Reversed and Re ndered and Majority and Concurr ing Opinion s filed Oct o ber 27 , 2020.

In The 

## Fourteenth Court of Appeals

NO. 14

- 18

- 00778

- CV

CITY OF DICKINSON, TEXAS , Appellant
V.
LARRY STEFAN , Appellee
On Appeal from the 122nd District Court Galvest o n County, Tex as Trial Co urt Cause No. 17

- CV

- 1494



### M A J O R I T Y O P I N I O N Appellant/defendant City of Dickinson, Texas ap peals the trial court ’ s denial of its plea to the jurisdiction , arguing that the trial court lacks jurisdiction over appellee/ p laintiff Larry Stefan ’ s claims because S te fan failed to exha ust his administrative remedies. C o nclud ing that th e trial court lacks jurisdiction, we

reverse an d re nder judgment dismissing S tefan ’ s claims



### .2 I. F A CTUAL AND P ROCEDURAL B ACKGROUND
In December of 1 999, Stefan purchased a home on approxim a t ely 6.75 a cres

o f lan d located at 4520 Pl antation Bend in Dickinson, Texas (the “ Property ” )

. The P roperty is located in a r esidential neighborhood on Dickinson Bayou

. In addition to living w ith his wife on the P r operty , Stefan operates a computer busin e s s, Data Functions, from his home. He star ted Data Functions in 1985, and has owned and operated it since that time

. About a year after Stefan purchased the home, he allowed a women ’ s group from his church to hol d a C hristma s reception on the Proper t y
. S tefan received no money for allowing the Property to be used for the eve nt , but Stefan says t hat his church gave him a rece ipt showing a $2 , 000 donat io n that Stefan was able to utiliz e on h i s tax return.
The fol lowing summer , the City adopted Chapter 1 8 of the Code of Ordinances of the City of Dickinson, Texas, entitled “ Zonin g ” ( the “ Zoning Ordinance” )

. Under the Zoning Ordinance, the P roperty is located in the Conve ntional Residential Distric t. The Zoning Ord inance doe s not, as a matter of rig h t , allow wedding event venues, or any simi lar commerc ial ass embly uses, to b e located in the Conventional Residential District

. Code of Ordinances, Dickinson, Tex. , ch. 18, ar t. IV, § 18

- 50 (a)

. In addit ion to allowing si ngle

- family residential

uses , the Z o n ing Ordinance permits a number of other u ses as a matter of right, including home occupations incidental to a residential permitted use and p rivate recreationa l facilities owned and operated by or on behalf of a resi den tial subdivision or development

. I d

. T he Zoning Ordinance provides that a p re
- existing noncon forming use may continue , subject to the t erms of Article X of the Zoning Ordinanc e

. Id . at art. X , § 18

- 105

. A pre

- existing nonconforming u se under the Zonin g Ordinance includes3 an existing use t hat is not in conformance with the re gulat ions of the zo ning district in which it is located bu t lawfu lly existed when the City adopted t he Zoning Ordi nance. Id . at art. X, § 18

- 107. The City does n ot contest Stefan ’ s operating of Data Functions on the P roperty before the City adopted the Zonin g Ordinance

. The city administrator must appoi nt a z oning o fficial , or d esignee, whose duties include the administration and enforcement of the regulations in the Zoning Or dina nce (the “ Zonin g Official ” ). Id

. a t art. III, § 18

- 13. Under the Zoning Ord inance, the Zoning Official has a duty and respon sibility to maintain all records related to the enfor ce men t and procedures of the Zoning Ordinance. Id

. The owner of a lot u pon which a nonconforming use exis ts m u s t register the nonconforming use with the Z oning O fficial within one year after the date the City adopted the Z oning Ordinance ( July 24, 2 001 ) , or, as applicable, within one year after the adoption of any amendment to th e Zoning Ord inance that makes the u s e nonconforming. Id . at art. X, § 18

- 1 15

. If an owner registers a nonconforming

use , the owner shall be issue d a “ certifica te of occupanc y n onc onforming, ” with a brief description of the noncon for mi ty, which shall ther eafter be considered as evidence o f the lawful existence of the nonconformin g use ( “ Certific ate of Occupancy Nonconforming ” ). Id

. T he Zoning Ordi nance requir es that the Z oni ng O fficial maintain on file for the Ci ty all ce rti ficates of occupancy nonconfor ming. Id

. If an owner does not r e g ister a nonconforming use , thereafter the C ity must require proof by the owner that the use was lawfully existi ng on July 24, 2001 , or at t he time of the adoption of any applicable amendm ent to the Zo ning Or d inance ,
or t he nonconforming use shall be deem e d unlawful and a violation of th e Zoning O rdinance

. Id

. Establishing a pre

- existing nonconforming use allows a property owner to continue th e same nonconform ing use after the City adopted the Z oning4 O rdinance, but no m ore. Id. at a rt. X., § 18

- 1 10(b). I n other words, the property

owner cannot expand the nonconforming use by building structures o r other improvements that were not in existenc e before the City adopted the Z oning O rdinance

. Id

. In June 2002, Stefan filled out a City of Dickinson form enti t l ed “Nonconforming Use Registration

. ” On t he form, St efan handwrote that he had bee n using the P roperty as “business & multi

- family” before adopti on of the Z oning O rdinance. Stefan did not s pecify th e business use to wh ich he referred. Stefan did not s t a te whether he was referring to the operat ion of his computer business , Data Functi ons, or some other business

. Stefan did not write “events , ” “w edding venue,” “event center,” or any thin g else that wo uld indicate he had been using the P roperty for even ts

. Dani M . Olson signed the form i n June 20 02

. S tefan received a copy of the signed document (the “ Registration Doc ument ” ) in 2002 , and he k ep t that copy

. Stefan asserts that Dani Olson was the Zoni ng Official for the Ci ty at the time , and we presume th i s stateme nt to be true. The City concede d in the trial court that the Re gistration Document is a uthentic

. Zachary Meado ws , the City ’s Zoning Offici al at the time of the procee d ings in the trial court , testif ied that he c ould not find the Registration Do c u m ent in the C ity ’ s records but that his f ailure to find the Registration Document does not “ validate or invalidate the possible use of the [ P] roperty. ” Stefan has not pro d uced a Certific ate of Occupan c y Nonconforming , no r has Stefan asserted th at the Ci t y ever issued

one. In F ebruary 2017, the City received a complaint from one of the res i dents on Plantation Bend about a pavilion that was und er construct ion in Stefan’s front yard. Upon investig ation, Meadows determined that Stefan had not obtaine d a bu i l d ing permit f or the pavilion, so he visit ed the P roperty with the City’s b uilding o fficial and f ire m arshal

