Opinion
04-21-00361-CV
08-24-2022
CITY OF GREY FOREST, Appellant v. Edwin SCHARF, Irene Scharf, Shawn Main, and Lorna Main, Appellees
From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2017-CI-23245 Honorable Aaron Haas, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice
This is an appeal from the trial court's judgment permanently enjoining appellant, the City of Grey Forest, from prohibiting the continued operation of appellees' wedding and event venue. We reverse and remand.
The dispositive facts for this appeal are undisputed.
In 1974, appellees Edwin and Irene Scharf purchased a 9.92-acre tract of land that is partially in unincorporated Bexar County and partially in the City of Grey Forest. From 2009 to 2011, the Scharfs built a 4,816-square foot building located entirely within the City. In 2011, the Scharfs leased their land with all improvements to their daughter and son-in-law, appellees Lorna and Shawn Main. Beginning in 2011, the Mains rented the building as a wedding and event venue. Several years later, in April 2017, the City's Secretary/Treasurer sent the Scharfs a letter stating that the building violated the City's zoning ordinance number 45B under the City's 2015 zoning ordinance. In August 2017, the City amended the ordinance to specifically exclude as an allowed land use "Commercial or Event venues for which any form of compensation is exchanged." Later in 2017 and in early 2018, the City issued citations to Shawn Main for operating appellees' building in violation of the City's zoning ordinance.
The Scharfs then filed an original petition, seeking to enjoin the City from enforcing its ordinance. The City responded with a plea to the jurisdiction, arguing among other things that the trial court lacked subject-matter jurisdiction because appellees failed to exhaust administrative remedies. The Scharfs amended their petition to add the Mains, and the City filed a counterclaim. The parties then moved for summary judgment, and the trial court granted summary judgment in appellees' favor. In a written order, the trial court concluded that the case was ripe for adjudication, that the pertinent section of the 2015 zoning ordinance was void for vagueness, that, if not void for vagueness, the 2015 ordinance did not prohibit appellees' business use of the property, and that appellees' business use was a "prior legal non-conforming use and not subject to the 2017 Ordinance 45B." The trial court enjoined the City from,
directly or indirectly attempting to prohibit the continuing operation of [appellees'] wedding and events venue under Grey Forest's zoning ordinances; and from attempting to prosecute [appellees] under citations for alleged violations of Ordinance 45B of the Grey Forest Code of Ordinances.At a bench trial, the trial court determined the remaining issue of attorney's fees, awarding appellees such fees. The City timely appealed.
Jurisdiction
The City argues in three of its six issues that the trial court lacked subject-matter jurisdiction.
Standard of Review
Whether a court has subject-matter jurisdiction is a question of law we review de novo. Texas Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The burden is on the plaintiff to affirmatively demonstrate the trial court's jurisdiction. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). In an appeal from a final summary judgment, we consider the parties' evidence to the extent necessary to resolve the challenged jurisdictional facts, taking as true all evidence favorable to the appellees and indulging every reasonable inference and doubts in their favor. Miranda, 133 S.W.3d at 227-28; City of New Braunfels v. Stop The Ordinances Please, 520 S.W.3d 208, 212 (Tex. App.-Austin 2017, pet. denied).
Discussion
In its first issue, the City argues the trial court lacked subject-matter jurisdiction because appellees failed to exhaust administrative remedies available under state law and the City's zoning ordinance.
Applicable Law
Under Texas Local Government Code Chapter 211, a municipality may promulgate zoning regulations and establish a board of adjustment with the power to:
(1)hear and decide an appeal that alleges error in an order, requirement, decision, or determination made by an administrative official in the enforcement of this subchapter or an ordinance adopted under this subchapter;
(2)hear and decide special exceptions to the terms of a zoning ordinance when the ordinance requires the board to do so;
(3)authorize in specific cases a variance from the terms of a zoning ordinance if the variance is not contrary to the public interest and, due to special conditions, a
literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of the ordinance is observed and substantial justice is done; and
(4) hear and decide other matters authorized by an ordinance adopted under this subchapter.Tex. Loc. Gov't Code Ann. § 211.009(a); see id. §§ 211.003, .008. "In exercising its authority under Subsection (a)(1), the board may reverse or affirm, in whole or in part, or modify the administrative official's order, requirement, decision, or determination from which an appeal is taken and make the correct order, requirement, decision, or determination . . . ." Id. § 211.009(b). An aggrieved person then may appeal the board's decision by filing, within ten days of the decision, a verified petition in a district court, county court, or county court at law stating that the board's decision "is illegal in whole or in part." Id. § 211.011(a)(1), (b).
