                                                                                     ACCEPTED
                                                                                04-14-00781-CV
                                                                     FOURTH COURT OF APPEALS
                                                                          SAN ANTONIO, TEXAS
                                                                           2/9/2015 12:09:37 PM
                             NO. 04-14-00781-CV                                   KEITH HOTTLE
                                                                                         CLERK

                    IN THE COURT OF APPEALS
                FOR THE FOURTH JUDICIAL DISTRICT
                       SAN ANTONIO, TEXAS                      FILED IN
                                                        4th COURT OF APPEALS
                                                         SAN ANTONIO, TEXAS
                                                        02/9/2015 12:09:37 PM
                       CITY OF    SHAVANO PARK,             KEITH E. HOTTLE
                                       Defendant-Appellant       Clerk


                                     v.

          ARD MOR, INC.; TEXAS ARDMOR PROPERTIES, LP;
            AND TEXAS ARDMOR MANAGEMENT, LLC,
                                  Plaintiffs-Appellees


                  From the District Court of Bexar County
                      407th Judicial District of Texas
                           No. 2014-CI-10796


                        BRIEF OF APPELLEES

                                          KAREN L. LANDINGER
                                          State Bar No. 00787873
                                          klandinger@cbylaw.com
                                          JAY K. FARWELL
                                          State Bar No. 00784038
                                          jfarwell@cbylaw.com
                                          COKINOS, BOSIEN & YOUNG
Co-Counsel                                10999 West IH-10, Suite 800
David L. Earl                             San Antonio, Texas 78230
State Bar No. 06343030                    (210) 293-8700 (Office)
dearl@earl-law.com                        (210) 293-8733 (Fax)
EARL & ASSOCIATES, P.C.
Pyramid Building
601 NW Loop 410, Suite 390                ATTORNEYS FOR APPELLEES,
San Antonio, Texas 78216                  ARD MOR, INC., TEXAS ARDMOR
(210) 222-1500 (Office)                   PROPERTIES, LP AND TEXAS
(210) 222-9100 (Fax)                      ARDMOR MANAGEMENT, LLC
                  IDENTITY OF PARTIES AND COUNSEL

      The undersigned counsel of record certifies that the following listed persons

have an interest in the outcome of this case. These representations are made in order

that the judges of this court may evaluate possible disqualification or recusal.

1.    Defendant / Appellant
      City of Shavano Park (“Shavano”)

2.    Counsel for Defendant / Appellant
      Patrick C. Bernal
      Elizabeth M. Provencio
      DENTON NAVARRO ROCHA BERNAL HYDE & ZECH
      A Professional Corporation
      2517 N. Main Avenue
      San Antonio, Texas 78212
      (210) 227-3243 (Office)
      (210) 225-4481 (Fax)
      patrick.bernal@rampage-sa.com
      elizabeth.provencio@rampage-sa.com

3.    Plaintiffs / Appellees
      ARD MOR, Inc.
      Texas ARDMOR Properties, LP
      Texas ARDMOR Management, LLC




                                          ii
4.   Counsel for Plaintiffs / Appellees
     Karen L. Landinger
     Jay K. Farwell
     COKINOS, BOSIEN & YOUNG
     10999 West IH-10, Suite 800
     San Antonio, Texas 78230
     (210) 293-8700 (Office)
     (210) 293-8733 (Fax)
     klandinger@cbylaw.com
     jfarwell@cbylaw.com

5.   Co-Counsel for Plaintiffs /Appellees
     David L. Earl
     EARL & ASSOCIATES, P.C.
     Pyramid Building
     601 NW Loop 410, Suite 390
     San Antonio, Texas 78216
     (210) 222-1500 (Office)
     (210) 222-9100 (Fax)
     dearl@earl-law.com

6.   Interested Party at Trial Court
     Lockhill Ventures, LLC (“Lockhill”)




                                      iii
7.   Counsel for Interested Party at Trial Court
     Lance H. “Luke” Beshara
     Randall A. Pulman
     Brandon L. Grubbs
     PULMAN, CAPPUCCIO, PULLEN,
       BENSON & JONES, LLP
     2161 N.W. Military Highway, Suite 400
     San Antonio, Texas 78213
     (210) 222-9494 (Office)
     (210) 892-1610 (Fax)
     lbeshara@pulmanlaw.com
     rpulman@pulmanlaw.com
     bgrubbs@pulmanlaw.com


                                         /s/   Karen L. Landinger
                                         KAREN L. LANDINGER
                                         JAY K. FARWELL

                                         ATTORNEYS FOR APPELLEES,
                                         ARD MOR, INC., TEXAS ARDMOR
                                         PROPERTIES, LP AND TEXAS
                                         ARDMOR MANAGEMENT, LLC




                                    iv
              STATEMENT REGARDING ORAL ARGUMENT

      Appellees believe that the issues before the Court involve questions of law that

are well settled. Therefore, Appellees do not request oral argument at this time.

However, in the event that Appellant requests oral argument, Appellees request the

opportunity to respond.




                                          v
                                      TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . iv

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

        I.      Shavano Intentionally Excluded Gas Stations from its
                B-2 Zoning Classifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

        II.     Shavano Entered into a Contract with Lockhill Which
                Purports to Grant Lockhill the Unfettered Right to Build
                a Gas Station. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

        III.    Ard Mor Sought a Declaration That Gas Stations Are Not
                Permitted on Lockhill’s Property on Five Different Grounds. . . . . . 4

        IV.     Shavano Testified That it Would Interpret its Ordinance
                to Include Lockhill’s Proposed Gas Station, and That it
                Drafted its Ordinances to Be “Ambiguous on Purpose”. . . . . . . . . . . 4

        V.      The Trial Court Found That Gas Stations Are Not Permitted
                by Shavano’s Ordinances and That Injunctive Relief Is
                Necessary to Prevent Harm to Ard Mor. . . . . . . . . . . . . . . . . . . . . . . . 7

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

        I.      Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

                A.       Pleadings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

                                                         vi
       B.      Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

II.    Shavano’s Issues Do Not Address All Possible Grounds
       Supporting the Trial Court’s Order. . . . . . . . . . . . . . . . . . . . . . . . . . 12

III.   Because the Trial Court and City Manager Disagree on the
       Meaning of an Ordinance, Shavano Will Be Affected by the
       Declaratory Relief Sought by Ard Mor. . . . . . . . . . . . . . . . . . . . . . . 15

       A.      Shavano is a proper, if not mandatory, party
               pursuant to section 37.006(a). . . . . . . . . . . . . . . . . . . . . . . . . . 17

       B.      Shavano does not challenge that it is a proper party
               under section 37.006(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

IV.    Shavano’s Admission That its Ordinance Is Ambiguous
       as Written Provides Grounds to Invalidate the Ordinance.. . . . . . . . 20

V.     Shavano’s Development Agreement and Annexation Ordinance
       Are Void Contract Zoning Because They Provide Lockhill a
       Contractual Right to Develop the Disputed Property in a
       Manner Inconsistent with Shavano’s Current Ordinances.. . . . . . . . 23

       A.      An allegation that an annexation ordinance constitutes
               contract zoning is an allegation that the annexation
               ordinance is void.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

       B.      The trial court’s finding that Ard Mor’s operations will
               be interrupted and the property value will be negatively
               affected establishes that Ard Mor is suffering a
               particularized injury as a result of Shavano’s actions. . . . . . . 27

       C.      Challenges to annexation are not limited to
               quo warranto proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30




                                               vii
        VI.     The Ripeness of the Matter Before the Court Was Established
                When the Court Found That Ard Mor Was Entitled to
                Injunctive Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

        VII. If Shavano’s Plea Has Merit, this Matter Should Be Remanded. . . . 34

CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39




                                                       viii
                                   INDEX OF AUTHORITIES

CASES:

2800 La Frontera No. 1A Ltd. v. City of Round Rock,
      No. 03-08-00790-CV, 2010 WL 143418
      (Tex. App.—Austin Jan. 12, 2010, no pet.) (mem. op.). . . . . . . . . . . . . . . . 26

Alexander Oil Co. v. City of Seguin,
      825 S.W.2d 434 (Tex. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 31

Baggett v. Bullitt,
     377 U.S. 360 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

Bland Indep. Sch. Dist. v. Blue,
      34 S.W.3d 547 (Tex. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 35