. When he arrived at the Pro p erty, Meado ws saw a large pavilion5 under constr uction , and a man who was working on the construction of the pavil ion

. T he man spoke with Stefan , and Stefa n came out of his house to talk to Mead ows. Meadows tried to figure out the use of the Property because Meadows thought t hat t h e construction of a struct ure as big as t he pavilion wou l d not be for resi dential use. Meadows asked Stefan to explain why St efan was having the pavilion built , and Stefan stated th at he had an approv a l to have a business on the P roperty and tha t he hosted weddings on the Property

. Stefan went into his house

an d returned wit h a co p y of the Registration Document. M ea dows told Stefan that Meadows would hav e to d o some research into the Registration Doc u me nt and the Prop erty and that after d oing s o , he would contact Stefan

. Meadows could no t find any records regar ding a no nc o n f o r ming u se on the Property. Meadows calle d Stefan on the phone and told him that even if he established a nonconform ing use on t he Prope rty , the pavilion was an ex pansion of that use

. See i d. at a rt. X., § 18

- 1 10(b). Meadows told Stefan th at the only way to al l o w the construction of the pavilion to conti nue would be for Stefan to obtain a specific use p ermit. The Zoning Ordinanc e provide s that the Dickinson City Council , af ter receivi ng the recommendation of the Planning and Zo ning Co mmiss ion (the “C ommi s sion ” ) , by ordinance may grant a specific use permit for certain uses in locations and zoning districts in which the uses are no t otherwise
p ermit ted by the Zoning Ordinanc e. I d. at art

. III

. , § 18

- 14; id

. at a rt. V ., § 18

- 5 7

. The Zoni ng O rdinance r equi r es a s pecific use permit befor e property i n the C onventional R esidential D ist rict may be use d for a “S pecial E vent C enter o n fiv e (5) or more acres

. ” I d. at a rt. V ., § 18

- 5 8

. A “ special event center , ” a s th a t term is used in th e Zoning O rd inance, is a “ privat e facility available for lease, incl uding the grounds and buildings, who se primary purpo se is to host conferences,

mee tings, receptions, reunions, weddings , or a ny other gathering (formal or informa l) th at is temporary in nature ” ( “Sp ec i al Eve nt Ce nt er ”).6 Stefa n submitted a form al req uest t o Meadows, ask ing Meadows to i ssue a Certificate of Occupanc y Nonconforming under section 18

- 115 of the Zon i ng Ord inance. Id . at art. X, § 18

- 1 15

. Stefan asserted that he had been o perating a Specia l Event Cent er on th e Property since December 16, 2000. In support o f this request, Stefan s ubmitted ev idence of the Christma s reception on the Proper t y he ld on December 16, 2000. On October 18, 2017, Meadows sent Stefan a letter denying Stefan ’ s reques t for a Cert if icate o f Occupanc y Nonconforming . Meadows stated that, after reviewing all of the documentation Stefa n provided , Meadows de te rmined that Stefan is not eligible for issuance of a Certificate of Occupan c y Nonconforming for the u se of a ny p o rti on of the Pr op erty a s a S pecial Event Center . Meadows

s tated that the only evidence Ste fan presented con cerning the use of the Property a s a Special Event Center was evidence of the December 16, 2000 Chri stmas

rec eption , which , by Stefan ’ s admission , did not involve th e exch a nge of money for the use of the Pro perty. Meadows also sta ted that Stefan had not provided any

ev idence to establ ish that he continued to use the Property for gatherings after Decembe r 16, 2000

. Meadows no ted that a nonconform ing use of land or a

s truct u r e that is discontinued or remains vacant for a continuo us period of six months is presumed to be aban doned and s h all not ther eafter be reestablished or resumed. See i d . at art. X, § 18

- 1 10

. M eadows denied Stefan ’ s request for a Certi ficate of O ccu panc y N onconforming and demand ed that Ste fan cease any us e of the Property as a Special Event Center. M eadows stated th at S tefan may not use the Property for any purpose other than the uses permitted in a C onvent ional R esidentia l D istrict. Meadows war ned Stefa n that if Stefan con tinued to use t he Property in an unauthorized manner , the City would issue citations for violation of the Zon ing Ordinance

. Meadows told Stefan tha t he had the right to appeal7 Meadow s ’ s decision to the City ’ s b oard of a djustme nt ( “ Boar d of Adjustment ” ) and that Stefan a lso had the ri ght to apply for a specific use permit for use of the Prope rty as a S pe cial Eve nt Center. See i d. at a rt. III ., § 18

- 3 7 ; i d. at a rt. V ., § 18

- 5 7

. Meadows said that until the use of the Property as a Specia l Event Center is otherwise lawfull y permitted, any further use of the Property for this p urpose is prohibited by the Zo ning Ordinance.
S te fan applied for a specific use permit and attended a meeting of the Commis sion at which the C om mission con sid ered w h ether to recommend that the City C ouncil app rove Stefan ’ s application. See i d. at a rt. V ., § 18

- 5 7

. By a unani mous v ot e, t he Commission recommend ed denial of Stefan ’ s application. Despite this recommendation, the City Council still h ad the auth ori ty to g rant Stefan ’ s application for a sp ecific use permit

. See i d. Though the City Council planned to con sider Ste fan ’ s a pplication at a me e tin g , just be fore that meet ing Stef an asked that h is ap plic ation not be considered at the meeting, and since t hen S tefan has not asked the City Council to consider h is application. Honoring this request , the City Counc il h as not conside red S tefan ’ s application for a specific use permit

. Stefan appeal ed Meadow s ’ s decision to the B oard of Adjustment . Af ter conside rin g Stef a n ’ s appeal and the evidence presented, the Board of Adjustment issue d an “ Order Denying Appeal, ” in whic h t he Board o f Adj ustm ent stated that Meadow s ’ s decision stands and only those uses permitted in a Conventional Residential Distric t are allowed on th e Property. The Board of Adjustment ’ s or der was filed on December 1 2, 2017. T wo days later, Stefan filed t hi s lawsuit agai nst the C ity

. In his live petition, Stefan makes the following allegations :

• Stefan bought the Property in Decem ber 1999 , with t he i n tent to use8 the Property “ for s pecial e vents center/weddings

. ”

• The Registratio n Document was approved on June 17, 200 2.

