Reverse and Render and Opinion Filed December 8, 2014 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-13-01128-CV THE BOARD OF ADJUSTMENT OF THE CITY OF UNIVERSITY PARK, TEXAS, Appellant V. LEGACY HILLCREST INVESTMENTS, LP, Appellee On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. 11-15353 

### MEMORANDUM OPINION Before Justices Francis and Myers and Chief Justice Thomas, Ret. 1 Opinion by Justice Francis The Board of Adjustment of the City of Univ ersity Park, Texas, appeals the trial court’s judgment in favor of Legacy Hillcre st Investments, LP. In three issues, the Board claims the trial court erred by (1) reversing the Board’s decision regarding the City’s zoning ordinance, (2) finding violations of the Texas Open Meetings Act and granting a permanent injunction against the Board to prohibit future violations of the sa me, and (3) awarding Legacy attorney’s fees. We reverse the trial court’s judgment. Legacy is a Texas limited partnership that owns land at 3410-3412 Haynie Street in the City. The two lots are located south of a pla nned development known as Snider Plaza and north of a single-family district. The Southern Methodist University law school lies to the east of the

1 The Honorable Linda Thomas, Chief Justice of the Court of Appe als for the Fifth District of Texas—Dallas, Retired, sitting by assignment.–2– lots, and a multifamily lot borders them to the west. The lots are zoned O for office, P for Parking, and MF for multifamily. Legacy has sought, on various occasions, to deve lop the property by rezoning the lots as PD or planned development. In 2001, Le gacy proposed a 270,500-square-foot building for office, restaurant, and bank use, along with th e City library and YMCA , with an underground parking garage structure. The Planning and Zoning Commission denied the request. In 2006, Legacy requested a zoning change to PD, pr esenting a concept plan for a 320,000-square-foot building for restaurant, retail, office, hotel, bank, library, and multifamily use along with eight single-family use units with an underground parki ng structure. In response to opposition from the area residents and the City, Legacy redu ced the square footage of the building to 312,000 square feet, and later to 260,000 square feet . Again, the Planning and Zoning Commission denied the request. Shortly thereafter, Legacy submitted a request for an amended plan for 217,500 square feet plus eight single-family homes with underground parking. Although the Planning and Zoning Commission voted to approve a PD plan with a total of 135,000 square feet, excluding the eight homes, Legacy withdrew its application. In 2009, Legacy again proposed rezoning the lots as PD with a propos ed building not to exceed 435,000 square feet, including an above-ground parking garage. The City Council agreed to grant a total of 136,000 square feet for the entire deve lopment; this resolution was later rescinded at Legacy’s request. In 2011, Legacy sought a change of zoning of only the parking and office portions of the lots to PD for a 150,000-square-foot mixed-use development to include a hotel, one singlefamily unit, offices, and retail use with “p arking below grade.” Th e Planning and Zoning Commission approved the proposal, subject to a maximum total square footage of 135,000; the proposal was referred to the City Council for a pproval. At the heari ng, Legacy stated it supported the 135,000-square-foot proposal r ecommended by the Planning and Zoning–3– Commission but that it was the “bottom-line level of density and subsurface parking that can realistically be built and still allow a quality de velopment.” Legacy cautioned that if it were denied its rezoning request and limited to bu ilding under the existin g zoning designation of office, the maximum size development would be 108,000 square feet, which would require a three-level, above-ground parking garage to meet the requirements of the code because subsurface parking spaces would not be eco nomically feasible for a 108,000-square-foot development. At the October 4, 2011 City Council meeting, Legacy issued the following
statement: [We have] tried to create an acceptable de velopment proposal that will benefit all parties. . . [We] understand from an earli er Council statement that the Council is going to deny the application today. . . Legacy currently pl ans to develop under existing zoning which will include a thirty-f ive foot parking garage, which . . . is the only economically feasible option to rede velop the site. . . [T]he city has made clear for the past ten years that above-grade pa rking is allowed under existing zoning and Legacy Hillcrest has proceeded in good faith under those assurances. Following this statement, the City C ouncil voted to deny the application. While the fourth PD application was pending, Legacy also sought a permit to allow for construction of an above-ground, multi-level pa rking garage only on the portion of the Haynie lot zoned P, Parking District. Robert Lee Corder III, director of communi ty development for the City, and his department reviewed the applicat ion for compliance with the zoning ordinances, including section 23-101, entitled “P, Parking District.” That section states “[o]nly surface parking lots may be located adjacent to a Single- Family District.” Afte r concluding the Haynie tract was not adjacent to a sing le-family district, despite shar ing a district boundary line, the community development staff approved and prepared to issue the permit. An appeal was timely filed and, following a public heari ng, the Board denied the permit. Rather than appeal the Board’ s decision to the City Council, Legacy filed a writ of certiorari in district court. T EX
. L OC
. G OV ’ T C ODE A NN
. § 211.011 (West 2008). After a three-–4– day hearing, the trial court found the Board erred by overturni ng Corder’s interp retation of the zoning ordinance, concluded the Board’s actions were “arbitrary and cap ricious, an abuse of discretion and . . . not supported by the law or evidence,” and reversed the Board’s decision. The trial court also found the Board committed four vi olations of the Texas Open Meetings Act, issued a permanent injunction against future violat ions, and awarded attorney’s fees to Legacy. This appeal followed. In its first issue, the Board contends the tria l court erred by reversi ng the Board’s decision that the proposed parking garage was not allowed under the City’s zoning ordinance. Under this issue, the Board argues it has the power to inte rpret and apply the zoning ordinance and is not required to defer to staff views or opinions. The Board also contends the P-zoned lot is adjacent to a single-family district and, therefore, a mu lti-level parking garage may not be built there under the City’s zoning ordinanc e. In response, Legacy argues that “adjacent” unambiguously means “contiguous” and section 23-101 permits a mu lti-level parking lot as long as the parking garage structure itself does nottouch the single-family distri ct boundary line. Legacy also argued that the parking structure is not adjacent to a single-family district because the distance from any single-family structure to the walls of a park ing structure would be at least one hundred feet. We apply the same rules to construe munici pal ordinances as those used to construe
statutes. Bd. of Adjustment of City of San Antonio v. Wende , 92 S.W.3d 424, 430 (Tex. 2002); Baird v. City of Melissa , 170 S.W.3d 921, 924

