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Click here for the full text of this decision FACTS:In the early 1970s, San Antonio approved the development of the Park Ten Subdivision. The property was zoned by a city ordinance into four separate types of districts, one residential district and three business districts. One of the contingencies for the zoning designations was that there be “no access to Freiling Drive from the commercial zones.” The developer, Max Kaplan, tried to remove the condition but was denied. Nonetheless, the following year, the residential district was rezoned by ordinance as a business district. The reclassification was against predicated on the condition that no public or private street entering or exiting from or to Freiling Drive was allowed. In 1973, Kaplan purchased another tract of land of the frontage road to the property at issue. On this land, he built Freiling Driveway from a road existing on the land through to Freiling Drive. Kaplan dedicated an easement over the driveway for the benefit of all Park Ten property owners. In 1975, the city planning commission approved Kaplan’s application to replat Park Ten so as to add his new piece of land, including the driveway and its access onto Freiling Drive. Another replat of Park Ten was requested by a different developer, Gordon Hartman, in 1989, The approved replat, which allowed residential development on the south side of Freiling Drive, included the driveway. Over the years, as businesses began building in Park Ten, the driveway became the primary means of access to and from the subdivision. Then, in August 1999, the city erected a barricade and posted signs notifying the public of its intent to close off the driveway. TPLP Office Park Properties, one of the businesses in filed suit to stop the closure, and MSDW Southwest Partners intervened. They argued that the city’s proposal would be an unreasonable exercise of its police power, constituting inverse condemnation. TPLP and MSDW got a temporary restraining order against the city. The city subsequently filed a counterclaim against the plaintiffs to enforce the 1971 ordinance and enjoin further violations. In June 2001, the city council passed an ordinance authorizing the enforcement of prior ordinances “by close of the street/access between Freiling Drive and Park Ten Boulevard.” The ordinance also stated that the driveway violated the spirit of the 1971 and 1972 zoning ordinances, and that closure of the driveway was necessary to protect the general welfare of Park Ten, as well as the public and community. In a November 2001 trial, the trial court heard evidence on two basic issues: 1. whether the city’s proposed action was a valid exercise of its police power; and 2. whether the closing of the driveway would result in a material and substantial impairment of access, or whether it would require just a detour of travel patterns. The trial court ultimately ruled for TPLP and MSDW. HOLDING:Affirmed. The court first rejects the city’s argument that the order went too far in deciding all the issues of the case in what was supposed to be a pretrial evidentiary hearing. The city says it was denied the opportunity to request a jury trial on allegedly unaddressed issues. The court finds the so-called unaddressed issues, ones raised in the city’s counterclaim, to be ones related to the city’s request for injunctive and declaratory relief. The court finds that each of the claims is addressed by the court’s findings on the issues of police power and material and substantial impairment of access. Because the trial court found the city’s closure of the driveway was an invalid use of its police power, it is implicit that the driveway was not in violation of a city ordinance. In turn, if the driveway failed to violate any ordinance, the city cannot ask for a permanent injunction to ensure no further violation or ask for damages for the cost of closing the driveway. Finally, the city’s request for a declaratory judgment is addressed in that the court found San Antonio to have the police power to reconfigure the driveway and alleviate any hazardous condition, but not to close the driveway all together. Because each of the city’s counterclaims and the plaintiffs’ remaining issues are addressed by these pretrial matters, the trial court acted within its discretion in disposing of all claims contemplated by the issues of invalid exercise of police power and material and substantial impairment of access. The court then turns to assess whether the city’s action was an invalid exercise of police power. The city argues both that it has exclusive control over its streets, including the power to regulate, control, alter or close them for the benefit of the general public, and that it has power to classify and zone property and to enforce zoning decisions. These arguments are raised under the Transportation Code and Local Government Code, respectively, but the court finds that none of the parties contest the existence of such police power. The city also says that its actions were justified under a substantive due process analysis � that its decision was rationally related to a legitimate goal. The court says this due process issues is essentially a question over whether the trial court’s findings of fact and conclusions of law � particularly: 1. the traffic entering and leaving Park Ten from Freiling Drive does not create a safety hazard or a nuisance; 2. the city’s attempted closure of the driveway would not be in furtherance of the public interest and would not promote the safety, comfort, health, convenience and/ or general welfare of the public or the community; and (3) the driveway does not approach Freiling Drive or traverse the one-foot non-access easement � are legally and factually sufficient. The court reviews the extensive testimony from both sides on each issue. It concludes that there is more than a scintilla of evidence to support the inference that the traffic entering and leaving the Park Ten does not create a safety hazard or a nuisance and that the closure of the driveway would not promote the public interest. In addition, there is some evidence that the driveway does not traverse the non-access easement and that it meets the requirements of the 1971 ordinance. The court then reviews the trial court’s finding that there would be a material and substantial impairment of access if the city was allowed to go through with the road closure. The city argues that reasonable and suitable access is still available. To show material and substantial impairment, the property owner must establish: 1. a total temporary restriction of access; 2. a partial permanent restriction of access; or 3. a partial temporary restriction of access due to illegal or negligent activity. The court also notes that a material impairment may be found when there has only been a partial permanent restriction of access. Taking note of the large possible decrease in property values in Park Ten from having to access the subdivision from off of an I-10 access road, and that 80 percent to 90 percent of Park Ten’s residents use the driveway to gain access to Park Ten, the court finds evidence of a material and substantial impairment of access. The trial court says the trial court did not abuse its discretion by excluding certain records � minutes and supporting documents from the June 2001 city council meeting; a videotape of the same meeting; and a certified copy of an audiotape of the 1971 council meeting � from the testimony. Even if there was error, the court adds, the city has “wholly failed” to show that this error caused the rendition of an improper judgment. It is unlikely the city would have prevailed solely based on the excluded records. The court next reviews whether the city’s action amounted to a regulatory taking. As with the issue of police power, the court finds that the crux of the city’s argument lies in the legal and factually sufficiency of the trial court’s conclusions of law: that closure of access to the subdivision through the driveway will result in a compensable taking of TPLP’s and MSDW’s rights. The court notes that one of the many factors to be considered when deciding whether there’s been a compensable taking, is whether access to the property will be unsafe as a result. The court says there is evidence that the closure would be unsafe, ultimately, since access from the I-10 access road would required merging into traffic moving at 40 miles per hour. The court further upholds the trial court’s ruling estopping the city from closing off the driveway. The estoppel falls within the exception to the general rule that estoppel cannot be imposed against the government. The exception is for when a governmental function is not impaired and the estoppel is necessary to prevent injustice to the tenants of TPLP and MSDW. Finally, the court affirms the award of attorneys’ fees. The court concludes that by authorizing declaratory judgment actions to construe the legislative enactments of governmental entities and authorizing awards of attorneys’ fees, the Declaratory Judgment Act necessarily waives governmental immunity for such awards. OPINION:Angelini, J.; Stone, Green and Angelini, JJ. DISSENT:Green, J. “The City’s decision to close the Freiling Driveway is supported by more than enough evidence to justify the exercise of its police power. TPLP failed to conclusively prove that the City’s action was arbitrary, or resulted in material and substantial impairment of access to TPLP’s property interests. Because the City’s action was arguably based on concerns over the safety and well-being of residents in the adjoining residential neighborhood, it was not an arbitrary and unreasonable exercise of its police powers.”

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