• St efa n has used th e Property as a “ Special Event Center/Wedding Chape l

. ”

• The first sp ecial even t occurred on Decem ber 16 , 2 000.

• Sin c e December 16 , 2000, S tefan has continua lly used the Property for a “ Special Event Center/Wedding Chape l ” without inte rrupt ion until 2017 , when the City began a course of con duct to close Stefan ’ s bus i ness.

• Stefan did not apply for a building permit for t he pavilion because he thought he was “ grandfathered ” based on the Registration Document.

• Stefan re qu est ed that Meado ws i ssue a Certificate of Occupanc y Nonconforming , and Meadows denied the application.

• Stefan appealed Meadows ’ s de cis i on to the B oar d of Adjustment , which den ied Stefan ’ s ap peal. Stefan asked the trial court for a declaratory judgment , declar ing th e P ropert y “ to be ‘ Grand

- fathered ’ from the City of Dickinson zoning law. ” Stefan also asserted a n inverse

- condemnat ion cl aim under ar tic le I , section 1 7 of th e Texas Constitutio n. Stefan sought a temporary injunction , a permanent injunc tion, and reasona ble and n ecessary attorney ’ s fees. The City f iled a plea to the jurisdict ion, attaching evidence, and asserting that the tr ial court lac ked j urisdi ction because Stefan failed to exhaust hi s

a dministrative remedies by failing to seek judi cial review of th e Bo ard of Adjustment ’ s decision under Texas Lo cal Go vernment Code section 2 1 1.011. T he trial court denied the City ’ s plea to the juri sdi ctio n , and the City ti mely filed this int erlocu tory appeal

. II. I SSUE S AND A NALYSIS Though Stefan generally refers to his cl aims as a declaratory

- judgment cla im and a taking s claim, Stefan states on appeal that he has “ presented . . . a Chapter9 245 cl a im fo r d eclar a tory relief. ” See T ex. Loc. Go v ’t Code Ann. § 2 45 .0 01, et
seq
. (West, Westlaw through 2019 R.S.). Stefan also states that chap ter 245 of the Local G overnm ent Code authorize s declaratory relief to en force a vested right , and Stefan in dicates that ch apter 245 authorize s h is declar at ory
- ju dgment c la im

. Liberally cons tru ing Stefan ’ s appellate brief, we conclude that S tefa n argues that he plea ded an independent claim for declarat or y relief under chapter 2 45. See Tex. Loc. Go v ’t Code Ann. § 2 45 .0 0 6. (We st, W e stlaw through 2019 R.S.) (stat ing

“ [t]h is chapter may be en forced only through mandamus or dec larator y or injun ctive relief ” ). So, we begin by addressing whether Stefan ple a d ed this claim in the trial court.
A. D id Stefan plead a c laim f or declarator y r elie f unde r chap ter 245 of t h e Local Gove rnment Code ? The Local Government Code defines key terms relevant to our an alysis of Stefan ’ s pleadings and ou r assessment of whether they contain a chapter 245 claim for declaratory relief

. U nder ch apter 245 , “ ‘ [p ] ermi t ’ means a license, certificate, approval, registr ation, consent, permit, contract or other agreement for constr uction related to, or provision of, service from a water or wastewater utility owned, operated, or controlled by a regulator y agency, or ot h er f o rm of authorization required by law, rule, regula tion, order, or ordinance that a person must obtain to perform an action or initi ate, continue, or complete a pro ject for which the permit is sought

. ” Tex. Loc. Go v ’t Code Ann

. § 2 45 .0 0 1(1) (Wes t, Wes t law t hrough 2019 R.S.)

. According to the same chapter , “ ‘ [p] roject ’ means an endeavor over which a regulatory agenc y exerts its ju risdiction and fo r which one or more permits are required to initiate, continue, or complete the endeavor

. ” T ex. Loc. Go v ’t Code Ann. § 2 45 .0 0 1(1) (West, Westlaw through 2019 R.S.)

. T he operation of an

on going bus iness is not a “ pr oject ” w ithin the mean ing of chapte r 245

. S ee Anderton v. Cit y of Cedar Hill , 447 S.W

. 3d 84, 95

– 96 (Tex. App.

— Dallas 2014,10 pet. den ied). C hapter 2 4 5 re q uir es th at “[e] ach regulatory agency shall consider the approval, disapproval, or conditional approval of an a pplication for a permit solely on the basis of any orde rs, regulations, ordinances, rules, expiration dates, or other proper ly adop ted requi r emen t s in eff ect at the time: (1) the original applicatio n for the permit is filed for review for any purpose, incl uding review for administrative compl eteness; or (2) a plan for development of real property or plat application is filed wi th a re gulatory a genc y
. ” Tex. Loc. Go v ’t Code Ann. § 2 45 .0 0 2 ( a ) (West, Westlaw through 2019 R.S.)

. Rights to which a perm it applic ant is entitled under chapter 245 “ accrue on the filing of an original application or plan for development or plat applicat ion tha t giv es t h e re g ulatory
agenc y fair notice of the project and the nature of the permit sought

. ” Tex. Loc. Go v ’t Code Ann. § 2 4 5 .0 0 2 ( a
- 1 ) (emph asis added). If a series of pe rmit s is required for a project, the orders, regulations, ordinances, rules, expirat ion dates , or

o ther properly adop ted requirements in effect at the time the o riginal application for the first permit in that series is filed shall be the sole basis for co nsid eration of all subsequent permits required for the project ’ s completion

. Tex. Lo c. Go v ’t Code Ann. § 2 45 .0 0 2 ( b )

. All pe rmits required for the project are considere d to be a single series of permits

. Id

. Chap ter 24 5 may be enfor ced through declaratory relief. See Tex. Loc. Go v ’ t Code Ann. § 2 45 .0 0 6.
I n his live plea ding, Stefan do es not c ite c hapter 245 or any o f its secti ons

. Though Stef an se ek s declarat ory relief, he doe s not invoke chapter 2 45 or p oint to it as a bas is for any relief. P arties usually seek declaratory relie f under the Texas Declaratory Ju dgments Act. S ee Tex. C iv Pr a c

. & R e m. Code Ann. § 37.001, et
seq
. (West, Westla w through 2019 R.S.)

