Fourth Court of Appeals San Antonio, Texas
OPINION No. 04-24-00371-CV
CITY OF SAN ANTONIO AND TOYOTA MOTOR MANUFACTURING TEXAS, INC. Appellants
v.
SOUTHSIDE AFFORDABLE DEVELOPMENT, LLC Appellee
From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2023CI2553 Honorable Rosie Alvarado, Judge Presiding
Opinion by: H. Todd McCray, Justice
Sitting: Lori I. Valenzuela, Justice H. Todd McCray, Justice Velia J. Meza, Justice
Delivered and Filed: July 16, 2025
REVERSED AND RENDERED
The City of San Antonio (“COSA”) appeals the trial court’s interlocutory order denying its
plea to the jurisdiction. Because the trial court lacks subject-matter jurisdiction over Southside
Affordable Development, LLC’s (“Southside”) claims, we reverse and render judgment dismissing
Southside’s lawsuit with prejudice. 04-24-00371-CV
BACKGROUND
In 2003, COSA and 16 other parties, including the State of Texas, entered into the Project
Starbright Agreement (“the Agreement”) with Toyota Motor Manufacturing North America, Inc.
(“Toyota”), to bring a Toyota manufacturing plant to land COSA had annexed in 2002. 1 Under 0F
paragraph 2.3 of the Agreement, COSA and other local entities also agreed to the terms and
obligations of a separate agreement with Toyota, (the “City Agreement”). 2 Under Paragraph 24(a) 1F
of the City Agreement (“Paragraph 24(a)”), COSA agreed to work in good faith with Toyota in
establishing zoning regulations to Toyota’s satisfaction within a three mile perimeter of the Toyota
manufacturing plant (the “Enhanced Zoning Area”).
The City agrees to initiate appropriate zoning cases and revisions to its Unified Development Code to zone the larger geographical area surrounding the Project Site located within the City’s zoning jurisdiction and within three (3) miles of the perimeter of the Project Site (the “Enhanced Zoning Area”) The City agrees to commence such zoning process as soon as is practicable after the Effective Date and to work with Toyota in accordance with procedures required and authorized by law to zone the area which will include the creation of an appropriate new zoning overlay district (a “Target Industrial Development Area”) with the objective of imposing upon the Enhanced Zoning Area appropriate land use guidelines that satisfy Toyota regarding use, density, set-back and other restrictions consistent with Project Starbright. Toyota may designate a representative to work with the City, and the City will work in good faith with such representative, in the development of land use planning initiatives in the Enhanced Zoning Area and the Target Industrial Development Area, as well as any other land use planning initiative that affects the general area of the Project Site.
1 The other parties to the Agreement were Bexar County, Texas; City of San Antonio, Texas, Starbright Industrial Development Corporation; Texas Department of Transportation; Texas Workforce Commission; Alamo Workforce Development, Inc.; Texas Department of Economic Development; Texas Commission on Environmental Quality; Texas Comptroller of Public Accounts; San Antonio Water System; (San Antonio) City Public Service; San Antonio Economic Development Foundation; Greater Kelly Development Authority; Southwest (San Antonio) Independent School District; Bexar Metropolitan Water District; and Bexar County Rail District. 2 The other parties to the City Agreement were San Antonio Water System; (San Antonio) City Public Service; City of San Antonio, Texas, Starbright Industrial Development Corporation; San Antonio Economic Development Foundation; Alamo Workforce Development, Inc.; Greater Kelly Development Authority; and Bexar Metropolitan Water District.
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On May 22, 2003, COSA’s City Council (“City Council”) passed Ordinance 97650,
approving the Agreement and authorizing the City Manager to execute it on COSA’s behalf. Terry
Brechtel, then city manager of COSA, and then Mayor Ed Garza, executed the Agreement on
behalf of COSA on June 26, 2003.
