                                                                                 ACCEPTED
                                                                             01-15-00148-CV
                                                                  FIRST COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                        7/23/2015 3:09:14 PM
                                                                       CHRISTOPHER PRINE
                                                                                      CLERK

                 NO. 01-15-00148-CV
       ______________________________________
             IN THE COURT OF APPEALS              FILED IN
                                           1st COURT OF APPEALS
              FIRST JUDICIAL DISTRICT          HOUSTON, TEXAS
                  HOUSTON, TEXAS           7/23/2015 3:09:14 PM
                                           CHRISTOPHER A. PRINE
       ______________________________________      Clerk

              CITY OF NASSAU BAY, TEXAS,
                           Appellant,

                             v.

     H. RAY BARRETT and 1438 KINGSTREE LANE
                             Appellees.
       ______________________________________
      On Appeal from the 152nd Judicial District Court
                  of Harris County, Texas
               Trial Court No. 2013-10661
       ______________________________________

APPELLANT CITY OF NASSAU BAY TEXAS’ REPLY BRIEF
      ______________________________________

                          CHAMBERLAIN, HRDLICKA, WHITE,
                                WILLIAMS & AUGHTRY

                                  William S. Helfand
                                  State Bar No. 09388250
                                  Attorney-in-Charge
                                  Charles T. Jeremiah
                                  State Bar No. 00784338
                                  1200 Smith Street, Suite 1400
                                  Houston, Texas 77002
                                  Telephone: (713) 654-9630
                                  Telecopier: (713) 658-2553

                                  ATTORNEYS FOR APPELLANT
                                  CITY OF NASSAU BAY, TEXAS
                                        TABLE OF CONTENTS


TABLE OF CONTENTS ........................................................................................... i

TABLE OF AUTHORITIES .................................................................................... ii

I.      Overview of Appellees’ Reply ........................................................................1
II.     Dispositive Material Facts Are Undisputed ....................................................2
III.    Appellees’ Due Process Allegation is Specious ..............................................3

IV.     Straub Statement is not Competent Evidence .................................................6
V.      Building Inspector Not Final Policy Maker ....................................................8

VI.     Conclusion .....................................................................................................11

CERTIFICATE OF SERVICE ..................................................................................v




                                                           i
                                TABLE OF AUTHORITIES
                                                                                                     Page(s)
Cases
Bass v. Parkwood Hosp.,
  180 F.3d 234 (5th Cir. 1999) ................................................................ 8
Bennett v. City of Slidell,
  728 F.2d 762 (5th Cir. 1984) ................................................................ 9
Campbell v. City of San Antonio,
  43 F.3d 973 (5th Cir. 1995) ................................................................ 10
City of Houston v. Aspenwood Apartment Corp.,
   1999 WL 681939 (Tex.App. – Houston [1st Dist.] 1999,
   pet. den.) .............................................................................................. 10
City of Houston v. Leach,
   819 S.W.2d 185 (Tex.App. – Houston [14th Dist.] 1991 no
   pet.) ..................................................................................................... 10
City of Lubbock v. Corbin,
   942 S.W.2d 14 (Tex.App. – Amarillo 1996, pet. den.) ........................ 9
City of Paris v. Abbott,
   360 S.W.3d 567 (Tex.App. – Texarkana 2011, pet. denied)................ 5
Cox v. City of Dallas,
  2004 WL 2108253 (N.D. Tex. 2004) (unpublished) .......................... 10
Democracy Coalition v. City of Austin,
  141 S.W.3d 282 (Tex.App. – Austin 2004, no pet.)............................. 8
DePree v. Sanders,
  588 F.3d 282 (5th Cir. 2009) ................................................................ 4



                                                       ii
Dodge v. Durdin,
  187 S.W.3d 523 (Tex.App. – Houston [1st Dist.] 2005, no
  pet.) ....................................................................................................... 7
K.D. Pool and Ven-Ken, Inc. v. Johnson County, Texas,
  2002 WL 245973 (N.D Tex. 2002) (unpublished) ............................... 9
Lee v. Whispering Oaks Home Owners’ Ass’n,
  797 F.Supp.2d 740 (W.D. Tex. 2011) .................................................. 6
Merritt v. Harris County,
  775 S.W.2d 17 (Tex.App. – Houston [14th Dist.] 1989,
  pet. den.) ................................................................................................ 8
Statutes
City Ordinance........................................................................................... 1
City’s Zoning Ordinance ................................................................. 4, 8, 10
Policymakers act ........................................................................................ 9
Texas Local Government Code § 211....................................................... 6
Zoning Ordinance ...................................................................................... 3




                                                       iii
      Appellant, City of Nassau Bay, Texas (“the City”) replies to Appellees’

Response Brief.

