Carruth v. Henderson

606 S.W.3d 917

Elizabeth CARRUTH, Matthew Tietz, Janis Nasseri, Judith Kendler, and Stephen Palma, Appellants

v.Lisa HENDERSON, in Her Official Capacity as City Secretary, Appellee

No. 05-19-01195-CV

Court of Appeals of Texas, Dallas.

Opinion Filed July 22, 2020

Jack G. B. Ternan, Ternan Law Firm, PLLC, 1400 Preston Road, Suite 400, Plano, TX 75093, for Appellants.

Amy Warr, Wallace B. Jefferson, Alexander Dubose Jefferson & Townsend LLP, 515 Congress Avenue, Ste. 2350, Austin, TX 78701, Paige Mims, City of Plano, PO Box 860358, Plano, TX 75086-0358, William A. Taylor, Andy Taylor & Associates, P.C., 2628 Highway 36 S #288, Brenham, TX 77833, for Appellee.

Before Justices Schenck, Molberg, and Nowell

Opinion by Justice Schenck Elizabeth Carruth, Matthew Tietz, Janis Nasseri, Judith Kendler, and Stephen Palma, residents and qualified voters of the City of Plano, appeal the summary judgment in favor of the city secretary of the City of Plano ("City Secretary") in their suit seeking to compel the City Secretary to present a citizen's referendum petition concerning the Plano Tomorrow Comprehensive Plan to the Plano City Council ("City Council"). In a single issue, appellants urge the trial court erred in granting the City Secretary summary judgment and in denying their motion for summary judgment. We reverse the trial court's summary judgment in favor of the City Secretary, render judgment in favor of appellants, and direct the district court to issue a writ of mandamus, as requested by appellants below, ordering the City Secretary to present the referendum petition to the City Council.

HOME-RULE MUNICIPALITIES , COMPREHENSIVE PLANS , AND REFERENDUMS

Home-rule municipalities, such as the City of Plano, "derive their powers from the Texas Constitution," "possess the full power of self government," and generally, "look to the Legislature not for grants of power, but only for limitations on their power." In re Sanchez , 81 S.W.3d 794, 796 (Tex. 2002) (quoting Dallas Merch.'s & Concessionaire's Ass'n v. City of Dallas , 852 S.W.2d 489, 490–91 (Tex. 1993) ).¹ Given the broad grant of power to home-rule municipalities, it has long been understood that such cities have enjoyed the authority to develop and promulgate long-term plans to protect the health, safety and welfare of their citizens. In 1997, the legislature conferred similar powers on general-law municipalities. TEX. LOC. GOV'T CODE ANN. §§ 213.001 –.006. The City Secretary urges that this enactment—and its interplay with municipal zoning ordinances—has the effect of divesting the right of citizens to initiate referenda. As detailed below, we disagree. Because the relationship between a city charter, legislative regulation of comprehensive plans in Chapter 213, and the citizens' right to initiate referenda, is complex and subject to well-developed and distinct rules of construction, we will begin with a discussion of their general operation.

Chapter 213 of the local government code now comprehensively addresses municipal comprehensive plans. It provides that the governing body of any municipality "may adopt a comprehensive plan" for the long-range development of the municipality, including provisions on land use, transportation, and public facilities, and provides that such a plan or coordinated set of plans may be used to coordinate and guide the establishment of development regulations. Id. § 213.002(a),(b)(1)(3) (emphasis added). As to procedure, the legislature provided a long-term plan "may be adopted or amended by ordinance" after a public hearing allowing testimony and written evidence and review by the city's planning commission or department, if one exists, or a city may establish in its charter or by ordinance the procedures for adopting and amending a comprehensive plan. Id. § 213.003 (emphasis added); see also 2 TEX. PRAC. GUIDE REAL ESTATE LITIG. § 8:47. Zoning regulations must be adopted in accordance with a comprehensive plan, if one exists. LOC. GOV'T § 211.004; 2 TEX. PRAC. GUIDE REAL ESTATE LITIG. § 8:44 (no requirement in state law that a municipality adopt a comprehensive ordinance that will constitute its "comprehensive plan") (citing Bernard v. City of Bedford , 593 S.W.2d 809, 812 (Tex. Civ. App.—Fort Worth 1980, writ ref'd n.r.e.) ); 2 TEX. PRAC. GUIDE REAL ESTATE LITIG. § 8:53 (where a municipality has a separately adopted comprehensive plan, the law is settled that the adopted comprehensive plan must, by statutory mandate, serve as the foundation for subsequent zoning amendments) (citing Mayhew v. Town of Sunnyvale , 774 S.W.2d 284, 294–95 (Tex. App.—Dallas 1989, writ denied) ). The legislature was also aware of the potential interplay with zoning rules. It separately required that maps of a comprehensive plan must contain the statement that a "comprehensive plan shall not constitute zoning regulations or establish zoning district boundaries." LOC. GOV'T § 213.005 (emphasis added).