On September 5, 2002, months prior to the execution of these agreements, COSA approved
Ordinance 96557, which added 8,358 acres to COSA. The Enhanced Zoning Area, as defined in
Paragraph 24(a), is located within this tract. Southside currently owns approximately 97 acres of
property within the Enhanced Zoning Area (the “97-Acre Tract”).
Initially, COSA zoned the entire 8,358 acre tract as DR (Development Reserve). But Presto
Tierra LLC, the prior owner of the 97-Acre Tract, requested a zoning change for some of this tract,
including the 97-Acre Tract. On January 15, 2004, about seven months after the adoption of the
Agreement, COSA approved the rezoning request via Ordinance 98711, which changed the zoning
classification of the 97-Acre Tract from DR to M1-1 (mixed light industrial use). Under this
classification, multifamily residential use is not permitted.
On January 23, 2017, Presto Tierra LLC submitted another rezoning application,
requesting that COSA change the zoning of the 97-Acre Tract from M1-1 to C-2 AHOD
(commercial). The application presented the following reason for seeking the change:
The reason for this zoning request is to give the “Preserve” development zoning categories that are more in keeping with the rest of mixed-use projects in San Antonio. The current zoning categories are left over from the City South Management Authority, which entity has been dissolved. This project has always been a mixed-use development of commercial along Hwy. 16 . . . For the 100 acres fronting Hwy. 16. we are requesting C-2 . . . . The C-2 portion is not compatible with the current land use in the Heritage South Sector Plan . . . .
On April 20, 2017, COSA approved Ordinance 2017-04-20-0279 which changed the zoning
classification of the 97-Acre Tract to C-2 as requested.
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Presto Tierra LLC conveyed the 97-Acre Tract to Southside two months later, on June 29,
2017. 3 2F
In February of 2022, Southside requested rezoning of approximately 34.5 acres of the 97-
Acre Tract from C-2 to R-5 (Residential Single-Family). City staff recommended denying the
request, but the zoning commission recommended approving the application on April 5, 2022. The
zoning request was then placed on the City Council’s agenda for August 4, 2022. Before the City
Council’s scheduled vote on the application, however, Southside obtained formal postponement
of its case. The matter was reset on the City Council’s agenda for December 15, 2022, but
Southside again postponed the vote, noting that the requested zoning change to R-5 might not suit
the proposed development. Southside then amended its application in May of 2023, to request the
34.5 acres be rezoned to MF-33 (multi-family residential).
Southside represents that, in June 2023, the councilwoman for the district containing the
97-Acre Tract, Dr. Adriana Rocha Garcia, advised Southside she was not supportive of the zoning
change. On September 1, 2023, representatives of Southside met with the City Attorney, members
of his staff, Dr. Garcia, an Assistant City Manager, and the Director of the Neighborhood &
Housing Services Department. On October 6, 2023, the City Attorney’s office advised Southside
by email that COSA would not support the project. Southside has since postponed a vote by the
City Council on its requested zoning change.
On December 4, 2023, Southside filed a lawsuit asserting Ordinance 97650 violated the
Texas Constitution by improperly delegating COSA’s zoning authority to Toyota, and that
Ordinances 98711 (changing the zoning classification from DR to M1-1 (mixed light industrial
3 On June 29, 2017, the 97-Acre Tract was conveyed from Presto Tierra LLC to FLG Preserve, LLC. On June 20, 2023, FLG Preserve, LLC filed a certificate of amendment with the Texas Secretary of State changing its name to Southside Affordable Development.
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use)) and 2017-04-20-0279 (changing the zoning classification from M1-1 to C-2 AHOD
(commercial)), violate the Texas Constitution by effectuating zoning changes to Toyota’s
satisfaction by prohibiting multifamily residential use. Southside also asserts Ordinance 97650 is
an illegal taking in violation of the Private Real Property Rights Protection Act (“PRPRPA”), and
that Ordinance 97650 is also void because COSA failed to conduct a takings impact assessment as
required by the PRPRPA. 4 3F
COSA filed a plea to the jurisdiction and motion to dismiss for lack of subject-matter
jurisdiction, asserting COSA is immune from Southside’s lawsuit, that Southside’s claims are not
ripe for review, and that Southside lacks standing. After hearing argument from the parties, the
trial court denied COSA’s plea to the jurisdiction on May 8, 2024. COSA then filed this
interlocutory appeal.
