      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-11-00660-CV



                       William L. Lindig and Peggy L. Lindig, Appellants

                                                   v.

                                   City of Johnson City, Appellee


    FROM THE DISTRICT COURT OF BLANCO COUNTY, 424TH JUDICIAL DISTRICT
         NO. CV06530, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                              MEMORANDUM OPINION


                The City of Johnson City sued William L. Lindig and Peggy L. Lindig, seeking an

injunction and civil penalties after the Lindigs continued to remodel their residential property in

Blanco County after the City issued a “stop work” order based on the Lindigs’ failure to obtain

a building permit. The Lindigs counterclaimed, asserting that the building-permit-fee ordinance

was unconstitutionally vague on its face or as applied to them.1 On cross-motions for summary

judgment, the trial court issued a permanent injunction in the City’s favor and awarded the City

$42,000 in civil penalties, $95,077 in attorneys’ fees, up to $40,000 in conditional attorneys’ fees

for an appeal, and pre- and post-judgment interest. The trial court also ordered the Lindigs to either




        1
          The Lindigs’ countersuit also included claims against the City’s board of adjustment and
various City officials, as well as additional claims against the City alleging estoppel, civil conspiracy,
and an unconstitutional taking. Those claims, however, were disposed of in the trial court and are
not at issue on appeal.
comply with city and state ordinances by obtaining necessary permits or demolish the structure. In

four issues on appeal, the Lindigs challenge the constitutionality of the building-permit-fee ordinance

on vagueness grounds and, in addition, complain of the related awards of civil penalties, attorneys’

fees, and prejudgment interest. We will reverse the trial court’s judgment and render in part and

remand in part.


                     FACTUAL AND PROCEDURAL BACKGROUND2

               This dispute arose nearly five years ago when the Lindigs refused to pay a $1,000

building-permit fee for “residential remodeling” construction work on a home they purchased for

their daughter’s use. In December 2007 the Lindigs applied for a building permit for a residential

remodeling project. William Lindig averred that, when he obtained the permit application from

City Hall, he was told by the City Secretary that he could begin the project without paying a fee. The

following month, however, Peter McKinney, the City’s Building Official, acted on the Lindigs’

permit application based on concerns about compliance with the City’s building code and the

types of construction materials being used on the project. Upon inspecting the project, McKinney




       2
          In a previous opinion of this Court, we considered the Lindigs’ interlocutory appeal from
a trial-court order dismissing the Lindigs’ claims for want of subject-matter jurisdiction. We
affirmed the trial court’s judgment with regard to claims based on alleged injuries to the public
at large but otherwise reversed the judgment and remanded the cause for further proceedings. See
Lindig v. City of Johnson City, No. 03-08-00574-CV, 2009 WL 3400982, at *6 (Tex. App.—Austin
Oct. 21, 2009, no pet.) (mem. op.). The extensive procedural history leading up to the summary-
judgment proceedings at issue in this appeal were fully set forth in our previous opinion and need
not be repeated in their entirety. See generally id. at *1-12. In this opinion, we recount the factual
and procedural history of the case only to the extent it is pertinent to the issues in this appeal.

                                                  2
informed William Lindig that there would be a $1,000 permit fee for the project.3 McKinney stated

that the amount of the fee was based on his determination that the remodeling project should be

treated as “new construction” because it involved “substantial work,” including some structural

framing, rewiring, and new plumbing, and would require all but two of the inspections normally

required for new construction. Accordingly, McKinney assessed a permit fee of $1,000 for new

construction in accordance with section 06-015 of the City’s Code of Ordinances. The Lindigs

refused to pay the fee, whereupon the City issued a stop-work order.

               When construction continued despite the stop-work order, the City filed suit in

Blanco County district court seeking injunctive relief against further construction, alleging that the

Lindigs had refused to obey the City’s order to cease all work until a building permit was issued.

