Affirm in part; Reverse in part; Render in part; and Remand; Opinion Filed April 7, 2015.




                                          Court of Appeals
                                                          S     In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-14-00104-CV

     CPM TRUST, KLM SECURE TRUST, AND RMP PARKER CENTRAL, LLC,
                              Appellants
                                 V.
  CITY OF PLANO, TEXAS AND THE BOARD OF ADJUSTMENT OF THE CITY OF
                        PLANO, TEXAS, Appellees

                               On Appeal from the 429th Judicial District Court
                                            Collin County, Texas
                                   Trial Court Cause No. 429-03394-2011

                                                           OPINION
                                     Before Justices Lang, Stoddart, and Schenck
                                              Opinion by Justice Lang

          This case involves the Plano, Texas municipal sign ordinance. Appellants CPM Trust,

KLM Secure Trust, and RMP Parker Central, LLC 1 (collectively, appellants or plaintiffs) filed

this lawsuit against appellees the City of Plano, Texas (the “City”) and the Board of Adjustment

of the City of Plano, Texas (the “Board”).                           The claims asserted by appellants were (1) a

challenge to the Board’s decision requiring removal of a certain billboard (the “billboard”)

owned by appellants; (2) violation of appellants’ “vested property rights”; and (3) a regulatory

taking claim.



     1
       The record shows the original plaintiffs in this lawsuit were CPM Trust, KLM Secure Trust, and Ralph and Muriel Pinkus LLC. Prior to
the judgment complained of, the trial court signed an agreed order substituting RMP Parker Central, LLC for Ralph and Muriel Pinkus LLC.
       Appellants filed a motion for summary judgment regarding their claim challenging the

Board’s decision requiring removal of the billboard. Following a hearing, the trial court denied

appellants’ motion for summary judgment as to that claim and signed an order in which it

“affirmed” the Board’s decision. Then, (1) appellants filed a motion for summary judgment

respecting their remaining claims and (2) the City filed a combined motion for summary

judgment/plea to the jurisdiction as to those claims. In a final judgment, the trial court (1) denied

appellants’ motion for summary judgment as to their remaining claims, (2) granted the City’s

motion for summary judgment/plea to the jurisdiction, (3) ordered that appellants take nothing

against the City, and (4) awarded the City its “costs of court” against appellants.

       In four issues on appeal, appellants contend the trial court erred because: (1) appellants

are entitled to repair the billboard pursuant to the ordinance in question; (2) Chapter 245 of the

Texas Local Government Code prohibits the City from violating appellants’ “vested property

rights” by “applying subsequently enacted ordinances to prevent repair of the [b]illboard,” see

TEX. LOC. GOV’T CODE ANN. §§ 245.001–.007 (West 2005); and (3) appellants pleaded valid

claims respecting violation of Chapter 245 and a regulatory taking and the summary judgment

evidence raised disputed fact issues as to those claims. Further, appellants assert the trial court

erred to the extent it ruled that if appellants are ultimately allowed to repair the billboard under

the ordinance in question or Chapter 245, they are not entitled to damages to compensate them

for a “temporary” regulatory taking.

       We decide in favor of appellants on their second issue. Appellants’ first and fourth issues

are decided against them. We need not reach appellants’ third issue. We reverse, in part, the

trial court’s judgment; render judgment, in part; and remand this case to the trial court for further

proceedings respecting the “costs of court” awarded to the City. The trial court’s judgment is

otherwise affirmed.

                                                –2–
                    I. FACTUAL AND PROCEDURAL BACKGROUND

       The parties do not dispute the following facts: (1) the billboard was installed in

approximately November 1961 on property located along U.S. Highway 75; (2) in approximately

1968, Carl McCord and Ralph Pinkus purchased the property on which the billboard was

installed (the “Property”); (3) at the time of that purchase, the Property was not within a

municipal jurisdiction; (4) the Property was annexed by the City of Plano in 1984; (5) the

ownership interests of McCord and Pinkus in the Property were subsequently transferred to

appellants; and (6) the municipal ordinance in question was passed by the City in 2006 and is

part of the City of Plano Comprehensive Zoning Ordinance.

       Appellants filed their “original petition and application for writ of certiorari” in this case

on August 17, 2011. In their live pleading at the time of the judgment complained of, appellants

asserted in part the billboard “is supported by five separate poles that are partially buried.”

