Reversed and Rendered and Majority and Concurring Opinions filed October

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

Galveston County, Texas

Trial Court 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 appeals the trial court’s denial 

of its plea to the jurisdiction, arguing that the trial court lacks jurisdiction over 

appellee/plaintiff Larry Stefan’s claims because Stefan failed to exhaust his 

administrative remedies. Concluding that the trial court lacks jurisdiction, we 

reverse and render judgment dismissing Stefan’s claims.
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I. FACTUAL AND PROCEDURAL BACKGROUND

In December of 1999, Stefan purchased a home on approximately 6.75 acres 

of land located at 4520 Plantation Bend in Dickinson, Texas (the “Property”). The

Property is located in a residential neighborhood on Dickinson Bayou. In addition 

to living with his wife on the Property, Stefan operates a computer business, Data

Functions, from his home. He started 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 hold a Christmas reception on the Property. Stefan received no 

money for allowing the Property to be used for the event, but Stefan says that his 

church gave him a receipt showing a $2,000 donation that Stefan was able to 

utilize on his tax return. 

The following summer, the City adopted Chapter 18 of the Code of 

Ordinances of the City of Dickinson, Texas, entitled “Zoning” (the “Zoning

Ordinance”). Under the Zoning Ordinance, the Property is located in the 

Conventional Residential District. The Zoning Ordinance does not, as a matter of

right, allow wedding event venues, or any similar commercial assembly uses, to be 

located in the Conventional Residential District. Code of Ordinances, Dickinson, 

Tex., ch. 18, art. IV, § 18-50(a). In addition to allowing single-family residential

uses, the Zoning Ordinance permits a number of other uses as a matter of right, 

including home occupations incidental to a residential permitted use and private 

recreational facilities owned and operated by or on behalf of a residential 

subdivision or development. Id.

The Zoning Ordinance provides that a pre-existing nonconforming use may 

continue, subject to the terms of Article X of the Zoning Ordinance. Id. at art. X, § 

18-105. A pre-existing nonconforming use under the Zoning Ordinance includes 
3

an existing use that is not in conformance with the regulations of the zoning district 

in which it is located but lawfully existed when the City adopted the Zoning

Ordinance. Id. at art. X, § 18-107. The City does not contest Stefan’s operating of

Data Functions on the Property before the City adopted the Zoning Ordinance. 

The city administrator must appoint a zoning official, or designee, whose 

duties include the administration and enforcement of the regulations in the Zoning 

Ordinance (the “Zoning Official”). Id. at art. III, § 18-13. Under the Zoning 

Ordinance, the Zoning Official has a duty and responsibility to maintain all records 

related to the enforcement and procedures of the Zoning Ordinance. Id. The 

owner of a lot upon which a nonconforming use exists must register the

nonconforming use with the Zoning Official within one year after the date the City 

adopted the Zoning Ordinance (July 24, 2001), or, as applicable, within one year 

after the adoption of any amendment to the Zoning Ordinance that makes the use 

nonconforming. Id. at art. X, § 18-115. If an owner registers a nonconforming 

use, the owner shall be issued a “certificate of occupancy nonconforming,” with a 

brief description of the nonconformity, which shall thereafter be considered as 

evidence of the lawful existence of the nonconforming use (“Certificate of 

Occupancy Nonconforming”). Id. The Zoning Ordinance requires that the Zoning 

Official maintain on file for the City all certificates of occupancy nonconforming. 

Id. If an owner does not register a nonconforming use, thereafter the City must

require proof by the owner that the use was lawfully existing on July 24, 2001, or 

at the time of the adoption of any applicable amendment to the Zoning Ordinance, 

or the nonconforming use shall be deemed unlawful and a violation of the Zoning 

Ordinance. Id. 

Establishing a pre-existing nonconforming use allows a property owner to 

continue the same nonconforming use after the City adopted the Zoning
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Ordinance, but no more. Id. at art. X., § 18-110(b). In other words, the property 

owner cannot expand the nonconforming use by building structures or other 

improvements that were not in existence before the City adopted the Zoning 

Ordinance. Id.

In June 2002, Stefan filled out a City of Dickinson form entitled 

“Nonconforming Use Registration.” On the form, Stefan handwrote that he had 

been using the Property as “business & multi-family” before adoption of the 

Zoning Ordinance. Stefan did not specify the business use to which he referred. 

Stefan did not state whether he was referring to the operation of his computer 

business, Data Functions, or some other business. Stefan did not write “events,”

“wedding venue,” “event center,” or anything else that would indicate he had been 

using the Property for events. Dani M. Olson signed the form in June 2002. 

Stefan received a copy of the signed document (the “Registration Document”) in 

2002, and he kept that copy. Stefan asserts that Dani Olson was the Zoning

Official for the City at the time, and we presume this statement to be true. The

City conceded in the trial court that the Registration Document is authentic. 

Zachary Meadows, the City’s Zoning Official at the time of the proceedings in the 

trial court, testified that he could not find the Registration Document in the City’s 

records but that his failure to find the Registration Document does not “validate or 

invalidate the possible use of the [P]roperty.” Stefan has not produced a Certificate 

of Occupancy Nonconforming, nor has Stefan asserted that the City ever issued 

one. 

In February 2017, the City received a complaint from one of the residents on 

Plantation Bend about a pavilion that was under construction in Stefan’s front yard. 