. Stefan does not allege in his pleading that he has a vested right based on the Re gistratio n Docume nt. Stefan does not mention the word “ project” or assert that his c la ims inv olve an y pro j ect

. Stefan11 do es not assert i n his live pleading that any entity consi der ed h is application for a
pe rmit bas e d on orders, regulations, ordinances, rules, expiration dates, or other requi rements that took effect after Stefan filed the o riginal applic a tion for the permit

. Nothing in th e pleading suggests Stefan seeks relief unde r c hapter 245. Pleadings must give r easonable notice of the claims asserted. SmithKline Beecham Corp. v. Doe , 903 S.W.2d 347, 354

– 55 (Tex. 1995)

. The City did not
spec ially e xcep t to Stefan ’s li ve pleading

. A s a reviewing court, we are to liberally

cons true the petition to contain any cla ims that reasonably may be inferred from the specific language used in the pe tition and uphold the petition as to those clai ms,

even if an e leme n t of a claim is not specificall y alleged. See id

. In making the

assessme nt , we m ust look to the wording of th e plea ding; we cannot use

a libera l constructio n of the petitio n as a li cense to read into the petitio n a claim that it does not cont ain. M oney h o n v. Moneyho n , 278 S.W.3d 874, 878 (Tex. App.

— Houston [14th Dist.] 2009, n o pet.)

. Appl ying this standard , we cannot concl ude that Stefan pleaded a claim un der chapter 245 to enforce that chapter by declaratory relie f. See Tex. Loc. Go v ’t Code Ann

. § 2 4 5 .0 0 6 ; Leno x Barbeque and Catering, Inc. v. Metro. Transit Auth

. of Ha rris C ounty , 489 S.W.3d 529, 536 (Tex. Ap p.

— Houston [14th Dist.] 2016, no pet.) ; Mone yho n , 278 S.W.3d at 878

. L iberal construction can be used to amplify a pleading but not to cre a te a c laim

. Ste fan ’ s pleading , liberally construed, contains no chapter 245 claim for declaratory relief.
B. D id Stefan seek ju dicial review of t he Board of Adjustment ’ s decision under Local Go vern ment Code section 211.0 11 ?
Under Local Go v e rn me n t Code section 211 .011, entit led “ Judicial Review of Board Deci sion, ” Stefan , a pers on aggrieved by a decisio n of the Board of Adjustment, had the statutor y right to get j udicial rev iew of the Board o f12 Adjustment ’ s decision by pre se nting to a dis tri c t cou r t , county court, or county court at law a ver ified petition for writ o f certiorar i. See Tex. Loc. Go v ’ t Code Ann. § 211.011 (a) (West, Westlaw through 20 19 R.S.). On presentation o f such a petitio n , the c ourt may grant a writ o f certiorari direc ted t o th e Board of Adjustment to r eview the Board of Adjustment ’ s decision. See Tex. Loc. Go v ’t Cod e Ann. § 211.011 ( c )

. The court may reverse or affirm, in who le or in part, or modify the decision that is app e a led. S ee Tex. Loc. Go v ’t Code Ann. § 211.0 11 ( f )

. I f Stefa n had sought review under section 211 .011 , t he district co urt would sit only as a court of review of th e Board of Adjustment ’s decision. See C ity of Dallas v

. Vanesko , 189 S.W.3d 769, 771 (Tex. 2006). In such a proceeding, the only issue f

or t h e di s t r ict court to dete rmin e would be the legality of the Board of Adjustment ’s decision , and Stefan would have t he burden o f establishing illegality by a “very clear showing” that the Board of Adjustment abused its discretion

. S ee id

. ; Christopher C ol u m bus S t reet Market, L LC v. Zoning Bo ard of Adjustments of the City of Galveston , 302 S.W.3d 408, 416 (Tex. App.

— Hou ston [14th Dist.] 2009, no pet. )

. A reviewing co urt in a section 211 .011 proceeding may not put itself in the position of the Board of Ad ju s t ment a nd substitute its findings for those of the Board of Adjustment , even if the overwhelming preponderance of t he evidence goes against the Board of Adjustme nt ’ s decision. See Vanesko , 189 S.W.3d at 771 ; Christopher Col umbus Street Market, L LC , 302 S

. W .3d a t 416

. A party attacking the legality of the Board of Adjustment ’ s decision must establish that the Board of Adjustment could have reached but one decisio n , and not the decision it made

. See Vanesko , 189 S.W.3d at 771 ; Christopher Col umbus Stree t M a rket
, L LC , 302 S.W.3d at 416

. In his origina l petition, which is Stefan ’ s live pleading in this case, Stefan

so ught declaratory relief and asserted that he ha s a n inverse

- condemnat ion or13 takings claim under th e Texa s Constitution. Looking to Stefan ’ s l ive pl eading f or

c ontextual indicia of the claims asserted , we note the followi ng:

• Stef an does not c ite section 21 1.011 of the Local Government Code

.

• Stefan does not ask the trial court to grant a writ of certi or a ri

.

• S t efan does not ask the trial court to revi ew the Board of Adjustment ’ s deci sion

.

• Stefan d oes not state that he is a ppe a ling the Board of Adjustment ’ s de ci sion

.

• Stefan does not state that he filed his petition within ten days after the da te the Boar d o f Adj u stment ’ s decision was filed in its of fice

.

• Stefan does not state that t he Board of Adjustment ’ s decision is illegal in whole or in part

.

• Stefan does n ot assert that the Board of Adjustment abused its discretion

.

• Stefan does not as k the trial cour t t o rev e rse or modify the Board of Adjustment ’ s dec ision

. Even under a liberal construction of Ste fan ’ s live pleading, Stef an d id n ot seek judicial review of the Board of Adjustment ’ s deci sion under section 211.011. See Tex. Loc. Go v ’t Cod e Ann. § 211.01 1 ; L amar Corp. v. City of Longview , 270 S.W

. 3d 609, 613

– 614 (Tex. App.

