Agenda - Planning Commission - 03/06/2014

Home

Zoning Bulletin January 25, 2014 I Volume 8 I Issue 2 conflicted with Chapter 245. The GSABA was a nonprofit organization whose members included those concerned with issues affecting the real estate industry in the Greater San Antonio area. Indian Springs, Ltd. was a Texas limited partnership that owned real property in the City. The City asserted that the fair notice ordinance was necessary for it to carry out its responsibilities under Chapter 245. According to the City, the fair notice ordinance ensured it would have enough information about a project to determine whether the project had changed and, therefore, was subject to current development regulations. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the court issued summary judgment in favor of the GSABA and Indian Springs. It held that the City, under the fair notice ordinance, .substantively impaired or encumbered vested rights that had already accrued under Chapter 245, and substantively impaired or encumbered vested rights that would accrue under Chapter 245 in the future. The City appealed. DECISION: Judgment of district court affirmed. The Court of Appeals of Texas held that the City's fair notice ordinance conflicted with and was preempted by Chapter 245 of Texas' Local Government Code. The court explained that, under Chapter 245, the filing of the first permit, or plan for development, or plat application, in a development project determines the regulations that will be used to govern the remainder of the project. Specifically, the court noted that § 245.002(a-1) provides: "Rights to which a permit applicant is entitled under this chapter accrue on the filing of an original application or plan for develop- ment or plat application that gives the regulatory agency fair notice of the project and the nature of the permit sought." (Tex. Loc. Gov't Code Ann. § 245.002(a-1).) The court found that Chapter 245 expressly defined the documents that caused the accrual of vested rights and the time when this accrual occurred. The court further found that the fair notice ordinance created an ad- ditional procedure for obtaining recognition of vested rights under Chapter 245. The court found that additional procedure might "wholly preclude the recognition of vested rights" accruing under Chapter 245. Under the fair notice ordinance, the City could deny the exercise of vested rights based upon the owner's failure to provide information be- yond that which was required to vest rights in the first place. Thus, the court concluded that the fair notice ordinance effectively redefined the manner in which vested rights accrued under Chapter 245.. Accordingly, the court held that the fair notice ordinance directly conflicted with and was preempted by Chapter 245. See also: Harper Park Two, LP v. City of Austin, 359 S. W.3d 247 © 2014 Thomson Reuters 11