Britton v. Tex. Dep’t of Criminal Justice,
      95 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2002, no pet.). . . . . . . . . 19

Brooks v. Northglen Ass’n,
     141 S.W.3d 158 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

City of Crowley v. Ray,
       No. 2-09-290-CV, 2010 WL 1006278
       (Tex. App.—Fort Worth Mar. 18, 2010, no pet.). . . . . . . . . . . . . . . . . . . . . 18

City of El Paso v. Heinrich,
       284 S.W.3d 366 (Tex. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

City of La Porte v. Barfield,
       898 S.W.2d 288 (Tex. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

City of Laredo v. Rio Grande H20 Guardian,
       No. 04-10-00872-CV, 2011 WL 3122205
       (Tex. App.—San Antonio July 27, 2011, no pet.). . . . . . . . . . . 28, 29, 30, 32



                                                     ix
City of Mesquite v. Aladdin’s Castle, Inc.,
       559 S.W.2d 92 (Tex. Civ. App.—Dallas 1977)
       writ ref’d n.r.e, 570 S.W.2d 377 (Tex. 1978). . . . . . . . . . . . . . . . . . . . . 21, 22

City of Port Isabel v. Pinnell,
       161 S.W.3d 233 (Tex. App.—Corpus Christi 2005, no pet.). . . . . . . . . 23, 31

City of Richardson v. Gordon,
       316 S.W.3d 758 (Tex. App.—Dallas 2010, no pet.). . . . . . . . . . . . . . . . . . 32

City of San Antonio v. Summerglen Prop. Owners Ass’n Inc.,
       185 S.W.3d 74 (Tex. App.—San Antonio 2005, pet. denied). . . . . . . . 23, 24

City of Waco v. Kirwan,
       298 S.W.3d 618 (Tex. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Cokins v. City of Lakeway,
     No. 03-12-00083-CV, 2013 WL 4007522
     (Tex. App.—Austin July 25, 2013, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . 24

County of Cameron v. Brown,
     80 S.W.3d 549 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 35

Dallas County, Tex. v. Logan,
      420 S.W.3d 412 (Tex. App.—Dallas 2014), reh’g overruled
      (Feb. 12, 2014), review denied (Oct. 3, 2014). . . . . . . . . . . . . . . . . . . . . . . 35

Dallas Indep. Sch. Dist. v. Lee,
      No. 05-01-00359-CV, 2002 WL 109626
      (Tex. App.—Dallas Jan. 29, 2002, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . 13

Epernay Cmty. Ass’n, Inc. v. Shaar,
     349 S.W.3d 738 (Tex. App.—Houston [14th Dist.] 2011, no pet.). . . . . . . 17

In re K.G.S.,
       No. 14–12–00673–CV, 2014 WL 801127
       (Tex. App.— Houston [14th Dist.] Feb. 27, 2014, no pet.). . . . . . . . . . . . . 19

                                                     x
Lindig v. City of Johnson City,
      No. 03-11-00660-CV, 2012 WL 5834855
      (Tex. App.—Austin Nov. 14, 2012, no pet.) (mem. op.). . . . . . . . . . . . . . . 22

Noell v. City of Carrollton,
      431 S.W.3d 682 (Tex. App.—Dallas 2014, pet. denied). . . . . . . . . . . . . . . 20

Robinson v. Parker,
     353 S.W.3d 753 (Tex. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 34

Save Our Springs Alliance, Inc. v. City of Dripping Springs,
      304 S.W.3d 871 (Tex. App.—Austin 2010, pet. denied). . . . . . . . . . . . 23, 29

Scott v. Alphonso Crutch LSC Charter School, Inc.,
       392 S.W.3d 165 (Tex. App.—Austin 2010, pet. denied). . . . . . . . . . . . . . . 35

Southwestern Bell Telephone, L.P. v. Harris County,
     267 S.W.3d 490 (Tex. App.—Houston [14th Dist.] 2008, no pet.). . . . . . . 19

Super Wash, Inc. v. City of White Settlement,
      131 S.W.3d 249 (Tex. App.—Fort Worth 2004, pet. granted).. . . . . . . . . . 26

Texas A & M Univ. Sys. v. Koseoglu,
      233 S.W.3d 835 (Tex. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Texas Ass’n of Bus. v. Texas Air Control Bd.,
      852 S.W.2d 440 (Tex. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Texas Dep’t of Parks & Wildlife v. Miranda,
      133 S.W.3d 217 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Texas Rivers Protection Ass’n v. Texas Natural Res. Conservation Comm’n,
      910 S.W.2d 147 (Tex. App.—Austin 1995, writ denied).. . . . . . . . . . . 29, 30

Tex. Educ. Agency v. Leeper,
      893 S.W.2d 432 (Tex. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18



                                                    xi
Tex. Lottery Comm’n v. First State Bank of DeQueen,
      325 S.W.3d 628 (Tex. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18

Tex. Natural Res. Conservation Comm’n v. IT–Davy,
      74 S.W.3d 849 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Tex. Parks & Wildlife Dep’t v. Morris,
      129 S.W.3d 804 (Tex. App.—Corpus Christi 2004, no pet.). . . . . . . . . . . . 11

Waco Indep. Sch. Dist. v. Gibson,
     22 S.W.3d 849 (Tex. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 34



STATUTES AND RULES:

Tex. Civ. Prac. & Rem. Code Ann. § 37.004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Tex. Civ. Prac. & Rem. Code Ann. § 37.006 .. . . . . . . . . . . 9, 16, 17, 18, 19, 20, 22
Tex. R. Civ. P. 39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                          xii
                               NO. 04-14-00781-CV

                          IN THE COURT OF APPEALS
                      FOR THE FOURTH JUDICIAL DISTRICT
                             SAN ANTONIO, TEXAS


                            CITY OF SHAVANO PARK,
                                         Defendant-Appellant

                                         v.

            ARD MOR, INC.; TEXAS ARDMOR PROPERTIES, LP;
              AND TEXAS ARDMOR MANAGEMENT, LLC,
                                    Plaintiffs-Appellees


                       From the District Court of Bexar County
                           407th Judicial District of Texas
                                No. 2014-CI-10796


                             BRIEF OF APPELLEES


TO THE FOURTH COURT OF APPEALS:

      ARD MOR, INC.; TEXAS ARDMOR PROPERTIES, LP; and TEXAS

ARDMOR MANAGEMENT, LLC (collectively “Ard Mor” or “Appellees”), file this

Brief of Appellees.




                                         xiii
                             ISSUES PRESENTED

      The issues presented for review are as follows:

(1)   Whether the trial court erred in denying Shavano’s jurisdictional challenges?

(2)   Whether a municipality should be joined in a suit for declaratory judgment to
      construe the meaning of the municipality’s ordinances?

(3)   Whether a municipality should be joined in a suit when the validity of its
      ordinances are at issue?

(4)   Whether an ordinance that is intentionally drafted to be vague for the purpose
      of arbitrary application is void?

(5)   Whether an ordinance that is intentionally drafted to be vague for the purpose
      of arbitrary application is constitutional?

(6)   Whether an adjacent landowner, whose property is injured by a municipality’s
      action, has standing to complain?

(7)   Whether a municipality is subject to suit for engaging in contract zoning?

(8)   Whether a finding of imminent and actual harm establishes ripeness?

(9)   Whether a litigant should be given an opportunity to re-plead and develop
      jurisdictional facts when faced with an inadequately noticed plea to the
      jurisdiction?




                                        xiv
                                STATEMENT OF FACTS

       The Shavano Park Code of Ordinances is at the center of a dispute between Ard

Mor, the owner and operator of Luv-N-Care Child Development Centers, and

Lockhill Ventures LLC, a developer who intends to build a gas station and gas

storage tanks next to the child development facility. CR.I:1. The property on which

Lockhill plans to build a gas station is subject to a Declaration of Protective

Covenants, which was entered into for the express purpose of preventing the

development of the disputed property in a manner “incompatible with any adjoining

commercial properties.” CR.I:103. Relevant to this appeal, the covenants tie the

permitted uses of the disputed property to applicable zoning and governmental

regulations. CR.I:106.1 Specifically, the covenants limit development of the disputed

property to uses permitted by Shavano’s B-2 zoning classification. CR.I:110.

