                                                                                   ACCEPTED
                                                                                02-16-00114-cv
                                                                   SECOND COURT OF APPEALS
                                                                         FORT WORTH, TEXAS
                                                                           12/19/2017 10:39 AM
                                                                                DEBRA SPISAK
                                                                                        CLERK



                       ____________________
                        NO. 02-16-00114-CV                     FILED IN
                                                        2nd COURT OF APPEALS
                       ____________________              FORT WORTH, TEXAS
                                                       12/19/2017 10:39:25 AM
                   IN THE COURT OF APPEALS                   DEBRA SPISAK
                  SECOND DISTRICT OF TEXAS                      Clerk
                      FORT WORTH, TEXAS
                      ____________________

       Peter Schmitz, Sean Pollock and Larry & Becky LaDuke,
                             Appellants

                                  v.

                 Denton County Cowboy Church and
                    the Town of Ponder, Texas,
                            Appellees
                      ____________________

       APPELLEE TOWN OF PONDER’S RESPONSE TO
         APPELLANTS’ MOTION FOR REHEARING
                 ____________________

   On Appeal from the 431st Judicial District, Denton County, Texas;
Trial Court Cause No. 15-06454-431, the Hon. Jonathan Bailey Presiding
                       ____________________

                                            Matthew C.G. Boyle
                                            State Bar No. 24001776
                                            4201 Wingren, Suite 108
                                            Irving, Texas 75062-2763
                                            (972)650-7100 Phone
                                            (972)650-7105 Fax
                                            mboyle@boyle-lowry.com
                 IDENTITY OF PARTIES AND COUNSEL

PLAINTIFFS/APPELLANTS               COUNSEL

Peter Schmitz, Sean Pollock, and    Robert E. Hager
Larry & Becky LaDuke                State Bar No. 08689500
                                    rhager@njdhs.com
                                    M. Shelby Pearcy
                                    State Bar No. 24067756
                                    spearcy@njdhs.com
                                    500 N. Akard
                                    Suite #1800
                                    Dallas, Texas 75201
                                    Telephone: (214) 965-9900
                                    Facsimile: (214) 965-0010

                                    Gregory J. Sawko
                                    State Bar No. 17692700
                                    gsawko@dentonlawyer.com
                                    1172 Bent Oaks Drive
                                    Denton, Texas 76210
                                    Telephone: (940) 382-4357
                                    Facsimile: (940) 591-0991

DEFENDANTS/APPELLEES                COUNSEL

Town of Ponder, Texas               Matthew C. G. Boyle
                                    State Bar No. 24001776
                                    mboyle@boyle-lowry.com
                                    Matthew L. Butler
                                    State Bar No. 24073984
                                    mbutler@boyle-lowry.com
                                    4201 Wingren, Suite 108
                                    Irving, Texas 75062
                                    Phone: 972-650-7100
                                    Fax: 972-650-7105
Denton County Cowboy Church   Lance Vanzant
                              Texas Bar No. 24009736
                              Lvanzant@hbwvlaw.com
                              Dorwin L. Sargent, III
                              Texas Bar No. 24088352
                              dsargent@hbwvlaw.com
                              512 W. Hickory, Suite 100
                              P.O. Box 50149
                              Denton, Texas 7620 l
                              940-387-3518 - Tel.
                              866-546-9247 – Fax
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, the Town of Ponder (“Ponder” or the “Town”), Appellee in

the above entitled and numbered cause, and files this, its Response to Appellants’

Motion for Rehearing filed September 29, 2017 (the “Motion”).

                           I.    SUMMARY OF RESPONSE

      The Ponder Town Council’s rezoning of the Denton County Cowboy

Church’s (the “Church”) property constituted a valid legislative action and Ponder’s

governmental immunity has not been waived. Appellants have not and can never

plead an applicable waiver of Ponder’s governmental immunity based on the

pleadings and evidence in the record. Appellants seek rehearing based on their

substantive challenge to Ponder’s rezoning of the Church’s property and a related

claim that somehow Ponder violated the Open Meetings Act (Chapter 551 Texas

Government Code). Appellants have failed to meet their burden to establish the

Court’s jurisdiction and cannot do so now. Appellants’ live pleading is their Fourth

Amended Petition and the trial court held an all-day evidentiary hearing on all

matters raised in this appeal on December 30, 2015. Appellants still failed to meet

its burden to plead an applicable waiver of Ponder’s immunity and the factual

applicability of any claimed source of waiver.