I.    Overview of Appellees’ Reply

      In their Response, Appellees urge a myopic and piecemeal analysis which

distorts both the factual background and the applicable law in this case. As set

forth in the City’s opening brief, when Appellee refused to remove his

unquestionably noncompliant structure, the City filed this action. Appellee filed a

counterclaim against the City alleging, solely, a deprivation of his right to due

process. In the Record Review, however, Appellee received far more process than

the Constitution requires.

      Appellees could have, but decided not to, appeal the decision of the Zoning

Board of Adjustment, that uphold the Building Official’s determination and denied

Appellee a variance.      Nevertheless, Appellees continue to claim through this

impermissible collateral attack that the building official simply “got it wrong” in

finding that Appellees’ structure was not permitted by City Ordinance, originally

or reconstructed.      Appellees’ allegations, even if true, do not present a

constitutional claim and, as discussed in the City’s opening brief, because

Appellees did not file the statutorily required appeal, the trial court simply had no

jurisdiction to review the decision, even if it was illegal.




                                           1
         Instead of analyzing whether the building official and/or Zoning Board of

Adjustment made the correct decision, the only issues properly before the Trial

Court are whether (1) Appellee was deprived of his right to due process; and (2)

whether an unconstitutional City policy was the moving force behind such a

deprivation.

         In their response brief, Appellees urge this Court to, in effect, mandate that

the City of Nassau Bay allow what is now, and always has been, an unquestionably

illegal nonconforming condition that violates, in addition to Appellant’s code,

health and safety provisions of virtually every residential building code in this

state.    In other words, Appellees ask the Court to force the City to accept

Appellees’ admitted violation of the Code and except him from an otherwise

appropriate and fully constitutional restriction.

II.      Dispositive Material Facts Are Undisputed

         It is undisputed that, long prior to Appellee Barrett’s construction of his bath

house, the City enacted a zoning ordinance which contained a minimum seven foot

side setback [C.R. 353]. For accessory structures, the setback is three feet. [C.R.

339]. It is undisputed Appellee Barrett’s structure has zero setback. 1 These setback

requirements were in effect before Appellees’ structure was built and have been

ever since. In 1992 Appellee Barrett fixed his structure to the fence running along
1
         Hence, it makes no difference whether the structure was an “accessory.” It undisputedly
         violated the City’s setback requirement either way.


                                                2
the property line, bringing his residential structure in hazardous proximity to his

neighbor’s and in undisputed violation of both setback requirements.2 To be sure,

Appellees next door neighbor has firmly objected to the attachment of the structure

to his fence. [C.R. 98-99].

       Appellee Barrett’s structure was not merely a nonconforming structure, it

was an illegal nonconforming structure, and illegal at the time it was constructed;

it wasn’t “grandfathered” in. Without a variance, which Appellee Barrett concedes

he never obtained, Barrett has no right to maintain a structure which violates the

City’s building Code, even if it was one hundred percent intact. The Building

Inspector had no power to grant variances from the Zoning Ordinance, by the

terms of the Ordinance or otherwise. Notably, Barrett does not claim the setback

requirement which his structure undisputedly violates is unconstitutional, only that

the City should not be permitted to enforce it against him.

III.   Appellees’ Due Process Allegation is Specious

       In their attempt to persuade the Court, Appellees mislead the Court on a

simple issue of law. A constitutional claim cannot rest on a Building Official’s

ability to articulate the nuances of his job, or even his understanding. To support

their position, Appellees attack Mr. Boles or attempt to make him look


2
       Notably, the enclosure occurred nearly ten years after Hurricane Alicia, demonstrating
       the misleading nature of Appellees’ argument that the Hurricane “affected the City’s
       permitting process.”