I.     Shavano Intentionally Excluded Gas Stations from its B-2 Zoning
       Classifications.




       1
         In addition to prohibiting the use of the property in violation of existing zoning laws or
governmental regulations, the covenants also prohibit a list of uses such as any use which is
offensive from the discharge of fumes and any use that involves the “[s]torage, handling or use of
explosive material.” RR.II:70. Although this brief focuses on those aspects of the covenant
concerning zoning laws and governmental regulations, the trial court also granted injunctive relief
based on its findings that gasoline vapors are explosive and would be used or handled on the
property according to Lockhill’s plans in violation of the protective covenants.CR.II:141-142.


                                                1
      A gas filling station is not listed within Shavano’s B-2 zoning classifications.

CR.I:13-20. Nonetheless, Shavano believes that allowing Lockhill to proceed with

development against the Declaration of Protective Covenants and Shavano’s

ordinances will generate revenue for Shavano. CR.I:26l; RR.II:21; RR.III:91.

Consequently, Shavano entered into a Development Agreement with Lockhill that

contracts for development of a gas station on the disputed property. RR.2:23.

      Shavano does not suggest that “gas filling stations” are listed in the B-2 zoning

table applicable to the disputed property. Instead, Shavano has taken the position that

the term “gas filling station” is synonymous with the phrase “convenience store.”

RR.II:48. A convenience store is permitted under B-2 zoning, with special approval.

RR.II:49, 51. The phrase “gas filling station” is found in other places in Shavano’s

municipal code, but not within Table No. 4 showing the permissible uses under B-2

zoning. CR.I:13-20. When asked why the phrase “gas filling station” does not appear

if it is intended to be included in the list of permissible B-2 uses, Shavano’s City

Manager, William Hill, disclosed: “as it’s currently written it’s ambiguous on

purpose.” RR.II:137.

II.   Shavano Entered into a Contract with Lockhill Which Purports to Grant
      Lockhill the Unfettered Right to Build a Gas Station.




                                          2
      The operators of the Luv-N-Care child development facility believe that it is

unsafe and incompatible to have a gas station and storage tanks operating on the front

steps of the day care facility. Supp. RR.II:41. Parents of the children at the day care

facility also expressed concern about the dangers of constructing a gas station in close

proximity to a day care facility. Supp. RR.II:55-58. Sean Nooner, the President of

Lockhill, was aware of the land restrictions in the covenants and the opposition to the

development, but took the position that he could do anything he wanted with the

disputed property once he purchased it. RR.III:12.

      Like Mr. Nooner, Shavano was aware of the objections to the project, and was

also put on notice that the placement of a gas station on the disputed property would

violate deed restrictions in the covenants. RR.II:25-27, 29. Despite the restrictions on

the disputed property, Shavano went to great lengths to assist Lockhill in

circumventing zoning prohibitions and deed restrictions. RR.II:35-37, 45. In the

Development Agreement, Shavano promises to provide the disputed property with a

zoning designation that gives Lockhill the right to build a gas station. CR.I:38;

RR.IV:32-33. Alternatively, the Development Agreement provides that Lockhill

would retain the right to build a gas station even if Shavano failed to provide the

appropriate zoning designation, based on certain exceptions contained in the Local

Government Code. CR.I:38; RR.II:84. However, Nooner testified that he had not

                                           3
begun construction or use of the property in such a manner to invoke the exceptions

provided for in the agreement. RR.III:34-36. Nonetheless, Mr. Nooner testified that

the Development Agreement gives him the absolute right to build a gas station on the

disputed property. RR.III:32, 35.

III.   Ard Mor Sought a Declaration That Gas Stations Are Not Permitted on
       Lockhill’s Property on Five Different Grounds.

       Ard Mor sought injunctive relief to halt development and enforce the

restrictions on the disputed property. CR.I:1. In its pleadings, Ard Mor requested a

declaratory judgment pursuant to Chapter 37 of the Texas Civil Practice & Remedies

Code, seeking a declaration that the use of the disputed property as a gas filling

station does not comply with the covenants or Shavano’s ordinances. CR.I:212. Ard

Mor also sought declarations that (i) Shavano’s ordinances are void due to their

admitted ambiguity; (ii) the Development Agreement and the ordinance annexing the

disputed property are void contract zoning; (iii) the Development Agreement violates

existing ordinances; (iv) Shavano inconsistently applies its ordinances in violation

of equal protection; and (v) the actions of Shavano in contracting with Lockhill and

passing the ordinance approving the agreement were ultra vires. CR.II:5-6.

IV.    Shavano Testified That it Would Interpret its Ordinance to Include
       Lockhill’s Proposed Gas Station, and That it Drafted its Ordinances to Be
       “Ambiguous on Purpose.”


                                         4
      On July 9, 2014, the trial court granted a temporary restraining order against

Lockhill prohibiting the commencement or continuation of development or

construction on the disputed property. CR.I:91. Even after the court issued the

temporary restraining order halting the development, Shavano moved forward with

approving the Development Agreement and annexation of the disputed property.

CR.I:22; RR.II:45. A hearing on the temporary injunction was set for July 23, 2014.

CR.I:91. On the day that the request for a temporary injunction was set for hearing,

Shavano filed a plea to the jurisdiction, but did not set a hearing. CR.I:145.

      The trial court heard testimony and considered evidence on the temporary

injunction over a four day period. Supp. RR.II:1; Supp. RR.III:1; Supp. RR.IV:1;

Supp. RR.V:1. When questioned about whether or not the Development Agreement

complied with Shavano’s Code, Shavano’s City Manager responded:

      Q.     Well, did this contract then comply with Section 36-40 of the City of
             Shavano Park code?

      A.     I think that’s irrelevant. I don’t think that it was ever intended to
             comply. All it said is we’re approving this plan as presented to us and
             that requirements for PUD are extended. It didn’t approve a PUD, it
             didn’t create a PUD. That zoning action has to occur later.

      Q.     Okay. Maybe I’m misreading it. It says, the parties agree that the
             requirements of Section 36-40 of the City of Shavano Park Code of
             ordinances are extended to the development of the property, correct?

      A.     That’s the way it reads.

                                          5
RR.II:111-12.

     Q.      How can you then argue on the one hand that they can do it because the
             zoning allows for it to be done; on the other hand, it’s saying that they
             did not yet take that action of zoning the property?

     *****

     Q.      – if it’s zoned B-2 – or B-1 for that matter — that in and of itself for that
             matter would not allow a gas station’s operation, would it?

     A.      It would allow a gas station.

     Q.      It would allow a gas station operation without seeking second City
             Council approval?

     A.      it’s an authorized use under B-2. Yes, particular – so it’s an authorized
             use under B-2. And to actually approve the plan will require separate
             City Council approval.

RR.II:122-23.

     Q.      So it’s your testimony that City Council does not have the authority to
             say no to a gas station in B-2 at Shavano Park?

     A.      I don’t know the answer to that question.

RR.II:126.

     Q.      Had the City Council desired to clarify their intent with respect to
             putting gas stations in B-2, couldn’t they have done so in 2013 when
             they last amended their schedule of uses?

     A.      They could have.

     Q.      But they did not, correct?



                                             6
      A.     They did not--well, we don’t know that they desired to. They didn’t take
             any action.

      Q.     It’s currently ambiguous?

      A.     It was--as it’s currently written it’s ambiguous on purpose.

RR.II:136-37.

      On the third day of the injunction hearing, Shavano asked the trial court to

consider its plea to the jurisdiction although the plea had not been set for hearing.

RR.III:127. The court declined, advising that the only issue before it was the

temporary injunction. RR.III:128-29. The court observed that Shavano was not

enjoined in the temporary restraining order, and, therefore, was not before the court.

RR.III:128-29.

V.    The Trial Court Found That Gas Stations Are Not Permitted by
      Shavano’s Ordinances and That Injunctive Relief Is Necessary to Prevent
      Harm to Ard Mor.

      On the last day of the hearing, Shavano again requested that the court take up

and consider its plea to the jurisdiction. Supp. RR.V:90-91. After hearing argument,

the trial court entered an order denying Shavano’s plea to the jurisdiction. CR.II:137.