STANDARD OF REVIEW
“We review a trial court’s ruling on a plea to the jurisdiction under a de novo standard of
review.” County of Bexar v. Steward, 139 S.W.3d 354, 357 (Tex. App.—San Antonio 2004, no
pet.) (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)). “A defendant may
challenge a plaintiff’s standing by filing a plea to the jurisdiction.” Beasley, Farmers Tex. Cnty.
Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 241 (Tex. 2020). “Standing is a threshold requirement
to maintaining a lawsuit.” Id., at 240. “In applying a de novo standard of review to a standing
determination, reviewing courts construe the pleadings in the plaintiff’s favor, but we also consider
relevant evidence offered by the parties.” Id.
“At the plea to the jurisdiction stage, governmental officials may challenge jurisdiction
based solely on the pleadings or may challenge jurisdictional facts.” Jones v. Turner, 646 S.W.3d
4 Southside’s live petition is its Second Amended Petition, dated January 26, 2024.
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319, 325 (Tex. 2022). “When the pleadings are challenged, we review whether the alleged facts,
if true, affirmatively demonstrate jurisdiction; because we construe pleadings liberally in favor of
the pleader, we will grant a plea to the jurisdiction without an opportunity to replead only if the
pleadings affirmatively negate jurisdiction.” Id. “When jurisdictional facts are challenged, we
consider relevant evidence in the record and will grant the plea only if there is no question of fact
as to the jurisdictional issue.” Id.
“Constitutional standing is a prerequisite for subject matter jurisdiction.” Tex. Bd. of
Chiropractic Examiners v. Tex. Med. Ass’n, 616 S.W.3d 558, 566 (Tex. 2021). “The issue of
standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a
‘justiciable interest’ in its outcome.” Sneed v. Webre, 465 S.W.3d 169, 180 (Tex. 2015). It
“requires a concrete injury that is both traceable to the defendant’s conduct and redressable by
court order.” Tex. Bd. of Chiropractic Examiners, 616 S.W.3d at 567. An appellate court reviews
questions of standing de novo. Farmers Tex. Cnty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 240
(Tex. 2020). “Without standing, a court lacks subject matter jurisdiction to hear the case.” Austin
Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005). Because standing is a necessary
component of subject-matter jurisdiction, it cannot be presumed or waived. Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 445–46 (Tex. 1993).
ANALYSIS
COSA asserts the trial court lacks subject-matter jurisdiction over Southside’s claim.
Because we agree with COSA that Southside lacks standing for the claims it has asserted, we
reverse the trial court’s denial of COSA’s plea to the jurisdiction.
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Applicable Law on Standing
“Standing is implicit in the concept of subject-matter jurisdiction, and subject-matter
jurisdiction is essential to the authority of a court to decide a case.”
The Texas standing doctrine derives from the Texas Constitution’s provision for separation of powers among the branches of government, which denies the judiciary authority to decide issues in the abstract, and from the open courts provision, which provides court access only to a person for an injury done him.
In re Abbott, 601 S.W.3d 802, 807 (Tex. 2020) (cleaned up). “The Texas standing requirements
parallel the federal test for Article III standing, which provides that a plaintiff must allege personal
injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by
the requested relief.” Tex. Propane Gas Ass’n v. City of Houston, 622 S.W.3d 791, 799 (Tex.
2021). “The Texas injury-in-fact analysis similarly requires that the plaintiff suffer “personal”
injury.” In re Abbott, 601 S.W.3d at 808. “A person has standing to sue when he or she is personally
aggrieved by an alleged wrongdoing.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848–
49 (Tex. 2005).
