Melissa Kohout v. City of Fort Worth, Texas, David Lunsford and Tom Edwards

• Court: Court of Appeals of Texas
• Decided: June 11, 2009
• Docket: 02-08-00102-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-08-102-CV

MELISSA KOHOUT APPELLANT

V.

CITY OF FORT WORTH, TEXAS, APPELLEES DAVID LUNSFORD AND TOM EDWARDS

------------

FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

OPINION

Melissa Kohout appeals from the trial court’s grant of the plea to the

jurisdiction filed by the City of Fort Worth, Texas (“the City”), David Lunsford

(the City’s gas well inspector), and Tom Edwards (the City’s senior gas drilling

inspector) on her claims that she was denied due process, equal protection, and

the right to petition her government. In one issue, Kohout argues that she has

standing to assert that the City’s actions violated her constitutional rights to petition her government, to due process, and to equal protection. Because we

hold that Kohout does not have standing to assert her claims, we affirm.

T HE O RDINANCE

In 2006, the City adopted Ordinance Number 16986-06-2006 (“the

Ordinance”), amending the chapter of the City’s Code of Ordinances regulating

gas well drilling and production within the City.1 The Ordinance provides that

any person wishing to engage in gas production activities within the City must

apply for and obtain a gas well permit. 2 Gas wells are characterized as rural,

urban, or high-impact.3 A “high impact permit,” also referred to as a “high

impact gas well permit,” is required for any gas well located within 600 feet of

a protected use.4 A “protected use” is a residence, religious institution, public

building, hospital building, school, or public park.5 The Ordinance defines the

term “public park” as “any land area dedicated to and/or maintained by the City

for traditional park-like recreational purposes, but shall not include privately-

1 … Fort Worth, Tex., Ordinance 16986-06-2006 (June 13, 2006), amended by Fort Worth, Tex., Ordinance 18449-02-2009 (Feb. 3, 2009). 2 … Id. § 15-34(A). 3 … Id. § 15-36. 4 … Id. §§ 15-31(BB), 15-36(I). 5 … Id. § 15-31(FF).

2 owned amusement parks or privately-owned or privately-managed golf

courses.” 6

A “rural gas permit” is required if the proposed well will be located on an

open space of at least twenty-five acres and if no operations will be conducted

within 1,000 feet of a protected use.7 For any other well, an “urban gas well

permit” is required.8

The Ordinance provides for two methods of obtaining a high impact

permit: by permission of the City Council or by waiver of protected uses.9 To

obtain a high impact permit by waiver, a permit applicant must obtain notarized

waivers from all protected use property owners within 600 feet of the proposed

site.10 The applicant must file these waivers in the county property records and

must attach copies of them to the permit application.11

6 … Id. § 15-31(HH). 7 … Id. § 15-31(NN). 8 … Id. § 15-31(SS). 9 … Id. § 15-36(I)(A). 10 … Id. § 15-36(I)(D). 11 … Id.

3 At least ten days prior to filing the application, the applicant must publish

a notice in a newspaper of general circulation.12 The notice must include a

statement that written waivers from all protected use property owners within

600 feet of the proposed well site were filed in the county records. 13 Also at

least ten days prior to filing the application, the applicant must post a sign at

the premises for which the permit has been requested. 14 The sign must

“substantially indicate” that a high impact permit has been applied for. 15 An

applicant for an urban gas well permit must also, at least ten days before filing

an application, post a notice on the proposed well site and insert a notice in a

newspaper of general circulation that an urban gas well permit has been

requested.16

T HE D ISPUTE

On August 30, 2007, Chesapeake Operating, Inc. (“Chesapeake”) applied

for an urban gas well permit. The City did not issue an approval or denial of the

permit within thirty days of the application. Kohout asserts in her brief that the

12 … Id. 13 … Id. 14 … Id. 15 … Id. 16 … Id. § 15-36(II)(B).