      There is no record or evidence that Ponder acted in an arbitrary or capricious

manner when the Ponder Town Council approved the Church’s request to rezone its



                                         1
property. Appellants’ first and third issues in the Motion are founded on a baseless

allegation that Ponder acted in an arbitrary or capricious manner in rezoning the

Church’s property. The applicable standard for determining whether or not the

Ponder Town Council acted in an arbitrary or capricious manner is whether or not

reasonable minds could differ as to whether the zoning change has a substantial

relationship to the public health, safety, and welfare. Based on the provisions of the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and the Church’s

efforts to expand its religious offerings as part of the requested zoning change, it is

impossible to conclude that reasonable minds could not differ as to the merits of the

zoning change. There is undisputed evidence in the record that the Church’s

requested zoning change was supported by RLUIPA. Correspondingly, there is no

evidence to support Appellants allegation that the zoning amendment was arbitrary

and capricious. There is an available remedy for cases where a city council does

indeed approve a zoning change in an arbitrary or capricious manner, but where

reasonable minds can differ on whether such change has a substantial relationship to

the public health, safety, and welfare, there is simply no waiver of governmental

immunity.

      The bare allegations of an Open Meetings Act violation in Appellants’ Motion

are also insufficient to establish a waiver of Ponder’s immunity. Furthermore, many

such allegations are being raised for the first time on appeal. Appellants’ pleadings



                                           2
do not allege sufficient facts to establish a waiver of Ponder’s immunity with regard

to an Open Meetings Act violation. Furthermore, at the evidentiary hearing in the

trial court, Appellants presented absolutely no evidence and made no argument that

a violation of the Open Meetings Act had occurred as part of Ponder’s approval of

the rezoning of the Church’s property. As such, the Trial Court did not err in granting

Ponder’s plea to the jurisdiction.

      As to Appellants’ third issue in the Motion, Appellants failed to meet their

burden to establish a waiver of Ponder’s immunity based on a claim pursuant to 42

USC §1983 (“Section 1983”). Even with a generously liberal construction that

Appellants’ pleadings include a regulatory takings claim, Appellants’ pleadings and

the evidence in the record do not sufficiently support a viable takings claim.

Appellants have no rights or entitlement to zoning of their Church neighbor’s

property. Further, Appellants’ claim under Section 1983 is not ripe because

Appellants failed to pursue the available State law remedies, which is a mandatory

prerequisite to such a claim. Lastly, as to the actual property owned by Appellants,

there is zero evidence in the record that Ponder’s approval of a zoning change on the

Church’s property denied Appellants all economically viable use of their property.

Accordingly, Appellants failed to meet their burden to establish the Court’s

jurisdiction as to their claim under Section 1983.




                                           3
                                II.    ARGUMENT

A.    Appellants have not and cannot plead the factual applicability of a waiver
of Ponder’s immunity

      Sovereign immunity from suit defeats a trial court's subject matter jurisdiction

unless the state expressly consents to suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d

636, 638 (Tex. 1999). The only waiver of immunity as to municipalities under the

Declaratory Judgment Act is to determine the validity of an ordinance or franchise.

Tex. Civ. Prac. & Rem. Code § 37.007(b); City of Dallas v. Turley, 316 S.W.3d 762,

769-71 (Tex. App.—Dallas 2010, pet. denied). Section 154.58(B) of the Ponder

Zoning Ordinance provides that the Ponder Zoning Ordinance can be amended by

action of the Town Council. C.R. at 306. The Ponder Town Council approved the

change in zoning for the Church’s property on August 24, 2015. C.R. at 264-66.

Based on Section 154.58(B), the Town Council’s approval of the Church’s requested

zoning change is tantamount to the adoption of an ordinance because said approval

amended the Ponder Zoning Ordinance. Appellants allege that the zoning change for

the Church’s property is invalid, but in order to establish the Court’s jurisdiction,

Appellants still bear the burden to allege facts affirmatively demonstrating that the

trial court has subject-matter jurisdiction. See Tex. Ass'n of Bus. v. Tex. Air Control

Bd., 852 S.W.2d 440, 446 (Tex. 1993). For the waiver to be effective, a plaintiff must

plead a constitutional or legislative waiver with facts that make the waiver

applicable. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598

                                           4
(Tex. 2001) (the pleader must allege facts to demonstrate a valid constitutional

claim); Tex. Ass’n of Bus, 852 S.W.2d at 446 (the pleader must allege facts that

affirmatively demonstrate the court’s jurisdiction to hear the cause); See State v.

Lueck, 290 S.W.3d 876, 884 (Tex. 2009) (holding a pleading cannot stand on bare

allegations).