Additionally, appellants stated (1) in April 2011, a storm “damaged the [b]illboard”; (2)

“one . . . of the five supporting poles remained after the storm”; (3) on April 27, 2011, “[the] City

ordered Plaintiffs to remove the remainder of the [b]illboard and refused to allow its repair”; and

(4) appellants filed an “application” to the Board to “appeal the decision of the administrative

official requiring removal of the [b]illboard,” but the decision of that official (the “building

official”) was upheld by the Board on August 9, 2011. Further, appellants contended in part,

       The evidence introduced in the record was that the Property had a legally,
       nonconforming billboard on it that was damaged by a storm. A support pole for
       the Billboard remains on the Property. The legal status of the [b]illboard and
       nature of damage to it were not disputed by the City. Section 3.1604(6) of the
       Plano Zoning Ordinance does not allow a nonconforming sign to be “moved,
       altered, removed and reinstalled, or replaced.” The Board erroneously voted 2-3
       to uphold the building official’s decision that this language does not allow a
       property owner to “repair” the damaged [b]illboard.

       Appellants asserted the following causes of action: (1) a request that the trial court issue a

writ of certiorari directed to the City and the Board pursuant to Chapter 211 of the Texas Local
                                                –3–
Government Code and reverse the decision of the Board, see TEX. LOC. GOV’T CODE ANN.

§§ 211.010–.011 (West 2008); (2) a request for a declaratory judgment that the City violated

appellants’ “vested property rights” under Chapter 245 and appellants are entitled to repair the

billboard and recover attorney’s fees pursuant to that chapter; and (3) a “temporary and/or

permanent” regulatory taking by the City in violation of Article 1, section 17 of the Texas

Constitution, see TEX. CONST. art. I, § 17. In an August 19, 2011 “Unopposed Order Granting

Writ of Certiorari,” the trial court ordered that “a Writ of Certiorari issue to [the Board],

directing it to return to [the trial court] certified or sworn copies of all proceedings and evidence

taken at a hearing before [the Board] on August 9, 2011” respecting appellants’ application to the

Board described above.

            Approximately one month later, appellees filed a joint general denial answer and

response in which they asserted, in part,

                     Concerning [plaintiffs’ appeal of the building official’s decision], the
            Board recognized that the intent of the ordinance regulating non-conforming signs
            is to allow a non-conforming sign to exist until it is destroyed. Once destroyed, a
            non-conforming sign cannot be rebuilt because it is specifically prohibited by
            Code. A sign that is in non-conforming status is not intended to last in perpetuity.
                     Moreover, the Board did not agree that a sign that has been completely
            destroyed is considered “dilapidated” or “damaged” for purposes of making
            repairs. Since the billboard was completely destroyed with only one support pole
            standing, the property owners did not have the option to make repairs as provided
            under Section 3.1604(7)(b), Zoning Ordinance.

(citations to exhibits omitted). Exhibits attached to appellees’ answer/response included (1)

copies of several City of Plano ordinances, including sections 3.1602 2 and 3.1604 3 of the “Sign


     2
        Section 3.1602 of the City of Plano Comprehensive Zoning Ordinance, titled “Definitions,” provides in relevant part that a sign is in
“dilapidated or deteriorated condition” when (1) “elements of the surface or background have portions of the finished material missing, broken, or
otherwise existing such that they are illegible”; (2) “the structural support or frame members are visibly bent, broken, dented, or torn”; (3) “the
panel is visibly cracked or, in the case of wood and similar products, splintered in such a way as to constitute an unsightly or harmful condition”;
(4) “the sign or its elements are twisted, leaning, or at angles other than those at which it was originally erected (such as may result from being
blown or the failure of a structural support)”; (5) “the message or wording can no longer be clearly read”; or (6) “the sign or its elements are not
in compliance with the requirements of the current Electrical Code and/or the Building Code of the City of Plano.” CITY OF PLANO, TEX.,
COMPREHENSIVE ZONING ORDINANCE, art. 3, § 3.1602 (2006).
     3
         Section 3.1604 of the City of Plano Comprehensive Zoning Ordinance states in relevant part as follows:



                                                                       –4–
Regulations” contained in the City of Plano Comprehensive Zoning Ordinance, and (2) a verified

copy of the Board’s “record” pertaining to appellants’ application described above. Among the

documents in the Board’s record were (1) an August 9, 2011 “Decision of the Board of

Adjustment” in which the Board “denied” appellants’ appeal of “the Building Official’s decision

that the nonconforming billboard sign must be removed pursuant to Subsection 3.1604(6) of the

Zoning Ordinance” and (2) photographs of the billboard taken after the 2011 storm that show

one support pole standing and other parts of the billboard on the ground nearby.