See Tex. Loc. Gov’t Code Ann. §§ 54.012(1) (municipality may bring civil action for enforcement

of ordinance relating to materials or methods used to construct buildings), .016 (West 2008)

(injunctive relief available upon showing of substantial danger of injury or adverse health impact

to any person or to property of any person other than defendant). The City also sought civil

penalties for the Lindigs’ continued noncompliance with section 06-015 after receiving notice of

noncompliance in the stop-work order. See id. § 54.017 (West 2008) (authorizing municipality to


       3
         The parties do not dispute that the City required the Lindigs to pay $1,000 in fees for the
remodeling project, but the evidence is inconsistent regarding whether the permit fee itself was
$1,000 or something less. Although Peter McKinney testified that the Lindigs were required to pay
the $1,000 permit fee applicable to new construction projects, David Dockery, the City Manager and
City Administrator, testified before the board of adjustment that the $1,000 fee was actually
composed of an $850 permit fee (calculated by taking the $1,000 permit fee for new construction
and subtracting $150 for two inspections that would not be required for the remodeling project) and
adding a $150 “res check fee.” Because this factual discrepancy does not alter our analysis, we
characterize the fee as a $1,000 permit fee consistent with the parties’ briefing in this case.

                                                  3
recover civil penalties if defendant violates ordinance after being notified of ordinance’s provisions).

In addition to their counterclaims, the Lindigs asserted a number of defenses to enforcement of

the ordinance. The trial court denied the Lindigs’ motion for partial summary judgment as to the

enforceability of the ordinance and granted the City’s traditional motions for summary judgment on

the Lindigs’ claims and the City’s statutory claims for injunctive relief, civil penalties, and attorneys’

fees. The only claims at issue on appeal, however, are (1) the City’s actions for injunctive relief and

civil penalties, and (2) the Lindigs’ counterclaim under the Texas Uniform Declaratory Judgments

Act for a declaration that the City’s building-permit-fee ordinance is unconstitutional—both on

its face and as applied to the Lindigs’ construction project—because it is impermissibly vague and

thus imbues the Building Official with unfettered discretion to determine the fees to charge for

residential-remodeling construction.

                On appeal, the Lindigs assert that (1) the trial court erroneously concluded that

the City’s building-permit-fee ordinance is enforceable, (2) the trial court erroneously assessed

civil penalties and attorneys’ fees based on an unenforceable fee ordinance, (3) even if the fee

ordinance is enforceable, fact issues precluded summary judgment on the City’s claim for civil

penalties and attorneys’ fees, and (4) the City is not entitled to prejudgment interest either by statute

or as equitable relief.


                                            DISCUSSION

                The principal issue on appeal is whether the building-permit-fee ordinance,

section 06-015 of the City’s Code of Ordinances, is unconstitutionally vague on its face or as




                                                    4
applied to the Lindigs in this case. In section 06-015, the City adopted the following fee schedule

for building permits:


       A. Residential Plan Review and Inspections

               Includes plan review and inspections for residential structures as detailed in
               the Johnson City Residential Code.

               Up to and including 5000 square feet total area
                      Plan Review and inspections - $1000.000 per house

               5000 square feet and greater in total area
                      $1000.00 per house plus $0.12 per square foot beyond 5000
                      square feet

               Plan Review re-submittals
                      $100.00 per re-submittal

               Re-Inspections
                      $50.00 each for 2 or more re-inspections

       B. Commercial Plan Review and Inspections

               1.       Building Permit Fees for New Construction
                        a.     $250 + $0.12 cents a square foot
                        b.     Fees for tenant finish out and shell buildings will be
                               75% of the above fees

               2.       Plumbing, Mechanical and Electrical fees for New
                        Construction (each)
                        a.     $80.00 +$.05 cents a square foot
                        b.     Fees for tenant finish out and shell buildings
                               will be 75% of the above fees

               3.       Fees for Additions, Alterations, Repairs, Demolition,
                        Screening Walls, Retaining Walls and accessory Buildings.

                        The following fees shall be charged for small construction jobs
                        involving additions, alterations and repairs. Larger projects that



                                                  5
                       involve substantial work shall be charged as new construction at the
                       discretion of the Building Official.