“Generally, a cause of action for injury to real property accrues when the injury is
committed.” Ceramic Tile Intern., Inc. v. Balusek, 137 S.W.3d 722, 724 (Tex. App.—San Antonio
2004, no pet.) (citing Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex. 1984)). Thus “[t]he
right to sue for an injury to real property is a personal right belonging to the person owning the
property at the time of the injury.” Electro Sales & Servs., Inc. v. City of Terrell Hills, No. 04-17-
00077-CV, 2018 WL 1309709, at *3 (Tex. App.—San Antonio Mar. 14, 2018, pet. denied)
(cleaned up). “Therefore, without express provision, the right does not pass to a subsequent
purchaser of the property.” Exxon Corp. v. Pluff, 94 S.W.3d 22, 27 (Tex. App.—Tyler 2002, pet.
denied). Consequently, “[a] subsequent purchaser cannot recover for an injury committed before
his purchase absent an express provision in the deed, or . . . an assignment, granting him that
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power.” Balusek, 137 S.W.3d at 724. “To recover on an assigned cause of action, the party
claiming the assigned right must prove a cause of action existed that was capable of assignment
and the cause was in fact assigned to the party seeking recovery.” Id.
Southside has no standing for its Constitutional Challenges
In the first two counts of its live petition, Southside challenges the constitutionality of
Ordinances 97650 (approving the Agreement), 98711 (changing the zoning to M1-1) and 2017-
04-20-0279 (changing the zoning to C-2 AHOD) (together the “Ordinances”).
In Count 1, Southside seeks a judicial declaration that the Ordinances violate Article XI,
Section 13 of the Texas Constitution, which permits the legislature to define the proprietary
functions of a municipality. TEX. CONST., ART. 9, § 13. Southside asserts that through Ordinance
97650 COSA has improperly delegated its zoning authority to Toyota in what amounts to contract
zoning. 5 Southside asserts that through Ordinance 97650, COSA abdicated its zoning authority in 4F
the Enhanced Zoning Area and that, through Ordinances 98711 and 2017-04-20-0279, COSA has
conformed to Toyota’s wishes and prevented multifamily development on the 97-Acre Tract.
In Count 2, Southside seeks a judicial declaration that the Ordinances violate Article 1,
Section 19 of the Texas Constitution, which protects its citizens from the deprivation of “life,
liberty, property, privileges or immunities . . . except by the due course of the law of the land.”
TEX. CONST., ART. 1, § 19. Southside asserts that, because the Ordinances prevent multifamily
development on the 97-Acre Tract, Southside has been deprived of the ability to dispose of its
property as it wishes—i.e., to sell its property to a purchaser who wishes to build multifamily
housing—without due process.
5 See City of White Settlement v. Super Wash, Inc., 198 S.W.3d 770, 772 n.2 (Tex. 2006) (“‘Contract zoning’ occurs when a
governmental entity, such as a city, enters into a binding contract in which it promises to zone land in a certain way in exchange for a landowner’s promise to use the land in a particular manner. Courts have held that contract zoning is invalid because, by entering into such agreements, the city impermissibly abdicates its authority to determine proper land use, effectively bypassing the entire legislative process.”) (citations omitted).
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Southside has not asserted a facial challenge.
First, we note that Southside has plead an “as applied” challenge to the Ordinances rather
than a facial challenge. “For a statute to facially violate a constitutional provision, the statute must
by its terms always and in every instance operate unconstitutionally.” Barshop v. Medina Cnty.
Underground Water Conserv. Dist., 925 S.W.2d 618, 623 (Tex. 1996). 6 Accordingly, it is not 5F
enough for the challenger to show that a statute operates unconstitutionally under some or even
most circumstances. In re C.R.P., No. 04-22-00406-CV, 2022 WL 17971308, at *2 (Tex. App.—
San Antonio Dec. 28, 2022, pet. denied) (mem. op.). It is the challenger’s burden to prove the
statute always operates unconstitutionally in all possible circumstances. See State v. Flores, 679
S.W.3d 232, 247–48 (Tex. App.—San Antonio 2023, pet. ref’d).