          3.1604 General
          ....
          6. Nonconforming Signs

                    a. Legal Nonconforming Uses

                    Subject to the provisions of this section, signs for a legal nonconforming use, as defined in the Comprehensive
                    Zoning Ordinance of the City of Plano, are allowed. Any such sign legally existing on the effective date of this
                    ordinance but which does not comply with the regulations of this ordinance, shall be deemed to be a
                    nonconforming sign under the provisions of this ordinance and shall be subject to alteration or removal in
                    accordance with the provisions of this ordinance.

                    b. Moving, Relocating, or Altering of Signs

                    No nonconforming sign shall be moved, altered, removed and reinstalled, or replaced unless it is brought into
                    compliance with the requirements of this ordinance.
          ....
          7. Maintenance of Signs

                    a. Maintenance

                    Each sign shall be maintained in a safe, presentable, and good condition, including the replacement of defective
                    parts and other acts required for the maintenance of such sign, without altering the basic copy, design, or
                    structure of the sign. The Building Official shall require compliance or removal of any sign determined by the
                    Building Official to be in violation of this section in accordance with the enforcement provisions set forth
                    below.

                    b. Dilapidated or Deteriorated Signs

                    No person shall maintain or permit to be maintained on any premises owned or controlled by him or her any
                    sign which is in a dilapidated or deteriorated condition as defined herein. Upon notice of violation, any such
                    sign shall be promptly removed or repaired by the owner of the sign or the owner of the premises upon which
                    the sign is located in accordance with the enforcement provisions set forth in 8. below.

          8. Enforcement

                    a. Authority

                    The Building Official, or his respective designee(s), any peace officer, and any code enforcement officer is
                    hereby authorized to issue a citation and to order the repair or removal of any dilapidated, deteriorated,
                    abandoned, illegal, or prohibited signs from property within the corporate city limits of Plano, in accordance
                    with the enforcement mechanisms set forth in this section.

CITY OF PLANO, TEX., COMPREHENSIVE ZONING ORDINANCE, art. 3, § 3.1604.



                                                                   –5–
       On February 2, 2012, appellants filed a motion for summary judgment as to their claim

respecting judicial review of the Board’s decision. Appellants asserted in part (1) “[t]he parties

are in agreement and it is undisputed that the sign was damaged and not destroyed” by the 2011

storm; (2) the Board’s decision that section 3.1604(6) requires appellants to remove their

“damaged” sign constitutes an abuse of discretion because that decision ignores the plain

language of the zoning ordinance and renders section 3.1604(7) meaningless; and (3) appellants

are entitled to recover “temporary damages” in the amount of $45,000 as “compensation for the

City’s delay in allowing the billboard to be repaired.”

       Appellants’ summary judgment evidence consisted of (1) the pleadings in this case and

(2) the “Record from Board of Adjustment.” Specifically, the portions of the Board’s record

cited by appellants in their motion included (1) an April 27, 2011 letter to McCord from the

building official that notified McCord as to a “violation” respecting the billboard and stated in

part “[t]he violation concerns a damaged nonconforming sign” and “[i]n order to correct this

violation, the damaged nonconforming sign must be removed, and shall not be reinstalled or

replaced” and (2) a document titled “Appeal Summary” that contained “staff findings” stating in

part “[t]he billboard sign was damaged due to storms within the month of April, 2011” and “[t]he

applicant is requesting to overturn the Building Official’s decision and allow the nonconforming

billboard sign to be repaired pursuant to subsection 3.1604 of the Zoning Ordinance, which does

not specifically prohibit ‘repair’ under 6(b) and allows for repair under 7(b).”

       Appellees filed a joint response to appellants’ February 2, 2012 summary judgment

motion in which they restated the arguments from their answer/response described above.

Additionally, appellees filed a “plea to the jurisdiction and motion to dismiss” respecting

appellants’ “claim for inverse condemnation and regulatory takings.” Specifically, appellees




                                                –6–
asserted in part that governmental immunity applies because appellants failed to plead a valid

claim as to those matters.

           Following a hearing, the trial court (1) denied appellants’ motion for summary judgment

as to the Board’s decision and (2) signed a May 17, 2012 order in which it “affirmed” the

Board’s decision. Further, upon agreement by the parties, appellants’ regulatory taking claim

against the Board was dismissed with prejudice. 4

           On November 21, 2012, appellants filed a motion for summary judgment respecting their

Chapter 245 and regulatory taking claims against the City. Appellants asserted in part that the

City violated Chapter 245 because the 2006 ordinance in question constituted a “new” ordinance

that adversely impacted appellants’ “ongoing [b]illboard project” and thus interfered with their

“vested property rights.” Further, as to their regulatory taking claim, appellants contended in

part they have (1) been denied all economically viable use of their property as a result of the

City’s action or, alternatively, been deprived of their “investment-backed expectations” to

“continued use of the [b]illboard” and (2) suffered damage in excess of $1,200,000.                      The

summary judgment evidence attached to appellants’ November 21, 2012 motion consisted of the

Board’s record described above, the pleadings and orders in this case, and several affidavits

pertaining to the alleged regulatory taking damages and appellants’ attorney’s fees.

