
OPINION
No. 04-03-00512-CV
Fernando FERNANDEZ and wife, Deborah M. Fernandez, AEE Construction, LLC,
and Alamo Farmsteads-Babcock Road Neighborhood Association, Inc.,
Appellants
v.
City of SAN ANTONIO, San Antonio Planning Commission, William D. Jackson,
and Kitchener Land Development, Lt.,
Appellees
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-14925
Honorable Karen Pozza, Judge Presiding
Opinion by:	Paul W. Green, Justice
Sitting:	Catherine Stone, Justice
		Paul W. Green, Justice
		Sarah B. Duncan, Justice
Delivered and Filed:	December 29, 2004
MOTION TO DISMISS DENIED; AFFIRMED
	This appeal highlights the conflict between the desire of landowners to preserve the pastoral
quality of a suburban neighborhood and the press of modern development.  Appellants, the
neighborhood association and several landowners within the Alamo Farmsteads neighborhood of San
Antonio, brought suit against several developers and the City of San Antonio, seeking to enjoin
certain development within the Alamo Farmsteads neighborhood.  Alternatively, appellants sought
monetary damages for the decrease in property values they alleged would result from the planned
development within their neighborhood.  At issue was the number of houses planned per acre, and
whether the planned development violated the terms of the Alamo Farmsteads Neighborhood Plan
developed by the neighborhood residents and recognized by the City of San Antonio in 1994.  The
City and the developers sought summary judgment on numerous grounds.  The landowners also
sought summary judgment.  After several hearings, an intervening appeal to this court, and a
mandamus proceeding, five summary judgments were entered, ultimately resulting in a final judgment
in favor of the City and the developers. (1)  On appeal the landowners challenge the summary judgments
on numerous grounds.  We affirm the summary judgments in this memorandum opinion pursuant to
Tex. R. App. P. 47.4.
1.   Motion to Dismiss
	Initially we address the joint motion to dismiss this appeal filed by the City and the developers.
The motion alleges the matter is moot because all lots at issue in this case have been sold, homes have
been built on the lots, and the homes have been sold to homeowners who now occupy the homes.
Accordingly, the City and the developers contend the relief requested by appellants "can have no
practical effect on the outcome of this case" and the appeal should therefore be dismissed as moot.
We agree the injunctive relief requested by appellants, which would have ultimately precluded the
density of development that occurred, is now moot.  However, the landowners also sought damages
for the "diminution of their property values" caused by the development of the land in question.  This
claim for damages was not rendered moot by the actual development of the land.  We therefore deny
the joint motion to dismiss the appeal.
2.	The Alamo Farmsteads Neighborhood Plan
 In the 1980s the residents of  Alamo Farmsteads, in conjunction with the City of San Antonio
Planning Department, conferred to develop a plan for the development of their neighborhood.  The
result was the Alamo Farmsteads Neighborhood Plan, which expressed the desire of the
neighborhood residents to maintain a ratio of one to four houses per acre. The Plan was self-described
as providing "guidelines for the preservation of the quality of life and the harmonious growth" of the
neighborhood.  Additionally, the Plan made "the neighborhood's desires available in writing to City
decision makers who decide on policies and/or actions that could affect the neighborhood's future."
	
	By resolution dated December 22, 1994, the City of San Antonio recognized the
Neighborhood Plan as an addendum to the neighborhood planning component of the City's Master
Plan.  In 1998, a second resolution was passed by the City continuing recognition of all neighborhood
plans until "expressly repealed."  Appellants contend the Neighborhood Plan remains in effect and
is binding on the City because it has never been "expressly repealed."  We do not agree that the
Neighborhood Plan is still in effect.  The Neighborhood Plan specified that it was of limited duration:
	After recognition by the Planning Commission and the City Council of the City of San
Antonio, the Plan becomes an addendum to the Neighborhood Planning Process of
the Master Plan.  The Plan remains in effect for a period of no more than five years.
Clearly the Plan was intended to remain in effect for a maximum of five years.  The 1998 resolution
continuing recognition of the Plan by the City until "expressly repealed" could not breath life into the
Plan beyond the time period specified in the Plan itself.  There is no indication in the Plan or anywhere
else in the record that residents of the Alamo Farmsteads neighborhood or the members of the Alamo
Farmsteads Neighborhood Planning Team who drafted the Plan ever intended to grant the City the
right to alter the terms of the Plan.  By its own terms the Plan expired on December 22, 1999, five
years after it was first recognized by the San Antonio City Council.   Accordingly, the Neighborhood
Plan was not in effect in 2001 when the City approved the replat of the property in question, thereby
allowing the property to be more densely developed than contemplated by the Neighborhood Plan.
 The trial court's summary judgment in favor of the City and the developers can be sustained on this
ground alone.  See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995) (If the trial court
grants a motion for summary judgment without stating the grounds on which it relied, an appellate
court must affirm the summary judgment if any ground argued in the motion was sufficient.).
3.	The Advisory Nature of the Neighborhood Plan
	The summary judgment in favor of the City and the developers is further supported on the
ground that the Neighborhood Plan, regardless of its expiration date, was merely advisory and not
binding on the City.  The Plan is self-described as providing  "guidelines" to the City designed to
preserve the quality of life within the neighborhood.  Pertinent to the specific issue at hand - density
of housing development - the Plan seeks to "encourag[e] additional low-density residential
development on vacant or under-utilized land."  To facilitate this goal, "the neighborhood will ask
the San Antonio Zoning Commission to create two new low-density residential zoning districts"
within the neighborhood.  Finally, the Plan is intended to make "the neighborhood's desires
concerning its atmosphere and suggestions for retention of that atmosphere known to City decision
makers who decide on policies and actions that could affect its future. . . ."  
	From the language employed in the Plan it is evident that the Plan is merely advisory.  Indeed,
as the City argues, even the City's Master Plan, of which the Neighborhood Plan was a component,
is merely a guide for rezoning requests rather than a mandatory restriction on the City's authority to
regulate land use.  To allow the residents of the Alamo Farmsteads neighborhood to impose its
desires on the City's authority to regulate land use raises issues about the propriety of such a
delegation of the City's legislative power to private entities.  See Texas Boll Weevil Eradication
Found., Inc. v. Lewellen, 952 S.W.2d 454, 469 (Tex. 1997) (acknowledging the constitutional issues
presented by private delegation of public powers).  The trial court properly entered judgment in favor
of the City and the developers based on the purely advisory nature of the Plan.
	Because the City and the developers proved their entitlement to summary judgment as a
matter of law, the summary judgments entered by the trial court are in all things affirmed.
							Paul W. Green, Justice
1. The summary judgments granted in favor of the City and the developers were signed on May 7, 2002; May
9, 2002; May 12, 2003; and June 12, 2003.  The order denying the landowners' requested summary judgment was
signed on June 12, 2003.  The Honorable Karen Pozza, presiding judge of the 407th Judicial District Court signed the
2002 judgments.  The 2003 judgments were signed by the Honorable John D. Gabriel, Jr., presiding judge of the 131st
Judicial District Court.