                                             3
incompetent because he didn’t answer hypothetical questions about the building

code to their satisfaction or take his comments out of context. But undoubtedly,

these questions are simply not material. The City’s Zoning Ordinance is in the

record. [C.R. 149-425]. Mr. Boles’ articulation of its requirements or procedures

does not supersede the black letter of the document and nothing changes

Appellees’ inarguable noncompliance.

      As discussed in the City’s opening brief, Appellee Barrett had no property

right or interest in a nonconforming structure; no one does. Appellee fails to

demonstrate any such interest as would be critical to the assertion of a due process

claim. See, DePree v. Sanders, 588 F.3d 282, 290 (5th Cir. 2009). Accordingly,

Appellees’ due process claim fails at the outset.

      Nor does the contention that Boles changed Appellees request for an appeal

to the Zoning Board of Adjustment. Soon after Larry Boles and Mary Chambers

examined the structure, and before Appellee Barrett had even returned from his

lake house, Boles and Chambers discovered Appellee had never obtained a

variance from the City and Appellee admittedly could not produce one. When

Chambers and Boles realized Appellee was required to have a variance for his

clearly illegal nonconforming structure, Boles assisted Appellee by broadening the

scope of Barrett’s request for review. Importantly, this change to the form in no

way limited Appellees’ ability to present his position to the Zoning Board of


                                          4
Adjustment. But, even if, arguendo, it did those were issues Barrett was required

to raise to the Board and, if not resolved to his satisfaction, on approval in

accordance with the statute.

      Moreover, it remains undisputed that Appellee Barrett had notice of the

hearing, was heard twice, offered all the documents, testimony and argument he

wished and was fully heard.       Appellee Barrett admitted unequivocally that,

irrespective of what Boles wrote on the form, in the first hearing Barrett challenged

both the Building Official’s determination (the stop work order), and he sought a

variance and that the Zoning Board considered and denied both requests. [C.R.

426-27; see also, C.R. 91-93, 113-114]. Damning to his argument are both the law

and Barrett’s knowledge that his only remedy to challenge the Board’s decision

was to timely file suit, which he admittedly failed to do. [C.R. 426-27].

      Appellee Barrett was given two hearings and he was permitted to argue the

stop work order was invalid, that he didn’t need a variance, and that he should be

granted a variance.    Having been permitted the opportunity to make, and have

actually made such points and has them heard and considered, any due process

requirement was clearly satisfied. City of Paris v. Abbott, 360 S.W.3d 567, 582

(Tex.App. – Texarkana 2011, pet. denied). After this, thorough hearing, Appellee

Barrett could have, but chose not to, appeal the City’s discussion to uphold the stop

work order to a District Court within ten days under the mandatory statutory


                                         5
mechanism for resolving his dispute. Appellee Barrett could have argued the stop

work order was invalid and that a variance should have been granted.           He

admittedly chose not to address any of these issues further, Barrett accepted the

decision, until the City chose to enforce it. [C.R. 137, 426-27].

      Equally, there is no deprivation of substantive due process. Such claims are

reviewed under a rational basis analysis. Under such an analysis “[t]he Court may

ask whether there was a conceivable factual basis for the specific decision made

and nothing more.” Lee v. Whispering Oaks Home Owners’ Ass’n, 797 F.Supp.2d

740, 750 (W.D. Tex. 2011). Undisputedly, the evidence is this case demonstrates a

building official received a complaint, found no permit for the job, and issued a

stop work order because no variance had ever been issued for a structure in clear

violation of City Code. These circumstances inescapably demonstrate a rational

basis for City’s enforcement of its unquestionably constitutional zoning

requirements. Importantly, however, if Appellees disagree with the City, they

were statutorily required to address that under the mechanism provided under

Texas Local Government Code § 211.