           The City filed (1) a February 15, 2013 “first amended answer” in which it asserted

immunity from suit as to appellants’ Chapter 245 and regulatory taking claims in the alternative

to its general denial and (2) an April 5, 2013 motion for summary judgment or alternatively, plea

to the jurisdiction.             In its motion for summary judgment/plea to the jurisdiction, the City

contended in part (1) it was entitled to traditional and no-evidence summary judgment in its

favor because Chapter 245 is inapplicable to this case and no regulatory taking occurred and (2)

   4
       Appellants’ regulatory taking claim against the City was temporarily abated by the trial court.



                                                                      –7–
its governmental immunity from suit had not been waived because the “undisputed jurisdictional

facts” established that appellants’ claims respecting violation of Chapter 245 and a regulatory

taking were not “valid.” Additionally, the City requested that it be allowed to “recover its costs”

from appellants.

          Appellants filed a combined response to the City’s motion for summary judgment and

plea to the jurisdiction on May 8, 2013. Appellants argued in part (1) even if there is no

permanent taking, “it is still possible that [appellants] would be entitled to temporary damages

for the taking of their property rights between the time the City refused the [b]illboard to be

rebuilt to the time that it is rebuilt” and (2) “[b]ecause [appellants] have raised a fact question on

the jurisdictional issue, the trial court must deny the plea to the jurisdiction as a matter of law.”

Specifically, appellants asserted fact questions had been raised as to the appropriate parcel of

property to be considered in determining whether a taking occurred, the magnitude of the

economic impact from the alleged taking, and the amount of compensation to which they were

entitled. 5

           The trial court’s final order described above was dated December 16, 2013. Appellants

filed a timely motion for new trial that was denied by operation of law. This appeal timely

followed.

                                               II. APPELLANTS’ ISSUES

                                                    A. Standard of Review

          We review a trial court’s summary judgment de novo. See, e.g., Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d

546, 548 (Tex. 1985). With respect to a traditional motion for summary judgment, the movant


     5
       Additional evidence not relevant to this appeal was attached to the City’s motion for summary judgment/plea to the jurisdiction and
appellants’ response described above.



                                                                  –8–
has the burden to demonstrate that no genuine issue of material fact exists and it is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon, 690 S.W.2d at 548–49. In our

review, we credit evidence favorable to the non-movant if reasonable jurors could and disregard

evidence contrary to the non-movant unless reasonable jurors could not.          See, e.g., Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

       Although a denial of summary judgment is generally not reviewable, we may review such

a denial when both parties moved for summary judgment and the trial court granted one motion

and denied the other. See, e.g., Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253

S.W.3d 184, 192 (Tex. 2007). In our review of such cross-motions, we review the summary

judgment evidence presented by both sides and determine all questions presented. See id.; City

of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). If we conclude the trial

court committed reversible error, we render the judgment the trial court should have rendered.

See Tex. Mun. Power Agency, 253 S.W.3d at 192; Dallas Morning News, 22 S.W.3d at 356.

       A plea to the jurisdiction is a dilatory plea by which a party challenges the court's

authority to determine the subject matter of the action. See, e.g., Harris Cnty. v. Sykes, 136

S.W.3d 635, 638 (Tex. 2004). The burden is on the plaintiff to allege facts affirmatively

demonstrating that the trial court has subject matter jurisdiction. Tex. Dep’t of Criminal Justice

v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); City of El Paso v. Mazie’s, L.P., 408 S.W.3d 13, 18

(Tex. App.—El Paso 2012, pet. denied). Whether a party has alleged facts that affirmatively

demonstrate a trial court’s subject matter jurisdiction is a question of law which is subject to de

novo review. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004);

Mazie’s, 408 S.W.3d at 18.

       When a plea to the jurisdiction challenges the pleadings, we look to the pleader’s intent,

construe the pleadings liberally in favor of jurisdiction, and accept the allegations in the

                                               –9–
pleadings as true to determine if the pleader has alleged sufficient facts to affirmatively

demonstrate the trial court’s jurisdiction to hear the case. See, e.g., Heckman v. Williamson

Cnty., 369 S.W.3d 137, 150 (Tex. 2012). If the pleadings affirmatively negate the existence of

jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an

opportunity to amend its pleading. Id.; Miranda, 133 S.W.3d at 226–27.

                                        B. Applicable Law

       The Texas Local Government Code provides that the governing body of a municipality

may appoint a “board of adjustment” to, among other functions, hear and decide appeals when

error is alleged in any order, requirement, decision, or determination made by an administrative

official in enforcement of a zoning ordinance. TEX. LOC. GOV’T CODE ANN. §§ 211.008–.009.

A decision of a board of adjustment may be challenged by filing a petition in a district or county

court stating that the board’s decision is illegal in whole or in part and specifying the grounds of

the illegality. Id. § 211.011(a). The trial court may reverse or affirm, in whole or in part, or

modify the decision that is appealed. Id. § 211.011(f).

