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City of Port Arthur must pay plaintiffs’ legal fees

For the city of Port Arthur it’s a case of pay now or pay more later.

Langston Adams, attorney for plaintiffs Reginald Trainer, Efrain Avendano, Paul Hulin and Herman Levingston, said Judge Donald Floyd of the 172nd Judicial District Court in Beaumont ordered the city of Port Arthur to pay $50,737 to the plaintiffs for legal fees.

Judge Floyd made the ruling Jan. 24.

Moreover, in the event the city is unsuccessful in an appeal, the city will be required to pay an additional $10,000 to the plaintiffs’ legal fees for each additional appeal.

The lawsuit was filed in opposition to a 78-unit senior citizens planned community and a judge has invalidated Ordinance 13-32 for multi-family residential housing. The court found that the ordinance did not have a supermajority from the city’s Board of Adjustments as required.

It is not clear whether the city has filed to appeal the lawsuit or not.

“If the city appeals again, Olson and Olson (the law firm hired by the city to make the appeal) will get more money. It will cost the taxpayers more money. Does the city council want to continue to waste taxpayers’ money?” Adams said.

Val Tizeno, city attorney for Port Arthur, said the issue is still being discussed in executive session and she couldn’t comment at the time since it falls within attorney-client privilege.

Nevertheless, the community has been constructed and is open.

 

 

Background

 

The complex is a 78-unit community for people age 62 and older.

The ruling was issued on July 14 by the Corpus Christi – Edinburgh 13th District of Texas Court of Appeals. Appellants, Reginald Trainer, Efrain Avendano, Paul Hulin and Herman Levingston filed the original suit against the city of Port Arthur, the appellee. The case was on appeal from the 172nd District Court of Jefferson County, according to a memorandum opinion from the 13th District Court.

The appellants sued the city seeking to invalidate a zoning ordinance. The court ruled the zone remain 2F.

In their conclusion, the 13th District justices wrote: “We affirm ….. the March 10, 2013 building permit was improperly issued, because appellants failed to exhaust their administrative remedies as to that claim.”

“We reverse the trial court’s judgment granting the city’s plea to the jurisdiction as to appellants’ claim, first made in their original petition, that Ordinance 13-32 is invalid because it did not receive the votes of a supermajority of the city council.”

This case involves property owned by the Port Arthur Independent School District. In 2013, PAISD asked the Port Arthur City Council to rezone the land so that it could be sold to a residential developer, ITEX Group.

The property had been zoned as two-family residential (2F) but PAISD requested it be rezoned as multi-family residential (MF) in order to accommodate ITEX, which intended to build townhomes or apartments on the property.

Several owners of land adjacent to the subject property, including appellants, filed written protests with the city council objecting to the rezoning.

On July 9, 2013, the city council passed an ordinance, 13-32 that rezoned the property at issue from 2F to Planned Development District No. 36 (PD-36), on a 5-3 vote. The ordinance provided PD-36 shall permit Multi-Family development consisting of townhomes joined by common walls.

Appellants then filed the instant suit against the city for declaratory and injunctive relief, arguing the ordinance is invalid because it did not receive the approval of a three-fourths supermajority of the city council.

The trial court granted the appellants’ request for a temporary restraining order prohibiting the city from allowing the zoning change found in the ordinance to be applied to the land at issue.

The temporary restraining order also prohibited the city from granting any kind of building permit or a certificate of occupancy that would result in the property being used for a purpose allowed under a MF zoning classification that is not allowed on a 2F zoning classification.

The trial was set for October 24, 2013.

On that day, after hearing arguments from both parties’ attorneys, the trial court agreed with the city that it lacked jurisdiction because appellants failed to exhaust their administrative remedies. Instead of dismissing the suit, however, the trial court declared it would give the appellants an opportunity to come back and explain to the court they have exhausted their administrative remedies in accordance with what the statue says.

Attempting to comply with the trial court’s directive, appellants appeared before the city’s Zoning Board Of Adjustments at its next meeting on Nov. 21, 2013, and presented their argument the ordinance was invalid.

According to the appellants, the city argued at the meeting the ZBOA had no authority to hear the matter. At the conclusion of the meeting, the ZBOA issued a decision agreeing with appellants the ordinance was invalid. No party appealed the decision.

More than a year after the ZBOA’s decision, ITEX applied for and received a permit to construct 39 duplexes and a community center on the subject property. The permit stated that the current zoning on the property was PD-36. However, the proposed construction did not include apartments or townhomes for which an MF or PD-36 zoning designation would be required.

The parties dispute whether the project would have been permitted under the original 2F zoning. Appellants did not challenge the building permit before the ZBOA.

The city then filed an amended plea to the jurisdiction arguing that: (1) appellants’ claims are moot because they received administrative relief; (2) appellants failed to exhaust their administrative remedies prior to filing suit; and (3) appellants’ claims should be dismissed because ITEX was an omitted but necessary party.

Appellants then filed an amended petition (1) adding ITEX as a defendant, and (2) asserting an additional claim that the duplex project was not authorized under a 2F zoning designation.

Subsequently, the city filed a supplement to their plea to the jurisdiction contending that appellants did not exhaust their administrative remedies with regard to their newly raised claim.

After an August 28, 2015 hearing at which no testimony was taken, the trial court granted the city’s plea. It later issued findings of fact and conclusions of law stating in part that appellants’ claims “regarding the validity of city of Port Arthur Ordinance No. 13- 32 have been rendered moot by the decision of [ITEX] to proceed with a project on the property involving the construction of two-family residences, or duplex units, rather than a multi-family project contemplated by Ordinance 13-32.”

The trial court further concluded that appellants “failed to exhaust their administrative remedies for their claims, if any, regarding any error made by the city’s administrative official in issuing a permit for the construction of two-family residences, or duplex units, on the property under the city’s zoning ordinance.”

David Ball: 409721-2427