The court also issued an Order for Temporary Injunction. CR.II:141. In its order, the

trial court found that the proposed development of a gas station on the disputed

property is prohibited by applicable zoning laws or other governmental regulations.



                                          7
CR.II:142. The trial court also found that without further action by Shavano’s

Planning and Zoning Commission and Shavano’s City Council, the planned

development would violate Shavano’s zoning ordinances, which would further

violate the covenants. CR.II:142. Additionally, the trial court found that gasoline

vapors are explosive and would be stored or handled on the property as currently

planned by Lockhill in violation of the restrictive covenants. CR.II:142. Lockhill was,

therefore, ordered to cease and desist from commencing or continuing the

development of the disputed property, including seeking or applying for approval

from Shavano or any other governmental authority to use the disputed property to

store or sell gasoline in violation of the restrictive covenants. CR.II:143.

                       SUMMARY OF THE ARGUMENT

      Shavano has testified that it drafted its ordinances to be intentionally

ambiguous so that they can be applied, as desired by Shavano, on a case-by-case

basis. Now Shavano argues that its ordinances can be interpreted in its absence.

However, if Shavano is not a party to these proceedings, Shavano will not be bound

by the trial court’s clarification of Shavano’s ordinances, and future parties, including

Ard Mor, will be subject to uncertainty and inconsistency.

      Because the interpretation of Shavano’s ordinances is central to the parties’

dispute, Ard Mor argued, and the court agreed, that Shavano was a necessary party,

                                           8
and that Shavano waived its immunity pursuant to section 37.006(a) of the Texas

Civil Practice & Remedies Code. Shavano has not brought forward any argument or

authorities that suggest that its immunity from suit is not waived by section 37.006(a)

of the Texas Civil Practice & Remedies Code. Therefore, even if Shavano’s

arguments are correct on all other grounds, the trial court’s ruling should be affirmed

because it is based on a ground not challenged by Shavano.

      Shavano’s admission that its ordinances are ambiguous also waives immunity

from suit pursuant to section 37.006(b) of the Texas Civil Practice & Remedies Code.

A challenge that an ordinance is impermissibly vague is a direct attack regarding the

constitutionality of the ordinance, for which immunity is waived. Ard Mor’s

arguments that Shavano’s ordinances are vague and subject to arbitrary application

trigger the waiver of Shavano’s claimed immunity from suit pursuant to section

37.006(b) of the Texas Civil Practice & Remedies Code.

      Ard Mor’s challenges to the Development Agreement and annexation

ordinance also provide the Court jurisdiction over Shavano. Ard Mor is not

challenging Shavano’s actions on procedural grounds for which Ard Mor lacks

standing. Instead, Ard Mor is alleging that the Development Agreement constitutes

contract zoning, which renders the Development Agreement and annexation

ordinance wholly void. Indeed, Shavano’s actions are nothing more than a thinly

                                          9
veiled attempt to circumvent its own ordinances through private contract. As an

adjacent landowner who has established particularized harm to its property, Ard Mor

has standing to challenge Shavano’s actions.

      Shavano’s challenge to the ripeness of this matter also lacks merit. Ripeness

does not require a finding that the harm has already occurred. All that ripeness

requires is a showing that the alleged harm is tangible and likely. The trial court

found both that the development was planned “as soon as possible” and that Ard Mor

would be “negatively effected” by such actions. This matter is not only ripe, but so

imminent that Ard Mor was granted injunctive relief.

      Finally, in the event that Shavano’s arguments have any merit, the proper

remedy to Shavano’s plea is remand. Shavano interjected its plea into the closing

arguments of a hearing regarding Ard Mor’s request for injunctive relief against

Lockhill. The trial court made clear over several days that the issue of Shavano’s

plea, which was not set for hearing, was not before it. Yet, Shavano now challenges

the sufficiency of Ard Mor’s pleadings and evidence. To the extent that the Court’s

jurisdiction over Shavano is called into question, Ard Mor should be given the chance

to establish jurisdiction after being informed of the defect and provided an

opportunity to cure.




                                         10
                       ARGUMENT AND AUTHORITIES

I.    Standard of Review.

      A.     Pleadings.

      In reviewing a plea to the jurisdiction, the ultimate merits of the parties’

controversy are not before the reviewing court. See Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547, 554 (Tex. 2000) (plea to the jurisdiction) (“The plea should be

decided without delving into the merits of the case.”). Instead, an analysis of

jurisdiction focuses on the plaintiff’s live pleadings. See Texas Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). The plaintiff has the initial

burden of alleging facts that affirmatively demonstrate the trial court’s jurisdiction

to hear the cause. Id. (citing Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d

440, 446 (Tex. 1993)). Whether the plaintiff met this burden is a question of law that

a court reviews de novo. Id. In doing so, the reviewing court must construe the

pleadings liberally and look to the pleader’s intent. Id. If the plaintiff’s pleadings are

insufficient to demonstrate jurisdiction, but do not show incurable defects in

jurisdiction, the proper remedy is to allow the plaintiff an opportunity to amend

before dismissal. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex.

Parks & Wildlife Dep’t v. Morris, 129 S.W.3d 804, 807 (Tex. App.—Corpus Christi

2004, no pet.).

                                           11
      B.     Facts.

      The truth of the jurisdictional facts alleged in the pleadings are to be assumed

unless the defendant presents evidence to negate their existence. Miranda, 133

S.W.3d at 227 (citing Blue, 34 S.W.3d at 555). To the extent the plea implicates the

merits of the plaintiff’s cause of action, the party asserting the plea has the burden of

negating a genuine issue of material fact as to the jurisdictional fact’s existence, the

same burden a movant must meet to prevail on a traditional summary judgment

motion. Miranda, 133 S.W.3d at 227-28. Whether the party meets this burden is a

question of law that is reviewed de novo. Id. at 228. In making this determination, a

reviewing court must take as true all evidence favorable to the pleader and indulge

every reasonable inference and resolve any doubts in the pleader’s favor. Id. If that

evidence creates a fact issue, then it remains for the fact finder to decide. City of

Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2008) (citing Miranda, 133 S.W.3d at

227); also see Blue, 34 S.W.3d at 555.

II.   Shavano’s Issues Do Not Address All Possible Grounds Supporting the
      Trial Court’s Order.

      In Plaintiff’s Second Amended Original Petition, Ard Mor seeks at least six

different declarations relating to Shavano’s actions. CR.II:5-6. Any of the grounds

for declaratory relief, standing alone, invoke the trial court’s jurisdiction over


                                           12
Shavano. The trial court denied Shavano’s plea to the jurisdiction without stating

which of Ard Mor’s claims for declaratory relief invoked the court’s jurisdiction over

Shavano. CR.II:137.

      When “the trial court denie[s] the plea [to the jurisdiction] without stating any

ground for doing so, if the trial court’s order is correct on any basis, [the appellate

court] will not reverse.” Dallas Indep. Sch. Dist. v. Lee, No. 05-01-00359-CV, 2002

WL 109626, at *2 (Tex. App.—Dallas Jan. 29, 2002, no pet.) (not designated for

publication). Shavano wholly fails to address two of Ard Mor’s jurisdictional

grounds. Namely, Shavano fails to address the fact that the court could have found

that (1) Shavano is a proper, if not mandatory, party under the DJA because the

construction of its ordinances are at issue (RR.IV:46-48); and (2) Shavano is a proper,

if not mandatory, party under the DJA because Ard Mor challenges the validity of

Shavano’s ordinances (RR.IV:46-48).

      Instead of addressing the jurisdictional grounds argued by Ard Mor, Shavano

expends considerable space asserting that a private party cannot challenge an

annexation ordinance. See Appellant’s Brief at 11. The title of that argument appears

as follows:

      “C. Appellee’s Declaratory Judgment Action To Invalidate an
      Annexation Agreement Fails Because Only a Quo Warranto Proceeding
      May Challenge An Annexation Ordinance.”

                                          13
See Appellant’s Brief at 11 (emphasis added). At the outset, it is apparent that

Shavano is using the terms Agreement and Ordinance interchangeably, although a

private agreement and an enacted ordinance differ greatly in their meaning and effect.

      Moreover, Shavano’s arguments, even as to annexation, miss the crux of Ard

Mor’s request for declaratory relief. Ard Mor is not challenging Shavano’s right to

annex property. Ard Mor is challenging Shavano’s right to annex property through

an invalid agreement that contains a guaranteed right to develop property in violation

of existing zoning laws which constitutes constitutionally prohibited contract zoning.