In the present case, Southside has not explained how the Ordinances will always operate
in a manner that is unconstitutional. Southside has challenged the constitutionality of Ordinance
97650’s adoption of Paragraph 24(a), and the subsequent effectuation of Paragraph 24(a) through
Ordinances 98711 and 2017-04-20-0279. However, these latter ordinances did not affect all of the
properties within Enhanced Zoning Area—and, ultimately, Southside only argues how the
Ordinances have affected its property rights.
Southside has not alleged—nor can it—that Toyota’s purported veto power prevented
Presto Tierra LLC, the prior owner of the 97-Acre Tract, from obtaining two zoning changes via
Ordinances 98711 and 2017-04-20-027, and then selling the 97-Acre Tract to an interested party
6 By contrast, “[i]n an ‘as applied’ challenge, the appellant is only required to demonstrate the statute operates unconstitutionally when applied to the appellant’s particular circumstances.” In re A.M., 312 S.W.3d 76, 86 (Tex. App.—San Antonio 2010, pet. denied) (citations omitted).
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(Southside). Because the only harm alleged in the first two counts of Southside’s petition is to
Southside alone, we find Southside has brought an “as applied” challenge to the Ordinances. 7 6F
Southside lacks standing because it has not been injured.
“To show constitutional standing, a plaintiff must demonstrate that: (1) it suffered a
concrete and particularized injury-in-fact; (2) the injury is fairly traceable to the defendant’s
conduct; and (3) a favorable decision is likely to redress the injury.” McLane Champions, LLC v.
Houston Baseball Partners LLC, 671 S.W.3d 907, 912–13 (Tex. 2023).
But the jurisdictional facts of this matter show that all three of the Ordinances were enacted
prior to the date Southside acquired the 97-Acre Tract. Accordingly, without a new injury
occurring after Southside purchased the property, or an assignment of a cause of action for a prior
injury, Southside cannot demonstrate it has been aggrieved, and therefore has no standing. See
Electro Sales, 2018 WL 1309709, at *3 (“A mere subsequent purchaser cannot recover for an
injury committed before his or her purchase.”) (quoting Denman v. Citgo Pipeline Co., 123 S.W.3d
728, 732 (Tex. App.–Texarkana 2003, no pet.). 8 Southside has not identified any such assignment 7F
and there is no language in the general warranty deed conveying the 97-Acre Tract that would
indicate a right to sue has been assigned to Southside.
7 We note that it is unlikely Southside can raise a facial challenge because the language in Paragraph 24(a) does not clearly establish that Toyota has a right to veto zoning requests inside the Enhanced Zoning Area, and we are directed to interpret a governmental contract as lawful, if possible. See Borgelt v. Austin Firefighters Ass’n, IAFF Loc. 975, 692 S.W.3d 288, 294 (Tex. 2024) (“Under ordinary contract-interpretation principles, which the doctrine of constitutional avoidance magnifies because this is a governmental contract, we must read the agreement to authorize only lawful conduct.”). However, we cannot take Southside’s assertions and read those into an agreement that does not expressly grant such authority to Toyota. That does not mean we must ignore plain language that does improperly delegate municipal authority to another entity. See City of Dallas v. Employees’ Ret. Fund of City of Dallas, 687 S.W.3d 55 (Tex. 2024) (rejecting city ordinance that gave a third party the right to veto categories of future lawmaking and holding “that such an alienation of lawmaking authority is impermissible”). 8 Further, it is doubtful that the prior owner of the 97-Acre Tract, Presto Tierra LLC, suffered injuries it could have assigned to
Southside, given the jurisdictional evidence shows that Ordinances 98711 and 2017-04-20-027 are both products of approved rezoning requests made by Presto Tierra LLC.
