AFFIRM in part; Reverse and Render in part, and Remand; Opinion filed October 7, 2013




                                          Court of Appeals
                                                          S     In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-10-00283-CV

                       MIRA MAR DEVELOPMENT CORPORATION, Appellant
                                           V.
                              CITY OF COPPELL, TEXAS, Appellee

                                On Appeal from the 101st Judicial District Court
                                             Dallas County, Texas
                                      Trial Court Cause No. 07-11511-E

                                       OPINION NUNC PRO TUNC
                                       Before Justices Lang, Myers, and Murphy 1
                                               Opinion by Justice Myers
          This case involves an appeal from a city council hearing to a district court pursuant to

Texas Local Government Code section 212.904(e). Mira Mar Development Corporation appeals

the district court’s judgment in favor of City of Coppell, Texas on its claims seeking

compensation for exactions. Appellant brings nine issues asserting the trial court erred by

denying its motion for summary judgment and granting the City’s motion for summary judgment

and for awarding appellant only $40,280.84. We affirm in part, reverse and render in part, and

reverse and remand in part for further proceedings.




     1
       The Honorable Mary Murphy, Justice, participated in the submission of this cause and the issuance of this Court’s original opinion on
March 23, 2012. Justice Murphy resigned from the Court on June 7, 2013. Appellant filed its Unopposed Motion to Modify Judgment and
Recall Mandate on September 23, 2013.
                                       BACKGROUND

       In 2006, appellant purchased approximately 18.5 acres in Coppell, Texas, to develop a

29-lot residential subdivision called Alexander Court. In 2008, appellant sold the lots to David

Weekley Homes, a home builder.

       This lawsuit concerns appellant’s conflicts with the City in obtaining approval of the

development, including delays and changes to the development plan that increased appellant’s

costs and reduced the sale price of the lots. Appellant demanded the City compensate it for the

increased costs and reduced sale price. Appellant sought a review of its grievances in a hearing

before the City Council pursuant to section 212.904 of the Texas Local Government Code. See

TEX. LOC. GOV’T CODE ANN. § 212.904(b) (West 2008). The City Council approved procedures

for the hearing, which did not permit appellant to cross-examine the City’s witnesses or present

rebuttal evidence. At the conclusion of the hearing, the City awarded appellant $21,709.84 for

taking .147 acre of land for a roadway.        The City credited $18,444 toward outstanding

roadway-assessment fees appellant owed on the project, which left $3265.84 the City owed

appellant. See TEX. LOC. GOV’T CODE ANN. § 395.023 (West 2005).

       Appellant brought suit in district court appealing the City Council’s decision pursuant to

section 212.904(b) of the Local Government Code. Appellant also alleged violations of its

substantive and procedural due process rights and that the City’s actions constituted compensable

exactions or takings under the federal and state constitutions. In its first motion for summary

judgment, appellant contended the City’s procedures for the hearing before the City Council

denied it due process, and the trial court agreed. The trial court granted the motion for summary

judgment and ordered the City Council to conduct another hearing under procedures that

accorded appellant due process. The second hearing before the City Council took place over

three days in March and April 2009. After the second hearing, the City issued findings of fact


                                              –2–
and conclusions of law and awarded appellant an additional $28,230 in compensation consisting

of $12,465 for sidewalk construction costs, $11,265 for park fees, and $4500 for an extra water

tap. The City Council also awarded appellant $1800 for attorney’s fees. This second hearing

was recorded by a court reporter.

        In its second motion for summary judgment, appellant argued it was entitled to

compensation as a matter of law because the City failed to prove the exactions were roughly

proportional to the projected impact of the development and because appellant established the

amount of compensation to which it was entitled as a matter of law: $792,657 plus attorney’s

fees.   Appellant also argued the City Council’s new procedures were unconstitutional. The

district court denied appellant’s second motion for summary judgment and stated it would

“review the record of the proceedings before the Coppell City Council to determine whether the

decision of the City Council is supported by substantial evidence.”

        On September 21, 2009, the trial court held a hearing under the substantial evidence

standard of review. On October 5, 2009, the court signed an order mostly affirming the City

Council’s findings of fact and conclusions of law as supported by substantial evidence, but the

court awarded appellant an additional $8785 for the value of the land occupied by the sidewalk.

The court also reversed the award of attorney’s fees to appellant, stating in the order that

appellant was not a prevailing party.

        Appellant then filed its third motion for summary judgment and the City filed its only

motion for summary judgment. In these motions, the parties argued they were entitled to

judgment as a matter of law concerning whether the procedures in the City Council hearing

provided appellant substantive and procedural due process and whether the City’s requirements,

fees, and delays in the development-approval process were compensable exactions. Appellant’s

motion sought compensation of $801,762 for the City’s exactions, plus attorney’s fees.

                                               –3–
       The trial court granted the City’s motion, denied appellant’s motion, and rendered

judgment for appellant awarding it $40,280.84, consisting of the $31,495.84 awarded by the City

and the $8785 awarded by the trial court for the land occupied by the sidewalk. The court denied

appellant’s request for attorney’s fees.

                                       APPLICABLE LAW

                                            Takings

       Article I, section 17 of the Texas Constitution prohibits the taking of private property for

public use without adequate compensation. TEX. CONST. art. I, § 17; see Mayhew v. Town of

Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). This provision and the Just Compensation Clause

of the Fifth Amendment to the United States Constitution, applied to the individual states

through the Fourteenth Amendment, were “designed to bar Government from forcing some

people alone to bear public burdens which, in all fairness and justice, should be borne by the

public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960); see U.S. CONST.

amends. V, XIV. Whether particular facts are sufficient to constitute a taking is a question of

law. Gen. Servs. v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001).

       Takings can be classified as either physical or regulatory. Mayhew, 964 S.W.2d at 933.

A physical taking occurs when the government authorizes an unwarranted physical occupation of

an individual’s property. Id. A regulatory taking may occur when a government conditions the

granting of a permit or some other type of government approval on an exaction from a landowner

seeking that approval. See Dolan v. City of Tigard, 512 U.S. 374, 384B85 (1994); Town of

Flower Mound v. Stafford Estates Ltd. P’ship, 135 S.W.3d 620, 634 (Tex. 2004). An exaction

occurs if a governmental entity requires an action by a landowner as a condition to obtaining




                                               –4–
government approval of a requested land development. 2 Town of Flower Mound v. Stafford

Estates Ltd. P’ship, 71 S.W.3d 18, 30 (Tex. App.—Fort Worth 2002), aff’d, Town of Flower

Mound v. Stafford Estates Ltd. P’ship, 135 S.W.3d 620 (Tex. 2004); City of Carrollton v. RIHR,

Inc., 308 S.W.3d 444, 449 (Tex. App.—Dallas 2010, pet. denied). At oral argument, appellant’s

counsel confirmed that all of appellant’s takings claims were under the exaction theory. 3

           For an exaction to be compensable, it must be a cost that, in fairness and justice, should

be borne by the public instead of the individual. As the Texas Supreme Court observed, “The

touchstone of the constitutional takings protections is that a few not be forced . . . ‘“to bear

public burdens which, in all fairness and justice, should be borne by the public as a whole.”’”

Stafford Estates, 135 S.W.3d 620, 642 (quoting Nollan v. Cal. Coastal Comm’n, 483 U.S. 825,

835 n.4 (1987) (quoting Armstrong, 364 U.S. at 49)). To apply this sense of “fairness and

justice,” the Texas Supreme Court has adopted a “rough proportionality” test to determine

whether an exaction constitutes a compensable taking:

           [C]onditioning government approval of a development of property on some
           exaction is a compensable taking unless the condition (1) bears an essential nexus
           to the substantial advancement of some legitimate government interest and (2) is
           roughly proportional to the projected impact of the proposed development.

Stafford Estates, 135 S.W.3d at 634; see Dolan, 512 U.S. at 391; Nollan, 483 U.S. at 837. Under

this test, the government must make an “individualized determination that the required

dedication is related both in nature and extent to the impact of the proposed development.”

Stafford Estates, 135 S.W.3d at 633 (citing Dolan, 512 U.S. at 391). Thus, after the plaintiff


    2
      The Houston (14th District) Court of Appeals has defined a land-use exaction as occurring “when the government requires an owner to
give up his right to just compensation for property taken in exchange for a discretionary benefit conferred by the government.” City of Houston v.
Maguire Oil Co., 342 S.W.3d 726, 736 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (citing Lingle v. Chevron U.S.A., Inc. 544 U.S. 528,
548 (2005)); see also Dolan, 512 U.S. at 385 (“[T]he government may not require a person to give up a constitutional rightChere the right to
receive just compensation when property is taken for a public useCin exchange for a discretionary benefit conferred by the government where the
benefit sought has little or no relationship to the property.”).

    3
      In the discussion below, we conclude that some of appellant’s allegations are not exactions. Whether those allegations may constitute
another type of regulatory taking is not before us.



                                                                      –5–
proves an exaction, the burden of proof shifts to the government to prove the exaction imposed

meets the test. See id. at 643. The government’s proof of rough proportionality of the impact

must be more than bare conclusions; the government is “required to measure that impact in a

meaningful, though not precisely mathematical, way, and must show how the impact, thus

measured, is roughly proportional in nature and extent to the required improvements.” Id. at

644.

                                       Summary Judgment

       The standard for reviewing a traditional summary judgment is well established. See

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548B49 (Tex. 1985); McAfee, Inc. v. Agilysys,

Inc., 316 S.W.3d 820, 825 (Tex. App.—Dallas 2010, no pet.). The movant has the burden of

showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter

of law. TEX. R. CIV. P. 166a(c). In deciding whether a disputed material fact issue exists

precluding summary judgment, evidence favorable to the nonmovant will be taken as true.

