2004, Miller
contracted to sell approximately twenty-eight acres of the land to Wal-Mart Stores Texas, L.P.
("Wal-Mart") for the purpose of commercial/retail development.  The sale was contingent upon Wal-Mart being able to develop the property for a retail store.  Miller retained the remaining land to
develop compatible commercial sites.    
	In November 2004, Miller designated Wal-Mart as his agent to act on his behalf in
connection with the development of the property, and Wal-Mart applied for licenses and permits and
entered into services contracts.  Subsequently, according to Miller, Wal-Mart obtained the following:
(1) a Permit to Construct Access Driveway Facilities on Highway Right of Way, (2) a Utility
Services Agreement with the San Antonio Water System, and (3) permits issued by the City for
development of the property. 
	At some point in early 2005, the City initiated annexation proceedings on the property and
passed interim development controls.  In August 2005, the City passed a resolution opposing "the
development of a Wal-Mart, or other 'big box' department store within the municipal corporate
limits or the extraterritorial jurisdiction" of the City.  The resolution also stated the City "may take
those actions authorized by law to prevent the location of a Wal-Mart or other 'big box' department
store within the [C]ity's municipal corporate limits or the extraterritorial jurisdiction."  
	On November 10, 2005, Miller filed an original petition for declaratory relief.  In his petition,
Miller alleged the annexation proceeding was still pending and additional interim development
controls had since been imposed prohibiting (1) property owners from filing any "application for
zoning of property in the annexation area," (2) property owners from filing any "application for
approval of a preliminary subdivision plat, a subdivision plat, or replat of property in the annexation
area," and (3) the City from accepting any "application for zoning of property in the annexation
area."  Miller asked the court to declare that his land use rights vested as of October 24, 2004 and
that the City may not abridge those vested rights to inhibit, impede, or preclude the commercial
development of the property.
	In December 2005, Wal-Mart announced that this location was "no longer being considered."
Through its engineering firm, Wal-Mart requested, and received, a refund on the application fees
from the City in the amount of $14,435.00.  In July 2006, the City filed its plea to the jurisdiction,
arguing the trial court did not have jurisdiction because a "justiciable controversy" did not exist on
the grounds that (1) Miller's claim became moot after Wal-Mart abandoned the project and (2)
Miller's claim was not ripe because there is no existing project in which he has vested rights.  The
trial court denied the plea, and this appeal by the City ensued.
STANDARD OF REVIEW	When a plea to the jurisdiction challenges the pleadings, we must determine whether the
plaintiff has pled facts that affirmatively establish the trial court's subject-matter jurisdiction.  See
Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).  In our review, we
accept the allegations in the pleadings as true and construe the allegations in favor of the pleader. 
Id.  When the facts underlying the merits of the case and the trial court's subject-matter jurisdiction
are intertwined, and the State asserts, with supporting evidence, that the trial court lacks subject-matter jurisdiction, the plaintiff must show there is a disputed material fact regarding the
jurisdictional issue.  Miranda, 133 S.W.3d at 226.  If a plea to the jurisdiction challenges the
existence of jurisdictional facts, the trial court may consider relevant evidence submitted by the
parties when necessary to resolve the jurisdictional issues raised.  Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 554 (Tex. 2000).  When consideration of a trial court's subject-matter jurisdiction
requires the examination of evidence, the trial court exercises its discretion in deciding whether the
jurisdictional determination should be made at a preliminary hearing or await a fuller development
of the case, mindful that this determination must be made as soon as practicable.  Miranda, 133
S.W.3d at 226.  
	In a case in which the jurisdictional challenge implicates the merits of the plaintiff's cause
of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant
evidence to determine if a fact issue exists.  Id.  If the evidence creates a fact question regarding the
jurisdictional issue, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be
resolved by the fact finder.  Id. at 227-28.  If the relevant evidence is undisputed or fails to raise a
fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter
of law.  Id. at 228.
JUSTICIABLE CONTROVERSY	A declaratory judgment is appropriate only if there is a justiciable controversy about the
rights and status of the parties and the declaration will resolve the controversy.  Bonham State Bank
v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995).  "To constitute a justiciable controversy, there must
exist a real and substantial controversy involving a genuine conflict of tangible interests and not
merely a theoretical dispute."  Bexar-Medina-Atascosa Counties Water Control & Improvement Dist.
No. 1 v. Medina Lake Prot. Ass'n, 640 S.W.2d 778, 779-80 (Tex. App.--San Antonio 1982, writ
ref'd n.r.e.).		 

