X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:In August of 2004, En Seguido purchased approximately 27 acres of land known as the Windcrest Heights Subdivision. On April 21, 1971, the prior owner filed a subdivision plat for the land, and the city approved the plat in May of 1971. In November of 1999, City Public Service confirmed the subdivision could receive gas and electric supply lines, and Southwestern Bell Telephone Company also confirmed that the subdivision was within its service area. On May 16, 2000, the prior owner applied to the city’s planning department for a development rights period (DRP) under city ordinance 86715. The city’s Planning Department issued DRP permit No. 459 and stamped the subdivision plat with the permit. In June of 2000, the San Antonio River Authority (SARA) recommended the plat for approval and accepted the sanitary sewer plan and profiles for the project. The same year, the prior owners dedicated a public easement to the city for electric and gas distribution and service facilities and conveyed a portion of the property to Bexar County for purposes of widening the road to enhance access to the subdivision. After purchasing the land in 2004, En Seguido entered into a sewer agreement with the SARA and paid $113,050 in impact fees for sewer connections to service the 154 lots into which the subdivision was to be divided for the development of single family residential homes. When a dispute arose between En Seguido and the city with regard to En Seguido’s ability to rely on the 1971 land use regulations, En Seguido filed a declaratory judgment action. The trial court granted a partial summary judgment in favor of En Seguido. The trial court subsequently severed all other claims into another cause making the partial summary judgment final and appealable. The city appealed. It contended that the trial court erred in granting the motion for summary judgment filed by En Seguido and asserted: 1. En Seguido did not have vested rights to rely on the regulations in effect in 1971; 2. If En Seguido had vested rights, the rights were subject to certain exemptions; 3. The development rights permit issued to En Seguido was void; 4. A vested rights determination as to one tract of land is not relevant to another tract; and 5. The trial court erred in denying the city’s motion for continuance. HOLDING:Reversed and remanded. First, the court stated, denial of a continuance based on lack of time to prepare when the party had at least 21 days notice of the summary judgment hearing is generally not an abuse of discretion. Before the denial of its motion for a continuance, the court already granted the city a 90-day continuance, moving the summary judgment hearing from Aug. 24, 2005, to Nov. 7, 2005. Based on that history, the court held that the trial court did not abuse its discretion in denying the motion for continuance. Second, the city contended that En Seguido did not have any vested rights in development based on the 1971 plat. The city argued that no rights vested, because: 1. En Seguido was not completing the same project identified in the 1971 plat and the 1971 approval was for a specific project not for the property; 2. the 1971 plat was not a required permit that would trigger vested rights; or 3. the project identified in the 1971 plat had become dormant. Texas Local Government Code � 245.002(b), the court noted, states that if a project requires a series of permits, the regulations in effect at the time the permit seeker files the original application for the first permit in the series are the regulations applicable for approval of all other permits required for completion of the project. But according to Texas Attorney General Opinion No. JC-0425, issued in 2001, rights vest in a particular project and are no longer vested if the project changes. The question that should be addressed at trial, the court stated, is whether the project that En Seguido sought to pursue was a change from the project envisioned by the 1971 plat. Accordingly, the court held that the trial court erred in granting summary judgment, because genuine issues of material fact existed with regard to the nature of the project in which En Seguido had vested rights. Third, the court held that a genuine issue of material fact existed with regard to whether En Seguido made sufficient progress toward completion of the project sufficient to prevent the expiration of En Seguido’s permit. OPINION:Lopez, C.J.; Lopez, C.J., and Speedlin and Simmons, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.