Upon investigation, Meadows determined that Stefan had not obtained a building 

permit for the pavilion, so he visited the Property with the City’s building official 

and fire marshal. When he arrived at the Property, Meadows saw a large pavilion
5

under construction, and a man who was working on the construction of the 

pavilion. The man spoke with Stefan, and Stefan came out of his house to talk to 

Meadows. Meadows tried to figure out the use of the Property because Meadows 

thought that the construction of a structure as big as the pavilion would not be for 

residential use. Meadows asked Stefan to explain why Stefan was having the 

pavilion built, and Stefan stated that he had an approval to have a business on the 

Property and that he hosted weddings on the Property. Stefan went into his house 

and returned with a copy of the Registration Document. Meadows told Stefan that 

Meadows would have to do some research into the Registration Document and the 

Property and that after doing so, he would contact Stefan.

Meadows could not find any records regarding a nonconforming use on the 

Property. Meadows called Stefan on the phone and told him that even if he 

established a nonconforming use on the Property, the pavilion was an expansion of 

that use. See id. at art. X., § 18-110(b). Meadows told Stefan that the only way to 

allow the construction of the pavilion to continue would be for Stefan to obtain a 

specific use permit. The Zoning Ordinance provides that the Dickinson City 

Council, after receiving the recommendation of the Planning and Zoning 

Commission (the “Commission”), by ordinance may grant a specific use permit for 

certain uses in locations and zoning districts in which the uses are not otherwise 

permitted by the Zoning Ordinance. Id. at art. III., § 18-14; id. at art. V., § 18-57. 

The Zoning Ordinance requires a specific use permit before property in the 

Conventional Residential District may be used for a “Special Event Center on five

(5) or more acres.” Id. at art. V., § 18-58. A “special event center,” as that term is

used in the Zoning Ordinance, is a “private facility available for lease, including 

the grounds and buildings, whose primary purpose is to host conferences, 

meetings, receptions, reunions, weddings, or any other gathering (formal or 

informal) that is temporary in nature” (“Special Event Center”).
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Stefan submitted a formal request to Meadows, asking Meadows to issue a 

Certificate of Occupancy Nonconforming under section 18-115 of the Zoning 

Ordinance. Id. at art. X, § 18-115. Stefan asserted that he had been operating a 

Special Event Center on the Property since December 16, 2000. In support of this 

request, Stefan submitted evidence of the Christmas reception on the Property held 

on December 16, 2000. 

On October 18, 2017, Meadows sent Stefan a letter denying Stefan’s request 

for a Certificate of Occupancy Nonconforming. Meadows stated that, after 

reviewing all of the documentation Stefan provided, Meadows determined that 

Stefan is not eligible for issuance of a Certificate of Occupancy Nonconforming

for the use of any portion of the Property as a Special Event Center. Meadows 

stated that the only evidence Stefan presented concerning the use of the Property as 

a Special Event Center was evidence of the December 16, 2000 Christmas 

reception, which, by Stefan’s admission, did not involve the exchange of money 

for the use of the Property. Meadows also stated that Stefan had not provided any 

evidence to establish that he continued to use the Property for gatherings after 

December 16, 2000. Meadows noted that a nonconforming use of land or a 

structure that is discontinued or remains vacant for a continuous period of six 

months is presumed to be abandoned and shall not thereafter be reestablished or 

resumed. See id. at art. X, § 18-110. Meadows denied Stefan’s request for a 

Certificate of Occupancy Nonconforming and demanded that Stefan cease any use 

of the Property as a Special Event Center. Meadows stated that Stefan may not use 

the Property for any purpose other than the uses permitted in a Conventional 

Residential District. Meadows warned Stefan that if Stefan continued to use the 

Property in an unauthorized manner, the City would issue citations for violation of 

the Zoning Ordinance. Meadows told Stefan that he had the right to appeal 
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Meadows’s decision to the City’s board of adjustment (“Board of Adjustment”) 

and that Stefan also had the right to apply for a specific use permit for use of the 

Property as a Special Event Center. See id. at art. III., § 18-37; id. at art. V., § 18-

57. Meadows said that until the use of the Property as a Special Event Center is 

otherwise lawfully permitted, any further use of the Property for this purpose is 

prohibited by the Zoning Ordinance. 

Stefan applied for a specific use permit and attended a meeting of the 

Commission at which the Commission considered whether to recommend that the 

City Council approve Stefan’s application. See id. at art. V., § 18-57. By a 

unanimous vote, the Commission recommended denial of Stefan’s application. 

Despite this recommendation, the City Council still had the authority to grant 

Stefan’s application for a specific use permit. See id. Though the City Council 

planned to consider Stefan’s application at a meeting, just before that meeting 

Stefan asked that his application not be considered at the meeting, and since then

Stefan has not asked the City Council to consider his application. Honoring this 

request, the City Council has not considered Stefan’s application for a specific use 

permit.

Stefan appealed Meadows’s decision to the Board of Adjustment. After 

considering Stefan’s appeal and the evidence presented, the Board of Adjustment 

issued an “Order Denying Appeal,” in which the Board of Adjustment stated that 

Meadows’s decision stands and only those uses permitted in a Conventional 

Residential District are allowed on the Property. The Board of Adjustment’s order 

was filed on December 12, 2017. Two days later, Stefan filed this lawsuit against 

the City. 