Meanwhile, the citizens of Texas municipalities have long enjoyed the power to initiate "referendums" and "initiatives." A "referendum" is the practice of submitting a question to the voters of whether legislative action taken by a governmental body should stand. An "initiative" is the right of a citizen, or a defined number of citizens, to originate legislation by submitting it to the voters of the jurisdiction. John Martinez, Direct Participation: Initiative and Referendum , 1 LOCAL GOV'T LAW § 9:3 (2020). Municipal charters may address each of these powers. The powers of initiative and referendum, as provided for in a city's charter, are the exercise by the people of a power reserved to them and not the exercise of a right granted, and in order to protect the people of the city in the exercise of this reserved legislative power, such charter provisions should be liberally construed in favor of the power reserved. Taxpayers' Ass'n of Harris Cty. v. City of Houston , 129 Tex. 627, 105 S.W.2d 655, 657 (1937). It is uncontested here that, with limited exceptions, these powers have been reserved by the citizens of Plano.

Specifically, the City of Plano's Home Rule Charter (the "Charter") permits qualified voters to submit a referendum petition seeking reconsideration of and a public vote on any ordinance, other than taxation ordinances. PLANO , TEX. , HOME RULE CHARTER § 7.03. The referendum petition must be filed with the City Secretary within thirty days of passage or publication of the ordinance and be signed and verified as required by section 7.02 of the Charter. Id. Section 7.02 provides that a petition must be signed by at least twenty percent of the qualified voters at the last regular municipal election, or one hundred fifty, whichever is greater. Id. § 7.02. "Immediately upon the filing of such petition, the person performing the duties of city secretary shall present said petition to the city council." Id. § 7.03 (emphasis added).

After presentation of a referendum petition by the City Secretary, the City Council "shall immediately reconsider such ordinance or resolution and if it does not entirely repeal the same, shall submit it to popular vote as provided in section 7.02 of this charter." Id. Upon submission of the ordinance to popular vote, "[p]ending the holding of such election, such ordinance or resolution shall be suspended from taking effect and shall not later take effect unless a majority of the qualified voters voting thereon at such election shall vote in favor thereof." Id.

The City Secretary contends that in enacting Chapter 213, in light of earlier judicial decisions limiting the right to pursue an initiative as it respects zoning regulations, the legislature intended to remove the citizens' power under the City of Plano's Charter to present the referendum at issue here. For the reasons set forth herein, the City Secretary's contention lacks merit.

BACKGROUND

On October 12, 2015, following public hearings and review by the city planning department, the City Council adopted ordinance 2015–10–9 (the "Ordinance") establishing a new comprehensive plan, known as the Plano Tomorrow Comprehensive Plan (the "Plan"), and repealing the previous comprehensive plan, adopted in 1986. Immediately thereafter, several citizens began collecting signatures on a petition seeking a referendum under the provisions of the Charter. On November 10, 2015, the petition was presented to Lisa Henderson, the City Secretary.

Although the City Secretary did not make a formal presentment of the petition to the City Council, the City Council met on November 23, 2015, to discuss the petition and was advised by outside counsel that "zoning regulations" are not subject to a referendum vote.²

When no action was taken on the petition,³ appellants filed suit against the City of Plano, the City Secretary, the Mayor, and the members of City Council (collectively the "City") seeking a writ of mandamus directing the City Secretary to present the petition to the City Council and, in turn, directing the City Council to either reconsider and repeal the Plan or submit the referendum to popular vote. In addition, appellants sought a declaration that, pending approval by the voters in a referendum, the Plan is suspended and other, related declarations.

The City filed a plea to the jurisdiction challenging the ripeness of the controversy and asserting governmental immunity. The trial court denied the plea, and the City sought review of that ruling by interlocutory appeal in 2016.

This Court resolved that appeal by concluding the petition for writ of mandamus against the City Secretary was ripe for decision and subject to the ultra vires exception to governmental immunity although the claims against the City Council were not yet ripe.

City of Plano v. Carruth , No. 05-16-00573-CV, 2017 WL 711656, at *4 (Tex. App.—Dallas Feb. 23, 2017, pet. denied) (mem. op.).⁴ Both sides sought review in the Supreme Court of Texas. That court denied the parties' petitions. Consequently, at this juncture, ap...