IV.   Straub Statement is not Competent Evidence

      In light, particularly, damning controlling statutes and jurisprudence

Appellees’ reliance on the purported statement of Andy Staub is both irrelevant

and unavailing. First and foremost, Andy Straub’s statement doesn’t bear on any


                                          6
material issue before the Court: whether Appellee was deprived of due process or

whether such a deprivation is attributable to the City. However, Straub’s statement

is plainly and undisputedly incompetent information.            Remarkably, while

conceding the Straub statement is neither sworn nor testimony, Appellees

nonetheless rely heavily, though misguided, on this incompetent statement in their

Response. Indeed, in light of Appellees’ acknowledgement Straub’s statement is

not admissible, Appellees’ reliance would surprising except when the Court

observes that Appellees have absolutely no competent evidence to support their

claims. The City timely and firmly objected to Straub’s statement being offered as

summary judgment evidence. [C.R. 619, 624]. Regardless, objections to the

substance of this document are not waived on appeal. See, Dodge v. Durdin, 187

S.W.3d 523, 532 (Tex.App. – Houston [1st Dist.] 2005, no pet.).

      Because Appellees now attempt to exploit the absence of a written ruling on

the City’s admittedly proper objection, the City moves this Court separately and

contemporaneously, in the interest of justice, to permit leave supplement the record

with the transcript of the hearing on the plea to the jurisdiction where the Judge

Schaffer’s implicit, if not express ruling – finding that the Straub statement is not

competent admissible evidence, is clear.

      Indeed, the statement itself contains no assertion that it is sworn, contains

hearsay and conclusory assertions such as the obviously false assertion that


                                           7
Appellee’s structure “complied with all codes and ordinances at the time” which is

indeed, an objectionable conclusion of law.

V.    Building Inspector Not Final Policy Maker

      Appellees also bore the burden of demonstrating a City policy was the

moving force behind the deprivation, here their contention that the building

inspector was the final policymaking authority. See, e.g., Bass v. Parkwood Hosp.,

180 F.3d 234, 244 (5th Cir. 1999). 3 “The identification of policymaking officials is

a question of state law which may include valid local ordinances and regulations.

It is not a question of federal law and it is not a question of fact.” Merritt v. Harris

County, 775 S.W.2d 17, 24 (Tex.App. – Houston [14th Dist.] 1989, pet. den.)

(citations omitted).    The citizens of Nassau Bay have not empowered their

Building Inspector to formulate policy on behalf of the City. In fact, he is not even

the final decision maker.      The City’s Zoning Ordinance embodies the City’s

policies on zoning, the building official’s duties, and permitting. “The authority to

make municipal policy is the authority to make final policy without any constraints

on the official’s discretionary decisions.” Id. Although the Building Inspector

makes decisions, they are not final, nor do they amount to policymaking.



3
      “The ‘official policy’ requirement was intended to distinguish acts of the municipality
      from acts of employees of the municipality, and thereby make clear that municipal
      liability is limited to action for which the municipality is actually responsible.”
      Democracy Coalition v. City of Austin, 141 S.W.3d 282, 289 (Tex.App. – Austin 2004,
      no pet.) (emphasis in original) (citation omitted).

                                             8
      For attribution, “[l]iability must rest on official policy, meaning the city

government’s policy and not the policy of an individual official.” Bennett v. City

of Slidell, 728 F.2d 762, 769 (5th Cir. 1984). Of course, policymaking authority “is

more than discretion and it is far more than the final say so…”           Id.   “City

policymakers not only govern conduct; they decide the goals for a particular city

function and devise the means of achieving those goals. Policymakers act in place

of the governing body in the areas of their responsibility.” Id.

      In Bennett, as in this case, the building inspector’s job was to execute or

administer the city policy, established by the city council in its building code. Id,

at 769-770. His decisions were appealable to the board of zoning adjustments.

Although his decisions were discretionary and ministerial, this didn’t amount to

policymaking authority within the meaning of the law. Accordingly, the Fifth

Circuit Court of Appeals unequivocally held that the building inspector was not a

policymaker whose acts could subject the City to liability. Indeed, there appears to

be no reported case where the either the Fifth Circuit Court of Appeals or any

Texas Court has ever held that a building inspector was a final policymaker for

purposes of attribution under the Monell analysis. See also, City of Lubbock v.