— Texarkana 2008, no pet.) (concludi ng that the plaintiff ’ s petition seeking declaratory r elief inconsistent with the board of adjustment ’ s decision did not seek ju dicial r eview of the bo ar d ’ s de c ision under Loca l Government Code sec tion 2 11.011 ). Rather than challenge the Board of Adjustme nt ’ s deci sion under the deferenti al standard o f review applicable to judicial review unde r section 211.011 , Stefan sough t declaratory relie f incon sist e nt with t he Board of Adjustment ’ s deci sion in an ori ginal proceed ing

. See Tex. Loc. Go v ’t Cod e Ann. § 211.011 ; L amar Corp. , 270 S.W

. 3d at 613

– 614

. Thou gh Ste f an filed his verified original petition within ten days after the date on whic h the Board of Adj us t ment f il ed its decision , even liberally con struin g the petition, we14 conclud e Stefan di d not seek jud icial revie w of the Board of A djust ment ’ s decision in th e t rial court

. See Tex. L oc. Go v ’t Cod e Ann. § 211.011 ; L amar Corp. , 270 S.W

. 3d at 613

– 614

. In its p l ea to the jurisdiction, the Ci t y asse rt ed t hat the tr ial court lacked juri sdi ction because Stefan had failed to seek judi cial review of the Bo ard of A djustment ’ s decision under Texas Lo cal Go vernment Code section 2 1 1.011. In his response to the City ’ s j urisd i ction al plea, Stefan acknowl e dge d that the C ity asserted the trial court l acked jurisdiction based on “Stefan ’s failure to appea l the deci s i o n of the City ’s Board of Adju stment ( “BOA ”) within 10 days

. ” Ste fan did not dispute that he had not soug ht j udi ci a l review of the Bo ard of Adjustme nt ’ s decis ion under Texas Lo cal Go vernment Code section 2 1 1.011 , an d he tacitly recogniz ed that he had failed to do so

. Ste f an did n ot argue that his petition suffices to seek this relief, nor d id he a m end his p e t it i on to add a request for this relie f. L ikewise, o n a p peal Stefan has not asse rted that he is seeking seek judi cial review of the Bo ard of Adjustment ’ s d ecision under Texas Lo cal Go vernment Code section 2 1 1.011 or that his petition suffices to seek this re l ie f. I n his appellate brief, Stefan st ates: “Ste fan brings claims against the City of Dickinson for declaratory relief and takings claims under the sta te constitution. Th e City challenge s jurisdiction with respect to Stefan’s declaratory judgment and ta k ings

c laims for failure to timely appea l the City Bo ard of Adjustment determination and that Stefan di d not exhaust his administrative remedies regardin g nonconforming

use. ” The statements of Stefan and his counsel in the trial court and on appeal show that St e fan is not seeking judi cial revie w of t he B o a r d of Adjustment ’ s decision under Texas Lo cal Go vernm ent Code section 2 1 1.011

. P recedent from th e Supreme Court o f Texas and this court does not compel the conclu sion that under the record i n this case Stef a

n sought judicial review of15 the Bo ard of Ad justment ’ s dec i sio n under section 211.011. In Telle z v. City of So corro , a plaintiff sought judi ci al r eview of a zon ing b o ard of a djustment ’ s decision unde r section 2 1 1.011 , but the plaint iff improp erl y sued the city rather than the zon ing b o ard of a djust ment

. See 226 S.W.3d 413, 414 (Tex. 2007 ) (per curiam)

. In addition, the plaintiff d id not specify ho w the boa rd ’ s decision was illegal

. See id

. A ft er the trial court aff irmed the boa rd ’ s d ecision, the pla int iff appeal ed, and the court of appe als dismi ssed sua spon te for lack of juri sdiction. See id

. The Sup re me Court of Te xas h eld that the p laintiff ’ s failure to sp ecify how the board ’ s decision was illegal and the fail ure to sue the boa rd were n on
jurisdi cti onal defects that the c ity waived by not ra ising them in the trial court. See id

. In today ’ s case, though Stefan failed to spe cify how the B oard of Adjustmen t ’ s decision was illegal and also failed to sue the B oard of Adjustment , we have not relied on ei ther failure in our analysis. Ste fan has n ot sought ju dici al review u nder section 2 1 1.011 in his petit ion or claim ed tha t he has done so

. In add it ion, the C ity pointed out in i ts p l ea to the jurisdiction that Stefan had faile d to se ek judicial review und er section 2 1 1.011 ; yet Stefan d id not amen d his pleading to seek this relief. The Tellez case is not on point.

In Davis v. Zoning Board of Adju st ment of the City of La Porte , the Supreme Court of Texas, in a per curiam opini on, hel d that the trial co urt did not los e jurisdiction over th e plainti ffs’ requests for ju dicial review under section 211.01 1 of the Local Government Code merely because the pla intiffs failed to serve the writ of certiorari ordered by the trial cou rt. See 865 S .W.2d 941, 942 (Te x. 1 993) (per cu r iam )

. The Davis cour t said “[ o]nce a party files a petition within ten (10) days after a zoning boa rd decision, the court has subjec t mat ter jurisdiction to hear and determine a claim that a board of adjustme nt acted ill egally. The writ o f

ce rtiorari is the method by which t he court conducts its review. . .” Id

. In the trial16 court petition in Davis , the plaintif fs s ou ght review of t he bo ard of adjustment’s decision under section 211.011 of the Local Governm ent Code ; th e Davis court did

n ot h old that an y petition filed withi n ten day s of a board of adjustment ’ s decision suffices to seek relief under section 211.011 of the Local Govern ment Code, even if the petition, under a liberal construction, contains no such cla im an d the plaintiffs do not assert tha t they have pleaded su ch a clai m. See id

. In Scott , the plaintiffs challenge d in their petition a board of a djustment ’s d ecision , a s serting that the boar d abused its discretion in its d eci s ion authorizing a varian ce. Se e Scott v. Bd. of Adjustment , 393 S .W. 2d 837, 838 (Tex. C iv. App.