In his live petition, Stefan makes the following allegations:

• Stefan bought the Property in December 1999, with the intent to use 
8

the Property “for special events center/weddings.”

• The Registration Document was approved on June 17, 2002.

• Stefan has used the Property as a “Special Event Center/Wedding 

Chapel.”

• The first special event occurred on December 16, 2000. 

• Since December 16, 2000, Stefan has continually used the Property 

for a “Special Event Center/Wedding Chapel” without interruption

until 2017, when the City began a course of conduct to close Stefan’s 

business. 

• Stefan did not apply for a building permit for the pavilion because he 

thought he was “grandfathered” based on the Registration Document.

• Stefan requested that Meadows issue a Certificate of Occupancy 

Nonconforming, and Meadows denied the application.

• Stefan appealed Meadows’s decision to the Board of Adjustment, 

which denied Stefan’s appeal. 

Stefan asked the trial court for a declaratory judgment, declaring the 

Property “to be ‘Grand-fathered’ from the City of Dickinson zoning law.” Stefan 

also asserted an inverse-condemnation claim under article I, section 17 of the 

Texas Constitution. Stefan sought a temporary injunction, a permanent injunction, 

and reasonable and necessary attorney’s fees. 

The City filed a plea to the jurisdiction, attaching evidence, and asserting 

that the trial court lacked jurisdiction because Stefan failed to exhaust his 

administrative remedies by failing to seek judicial review of the Board of 

Adjustment’s decision under Texas Local Government Code section 211.011. The 

trial court denied the City’s plea to the jurisdiction, and the City timely filed this 

interlocutory appeal.

II. ISSUES AND ANALYSIS

Though Stefan generally refers to his claims as a declaratory-judgment claim 

and a takings claim, Stefan states on appeal that he has “presented . . . a Chapter 
9

245 claim for declaratory relief.” See Tex. Loc. Gov’t Code Ann. § 245.001, et 

seq. (West, Westlaw through 2019 R.S.). Stefan also states that chapter 245 of the 

Local Government Code authorizes declaratory relief to enforce a vested right, and 

Stefan indicates that chapter 245 authorizes his declaratory-judgment claim.

Liberally construing Stefan’s appellate brief, we conclude that Stefan argues that 

he pleaded an independent claim for declaratory relief under chapter 245. See Tex. 

Loc. Gov’t Code Ann. § 245.006. (West, Westlaw through 2019 R.S.) (stating 

“[t]his chapter may be enforced only through mandamus or declaratory or 

injunctive relief”). So, we begin by addressing whether Stefan pleaded this claim 

in the trial court.

A. Did Stefan plead a claim for declaratory relief under chapter 245 of the 

Local Government Code?

The Local Government Code defines key terms relevant to our analysis of 

Stefan’s pleadings and our assessment of whether they contain a chapter 245 claim 

for declaratory relief. Under chapter 245, “‘[p]ermit’ means a license, certificate, 

approval, registration, consent, permit, contract or other agreement for construction 

related to, or provision of, service from a water or wastewater utility owned, 

operated, or controlled by a regulatory agency, or other form of authorization 

required by law, rule, regulation, order, or ordinance that a person must obtain to 

perform an action or initiate, continue, or complete a project for which the permit 

is sought.” Tex. Loc. Gov’t Code Ann. § 245.001(1) (West, Westlaw through

2019 R.S.). According to the same chapter, “‘[p]roject’ means an endeavor over 

which a regulatory agency exerts its jurisdiction and for which one or more permits 

are required to initiate, continue, or complete the endeavor.” Tex. Loc. Gov’t

Code Ann. § 245.001(1) (West, Westlaw through 2019 R.S.). The operation of an 

ongoing business is not a “project” within the meaning of chapter 245. See 

Anderton v. City of Cedar Hill, 447 S.W.3d 84, 95–96 (Tex. App.—Dallas 2014, 
10

pet. denied). Chapter 245 requires that “[e]ach regulatory agency shall consider 

the approval, disapproval, or conditional approval of an application for a permit 

solely on the basis of any orders, regulations, ordinances, rules, expiration dates, or 

other properly adopted requirements in effect at the time: (1) the original 

application for the permit is filed for review for any purpose, including review for 

administrative completeness; or (2) a plan for development of real property or plat 

application is filed with a regulatory agency.” Tex. Loc. Gov’t Code Ann. § 

245.002(a) (West, Westlaw through 2019 R.S.). Rights to which a permit 

applicant is entitled under chapter 245 “accrue on the filing of an original 

application or plan for development or plat application that gives the regulatory 

agency fair notice of the project and the nature of the permit sought.” Tex. Loc. 

Gov’t Code Ann. § 245.002(a-1) (emphasis added). If a series of permits is 

required for a project, the orders, regulations, ordinances, rules, expiration dates, or 

other properly adopted requirements in effect at the time the original application 

for the first permit in that series is filed shall be the sole basis for consideration of 

all subsequent permits required for the project’s completion. Tex. Loc. Gov’t

Code Ann. § 245.002(b). All permits required for the project are considered to be a 

single series of permits. Id. Chapter 245 may be enforced through declaratory

relief. See Tex. Loc. Gov’t Code Ann. § 245.006. 

In his live pleading, Stefan does not cite chapter 245 or any of its sections.