− 25 (Tex. App.

― Dallas 2005, pet. denied). Our objective in construing the zoning ordinance provisions at issue is to discern the City’s intent. See Fitzgerald v. Advanced Spine Fixation Sys., Inc. , 996 S.W.2d 864, 865 (Tex. 1999). We rely on the plain meaning of the text as expressing th is intent unless a different meaning is supplied by definition or is apparent fr om the context, or the plain meaning leads to absurd results. Tex.–5– Lottery Comm’n v. First State Bank of DeQueen , 325 S.W.3d 628, 635 (Tex. 2010). In giving effect to the enactment as a w hole, we should not assign a meani ng to a provision that would be inconsistent with other provisi ons of the zoning ordinance. See Meritor Auto., Inc. v. Ruan Leasing Co. , 44 S.W.3d 86, 90 (Tex. 2001). Even if a statute is ambiguous, the court construes the statute as a matter of law. Arrendondo v. City of Dallas , 79 S.W.3d 657, 667 (Tex. App.

― Dallas 2002, pet. denied). Because statutory c onstruction is a question of law, we review the issue de novo. McIntyre v. Ramirez , 109 S.W.3d 741, 745 (Tex. 2003); Baird , 170 S.W.3d at 925. Section 23-101, entitled “P, Parki ng District” is the zoning ordina nce at issue in this case. It provides, in pertinent part, that “[o]nly su rface parking lots may be located adjacent to a Single-Family District.” C ITY OF U NIV
. P ARK , T EX ., Z ONING O RDINANCE § 23-101 (2011). The term “adjacent” is not defined in the zoning ordinance; thus, we re ly on the ordinary meaning of the word as defined by the dictionary. Heritage Res., Inc. v. NationsBank , 939 S.W.2d 118, 121 (Tex. 1996); Pratt-Shaw v. Pilgrim’s Pride Corp. , 122 S.W.3d 825, 833 (Tex. App.