— Corpus Christi 1965), rev ’d , 405 S.W.2d 55 (Te x. 1 966)

. In Scott , the defendants did n ot disput e that the plaintiffs sought judi cial review of the b o ard of

a djustment ’ s decision under the predecess or st atute to Texas Lo c al Go vernment Co d e sectio n 2 1 1.011 , and the app ellate courts address ed whether the statute suf fice d to give the plaintiffs st anding or whether the plaintiffs had to sat isf y

c ommon
- law standing re quirements

. See Scott , 405 S.W.2d at 55

– 57 ; Scott , 393 S.W. 2d at 838

– 39

. In holding that the plaintiffs ha d standing under the statute to seek this revie w an d that the plaintiff s di d not have to s how common
- law stand ing , the Supreme Court of Texas did not revi ew the plaintiffs ’ petition to see if the pla inti ffs had sought judi cia l review of the b o ard of a djust ment ’ s decision under the predecess or statute t o se ction 2 1 1.011

. See Scot t , 405 S.W.2d at 55

– 57

. The Scott court did not hold or state that a request for injunctive relief cont rary to a bo ard of adjust ment ’s decision , b y i t self, co nstitutes a r equest fo r judi cial review of the b o ard of a dju stment ’ s d eci sion under the predecess or statute to s ection 2 1 1.011

. See id

. The Scott case is not on poin t.
In City of Houston v. Carlson , the appellee s asserted that they sought to
app e al under the applicable statut e, and this court noted that it already had17 determined that the a ppellees’ pleading suffi ced to seek this appellate relief in the trial court

. See City of Houston v. Carlson , 393 S.W.3d 350, 355 n.5 (Tex. App.

— Houston [14th D ist.] 20 12, no pet.). T he Car lson court held that the appellees ’ failure to veri fy their petition did no t amount to a juri sdictional defect, an issue not present in today’s case. See id . at 255

– 57. Likewise, in Teague v. City of Jacksboro , the plaintif f

, unlike Stefan, pleaded in hi s petition for judicia l review under the applicabl e statut e

. See 190 S.W.3 d 813, 815 (Tex. App.

— Fort Worth 2006, pet. denied). In any case , Teague , a case out of the Second Court of Appeals , doe s not bind this cour t

. See C h ris mon v . Brown , 246 S.W.3d 10 2 , 111

n. 8 (Tex. App.

— Houston [14th Dist.] 20 07 , no pet.). In sum, a liberal construction cannot create a claim Stefan ’ s pleading does
not contain , and we cannot concl ude tha t Stefan sought judicial review of the Board of Ad j ustment ’ s dec i sio n under secti on 211.011. See Tex. Loc. Go v ’t Cod e Ann. § 211.011 ; L amar Corp. , 270 S.W

. 3d at 613

– 614 ; Leno x Barbeque and Catering, Inc. , 489 S.W.3d at 536 ; Moneyho n , 278 S.W.3d at 878

. Th us, w e disagree w ith our concurring colleague ’ s c onclu s ion that Stefan ’s petitio n suffices
to see k this ju dicial review

. See po st at 1

– 2

. Ste fan pl eaded a declaratory

judgment claim , and we presume for the sa ke of argument that he pleaded an in vers e
- co ndemnati o n or taking s claim

. See Tex. Civ Pr a c. & Rem. Code Ann. § 37.001, et seq

. C. D oes the trial court lack jurisdiction ov er Stefan ’ s declaratory

judgment claim b ecau se Stefan failed to exhaust his administrat iv e remedies ? In its fir st issue , the City asser ts t h at the trial court lacks jurisdiction o v er Stefan ’ s declarato ry
- judgment claim because Stefan failed to exhaust h is ad ministrative remedies by fi ling a p eti tion fo r wr it o f certiorari under Local Go vernmen t Code section 211. 011 to obtai n judi cial review o f the Board of18 Adjustment ’ s decision.
In his decla ratory

- judgment claim, Stefan seeks a declaration that the P ropert y is “ ‘ Grand

- fathered ’ from the City of Dick ins on zoning law. ” Under a liberal construct ion of this pleading , Stefan se eks a de clarat ion t hat his use of the Propert y as a “ Special Event Cen ter/ Wedding Chapel ” is a lawful, nonconfo rming

use that does not violate th e Zoning Ordin ance because this use la wfully existed on July 24, 2001 , and has c ontinued to the present. Code of Ordinances, Dic k inson, Tex. , ch. 18, at art. X, § 18

- 107. On appea l, Stef an asserts that he seeks a determination of the existence and ex tent of his allege d vested right to use th e Property for weddings, receptions , and o ther events based on the Regi st ration Document , w h ich h e receive d pursuant to section 18.113 of the Z oning Ordin ance.
Ste fan pursued his admin i s trati ve remedies by asking Me ado ws to is sue a Certificate of Occu pan c y Nonconforming

. Meadows dete rmined that Stefan is not eligible for is s uance of a Certifi c ate of Occupanc y Nonconforming for the use of

a ny p o rtion of the Property as a Special Event Center. Meadows indicated that he thought St ef an had not proven tha t S tefan was using the Property for a Special Event Center on July 24, 2001 , and that Stefa n h a d continued that use to the present without abandon ment. M eadows determi ned th at Stefan may not use the Property for any othe r purpose than the uses permitt ed i n a C onventional R esidentia l D istrict. Stefa n un successfully appealed Meado w s ’ s ruling to the Board of Adjustment.
Under Local Govern ment Code se ction 211 .011, Stefan had the statutory right to o btain j udicial rev iew of the Board of A djustment ’ s decis ion

. S ee Tex. Loc. Go v ’ t Code Ann. § 211.011 (a)

. The dea d line for Stefan to have file d th e petit i on for writ o f certiorari fell ten days after the d ate on whic h the Board of Adjustment fil ed its decision

. See Tex. Loc. Go v ’t Code Ann. § 211.011 ( b )

. Thi s19 de adline passed in December 2017

. As discussed in t he previous section, Stefan has not filed a p etition seeking revi ew of the B oard of Ad justment ’ s decision under Local Government Code section 211.0 11

. Inste ad, Stefan fil ed a petition s eeking declarator y re lief

. See L amar Corp. , 270 S.W

. 3d at 613

– 614

. The e x haustion

- of

- administrativ e
- remedies rule requires that a plaintiff
pursue all available remed ies within the adm inis trative process before seeking ju dicial re lief

. Murphy v. The City of Galveston , 55 7 S.W.3 d 23 5 , 241 ( Tex. App.

— Houston [14th Dist.] 201 8 , p et. denied)

. T he failure to do so deprives the trial court of jurisdictio n to decide the cas e

. Id. at 241

– 44. Th e a dministrative

reme dies availab le under sect ion 211 of th e Local Government Code generall y must be ex hausted before a party may seek judic i al review of a determination made by an administrative official. See Tex. Loc. Go v ’t Code An n. § 211.0 0 1 , et seq

. ( West, Westlaw through 2019 R.S.) ; Mur phy , 55 7 S.W.3d at 241 ; se e a lso City of San Antonio v. El Dorado Amus ement Co., Inc. , 195 S.W.3d 238, 250 (Tex. App.