Nixon, 690 S.W.2d at 549; In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.—Dallas 2009,

no pet.). Every reasonable inference must be indulged in favor of the nonmovant and any doubts

resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). We review a

summary judgment de novo to determine whether a party’s right to prevail is established as a

matter of law. Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex. App.—Dallas 2000, pet. denied).

       When, as here, both parties move for summary judgment, each party bears the burden of

establishing that it is entitled to judgment as a matter of law. Guynes v. Galveston Cnty., 861

S.W.2d 861, 862 (Tex. 1993); Howard v. INA Cnty. Mut. Ins. Co., 933 S.W.2d 212, 216 (Tex.

App.—Dallas 1996, writ denied). Neither party can prevail because of the other’s failure to

discharge its burden. Howard, 933 S.W.2d at 216. When both parties move for summary

judgment, we consider all the evidence accompanying both motions in determining whether to


                                                –6–
grant either party’s motion. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872

(Tex. 2000). When the trial court grants one motion and denies the other, the reviewing court

should determine all questions presented. Id. The reviewing court should render the judgment

that the trial court should have rendered. Id. When a trial court’s order granting summary

judgment does not specify the grounds relied upon, the reviewing court must affirm the summary

judgment if any of the summary judgment grounds are meritorious. Id.

                                    Summary Judgment Evidence

       In the third issue, appellant contends the trial court erred by overruling its objections to

the City’s summary judgment evidence.        Appellant objected to twenty-two of the exhibits

attached to the City’s motion for motion for summary judgment and to the transcript of the

second City Council hearing. Appellant asserts these items were inadmissible because they were

pleadings, unauthenticated, hearsay, or “not summary judgment evidence.”

       The admission and exclusion of evidence is committed to the trial court’s discretion. City

of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); Costilla v. Crown Equip. Co., 148

S.W.3d 736, 738 (Tex. App.—Dallas 2004, no pet.).           If we concluded the court erred by

overruling appellant’s objections to these items, we could not reverse unless we also concluded

the error “probably caused the rendition of an improper judgment.” TEX. R. APP. P. 44.1(a)(1).

It is the appellant’s burden to show harm from an erroneous evidentiary ruling. In re M.S., 115

S.W.3d 534, 538 (Tex. 2003); see also City of Brownsville, 897 S.W.2d at 753–54 (“A successful

challenge to evidentiary rulings usually requires the complaining party to show that the judgment

turns on the particular evidence excluded or admitted.”). On appeal, appellant does not explain

how the allegedly improper exhibits affected the case other than to state generally that the City’s

summary judgment is unsupported by “sufficient” evidence.             Accordingly, we conclude

appellant has failed to meet its burden of showing harm.


                                               –7–
       Appellant also asserts the testimony of the City’s expert witness, Ken Griffin, must be

struck because “it” was not disclosed. Appellant cites no authority in support of this argument

and fails to analyze the record relating to the testimony. Accordingly, appellant has presented

nothing for our review. See TEX. R. APP. P. 38.1(i); In re B.A.B., 124 S.W.3d 417, 420 (Tex.

App.—Dallas 2004, no pet.). Similarly, appellant has not met its burden of showing harm. See

In re M.S., 115 S.W.3d at 538.

       Appellant also objected to the trial court overruling its objections to the City’s arguments

based on allegations the City neither pleaded nor disclosed in discovery. With one exception, as

discussed below, neither appellant’s brief nor its objection before the trial court identified the

affirmative defenses and arguments that were not pleaded nor disclosed. Accordingly, those

objections are waived for lack of a specific objection before the trial court and for insufficient

briefing on appeal. See TEX. R. APP. P. 33.1; 38.1(i).

       Appellant did object in the trial court “to Coppell’s legal arguments that a condition

precedent was not performed by Mira Mar.” That objection concerned appellant’s request for

roadway and water and sewer “impact” fees under chapter 395 of the Local Government Code.

Appellant argues the City did not plead or disclose in discovery appellant’s failure to perform a

condition precedent. The City asserted appellant did not timely contest the impact fees under

chapter 395 of the Local Government Code. See TEX. LOC. GOV’T CODE ANN. § 212.904(f); id.

§ 395.077(a), (b) (West 2005). The City also moved for summary judgment and opposed

appellant’s motion for summary judgment on alternate grounds discussed below. We resolve the

issue of the impact fees on those alternate grounds. Accordingly, any error by the trial court in

overruling appellant’s objection concerning the condition precedent did not probably cause the

rendition of an improper judgment and is not reversible. TEX. R. APP. P. 44.1(a)(1).

       We overrule appellant’s third issue.

                                               –8–
                                           Exactions and Rough Proportionality

            In the first two issues, appellant contends the trial court erred by granting the City’s

motion for summary judgment and by denying appellant’s third motion for summary judgment 4

because the City’s requirements were exactions and the City did not establish, as a matter of law,

that the alleged exactions were roughly proportional to the projected impact of the development.

Appellant also makes other objections to some of the alleged exactions. To resolve these issues,

we must first determine whether each requirement was an exaction and, if so, whether the City

established (1) an essential nexus to the substantial advancement of a legitimate government

interest and (2) the rough proportionality to the projected impact of the development. Stafford

Estates, 135 S.W.3d at 634.

                                                              Rolled Curbs

            Appellant argues the City required straight curbs in the subdivision instead of the rolled

curbs appellant planned to use. Appellant’s president, John Hawkins, stated in his affidavit that

appellant proposed using rolled curbs in Alexander Court on “a street with a twenty-seven-foot

width.” 5 He stated that the City’s ordinance required a street width of at least twenty-seven feet.

At the City Council hearing, Hawkins stated that when appellant’s contract with David Weekley

Homes was renegotiated, 6 the City’s requirement that straight curbs be used instead of rolled

curbs resulted in a $40,000 reduction in the price of all the lots because the straight curbs would



    4
        Unless otherwise noted, references to “appellant’s motion for summary judgment” are to appellant’s third motion for summary judgment.

    5
       Hawkins then stated, “This exceeded the minimum 27-foot width mandated by the Coppell engineer, as measured ‘gutter-to-gutter’
described in the Coppell ordinance.” Appellant does not explain how the 27-foot street width “exceeded” the requirement that the streets be 27
feet wide. The parties do not cite, nor have we discovered, the ordinance requiring a 27-foot width in the voluminous record on appeal. The
City’s Subdivision Ordinance in the record before us required a street width of 28 feet “b-b,” which appears to mean between the back of the
curbs. See Coppell, Tex., Ordinance 94643, Subdivision Regulations App. C, § VII (Apr. 12, 1994).

    6
      The testimony at the City Council hearing showed the original contract between appellant and David Weekley Homes was for 26 lots.
When the floodplain study showed less of the property was in the floodplain than appellant predicted, appellant changed the design of the
subdivision to 29 lots. Appellant and David Weekley Homes renegotiated the contract to account for the increase in lots as well as other changes,
including straight curbs instead of rolled curbs.



                                                                     –9–
cost David Weekley Homes approximately $1300 to $1400 per lot more than the rolled curbs

would have cost.

       Hawkins told the City Council he designed the streets in the subdivision to be identical in

width and curb style to those in The Springs subdivision on the other side of the road. However,

when he submitted the plat, the City told him the streets had to conform to the City’s regulation

or “detail.” According to testimony at the City Council hearing, the detail showed a street design

with a minimum width of twenty-seven feet between the gutters of straight curbs. Hawkins

testified that the City’s regulations did not address rolled curbs.

       Ken Griffin, the City Engineer, testified at the City Council hearing that the City required

streets to be at least twenty-eight feet measured from the back of one curb to the back of the

opposite curb and to have a minimum width between the gutters or face-to-face of twenty-seven

feet. Griffin stated that although appellant’s proposed streets were twenty-eight feet measured

between the back of the curbs as required by the City’s ordinance, the streets were only twenty-

four feet between the gutters. Griffin agreed that The Springs subdivision had streets of the same

dimensions as appellant proposed, but he stated that subdivision was built in the mid-1990s and

the rolled curbs there were a test. Griffin testified the City quickly learned that the streets were

too narrow. The narrower streets limited maneuverability when cars were parked on both sides

of the street and created a public safety issue. Griffin testified he told appellant’s engineer that

the streets with rolled curbs would be acceptable if they were at least twenty-seven feet from

gutter to gutter, which would require a distance of thirty-one feet between the back of the curbs.

Instead of redesigning the width of the streets, appellant changed the plat to use straight curbs

keeping the twenty-eight-foot distance between the back of the curbs.

       Although there is a fact issue regarding the width of the streets—Hawkins testified the

proposed streets were twenty-seven feet wide between the gutters and Griffin testified they were

                                                –10–
only twenty-four feet wide—that fact question is not material because the parties agreed the

proposed streets were the same design as in The Springs subdivision. The record conclusively

shows the City made an individualized determination that the proposed streets, which were the

same design as those in The Springs subdivision, were too narrow, and its requirement that the

streets in Alexander Court be wider if they were to have rolled curbs was necessary for the

public safety.   Thus, the street-width requirement the City imposed on appellant bore “an

essential nexus to the advancement of” the legitimate government interest of public safety. The

street-width requirement was limited to the streets in the subdivision and did not require the

improvement of any property outside the subdivision.        Thus, the requirement was roughly

proportional to the projected “impact” of the development. We conclude the trial court did not

err by granting the City’s motion for summary judgment and denying appellant’s motion

regarding the rolled curbs.

                                       Extra Drainage Outlets

       The City required appellant to add two extra drainage outlets to obtain approval of the

subdivision. Hawkins testified the extra outlets cost appellant $14,020.