Generally, a party must exhaust administrative remedies available under Chapter 211 before seeking judicial review of an administrative official's decision. See City of Grapevine v. Muns, No. 02-19-00257-CV, 2021 WL 6068952, at *7 (Tex. App.-Fort Worth Dec. 23, 2021, pet. filed); City of San Antonio v. El Dorado Amusement Co., 195 S.W.3d 238, 250 (Tex. App.- San Antonio 2006, pet. denied). The failure to do so deprives the trial court of subject-matter jurisdiction to decide the case. Muns, 2021 WL 6068952, at *7; Murphy v. City of Galveston, 557 S.W.3d 235, 241 (Tex. App.-Houston [14th Dist.] 2018, pet. denied).
April 2017 Letter
The City argues that the Secretary/Treasurer's April 2017 letter to the Scharfs was an administrative decision that appellees' use of their building as a wedding and event venue was a prohibited use under the City's 2015 zoning ordinance. The City argues that appellees' failure to exhaust administrative remedies as to this decision deprived the trial court of subject-matter jurisdiction. See Tex. Loc. Gov't Code Ann. § 211.009(a)(1) (authorizing board of adjustment to decide appeal from decision or determination made by an administrative official in enforcement of zoning ordinance). Appellees respond that the April 2017 Letter did not trigger Chapter 211's review procedures because the letter was not an enforcement letter. See id.
The April 2017 letter states, "It is the City's position" that appellees' use of their building as a wedding and event venue for a fee constitutes an unauthorized use of real property in the City in violation of the City's 2015 zoning ordinance. Assuming the City's "position" is a "decision" or "determination" within the meaning of the Local Government Code, the Secretary/Treasurer's decision, nevertheless, was not made "in the enforcement" of the ordinance. See id.
The Local Government Code does not define "enforcement;" therefore, in construing the Code, we must give the word its common, ordinary meaning. Muns, 2021 WL 6068952, at *7 (citing Fort Worth Transp. Auth v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018)). "In ordinary usage, 'enforcement' is the 'act or process of compelling compliance with a law, mandate, command, decree, or agreement.'" Id. (quoting Enforcement, Black's Law Dictionary (11th ed. 2019)). "'Compel' means '[t]o cause or bring about by force, threats, or overwhelming pressure.'" Id. (quoting Compel, Black's Law Dictionary (11th ed. 2019)).
The letter begins, "This is a courtesy notice from the City of Grey Forest." It continues, "[T]he business use of the structure is not in compliance with the ordinance," and it states:
I strongly urge you to cease and desist from this activity at the above-referenced property. Continuing this practice may result in prosecution and fines, which range from $25.00 to $2,000 per day, with each day constituting a separate offense.The Secretary/Treasurer's "courtesy notice" "strongly urg[ing]" the Scharfs to cease and desist because their use of the building as a wedding and events venue "may" result in fines is not a decision made in the act or process of compelling compliance with the City's ordinance. The letter strongly urges but does not compel compliance. It warns only of the possibility of fines, but does not impose fines or state that fines will be imposed absent compliance. We hold the Secretary/Treasurer's April 2017 "courtesy notice" is informational and does not constitute enforcement, as that term is commonly and ordinarily understood. See id. at *7-9 (holding oral statement at public hearing that ordinance prohibited short-term rentals and written notice warning of fines after a grace period were informational and not made "in the enforcement" of the ordinance).
Citations and Variance Denial
The City also contends that, after the zoning ordinance was amended in August 2017, the City issued three citations which appellees were required to appeal to the Board of Adjustment to exhaust administrative remedies. Relatedly, appellees sought a "use variance" from the Board, and the Board denied the variance in 2019. Appellees filed a petition for writ of certiorari with the trial court as to the Board's denial of their variance request, but they later nonsuited the petition. The City contends that by nonsuiting the petition, appellees did not exhaust administrative remedies. Appellees respond that the City's Board of Adjustment had no authority to grant an exception to the City's zoning ordinance for prior non-conforming uses; therefore, appellees were not required to appeal their citations to the Board of Adjustment or to appeal the Board's denial of their variance request to the district court. See Tex. Local Gov't Code Ann. § 211.011(a).
