NAACP v. City of Kyle: Homebuilders Attack Local Zoning Authority, Chris Phillips, Lloyd Gosselink Blevins Rochelle & Townsend, P.C.; Bradford E. Bullock, Law Offices of Wm. M. McKamie, P.C.: The Home Builders Association of Greater Austin, The National Association of Homebuilders, and the National Association for the Advancement of Colored People have launched a full-scale attack on local zoning authority by claiming that the City of Kyle’s zoning and subdivision ordinances are illegal under the federal Fair Housing Act. The lawsuit, styled as NAACP et al. v. The City of Kyle, was filed in the U.S. District Court for the Western District of Texas (Civil No. A05CA979LY). However, the plaintiffs' claims in this lawsuit are much more than a simple dispute over zoning and subdivision regulations; they appear to be part of a carefully planned and coordinated attack on the authority of all cities to enact and enforce any regulatory ordinance that could potentially increase housing costs. Read more.

Regulation of Evening Solicitation/Canvassing, Lani L. Williams, Local Government Lawyer’s Roundtable, Inc.: Regulating peddlers, solicitors, canvassers, and panhandlers is fraught with constitutional pitfalls. Common sources of litigation include code provisions dealing with the manner of the solicitation (e.g., aggressive panhandling, whether permits and identification are required); the place of the solicitation (e.g., streets, sidewalks, parks), and the time during which these activities can occur (e.g., between the hours of 9:00 a.m. and 9:00 p.m.). While there are many reported opinions on these and other solicitation topics, this article deals only with the regulation of evening solicitation in residential areas. Read more.

2006 Fall Conference in Austin: The TCAA Fall conference will be held in conjunction with the TML Annual Conference on October 26, 2006, at the Austin Convention Center. Special thanks to our sponsors:

• Joe K. Longley, Attorney at Law
• Banowsky & Levine, P.C.

Please visit www.texascityattorneys.org to register.

Please e-mail any articles or news of interest to city attorneys to Scott Houston at legalgovt@tml.org.

Note: Included cases are from the period beginning on the 10th of the previous month through the 10th of the current month.

Employment Termination: Derrick E. Pavelka v. Texas Workforce Commission and City of Austin, Texas Aviation Department, No. 03-05-00293-CV (Tex. App. – Austin, October 3, 2006): Pavelka was hired by the City of Austin Aviation Department. The city’s employment application asked if he had received deferred adjudication in the last ten years. Pavelka checked “No.” When it was discovered that Pavelka had received deferred adjudication within the last ten years, he was terminated. Pavelka then applied for unemployment benefits. The Texas Workforce Commission denied his application because Pavelka was discharged from his position for falsifying his employment application. The appeals court upheld the district court’s judgment against Pavelka because Pavelka failed to establish that the commission’s decision was not supported by substantial evidence.

Sovereign Immunity/Open Meetings Act: Olympic Waste Services v. City of Grand Saline, No. 12-05-00217-CV (Tex. App. – Tyler, September 29, 2006): The trial court granted a plea to the jurisdiction and summary judgment to the city after Olympic sued for breach of contract. Olympic appealed, arguing that violations of the Open Meetings Act (OMA) rendered a new contract with another waste company voidable. The court held that, under Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006), the “sue or be sued” language in Local Government Code Section 51.013 was not unambiguous enough to waive the city’s protection under the Tort Claims Act. The court also held that the discussion of the new contract was not appropriate under the OMA, but since the action to enter into the contract was taken in open session, the contract itself was not voidable on those grounds. The court upheld the plea to the jurisdiction and reversed and remanded the lower court’s granting of summary judgment on the OMA issues with regard to the cancellation of Olympic’s contract.

Development: Concerned Community Involved Development, Inc. v. City of Houston, et al, No. 14-05-01254-CV (Tex. App. – Houston [14th Dist.], September 26, 2006): The City of Houston entered into a plan with a developer to build a bridge into a subdivision. Concerned Community Involved Development (CCID) sued for an injunction to halt the construction, and the city was granted summary judgment at the trial court. CCID petitioned the court to overturn the trial court’s denial of injunctive relief against the city and the trial court’s granting of the city’s plea to the jurisdiction under the Open Meetings Act and the Public Information Act. The court held that, beyond a constitutional taking, which is properly decided in a county court, CCID had suffered and would suffer no injury, therefore did not have standing in the case. CCID also claimed that the city violated the Open Meetings Act and the Public Information Act during the permitting process. While the court agreed that CCID might not have had a right to relief, that did not affect the lower court’s subject matter jurisdiction, and a plea to the jurisdiction was inappropriate. The court reversed and remanded the lower court’s holding on that point.

Note: Included cases are from the period beginning on the 10th of the previous month through the 10th of the current month.

Opinion No. GA - 459: Concludes that a city is required to: (1) improve and maintain an unimproved, dedicated public right-of-way within the city limits if the city has accepted the dedicated right-of-way; or (2) improve such right-of-way if the improvement is necessary to provide adequate municipal services to adjacent annexed property.

Opinion No. GA - 468: Concludes that a member of a school district board of trustees is not as a matter of law prohibited from simultaneously serving as county clerk of a county in which the school district is located

You can view attorney general opinions at www.oag.state.tx.us . On the same site, you can also sign up to receive e-mail updates of opinion requests and newly-released opinions.

TCAA members may use the information herein for any purpose. No other person may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas City Attorneys Association.

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