Though Stefan seeks declaratory relief, he does not invoke chapter 245 or point to 

it as a basis for any relief. Parties usually seek declaratory relief under the Texas 

Declaratory Judgments Act. See Tex. Civ Prac. & Rem. Code Ann. § 37.001, et 

seq. (West, Westlaw through 2019 R.S.). Stefan does not allege in his pleading 

that he has a vested right based on the Registration Document. Stefan does not 

mention the word “project” or assert that his claims involve any project. Stefan 
11

does not assert in his live pleading that any entity considered his application for a 

permit based on orders, regulations, ordinances, rules, expiration dates, or other 

requirements that took effect after Stefan filed the original application for the 

permit. Nothing in the pleading suggests Stefan seeks relief under chapter 245.

Pleadings must give reasonable notice of the claims asserted. SmithKline

Beecham Corp. v. Doe, 903 S.W.2d 347, 354–55 (Tex. 1995). The City did not 

specially except to Stefan’s live pleading. As a reviewing court, we are to liberally 

construe the petition to contain any claims that reasonably may be inferred from 

the specific language used in the petition and uphold the petition as to those claims, 

even if an element of a claim is not specifically alleged. See id. In making the

assessment, we must look to the wording of the pleading; we cannot use 

a liberal construction of the petition as a license to read into the petition a claim 

that it does not contain. Moneyhon v. Moneyhon, 278 S.W.3d 874, 878 (Tex.

App.—Houston [14th Dist.] 2009, no pet.). Applying this standard, we cannot 

conclude that Stefan pleaded a claim under chapter 245 to enforce that chapter by 

declaratory relief. See Tex. Loc. Gov’t Code Ann. § 245.006; Lenox Barbeque and

Catering, Inc. v. Metro. Transit Auth. of Harris County, 489 S.W.3d 529, 536

(Tex. App.—Houston [14th Dist.] 2016, no pet.); Moneyhon, 278 S.W.3d at 878.

Liberal construction can be used to amplify a pleading but not to create a claim.

Stefan’s pleading, liberally construed, contains no chapter 245 claim for

declaratory relief.

B. Did Stefan seek judicial review of the Board of Adjustment’s decision

under Local Government Code section 211.011?

Under Local Government Code section 211.011, entitled “Judicial Review 

of Board Decision,” Stefan, a person aggrieved by a decision of the Board of 

Adjustment, had the statutory right to get judicial review of the Board of 
12

Adjustment’s decision by presenting to a district court, county court, or county 

court at law a verified petition for writ of certiorari. See Tex. Loc. Gov’t Code

Ann. § 211.011(a) (West, Westlaw through 2019 R.S.). On presentation of such a 

petition, the court may grant a writ of certiorari directed to the Board of 

Adjustment to review the Board of Adjustment’s decision. See Tex. Loc. Gov’t 

Code Ann. § 211.011(c). The court may reverse or affirm, in whole or in part, or 

modify the decision that is appealed. See Tex. Loc. Gov’t Code Ann. § 211.011(f). 

If Stefan had sought review under section 211.011, the district court would sit only 

as a court of review of the Board of Adjustment’s decision. See City of Dallas v. 

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

for the district court to determine would be the legality of the Board of 

Adjustment’s decision, and Stefan would have the burden of establishing illegality

by a “very clear showing” that the Board of Adjustment abused its discretion. See 

id.; Christopher Columbus Street Market, LLC v. Zoning Board of Adjustments of 

the City of Galveston, 302 S.W.3d 408, 416 (Tex. App.—Houston [14th Dist.]

2009, no pet.). A reviewing court in a section 211.011 proceeding may not put 

itself in the position of the Board of Adjustment and substitute its findings for 

those of the Board of Adjustment, even if the overwhelming preponderance of the 

evidence goes against the Board of Adjustment’s decision. See Vanesko, 189 

S.W.3d at 771; Christopher Columbus Street Market, LLC, 302 S.W.3d at 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 decision, and not the 

decision it made. See Vanesko, 189 S.W.3d at 771; Christopher Columbus Street 

Market, LLC, 302 S.W.3d at 416. 

In his original petition, which is Stefan’s live pleading in this case, Stefan 

sought declaratory relief and asserted that he has an inverse-condemnation or 
13

takings claim under the Texas Constitution. Looking to Stefan’s live pleading for 

contextual indicia of the claims asserted, we note the following:

• Stefan does not cite section 211.011 of the Local Government Code.

• Stefan does not ask the trial court to grant a writ of certiorari.

• Stefan does not ask the trial court to review the Board of Adjustment’s

decision.

• Stefan does not state that he is appealing the Board of Adjustment’s

decision.

• Stefan does not state that he filed his petition within ten days after the date

the Board of Adjustment’s decision was filed in its office.

• Stefan does not state that the Board of Adjustment’s decision is illegal in

whole or in part.

• Stefan does not assert that the Board of Adjustment abused its discretion.

• Stefan does not ask the trial court to reverse or modify the Board of

Adjustment’s decision.

Even under a liberal construction of Stefan’s live pleading, Stefan did not

seek judicial review of the Board of Adjustment’s decision under section 211.011.

