SE Texas Record

Wednesday, September 18, 2019

Village of Tiki Island unsuccessful in its trek for plea of jurisdiction in land-use lawsuit


By Charmaine Little | Jul 24, 2018

HOUSTON – The village of Tiki Island and related parties lost its appeal in ongoing land-use case as the 14th Court of Appeals denied their plea of jurisdiction July 10.

The village of Tiki Island, its mayor, its board of aldermen, and board members filed an appeal with the court after the 212th District Court of Galveston County denied their plea of jurisdiction. The plea was an answer to a property owner Premier Tierra Holdings Inc.'s takings claim lawsuit amid the city’s ongoing refusal to approve a marina development project. The appeals court, in an opinion authored by Justice Ken Wise, agreed with the district court’s denial.

The city alleged two main issues in its appeal: Premier didn’t plead a justiciable controversy related to its request for declarations of its rights via Chapter 245 of the Local Government Code and that Premier didn’t state a valid takings claim.

The city alleged Premier had not stated a claim that actually applies to Chapter 245, and that the declaration it wants is not ripe. The appeals court disagreed and said Chapter 245 does apply to Premier’s claims as it “freezes” the regulations that were in effect during the time Premier filed its first plat application. Under the regulation, the city isn’t allowed to change the rules and force a party like Premier to comply with them after an application has been filed. This is what happened with Premier when it filed its first plat application in 2010.

It was a developmental plan that involved up to 100 residential units and 250 dry stack enclosed boat slips. The city didn’t have any relevant land-use policies or subdivision platting or zoning ordinances that would conflict with the aspired project back then. Things changed five days later when the city green-lighted a new zoning ordinance that would infringe on Premier’s project. Premier was convinced the city did this to block it from creating the enclosed boat storage. The city subsequently denied Premier’s plat application in May 2010. The appeals court pointed out this is the very reason Chapter 245 applies to Premier’s claims.

The appeals court also decided Premier’s request for declaratory judgment is ripe. It said that Premier showed enough proof that the city and its parties had several chances to determine Premier’s vested rights in the project.

When it came to the city’s statement that Premier didn’t plead a valid takings claim, the appeals court also sided with Premier. It pointed out that while Premier didn’t claim the city had a physical negative impact on its property, it accused the city of taking its vested property right concerning its market and development. It also said the city’s consistent refusal to approve its applications have created years that Premier hasn’t been able to enjoy its property, thus causing the city to infringe on its investment-backed expectations. The appeals court ultimately confirmed the lower court’s decision.

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