       The evidence shows the City required the extra outlets be installed where two streets in

the subdivision converged at almost ninety degrees to form a “T.” As originally proposed, there

was no drainage outlet in the vicinity of the T intersection. The City’s regulations governing

design criteria and standards for storm sewers and drainage required a subdivision’s engineering

design to conform to the City of Dallas Drainage Design Manual which, Griffin testified,

required outlets be placed upstream to T intersections. Griffin testified he required the two extra

outlets because of the potential for flooding caused by the street forming the pillar of the T

sloping downhill toward the street forming the crossbar of the T. Griffin explained his reasons

for requiring the inlets as follows:


                                               –11–
        A couple of things happen when you go to T intersections. Water goes down at a
        high rate of speed on a sloped street, it hits the intersecting street. At times it will
        turn, at times it won’t. In this particular case because of the layout of the lots,
        there are going to be driveways very near this intersection. Driveways have . . . a
        habit of sucking water out of the street, taking it to and through the garage and
        sometimes through the house.

        Based on twenty-seven years of practice and what, twenty-two of those as a
        licensed engineer, it’s always good judgment, and that’s why Dallas put it in their
        drainage design manual, that inlets should be placed upstream to T intersections
        to collect the water before it gets into the intersection to create a potential
        problem.

Griffin testified that in deciding to require the additional drainage outlets, he considered the

layout of the streets and the potential for flooding on the lots at the intersection.

        This uncontroverted evidence shows Griffin, on behalf of the City, made an

individualized determination based on the unique conditions of the development that the

additional drainage outlets were necessary to prevent flooding of some of the lots in the

subdivision. Prevention of flooding is a legitimate government interest. Thus, the evidence

establishes that the condition for approval of the plat, the additional drainage outlets, bore an

essential nexus to the substantial advancement of a legitimate government interest. The evidence

also shows that the additional outlets would affect only the subdivision and not any other

property and were required because of the subdivision’s design. Accordingly, the condition was

roughly proportionate to the projected impact of the development. We conclude the trial court

did not err by granting the City’s motion for summary judgment and denying appellant’s motion

concerning the additional drainage outlets.

                                          Offsite Sidewalk

        The City required appellant to build a sidewalk outside the subdivision but on property

owned by appellant.       The dispute over this item concerns only the extent of appellant’s

compensation. The City Council concluded appellant was entitled to compensation for the cost

of building the sidewalk, $12,465, but not for the value of the land occupied by the sidewalk.

                                                 –12–
The trial court, however, concluded appellant was entitled to compensation for the value of the

land and awarded appellant $8785, making the total compensation to appellant for the sidewalk

$21,250. Appellant moved for summary judgment asserting it was entitled to $9000 for the

value of the property for total compensation of $21,465. The City argues the trial court awarded

$8785 for total compensation of $21,250 instead of $9000 for total compensation of $21,465

because appellant’s demand letters to the City for compensation prior to the City Council hearing

requested $21,250. Appellant’s response on appeal to the City’s argument is, “Mira Mar is

entitled to the full amount—$21,465.”

       The only evidence of the value of the property is Hawkins’s testimony at the City

Council hearing and in his affidavit in support of appellant’s motion for summary judgment that

the property is worth $9000.     As appellant’s president, Hawkins is presumed to have had

knowledge of the property’s fair market value. See Reid Rd. Mun. Dist. No. 2 v. Speedy Stop

Food Stores, Ltd., 337 S.W.3d 846, 849 (Tex. 2011); Corniello v. State Bank & Trust, Dall., 344

S.W.3d 601, 607 (Tex. App.—Dallas 2011, no pet.). We conclude the trial court erred by

granting the City’s motion for summary judgment and denying appellant’s motion on the issue of

the offsite sidewalk. We render judgment that appellant is entitled to total compensation of

$21,465 (an additional $215 over what the trial court awarded) for the value of the property

under the sidewalk and the cost to build the sidewalk.

                                     Over-Fill for Pad Sites

       The City required appellant to raise the elevation of the “pad site” or building location on

two of the lots as a condition for approval of the subdivision. Hawkins testified that the City’s

ordinance required the pad sites be one foot above the 100-year flood plain, and the lots as

proposed complied with that requirement. However, Griffin, as the City Engineer, required

appellant to raise the level of the two lots at the end of the T intersection to one foot above the


                                              –13–
curb height. Appellant resubmitted the plans with the pad sites raised to the new level. Hawkins

testified that the additional material and labor to raise the pad sites cost appellant $7600.

       Griffin testified he required the additional height of the pad sites to protect the future

homeowners of those lots from flooding caused by the slope of the street leading to the lots.

Griffin agreed that the pad heights as originally submitted complied with the City’s minimum

requirements and the federal regulations. Griffin based his requirement that the pads be raised

on his engineering judgment, which was based on his experience and education and not on any

calculations.   Griffin stated that the law applicable to engineers permits him to impose

requirements exceeding the City’s minimum requirements when, in his engineering judgment,

the greater requirements are necessary to protect the health, safety, property, and welfare of the

public. Griffin’s sole concern in requiring the raised pad elevation was that the two houses not

flood during a storm. Griffin testified that when there are lots at a T intersection, “you try to

elevate one foot above top of curb and you try to provide positive drainage between the two

houses so if water does go above the top of the curb, it can flow between the houses.”

       This evidence shows the City’s requirement of one foot above the 100-year flood level

was a minimum requirement.         As City Engineer, Griffin had authority to impose greater

requirements when necessary to protect the public health, safety, property, and welfare. Griffin

required the additional height because the pad sites were at the bottom of a down slope at a T

intersection. This requirement bore an essential nexus to the substantial advancement of a

legitimate government interest, flood prevention. The requirement was a result of the design of

the subdivision, and its impact was limited to the two lots, so the requirement was roughly

proportional to the projected impact of the proposed development. Moreover, as the requirement

benefitted only the two lots and did not benefit the City, this requirement was not a “public

burden[] which in all fairness and justice, should be borne by the public as a whole.” We

                                                –14–
conclude the City’s requirement that the height of the pad sites be raised above the minimum

requirements set out in the City’s ordinances was not a compensable exaction, and the trial court

did not err by granting the City’s motion for summary judgment and denying appellant’s motion

on this item.

                       Additional Storm Drain Construction and Riprap

       Hawkins testified that the City required appellant to install an additional storm drain to

service the extra drainage outlets at the T intersection. Appellant originally planned to run a

drainage pipe from the additional outlets at the street to a floodplain behind the lots. Hawkins

testified that appellant planned to end the drainage pipe 120 feet from a creek behind the lots.

Hawkins stated that the City required appellant to extend the drainage pipe 120 feet from the

floodplain to the creek and to support the additional drainage pipe on a pier. The additional

drainage pipe, riprap, and pier cost appellant $24,625.

       Griffin testified the riprap was necessary to prevent erosion and the pier would prevent

the headwall at the creek bed from collapsing. He also testified the City required appellant to

extend the drainage pipe 20 feet, not 120 feet. Griffin stated the edge of the floodplain was 120

feet from the creek, and appellant’s initial plans showed the drainage pipe extending 100 feet

into the floodplain.

       In its motion for summary judgment, the City asserted Griffin testified the drainage pipe

extension was necessary to prevent erosion. However, Griffin did not so testify. During the City

Council hearing, the City’s attorney asked Griffin why the extension to the creek was necessary.

Instead of answering the question, Griffin stated he asked appellant to extend the pipe twenty

feet to the creek and to place it on piers. Griffin then explained the need for the piers—to

prevent the pipe from collapsing the ground at the creek—but he never explained the need for the

extension of the pipe to the creek. Griffin testified that storm sewer lines terminating in a


                                               –15–
floodplain are “a commonly used engineering factor” and do not violate the City’s ordinances.

In response to a question from a City Councilman, Griffin stated that he made his decision in his

role as City Engineer to protect property owners from flooding. However, he never testified that

the drainpipe extension was necessary to prevent flooding. He also testified that in his judgment,

“this storm sewer [was] specifically designed and built for this subdivision and the impact this

subdivision has in the [C]ity.” This bare conclusion provides no evidence of the reason and

necessity for the requirement that the drainpipe be extended to the creek. Cf. Stafford Estates,

135 S.W.3d at 644B45 (discussing insufficiency of town’s assertions of rough proportionality).

       With no evidence of the reason for the extension, the City did not conclusively establish

that the extension of the drainage pipe to the creek bed was an essential nexus of a legitimate

government interest and that the extension was roughly proportionate to the impact of the

project.   Accordingly, we conclude the trial court erred by granting the City’s motion for

summary judgment on this item.

       Appellant’s motion for summary judgment asserted the City required the additional storm

drain, drainage pipe extension, riprap, and piers as a condition for approval of the subdivision.

Appellant met its summary judgment burden by conclusively proving that the City imposed an

exaction. The burden then shifted to the City, which failed to raise a fact question on the

“essential-nexus/rough-proportionality” test. See Stafford Estates, 135 S.W.3d at 643. Griffin’s

testimony created a fact issue concerning the extent of appellant’s damages, namely whether the

drainage pipe had to be extended 20 feet or 120 feet. Accordingly, we conclude the trial court

did not err by denying appellant’s motion for summary judgment on this item.




                                              –16–
                                     Extra Sewer Manhole

       Hawkins testified the City required appellant to add a sewer manhole before the City

would approve the property development. Appellant’s utilities contractor charged appellant

$3500 for the materials and labor to add the manhole.

       Griffin testified a City ordinance required there be a manhole every 500 feet of sewer

line. The sewer line at issue was either 570 feet or 581 feet, so the City’s ordinance required an

additional manhole. Griffin explained the 500-foot rule was because the City’s camera for

viewing the condition of the sewer line and the City’s equipment for clearing sewer blockages

would reach only 500 feet. This sewer line also had four curves in it, which made it more

difficult for the City’s equipment to clear blockages. If there were a blockage beyond the reach

of the City’s equipment, the City would be required to cut open the sewer line though the street,

which would impose additional expense on the City and interrupt sewer service for a portion of

the community. The sewer line at issue serviced only the residents of Alexander Court.