See Tex. Loc. Gov’t Code Ann. § 211.011; Lamar Corp. v. City of Longview, 270 

S.W.3d 609, 613–614 (Tex. App.—Texarkana 2008, no pet.) (concluding that the 

plaintiff’s petition seeking declaratory relief inconsistent with the board of 

adjustment’s decision did not seek judicial review of the board’s decision under 

Local Government Code section 211.011). Rather than challenge the Board of

Adjustment’s decision under the deferential standard of review applicable to

judicial review under section 211.011, Stefan sought declaratory relief inconsistent

with the Board of Adjustment’s decision in an original proceeding. See Tex. Loc. 

Gov’t Code Ann. § 211.011; Lamar Corp., 270 S.W.3d at 613–614. Though 

Stefan filed his verified original petition within ten days after the date on which the 

Board of Adjustment filed its decision, even liberally construing the petition, we 
14

conclude Stefan did not seek judicial review of the Board of Adjustment’s decision 

in the trial court. See Tex. Loc. Gov’t Code Ann. § 211.011; Lamar Corp., 270 

S.W.3d at 613–614. 

In its plea to the jurisdiction, the City asserted that the trial court lacked 

jurisdiction because Stefan had failed to seek judicial review of the Board of 

Adjustment’s decision under Texas Local Government Code section 211.011. In 

his response to the City’s jurisdictional plea, Stefan acknowledged that the City 

asserted the trial court lacked jurisdiction based on “Stefan’s failure to appeal the 

decision of the City’s Board of Adjustment (“BOA”) within 10 days.” Stefan did 

not dispute that he had not sought judicial review of the Board of Adjustment’s 

decision under Texas Local Government Code section 211.011, and he tacitly 

recognized that he had failed to do so. Stefan did not argue that his petition 

suffices to seek this relief, nor did he amend his petition to add a request for this 

relief. Likewise, on appeal Stefan has not asserted that he is seeking seek judicial 

review of the Board of Adjustment’s decision under Texas Local Government 

Code section 211.011 or that his petition suffices to seek this relief. In his 

appellate brief, Stefan states: “Stefan brings claims against the City of Dickinson 

for declaratory relief and takings claims under the state constitution. The City 

challenges jurisdiction with respect to Stefan’s declaratory judgment and takings 

claims for failure to timely appeal the City Board of Adjustment determination and 

that Stefan did not exhaust his administrative remedies regarding nonconforming 

use.” The statements of Stefan and his counsel in the trial court and on appeal

show that Stefan is not seeking judicial review of the Board of Adjustment’s 

decision under Texas Local Government Code section 211.011. 

Precedent from the Supreme Court of Texas and this court does not compel 

the conclusion that under the record in this case Stefan sought judicial review of
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the Board of Adjustment’s decision under section 211.011. In Tellez v. City of 

Socorro, a plaintiff sought judicial review of a zoning board of adjustment’s 

decision under section 211.011, but the plaintiff improperly sued the city rather 

than the zoning board of adjustment. See 226 S.W.3d 413, 414 (Tex. 2007) (per 

curiam). In addition, the plaintiff did not specify how the board’s decision was 

illegal. See id. After the trial court affirmed the board’s decision, the plaintiff

appealed, and the court of appeals dismissed sua sponte for lack of jurisdiction. 

See id. The Supreme Court of Texas held that the plaintiff’s failure to specify how 

the board’s decision was illegal and the failure to sue the board were nonjurisdictional defects that the city waived by not raising them in the trial court. See 

id. In today’s case, though Stefan failed to specify how the Board of Adjustment’s

decision was illegal and also failed to sue the Board of Adjustment, we have not

relied on either failure in our analysis. Stefan has not sought judicial review under 

section 211.011 in his petition or claimed that he has done so. In addition, the City 

pointed out in its plea to the jurisdiction that Stefan had failed to seek judicial 

review under section 211.011; yet Stefan did not amend his pleading to seek this 

relief. The Tellez case is not on point.

In Davis v. Zoning Board of Adjustment of the City of La Porte, the Supreme 

Court of Texas, in a per curiam opinion, held that the trial court did not lose

jurisdiction over the plaintiffs’ requests for judicial review under section 211.011 

of the Local Government Code merely because the plaintiffs failed to serve the 

writ of certiorari ordered by the trial court. See 865 S.W.2d 941, 942 (Tex. 1993)

(per curiam). The Davis court said “[o]nce a party files a petition within ten (10) 

days after a zoning board decision, the court has subject matter jurisdiction to hear 

and determine a claim that a board of adjustment acted illegally. The writ of 

certiorari is the method by which the court conducts its review. . .” Id. In the trial 
16

court petition in Davis, the plaintiffs sought review of the board of adjustment’s 

decision under section 211.011 of the Local Government Code; the Davis court did 

not hold that any petition filed within ten days of a board of adjustment’s decision 

suffices to seek relief under section 211.011 of the Local Government Code, even 

if the petition, under a liberal construction, contains no such claim and the 

plaintiffs do not assert that they have pleaded such a claim. See id.