       In an action challenging a decision by a board of adjustment, the trial court sits as a court

of review and the only question before it is the legality of the board’s decision. City of Dallas v.

Vanesko, 189 S.W.3d 769, 771 (Tex. 2006); Town of Bartonville Planning and Zoning Bd. of

Adjustments v. Bartonville Water Supply Corp., 410 S.W.3d 23, 29 (Tex. App.—San Antonio

2013, pet. denied). The board’s decision is presumed to be lawful, and the party attacking it

bears the burden of establishing that the board clearly abused its discretion. See City of San

Antonio Bd. Of Adjustment v. Reilly, 429 S.W.3d 707, 711 (Tex. App.—San Antonio 2014, no

pet.); Tellez v. City of Socorro, 296 S.W.3d 645, 649 (Tex. App.—El Paso 2009, pet. denied).

To establish that the board’s decision is illegal, the party attacking it must present a “very clear

showing of abuse of discretion.” Vanesko, 189 S.W.3d at 771. A board abuses its discretion

                                               –10–
when it acts without reference to any guiding rules or principles, or when it clearly fails to

analyze or apply the law correctly. Id.

       In determining whether a board abused its discretion, the trial court may consider the

board’s verified return and any other evidence presented to the trial court. TEX. LOC. GOV’T

CODE ANN. § 211.011(d), (e). As to a board’s factual findings, the trial court may not substitute

its judgment for the judgment of the board. Vanesko, 189 S.W.3d at 771; Bd. of Adjustment for

the City of San Antonio v. Kennedy, 410 S.W.3d 31, 35 (Tex. App.—San Antonio 2013, pet.

denied). To prevail in the trial court, a party challenging a board’s factual findings must

establish that the board could have reasonably made only one decision and not the decision it

made. See Vanesko, 189 S.W.3d at 771; see also Kennedy, 410 S.W.3d at 35 (it is not abuse of

discretion for board to base its decision on conflicting evidence). The abuse-of-discretion review

is necessarily less deferential when considering any legal conclusions made by the zoning board

and is similar in nature to a de novo review. Vanesko, 189 S.W.3d at 771.

       We apply the same rules to construe municipal ordinances as those used to construe

statutes. Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex. 2002);

Baird v. City of Melissa, 170 S.W.3d 921, 924–25 (Tex. App.—Dallas 2005, pet. denied). Our

objective in construing municipal zoning ordinance provisions is to discern the city’s intent. See

Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). We rely on

the plain meaning of the text as expressing this intent unless a different meaning is supplied by

definition or is apparent from the context, or the plain meaning leads to absurd results. Tex.

Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); see also

Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994) (“Construction of a statute by the administrative

agency charged with its enforcement is entitled to serious consideration, so long as the

construction is reasonable and does not contradict the plain language of the statute.”). “We do

                                              –11–
not confine our review to words, phrases or clauses in isolation, but rather we examine the entire

act to glean its meaning.” Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex.

2001); see also TEX. GOV’T CODE ANN. § 311.021 (West 2013).              In giving effect to the

enactment as a whole, we should not assign a meaning to a provision that would be inconsistent

with other provisions of the zoning ordinance. See Meritor Auto., Inc., 44 S.W.3d at 90.

Further, because statutory construction is a question of law, we review the issue de novo.

McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003); Baird, 170 S.W.3d at 925.

       Article I, section 17, of the Texas Constitution provides in part “no person’s property

shall be taken, damaged, or destroyed for or applied to public use without adequate

compensation being made.” TEX. CONST. art. I, § 17. Takings can be classified as either

physical or regulatory. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). While

all property is held subject to the valid exercise of the police power, a regulatory action may,

under some circumstances, constitute a taking requiring compensation. See Hallco Tex., Inc. v.

McMullen Cnty., 221 S.W.3d 50, 56 (Tex. 2006).              Where a property owner believes

compensation is due, he may seek redress via an inverse condemnation claim. City of Houston v.

Carlson, 451 S.W.3d 828, 831 (Tex. 2014).

       A municipal government enjoys immunity from suit unless its immunity has been

waived. Id. at 830. Without this waiver, courts have no jurisdiction to adjudicate any claim

against the municipality. Id. It is well settled that the Texas Constitution waives government

immunity with respect to inverse condemnation claims. Id. “Nevertheless, such a claim is

predicated upon a viable allegation of taking.” Id. “In the absence of a properly pled takings

claim, the state retains immunity.” Id. Under such circumstances, a court must sustain a

properly raised plea to the jurisdiction. Id.