       Griffin’s testimony established the City made an individualized determination of the need

for the extra manhole. His testimony proved the requirement of the extra manhole bore an

essential nexus to the advancement of a legitimate government interest, the efficiency of the

sewage drainage system. Because the need for the extra manhole was created by the design of

the subdivision and its beneficial effect was confined to the subdivision, the requirement of an

extra manhole was roughly proportionate to the projected impact of the development. We

conclude the trial court did not err by granting the City’s motion for summary judgment and

denying appellant’s motion on this item.

                                   Waterline Concrete Caps

       To bring water into the subdivision, appellant had to extend waterlines under the road

outside the subdivision. The City permitted appellant to dig trenches across the road, lay the


                                              –17–
waterlines, cover them up, and re-pave those areas. The materials used to cover the waterlines

and on which the asphalt paving was laid were the waterline caps. Appellant wanted to use

compacted fill dirt for the caps. The City required that concrete be used. Hawkins testified the

concrete caps were not necessary because they would be destroyed when the road was repaved.

He stated that appellant had increased costs of $3000 due to the concrete caps.

           Griffin testified the road was subject to caving where lines ran under it with fill dirt

supporting the road instead of concrete caps. Griffin testified that concrete caps were necessary

for the road to be able to sustain traffic on it. If fill dirt caps had been used and the road had

failed before it was repaved, the City would have had to repair the road, incurring expenses.

           Griffin’s testimony established he made an individualized determination concerning the

need for the concrete caps based on the unique characteristics of the road and the utilities

appellant placed under the road. The requirement of concrete caps bore an essential nexus to the

advancement of a legitimate government interest, safe and efficient roadways. The requirement

of the concrete caps was the result of extending waterlines into Alexander Court, which

benefitted only the residents of the subdivision. Accordingly, the requirement of concrete water

caps was roughly proportionate to the projected impact of the development. We conclude the

trial court did not err by granting the City’s motion for summary judgment and denying

appellant’s motion on this item.

                                                Screen Wall Exterior Columns

           The City’s ordinances required appellant to build a screen wall around the subdivision

with columns on the exterior portion of the wall and to have landscaping near the wall. 7 These

requirements were a condition for approval of the subdivision. The columns and the landscaping


    7
       Appellant argued the screen wall landscaping exaction as items (8) and (25) of its brief. We discuss them together except for the portions
of item (25) concerning the roadway cleanup, which is discussed below.



                                                                    –18–
were on appellant’s property. Appellant argues the columns and landscaping were compensable

exactions because they were aesthetic and not structural or otherwise functional. Hawkins

testified that the columns and landscaping cost appellant $18,040.

          Maintaining aesthetic values is a legitimate government interest. See Members of City

Council v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984) (“It is well settled that the state may

legitimately exercise its police powers to advance esthetic values.”). Appellant’s brief does not

explain      why    the   City’s    requirements    of   columns     and     landscaping   fail   the

essential-nexus/rough-proportionality test. Appellant does not dispute that the columns and

landscaping enhanced the visual aesthetics of the subdivision.             Because the columns and

landscaping were on appellant’s property and there was no required improvement of the City’s or

third party’s property, the requirement of the columns and landscaping was roughly proportional

to the projected impact of the development. We conclude the trial court did not err by granting

the City’s motion for summary judgment and denying appellant’s motion on this item.

                              Retaining Walls and Four-to-One Slope

          Appellant asserts the City required appellant to build certain retaining walls and to

change slopes from three-to-one to four-to-one and that the retaining walls and the change of

slope were conditions for approval of the subdivision. Hawkins testified that three-to-one slopes

are “acceptable by the FHA and its standards” and that no City ordinance required a four-to-one

slope. He also testified that although David Weekley Homes required some retaining walls, the

City required six other retaining walls. According to Hawkins, no City ordinance required the

retaining walls. Hawkins testified that the City-required retaining walls and four-to-one slope

cost appellant $55,517.

          Griffin testified that the City did not mandate retaining walls as a condition for approval

of the subdivision, and Griffin told appellant’s engineer that the retaining walls were not


                                                 –19–
required. According to Griffin, the plans the City received from appellant’s engineer included

retaining walls. Griffin marked on the plans that some of the retaining walls should be joined,

but Griffin testified the joining of the walls was only a suggestion, not a requirement. Griffin

stated that the project was approved without the City requiring any retaining walls on the lots,

and David Weekley Homes later requested that appellant build the retaining walls. Griffin

testified that the four-to-one slope requirement was an alternative to building retaining walls.

Griffin testified that appellant built the four-to-one slopes the City required and built the

retaining walls, which the City did not require.       Hawkins sent several letters to Griffin

complaining about what he believed to be a requirement that appellant build the retaining walls,

but Griffin never responded to these letters.

         The City’s motion for summary judgment and its response to appellant’s motion for

summary judgment asserted there was no exaction as to the retaining walls because the City did

not require the retaining walls. However, Hawkins’s testimony that the retaining walls were

required as a condition for approval of the subdivision created a genuine issue of material fact

concerning whether the retaining walls were an exaction. The City’s motion for summary

judgment did not address the essential-nexus/rough-proportionality test concerning the retaining

walls. Accordingly, the trial court erred by granting the City’s motion for summary judgment on

the retaining walls. Because of the fact issue on whether the retaining walls were an exaction,

the trial court did not err by denying appellant’s motion for summary judgment on the retaining

walls.

         Appellant proved the requirement of four-to-one slopes was an exaction. The City’s

motion for summary judgment and response to appellant’s motion for summary judgment

asserted the slope requirements would further erosion control and improve drainage. However,

the City presented no evidence that the four-to-one slopes would control erosion and improve

                                                –20–
drainage in the subdivision better than appellant’s proposed three-to-one slopes. 8 Thus, the City

presented no evidence that the four-to-one slope requirement was roughly proportional to the

projected impact of the subdivision. We conclude the trial court did not err by denying the

City’s motion for summary judgment on the four-to-one slope requirement.

           Appellant conclusively proved the four-to-one slope requirement was an exaction and the

City failed to raise a genuine issue of material fact on the essential-nexus/rough-proportionality

test, but appellant did not separate its damages for the slope requirement from those for the

retaining walls. Thus, a genuine issue of material fact remains as to the amount, if any, of

appellant’s compensation for the added expense of the four-to-one slope requirement. We

conclude the trial court did not err by denying appellant’s motion for summary judgment on this

item.

                                           Redundant Excavation in Floodplain

           During the initial work on the subdivision, most, if not all, of the property was classified

as floodplain under the existing records of the Federal Emergency Management Association

(FEMA). Appellant, through the City, applied to FEMA for a revision in the floodplain maps.

While FEMA was reviewing the application, appellant planned to dig out the areas that would be

the streets and use that dirt to build up the pad sites in areas then classified as floodplain. The

City’s ordinances prohibited work in the floodplain without a permit. Appellant asked the City

for permission to use dirt from the streets to build the pads on the lots in the floodplain, but the

City denied the request. The City told appellant it could either wait to dig the streets until FEMA

had approved the new floodplain map or it could dig the streets, store the dirt out of the


    8
       The City Council’s findings of fact and conclusions of law state the retaining walls were “for lateral soil support.” However, neither
Griffin nor Hawkins testified to that being their purpose or that lateral soil support was necessary. In its motion for summary judgment, the City
asserted the four-to-one slope advanced the City’s legitimate government interest “in furthering erosion control.” However, the record contains
no evidence that the four-to-one slope would prevent soil erosion at all, much less prevent erosion better than appellant’s proposed three-to-one
slope.



                                                                     –21–
floodplain, and then move it again once FEMA approved the new floodplain map. Hawkins

testified that appellant could not afford the delay, so appellant had its contractors move the dirt

twice. Hawkins testified the City’s denial of appellant’s permit to use the dirt in the floodplain

increased its costs by $16,000. The City later granted appellant permission to work in the

floodplain, but not until after appellant had dug the streets and stored the dirt.

       In its motion for summary judgment, the City asserted that appellant’s having to move

the dirt twice was not an exaction. We agree. An exaction is a condition required for approval

of a requested land development. Although the City required appellant to comply with its

ordinance prohibiting work in the floodplain, that requirement was not a condition for approval

of the subdivision. We conclude the trial court did not err by granting the City’s motion for

summary judgment and denying appellant’s motion on this item.

                       Floodplain Study Checking and Floodplain Delay

       When appellant purchased the property, much of the property was designated as

floodplain on existing maps. Appellant hired Nathan Maier to determine the current position of

the floodplain. Maier’s study showed the floodplain was nowhere near where FEMA’s maps

showed it and that most of the subdivision was out of the floodplain. Appellant had to apply to

FEMA for a change in the floodplain designation. FEMA approves a change in the floodplain

through a Letter of Map Revision. A developer’s application for a map revision must first go to

the local governmental entity, which submits it to FEMA.

       The City received appellant’s FEMA application on April 17, 2007. Before submitting

appellant’s application for map revision to FEMA, the City had it reviewed by an engineering

firm with expertise in floodplain study, Kimley Horn & Associates, which charged the City

$2500 to review the application. The City had earlier told appellant the fee for reviewing the

floodplain application was $2000, so the City charged appellant only $2000 for the review.


                                                –22–
Hawkins testified Griffin told him the City would not submit the application to FEMA if

appellant did not pay the fee. The City submitted the application to FEMA on July 10, 2007.

Hawkins testified the nearly three-month delay for review of the floodplain application cost

appellant $16,000. Hawkins testified that no City ordinance required the application be reviewed

by an engineering firm before submitting the application to FEMA. Kimley Horn found some

minor technical deficiencies in the application, but it eventually approved the application. The

City then submitted the application to FEMA.

       Griffin testified the City has all floodplain map-revision applications reviewed by Kimley

Horn and charges Kimley Horn’s fee to the developer. The City has the floodplain studies

reviewed to protect the City’s interest in preventing flooding of the residences in the subdivision.