CR.II:5-6. Ard Mor is not challenging Shavano’s right to include gas filling stations

within its B-2 zoning classifications. It is undisputed that Shavano could have

amended its ordinance to include gas stations within B-2 zoning. What Ard Mor is

challenging is the fact that Shavano intentionally excluded “gas filling stations” from

all of its zoning districts, while simultaneously contracting for the development of a

gas station. RR.IV:46-48; CR.II:39. Ard Mor is also challenging the fact that Shavano

has intentionally drafted its ordinances in a vague and ambiguous manner so that

Shavano can interpret and apply the ordinances on a case-by-case basis without

consistency or limitations. RR.IV:46-48.




                                          14
       Ard Mor does not believe that Shavano’s legal arguments are correct

statements of law. However, to the extent that Shavano makes correct statements of

law, those statements are not responsive to the issues before the Court. Shavano has

attempted to reframe the issues before the Court to fit within a body of law that is

favorable to Shavano. However, the plea to the jurisdiction must be measured against

the pleadings and evidence before the Court, not against hypothetical claims that

would defeat jurisdiction. By excessively re-framing the issues, Shavano has failed

to address the basis of the trial court’s ruling.

III.   Because the Trial Court and City Manager Disagree on the Meaning of an
       Ordinance, Shavano Will Be Affected by the Declaratory Relief Sought by
       Ard Mor.

       Ard Mor is seeking declaratory judgments that construe the meaning of

Shavano’s zoning ordinances. See Plaintiff’s Second Amended Original Petition

(CR.II:5-6) (“[P]laintiff asks the court to declare that . . . [u]se of the premises as a

gasoline station will involve business activities, except for outside dining, that are not

completely contained within an enclosed structure or court in violation of City of

Shavano Ordinance 36-39(6) and (7) . . . [and] [u]se of the property as a gas station

is not a permitted use under any zoning category in the City of Shavano Park.”).

During the temporary injunction hearing, Shavano’s City Manager testified that a gas

filling station is a permitted use under the B-2 zoning classification. RR.II:123. In

                                           15
contrast, the trial court ruled that “the planned development includes uses that violate

the zoning ordinances of the City of Shavano Park.” CR.III:142. Therefore, there is

a significant likelihood that, upon trial, the Court will ascribe a meaning to Shavano’s

ordinances in a manner that conflicts with Shavano’s own interpretation and

application of its ordinances.

      The Declaratory Judgments Act grants any litigant whose rights are affected

by a statute the opportunity to obtain a declaration of those rights under the statute

and requires that all relevant parties be joined in any declaratory judgment suit. Tex.

Civ. Prac. & Rem. Code Ann. §§ 37.004(a) & 37.006(a) (West 2008) (“When

declaratory relief is sought, all persons who have or claim any interest that would be

affected by the declaration must be made parties. A declaration does not prejudice the

rights of a person not a party to the proceeding.”); see also Tex. Lottery Comm’n v.

First State Bank of DeQueen, 325 S.W.3d 628, 634 (Tex. 2010). A declaratory

judgment action against the government seeking a declaration of a party’s rights and

status under a statute is not barred by governmental immunity. See Tex. Natural Res.

Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 859–60 (Tex. 2002); City of La

Porte v. Barfield, 898 S.W.2d 288, 297 (Tex. 1995), superseded by statute on other

grounds, Tex. Labor Code Ann. § 451.001 (West 1993), as recognized in Travis

Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54 (Tex. 2011). The DJA allows courts

                                          16
to declare relief—i.e., construe statutes—whether or not further relief is or could be

claimed. Tex. Lottery Comm’n, 325 S.W.3d at 635.

      The Supreme Court of Texas has concluded that when determining which

parties, if any, must be joined under section 37.006(a), the legal standard from Texas

Rule of Civil Procedure 39 should be utilized. See Tex. R. Civ. P. 39; Brooks v.

Northglen Ass’n, 141 S.W.3d 158, 162 (Tex. 2004). Under this rule, entitled “Joinder

of Persons Needed for Just Adjudication:”

      A person who is subject to service of process shall be joined as a party
      in the action if . . . he claims an interest relating to the subject of the
      action and is so situated that the disposition of the action in his absence
      may (i) as a practical matter impair or impede his ability to protect that
      interest or (ii) leave any of the persons already parties subject to a
      substantial risk of incurring double, multiple, or otherwise inconsistent
      obligations by reason of his claimed interest.

Tex. R. Civ. P. 39(a); see Epernay Cmty. Ass’n, Inc. v. Shaar, 349 S.W.3d 738, 746

(Tex. App.—Houston [14th Dist.] 2011, no pet.).

      A.     Shavano is a proper, if not mandatory party pursuant to section
             37.006(a).

      Shavano argues that the court can interpret its ordinances without it being

joined. However, section 37.006(a) of the Texas Civil Practice & Remedies Code

specifically provides that all interested parties must be included and that a declaration

does not prejudice the rights of a person not a party to the proceeding. Given


                                           17
Shavano’s own interpretation of its ordinances, the failure to join Shavano could

result in inconsistent application of the ordinances in future proceedings. For that

reason, Shavano is properly joined in this action. See Tex. Lottery Comm’n, 325

S.W.3d at 634 (noting that because the DJA permits statutory challenges and

governmental entities may be bound by those challenges, the Act contemplates that

the entities must be joined in those suits); Tex. Educ. Agency v. Leeper, 893 S.W.2d

432, 445–46 (Tex. 1994) (same).

       Although section 37.006(b) of the Texas Civil Practice & Remedies Code

specifically mentions municipal corporations, that is not the only section of the DJA

that makes a municipal corporation a proper party to a suit for a declaratory judgment.

For example, in City of Crowley v. Ray, the plaintiff sued a third party and made the

City of Crowley a party for the purpose of obtaining a declaratory judgment regarding

a certain action of the City. City of Crowley v. Ray, No. 2-09-290-CV, 2010 WL

1006278, at *1 (Tex. App.—Fort Worth Mar. 18, 2010, no pet.). In that case, the

court noted that declaratory relief “will remove several uncertainties regarding the

flood plain criteria documents that are central to the [plaintiff’s] suit against [the third

party].” Id. at *7. Likewise, construction of Shavano’s ordinances will remove

uncertainties central to Ard Mor’s property rights and claims against Lockhill. Since

Shavano has an interest in the construction of its ordinances, Shavano must be made

                                            18
a party to the declaratory action pursuant to section 37.006(a) of the Texas Civil

Practice & Remedies Code.

      B.     Shavano does not challenge that it is a proper party under section
             37.006(a).

      Where, as here, the trial court does not state the grounds upon which it grants

a plea to the jurisdiction, an appellant must attack each asserted ground that could

support the adverse ruling. See Southwestern Bell Telephone, L.P. v. Harris County,

267 S.W.3d 490, 494 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Otherwise,

a reviewing court must presume that any assigned error would be harmless in light

of the unchallenged alternative justifications for the ruling. Britton v. Tex. Dep’t of

Criminal Justice, 95 S.W.3d 676, 681-82 (Tex. App.—Houston [1st Dist.] 2002, no

pet.). On appeal, Shavano challenges the trial court’s denial of its plea pursuant to

section 37.006(b) of the Texas Civil Practice & Remedies Code. Shavano does not

challenge the trial court’s denial of its plea pursuant to section 37.006(a) of the Texas

Civil Practice & Remedies Code. A reviewing court cannot alter even an erroneous

ruling if the appellant does not assign error to it. Britton, 95 S.W.3d at 681; see also,

e.g., In re K.G.S., No. 14–12–00673–CV, 2014 WL 801127, at *5 (Tex. App.—

Houston [14th Dist.] Feb. 27, 2014, no pet.) (mem. op.). For this reason alone, the

ruling of the trial court should stand.



                                           19
IV.   Shavano’s Admission That its Ordinance Is Ambiguous as Written
      Provides Grounds to Invalidate the Ordinance.