                       Value of Construction                   Permit Fee
                       $0.00 to $2,500.00                      $85.00
                       $2,500.01 to $5,000.00                  $100.00
                       $5,000.01 to $10,000.00                 $145.00
                       $10,000.01 to $25,000.00                $210.00
                       $25,000.01 to $50,000.00                $400.00
                       $50,000.01 to $100,000.00               $600.00
                       $100,000.01 or more                     $600.00 for the first
                                                               $100,000.00 + $75 for each
                                                               $25,000.00 or fraction thereof.4


               By its plain terms, section (A) of the fee ordinance applies to residential construction,

and section (B) applies to commercial construction. Section (A) appears to provide a flat fee of

$1,000 for construction involving homes under 5,000 square feet. Section (B), on the other hand,


       4
          Section C of the fee ordinance includes the following “miscellaneous fees,” which are not
at issue in this appeal:

       Any Activity listed below shall be charged the following fee associated with the
             activity.

       Certificate of Occupancy                       $105.00
               (only charged when no permit issued for new construction)
       Temporary Certificate of Occupancy             $105.00
               (charged for all temporary certificates of occupancy)
       Fence Permit                                   $50.00
       In-ground swimming pool                        $300.00
       Spa or above-ground pool                       $105.00
       Lawn Sprinkler                                 $75.00
       Construction Trailer                           $95.00
       Drive Approach                                 $75.00 per approach
       Sidewalk                                       $75.00 per lot
       Additional Plan Review                         $75.00 per hour - 1 hr min.
       Hourly Rate                                    $105.00 per hour


                                                  6
provides a sliding fee scale for new commercial construction and commercial construction involving

additions, alterations, repairs, and other non-comprehensive building activities. Subsection (B)(3)

includes both a cost-based permit-fee structure and a grant of authority to the Building Official

to treat a commercial building project as “new construction” if the Building Official determines,

in his “discretion,” that the project “involves substantial work.” The City has also adopted a series

of international building codes, including the “International Residential Code for One- and Two-

Family Dwellings” (the “IRC”). Section (A) of the fee ordinance refers to the IRC regarding the

scope of its application. The IRC in turn vests the Building Official with “the authority to render

interpretations of [the IRC] and to adopt policies and procedures in order to clarify the application

of its provisions.”

               McKinney (the City’s Building Official) testified that, pursuant to the authority

granted to him under the IRC, he construed section (A) of section 06-015 to apply only to residential

new construction but used section (B)(3) as a guideline for determining fees for both residential and

commercial remodeling projects. McKinney further testified that he exercises discretion to deem

some residential remodels to be new construction if they “involve substantial work,” which results

in the application of the fee outlined in section (A) rather than use of the (B)(3) cost-based permit

fee he would otherwise use as a guideline for setting the fee for a commercial project. It is

disputed whether McKinney derives his authority to do so from subsection (B)(3) or from his

general authority under the IRC, but it is undisputed that he engaged in the process set forth

in subsection (B)(3) to set the permit fee in this case. The Lindigs contend that section 06-015 is

unconstitutionally vague with regard to the fee structure applicable to residential remodeling



                                                 7
jobs—either on its face or as it has been applied to them—because (1) the fee ordinance lacks a fee

structure clearly applicable to residential remodeling projects, under either section (A) or section (B),

and (2) there is neither a definition of “substantial work” nor any guidelines governing the

application of that term or circumscribing the Building Official’s discretion to deem a remodeling

project to be new construction for purposes of establishing the applicable permit fee.

                Ordinances are subject to the same constitutional requirements and construction

canons as statutes. Mills v. Brown, 316 S.W.2d 720, 723 (Tex. 1958) (“The same rules apply to

the construction of municipal ordinances as to the construction of statutes.”); cf. Texas Liquor

Control Bd. v. Attic Club, Inc., 457 S.W.2d 41, 45 (Tex. 1970) (“A rule or order

promulgated by an administrative agency acting within its delegated authority should be

considered under the same principles as if it were the act of the Legislature.”). To determine whether

a statute is unconstitutionally vague, we begin by presuming that the statute is constitutional. Walker

v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003). The party challenging the statute’s constitutionality

has the burden of showing that the statute fails to meet constitutional requirements. Id. A statute

or ordinance is unconstitutionally vague if 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 for those charged with its enforcement. See Comm’n for Lawyer Discipline v. Benton,