4 application lapsed because the City did not act on it. The Ordinance requires

the gas inspector to review and approve or disapprove all permit applications

within thirty days of their filing.17 The Ordinance does not provide that the

failure of the inspector to timely approve or disapprove an application will cause

an application to lapse.18 It does, however, provide that the failure of the gas

inspector to review and issue a permit within the thirty days will not cause the

application to be deemed approved.19

The proposed well site was located on property owned by Chesapeake

Energy. This property was within 600 feet of the Trinity Trails, a hike-and-bike

path along the Trinity River. Lunsford notified the city council member in

whose district the site was located that an application had been submitted and

was “for an Urban Class permit that will not require Council action.” As

required by the Ordinance, Chesapeake posted a sign at the site and published

a notice in the local newspaper that an urban gas well permit had been applied

for.

A group of concerned citizens took various steps to protest the permit

application, including holding a picnic by the proposed drilling site, objecting at

17 … Id. § 15-37(A). 18 … Id. 19 … Id. § 15-37(B).

5 a public forum, and voicing their concerns at a City Council meeting. On

September 26, 2007, Kohout, through her attorney, sent a letter to Lunsford

objecting to the permit application. She based her objection on the proposed

well site’s proximity to the Trinity Trails, which she contended is a public park.

An employee in the City’s legal department responded by stating that the

Trinity Trails is not a public park. The employee informed Kohout’s attorney

that the Trinity Trails are owned and maintained by the Tarrant Regional Water

District (“the Water Board”) and asserted that, accordingly, the proximity of the

proposed well site to the Trails would not constitute a basis for denying the

permit.

On October 2, 2007, Lunsford sent an e-mail to a number of city

employees, including Edwards, stating that with respect to Chesapeake’s permit

application, “[t]he rule is ‘No Comment’ to anyone about the well . . . and

accept no paper work (like a petition) from anyone.” On October 5, 2007, the

Water Board executed a waiver to Chesapeake. On October 8, 2007, the City

issued a high impact permit to Chesapeake. When asked about the permit after

its issuance, a member of the City’s legal department stated that Chesapeake

originally had applied for an urban gas well permit “but met all the technical

requirements for a high impact well permit.” She went on to say that “[t]he

6 sign posted on the property referenced an urban gas well permit, but

Chesapeake met the more restrictive permit requirements.”

On October 16, 2007, Kohout’s attorney sent a letter to the City asking

it to withdraw the permit. He asserted that the permit was not granted in

accordance with the Ordinance because Chesapeake did not provide notice that

a high impact permit had been applied for. He further asserted that the

issuance of the permit violated Kohout’s First Amendment rights to express her

opinion and to petition her government that high impact drilling threatens the

safety of people like her who use the Trinity Trails. He also contended that the

City’s issuance of the permit without requiring Chesapeake to follow the

Ordinance gave Chesapeake special treatment. The City responded with a

letter stating that the purpose of the Ordinance’s notice provisions is to provide

the public with notice of a pending application and that Kohout had

demonstrated that she had notice of Chesapeake’s application to drill on the

site. The City further stated that rather than showing favoritism, the issuance

of a high impact permit rather than an urban gas well permit meant that

Chesapeake would have to follow more restrictive procedures in drilling on the

site.

7 P ROCEDURAL H ISTORY

Kohout then filed suit against the City, Lunsford, and Edwards. She

sought a writ of mandamus ordering the City to withdraw Chesapeake’s permit.

She further sought a declaration that the City’s Ordinance prohibits drilling at

the site; the Trinity Trails is a “public park”; the City improperly issued a drilling

permit too close to the Trinity Trials in violation of the Ordinance; and the City

violated her right to petition the government, her right to free speech, and her

right to equal protection. The City, Lunsford, and Edwards answered and filed

a plea to the jurisdiction challenging Kohout’s standing to assert her claims,

contending that she had not suffered any particularized injury. The trial court

granted the City’s plea. Kohout now appeals.

A NALYSIS

In her only issue, Kohout argues that she has standing to assert that the

City’s actions violated her constitutional rights to petition her government, to

due process, and to equal protection. We review de novo a trial court’s

determination on the question of standing.20 In our review, we construe the

pleadings liberally in the plaintiff’s favor.21 We may consider evidence

20 … Antonov v. Walters, 168 S.W.3d 901, 904 (Tex. App.—Fort Worth 2005, pet. denied). 21 … City of Argyle v. Pierce, 258 S.W.3d 674, 680 (Tex. App.—Fort Worth 2008, pet. dism’d).