In Scott, the plaintiffs challenged in their petition a board of adjustment’s 

decision, asserting that the board abused its discretion in its decision authorizing a 

variance. See Scott v. Bd. of Adjustment, 393 S.W.2d 837, 838 (Tex. Civ. App.—

Corpus Christi 1965), rev’d, 405 S.W.2d 55 (Tex. 1966). In Scott, the defendants

did not dispute that the plaintiffs sought judicial review of the board of

adjustment’s decision under the predecessor statute to Texas Local Government 

Code section 211.011, and the appellate courts addressed whether the statute 

sufficed to give the plaintiffs standing or whether the plaintiffs had to satisfy 

common-law standing requirements. See Scott, 405 S.W.2d at 55–57; Scott, 393

S.W.2d at 838–39. In holding that the plaintiffs had standing under the statute to 

seek this review and that the plaintiffs did not have to show common-law standing, 

the Supreme Court of Texas did not review the plaintiffs’ petition to see if the 

plaintiffs had sought judicial review of the board of adjustment’s decision under 

the predecessor statute to section 211.011. See Scott, 405 S.W.2d at 55–57. The 

Scott court did not hold or state that a request for injunctive relief contrary to a 

board of adjustment’s decision, by itself, constitutes a request for judicial review of 

the board of adjustment’s decision under the predecessor statute to section 

211.011. See id. The Scott case is not on point.

In City of Houston v. Carlson, the appellees asserted that they sought to 

appeal under the applicable statute, and this court noted that it already had 
17

determined that the appellees’ pleading sufficed 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 Dist.] 2012, no pet.). The Carlson court held that the appellees’

failure to verify their petition did not amount to a jurisdictional defect, an issue not 

present in today’s case. See id. at 255–57. Likewise, in Teague v. City of 

Jacksboro, the plaintiff, unlike Stefan, pleaded in his petition for judicial review 

under the applicable statute. See 190 S.W.3d 813, 815 (Tex. App.—Fort Worth 

2006, pet. denied). In any case, Teague, a case out of the Second Court of 

Appeals, does not bind this court. See Chrismon v. Brown, 246 S.W.3d 102, 111 

n.8 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

In sum, a liberal construction cannot create a claim Stefan’s pleading does 

not contain, and we cannot conclude that Stefan sought judicial review of the

Board of Adjustment’s decision under section 211.011. See Tex. Loc. Gov’t Code 

Ann. § 211.011; Lamar Corp., 270 S.W.3d at 613–614; Lenox Barbeque and

Catering, Inc., 489 S.W.3d at 536; Moneyhon, 278 S.W.3d at 878. Thus, we 

disagree with our concurring colleague’s conclusion that Stefan’s petition suffices 

to seek this judicial review. See post at 1–2. Stefan pleaded a declaratoryjudgment claim, and we presume for the sake of argument that he pleaded an

inverse-condemnation or takings claim. See Tex. Civ Prac. & Rem. Code Ann. §

37.001, et seq.

C. Does the trial court lack jurisdiction over Stefan’s declaratoryjudgment claim because Stefan failed to exhaust his administrative 

remedies?

In its first issue, the City asserts that the trial court lacks jurisdiction over 

Stefan’s declaratory-judgment claim because Stefan failed to exhaust his 

administrative remedies by filing a petition for writ of certiorari under Local 

Government Code section 211.011 to obtain judicial review of the Board of 
18

Adjustment’s decision. 

In his declaratory-judgment claim, Stefan seeks a declaration that the

Property is “‘Grand-fathered’ from the City of Dickinson zoning law.” Under a 

liberal construction of this pleading, Stefan seeks a declaration that his use of the 

Property as a “Special Event Center/Wedding Chapel” is a lawful, nonconforming 

use that does not violate the Zoning Ordinance because this use lawfully existed on 

July 24, 2001, and has continued to the present. Code of Ordinances, Dickinson, 

Tex., ch. 18, at art. X, § 18-107. On appeal, Stefan asserts that he seeks a 

determination of the existence and extent of his alleged vested right to use the 

Property for weddings, receptions, and other events based on the Registration 

Document, which he received pursuant to section 18.113 of the Zoning Ordinance. 

Stefan pursued his administrative remedies by asking Meadows to issue a 

Certificate of Occupancy Nonconforming. Meadows determined that Stefan is not 

eligible for issuance of a Certificate of Occupancy Nonconforming for the use of 

any portion of the Property as a Special Event Center. Meadows indicated that he 

thought Stefan had not proven that Stefan was using the Property for a Special

Event Center on July 24, 2001, and that Stefan had continued that use to the 

present without abandonment. Meadows determined that Stefan may not use the 

Property for any other purpose than the uses permitted in a Conventional 

Residential District. Stefan unsuccessfully appealed Meadows’s ruling to the

Board of Adjustment.

Under Local Government Code section 211.011, Stefan had the statutory 

right to obtain judicial review of the Board of Adjustment’s decision. See Tex.

Loc. Gov’t Code Ann. § 211.011(a). The deadline for Stefan to have filed the

petition for writ of certiorari fell ten days after the date on which the Board of 

Adjustment filed its decision. See Tex. Loc. Gov’t Code Ann. § 211.011(b). This 
19

deadline passed in December 2017. As discussed in the previous section, Stefan 

has not filed a petition seeking review of the Board of Adjustment’s decision under 

Local Government Code section 211.011. Instead, Stefan filed a petition seeking 

declaratory relief. See Lamar Corp., 270 S.W.3d at 613–614.

The exhaustion-of-administrative-remedies rule requires that a plaintiff

pursue all available remedies within the administrative process before seeking 

judicial relief. Murphy v. The City of Galveston, 557 S.W.3d 235, 241 (Tex. 

App.—Houston [14th Dist.] 2018, pet. denied). The failure to do so deprives the 

trial court of jurisdiction to decide the case. Id. at 241–44. The administrative 

remedies available under section 211 of the Local Government Code generally 

must be exhausted before a party may seek judicial review of a determination made 

by an administrative official. See Tex. Loc. Gov’t Code Ann. § 211.001, et seq. 