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However, in Counts 1 and 2, Southside claims a new injury has occurred—alleging COSA
has denied its zoning request, purportedly as a result of COSA’s alleged, improper agreement with
Toyota.
Based on the Zoning Agreement, COSA denied Southside’s request to rezone its Property to permit multifamily residential use [and that, in] short, COSA and Toyota engaged in unconstitutional contract zoning to Southside’s detriment. .... COSA’s adoption of Paragraph 24(a) of the City Agreement in Ordinance 97650; its subsequent zoning of the Property to prohibit residential use (to Toyota’s satisfaction); and COSA’s refusal to rezone Southside’s property to allow residential use deprives Southside of its right to use, enjoy, and dispose of its Property as guaranteed by Section 19. COSA’s deprivation of Southside’s rights was not by “due course of law.” of its use and enjoyment of its property without due course of law. 9 8F
But the jurisdictional evidence shows COSA has not yet denied Southside rezoning
requests, as Southside has repeatedly delayed or cancelled pending votes on those requests. While
Southside asserts Councilwoman Garza and the City Attorney’s Office have indicated they will
not support Southside’s rezoning effort, their statements are not substitutes for an official act of
COSA. See, e.g., City of Denton v. Grim, 694 S.W.3d 210, 215–16 (Tex. 2024) (“[T]he actions of
a lone council member are generally not the actions of the city itself.”).
Accordingly, we conclude Southside does not have standing for its constitutional
challenges to the Ordinances because: 1) it did not purchase the 97-Acre Tract until after the
Ordinances were past; 2) there is no assertion or jurisdictional evidence that Presto Tierra LLC
assigned a right to sue to Southside; and 3) Southside has suffered no new injury since it has owned
the 97-Acre Tract.
9 Emphasis added.
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Southside has no standing for its claims under the PRPRPA.
For similar reasons, we also conclude Southside does not have standing to assert claims
under the PRPRPA.
“The Texas legislature enacted PRPRPA in June 1995, creating a statutory takings claim
for a property owner whose property value is diminished by at least twenty-five percent as a result
of certain governmental actions or whose property is affected in a manner that requires
compensation under the U.S. Constitution or Section 17 or 19, Article I, of the Texas Constitution.”
Younger v. El Paso Cnty. Emergency Services Dist. No. 2, 564 S.W.3d 97, 102–03 (Tex. App.—
El Paso 2018, no pet.) (citing TEX. GOV’T CODE § 2007.002(5)).
In Count 3, Southside asserts COSA engaged in “governmental actions” including the
adoption of Ordinance 97650—which granted Toyota veto authority of zoning in the Enhanced
Zoning Area under Paragraph 24(a)—and “de facto denial of Southside’s request to rezone the
[97-Acre Tract].” Southside claims COSA’s refusal to permit multifamily development on the 97-
Acre Tract, at Toyota’s behest, COSA’s actions constitute a “taking” as defined by PRPRPA, as
COSA’s actions restrict and limit Southside’s use of the property and cause of a reduction of over
25% in the market value of the 97-Acre Tract as it cannot be sold for multifamily residential
development. In Count 4, Southside asserts that, because COSA’s actions amount to a taking,
COSA was required to prepare a “takings impact assessment” under Texas Government Code
section 2007.043(a), and that its failure to do so should render Ordinance 97650 (and the City
Agreement) invalid.
The PRPRPA unquestionably vests district courts with subject-matter jurisdiction to hear
claims brought under the statute. See TEX. GOV’T CODE § 2007.021 (a) (“A private real property
owner may bring suit under this subchapter to determine whether the governmental action of a
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political subdivision results in a taking under this chapter. A suit under this subchapter must be
filed in a district court in the county in which the private real property owner’s affected property
is located[,]”). However, the “PRPRPA limits the categories of persons who may bring suit under
the statute.” City of Houston v. Guthrie, 332 S.W.3d 578, 587–88 (Tex. App.—Houston [1st Dist.]