980 S.W.2d 425, 437 (Tex. 1998); Attic Club, 457 S.W.2d at 45; City of Webster v. Signad, Inc.,

682 S.W.2d 644, 646 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.). Implicit in this

constitutional safeguard is the idea that laws must have an understandable meaning and must

set legal standards that are capable of application. City of Mesquite v. Aladdin’s Castle, Inc.,



                                                   8
559 S.W.2d 92, 94 (Tex. Civ. App.—Dallas 1977), writ ref’d n.r.e., 570 S.W.2d 377 (Tex. 1978)

(per curiam). “It is established that a law fails to meet the standards of due process if it is so vague

and standardless as to leave a governing body free to decide, without any legally fixed guidelines,

what is prohibited in each particular case.” Id. Due process is violated and a law is invalid if

persons of common intelligence are compelled to guess at a law’s meaning and applicability. Attic

Club, 457 S.W.2d at 45; Pennington v. Singleton, 606 S.W.2d 682, 689 (Tex. 1980); Signad,

682 S.W.2d at 646.

                When applying the fair-notice test, courts allow statutes imposing economic

regulation greater leeway than they allow penal statutes. See Pennington, 606 S.W.2d at 689;

Signad, 682 S.W.2d at 646. “A law is not unconstitutionally vague merely because it does not

define words or phrases.” Vista Healthcare, Inc. v. Texas Mut. Ins. Co., 324 S.W.3d 264, 273

(Tex. App.—Austin 2010, pet. denied). Only a reasonable degree of certainty is required, id. (citing

Pennington, 606 S.W.2d at 689), and the reasonable-certainty requirement “‘does not preclude the

use of ordinary terms to express ideas which find adequate interpretation in common usage

and understanding.’” Signad, 682 S.W.2d at 646-47 (quoting Sproles v. Binford, 286 U.S. 374, 393

(1932)). Moreover, “the mere fact that the parties disagree as to [an ordinance’s] meaning does

not mean we must necessarily guess at its meaning.” Mills v. Fletcher, 229 S.W.3d 765, 770

(Tex. App.—San Antonio 2007, no pet.); see Vista Healthcare, 324 S.W.3d at 273.

                In the present case, there are no guidelines governing the application of the

“substantial work” standard embodied in section 06-015 as construed and applied by the City’s

Building Official. Nor is there any evidence that this phrase has a peculiar or technical meaning



                                                   9
as applied to some trade or science. Rather, the Building Official testified that he alone makes

the determination based on his impressions and experience regarding the scope of the work.

Significantly, the City does use objective standards in similar circumstances in two other parts of

its building regulations. Pursuant to section R105.3.1.1 of the IRC, the determination of whether

existing buildings in areas prone to flooding are “substantially improved or substantially damaged”

is made according to the following standard:


       If the building official finds that the value of proposed work equals or exceeds
       50 percent of the market value of the building or structure before the damage has
       occurred or the improvement is started, the finding shall be provided to the board of
       appeals for a determination of substantial improvement or substantial damage.


Once the Building Official has made the determination required by section R105.3.1.1, the board of

appeals determines whether the value of the proposed work constitutes “substantial improvement”

by applying the following guideline:


       [A]ny repair, reconstruction, rehabilitation, addition, or improvement of a building
       or structure, the cost of which equals or exceeds 50 percent of the market value of the
       building or structure before the improvement or repair is started. If the building or
       structure has sustained substantial damage, all repairs are considered substantial
       improvement regardless of the actual repair work performed.


IRC § R112.2.1. The IRC then lists several exclusions from the term that provide further guidance

in its application. Id. In comparison to the “substantial work” standard the City’s Building Official

employed in the Lindigs’ case, these provisions provide objective guidelines for applying the term

“substantial” to certain residential property requiring construction.