(West, Westlaw through 2019 R.S.); Murphy, 557 S.W.3d at 241; see also City of 

San Antonio v. El Dorado Amusement Co., Inc., 195 S.W.3d 238, 250 (Tex. 

App.—San Antonio 2006, pet. denied) (stating that “[t]he administrative remedies 

provided by the Local Government Code must be exhausted before matters

regarding non-conforming uses may be brought before the courts.”). The review 

of the Board of Adjustment’s decision under Local Government Code section 

211.011 is an administrative remedy that must be exhausted before a decision by 

the Board of Adjustment may be brought before the courts. See Lazarides v. 

Farris, 367 S.W.3d 788, 799 (Tex. App.—Houston [14th Dist.] 2012, no pet.); 

Lamar Corp., 270 S.W.3d at 613–614; El Dorado Amusement Co., 195 S.W.3d at

249–50. By not seeking review of the Board of Adjustment’s decision under Local 

Government Code section 211.011, Stefan failed to exhaust his administrative 

remedies. See Lazarides, 367 S.W.3d at 799; Lamar Corp., 270 S.W.3d at 613–

614; City of San Antonio, 195 S.W.3d at 249–50. To the extent Stefan asserts 
20

entitlement to a specific use permit, Stefan did not exhaust his administrative 

remedies by obtaining a ruling from the City Council on an application for a 

specific use permit. See Code of Ordinances, Dickinson, Tex., ch. 18, at art. V., at 

§§ 18-57, 18-58; Murphy, 557 S.W.3d at 241–44; Lazarides, 367 S.W.3d at 799;

Winn v. City of Irving, 770 S.W.2d 10, 11 (Tex. App.—Dallas 1989, no writ).

On appeal, Stefan states that the Board of Adjustment heard and denied his 

appeal, finding that Stefan did not have sufficient proof of a nonconforming use of 

the Property. Stefan does not assert that he exhausted his administrative remedies 

or that he is excused from doing so. Stefan asserts the following arguments:

• The trial court has jurisdiction over Stefan’s declaratory-judgment claim 

because the parties dispute whether Stefan has a vested right to use the 

Property for weddings, receptions, and other events.

• The City has no legitimate reason for denying Stefan’s right to continue 

his lawful business of using the Property for weddings, receptions, and 

other events as authorized by the City in the Registration Document

because the City relied upon rules, ordinances, or requirements that did 

not exist when Stefan’s rights vested or on rules that do not apply to a 

recognized nonconforming use registration.

• Although required to do so, the Zoning Official did not maintain the 

record of the Registration Document.

• The Registration Document gave Stefan the right to use the Property for 

weddings, receptions, and other events.

• In denying Stefan’s request for a Certificate of Occupancy 

Nonconforming, Meadows violated section 18.115 of the Zoning 

Ordinance.

• In a memorandum to the Planning and Zoning Commission, Meadows 

allegedly recognized Stefan’s use of the Property for weddings, 

receptions, and other events before the adoption of the Zoning Ordinance

on July 24, 2001.

• This case involves various other justiciable controversies regarding the 

merits of Stefan’s contentions.
21

These arguments go to the merits of Stefan’s contentions, and none of them 

provides a basis for excusing Stefan’s failure to exhaust administrative remedies. 

If the trial court and this court lack subject-matter jurisdiction over Stefan’s

declaratory-judgment claim due to Stefan’s failure to exhaust administrative

remedies, neither court may address any of these merits arguments. See Curry v. 

Harris County Appraisal Dist., 434 S.W.3d 815, 820 (Tex. App.—Houston [14th 

Dist.] 2014, no pet.).

Stefan asserts that Meadows had no authority to reject Stefan’s vested right 

of the nonconforming use of the Property for weddings, receptions, and other 

events by requiring Stefan to apply for a specific use permit. We presume, without 

deciding, that such a lack of authority would excuse Stefan’s failure to exhaust 

administrative remedies. Stefan claims on appeal that he has a vested right based 

on the Registration Document. The City has not contested the authenticity of that 

document or disputed Stefan’s assertion that the person who signed and approved

it was the City’s Zoning Official at the time of signature in June 2002. We 

presume that the Registration Document is authentic and that the City’s Zoning 

Official at the time approved it. Nonetheless, Stefan describes, in pertinent part,

the nonconforming use only as “business.” The Registration Document recites that 

“[d]ocumentation that proves the property was used in the same manner prior to 

July 24, 2001 is required.” Yet, the record contains no evidence showing what, if 

any, documents Stefan submitted with the Registration Document. He may have 

submitted documents showing that he had operated his computer business on the 

Property since before July 24, 2001. Stefan may have submitted documents 

allegedly showing that he had been operating a business of hosting weddings, 

receptions, and other events on the Property since before July 24, 2001. Or, Stefan 

may have submitted no documents. The record contains no evidence that the City 
22

ever issued Stefan a Certificate of Occupancy Nonconforming, which, according to 

the Zoning Ordinance, would describe the nonconforming use and serve as 

evidence of the lawful existence of the nonconforming use. See Code of 

Ordinances, Dickinson, Tex., ch. 18, at art. X., at § 18-115. The Zoning Ordinance 

does not state that the registration of the nonconforming use serves as evidence of 

the lawful existence of the nonconforming use; instead, the Zoning Ordinance says 

that the Certificate of Occupancy Nonconforming evidences the lawful existence 

of the nonconforming use. See id.