                                                –12–
                                  C. Application of Law to Facts

                       1. Trial Court’s Judicial Review of Board’s Decision

       We begin with appellants’ second issue, in which they contend the trial court erred by

affirming the Board’s decision to “prohibit repair of the [b]illboard.” Specifically, appellants

argue in part (1) the billboard “falls within the City’s definition of ‘dilapidated or deteriorated’”

in section 3.1602 and thus can be “repaired” pursuant to subsection 3.1604(7) and (2) the

Board’s construction of the ordinance in question “ignores” the plain language of the ordinance

and renders subsection 3.1604(7)(b) “meaningless.”

       The Board responds in part (1) it “made a factual finding that the [b]illboard had been

destroyed which may not be second-guessed by this Court”; (2) because the billboard was

“destroyed under the terms of the ordinance as opposed to being ‘dilapidated and deteriorated,’”

appellants “were not permitted to ‘repair’ their [b]illboard under the terms of the ordinance but

were, to the contrary, prohibited from reconstructing same”; and (3) “the Board’s construction of

the City’s ordinance does not contradict the plain language of the ordinance.” According to the

Board’s brief on appeal, although section 3.1604(7) “permits maintenance and repair of signs”

and “applies globally to all signs within the City,” the billboard’s condition “does not fall within

the dilapidated or deteriorated classification governed by § 3.1604(7)” and, therefore, “the

Board’s reliance on § 3.1604(6) was appropriate.” Specifically, the Board contends in part,

       [T]he consistent theme in § 3.1602’s definition of “dilapidated or deteriorated” is
       the continued presence of a standing sign. In this regard, the definitions cited by
       Appellants focus only on the sign being “twisted” or “leaning,” or where
       “portions” of the “surface or background” material are missing or broken, not
       where, as in this case, the supports and the sign itself have been completely blown
       down. Such a reading is consistent with the other portions of § 3.1602’s
       definition, each of which indicate that the “dilapidated or deteriorated” descriptor
       was intended to apply to standing structures which were not being properly
       maintained.




                                               –13–
[citations to record omitted]. In support of that argument, the Board cites the language of section

3.1602 and the photographs of the billboard in the Board’s record described above. Further, the

Board contends its reliance on subsection § 3.1604(6) “did not violate the plain language of the

ordinance” because “the City has enacted additional, specific provisions to address how

nonconforming signs are governed via its enactment of § 3.1604(6).”

        In addition to the language of section 3.1602 quoted by the Board in its argument

described above, that section also states in part that a sign is “dilapidated and deteriorated” when

“the structural support or frame members are visibly bent, broken, dented, or torn” or “the sign

or its elements are twisted, leaning, or at angles other than those at which it was originally

erected (such as may result from being blown or the failure of a structural support).” See CITY

OF   PLANO, TEX., COMPREHENSIVE ZONING ORDINANCE, art. 3, § 3.1602 (emphasis added). The

definitions in section 3.1602 do not define or contain the term “destroyed,” nor does section

3.1604 contain that term or specifically address “destroyed” signage. See id. §§ 3.1602, 3.1604.

The photographs of the billboard cited by the Board show one support pole standing and other

parts of the billboard on the ground nearby. On this record, we cannot agree with the Board that

the billboard’s condition “does not fall within the ‘dilapidated or deteriorated’ classification’

governed by § 3.1604(7).” Id. § 3.1604(7).

        Pursuant to subsection 3.1604(7)(b), a dilapidated or deteriorated sign shall be “removed

or repaired by the owner” in accordance with other provisions of the act. Id. § 3.1604(7)(b); see

also id. § 3.1604(7)(a) (“maintenance” of sign can include “replacement of defective parts” as

long as basic design or structure is not altered). The record shows that in its response in the trial

court, the Board described subsection 3.1604(7)(b) as providing property owners “the option to

make repairs.”    We conclude that description is consistent with the plain language of the

ordinance. Id. § 3.1604(7)(b). Further, on this record, we conclude (1) the Board abused its

                                               –14–
discretion by not allowing appellants the option to make repairs as provided under subsection

3.1604(7)(b) and (2) the trial court erred by affirming the Board’s decision.

           We decide in favor of appellants on their second issue. 6

                                               2. “Temporary” Regulatory Taking

           Next, we address together appellants’ first and fourth issues. In those issues, appellants

contend they pleaded a valid claim as to a “temporary and/or permanent” regulatory taking and

“the evidence includes disputed fact issues” respecting that claim. Further, appellants assert that

if they are allowed to repair the billboard, the portion of their fourth issue respecting a

“permanent” taking need not be addressed by this Court, but they are still entitled to recover

“temporary damages including rentals or lost profits for that period of time when the [b]illboard

was unusable.”

           The City responds in part the trial court properly granted its plea to the jurisdiction as to a

regulatory taking because the facts alleged by appellants are not “enough to constitute a taking”

and the City was therefore protected by governmental immunity.