― Dallas 2003, pet. denied). “Ádjacent” means “to lie near , border on, not distant or far off, nearby but not touching,” “lying near or cl ose to, but not necessarily touchi ng,” “close to, lying near.” See
W EBSTER ’ S 3 RD N EW I NT ’ L D ICTIONARY 26 (1993); B LACK ’ S L AW D ICTIONARY 49 (10th ed. 2014); T HE A MERICAN H ERITAGE D ICTIONARY 21 (4th ed. 2000). The ordinance also provides that the boundaries of districts “indicated as approximately following streets . . . shall be construed to follow the centerline of such street.” C ITY OF U NIV
. P ARK , T EX ., Z ONING O RDINANCE § 6-101. Corder testified the Haynie pa rking lot district boundary line and the single-family district boundary line immediately to the south of the lot meet in the middle of Haynie Street. The two districts share a common border and touch. Using the plain meaning of adjacent, the lots are near or close to each othe r. Because the City’s zoning ordinance provides–6– that only surface parking lots may be located “near ” or “close” to a single-family district, we conclude the Board correctly determined a mu lti-level, above-ground park ing garage structure was not allowed on the Haynie lot zoned “P” and that only a surface parking lot may be located there. In reaching this conclusion, we necessarily reject Legacy’s c ontention that th e wording of section 23-101 permits a multi-level parking lot so long as the parking garage structure itself did not touch the single-family dist rict line. Under Legacy’s in terpretation, a parking garage structure would be prohibited because it would be adjacent only if it were built in the middle of Haynie Street. The plain and common meaning of adjacent, however, is close or near, and may include but does not require touching or contiguity. See W EBSTER ’ S 3 RD N EW I NT ’ L D ICTIONARY 26 (1993); B LACK ’ S L AW D ICTIONARY 49 (10th ed. 2014); T HE A MERICAN H ERITAGE D ICTIONARY 21 (4th ed. 2000). Our mandate is to presum e the City selected the language in the ordinance with care, intending every word or phrase was used with a purpose in mind, and to avoid constructions that lead to absurd results. See Tex. Lottery Comm’n , 325 S.W.3d at 635. Because Legacy’s interpretation of section 23-101’ s language would lead to an absurd result, we decline to follow it. We sustain the Board’s first issue. In its second issue, the Board contends th e trial court abused its discretion by granting Legacy’s request for a permanent injunction. Th e Board claims there is no evidence to support the trial court’s findings that (1) the Board did not keep minutes of its work sessions, formally convene its work session, or properly meet in cl osed session as requir ed by TOMA, and (2) the chairman of the Board did not identify the applic able sections of TOMA at the conclusion of the work session. The Board further argues that, evenif there is evidence to support the findings of violations, the trial court abused its discretion b ecause there is no evidence the alleged violations will probably recur and the inj unction enjoined lawful conduct.–7– When a party attacks the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof, it must demons trate on appeal that no evidence supports the adverse finding. Croucher v. Croucher , 660 S.W.2d 55, 58 (Tex. 1983). We sustain a legal sufficiency challenge if “the evidence offered to pr ove a vital fact is no more than a scintilla.” Akin, Gump, Strauss, Hauer & Feld, L.L. P. v. Nat'l Dev. & Research Corp. , 299 S.W.3d 106, 115 (Tex. 2009). In conducting our review, “we cr edit evidence that supports the verdict if reasonable jurors could have done so and disregard contrary ev idence unless reasonable jurors could not have done so.” Id . “The final test for legal suffici ency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005). A legal sufficiency challenge will be sustained when (1) there is a co mplete absence of evidence of a vital fact, (2) the court is barred by rules of law or of eviden ce from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusive ly establishes th e opposite of th e vital fact. Merrell Dow Pharm., Inc.
v. Havner , 953 S.W.2d 706, 711 (Tex. 1997). Generally, meetings of governmental bodie s must be open to the public. T EX
. G OV ’ T C ODE A NN . § 551.002 (West 2012). Section 551.021 states that a governmental body shall prepare and keep minutes or make a r ecording of each open meeting of the body. Id

. § 551.021. Section 551.071 provides a governmental body may not conduct a private consultation with its attorney except to discuss “pending or contempl ated litigation” or “on a matter in which the duty of the attorney to the governmental body under th e Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clear ly conflicts with this chapter.” Id . § 551.071. Regarding whether a closed meeting is al lowed, section 551.101 provides, a governmental body may not conduct the cl osed meeting unless a quorum of the governmental body first convenes in an ope n meeting for which notice has been–8– given as provided by this chapter and dur ing which the presid ing officer publicly: (1) announces that a closed meeting will be held; and (2) identif ies the section or sections of this chapter under wh ich the closed meeting is held. Id . § 551.101; see Weatherford v. City of San Marcos , 157 S.W.3d 473, 485, 486 (Tex. App.

― Austin 2004, pet. denied) (before closing meeting, presiding officer must publicly announce intent to go into closed meeting and identify statut ory basis for doing so, and statement “pursuant to the Government C ode, Section 551.071” is sufficient) . TOMA also provides that “[a]n interested person . . . may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of this chapter by members of a governmental body.”
T EX
. G OV ’ T C ODE A NN . § 551.142(a). Corder and Lon Houseman, chairman of the Board, each testified no one took minutes at the November 29, 2011 work session preceding the public hearing on Legacy’s application. Houseman said he had been on the Board fifteen years and durin g that time, they had “never taken Minutes of the work sessi on.” The record clearly shows th e Board did not take minutes or otherwise record the work sessions in viol ation of section 551.021. However, according to Corder, the Board is now taking minutes of the work sessions; t hus, the record also shows the Board has corrected the deficiency. Under these circumstances, we conclude a permanent injunction serves no useful purpose. See Tex. State Bd. of Public Accountancy v. Bass , 366 S.W.3d 751, 765 (Tex. App.