      Without waiving the forgoing, Shavano is a proper party pursuant to section

37.006(b) of the Texas Civil Practice & Remedies Code. When a private party

challenges a municipality’s ordinances as invalid, “the municipality must be made a

party and is entitled to be heard.” Tex. Civ. Prac. & Rem. Code Ann. § 37.006(b)

(West 1985). As such, the party has standing and obtains a statutory waiver of the

municipality’s governmental immunity. One manner by which a private party can

challenge the validity of an ordinance is to claim that the ordinance is impermissibly

vague and, therefore, unconstitutional. See Noell v. City of Carrollton, 431 S.W.3d

682, 698-99 (Tex. App.—Dallas 2014, pet. denied). When a private party challenges

an ordinance as being ambiguous, “[t]he same rules apply to the construction of a

municipal ordinance as apply to the construction of statutes.” Id. at 698. The test is

whether “the persons regulated by it are exposed to risk or detriment without fair

warning or if it invites arbitrary and discriminatory enforcement by its lack of

guidance to those charged with its enforcement.” Id. at 699.

      Texas courts have followed the “man of common intelligence” test espoused

by the Supreme Court of the United States to determine if a statute or ordinance

passes constitutional muster. “A law forbidding or requiring conduct in terms so



                                         20
vague that men of common intelligence must necessarily guess at its meaning and

differ as to its application violates due process.” City of Mesquite v. Aladdin’s Castle,

Inc., 559 S.W.2d 92, 94 (Tex. Civ. App.—Dallas 1977) (quoting Baggett v. Bullitt,

377 U.S. 360, 373 (1964)), writ ref’d n.r.e, 570 S.W.2d 377 (Tex. 1978). If an

ordinance is susceptible to discriminatory application, the fact that “it will not

construe the ordinance in an unconstitutional manner . . . is irrelevant to the

constitutional issue of its susceptibility to such a construction.” City of Mesquite, 559

S.W.2d at 94.

      Shavano’s zoning ordinances are drafted as prohibitions that reference an

enumeration of permitted uses for each zoning district. CR.II:15. For example, “only

the uses specified on Table No. 4 are permitted in the B-1 Business District.”

CR.II:15. As such, interpretation of Table No. 4 is necessary for a private party to

determine what uses of property are permitted and prohibited in B-1 zoning. Since

B-2 zoning includes all permitted uses under B-1 zoning (CR.II:20), Table No. 4 is

also relevant for determining the permitted and prohibited uses in B-2 zoning. One

of the enumerated permitted uses in Table No. 4 is “[c]onveniece store (CC).”

CR.II:19. Ard Mor reads convenience store to allow a convenience store, but not a

gas station. On the other hand, City Manager Hill stated that “[t]he area in which a

convenience store is authorized in B-2 includes gas sales.” RR.II:48. When

                                           21
questioned as to the support for his interpretation, City Manager Hill responded that

it was common knowledge. RR.II:48. If “men of common intelligence must

necessarily guess at its meaning and differ as to its application” then the ordinance

is unconstitutional. City of Mesquite, 559 S.W.2d at 94 (quoting Baggett, 377 U.S.

at 373). This is exactly what City Manager Hill admitted to when he later testified

that Table No. 4 is written ambiguous on purpose. RR.II:137.

      Not only is the phrase “convenience store” in Shavano’s Table No. 4

ambiguous, it was drafted to be ambiguous “on purpose” for Shavano’s benefit.

RR.II:136, 137. Far from a city urging that it will not construe an ordinance in an

unconstitutional manner, Shavano asserts that it intentionally drafted a vague statute

to provide Shavano with the discretion to apply the ordinance at its whim. RR.II:125,

130, 131, 136, 137. When a city uses an ambiguous phrase in an economic ordinance,

it “invites arbitrary and discriminatory application” and is “unconstitutionally vague

. . . regardless of who is making that determination.” Lindig v. City of Johnson City,

No. 03-11-00660-CV, 2012 WL 5834855, at *5 (Tex. App.—Austin Nov. 14, 2012,

no pet.) (mem. op.). Since Ard Mor challenges Shavano’s Table No. 4 as being void

for vagueness, Ard Mor challenges Shavano’s ordinances as being invalid. Under

section 37.006(b) of the Texas Civil Practice & Remedies Code, Ard Mor has

standing and has obtained waiver of Shavano’s governmental immunity.

                                         22
V.    Shavano’s Development Agreement and Annexation Ordinance Are Void
      Contract Zoning Because They Provide Lockhill a Contractual Right to
      Develop the Disputed Property in a Manner Inconsistent with Shavano’s
      Current Ordinances.

      The majority of Shavano’s appeal and briefing is directed at the issue of

whether or not Ard Mor had standing to challenge the annexation ordinance and the

Development Agreement. For a private party to have standing to challenge a city’s

annexation, the party must (i) allege that the annexation is void, rather than voidable,

and (ii) allege that the party suffers a special or peculiar burden as a result of the

annexation. City of Port Isabel v. Pinnell, 161 S.W.3d 233, 238 (Tex. App.—Corpus

Christi 2005, no pet.). For a private party to have standing to challenge a city’s

development agreement under the DJA, the party “must show a particularized, legally

protected interest that is actually or imminently affected by the alleged harm.” Save

Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 882 (Tex.

App.—Austin 2010, pet. denied). When reviewing a plea to the jurisdiction, an

appellate court’s review concerns the nature of the challenge to annexation, not

whether that challenge has merit. Id. In determining the nature of the challenge, the

court must take the property owners’ allegations as true and construe them in their

favor. City of San Antonio v. Summerglen Prop. Owners Ass’n Inc., 185 S.W.3d 74,

83 (Tex. App.—San Antonio 2005, pet. denied).



                                          23
      A.     An allegation that an annexation ordinance constitutes contract
             zoning is an allegation that the annexation ordinance is void.

      A private party can challenge an annexation ordinance when it alleges that an

“annexation is wholly void.” Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434,

436 (Tex. 1991). An annexation is wholly void when the annexation is outside of the

city’s legal authority to annex. See City of San Antonio, 185 S.W.3d at 83. Contrary

to Shavano’s characterization of law, the fact that an annexation does not exceed legal

authority in one of the four manners cited by Alexander does not preclude the

possibility that the annexation exceeds legal authority in another manner. See Cokins

v. City of Lakeway, No. 03-12-00083-CV, 2013 WL 4007522, at *1 (Tex.

App.—Austin July 25, 2013, no pet.) (“The City does not dispute that if it failed to

annex the NBHR Area within 90 days of initiating annexation procedures then the

annexation is void.”).

      Ard Mor challenged the annexation ordinance as being wholly void because

it was the result of illegal contract zoning. Not one of Shavano’s zoning districts

allow for the construction or operation of a gas station. CR.II:13-21. Shavano’s City

Council Agenda Form clearly noted that Lockhill’s “development concept included

a ‘C’ Store with gas pumps.” CR.II:25. Furthermore, Shavano describes “[t]he




                                          24
Development of the Property as . . . (i) a convenience store with gasoline sales . . .”

CR.II:38.

      Shavano attempted to contract around the conflict between its zoning

ordinances and development plans in section 4.06 of the Development Agreement.

That section states that “[t]he proposed zoning for the Property shall be such zoning

designation that will allow for the development of the Property in accordance with

the Terms of this Agreement.” CR.II:39 (emphasis added). Yet, no such zoning

designation currently exists. Then, as if to say, “regardless of its contents, this

contract is not illegal” the Development Agreement provides that “the City Council

may not contractually obligate itself to approve a future zoning designation.”

CR.II:39. However, in direct violation of the prior promise of legality, the

Development Agreement continues:

      In the event City Council action places the Property in a zoning district
      or classification that prohibits the uses proposed by this Agreement, the
      Parties agree that the Owner at its election may 1) terminate this
      agreement or 2) pursuant to Texas Local Government Code Section
      43.002 and to the extent reasonably necessary, retain the right to
      develop and use the Property for the purposes authorized under this
      Agreement.

CR.II:39. However, Nooner testified he had not yet undertaken any actions regarding

development that would invoke the application of Section 43.002. RR.III:34-36.

Specifically, Nooner testified that he had not received any permits from any

                                          25
governmental authorities for building improvements on the disputed property.

RR.III:34-36.