           Subsequent to the filing of the parties’ appellate briefs in this Court, the Texas Supreme

Court delivered its opinion in Carlson. See 451 S.W.3d at 828. In that case, an investigation by

the City of Houston revealed various alleged structural, electrical, and plumbing problems in a

condominium complex. Id. at 829. Of primary concern was evidence that an underground

parking facility might fail, posing serious risk to dozens of units located above the garage. Id.

The city declared the condominiums uninhabitable and posted a notice throughout the complex

stating (1) the condominium owners had ten days to apply for a certificate of occupancy and (2)


     6
       In their third issue, appellants complain as to the trial court’s granting of the City’s motion for summary judgment/plea to the jurisdiction
respecting appellants’ Chapter 245 claim and the denial of appellants’ motion for summary judgment as to that claim. During oral submission
before this Court, appellants stated that their issue respecting violation of Chapter 245 “does not come into play” if this Court concludes the trial
court erred by affirming the Board’s decision in question. In light of our conclusion above that the trial court did so err, we need not address
appellants’ third issue. See TEX. R. APP. P. 47.1.



                                                                      –15–
failure to comply with the notice “may subject you to a municipal court citation.” Id. at 829–30.

The owners did not apply for an occupancy certificate or make the requisite repairs. Id. at 830.

After a month passed without compliance, the city did not issue a citation, but rather ordered all

residents to vacate the complex within thirty-one days pursuant to a city ordinance that

authorized officials to “order the use discontinued immediately” when a structure “creates a

serious and immediate hazard.” Id. After an administrative hearing, the city upheld the order to

vacate. Id. The order to vacate was later reversed by a district court based on due process

violations and the owners sold the complex for redevelopment. Id.

       Subsequently, a group of owners (the “owners”) filed an inverse condemnation action,

alleging their property was taken when residents were forced to vacate. Id. They sought

compensation for years of lost use and other unspecified damages. Id. The trial court sustained

the city’s plea to the jurisdiction, concluding the owners had not alleged a taking. Id. The

Fourteenth Court of Appeals in Houston reversed and the city filed a petition for review. Id.

       The supreme court reversed the court of appeals’ decision. The supreme court observed

that the owners (1) “do not contest any of [the city’s] property-use restrictions” or the “standards

imposed” by the city, but rather “object only to the penalty imposed and the manner in which the

city enforced its standards” and (2) “complain, for example, that the city did not specify the

alleged violations,” that “the punishment was excessive,” and that “the safety regulations were

misapplied vis-à-vis their property.” Id. at 831–32. Further, the supreme court stated the owners

“appear to suggest that a civil-enforcement procedure alone can serve as the basis of a

regulatory-takings claim,” but “have identified no authority for such a proposition.” Id. at 832.

Then, the supreme court reasoned as follows:

       We do not doubt, and the city does not deny, that the order to vacate interfered
       with the use of the respondents’ property. Yet nearly every civil-enforcement
       action results in a property loss of some kind. The very nature of the action
       dictates as much. Nevertheless, that property is not “taken for public use” within
                                               –16–
           the meaning of the Constitution. Accordingly, where a party objects only to the
           “infirmity of the process,” no taking has been alleged.

Id. at 832–33 (citations omitted). Additionally, the supreme court stated “it is immaterial that the

city may have been mistaken regarding the actual safety of the complex” because “[e]ven

assuming the city made a mistake, the [owners’] allegations would ‘amount to nothing more than

a claim of negligence on the part of [the city], for which [it] is immune under the Texas Tort

Claims Act.’” Id. at 833 (quoting Dalon v. City of DeSoto, 852 S.W.2d 530, 538 (Tex. App.—

Dallas 1992, writ denied)). The supreme court concluded that because the owners “simply have

not alleged a taking,” the city retained its immunity from suit and dismissal for want of

jurisdiction was proper. Id.

           In the case before us, appellants do not contest the sign regulations in the City’s zoning

ordinance, but rather complain about the City’s misapplication of certain regulations as to their

property. Based on Carlson, we conclude appellants have not alleged a taking and the trial court

properly granted the City’s plea to the jurisdiction respecting appellants’ taking claim. 7 See id. at

831–33.

           We decide appellants’ first and fourth issues against them.