Appellees also argue that pursuit of administrative remedies would have been futile, but we do not reach this argument.
Because the City's 2017 zoning ordinance provided no avenue for appellees to seek a "use variance" and because the ordinance gave the City's Board of Adjustment no authority to grant a variance to allow a property owner to continue a preexisting nonconforming use, we hold that there was no administrative remedy that appellees failed to pursue. A "use variance" allows a property owner to seek relief from the uses permitted under an ordinance, for example to construct a gas station, beauty store, or parking lot in an area designated for residential use only. See Ferris v. City of Austin, 150 S.W.3d 514, 517 n.2 (Tex. App.-Austin 2004, no pet.); see also Bd. Of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 425-26 (Tex. 2002) (affirming decision by board of adjustment to approve the filing of a registration statement of nonconforming use to allow land to be used for quarry purposes in an area zoned for residential use). Many of the cases the parties cite concern city ordinances that allow for use variances, so that a preexisting nonconforming use can continue after an area has been rezoned. See e.g., Wende, 92 S.W.3d at 427-28 (describing ordinance that allowed registration of nonconforming uses and structures); City of Dickinson v. Stefan, 611 S.W.3d 654, 669 (Tex. App.-Houston [14th Dist.] 2020, no pet.) (describing zoning ordinance that provided for a preexisting nonconforming use to continue); see also City of Univ. Park v. Benners, 485 S.W.2d 773, 777 (Tex. 1972) ("A nonconforming use of land or buildings is a use that existed legally when the zoning restriction became effective and has continued to exist."). The City's 2017 zoning ordinance, however, does not provide a process by which a property owner may request a use variance, and it does not grant the City's Board of Adjustment authority to grant variances for preexisting nonconforming uses. Cf. Tex. Local Gov't Code Ann. § 211.008(a) ("The governing body may authorize the board of adjustment . . . to make special exceptions to the terms of the zoning ordinance[.]" (emphasis added)).
The City of Grey Forest is a municipality of approximately 500 acres with approximately 500 inhabitants. According to its zoning ordinance, a goal of the City is "to preserve the unique quality of th[e] residential living environment." Municipal land area is comprised of a "District A" and a "District B." There are no residential, commercial, or industrial zones. Instead, for both Districts A and B, there are allowed and prohibited land uses. The 13 allowed property uses include: "Single-Family Dwellings and accessory buildings typical for a residence," "City of Grey Forest Municipal Operations," "Private family gatherings," "Existing Grey Moss Inn," and "Occupations and business typically performed at home . . . ." The 11 prohibited uses in the 2017 zoning ordinance include: "Occupation or business typically not performed at home . . .," and "Commercial or Event venues for which any form of compensation is exchanged." The 2017 ordinance also provides for building height limitations, setback requirements, building-material requirements, lighting restrictions, and other building standards.
The 2017 zoning ordinance provides for a Board of Adjustment with the following authority:
Except where specified that permission, action, or direction by Council is required, or except in the case of building and safety codes, and excepting County, State or Federal laws, the Board of Adjustment shall rule on variance requests through its established procedures.Within a "Permits and Enforcement" section is a subsection that states that building permits are mandatory. Two additional subsections give the requirements for building-permit applications and for review of building plans by the City's Building Inspector. A fourth subsection concerns "Variance Requirements." This subsection states:
Noncompliance with any regulations concerning building codes, lot sizes, setbacks, or any other portion of this ordinance require[s] an approved variance from the Board of Adjustment. Upon determination of the Building Inspector that a variance is required, applications for variances of the Building and Zoning regulations on property shall be in accordance with all ordinances and requirements of the City. . . . The Board of Adjustment will conduct a public hearing and rule on the Variance request.A fifth and final subsection provides for an exception from variance requirements based on lot size and setbacks for portable sheds.
The City's ordinance establishing the Board similarly provides that the Board has the power to decide appeals from any person aggrieved by a decision of "the building official or city representative." See Tex. Local. Gov't Code Ann. § 211.009(a)(1). The ordinance also allows the Board to authorize, "upon appeal in specific cases, . . . such variance from the terms of the zoning ordinance, rules and regulations of the city as will not be contrary to the public interest . . . ." See id. § 211.009(a)(3). The ordinance does not grant the Board powers to "hear and decide special exceptions to the terms of a zoning ordinance," see id. § 211.009(a)(2), or to "hear and decide other matters," see id. § 211.009(a)(4).