— San Antonio 2006, pet. denied) ( stati ng that “ [t] he administrati ve remedies
pr ovided by the Local Go v ernment Code must be exhausted before mat ters regard ing non

- con for ming uses may be brought before the court s. ”)

. The review

o f the Board o f Adjustment ’s de cis ion under Local Govern ment Code section 211 .011 is an admini strative remed y that must be exhaust e d before a decision by the Board of A djus tmen t may be brought b efo re the courts. See Laza r ides v. Farris , 367 S.W.3d 788, 79 9 (Tex. App.

— H o uston [14th Dist.] 2012, no pet. ); Lamar Corp. , 270 S.W

. 3d at 613

– 614 ; El Dorado Amusemen t Co
., 195 S.W.3d at 249

– 5 0

. By not seeking review of the Board of Adjustment ’s decision und er Local Govern ment Code section 211 .011 , Stefan failed to exhaust hi s ad ministrat ive remedies

. See Lazar ides , 367 S.W .3d at 79 9 ; Lamar Corp. , 270 S.W

. 3d a t 61 3

– 614 ; C ity of San Ant onio , 1 95 S.W.3d at 249

– 50

. T o the extent Stefan asserts20 entitlement to a speci fic us e permit , St efa n did not exhaust h is administrat ive remed i es by obtaining a ruling from the City Coun cil on an application for a speci fic use pe rmit

. See Code of Ordinan ces, Di ckinson, Tex. , ch. 18, at a rt. V ., at § § 1 8

- 5 7 , 18

- 58; Murphy , 55 7 S.W.3d at 241

– 44; La zar i des , 367 S.W.3d at 79 9 ; Winn v. City of Irvin g , 770 S.W. 2d 10, 11 (Tex. App.

— Dallas 1989, no wr it). On appeal, Stefan states that th e Bo ard of Adjustment hear d and d enied his appeal , fin ding that Stefan did not have suffici ent proof of a nonc onforming use of the Prope rty. Ste fan does not assert that he exhausted his adminis trative remed ies or that he is excused f rom doing so. Stefan ass e rts the following argu ments:

• T he trial court has jurisdiction over Stef an ’ s declaratory

- judgment claim b ecause the p arties dispute whether Stefan has a vested right t o use the Property for weddings, receptions , and other ev ents.

• T he City ha s no le gitim ate reason for denying St e fan ’ s r ight to continue his lawful business of us ing the Prop erty for wedd ings, re ceptions, an d other events as authorized by the City in the R e gistration Document because the Ci ty relied upon rules, ordinan ces , or requiremen ts th at d id not exist when Stef an ’ s ri ghts vested or on rules that do not apply to a recognized nonconfor ming use registratio n

.

• A lthough required to do so, the Zon ing Officia l did not maintain the record of the Registr ation Document

.

• T he Registration Docum ent g ave Stefan the right to us e the P roperty for weddings, receptions, and othe r events

.

• I n denying S tef an ’ s req uest for a C er tificate of Occupancy Nonconfo rming, Meadows v i o lated section 18.115 of the Zo nin g Ordinance

.

• I n a memorandum to the Pla nning and Z oni ng C ommissi on , Meadows all egedly r ecognize d Stefan ’ s use of the Property fo r weddings, receptions, a nd other events befo re t he adoption of the Zoning Ordinance on Ju ly 2 4 , 2001

.

• T his case involves var io us other justicia ble controvers ies regarding the merit s of Stefan ’s co ntentions

.21 These ar gume nts go to the merits o f Stefan ’ s con tentions , and no ne of the m provides a b asis f or excusing Stefan ’ s failure to exhaust administr a t ive remedies

. If the trial court and t his c ourt lack subject

- matter j urisdiction over Stef an ’ s declaratory

- judgment c laim d ue to Stefan ’s failure to exhaust administrat ive remedies , ne ither court may address any of thes e merits arg uments. See Curry v. H arri s Coun ty Appraisal Dist. , 434 S.W.3d 815, 820 (Tex. App.

— Houston [14th Dist.] 2014, no pet.).
Stefan asse rts that M eadows had no author ity to r e je ct Stefan ’s vested rig ht of the nonc onfo rming use of the Property for w eddings, receptions , and other

ev e n ts b y requ iring Stefan to apply for a specific use permit . We p resume , without deciding, t hat su ch a lack of a uthority would excuse Stefan ’ s fail u re to exhaust administrat ive reme dies. Stefa n claims on appeal that he h a s a vested right based on the Regi s trat io n Do cument. The Ci ty has not con teste d the authentici ty of th at document or dispu ted Stefa n ’ s assertio n that the person who signed and appr o ved it was the City ’ s Z on ing Officia l a t the time of signature in June 200 2. We presume that the Registrat i o n Do cument is authentic and that the City ’s Z oning Officia l at the time approved it. Nonetheless , Stefan describes , in pertinen t part,
t he nonc onfo rmin g use only as “ busines s. ” The Reg istration D o cument re cites that

“ [d] ocument ation that pr oves the prop e rty w as use d in the same manner prior to July 24, 2001 is required. ” Yet, the record contains no evidence show ing what , if any, documents Stefa n su bmit ted with the Registrat ion Document . He may have submitted documents s howing that he had operated his c o mpute r busi ness on the Property since before July 2 4, 2001

. St efan may have submitted do cuments

a llegedly showi ng that he had been operating a busin ess of ho sting weddings,

r eceptions , a nd other ev ents on the Property sinc e before July 2 4, 2001

. Or, Stef a

n

ma y have submit ted no doc uments

. The re co rd contains no evidence that the City22 ever issued Ste fan a Certific ate of O ccupancy Nonconforming, which , acc or ding to the Zoning O rdinance, w ould describe the nonconforming use and serv e as evidence of t he lawf u l existence of t he no nconforming use

. See Code of Ordinances, Dickinson, Tex. , ch. 18, at a rt. X ., at § 18

- 115. The Z o ning Ordinance does not state tha t the registration of the non conf orming use serves as evidence of
t he lawful existence of the no nconfo r ming use ; in stea d, the Zoning Ordinance says that the Certificate of Occupancy Nonconforming evid ences t he lawfu l exist ence of the no nconforming use