      Therefore, regardless of its internal assertions of legality, it is clear that the

Development Agreement contractually obligates Shavano to (i) provide Lockhill with

a zoning district that allows for a gas station, even though no such zoning district

currently exists; and (ii) allow Lockhill to develop the property for purposes

prohibited by Shavano’s current zoning ordinances. As such, Shavano’s annexation

ordinance and Development Agreement constitute unlawful contract zoning. See 2800

La Frontera No. 1A Ltd. v. City of Round Rock, No. 03-08-00790-CV, 2010 WL

143418, at *2 (Tex. App.—Austin Jan. 12, 2010, no pet.) (mem. op.) (“Zoning

decisions must occur via the legislative process and not by ‘special arrangement’ with

a property owner.”). Indeed, Nooner, a party to the contract, testified that the

agreement gives him an absolute right to build a gas station on the property.

RR.III:32, 35. Since contract zoning is beyond Shavano’s legal authority to annex,

the annexation is wholly void and may be challenged by a private party. See Super

Wash, Inc. v. City of White Settlement, 131 S.W.3d 249, 257 (Tex. App.—Fort Worth

2004, pet. granted) (“[C]ontract zoning is invalid because the city surrenders its

authority to determine proper land use and bypasses the entire legislative process.”),

rev’d in part, 198 S.W.3d 770 (reversed on other grounds).

                                          26
      B.     The trial court’s finding that Ard Mor’s operations will be
             interrupted and the property value will be negatively affected
             establishes that Ard Mor is suffering a particularized injury as a
             result of Shavano’s actions.

      Shavano alleges that because Ard Mor is not a party to the Development

Agreement, it has not suffered a particularized injury, and, therefore, cannot challenge

the agreement. Shavano illustrates this position through a simple chart found on page

4 of Appellant’s Brief that depicts a straight line running exclusively between

Lockhill Ventures and the City of Shavano Park. Using Shavano’s simplified logic,

a city could use a private agreement to circumvent any public ordinance. Indeed, that

is precisely what Shavano is attempting to do in this case — hold some landowners

to an ordinance, while excusing others when it is financially beneficial to Shavano.

      Shavano’s actions are not occurring in a vacuum. As the trial court found, the

actions of Shavano (if left unchecked) will have significant, damaging, and

irreparable effects on adjacent landowners such as Ard Mor. Indeed, a more accurate

chart reflecting the relationship of the parties is demonstrated as follows:




                                          27
As indicated in the chart, the Development Agreement and annexation are in direct

conflict with both the Declaration of Protective Covenants and Shavano’s own zoning

ordinances. Shavano cannot, by agreement with Lockhill, insulate itself from

responsibility for the damage it is causing to Ard Mor.

      Although Shavano may desire that its agreements lay beyond examination by

affected property owners, such is not the law in the State of Texas. Real property

owners adjacent, or in close proximity, to land being developed have standing to

complain of a city’s actions if the landowner demonstrates a particularized risk of

injury. City of Laredo v. Rio Grande H20 Guardian, No. 04-10-00872-CV, 2011 WL
                                        28
3122205, *5 (Tex. App.—San Antonio July 27, 2011, no pet.) (landowners who

“own[ed] real property within 200 feet of the re-zoned areas” had standing).

         Shavano cites to Save Our Springs to argue that Ard Mor lacks jurisdiction

because it “has no injury traceable to the Development Agreement.” See Save Our

Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (Tex.

App.—Austin 2010, pet. denied). However, Save Our Springs does not support

Shavano’s argument. In Save Our Springs, the court recognized that a landowner has

standing to challenge a city’s land regulation if the landowner “sufficiently

distinguishes his interest from that of the public at large.” Save Our Springs, 304

S.W.3d at 879 (quoting Texas Rivers Protection Ass’n v. Texas Natural Res.

Conservation Comm’n, 910 S.W.2d 147, 151 (Tex. App.—Austin 1995, writ

denied)). Indeed, this Court has previously rejected a city’s reliance on Save Our

Springs when the challenger demonstrated that “[u]nlike the individual members in

Save Our Springs, the allegations in this case are that individual members own

property in the affected areas, giving them a ‘concrete and particularized’ risk of

injury different from that of the general public.” City of Laredo, 2011 WL 3122205

at *5.

         Ard Mor has concrete and particularized risks of injury different from that of

the general public, as demonstrated by the trial court’s finding that Lockhill’s
                                           29
development “will be disruptive to the operations of the Luv n Care Development

Center, and [Ard Mor’s] property value may be negatively effected.” CR.II:143. Like

the landowners in both Texas Rivers and City of Laredo, Ard Mor’s daycare is

adjacent to property that is the subject of Shavano’s Development Agreement and

annexation. Furthermore, the Development Agreement and annexation directly affect

the covenants that burden the disputed property and benefit Ard Mor. Lockhill’s

property interest in the disputed property is subject to the covenants, which existed

prior to Lockhill’s property interest and run with the land. CR.II:67-79.

      C.     Challenges to annexation are not limited to quo warranto
             proceedings.

      Shavano argues that Ard Mor cannot challenge the annexation agreement

because an annexation ordinance can only be challenged through a quo warranto

proceeding. However, the City does not argue that an ordinance and an agreement are

the same thing. Indeed, they are not. Although both the Development Agreement and

annexation ordinance operate together to effectuate the annexation, they are not

interchangeable. Shavano has not cited to any case that holds that a development

agreement can only be challenged through a quo warranto proceeding. Nor has

Shavano cited to any case that holds that a plaintiff must be a party to an annexation

ordinance to have standing to challenge its effects.


                                         30
      However, even if the Development Agreement is to be treated the same as the

annexation ordinance, Shavano’s own authority confirms that a quo warranto

proceeding is not the only way to challenge an annexation. Alexander Oil Co. v. City

of Seguin, 825 S.W.2d 434, 436 (Tex. 1991) (holding that a quo warranto proceeding

is not necessary to challenge an annexation when the “annexation is wholly void”).

If an annexation is “void because the city has no authority to annex, a collateral attack

by private parties is permissible” and the challenge does not need to be brought under

a quo warranto proceeding. City of Port Isabel v. Pinnell, 161 S.W.3d 233, 238 (Tex.

App.—Corpus Christi 2005, no pet.). Because Ard Mor is challenging the validity of

both the annexation ordinance and the Development Agreement, Shavano’s authority

is inapplicable to the facts of this case.

VI.   The Ripeness of the Matter Before the Court Was Established When the
      Court Found That Ard Mor Was Entitled to Injunctive Relief.

      Shavano challenges Ard Mor’s standing to seek declaratory relief regarding the

Development Agreement and to bring an equal protection claim based on the

assertion that Shavano may ultimately decide not to do those acts that are currently

being stayed due to the grant of injunctive relief. Appellant’s Brief at 10, 13.

Restated, Shavano has taken the position that to be ripe, the harm that is at the center

of a controversy must be a past harm or a harm that has already occurred, and not a


                                             31
harm that is real and threatened. However, ripeness only requires that “an injury has

occurred or is likely to occur, rather than being contingent or remote.” Robinson v.

Parker, 353 S.W.3d 753, 755 (Tex. 2011) (quoting Waco Indep. Sch. Dist. v. Gibson,

22 S.W.3d 849, 851-52 (Tex. 2000)). By definition, ripeness does not require a

showing of a past harm. See City of Laredo v. Rio Grande H20 Guardian, No.

04-10-00827-CV, 2011 WL 3122205, *4 (Tex. App.—San Antonio July 27, 2011,

no pet.) (“Although we agree that from the record it does not appear that

manufacturing has begun or that any of the risks asserted by Rio Grande have come

to fruition, the record does establish the City’s intention to allow light manufacturing

in the rezoned areas (or else, why rezone at all?).”).

      The trial court has already determined that the development is planned to occur,

“as soon as possible and before the Court can render judgment in this cause.”

CR.II:141. The court also found that, in the absence of court intervention, Ard Mor

will be “negatively effected.” CR.II:143. This finding of an imminent harm

establishes ripeness.

      Shavano’s legal support for this ripeness challenge is an inapposite case

dealing with mootness. In City of Richardson, the city amended its charter during the

course of litigation, thereby making the plaintiff’s declaratory judgment action moot.

See City of Richardson v. Gordon, 316 S.W.3d 758, 762 (Tex. App.—Dallas 2010,
                                          32
no pet.) Shavano’s argument that the matter is not justiciable because the zoning

ordinances have not been passed yet is an issue of ripeness and not mootness.