8 presented to the trial court when necessary to resolve the jurisdictional issues

raised.22

Standing is a component of subject-matter jurisdiction.23 For a plaintiff

to have standing, there must be a real controversy between the parties that will

actually be determined by the judicial declaration sought.24 Only a litigant who

has suffered an injury has standing.25 The alleged injury must be particular to

the plaintiff and distinct from that suffered by the general public.26 Thus, if

22 … Id.; see also Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). 23 … DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304–05 (Tex. 2008); M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001). 24 … Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). 25 … Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992) (stating that to have standing, a plaintiff must have suffered an injury that is concrete and particularized); Tex. Air Control Bd., 852 S.W.2d at 444. 26 … Lujan, 504 U.S. at 560; Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996) (“A plaintiff has standing when it is personally aggrieved”); Persons v. City of Fort Worth, 790 S.W.2d 865, 872 (Tex. App.—Fort Worth 1990, no writ) (holding that appellant was without standing to challenge city’s alleged violation of zoning ordinances because he had not pled and proved that he suffered damages or injury other than as a member of the general public); City of Fort Worth v. Groves, 746 S.W.2d 907, 912, 917 (Tex. App.—Fort Worth 1988, no writ) (holding that resident of a county had standing to challenge a lease entered into by the county under open meetings act provision and as a taxpayer but that he did not have standing to contest the lease with respect to special revenue bonds because he had not

9 Kohout has not suffered a particularized injury, she has no standing, and the

trial court did not have jurisdiction over her claims. 27

Kohout first argues that she was denied her right under the federal and

state constitutions to petition the government.28 With respect to this claim, the

City argued in its plea to the jurisdiction and argues on appeal that Kohout

could not show a particularized injury because she knew that the well would be

drilled within 600 feet of the Trinity Trails. Thus, she was not injured by not

knowing what designation the well would be given because she could have and

did petition the City to not allow drilling at the site.

But this argument does not address Kohout’s point. Kohout’s asserted

particularized injury was the denial of her right to petition the Water Board, not

the City. She argues that because the City told her that no high impact gas

well permit would be required, she did not know that Chesapeake would be

required to obtain either a waiver of the requirement by the City Council after

a hearing or a waiver from the Water Board. Consequently, she did not have

the opportunity to petition the Water Board and ask it to not give a waiver.

shown damages to himself or any damages at all). 27 … See Lujan, 504 U.S. at 560; Groves, 746 S.W.2d at 917. 28 … See U.S. Const. amend. I; Tex. Const. art. I, § 27.

10 As Kohout points out, under the City’s argument, even though the City

informed her that Chesapeake would not need the Water Board’s consent to a

waiver, she nevertheless should have petitioned the Water Board to deny its

consent. If Kohout had known that Chesapeake would be seeking a waiver

from the Water Board, she argues, she could have petitioned the Water Board

to deny the waiver, and by the City affirmatively representing to her that no

high impact permit would be required (and thus no consent by the Water Board

would be required), the City denied her her constitutional right to petition the

Water Board. We therefore reject the City’s argument that Kohout’s knowledge

that a gas well would be drilled on the site satisfied her right to petition the

Water Board.

Nevertheless, we conclude Kohout was not injured because the Ordinance

upon which she relies never requires notice that waivers will be sought; it only

requires notice that waivers have already been obtained and that an applicant

is seeking a high impact permit based on those waivers. 29 Kohout argues that

the City violated her right to petition the Water Board because it did not provide

notice that the proposed well would be a high impact well requiring a waiver by

the Water Board. Had Chesapeake originally sought a high impact permit by

29 … Fort Worth, Tex., Ordinance 16986-06-2006 § 15-36(I)(D) (amended 2009).

11 waiver—and accordingly triggered the requirement that a notice of the

application be posted at the well site and in the newspaper—it would have had

to file the Water Board’s waiver with its application.30 Furthermore, the notice

placed in the newspaper would have stated that the waivers from the relevant

property owners had already been obtained and filed in the real property

records.3 1 Thus, if the City had required proper notice that Chesapeake’s

application was for a high impact permit, then when Chesapeake placed the

notice in the newspaper and at the well site, giving Kohout the notice she says

she was denied, at that time the Water Board would have already executed a

waiver. Kohout would have been in the same position she is in today with

respect to petitioning the Water Board to refuse to grant a waiver—asking the

Water Board to not do something it had already done. Thus, Kohout suffered

no injury to her right to petition the Water Board by the City’s failure to post a

notice or to require Chesapeake to post a notice at the well site that a high

impact permit by waiver had been applied for.