While the zoning ordinance provides that "the Board of Adjustment shall rule on variance requests through its established procedures," under the regulatory scheme created by the ordinance, variance requests arise only after a determination by the Building Inspector that a variance is required. Confirming our interpretation is the ordinance's structure. See Cont'l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 398 (Tex. 2000) (analyzing structure of statute); Lumbermens Mut. Cas. Co. v. Manasco, 971 S.W.2d 60, 63 (Tex. 1998) (determining construction of a statutory section "[b]ased on the wording and placement of [the section] in the statutory framework"); see also Wende, 92 S.W.3d at 430 (applying rules of statutory construction to municipal ordinance). The zoning ordinance's subsection on variance applications is grouped with other subsections regarding building plans, permits, and plan review by the Building Inspector. This grouping indicates that variance requests relate only to building plans, permits, and construction matters which involve the Building Inspector.
The City's zoning ordinance contains no provision for the Board to authorize a land use not otherwise allowed. The lists of allowed land uses provides exceptions to the "residential living environment," including an exception for the "[e]xisting Grey Moss Inn," a restaurant established before the City adopted any zoning ordinance. This specific exception for the Grey Moss Inn suggests that exceptions to the "residential living environment" must be specifically stated in the ordinance. See Hammond v. City of Dallas, 712 S.W.2d 496, 498 (Tex. 1986) (requiring interpretation of city charter "by reading it as a whole and harmonizing its various provisions as far as possible").
In short, the City has established a zoning ordinance that does not provide for variance applications related to preexisting nonconforming uses or for the Board of Adjustment to review use-variance requests or appeals. Consequently, there was no administrative remedy available or an administrative process for appellees to exhaust before bringing their claims. Cf. El Dorado Amusement Co., 195 S.W.3d at 250 (explaining a trial court has jurisdiction to determine whether a board of adjustment has the power to grant an exception). Because the City's Board of Adjustment had no power to permit nonconforming uses, we overrule the City's first issue that appellees failed to invoke the trial court's subject-matter jurisdiction by not exhausting administrative remedies. We also overrule the City's fifth issue that appellees' claims for due process and equal protection are barred by their failure to exhaust administrative remedies. Cf. City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236-37 (Tex. 2011) (holding property owner was barred from bringing constitutional claim based on failure to pursue administrative remedy).
To be sure, the Local Government Code allows a municipality to establish an administrative process for a landowner to request a variance for the continuation of a preexisting nonconforming use. See Tex. Local Gov't Code Ann. §§ 211.008(a), 211.009(a); Wende, 92 S.W.3d at 431; Bd. of Adjustment for City of San Antonio v. Kennedy, 410 S.W.3d 31, 35 (Tex. App.-San Antonio 2013, pet. denied). We hold only that the City's 2017 zoning ordinance does not provide for such a process. Because the City's zoning ordinance does not provide for this process, we also overrule the City's second issue that the trial court had no authority to make an independent determination of nonconforming use.
The City's second issue depends on the premise - which we reject - that the Board had the authority to determine appellees' request for a use variance.
We overrule the City's issues one, two, and five and hold the trial court had subject-matter jurisdiction over appellees' claims.
Summary Judgment
The City's third and fourth issues address the merits of the trial court's order granting summary judgment. Most of the City's third issue is devoted to construction of the 2015 ordinance. The City argues that appellees do not have a right under the 2015 ordinance to use their land for a wedding and event venue. The City also asserts that the trial court erred by failing to apply the 2017 ordinance, which by its terms, "supersedes all previous zoning ordinances." The ordinance prohibits "Commercial or Event venues for which any form of compensation is exchanged." Appellees acknowledge that this newly added prohibition addresses their use. Appellees, however, respond that the 2015 ordinance allowed for the use of their land as a wedding and event venue and this allowance continued after the 2017 amendment because their use was a "prior legal non-conforming use." In its summary judgment order, the trial court determined that appellees were not subject to the 2017 ordinance. It also determined that the 2015 ordinance was void for vagueness, and, if not void for vagueness, that appellees' business use was not prohibited under the 2015 ordinance.
To unravel the City's third issue, we look to appellees' pleaded claims and then to the grounds upon which they sought summary judgment. Because the arguments accepted by the trial court to avoid application of the 2017 ordinance in favor of the 2015 ordinance do not allow for this avoidance as a matter of law, we hold appellees are not entitled to summary judgment. Accordingly, we reverse and remand.