	Ripeness and mootness are threshold issues that implicate subject-matter jurisdiction.
Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc., 971 S.W.2d 439, 442 (Tex.
1998) (ripeness); Labrado v. County of El Paso, 132 S.W.3d 581, 589 (Tex. App.--El Paso 2004,
no pet.) (mootness).  The constitutional roots of justiciability doctrines, such as ripeness and
mootness, lie in the prohibition on advisory opinions.  Patterson, 971 S.W.2d at 442.  Texas courts
are not empowered to give advisory opinions.  Id. at 443. 
	Ripeness emphasizes the need for a concrete injury for a justiciable claim to be presented. 
Id. at 442.  "At the time a lawsuit is filed, ripeness asks whether the facts have developed sufficiently
so that an injury has occurred or is likely to occur, rather than being contingent or remote."  Id. 
"Ripeness thus focuses on whether the case involves 'uncertain or contingent future events that may
not occur as anticipated, or indeed may not occur at all.'" Id. (citation omitted).  A case is not ripe
if its resolution depends on contingent or hypothetical facts, or upon events not yet come to pass. 
Id. at 443.  "A case becomes moot if a controversy ceases to exist or the parties lack a legally
cognizable interest in the outcome."  Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005). 
	Miller originally filed his declaratory judgment action to determine his rights while the Wal-Mart project was still on-going.  On appeal, Miller contends Wal-Mart's decision to abandon its
plans did not render his claim moot because there still remains a development project for which a
determination of his rights is necessary.  He asserts he is entitled to develop the property free of the
City's zoning regulations because he initiated the development prior to the City obtaining regulatory
control over the property via annexation.  Thus, according to Miller, a declaratory judgment action
will resolve his dispute with the City by establishing the development controls under which he must
proceed.  The City asserts Miller's claim is moot because Wal-Mart terminated its real estate contract
with Miller, and Miller is not continuing with the Wal-Mart project.  The City argues Miller's claim
is not ripe because the Local Government Code requires that permits be issued or denied for a
controversy to be ripe for adjudication and no permits have been issued to Miller or denied.  We
disagree with the City, and for the following reasons, conclude a real and substantial controversy
exists.
	The Texas Legislature has created a system under which property developers may rely on
land-use regulations in effect at the time "the original application for [a] permit is filed . . . ."   Tex.
Loc. Gov't Code Ann. § 245.002(a) (Vernon 2005).  "Each regulatory agency shall consider the
approval, disapproval, or conditional approval of an application for a permit solely on the basis of
any orders, regulations, ordinances, rules, expiration dates, or other properly adopted requirements
in effect at the time: (1) the original application for the permit is filed for review for any purpose,
including review for administrative completeness; or (2) a plan for development of real property or
plat application is filed with a regulatory agency."  Id.  A "permit" is defined as "a license,
certificate, approval, registration, consent, permit, contract or other agreement for construction
related to, or provision of, service from a water or wastewater utility owned, operated, or controlled
by a regulatory agency, or other form of authorization required by law, rule, regulation, order, or
ordinance that a person must obtain to perform an action or initiate, continue, or complete a project
for which the permit is sought."  Id. § 245.001(1).  A "project" is defined as "an endeavor over
which a regulatory agency exerts its jurisdiction and for which one or more permits are required to
initiate, continue, or complete the endeavor."  Id. § 245.001(3).  Furthermore, a municipality may
not, after annexing an area, prohibit a person from: (1) beginning to use land in the area in the
manner that was planned for the land before the ninetieth day before the effective date of the
annexation if: (a) one or more licenses, certificates, permits, approvals, or other forms of
authorization by a governmental entity were required by law for the planned land use; and (b) a
completed application for the initial authorization was filed with the governmental entity before the
date the annexation proceedings were instituted.  Tex. Loc. Gov't Code Ann. § 43.002(a) (Vernon
Supp. 2006).
	We conclude Miller alleged sufficient facts to survive a plea to the jurisdiction.  Clearly,
Miller, though his agent Wal-Mart, filed an original application for a permit, driveway permits were
obtained, a contract with SAWS was executed, the City's fire department reviewed the property, and
multiple preliminary plats had been filed with the City.  The fact that Miller's anchor tenant
withdrew from the commercial development project does not automatically moot the question of
what regulations control the development of the property.  The question then becomes whether the
"project" remains the same.  Miller argues he intends to develop the property with another large
retail store, such as Wal-Mart, as the anchor tenant.  In his amended response to the City's
interrogatory, in which he was asked to "detail the 'project' currently envisioned for the Property as
that term is used in" section 245.002(b), Miller responded as follows:
[Miller] intends to develop the property commercially.  The long term plan for the
property has been a multi-use development focused on retail.  To that end, a driveway
permit was obtained and a contract was entered into with the SAWS for provision of
water.  It is not possible for [Miller] to describe the project in further detail without
knowledge of the result of its vested rights in the property. [Miller] has not secured
a new buyer due to the City's actions in driving out Wal-Mart and improperly
rezoning the property at issue.
	This is sufficient to at least raise a fact issue on whether Miller's current intended
development of the property is the same as the land use contemplated when Miller, through his
agent, filed the original application in late 2004.  See City of San Antonio v. En Seguido, Ltd., 227
S.W.3d 237 (Tex. App.--San Antonio  2007, no pet.) (finding existence of fact issue on whether the
project En Seguido sought to pursue in 2004 was a change from the project envisioned by a 1971
subdivision plat).  Because a fact issue exists on whether the project remains the same after Wal-Mart's withdrawal as anchor tenant, it would have been improper for the trial court to grant the plea
to the jurisdiction at this time.  Accordingly, we affirm the trial court's order.
 
							Sandee Bryan Marion, Justice


 