― Austin 2012, no pet.) (vacating pe rmanent injunction because no evidence of ongoing or prospective conduct supporti ng need for same). Finally, we note nothing in the record shows Legacy established the existence of imminent harm, the existence of irreparable injury, and the absence of an adequate remedy at law. See City of Fort Worth v. Groves , 746 S.W.2d 907, 913 (Tex. App.

― Fort Worth 1988, no writ) (permanent injunction on TOMA violations inappropriate in light of “lack of demonstrated probable irrepara ble injury”).–9– In light of this, we conclude the trial cour t abused its discretion by issuing a permanent injunction regarding the taking of mi nutes or recording work sessions. With respect to the remaining three violations , we have reviewed the record and conclude there is no evidence to support the trial court’s findings. Regarding the finding the Board did not “formally convene its work se ssion,” section 551.101 provides a closed meeting may be held only after a “governmental body first convenes in an open meeting.” T EX
. G OV ’ T C ODE A NN . § 551.101. “Convene” is not defined in TOMA; the co mmon or plain meaning of convene is to come together, to meet, or to assemble. W EBSTER ’ S 3 RD N EW I NT ’ L D ICTIONARY 497 (1993). Nothing in TOMA mandates a particular manner in which to convene meetings nor does the trial court’s order set out any particul ar method of convening a meeting. In light of this, we cannot conclude the Board violated TOMA by failing to “formally convene its work session.” As for the finding the Board did not identify the TOMA sections at the conclusion of its work session, Legacy acknowledged in its brief that “Houseman apparently stated the statutory exception” for the closed executive session. Finally, with respect to the finding the Boar d did not properly meet in closed session under section 551.071(2), the record shows Housem an and current Board chairman Edward Moore testified the Board held a brief executive session following the work session to seek confidential legal advice from th e City Attorney. The advice sought concerned two of the cases under consideration that day (one of which was the permit for the multi-level parking garage) and included “what actions [the Board] could ta ke and what the responsibilities of the Board were in connection with the appeal of a deci sion of a building offici al.” The evidence established that the merits of the cases were not discussed, no votes we re taken, and no motions or documents were drafted during the executive se ssion. Houseman and Moore said they were the only Board members who asked questions of th e attorney, and no one el se spoke. Contrary–10– to the trial court’s finding, th is evidence shows the Board prope rly met in closed session under section 551.071(2). See Tex. Att’y Gen. Op. No. JC-0233 (2000) (subsection 2 incorporates attorney-client privilege); Tex. State Bd. of Public Accountancy , 366 S.W.3d at 759. Because there is no evidence to support th e trial court’s finding of the re maining three TOMA violations, we conclude the trial court abus ed its discretion by issuing a pe rmanent injunction. We sustain the Board’s second issue. In its final issue, the Board contends the tr ial court erred by awardi ng Legacy attorney’s fees and costs incurred by litig ating its allegations of TO MA violations. Section 551.142 provides that the trial court, in its discretion, “may assess co sts of litigation and reasonable attorney fees incurred” by a party who “substantially prevails” when bringing an action by injunction to stop, prevent, or reverse a TOMA violation. T EX
. G OV ’ T C ODE A NN . § 551.142(a), (b). Because we have conclude d the trial court abused its di scretion by granting the permanent injunction, it follows that Legacyhas not “substantially prevaile d” in its TOMA claims. We sustain the Board’s third issue. We reverse the trial court’s judgment and rende r judgment reinstati ng the Board’s order.

131128F.P05 /Molly Francis/ MOLLY FRANCIS JUSTICE–11– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

THE BOARD OF ADJUSTMENT OF THE CITY OF UNIVERSITY PARK, TEXAS, Appellant
No. 05-13-01128-CV V. LEGACY HILLCREST INVESTMENTS, LP, Appellee On Appeal from the 191st Judicial District Court, Dallas County, Texas Trial Court Cause No. 11-15353. Opinion delivered by Justice Francis, Justice Myers and Chief Justice Thomas, Ret., participating.

In accordance with this Court’s opinion of this date, we REVERSE the trial court’s judgment and RENDER judgment reinstating the decision of the Board of Adjustment of the City of University Park, Texas. It is ORDERED that appellant THE BOARD OF ADJUSTMENT OF THE CITY OF UNIVERSITY PARK, TEXAS recover its costs of this appeal from appellee LEGACY HILLCREST INVESTMENTS, LP.
Judgment entered this 8th day of December, 2014.