                                                 10
               As construed and applied to the Lindigs, the ordinance at issue in this case employs

language similar to that found to be constitutionally infirm in City of Webster v. Signad, Inc. There,

the court considered a vagueness challenge to a city sign ordinance that provided that any

outdoor advertising signs could not be rebuilt if there was damage to “any substantial parts” of the

sign. 682 S.W.2d at 645-46. The court held that the quoted phrase was fatally vague and violated

due process because it did not provide operators of outdoor advertising signs with fair and adequate

notice as to what sign repairs were permitted or prohibited. Id. at 647-48. The ordinance provided

no definition or guidelines for measuring “substantial parts” of the sign, leaving the court to conclude

that persons of common intelligence would be left to guess the ordinance’s meaning. Id. at 648.

While the court noted that the words “substantial parts” are common, they are not self-explanatory.

Id. at 647. As the court explained, “Parts of a sign may be simultaneously ‘substantial’ and

‘insubstantial’ depending on whether the test used is economic, physical, or functional.” Id. at 648.

The court illustrated the uncertainty and ambiguity that arose from application of the “substantial

parts” standard as follows:


       If an economic test is used, how expensive must a repair be to rise to the level of
       “substantial”? If a sign is valued at $30,000, is $1,000 in damage “substantial”? If a
       physical test is considered, is damage to one pole of a five-pole sign “substantial”? Should
       “substantial parts” of the sign include other than structural parts? Section B(15) of the
       Ordinance defines a “sign structure” as “the support, uprights, bracing, and framework of any
       outdoor advertising sign”; sign panels, readily movable and changeable, are not defined as
       a part of the sign structure. Is damage to one or more sign panels therefore to be considered
       as damage to a “substantial” part of the sign? A sign with broken or inoperative lights is not
       functional during nighttime hours, although the cost of repairs is small in comparison with
       the sign’s total cost. From a functional perspective, the lights are “substantial parts” of the
       sign, while from a cost perspective they are not. The same ambiguity arises in numerous
       similar practical considerations. . . . Operators of outdoor advertising signs receive no fair



                                                  11
       and adequate notice from section H(2) of the Ordinance as to what sign repairs are permitted
       or prohibited.


Id.

               As in Signad, people of common intelligence do not have fair notice as to what

permit fee is required under section 06-015 for a residential remodel project. Just as important,

the seemingly boundless discretion vested in the Building Official to interpret and apply the term

invites arbitrary and discriminatory application. Cf. Coffee City v. Thompson, 535 S.W.2d 758, 763

(Tex. Civ. App.—Tyler 1976, writ ref’d n.r.e.) (“An ordinance leaving the question of issuing or

denying building permits to the arbitrary discretion or determination of the city secretary without

any rule or standard to follow is invalid.”). The City argues that the Building Official’s discretion

is not unfettered because citizens have a right to appeal his determinations to the City’s board of

adjustment. The City does not explain how a standardless determination by the Building Official

survives a vagueness challenge merely because an appeal body can review that determination. We

conclude that the absence of reasonable guidelines or standards renders the term “substantial work”

unconstitutionally vague as applied to the Lindigs regardless of who is making that determination.

See Texas Antiquities Comm. v. Dallas Cnty. Cmty. Coll., 554 S.W.2d 924, 928 (Tex. 1977) (“A

vague law impermissibly delegates basic policy matters to policemen, judges, and juries for

resolution on ad hoc and subjective basis, with the attended [sic] dangers of arbitrary and

discriminatory applications.” (quoting Grayned v. City of Rockford, 408 U.S. 104, 109 (1972)).

Although courts recognize that myriad factual situations may arise, such that statutes can and should

be worded with flexibility, the public must be provided fair notice of what is required or prohibited.



                                                 12
Vista Healthcare, 324 S.W.3d at 273. The “substantial work” standard applied in this case does not

do so and is therefore constitutionally infirm.5 We therefore sustain the Lindigs’ first issue and

conclude that section 06-015 is unconstitutionally vague to the extent it imposes a new-construction

building-permit fee based on the Building Official’s determination that residential remodeling

construction “involves substantial work” and thus qualifies as new construction.