Kohout also complains that the City misrepresented to her that a high

impact permit would not be required but then told Chesapeake that it would

30 … See id. 31 … See id.

12 have to obtain a waiver from the Water Board. But the record reveals no injury

to Kohout.

The City never specifically told Kohout that no high impact permit would

be required. The City informed Kohout that the Water Board rather than the

City owned and maintained the Trinity Trails, that the property therefore did not

constitute a “public park” as defined in the Ordinance, and that accordingly it

could not use the proposed well site’s proximity to a public park as the basis

for denying the permit. And without violating the Ordinance, the City could

have subsequently changed its mind and decided that the Trinity Trails was a

public park despite the fact that the City did not own or maintain the property,

denied Chesapeake’s permit application, and informed Chesapeake that it would

need to reapply for a different permit. Or the City could have declined to

respond at all to Kohout’s inquiry and told Cheseapeake to reapply for a high

impact permit. Chesapeake, then, would have needed to resubmit the same

application, this time with the Water Board’s waiver attached. It would also

have to give notice to the public that a high impact permit had been applied for

and that it had already obtained waivers from protected use property owners.

At no time before waivers are obtained does an applicant have any obligation

13 to notify the general public that a high impact permit is being sought.32 Under

these scenarios, once again, Kohout would have received no notice prior to the

Water Board’s execution of a waiver.

Kohout implies an obligation on the part of the City to inform her that it

had decided that Chesapeake would need a high impact permit, but no such

obligation exists before waivers are obtained.33 It is the applicant, not the City,

that must provide notice to the general public, and at no point before waivers

are obtained from property owners does an applicant have an obligation under

the Ordinance to inform Kohout or any other member of the general public that

it will be seeking a waiver from property owners. 34 Thus, the City had no

obligation to give Kohout any information on the subject, and even if it had

misled her about its intentions regarding the permit, it did not injure her because

it did not deprive her of information she was entitled to have.

Kohout argues that the City is judicially estopped from denying its

ownership of the Trinity Trails because of a position it took in Schleuter v. City

of Fort Worth.35 Judicial estoppel “‘precludes a party from adopting a position

32 … See id. 33 … See id. 34 … Id. 35 … 947 S.W.2d 920 (Tex. App.—Fort Worth 1997, pet. denied).

14 inconsistent with one that it maintained successfully in an earlier

proceeding.’” 36 In Schleuter, the City sought an injunction prohibiting the

operation of a business it claimed was a sexually oriented business on the

ground that it was in violation of an ordinance requiring such businesses to be

more than 1,000 feet from a park or residential neighborhood.37 The City took

the position that Forest Park is a park and submitted the affidavit of Richard

Zavala, Jr., Director of the City’s parks and community services department,

stating that the City “owns and/or maintains approximately 15.5 miles of hard

surface paths along the Trinity River.” 38 The trial court granted the injunction

on the ground that the business violated the ordinance because it was within

1,000 feet of a residential neighborhood.39

Even assuming that these 15.5 miles are a part of the Trinity Trails and

that the City still owns them, the affidavit is not clear that the portion of the

Trinity Trails owned by the City is the same part of the Trinity Trails that falls

within 600 feet of the drill site. Further, because in Schleuter it was

36 … Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 6 (Tex. 2008) (quoting 2 Roy W. McDonald & Elaine G. Carlson, Texas Civil Practice § 9.51 at 576 (2d ed. 2003)), cert. denied, 129 S. Ct. 1003 (2009). 37 … Schleuter, 947 S.W.2d at 923–24. 38 … Id. at 930. 39 … Id. at 923.

15 undisputed that the business was within 1,000 feet of a residential

neighborhood, this Court did not make any determination about whether the

City owned or maintained the property and expressly declined to address the

issue of what constituted a “park” under the Ordinance. 40 Thus, the doctrine

of judicial estoppel does not apply to estop the City from asserting that it does

not own the property at issue in this case.41

The City has never wavered in its assertion that it did not own or

maintain the part of the Trinity Trails in dispute. It has only suggested through

comments of the City’s attorney that after receiving Kohout’s letters, the City

gave some consideration to whether the property might constitute a public park

after all and that it decided to require a waiver from the Water Board as a

precaution. As we have stated, this decision did not trigger any obligation on

the City’s part to inform Kohout that it had changed its mind about the permit.