2009, pet. denied).
“When standing has been conferred by statute, the statute itself serves as the proper
framework for a standing analysis. In re S.M.D., 329 S.W.3d 8, 12–13 (Tex. App.—San Antonio
2010, pet. dism’d). To have standing to bring a claim under PRPRPA, plaintiffs must be “owners”
who allege a “taking”—defined as either (1) a governmental taking under the United States
Constitution or the Texas Constitution or (2) a governmental action reducing the market value of
property by at least 25 percent. Id. § 2007.002(5). “Owner” is defined as “a person with legal or
equitable title to affected private real property at the time a taking occurs.” Id. § 2007.002(2)
(emphasis added).
In the present case, we find that Southside does not have standing for this claim because
Presto Tierra LLC owned the 97-Acre Tract at the time that Ordinance 97650 was enacted. Because
Southside did not own the property at the time of that ‘government action’ (that Southside claims
amounts to a taking), Southside does not qualify as an “owner”—and therefore lacks standing—
under the PRPRPA to challenge that ordinance.
Additionally, the PRPRPA is only applicable to the following governmental actions:
(1) the adoption or issuance of an ordinance, rule, regulatory requirement, resolution, policy, guideline, or similar measure; (2) an action that imposes a physical invasion or requires a dedication or exaction of private real property; (3) an action by a municipality that has effect in the extraterritorial jurisdiction of the municipality, excluding annexation, and that enacts or enforces an ordinance, rule,
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regulation, or plan that does not impose identical requirements or restrictions in the entire extraterritorial jurisdiction of the municipality; and (4) enforcement of a governmental action listed in Subdivisions (1) through (3), whether the enforcement of the governmental action is accomplished through the use of permitting, citations, orders, judicial or quasi-judicial proceedings, or other similar means. TEX. GOV’T CODE § 2007.003 (a). Southside’s assertion of a “de facto denial” of its request does
not fall under any of the above categories of government action.
As discussed earlier, statements from COSA representatives are not substitutes for an
official act of COSA. See City of Denton v. Grim, 694 S.W.3d 210, 215–16 (Tex. 2024). Thus,
there has been no official government action that amounts to a taking since Southside purchased
the 97-Acre Tract. Accordingly, Southside also lacks standing to assert its claim that COSA failed
to prepare a “takings impact assessment” as required under § 2007.043(a). Thus, we conclude that
Southside does not have standing to assert either of its PRPRPA claims. 10 9F
This does not mean that we endorse the conduct alleged by Southside (i.e., that COSA has
improperly delegated its zoning authority within the Enhanced Zoning Area to Toyota). However,
because Southside did not own the 97-Acre Tract until after the Ordinances were enacted, the
jurisdictional evidence in the record precludes standing for Southside to challenge the Ordinances.
CONCLUSION
Because Southside does not have standing to challenge the Ordinances, we determine the
trial court abused its discretion by denying COSA’s plea to the jurisdiction. Therefore, we reverse
10 However, as this court has previously held, the absence of standing for these claims does not eliminate the possibility of standing for a future claim, should COSA ultimately decide to deny Southside’s rezoning request. See Electro Sales, 2018 WL 1309709, at *4 (“In this case, both the change in zoning from commercial to semi-commercial use and COSA’s decision that the middle suite had lost its nonconforming use rights occurred before Appellants purchased the strip center. Accordingly, Appellants do not have standing to sue for any injury caused by those decisions. However, Appellants were personally aggrieved by COSA’s denial of their rezoning request; therefore, they have standing to sue for any injury caused by that decision.”).
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the trial court’s order of May 8, 2024, denying the plea to the jurisdiction, and dismiss Southside’s
claims against COSA with prejudice.
H. Todd McCray, Justice
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