      Furthermore, Shavano’s ripeness argument mischaracterizes Ard Mor’s claims

as dependent on future zoning actions by Shavano. The injury to Ard Mor and the

illegality of the Development Agreement and the annexation do not depend on which

zoning district Shavano assigns to the disputed property. Rather, the injury to Ard

Mor has already occurred because section 4.06 obligates Shavano to allow Lockhill

to develop a gas station no matter which zoning district Shavano assigns to the

disputed property. CR.II:39.

      As City Manager Hill makes clear, the Development Agreement gives Lockhill

the authority to develop a gas station regardless of the zoning district Shavano assigns

to the disputed property. When asked about permanent zoning for the disputed

property, Hill testified that Shavano could wait to decide which zoning district to

assign the disputed property until after the gas station is built. RR.II:17-18. Sean

Nooner corroborated this interpretation of the Development Agreement when he

testified regarding the need for zoning that, “I do not believe it has to happen prior

to construction.” RR.II:34. If Lockhill can build the gas station before Shavano

assigns the disputed property a zoning district, then Ard Mor’s injury is not

dependent on any future zoning actions by Shavano. As such, Ard Mor’s harm does
                                          33
not depend on “contingent or hypothetical facts, or upon events that have not yet

come to pass.” Robinson, 353 S.W.3d at 755-56 (quoting Waco Indep. Sch. Dist. v.

Gibson, 22 S.W.3d 849, 852 (Tex. 2000)). Therefore, the matter before the Court is

ripe and justiciable.

VII. If Shavano’s Plea Has Merit, this Matter Should Be Remanded.

      As part of its plea, Shavano challenges both Ard Mor’s pleading and the proof

offered by Ard Mor to establish jurisdiction. See, e.g., Appellant’s Brief at 13 (“no

pleading or proof demonstrates a classification or distinction . . . evidence

demonstrates, no zoning action occurred . . . proper pleading of ultra vires requires

a suit against the City’s officials in their official capacity”); Appellant’s Brief at 15

(“the claim requires Appellees to plead facts that actions were prohibited”). Ard Mor

denies that Shavano’s arguments have merit. However, in the event that this Court

determines that Shavano’s objections to Ard Mor’s pleadings have merit, or that Ard

Mor has failed to present sufficient facts to establish jurisdiction, the proper remedy

is that of remand, not reversal.

      When a plaintiff fails to plead facts that establish jurisdiction, but the petition

does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one

of pleading sufficiency and the plaintiff should be afforded the opportunity to amend.

Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007) (holding that

                                           34
a plaintiff facing a plea to the jurisdiction in an appellate court deserves the

opportunity to amend its pleadings on remand if its pleadings can be cured); County

of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Scott v. Alphonso Crutch

LSC Charter School, Inc., 392 S.W.3d 165, 174 (Tex. App.—Austin 2010, pet.

denied) (remanding plea to jurisdiction of ultra vires claims for amendment of

pleadings). Likewise, to the extent that jurisdiction turns on facts, remand is the

appropriate remedy where evidence is absent from the record. Bland Indep. Sch. Dist.

v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000) (acknowledging that if the plaintiff’s

standing depends on the resolution of fact issues, the plaintiff “should be given an

opportunity on remand to have a full evidentiary hearing”); Dallas County, Tex. v.

Logan, 420 S.W.3d 412, 431 (Tex. App.—Dallas 2014), reh’g overruled (Feb. 12,

2014), review denied (Oct. 3, 2014) (holding that when jurisdictional issues were not

addressed at the trial court level, the plaintiff needs an opportunity to develop the

record); City of El Paso v. Heinrich, 284 S.W.3d 366, 378-80 (Tex. 2009) (remanding

claim for development of jurisdictional facts).

      In this case, the only matter set for hearing was the temporary injunction.

RR.III:128-29. Although the injunction hearing lasted for several days, the only

matter that the trial court allowed before it was the injunction. RR.III:128-29. Even

after Shavano requested that its plea to the jurisdiction be heard, the trial court
                                         35
declined, advising that the only thing before it was the temporary injunction.

RR.III:128-29. It was not until the last day of the hearing, after the close of evidence,

that the trial court agreed to hear Shavano’s plea to the jurisdiction. RR.IV:25.

Therefore, the record on which Shavano relies was developed for the purpose of the

temporary injunction, not for examining the jurisdiction of the trial court. Under these

particular circumstances, Ard Mor is entitled to establish the Court’s jurisdiction over

Shavano in the event that jurisdiction does not appear from the face of the pleadings.

                          CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellees pray that this Court

affirm the trial court’s denial of Appellant’s Plea to the Jurisdiction and First

Supplemental Plea to the Jurisdiction. In the alternative, Appellees pray that this

Court remand this matter to the trial court to provide Appellees the opportunity to

cure any alleged defects in pleadings or develop the facts necessary to the proof of

jurisdiction. Appellees request any further relief, in law and equity, to which

Appellees may justly be entitled.




                                           36
                             Respectfully submitted,

                             COKINOS, BOSIEN & YOUNG



                             By:    /s/ Karen L. Landinger
                                    KAREN L. LANDINGER
                                    State Bar No. 00787873
                                    klandinger@cbylaw.com
                                    JAY K. FARWELL
                                    State Bar No. 00784038
                                    jfarwell@cbylaw.com
                                    10999 West IH-10, Suite 800
                                    San Antonio, Texas 78230
                                    (210) 293-8700 (Office)
                                    (210) 293-8733 (Fax)

                                    ATTORNEYS FOR APPELLEES,
                                    ARD MOR, INC., TEXAS ARDMOR
                                    PROPERTIES, LP AND TEXAS
                                    ARDMOR MANAGEMENT, LLC



Co-Counsel
David L. Earl
State Bar No. 06343030
dearl@earl-law.com
EARL & ASSOCIATES, P.C.
Pyramid Building
601 NW Loop 410, Suite 390
San Antonio, Texas 78216
(210) 222-1500 (Office)
(210) 222-9100 (Fax)


                               37
                         CERTIFICATE OF SERVICE

       I certify that on the 9th day of February, 2015, a true and correct copy of the
foregoing BRIEF OF APPELLEES was served on the following counsel of record by
electronic service through MyFileRunner.com; and the BRIEF OF APPELLEES was
duly filed with the Clerk of the Fourth Court of Appeals through MyFileRunner.com,
together with this proof of service:

      Patrick C. Bernal
      Elizabeth M. Provencio
      DENTON NAVARRO ROCHA BERNAL HYDE & ZECH
      A Professional Corporation
      2517 N. Main Avenue
      San Antonio, Texas 78212
      (210) 227-3243 (Office)
      (210) 225-4481 (Fax)
      patrick.bernal@rampage-sa.com
      elizabeth.provencio@rampage-sa.com

      Lance H. “Luke” Beshara
      Randall A. Pulman
      Brandon L. Grubbs
      PULMAN, CAPPUCCIO, PULLEN,
        BENSON & JONES, LLP
      2161 N.W. Military Highway, Suite 400
      San Antonio, Texas 78213
      (210) 222-9494 (Office)
      (210) 892-1610 (Fax)
      lbeshara@pulmanlaw.com
      rpulman@pulmanlaw.com
      bgrubbs@pulmanlaw.com


                                              /s/ Karen L. Landinger
                                              KAREN L. LANDINGER
                                              JAY K. FARWELL

                                         38
                      CERTIFICATE OF COMPLIANCE

     Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned certifies this Brief
complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2)(B).

1.    Exclusive of the exempted portions in Tex. R. App. P. 9.4(i)(2)(B), the Brief
      contains 8,084 words.

2.    The Brief has been prepared in proportionally spaced typeface using
      WordPerfect Version X5.

3.    If the Court so requests, the undersigned will provide an electronic version of
      the Brief and/or a copy of the word or line printout.

4.    The undersigned understands a material misrepresentation in completing this
      Certificate, or circumvention of the typevolume limits in Tex. R. App. P. 9.4,
      may result in the Court’s striking the Brief and imposing sanctions against the
      person signing the Brief.


                                              /s/ Karen L. Landinger
                                              KAREN L. LANDINGER
                                              JAY K. FARWELL




                                         39