                                                             3. Costs of Court

           As described above, (1) the City requested that it be allowed to “recover its costs” in the

trial court and (2) the trial court awarded the City its “costs of court” in the final judgment. In

     7
        The parties do not cite or address Carlson in this appeal. In a February 4, 2015 post-submission letter to this Court, appellants cite City of
Galveston v. Murphy, No. 14-14-00222-CV, 2015 WL 167178 (Tex. App.—Houston [14th Dist.] Jan. 13, 2015, no pet. h.), as supplemental
authority in support of their argument that they have properly pleaded a regulatory taking. In Murphy, the City of Galveston appealed a denial of
its plea to the jurisdiction in a case brought by a property owner complaining as to two separate decisions by city officials. See id. at *1.
Specifically, the property owner complained in part that the city improperly relied on certain zoning standards to revoke the property’s non-
conforming status, rather than applying the properly applicable zoning standard. Id. at *3 n.4, The city argued in part on appeal that the property
owner “waived” its right to raise a takings claim as to the city’s revocation of the property’s “’grandfathered’ non-conforming status” by failing
to pursue an appeal with the city’s Zoning Board of Adjustment in accordance with the city’s zoning standards. Id. at *7. The Fourteenth Court
of Appeals in Houston described the issue as one of “ripeness” and concluded in part the trial court did not err by denying the city’s plea to the
jurisdiction because the city did not meet its burden to establish that its revocation decision was not final and authoritative. Id. at *8.
Additionally, the court of appeals stated in a footnote, “We can discern, and the City points to, no reason aside from ‘waiver’ why the [property
owner] would not be able to allege takings theories based on two regulatory actions by the City.” Id. at *7 n.12. Carlson was not cited or
addressed in Murphy. Further, the case before us does not involve the issue of whether a decision revoking a “’grandfathered’ non-conforming
status” was final and authoritative. We do not find Murphy persuasive.



                                                                       –17–
their prayer in their appellate brief, appellants request in part that “the trial court’s finding that

the City recover costs of court from Plaintiffs be reversed and remanded.”

          Generally, a successful party is entitled to recover its costs from its adversary. See TEX.

R. CIV. P. 131; Gumpert v. ABF Freight Sys., Inc., 312 S.W.3d 237, 239 (Tex. App.—Dallas

2010, no pet.). “We review the award of costs under an abuse of discretion standard.” Canine,

Inc. v. Golla, 380 S.W.3d 189, 197 (Tex. App.—Dallas 2012, pet. denied) (citing Furr’s

Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 376 (Tex. 2001)); accord Gumpert, 312 S.W.3d

at 239. The general rule in Texas is that expenses incurred in prosecuting or defending a suit are

not recoverable as costs unless recovery for those items is expressly provided for by statute, rule,

or under principles of equity. Gumpert, 312 S.W.3d at 239. Whether a particular expense is

recoverable under statute or rule as a court cost is a question of law, which we review de novo.

Id.; see Bundren v. Holly Oaks Townhomes Ass’n, Inc., 347 S.W.3d 421, 440 (Tex. App.—Dallas

2011, pet. denied).

         The record in the case before us contains an “Itemized List of Costs” filed post-judgment

by the City in the trial court. That list includes costs pertaining to subpoenas, a deposition, and

mediation following the trial court’s May 17, 2012 interlocutory order affirming the Board’s

decision. The record does not show whether any of those costs are taxable regarding the claim,

addressed above as to appellants’ second issue, where we concluded the trial court erred, nor

does the record show what costs from that list, if any, were included in the trial court’s judgment

that awarded “costs of court” to the City. Therefore, we remand this case to the trial court for

determination of what “costs,” if any, are recoverable by the City in light of our conclusions

above.




                                                –18–
                                       III. CONCLUSION

       We decide (1) in favor of appellants on their second issue and (2) against appellants on

their first and fourth issues. We need not address appellants’ third issue.

       We (1) reverse the portions of the trial court’s judgment “affirming” the Board’s decision

in question and awarding “costs of court” to the City; (2) render judgment reversing the Board’s

decision that the billboard in question must be removed and cannot be repaired; and (3) remand

this case to the trial court for further proceedings respecting the “costs” claimed by the City. The

trial court’s judgment is otherwise affirmed.



                                                       / Douglas S. Lang
                                                       DOUGLAS S. LANG
                                                       JUSTICE
140104F.P05




                                                –19–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

CPM TRUST, KLM SECURE TRUST,                           On Appeal from the 429th Judicial District
AND RMP PARKER CENTRAL, LLC,                           Court, Collin County, Texas
Appellants                                             Trial Court Cause No. 429-03394-2011.
                                                       Opinion delivered by Justice Lang, Justices
No. 05-14-00104-CV         V.                          Stoddart and Schenck participating.

CITY OF PLANO, TEXAS AND THE
BOARD OF ADJUSTMENT OF THE
CITY OF PLANO, TEXAS, Appellees

         In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE the portions of the trial court’s
judgment (1) affirming the decision of the Board of Adjustment of the City of Plano, Texas, and
(2) awarding costs of court to the City of Plano, Texas. We RENDER judgment reversing the
Board of Adjustment of the City of Plano, Texas’s decision that the billboard in question must be
removed and cannot be repaired and REMAND this cause to the trial court for further
proceedings respecting the costs of court awarded by the trial court to the City of Plano, Texas.
In all other respects, the trial court’s judgment is AFFIRMED.

       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 7th day of April, 2015.




                                                –20–