Standard
We review a trial court's ruling on a motion for summary judgment de novo. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). A traditional motion for summary judgment is proper only if the movant establishes there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). In our review, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Cantey Hanger, 467 S.W.3d at 481. If, as here, the trial court's order granting summary judgment specifies the ground or grounds upon which it was granted, we generally limit our consideration on appeal to the grounds upon which the trial court granted summary judgment. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996); Rodriguez v. Lockhart Contracting Services, Inc., 499 S.W.3d 48, 63 (Tex. App.-San Antonio 2016, no pet.). However, in the interest of judicial economy, we may consider other grounds the trial court did not rule on if the movant has preserved them for appellate review. Cincinnati Life Ins., 927 S.W.2d at 625- 26.
Background
Appellees' live pleading at the time they filed their amended motion for summary judgment asserts a claim for "Unconstitutional Zoning - Violation of Rights of Due Process, Article 1, Section 19, Texas Constitution." Within this claim, appellees specify a theory for equitable estoppel and for "Prior Non-conforming use," among other due-process theories. As to prior nonconforming use, appellees assert in their petition that the 2017 ordinance prohibits commercial or event venues for which any compensation is exchanged and that this limit was designed only for the prohibition of appellees' established use of the property. Appellees assert, "The City's effort to prohibit [appellees'] use of the property violates [appellees'] rights to due process." Appellees also assert claims for violations of the Equal Protection Clause and the Takings Clause of the Texas Constitution. See Tex. Const. art. 1 §§ 3, 17.
Appellees filed an amended motion for traditional summary judgment, seeking judgment based on their equal protection claim and for their due process claim under an equitable estoppel theory. They also sought summary judgment on the grounds that the 2017 ordinance does not apply, that appellees have a preexisting nonconforming use under the 2015 ordinance, and that the 2015 ordinance is void for vagueness. As to why the 2017 ordinance does not apply, appellees assert:
As a matter of law, the City's 2017 Ordinance 45B does not apply to [appellees'] prior legal non-conforming use. City of University Park v. Benners, 485 S.W.2d 773, 778 (Tex. 1972) (City cannot prohibit non-conforming prior use except by "amortization." i.e. allowing time to recoup losses.)[.]The trial court's summary judgment order largely adopted appellees' arguments, concluding:
2. Section 9.02 of the 2015 Ordinance 45B is void for vagueness because it does not provide fair notice of what activities are prohibited.
3. Even if the statute was not void for vagueness, Plaintiffs' business was not prohibited under the 2015 ordinance because that statute permitted occasional events and private family gatherings.
4. Plaintiffs' business is therefore a prior legal non-conforming use and not subject to the 2017 Ordinance 45B.
Discussion
Appellees pled a due process violation based on the City's adoption of the 2017 ordinance, which specifically prohibited appellees' preexisting nonconforming use. In their motion for summary judgment, however, appellees did not attempt to establish that passage of the 2017 ordinance violated their due process rights. Instead, they assert "as a matter of law" that the 2017 ordinance does not apply, citing Benners, 485 S.W.2d at 778. On appeal, appellees argue similarly:
Appellees made a due process argument as to equitable estoppel; however, the trial court did not adopt appellees' equitable estoppel theory, and appellees do not rely on this theory on appeal.
It is . . . the zoning in effect just before the enactment of the 2017 Zoning Ordinance that matters. The use of the [building] as a wedding and events venue was a legal use under the 2015 Zoning Ordinance when the 2017 Zoning Ordinance took effect, attempting to prohibit the non-conforming use. "As a general rule, the restrictions of a zoning ordinance or rule may not be made retroactive." City of Corpus Christi v. Allen, 152 Tex. 137, 254 S.W.2d 759, 761 (Tex. 1953). That general rule applies here.
We hold appellees have provided no valid, legal basis for us to affirm the trial court's summary judgment on the ground that "Plaintiffs' business is . . . a prior legal non-conforming use and not subject to the 2017 Ordinance 45B."
In Benners, the supreme court discussed a landowner's claim for taking property without compensation, in violation of article 1, section 17 of the Texas Constitution. See Benners, 485 S.W.2d at 776; Tex. Const. art. I, § 17. The supreme court determined that an amended zoning ordinance was valid despite the landowner's prior legal nonconforming use, explaining:
We are in accord with the principle that municipal zoning ordinances requiring the termination of nonconforming uses under reasonable conditions are within the scope of municipal police power; and that property owners do not acquire a constitutionally protected vested right in property uses once commenced or in zoning classifications once made. . . .