Griffin testified that review of the floodplain study is especially important when the study shows

a significant change in the floodplain. The change in the floodplain in this case was significant.

Erroneous determination of the floodplain could result in flooding and property damage.

       Appellant asserts the City’s threat not to submit the map-revision application to FEMA

unless appellant paid the $2000 fee was an exaction. We agree. Although payment of the fee

was not an express condition for approval of the subdivision, the failure to submit the application

to FEMA would have resulted in the denial of approval for the subdivision because appellant

could not build in a FEMA-designated floodplain.

       Although the position of the floodplain was ultimately determined by FEMA, the City

still had an interest in the accurate determination of the floodplain. As it is the City and not the

developer that files the application with FEMA, the City was entitled to review the accuracy of

the application before submitting it to FEMA. Any inaccuracies in the location leading to

flooding of the lots would be the long-term concern of the City, not appellant, which had already

agreed to sell the lots to David Weekley Homes. The summary judgment evidence shows

                                               –23–
Kimley Horn’s review of the map-revision application before the City’s submission of the

application to FEMA bore an essential nexus to the substantial advancement of the legitimate

government interest of flood prevention. The $2000 fee appellant paid to the City was less than

Kimley Horn’s fee paid by the City. Thus, the $2000 fee did not exceed what was roughly

proportional to the subdivision’s projected impact.

         The City’s $2000 fee for review of appellant’s floodplain study was not a compensable

exaction. Accordingly, appellant is not entitled to compensation for the $2000 fee or for the

delay from Kimley Horn’s review of the floodplain study. We conclude the trial court did not err

by granting the City’s motion for summary judgment and denying appellant’s motion on these

items.

                                           Park Fees

         The City conditioned approval of the subdivision on appellant’s paying park fees of

$37,265. During the first City Council hearing, which the trial court set aside, Hawkins testified

he considered the roughly proportionate amount of park fees to be $26,000. At the second City

Council hearing, Hawkins testified appellant sought compensation for all the park fees. The City

Council awarded appellant $11,265, which was the difference between the park fees appellant

paid and those Hawkins had agreed at the first hearing were roughly proportionate.

         The City’s ordinance required residential developments to dedicate one acre of land per

100 dwelling units in the development for use as a neighborhood public park. Coppell, Tex.,

Ordinance 94643, Subdivision Regulations App. C, § VII(B)(1) (Apr. 12, 1994). Because

development of a public park of less than one acre is impractical, the ordinance required a

development with fewer than 100 residential units to make a payment in lieu of land of $1285

per dwelling unit. See id. § VII(B)(2), (D)(3). Alexander Court had twenty-nine dwelling units;

under the ordinance, it was required to pay a fee of $37,265. The City’s reduction of the fees to


                                              –24–
$26,000 made the fees per lot $896.55, a reduction of about thirty percent. The ordinance

required the park fees “be used only for acquisition or improvement of a neighborhood park

located within the same zone as the development.” Id. § VII(D)(3).

        The City proved that the fees originally assessed were based on the individual

characteristics of the subdivision, namely, how many dwelling units were within the subdivision.

Hawkins testified there would probably be three to four people in each unit, making the

population of the subdivision about ninety inhabitants. Brad Reid, the City’s director of parks

and recreation, testified the subdivision’s ninety inhabitants would increase the burden on the

City’s park and recreation facilities. Reid explained that the money would “go for development

of playgrounds, the structures, benches, more social type areas developing in the parks.” The

City presented no evidence of how the fee per dwelling was calculated or how the fee was

roughly proportionate to the City’s parks and recreation costs.

        Appellant met its burden of proof by establishing the park fees were an exaction. Public

parks and recreation spaces are a legitimate government interest, and the park fees appellant paid

bore an essential nexus to the substantial advancement of that interest. However, the City failed

to prove that the original fee of $1285 or the reduced fee of $896.55 per dwelling was roughly

proportionate to the projected impact of one dwelling’s residents on the park system. We

conclude the trial court erred by granting the City’s motion for summary judgment on this item.

        Reid’s testimony that the ninety inhabitants of Alexander Court would increase the park

system’s burdens raised a genuine issue of material fact that some part of the fees would be

roughly proportionate to the development’s impact on the park system.           Accordingly, we

conclude the trial court did not err by denying appellant’s motion for summary judgment on this

item.




                                              –25–
                                                       Tree Retribution Fees

            The City required appellant to pay “tree retribution fees” (called “tree mitigation fees” by

the parties) of $34,500 before the City would approve the subdivision.

            The City’s tree preservation ordinance sought to protect trees and promote urban

forestation for the many benefits trees provide. The preamble of the ordinance listed many

benefits of trees, including shade and cooling, reduction of noise and glare, protection of soils,

providing of ecosystems, and increasing property values. 9 Coppell, Tex., Ordinance 91500-A-

203 (Dec. 8, 1998). Under the City’s tree ordinance, a property developer must receive

permission to remove a tree with a trunk diameter of six inches or greater. Id. §§ 34-2-7(A), 34-

2-11(A). The developer must then pay the City a “retribution” fee of $100 per inch of trunk

diameter to remove these trees. The developer receives a landscaping credit for each tree planted

and a preservation credit for trees remaining on the property. Id. § 34-2-13(A)(1), (2). The

retribution fees are used (1) for planting trees on public property, (2) for purchasing wooded

natural areas “to preserve these highly-sensitive environmental areas for public protection and



    9
        The ordinance provides,

                        WHEREAS, trees are a valuable amenity to the urban environment, providing shade, cooling of air, and
            windbreaks, thereby reducing the requirements for air conditioning, heating and watering thus reducing the use of limited
            and costly resources; and

                      WHEREAS, trees purify the air we breathe by filtering pollutants and dust while restoring oxygen to the
            atmosphere; and

                       WHEREAS, trees provide open spaces, reduction in noise levels and glare, and break the monotony of
            urbanized development; and

                       WHEREAS, trees create local ecosystems that provide habitat for animals, birds, and plants that would
            otherwise be absent from urban areas; and

                      WHEREAS, trees protect land and structures by providing soil stability and reducing storm water run-off thus
            minimizing flood damage and reducing the need for additional storage facilities; and

                        WHEREAS, trees are known to add value to residential and commercial property, thus increasing tax revenues
            by attracting new business, industry, and residents to the City, and

                       WHEREAS, trees should be protected for the education and enjoyment of future generations since large,
            mature trees, if destroyed, can be replaced only after generations, if at all . . . .

Coppell, Tex., Ordinance 91500-A-203 (Dec. 8, 1998).



                                                                    –26–
passive recreational enjoyment,” and (3) for “[e]ducational projects, such as construction of

outdoor learning centers or classroom/group tours led by foresters or park staff.” Id. § 34-2-

12(D).

         Appellant established the fees were an exaction, and the burden shifted to the City to

meet the essential-nexus/rough-proportionality test.     The City asserts it proved the rough

proportionality of the fees by proving the fees were based on the trees appellant removed from

the property.

         The preservation and expansion of public wooded areas and the educational programs are

legitimate government interests, and the fees to promote the City’s reforestation programs bear

an essential nexus to the substantial advancement of those interests.        The “impact” of the

development was the need created by appellant’s removal of trees on its property for the City to

plant trees on public property, to purchase wooded property, and to conduct educational

programs. However, the summary judgment evidence does not explain how the removal of trees

on appellant’s private property created such a need that did not exist before the trees were

removed. The City did not show that the removal of trees in the development would harm the air

quality, increase noise and glare, remove ecosystems, bring down property values, or reduce the

other benefits of trees described in the ordinance. Unlike the park fees, where the City presented

some evidence that the development would place increased burdens on the City’s park system,

the City presented no evidence that the removal of trees from appellant’s private property would

increase the need for trees on public property or for the other programs beyond what already

existed before appellant removed the trees on its property. With no evidence of any projected

impact caused by the removal of trees during the development, the City did not raise a genuine

issue of material fact that any amount of tree retribution fees would be roughly proportional.




                                               –27–
           We conclude the trial court erred by granting the City’s motion for summary judgment

and denying appellant’s motion on this item, and we render judgment that appellant recover the

$34,500 in tree retribution fees.

                                    Roadway and Water and Sewer Impact Fees

           The City conditioned approval of the subdivision on appellant’s payment of roadway

impact fees of $18,444. The City deducted the fees from the $21,709.84 it owed appellant as

compensation for taking a .147 acre tract for a roadway. The City also assessed water and sewer

impact fees of $100,527.

           The roadway impact fees were an exaction because the City conditioned approval of the

subdivision on appellant’s payment of them. However, the record shows the water and sewer

impact fees were not an exaction against appellant. The water and sewer fees are paid when the

building permit is issued and not when the plat is filed. See TEX. LOC. GOV’T CODE ANN. §

395.016(d)(1) (West 2005). Hawkins testified the fees would be paid to the City by David

Weekley Homes, not by appellant. Appellant argued it should be compensated for those fees

because David Weekley Homes reduced the sales price of the lots by the amount of the water

and sewer fees. However, because the City did not condition approval of anything applied for by

appellant on payment of the water and sewer impact fees, those fees were not exactions against

appellant. 10 Since the water and sewer fees were not exactions, the trial court did not err by

denying appellant’s motion for summary judgment as to those fees. The City did not move for

summary judgment on the ground that the water and sewer fees were not exactions.

Accordingly, we may not affirm the trial court’s grant of the City’s motion for summary



    10
       Hawkins stated in his affidavit that the City “was paid $2,997 on July 31, 2008 a Water Impact Fee.” The affidavit cited an attached list
of “Development Fees” showing $2997 paid for a Water Impact Fee on July 31, 2008. However, Hawkins did not testify, and the cited exhibit
does not show, that appellant paid the $2997 fee. Accordingly, this evidence does not raise a fact issue of whether the $2997 was an exaction
from appellant.