. Se e id

. U n der the Zoning Ordinance , Meadows ’ s duti es an d responsibilitie s as the Zoning Off icial include , but ar e not lim ited to, accepting and pro cessing all submitted applications for specific use per mits , servi ng a s the e n forcement o fficer
to en sure c o mp l iance with the Zoning Ord inance, and performing other duties as

necess ary and appropriate to uphold th e provisions of t he Zoning Or dinance. Id . at art. III, § 18

- 13. Even presu ming that a prior Zon in g Official appr o ved th e registration by Stefan o f a nonc on f orming use of “ busi ness, ” we c on cl ude that Meadows, as the curr ent Zon ing Official , had auth ority t o determi ne (1 ) whether the June 2002 registration constituted a registration of a nonc onforming u se of the P roperty for weddings, receptions , and oth er ev ents ; (2) whether Stefan ha d sho wn that he ha s used the Property f or weddings, receptions , and other e v ents wi thout abandonment since b efore July 24, 2001; and (3) whether to i ssue a Certificate of O ccupancy No nconforming as to the nonconforming u se o f t he Property for wed dings, receptio ns , and other ev ents

. See id

. at art. III, § 18

- 13 , a rt. X ., at § 18

- 115

. Th us, M eadows ’ s alleged lack of authority does not excu se St efan from exhausting administra t ive remedi es.
Becau se Stefan failed to exhaus t hi s administra tive remed ies b y seeking review of the Board of Adjustment ’s decision under Local Govern ment C o de23 secti on 211

. 011 , the trial court lacks subject

- matter jurisdiction over Stefan ’ s declaratory

- j udgment cla im , and the trial court erred in deny ing the City ’ s plea to the jurisdiction a s to this c laim

. See Murphy , 55 7 S.W.3d at 241

– 44; Lazar ides , 367 S. W .3d at 7 9 9 ; Lam ar Corp. , 270 S.W

. 3d at 613

– 614 ; C ity of San Antonio , 195 S.W.3d at 249

– 50

. Thus, we sust ain the City ’ s first issue.

D. Should the t rial court have dismissed Stefan ’ s taking s c laim ?
We presume for the sake of argument that Stefan pleaded an i n verse
co ndemnation or takings claim b ased on the C ity ’ s enforcement of the Zoning Ordinance as to the Prop er ty. A p art y must take advantage of s tatu tory remedies that m ay moot the party ’ s takings claim , rather than ins titute a separate pr oceed ing asserti n g such a claim. See City of Beaumont v. Como , 381 S. W .3d 538, 540 (Tex. 2012) (per curiam) ; Pate l v. City of Everman , 36 1 S. W. 3d 600, 601 (Tex. 2012) (per curiam) ; City o f Da llas v. VSC , LLC , 347 S.W .3d 231, 234

– 37 (T e x. 2011). If a party asse rting a takings claim failed to take advantag e of such a s tatutory remed y, the p arty ’ s takings claim is barr ed, and a trial court would be correc t in d is missing the taki ngs claim bas ed o n a plea to the jurisd ict ion. See Como , 381 S. W .3d at 5 39

– 40

. In it s second i ssue, the City asserts that S tefan ’ s takings claim is barred because he fail ed to avail himself of t he statutory remedies under Local Go vernment Code section 211. 011

. Stefan did not seek ju di cial review of the Board of Adjustment ’ s decision under L ocal Go vernment Code section 211. 011

. See Te x. Loc. Go v ’t Code Ann. § 211.011 ( a )

. If S t efan had pursued th is review, Stefan migh t have obta i ned a statutory remed y und er section 211. 011 that would have rendered his takings cla im
moot

. See Tex. Loc. Go v ’t Code An n. § 211.011 ( f )

. Because Ste f an failed to av ail himself of the review and remedies avai lable under s ection 21 1.011, Stefan ’ s24 takin gs claims is bar red, and the trial court s hould dismiss the taki ngs claim

. See Como , 381 S. W .3d at 5 39

– 40

. We sustain the C ity ’ s seco nd issue.

III. C ONCLUSIO N

Stefan did not plead a claim un der chapter 245 to enforce that chapter by decl aratory relie f

. Stefan did n ot s eek judicial review of the Boa rd of Adjustment ’ s deci sion under Local Govern ment Code section 211.011. Ste fan ple aded a decl aratory

- judgment c l aim , and we presume for the sa ke of a rgument that he pleaded a n in ver s e
- co ndemnation or takin g s clai m

. See Tex. Civ Pr a c. & Rem. Code Ann. § 37.001, et seq

. B ut b ecause Stefan failed to exhaust his administra tiv e remedies b y se eking review of the Board of Adjustment ’s decision under Local G overn ment Code section 211

. 011 , th e trial court lacks su bject

- m atter jurisdiction over Stefan ’ s declaratory

- judgment claim

. So, the trial court err ed in denyi ng the City ’ s plea to the jurisdic tion as to this c laim

. Because Ste fan failed to avail himself o f the review and remedies avai la bl e under section 211.01 1, Stef an ’s takin gs claims is barred

. For this reason , the trial c ourt should d is miss the t aki ngs clai m

. As this court recently stated in San Jacinto River Authority v. Ogletree , if the trial court lacks jurisdiction over all pl ead ed claims , “ the [plain tiffs] are not entitled to a remand to plead new claims ov er which the district court may possess subject matter jurisdic t ion.” 594 S.W. 3d 833, 842

– 43 (Tex. App.

— Houston [14th Dist.] 2020, no pet.)

. T here is a difference between all owing a plaintiff an

o pportunity to plead mor e facts to show jurisdiction ove r c laims that the plaintiff
pur ported to plead and allowing the pl a intiff a chance to assert new claims after the court of appeals conclu d es tha t the trial court lacked jurisdicti on over the claims the plaintiff purported ly ple d

. See id

. W e r ever se the trial court ’ s order a nd re nder25 judgment dismissing S tefan ’ s claims for lack of subject

- m atter jurisdict ion. See id

.

/s/ Kem Thompson Fr os t Chief Justice

Pa ne l consists of C hief Justice Frost and J us tices Wis e and Hassan (Hassan , J.
concurr ing )

.