      A duly adopted zoning approval is presumed to be valid and the burden is on

the party seeking to prevent its enforcement to prove that the ordinance is arbitrary

or unreasonable in that it bears no substantial relationship to the health, safety,

morals or general welfare of the community. City of Pharr v. Tippitt, 616 S.W.2d

173, 176 (Tex. 1981). “If reasonable minds may differ as to whether or not a

particular zoning ordinance has a substantial relationship to the public health, safety,

morals or general welfare, no clear abuse of discretion is shown and the ordinance

must stand as a valid exercise of the city's police power.” Id. (quoting Hunt v. City

of San Antonio, 462 S.W.2d 536, 539 (Tex.1971)).

      Within the context of this case, the requested zoning amendment implicated

RLUIPA because the Property in question is used for religious exercise as part of the

Church’s religious activities. Under RLUIPA, “[n]o government shall impose or

implement a land use regulation in a manner that imposes a substantial burden on

the religious exercise of a person, including a religious assembly or institution,

unless the government demonstrates that imposition of the burden on that person,



                                           5
assembly, or institution (A) is in furtherance of a compelling governmental interest;

and (B) is the least restrictive means of furthering that compelling governmental

interest.” 42 U.S.C.A. § 2000cc (West).1 The judiciary is ill-suited to opine on

theological matters, and should avoid doing so. Merced v. Kasson, 577 F.3d 578, 590

(5th Cir. 2009) (citing Employment Division, Department of Human Resources v.

Smith, 494 U.S. 872, 887 (1990) (“Repeatedly and in many different contexts, we

have warned that courts must not presume to determine the place of a particular

belief in a religion or the plausibility of a religious claim.”)).

          The evidence is undisputed that the Church intends to the use Property for

religious exercise. See 2 R.R. at 230-41. At the December 30, 2015, hearing in the

trial court, the Church’s Pastor Jeff Tackett testified that the requested zoning change

was motivated by Pastor Tackett’s sincere religious convictions and that without the

zoning approval, the exercise of those religious beliefs would be substantially

burdened. See 2 R.R. 240-241. In order for Appellants to prevail on their claim of

spot zoning, they must prove that the Town’s decision to rezone the Property was

arbitrary or unreasonable and that no reasonable minds could differ as to whether the

amended zoning ordinance has a substantial relationship to the public health, safety,



1
    An analysis under the Texas Religious Freedom and Restoration Act mirrors the Federal standard,
     using this four-part test: (1) whether the government's regulations burden the plaintiff's free
     exercise of religion; (2) whether the burden is substantial; (3) whether the regulations further a
     compelling governmental interest; and (4) whether the regulations are the least restrictive means
     of furthering that interest. See Barr v. City of Sinton, 295 S.W.3d 287, 299 (Tex. 2009)


                                                    6
morals or general welfare. Given Pastor Tackett’s testimony it is impossible for

Appellants to ever plead sufficient facts that demonstrate Ponder’s Town Council

acted arbitrarily when there is a federal mandate that requires the Town not to burden

the Church’s religious exercise. Consequently, Appellants have not pled a viable spot

zoning claim because they can never plea the factual applicability of a waiver of

Ponder’s immunity. For these reasons, Ponder’s immunity from suit is not waived.

B.    Appellants bare allegations of an Open Meetings Act violation fails to
provide the factual applicability of a waiver of Ponder’s immunity

      In their Motion, Appellants argue for the first time that Ponder’s “Town

Council deliberated in closed session without notice and decided by voting or polling

in closed session to approve the [zoning] request.” Regarding an alleged Open

Meetings violation, Appellants’ Fourth Amended Petition simply seeks a declaration

that the “Town of Ponder’s zoning change regarding the Property was procured in

whole or in part through violations of the Texas Open Meetings Act[.]” C.R. at 234.

Appellants pled no facts to support such a claim. C.R. at 222 – 393. Similarly, at the

evidentiary hearing on Ponder’s plea to the jurisdiction, Appellants failed to submit

any evidence that would support a claim under the Open Meetings Act.

      Despite Appellants’ assertion to the contrary, sufficient notice of the executive

session was posted on the August 24, 2015, agenda. See 4 R.R. Exhibit 5 (“The City

Council reserves the right to adjourn into executive session at any time during the

course of this meeting to discuss any of the matters listed above, as authorized by

                                          7
Texas Government Code Section 551.071 (Consultation with Attorney)”). The Open

Meetings Act specifically permits the Ponder Town Council to convene in a closed-

door session for private consultation with its attorney “when the governmental body

seeks the advice of its attorney about…pending or contemplated litigation[.]” Tex.