The question which then occurs is whether respondent discharged the extraordinary burden of showing that the exercise of the police power here was not lawful. As complainant, she was under the burden of showing that no conclusive, or even fairly issuable facts or conditions exist in support of that exercise of the police power. Courts may not interfere unless a challenged ordinance is shown to represent a clear abuse of municipal discretion or unless there is conclusive evidence that a zoning ordinance is arbitrary either generally or as to particular property.Benners, 485 S.W.2d at 778-79.
In their appellate brief, appellees quote Allen for the "general rule" that "restrictions of a zoning ordinance or rule may not be made retroactive." However, Benners discussed and distinguished Allen within the framework quoted above for a party to "discharge[] the extraordinary burden of showing that the exercise of the police power . . . was not lawful." Benners, 485 S.W.2d at 778-79. The landowner in Allen made this showing based on evidence "that the [preexisting] nonconforming use did not appear harmful in any respect to public health, safety, morals or welfare; and that the exercise of the municipal power was unreasonable because of the small benefit to the City." Id. at 778; see Allen, 254 S.W.2d at 761; see also Dyer v. Bd. of Adjustment of City of Dallas, No. 05-94-00093-CV, 1995 WL 23637, at *5 (Tex. App.-Dallas Jan. 11, 1995, writ denied) (not designated for publication) (discussing Allen and Benners and noting that Benners concerned an ordinance terminating a nonconforming business use in a residential neighborhood and Allen involved a business use in a business neighborhood). The Benners court also remarked that in Allen, "[i]t was made clear . . . that the conclusion there reached was not to be construed as a holding that the ordinance could not be constitutionally invoked to terminate a nonconforming use under other circumstances." Benners, 485 S.W.2d at 778; see Allen, 254 S.W.2d at 761.
Appellees' cites to Benners and Allen, without more, do not provide a valid, legal basis for us to disregard the 2017 ordinance. Benners made clear that "property owners do not acquire a constitutionally protected vested right in property uses once commenced" and that appellees bore "the burden of showing that no conclusive, or even fairly issuable facts or conditions exist in support of [the City's] exercise of the police power." Benners, 485 S.W.2d at 778-79. Here, the trial court erred by granting summary judgment on the ground that "Plaintiffs' business is . . . a prior legal non-conforming use and not subject to the 2017 Ordinance 45B" because appellees' bare assertion of a "prior legal non-conforming use" is not sufficient to carry their burden, as a matter of law. See id.; see also Tex. R. Civ. P. 166a(c). Without a valid basis to disregard the 2017 ordinance, the trial court should not have looked past the 2017 ordinance and enjoined the City from prohibiting the continued operation of appellees' wedding and events venue, which undisputedly fell within the newly added prohibition in the 2017 ordinance for "Commercial or Event venues for which any form of compensation is exchanged." Therefore, we sustain the City's third issue and reverse the trial court's judgment.
Our decision does not preclude appellees from showing on remand that the 2017 ordinance "represent[s] a clear abuse of municipal discretion" or that the "zoning ordinance is arbitrary." See Benners, 485 S.W.2d at 779. Our decision also does not preclude appellees from pursuing summary judgment on grounds the trial court did not consider. In its issue four, the City argues that appellees are not entitled to judgment on theories of equitable estoppel or latches. Appellees state that they do not rely on these theories on appeal. Appellees also state they do not rely on their equal protection theory on appeal, and they ask that should we reverse, we also remand for a determination of these matters. We overrule the City's fourth issue and remand for further proceedings consistent with this opinion. See Cincinnati Life Ins., 927 S.W.2d at 625; Rodriguez, 499 S.W.3d at 63.
Conclusion
The trial court had subject-matter jurisdiction; however, the trial court erred by granting summary judgment on the ground that appellees' use of their land was not subject to the 2017 ordinance. We sustain the City's third issue and reverse the trial court's summary judgment and final judgment in favor of appellees. We remand for further proceedings consistent with this opinion.
Because we reverse the trial court's judgment, we do not reach the City's sixth issue, which challenges the trial court's award of injunctive relief. See Tex. R. App. P. 47.1.