                                                                    –28–
judgment on that ground. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678

(Tex. 1979).

       Chapter 395 of the Local Government Code prohibits impact fees except as authorized by

state law. TEX. LOC. GOV’T CODE ANN. § 395.011(a) (West 2005). Chapter 395 permits impact

fees to pay the costs of constructing capital improvements. Id. § 395.012. The municipality

determines the amount of the impact fees by preparing a “capital improvements plan.” See id. §

395.014. The plan is prepared by licensed engineers and is a determination of the total capacity,

current usage, and commitments of usage of existing capital improvements, a determination of

the capital improvements or facility expansions “necessitated by and attributable to new

developments in the service area,” and “the projected demand for capital improvements or

facility expansions required by new service units projected over a reasonable period of time, not

to exceed 10 years.” Id. § 395.014(a). Chapter 395 also sets out the method for determining the

maximum fee per service unit. Id. § 395.015.

       In this case, the City hired an engineering firm to prepare a capital improvements plan

concerning the City’s roadways, water, and wastewater. This plan is a precise mathematical

formulation of the impact of development on the City’s roadways and water and sewer facilities.

From this study, the City could determine Alexander Court’s projected impact with precision that

far exceeded the constitutional requirement of rough proportionality.       Because the statute

requires the impact fees be spent only on the designated capital improvements, roadways and

water and sewer services in this case, the impact fees bear an essential nexus to the substantial

advancement of legitimate government interests. We conclude the trial court did not err by

granting the City’s motion for summary judgment and by denying appellant’s motion on the

impact fees.




                                               –29–
                                  Construction Inspection Fees

       The City required appellant to pay construction inspection fees of $21,189 as a condition

for approval of the subdivision. The inspection fees are determined as two or four percent of the

developer’s contract for the construction.

       Appellant met its summary judgment burden of proving the fees were an exaction. The

burden then shifted to the City to prove the essential nexus/rough proportionality test. The City

argued the fees met the proportionality test because they were directly proportional to the value

of the construction. The impact of the development, for this item, is the City’s costs for the

inspections, not the value of the construction. Griffin testified that the fees were “proportional to

the impact that Alexander Court had on the city’s time and resources for inspection,” and he

testified that there was at least one inspector at the development every day. However, the City

presented no evidence of its costs for the inspectors or the proportion of the time the inspectors

spent at the development. Griffin’s bare conclusion lacking any factual support that the fees

were roughly proportionate is insufficient to establish the rough proportionality of the fees as a

matter of law. See Riner v. Neumann, 353 S.W.3d 312, 321 (Tex. App.—Dallas 2011, no pet.)

(“a conclusory statement in an affidavit can neither support nor defeat summary judgment”).

Accordingly, we conclude the trial court erred by granting the City’s motion for summary

judgment on this item.

       Griffin’s testimony was sufficient to raise a genuine issue of material fact whether the

inspections were an essential nexus of a legitimate state interest, the safe and lawful development

of the property, and that some of the fees could be roughly proportional to the projected impact

of the development, the City’s costs for the inspections. Accordingly, we conclude the trial court

did not err by denying appellant’s motion for summary judgment on this item.




                                               –30–
                               Redundant Water-Bacteria Test

        Appellant complains the City required two water-bacteria tests to obtain approval of the

subdivision when one would have been sufficient. Griffin testified the water-bacteria tests

determine whether there is harmful bacteria in the development’s waterlines. The tests protect

the City’s water system from bacteria that could pollute the water system. State regulations

require at least one test for each 1000 feet of waterline. 30 TEX. ADMIN. CODE § 290.44(f)(3).

Alexander Court had more than 1000 feet of waterline, so two tests were required. The City

established the second test bore an essential nexus to the legitimate government interest of

protecting the public water system from contamination. Because Alexander Court contained

more than 1000 feet of waterline, the requirement of the second test was roughly proportionate to

the projected impact of the development on the City’s water system. We conclude the trial court

did not err by granting the City’s motion for summary judgment and denying appellant’s motion

on this item.

                                  .725 Acre Land Surrender

        Appellant contends the City required it to “surrender” a .725 acre tract to a neighbor

below market value to obtain the City’s approval for the subdivision.            Appellant seeks

compensation of $120,000, representing the amount below market value the neighbor paid for

the tract.

        The record contains conflicting evidence of whether there was an exaction. Hawkins

testified generally in his affidavit and at the City Council hearing that the City required him to

resolve a dispute over the .725 acre tract before it would approve the subdivision. However, the

more specific evidence shows the following. When appellant submitted its preliminary plot of

the subdivision for twenty-six lots, there was a boundary dispute with a neighbor over a .725 acre

triangular tract at the southwest corner of the subdivision and an approximately 3100 square foot


                                              –31–
“sliver” on the western border.                       The sliver was platted as part of Alexander Court.                                      The

preliminary plat for twenty-six lots showed some of the boundary lines running through the .725

acre tract. Previous versions of the preliminary plat showed different square footage for lot

eight, which, on the twenty-six lot plat, bordered the .725 acre tract. On January 14, 2007, the

City conditioned approval of the preliminary plat, instructing appellant to “[r]esolve the conflicts

with the size of the property and the boundary of proposed Lot 8.” It does not appear that lot

eight bordered on the sliver. Later, when the plat was resubmitted with twenty-nine lots, the .725

acre tract was no longer a concern for the City, but the City still required appellant to resolve the

boundary dispute over the sliver before it would accept the final plat. In a “DRC Report” dated

December 18, 2007, the City mentioned appellant’s need “to work out the boundary dispute on

the west side.” Appellant offered to trade the sliver for a similar-sized tract to the neighbor, but

the neighbor did not accept the offer. The neighbor demanded appellant sell him the .725 acre

tract to which he also had a deed. 11 On January 14, 2008, Hawkins wrote to the City stating he

had instructed his surveyor to remove the disputed sliver from the plat. The record contains no

response from the City to this letter and does not show whether the City continued to demand

appellant resolve the dispute over the sliver. Likewise, the record does not show whether

appellant redrew the property lines to omit the sliver and submitted the revised documents to the

City before appellant sold the property to the neighbor. On February 27, 2008, appellant deeded

the .725 acre tract to the neighbor, and the neighbor deeded the sliver to appellant and paid

appellant $25,000.

           Thus, according to Hawkins’s general statements, the City conditioned approval of the

subdivision on resolution of the dispute over the .175 acre tract. The more specific testimony


    11
        Both appellant and the neighbor had quitclaim deeds for the .725 acre tract. Appellant’s title policy did not cover the .725 acre tract. The
sliver was included in appellant’s warranty deed and was covered by appellant’s title policy.



                                                                      –32–
shows the City conditioned approval on resolution of the sliver, and the sale of the .725 acre tract

was part of the agreement with the neighbor to solve the dispute over the sliver. Under this view

of the facts, the “surrender” of the .725 acre tract was not an exaction because, after the twenty-

nine-lot plat was filed, the City did not require appellant to resolve the dispute concerning the

.725 acre tract. There is also a fact issue regarding whether the City continued to condition

approval of the subdivision on appellant’s resolution of the boundary dispute over the sliver after

Hawkins’s January 14, 2008 letter stating the sliver would be removed from the subdivision.

Accordingly, we conclude the trial court did not err by denying appellant’s motion for summary

judgment on this item.

       The City’s motion for summary judgment asserted there was no exaction because the

City’s requirement, if any, to appellant was to resolve the dispute over the .725 acre. The City

argues it did not require appellant to resolve the dispute by selling the property or to sell the .725

acre tract for any price less than its full market value. If the City conditioned its approval of the

subdivision on the resolution of the .725 acre tract, then there was an exaction. That it did not

require the sale of the property at below market value does not mean there was no exaction.

       The City also presented evidence that the requirement of resolution of boundary disputes

for the plat is necessary because the plat defines the property for the subdivision. Thus, if there

was a boundary dispute, then the requirement of resolution of that dispute bore an essential nexus

to the substantial advancement of the legitimate government interest of clear property boundaries

in the real estate records. This condition was roughly proportional to the projected impact of the

development on the records. However, if there was no boundary dispute after January 14, 2008,

and if the City continued to condition approval of the final plat on resolution of the dispute over

the sliver, then the City’s essential-nexus/rough-proportionality argument fails. Because fact

questions exist concerning whether the City required appellant to resolve the boundary dispute

                                                –33–
when no disputed property was included in Alexander Court, neither appellant nor the City was

entitled to summary judgment on this item. We conclude the trial court erred by granting the

City’s motion for summary judgment but did not err by denying appellant’s motion on this item.

                                   .147 Acre Land Dedication

       The City conditioned approval of the subdivision on appellant’s dedicating a .147 acre

tract for a roadway in front of the subdivision.        The parties agree the condition was a

compensable exaction, but they disagreed about the compensation.           The City provided

compensation to appellant of $21,709.84 for the land dedication, which was the appraised value

in the records of the Dallas County Appraisal District. At the City Council hearing and in his

affidavit, Hawkins testified the property was worth $46,879, an additional $25,170, based on the

per-acre price appellant sold the property to David Weekley Homes.

       The City argues appellant is not entitled to additional compensation because appellant,

through Hawkins’s testimony at the City Council hearing, agreed that the value of the land was

$21,709.84 at the time of the dedication. The testimony at the City Council hearing shows the

.147 acre tract was dedicated when the final plat was approved. Hawkins testified appellant paid

$21,709.84 for .147 acre of raw land when it purchased the property. However, Hawkins did not

testify that the land was “raw land” when dedicated or that the value of the land when dedicated

was $21,709.84. Instead, he testified the .147 acre was worth $46,879 when dedicated.