               Having sustained the Lindigs’ first issue, we also sustain their second, third, and

fourth issues relating to the damages awarded to the City based on the trial court’s erroneous

enforcement of the $1,000 permit fee. With regard to those issues, it appears that there remain

genuine issues of material fact regarding whether the Lindigs were issued a permit number; whether

the Lindigs violated the building-permit-fee ordinance or the IRC by failing to complete the permit

application and obtain a permit, failing to comply with the stop-work order that referenced the

absence of a permit, and failing to comply with the IRC both with regard to the application process

and the materials used in construction; and whether, when, and how the Lindigs were informed about

the stop-work order. These issues are distinct from whether the Lindigs were required to pay a fee

to obtain a permit.6

       5
         The City’s reliance on Vista Healthcare, Inc. v. Texas Mutual Insurance Co., 324 S.W.3d
264 (Tex. App.—Austin 2010, pet. denied), is misplaced. That case is distinguishable from this case
in many ways, but to the extent it affirmed the constitutionality of the guidelines applicable to
reimbursement rates for medical expenditures, it also reaffirmed the settled principle that an
ordinance must provide fair notice of the applicable standards. Here, there are none.
       6
          Several provisions of the IRC are germane to the issues on remand. Among those
provisions are section R105.1 of the IRC, which appears to require that a permit be obtained
regardless of whether there is a fee for the permit. Section R105.1 provides:

       Any owner or authorized agent who intends to construct, enlarge, alter, repair, move,
       demolish, or change the occupancy of a building or structure, or to erect, install,

                                                13
                                          CONCLUSION

               We hold that the building-permit-fee ordinance (section 06-015 of the City’s Code of

Ordinances) is void for vagueness as construed and applied to the Lindigs because the determination

of what residential remodeling projects involve “substantial work,” and thus may be treated as new

construction under the permitting ordinance, lacks standards that are capable of application with a

reasonable degree of certainty. We therefore reverse the trial court’s summary judgment in the City’s




       enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or
       plumbing system, the installation of which is regulated by this code, or to cause any
       such work to be done, shall first make application to the building official and obtain
       the required permit.

Section R105.3 of the IRC governs applications for a permit and instructs:

       To obtain a permit, the applicant shall first file an application therefor in writing on
       a form furnished by the department of building safety for that purpose. Such
       application shall:

       1.      Identify and describe the work to be covered by the permit for which
               application is made.
       2.      Describe the land on which the proposed work is to be done by legal
               description, street address or similar description that will readily identify and
               definitely locate the proposed building or work.
       3.      Indicate the use and occupancy for which the proposed work is intended.
       4.      Be accompanied by construction documents and other information as
               required in Section 106.1.
       5.      State the valuation of the proposed work.
       6.      Be signed by the applicant, or the applicant’s authorized agent.
       7.      Give such other data and information as required by the building official.

Upon application for a permit and pursuant to section R105.3.1 of the IRC, the City’s Building
Official is required to review a permit application within a reasonable time, inform the applicant in
writing if the application or construction documents do not conform to the requirements of pertinent
laws, and state the manner in which compliance is lacking. The record is not developed as to the
extent to which the Lindigs and the City’s Building Official complied with these provisions.

                                                  14
favor and render judgment in the Lindigs’ favor on their declaratory judgment claim. Specifically,

we render judgment that, as applied to the Lindigs, section 06-015 is unconstitutionally vague to

the extent it imposes a new-construction-permit fee based on the Building Official’s determination

that residential remodeling construction “involves substantial work” and thus qualifies as new

construction. However, fact issues remain as to whether the Lindigs violated the building-permit-fee

ordinance by failing to complete the permit application, failing to obtain a permit, and failing to

comply with the stop-work order. Accordingly, we reverse the portion of the trial court’s summary

judgment awarding the City civil penalties and attorneys’ fees and remand this cause to the trial court

for further proceedings.



                                               __________________________________________

                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Reversed and Rendered in part; Reversed and Remanded in part

Filed: November 14, 2012




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