Corbin, 942 S.W.2d 14, 20 (Tex.App. – Amarillo 1996, pet. den.) (Building Code

Inspector, whose decisions were appealable to the Building Board of Appeals, was

not final policymaker); K.D. Pool and Ven-Ken, Inc. v. Johnson County, Texas,


                                          9
2002 WL 245973 at *5 (N.D Tex. 2002) (unpublished) (Director of County Public

Works Department as a matter of law was not a final policymaker for the county);

City of Houston v. Aspenwood Apartment Corp., 1999 WL 681939 at *9 (Tex.App.

– Houston [1st Dist.] 1999, pet. den.) (building official not final policymaker).

      Indeed, “[t]o infer the existence of a city policy from the isolated misconduct

of a single, low level officer and then to hold the city liable on the basis of that

policy would amount to permitting precisely the theory of strict respondeat

superior liability rejected in Monell.” City of Houston v. Leach, 819 S.W.2d 185,

200 (Tex.App. – Houston [14th Dist.] 1991 no pet.), citing, City of Oklahoma City

v. Tuttle, 471 U.S. 808, 831, 105 S.Ct. 2427, 2440 (1985). “[L]iability does not

attach merely because a city employed a tortfeasor.” Cox v. City of Dallas, 2004

WL 2108253 (N.D. Tex. 2004) (unpublished), citing, Monell at 694, and Campbell

v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995).

      Nowhere did the City vest the building official with the power to formulate

City policy. The City has enacted its zoning and permitting policies through an

Ordinance passed by the City Council. 4 Further, as authorized by the State of

Texas, the City of Nassau Bay has elected to form a Zoning Board of Adjustment

which can review and reverse the Building Official’s decisions. The City’s Zoning

Ordinance makes clear, the “Building official” is “charged with the administration


4
      Appellees did not complain of any action by the Nassau Bay City Council [C.R. 112].

                                            10
and the enforcement of the zoning ordinances and building code of the City of

Nassau Bay, Texas.” [C.R. 398].

      Indeed, Appellees own argument undermines his contention.            Appellees

throughout their brief claim that “Boles exceeded his authority,” and acted

“arbitrarily,” and was not “empowered to evaluate what constituted 50 percent of

the value.” [Response, p. 33]. He did not establish City policy, and according to

Plaintiff he did not even carry out City policy as set forth in the Ordinance. A

finding that the building inspector was a final policymaking authority of the City

would be contrary to the record and would flout the letter and spirit of Monell.

VI.   Conclusion

      Clearly, Appellees failed to establish a deprivation of their right to due

process. Even if they were deprived of due process, there is no basis for attribution

to the City of Nassau Bay, as there is no showing that City policy was the moving

force behind any such deprivation. Accordingly, City of Nassau Bay, Texas prays

that this Court reverse the trial court’s denial of its Plea to the Jurisdiction, and

render that the Appellee’s Counterclaim be dismissed for lack of subject matter

jurisdiction, and for general relief.




                                         11
                          Respectfully submitted,

                          /s/ William S. Helfand
                          William S. Helfand
                          Attorney-in-Charge
                          SBOT No. 09388250
                          bill.helfand@chamberlainlaw.com
                          Charles T. Jeremiah
                          SBOT No. 00784338
                          Charles.jeremiah@chamberlainlaw.com
                          ATTORNEYS FOR APPELLANT

OF COUNSEL:

CHAMBERLAIN, HRDLICKA, WHITE,
      WILLIAMS & AUGHTRY
1200 Smith Street, Suite 1400
Houston, Texas 77002-4401
(713) 654-9630
(713) 658-2553 (Fax)




                            iv
                        CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of Appellant’s Brief has been
served via CM/ECF System and/or by CD and certified mail, return receipt
requested, on this 23rd day of July 2015, to:

        Iain Gordon Simpson
        Simpson, P.C.
        1333 Heights Blvd, Ste 102
        Houston, Texas 77088
        Email: iain@simpsonpc.com

        Jeffrey N. Todd
        The Law Firm of Alton C. Todd
        312 S. Friendswood Drive
        Friendswood, Texas 77546
        Email: Jeff@actlaw.com


                                     /s/ William S. Helfand
1949618.2
130083.000001




                                        v