Under the Zoning Ordinance, Meadows’s duties and responsibilities as the 

Zoning Official include, but are not limited to, accepting and processing all 

submitted applications for specific use permits, serving as the enforcement officer 

to ensure compliance with the Zoning Ordinance, and performing other duties as 

necessary and appropriate to uphold the provisions of the Zoning Ordinance. Id. at 

art. III, § 18-13. Even presuming that a prior Zoning Official approved the 

registration by Stefan of a nonconforming use of “business,” we conclude that

Meadows, as the current Zoning Official, had authority to determine (1) whether 

the June 2002 registration constituted a registration of a nonconforming use of the 

Property for weddings, receptions, and other events; (2) whether Stefan had shown 

that he has used the Property for weddings, receptions, and other events without

abandonment since before July 24, 2001; and (3) whether to issue a Certificate of 

Occupancy Nonconforming as to the nonconforming use of the Property for 

weddings, receptions, and other events. See id. at art. III, § 18-13, art. X., at § 18-

115. Thus, Meadows’s alleged lack of authority does not excuse Stefan from 

exhausting administrative remedies. 

Because Stefan failed to exhaust his administrative remedies by seeking 

review of the Board of Adjustment’s decision under Local Government Code 
23

section 211.011, the trial court lacks subject-matter jurisdiction over Stefan’s 

declaratory-judgment claim, and the trial court erred in denying the City’s plea to 

the jurisdiction as to this claim. See Murphy, 557 S.W.3d at 241–44; Lazarides, 

367 S.W.3d at 799; Lamar Corp., 270 S.W.3d at 613–614; City of San Antonio,

195 S.W.3d at 249–50. Thus, we sustain the City’s first issue.

D. Should the trial court have dismissed Stefan’s takings claim?

We presume for the sake of argument that Stefan pleaded an inversecondemnation or takings claim based on the City’s enforcement of the Zoning

Ordinance as to the Property. A party must take advantage of statutory remedies 

that may moot the party’s takings claim, rather than institute a separate proceeding 

asserting such a claim. See City of Beaumont v. Como, 381 S.W.3d 538, 540 (Tex. 

2012) (per curiam); Patel v. City of Everman, 361 S.W.3d 600, 601 (Tex. 2012)

(per curiam); City of Dallas v. VSC, LLC, 347 S.W.3d 231, 234–37 (Tex. 2011). If 

a party asserting a takings claim failed to take advantage of such a statutory 

remedy, the party’s takings claim is barred, and a trial court would be correct in 

dismissing the takings claim based on a plea to the jurisdiction. See Como, 381 

S.W.3d at 539–40. In its second issue, the City asserts that Stefan’s takings claim

is barred because he failed to avail himself of the statutory remedies under Local 

Government Code section 211.011.

Stefan did not seek judicial review of the Board of Adjustment’s decision

under Local Government Code section 211.011. See Tex. Loc. Gov’t Code Ann. § 

211.011(a). If Stefan had pursued this review, Stefan might have obtained a 

statutory remedy under section 211.011 that would have rendered his takings claim

moot. See Tex. Loc. Gov’t Code Ann. § 211.011(f). Because Stefan failed to avail

himself of the review and remedies available under section 211.011, Stefan’s 
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takings claims is barred, and the trial court should dismiss the takings claim. See

Como, 381 S.W.3d at 539–40. We sustain the City’s second issue.

III. CONCLUSION

Stefan did not plead a claim under chapter 245 to enforce that chapter by 

declaratory relief. Stefan did not seek judicial review of the Board of

Adjustment’s decision under Local Government Code section 211.011. Stefan

pleaded a declaratory-judgment claim, and we presume for the sake of argument

that he pleaded an inverse-condemnation or takings claim. See Tex. Civ Prac. & 

Rem. Code Ann. § 37.001, et seq. But because Stefan failed to exhaust his 

administrative remedies by seeking review of the Board of Adjustment’s decision 

under Local Government Code section 211.011, the trial court lacks subject-matter 

jurisdiction over Stefan’s declaratory-judgment claim. So, the trial court erred in 

denying the City’s plea to the jurisdiction as to this claim. Because Stefan failed to 

avail himself of the review and remedies available under section 211.011, Stefan’s 

takings claims is barred. For this reason, the trial court should dismiss the takings 

claim. 

As this court recently stated in San Jacinto River Authority v. Ogletree, if the 

trial court lacks jurisdiction over all pleaded claims, “the [plaintiffs] are not 

entitled to a remand to plead new claims over which the district court may possess 

subject matter jurisdiction.” 594 S.W.3d 833, 842–43 (Tex. App.—Houston [14th 

Dist.] 2020, no pet.). There is a difference between allowing a plaintiff an 

opportunity to plead more facts to show jurisdiction over claims that the plaintiff 

purported to plead and allowing the plaintiff a chance to assert new claims after the 

court of appeals concludes that the trial court lacked jurisdiction over the claims 

the plaintiff purportedly pled. See id. We reverse the trial court’s order and render 
25

judgment dismissing Stefan’s claims for lack of subject-matter jurisdiction. See id.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Wise and Hassan (Hassan, J. 

concurring).