       As appellant’s president, Hawkins is presumed to have had knowledge of the property’s

fair market value. See Reid Rd. Mun. Dist. No. 2, 337 S.W.3d at 849; Corniello, 344 S.W.3d at

607. Hawkins testified the property was worth $46,879. The City presented evidence the land in

its raw state was worth $21,709.84, but it presented no evidence the land was raw at the time of

dedication or that its value at the time of dedication was $21,709.84.




                                               –34–
       We conclude the trial court erred by granting the City’s motion for summary judgment

and denying appellant’s motion on this item. The City is entitled to credit the $46,879 for the

.147 acre tract against the roadway impact fees of $18,444 due from the development. See TEX.

LOC. GOV’T CODE ANN. § 395.023. Accordingly, we render judgment that appellant recover

$28,435 for the value of the .147 acre tract minus the amount of the roadway impact fees.

                                        Roadway Cleanup

       Appellant also asserts, and Hawkins testified, the City conditioned approval of the

subdivision on appellant clearing the .147 acre tract the City exacted for a roadway right of way.

Hawkins testified appellant paid a contractor $8030 to perform this work.

       Appellant established that clearing the roadway right of way was an exaction. The City

presented no argument or evidence in support of the essential-nexus/rough-proportionality test

on this item. Accordingly, we conclude the trial court erred by granting the City’s motion for

summary judgment and denying appellant’s motion as to the $8030 for cleanup of the right of

way. We render judgment that appellant recover $8030 for this item.

                                   Additional Professional Fees

       Appellant also asserts it incurred $49,000 in additional fees for surveying, landscape

architecture, engineering, and testing for many of the alleged exactions discussed above. These

fees are not themselves exactions—the City did not expressly require it incur these costs for the

permit to be approved—but are expenses related to the alleged exactions. Accordingly, appellant

is not entitled to recover fees corresponding to items on which we have concluded the trial court

did not err by granting the City’s motion for summary judgment. As for the remaining items, the

issue appears to be whether appellant is entitled to recover the fees as a matter of law or whether

there is a genuine issue of material fact as to the amount of the fees.




                                                –35–
       The invoices appellant used to support the compensation claim total $77,761, but

Hawkins testified only $49,000 was attributable to the additional, exacted construction. The

invoices do not break down their charges by the categories discussed above. For example, the

surveying invoices do not identify how much of the fees are attributable to extending the

drainage pipe from the floodplain to the creek, and the testing invoices do not explain how much

it cost to test the soil for that work. The other professional invoices also fail to identify the part

of the construction project to which they relate. The invoices provide no means to tie their

amounts to the exactions discussed above.

       At the City Council hearing, Hawkins testified he was unable to segregate how much of

the fees were related to exactions concerning municipal infrastructure. In his affidavit in support

of appellant’s motion for summary judgment, appellant broke down the charges into “surveying

and landscape architect costs” and “engineering and testing costs” for each item—rolled curbs,

raised pad sites, etc. The invoices themselves give no indication how much of each invoice is

attributable to each item, and appellant did not explain how he determined the invoice amounts

attributable to each item.

       The City asserts a genuine issue of material fact exists as to the amount of fees if any,

attributable to each item. We agree. Hawkins, as appellant’s president, was an interested

witness, and summary judgment may not be based on his testimony unless it is “clear, positive

and direct, otherwise credible and free from contradictions and inconsistencies, and could have

been readily controverted.” TEX. R. CIV. P. 166a(c). Appellant’s unexplained testimony in his

affidavit of the amount of fees related to each item could not have been readily controverted and

will not support summary judgment. Accordingly, we conclude the trial court did not err by

denying appellant’s motion for summary judgment as to the professional fees.




                                                –36–
            The City’s motion for summary judgment does not appear to move for summary

judgment on the fees themselves but instead appears to assert a fact issue exists on the fees

related to any items that appellant may prove are a compensable exaction. 12 Accordingly, we

conclude the trial court erred by granting the City’s motion for summary judgment on the

professional fees related to the items on which the court erroneously granted the City’s motion

for summary judgment:                      offsite sidewalk, additional storm drain construction and riprap,

retaining walls and four-to-one slope, park fees, tree retribution fees, inspection fees, .725 acre

tract, .147 acre land dedication, and roadway cleanup.

                                                                     Delays

            Appellant asserts it is entitled to compensation of $123,000 for its delays in construction

while waiting for the City to approve the final plat and applications for building permits. Delays

are not exactions because they are not conditions for approval. Appellant’s argument fails to

explain the legal basis for the claim that these delays are compensable. We conclude appellant

has failed to show the trial court erred by granting the City’s motion for summary judgment and

denying appellant’s motion as to the claim for compensation from the delays.

                                                                 Conclusion

            We sustain appellant’s first and second issues in part and overrule them in part. 13

                                                     TEXAS CONSTITUTION

            In the fifth issue, appellant contends the trial court erred by granting the City’s motion for

summary judgment and denying appellant’s motion on appellant’s exaction claims under the


    12
         The City argued in its motion for summary judgment,

            It is clear that these fees are not “stand-alone” damages items, but are instead ancillary to the other requirements that Mira
            Mar complains of. As such, Mira Mar is not entitled to these fees unless it can prevail on the other claims, and definitively
            segregate these fees among the items, if any, that it has prevailed on.

    13
      The parties agreed appellant was entitled to $4500 for an extraneous water tap, and we render judgment that appellant recover that
amount.



                                                                       –37–
Texas Constitution. In its petition, appellant pleaded that the alleged exactions were illegal

takings and exactions under the Texas Constitution.

       The Texas Constitution protects against the government’s taking of property for public

use without compensation. TEX. CONST. art. I, § 17. Appellant asserted in its motion for

summary judgment that the Texas Supreme Court has stated an alternate standard for the

compensability of exactions under the Texas Constitution. Instead of the essential-nexus/rough-

proportionality test, which did not exist at the time, the supreme court considered whether the

cost to the landowner for the public improvement exacted was materially greater than the

benefits conferred by the public improvement. See Stafford Estates, 135 S.W.3d at 642 (quoting

Haynes v. City of Abilene, 659 S.W.2d 638, 641 (Tex. 1983); Hutcheson v. Storrie, 51 S.W. 848,

850 (Tex. 1899) (quoting Vill. of Norwood v. Baker, 172 U.S. 269, 279 (1898))). In Stafford

Estates, the Texas Supreme Court observed that, although the parties had not argued a distinction

between the federal and state constitutional standards, application of the Nollan/Dolan essential-

nexus/rough-proportionality standard in the circumstances of that case—a developer required to

repave in concrete an asphalt road outside the development—“is certainly consistent with, if not

required by, well-established Texas law,” including Hutcheson v. Storrie. Stafford Estates, 135

S.W.3d at 631, 642.

       Appellant asserts the trial court erred by granting the City’s motion for summary

judgment and denying appellant’s motion on appellant’s exaction claims under the Texas

Constitution because the City’s motion for summary judgment and response to appellant’s

motion for summary judgment did not address those claims. We disagree. Both the City’s

motion for summary judgment and its response to appellant’s motion for summary judgment

address the Texas Constitution. Moreover, appellant’s brief on appeal fails to show how the

outcome of any of the alleged exactions would be different under the Texas Constitution’s

                                              –38–
“materially greater than the benefits conferred” standard. 14 See TEX. R. APP. P. 44.1(a)(1).

Accordingly, we conclude appellant has failed to show the trial court erred by granting the City’s

motion for summary judgment and denying appellant’s motion on appellant’s exaction claims

under the Texas Constitution. We overrule appellant’s fifth issue.

                                       LOCAL GOVERNMENT CODE § 212.904

            Appellant’s remaining issues concern the trial court’s application of Local Government

Code section 212.904. When a municipality requires a developer to bear part of the cost of

improvements to the municipality’s infrastructure as a condition for approval of a development

project, Local Government Code section 212.90415 provides limits on the amounts the developer

may be required to pay: “the developer’s portion of the costs may not exceed the amount

required for infrastructure improvements that are roughly proportionate to the proposed

development as approved by a professional engineer . . . retained by the municipality.” TEX.

LOC. GOV’T CODE ANN. § 212.904(a) (West 2008).                                             If the developer disagrees with the

    14
         We do not decide in this case whether the “materially greater than the benefits conferred” standard remains applicable.

    15
         Section 212.904 provides,

                                                  Apportionment of Municipal Infrastructure Costs

            (a) If a municipality requires as a condition of approval for a property development project that the developer bear a
            portion of the costs of municipal infrastructure improvements by the making of dedications, the payment of fees, or the
            payment of construction costs, the developer’s portion of the costs may not exceed the amount required for infrastructure
            improvements that are roughly proportionate to the proposed development as approved by a professional engineer who
            holds a license issued under Chapter 1001, Occupations Code, and is retained by the municipality.

            (b) A developer who disputes the determination made under Subsection (a) may appeal to the governing body of the
            municipality. At the appeal, the developer may present evidence and testimony under procedures adopted by the governing
            body. After hearing any testimony and reviewing the evidence, the governing body shall make the applicable determination
            within 30 days following the final submission of any testimony or evidence by the developer.

            (c) A developer may appeal the determination of the governing body to a county or district court of the county in which the
            development project is located within 30 days of the final determination by the governing body.

            (d) A municipality may not require a developer to waive the right of appeal authorized by this section as a condition of
            approval for a development project.

            (e) A developer who prevails in an appeal under this section is entitled to applicable costs and to reasonable attorney’s fees,
            including expert witness fees.

            (f) This section does not diminish the authority or modify the procedures specified by Chapter 395.

TEX. LOC. GOV’T CODE ANN. § 212.904.



                                                                       –39–
determination of the amount it is required to pay, the developer “may appeal to the governing

body of the municipality” and “present evidence and testimony under procedures adopted by the

governing body.” Id. § 212.904(b). If the developer is dissatisfied with the municipal governing

body’s decision, the developer “may appeal the determination of the governing body to a county

or district court.” Id. § 212.904(c). If the developer prevails in an appeal under section 212.904,

it is entitled to applicable costs and reasonable attorney’s fees. Id. § 212.904(e).