Thus, Kohout has suffered no particularized injury with respect to her right to

petition the government, and she has no standing to assert the claim.42

40 … Schleuter, 947 S.W.2d at 924. 41 … See Pleasant Glade Assembly of God, 264 S.W.3d at 6. 42 … See Lujan, 504 U.S. at 560; Nootsie, Ltd., 925 S.W.2d at 661; Groves, 746 S.W.2d at 917.

16 Kohout also argues that she has standing to assert an equal protection

claim under article I, section three of the Texas Constitution.43 She asserts that

the City treated her differently than Chesapeake because the City represented

to her that the well was not a high impact well, which led her to believe that

no waiver from the Water Board would be required, but at the same time the

City told Chesapeake that it needed such a waiver. Kohout also argues that the

City owns property within 600 feet of the drill site, yet granted the permit

without requiring a waiver from the City, and thus it gave Chesapeake special

preferential treatment.

The equal protection clause of the Texas Constitution requires that “all

persons similarly situated should be treated alike.” 44 The Texas Constitution

does not require that all classes of persons be treated the same.45 Rather, it

requires that the law “operate equally and uniformly upon all persons in similar

43 … See Tex. Const. art I, § 3 (“All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”). 44 … Sanders v. Palunsky, 36 S.W.3d 222, 224–25 (Tex. App.—Houston [14th Dist.] 2001, no pet.). 45 … Beaumont Traction Co. v. State, 57 Tex. Civ. App. 605, 122 S.W. 615, 617 (Galveston 1909, no writ).

17 circumstances.” 46 A plaintiff asserting an equal protection claim must establish

that she “was treated differently than other similarly-situated parties.” 47

Here, Kohout’s pleadings and the evidence considered by the trial court

show that, at most, she was treated differently than a permit applicant. She

has not shown that she was similarly situated to Chesapeake. Nor has she

shown that by the City failing to give her notice of Chesapeake’s intent to

obtain a waiver from the Water Board, the City treated her differently from

parties similarly situated to her. Thus, she has failed to show any injury to her

rights under the equal protection clause. Accordingly, she has no standing to

assert such a claim.48

Kohout further argues that she has standing to assert a due process claim

under the Texas Constitution because the City failed to give her notice that a

high impact permit was being applied for, thus depriving her of her right to

… 46 Id. (emphasis added); see also Sanders, 36 S.W.3d at 224–25 (“The principle of equal protection guarantees that ‘all persons similarly situated should be treated alike.’”). 47 … Sanders, 36 S.W.3d at 225 (emphasis added). 48 … See Nootsie, Ltd., 925 S.W.2d at 661; City of Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 244 (Tex. App.—Fort Worth 2007, pet. denied).

18 petition the Water Board.49 Under the Ordinance, the City is not required to

give notice to anyone that a high impact permit is being applied for.50 Rather,

the applicant must give such notice.51 And since any required waivers have

already been obtained by the permit applicant at the time the applicant gives

that notice, the City never gives anyone, including Kohout, notice before

waivers are obtained that a permit applicant will be seeking them. Kohout has

not demonstrated any particularized injury, or any injury at all, as to her due

process claim. Accordingly, she does not have standing to assert this claim.52

We overrule Kohout’s issue.

C ONCLUSION

Having overruled Kohout’s issue, we affirm the judgment of the trial court

dismissing her claims for lack of subject-matter jurisdiction.53

49 … See Tex. Const. art I, § 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”). 50 … Fort Worth, Tex., Ordinance 16986-06-2006 § 15-36(I)(D) (amended 2009). 51 … Id. 52 … See Nootsie, Ltd., 925 S.W.2d at 661; Groves, 746 S.W.2d at 917. 53 … See Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 849 (Tex. App.—Fort Worth 2005, no pet.) (affirming trial court’s judgment dismissing plaintiffs’ claims for lack of standing).

19 LEE ANN DAUPHINOT JUSTICE

PANEL: LIVINGSTON and DAUPHINOT, JJ.

DELIVERED: June 11, 2009