Gov’t. Code § 552.071. A pleading that simply alleges Ponder’s Town Council

convened in executive session is not a valid waiver of Ponder’s immunity.

C.    Appellants failed to allege a viable takings claim

      Appellants allege that “Defendant Town of Ponder violated Plaintiffs’

Constitutional rights under Section 42 U.S.C. 1983.” C.R. at 240. Yet, Appellants

have only broadly alleged, without any supporting authority or facts, that the Town

violated their property rights and procedural and substantive due process rights. See

C.R. at 242-44. In reality, the only right that Appellants are truly asserting is that

they have the right to the continued non-use of the Church’s property and the

enforcement of the Town’s own ordinances. Appellants simply do not have an

entitlement in the zoning of their neighbor’s property and have no property interest

in the enforcement of the Town’s ordinances. See Summer v. Bd. of Adjustments of

the City of Spring Valley Village, No. 01-14-00888-CV, 2015 WL 6163066, at *10-

11 (Tex. App. – Houston [1st Dist] Oct. 20, 2015, no pet. history) ( “[t]here is simply

no protected property interest in having a zoning ordinance enforced against one's

neighbors.”).



                                           8
      Furthermore, Appellants’ Section 1983 claim is not ripe because they have not

pursued all State law remedies. For a section 1983 takings claim to be ripe, the

property owner must first show that he has unsuccessfully sought compensation for

the taking under Article I, section 17 of the Texas Constitution. See Town of Flower

Mound v. Stafford Estates Ltd. P'ship, 71 S.W.3d 18, 48–49 (Tex. App.—Fort Worth

2002), aff'd, 135 S.W.3d 620 (Tex. 2004). While the two claims may be brought

simultaneously, Appellants have not pled a viable regulatory takings claim.

Plaintiff’s Fourth Amended Petition does not contain any factual allegations that

would support a takings claim. C.R. at 235-44.

      A compensable regulatory taking may occur when a governmental agency

imposes restrictions that either (1) deny landowners of all economically viable use

of their property, or (2) unreasonably interfere with landowners' rights to use and

enjoy their property. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex.

1998). In determining whether the government has unreasonably interfered with an

owner’s right to use and enjoy property requires a consideration of two factors: the

economic impact of the regulation and the extent to which the regulation interferes

with distinct investment-backed expectations. Id.

      Appellants’ pleadings do not allege that Ponder’s adoption of the zoning

ordinance denied them of all economically viable use of their property or

unreasonably interfered with their rights to use and enjoy their property. Appellants’



                                          9
bare allegations that they lost quiet use of their property or that their property values

diminished are insufficient regulatory takings allegations. Because Appellants failed

to plead a viable regulatory takings claim, the Trial Court did not err in granting

Ponder’s plea to the jurisdiction.

                                     III.    PRAYER

      For each and all of the foregoing reasons, Ponder asks this Court to deny

Appellants’ Motion for Rehearing and retain its opinion affirming the Trial Court’s

order granting Ponder’s Plea to the Jurisdiction and dismissing all of Appellants’

claims with prejudice.

                                            Respectfully submitted,

                                            BOYLE & LOWRY, L.L.P.

                                            /s/ Matthew L. Butler

                                            Matthew C.G. Boyle
                                            State Bar No. 24001776
                                            mboyle@boyle-lowry.com
                                            Matthew L. Butler
                                            State Bar No. 24073984
                                            mbutler@boyle-lowry.com
                                            4201 Wingren, Suite 108
                                            Irving, Texas 75062
                                            (972)650-7100     Phone
                                            (972)650-7105     Fax

                                            ATTORNEYS FOR APPELLEE
                                            TOWN OF PONDER




                                              10
                         CERTIFICATE OF SERVICE

      This will certify that a true and correct copy of the foregoing Response Brief
has been sent to the following parties via electronic service on the 19th day of
December, 2017.

Robert E. Hager
rhager@njdhs.com
500 N. Akard
Suite #1800
Dallas, Texas 75201
Telephone: (214) 965-9900
Facsimile: (214) 965-0010

Gregory J. Sawko
gsawko@dentonlawyer.com
1172 Bent Oaks Drive
Denton, Texas 76210
Telephone: (940) 382-4357
Facsimile: (940) 591-0991

Lance Vanzant
Lvanzant@hbwvlaw.com
Dorwin L. Sargent, III
dsargent@hbwvlaw.com
512 W. Hickory, Suite 100
P.O. Box 50149
Denton, Texas 7620l
940-387-3518 - Tel.
866-546-9247 – Fax



                                      /s/ Matthew L. Butler
                                      Matthew L. Butler




                                         11