                          Standard of Review of City Council Decision

       In the seventh issue, appellant contends the trial court erred by applying a “substantial

evidence” standard of review instead of a “trial de novo” standard of review to appellant’s appeal

of the City Council’s decision. Appellant also contends it is entitled to a jury trial.

       Section 212.904 does not provide the standard of review to be utilized by the court in

determining the appeal of the governing body’s decision. In this case, the district court reviewed

the City Council’s decision under the substantial evidence standard of review. Appellant argues

the appropriate standard of review is trial de novo. We agree that the standard of review in the

trial court should be trial de novo.

       Compensable exactions are constitutional takings. The Texas Supreme Court requires

that constitutional takings cases be decided by courts, not government agencies. City of Dallas v.

Stewart, No. 09-0257, 2012 WL 247966, at *4 (Tex. Jan. 27, 2012). In takings cases, courts may

grant deference to questions of historical fact, “but mixed questions of law and constitutionally

relevant fact . . . must be reviewed de novo.” Id. at *10.

       Appellant also asserts it is entitled to a jury in the trial de novo review. Whether facts

constitute a taking is a question of law. Mayhew, 964 S.W.2d at 932, 936. Fact questions as to

whether a taking occurred are tried to the court. See Harris County v. Felts, 881 S.W.2d 866,




                                                –40–
870 (Tex. App.—Houston [14th Dist.] 1994), aff’d, 915 S.W.2d 482 (Tex. 1996); 16 see also

Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 557 (Tex. 2004); Mayhew, 964 S.W.2d at

932B33. However, the issue of the amount of compensation the property owner is due “is

peculiarly one for the fact finding body,” such as a jury. City of Sherman v. Wayne, 266 S.W.3d

34, 46 (Tex. App.—Dallas 2008, no pet.) (citing Tex. Pipe Line Co. v. Hunt, 228 S.W.2d 151,

156 (Tex. 1950)); see Gragg, 151 S.W.3d at 557. We conclude appellant is not entitled to a jury

trial on any fact issues concerning whether an exaction occurred, but appellant is entitled to a

jury trial on any fact questions concerning the amount of compensation, if any, to which

appellant is entitled. Accordingly, we sustain appellant’s seventh issue in part and overrule it in

part.

                                         Due Process Under the City’s Procedures

            Appellant’s fourth and sixth issues concern whether the procedures the City Council

adopted for the second hearing accorded appellant due process. Because we have concluded

review of the City Council’s decision should be by trial de novo, any lack of due process at the

City Council hearing could not have caused the rendition of an improper judgment in the trial

court. Accordingly, the error, if any, is not reversible. See TEX. R. APP. P. 44.1(a)(1). We

overrule appellant’s fourth and sixth issues.

                                                              Attorney’s Fees

            In the eighth and ninth issues, appellant contends the trial court erred by denying

appellant’s request for reasonable attorney’s fees. Section 212.904 states, “A developer who


    16
         In Felts, the court of appeals described the procedure in an inverse condemnation case as follows:

            The proper procedure to be followed in a case of this type is that once the presentation of the evidence was completed, the
            trial judge, not the jury, should have decided whether there was a compensable taking under the Texas Constitution. Only if
            the Court answered that question in the affirmative should the court have submitted an issue concerning the amount of
            damages. Only then would this case have been decided in accordance with Texas law.

Felts, 881 S.W.2d at 870.



                                                                       –41–
prevails in an appeal under this section is entitled to applicable costs and to reasonable attorney’s

fees, including expert witness fees.” TEX. LOC. GOV’T CODE ANN. § 212.904(e). In both the

eighth and ninth issues, the question is whether appellant “prevail[ed]” in the “appeal.”

          Section 212.904 provides two different appeals. The first appeal is to “the governing

body of the municipality” and is an appeal of “the determination made in Subsection (a),” which

is the rough-proportionality analysis. Id. § 212.904(b). At the hearing, the developer may

present evidence “under procedures adopted by the governing body.” After the governing body

makes its “determination,” the developer may appeal that determination to the county or district

court. Id. § 212.904(c). Thus, the appeal to the county or district court is from the governing

body’s “determination” of the rough-proportionality analysis.

          In its eighth issue, appellant asserts it is entitled to attorney’s fees from its appeal of the

City Council’s first hearing. In that appeal, appellant argued the City Council’s proceedings

deprived it of due process. Appellant asserts it prevailed on that claim because the district court

found due process violations and ordered the City Council to conduct a second hearing under

section 212.904(b). We disagree. Appellant’s claim of due process violations by the City

Council was an attempt to appeal “the procedures adopted by the governing body.” Under the

statute, the municipal body’s determination, not the procedures it adopted, are the subject of the

appeal.     Whether appellant prevailed on the “appeal” depends on whether it prevailed in

challenging the rough-proportionality analysis and was awarded damages, not on whether it

succeeded in challenging the City’s procedures for conducting the initial appeal. We conclude

the trial court did not err by denying appellant attorney’s fees for challenging the City’s

procedures. We overrule appellant’s eighth issue.

          In its ninth issue, appellant contends the trial court erred by vacating the City Council’s

award of attorney’s fees and by awarding appellant no attorney’s fees even though appellant

                                                  –42–
recovered over $40,000 on its claims. The court stated on the bench and in an order that

appellant could not be considered a “prevailing party” when it had recovered only about $40,000

while seeking over $800,000 in damages. To be a prevailing party, “a plaintiff must prove

compensable injury and secure an enforceable judgment in the form of damages or equitable

relief.” Intercontinental Group P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 652 (Tex.

2009). To the extent appellant recovered $40,000, it was a prevailing party and was entitled to

reasonable attorney’s fees to the extent permitted by section 212.904(e). Because we have

concluded appellant is entitled to compensation on items beyond those found by the trial court

and that fact issues exist on other items on which appellant may eventually win compensation,

we remand the attorney’s fees issue to the trial court for further proceedings. 17 We sustain

appellant’s ninth issue.

                                                            CONCLUSION

           We reverse the trial court’s judgment in part and render judgment in part that appellant

recover from the City compensation on appellant’s exaction claims of $96,930 consisting of: (1)

$21,465 for the offsite sidewalk, (2) $34,500 for the tree retribution fees, (3) $28,435 for the .147

acre tract (consisting of $46,879 for the value of the .147 acre tract minus $18,444 in roadway

impact fees), (4) $8030 for roadway cleanup, and (5) $4500 for an extraneous water tap.

           We reverse the trial court’s judgment on appellant’s exaction claims concerning (6) the

extension of the storm drainpipe, riprap, and piers; (7) the retaining walls and four-to-one slope;

(8) construction inspection fees; (9) .725 acre tract; (10) park fees; and (11) the engineering,

surveying, landscape architecture, and testing fees related to items (1) through (10) above, and



    17
         Appellant’s entitlement to attorney’s fees comes from section 212.904, which applies only to exactions concerning municipal
infrastructure. Section 212.904 does not authorize the award of attorney’s fees to a party who prevails on an exaction claim that does not concern
municipal infrastructure.



                                                                     –43–
we remand the exaction claims for items (6) through (11) above to the trial court for further

proceedings consistent with this Court’s opinion.

       We further reverse the trial court’s denial of attorney’s fees to appellant, and we remand

the claim for attorney’s fees to the trial court for further proceedings consistent with this Court’s

opinion.

       In all other respects, we affirm the trial court’s judgment.




                                                    /Lana Myers/
                                                    LANA MYERS
                                                    JUSTICE

100283F.P05




                                               –44–
                                            S
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                          JUDGMENT NUNC PRO TUNC

MIRA MAR DEVELOPMENT                                     On Appeal from the 101st District Court,
CORPORATION, Appellant                                   Dallas County, Texas
                                                         Trial Court Cause No. 07-11511-E.
No. 05-10-00283-CV           V.                          Opinion delivered by Justice Myers.
                                                         Justices Lang participating.
CITY OF COPPELL, TEXAS, Appellee

        Based on the Court’s opinion nunc pro tunc of October 7, 2013, we REVERSE the trial court’s
   judgment in part and RENDER judgment in part that appellant Mira Mar Development Corporation
   recover from appellee City of Coppell, Texas compensation on appellant Mira Mar Development
   Corporation’s exaction claims of $96,930 consisting of: (1) $21,465 for the offsite sidewalk, (2)
   $34,500 for tree retribution fees, (3) $28,435 for the .147 acre tract (consisting of $46,879 for the
   value of the .147 acre tract minus $18,444 in roadway impact fees), (4) $8030 for roadway cleanup,
   and (5) $4500 for an extraneous water tap.


        We REVERSE the trial court’s judgment on appellant Mira Mar Development Corporation’s
   exaction claims concerning (6) the extension of the storm drainpipe, riprap, and piers; (7) the
   retaining walls and four-to-one slope; (8) construction inspection fees; (9) .725 acre tract; (10) park
   fees; and (11) the engineering, surveying, landscape architecture, and testing fees related to items (1)
   through (10) above, and we REMAND the exaction claims for items (6) through (11) above to the
   trial court for further proceedings consistent with this Court’s opinion.


       We further REVERSE the trial court’s denial of attorney’s fees to appellant Mira Mar
   Corporation, and we REMAND appellant Mira Mar Development Corporation’s claim for attorney’s
   fees to the trial court for further proceedings consistent with this Court’s opinion.




                                                  –45–
       In all other respects, we AFFIRM the trial court’s judgment.


       We ORDER that each party bear its own costs on appeal.




Judgment entered this 7th day of October, 2013.




                                                     /Lana Myers/
                                                     LANA MYERS
                                                     JUSTICE




                                                –46–
