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At
FILED
o'clock
M
NO . - 24 , 755
WOODSON LUMBER COMPANY OF )
C~E~N )
)
VS ..'_ )
)
CITY OF COLLEGE STATION, TEXAS; )
and GAR~HALTER, As Mayor of )
the City~.~of College Station; )
and PATRICIA-BOUGHTON, LYNN )
NEMEC McILHANEY, ROBERT )
RUNNELS, ALVIN PRAUSE, VICKY )
REINKE, GARY. ANDERSON, In Their)
Capacities-as Members of the )
City Council_of the City o~ )
College Stption, Texas . )
. .. , -
DEe 5 1983
IN THE DISTRI.'T CWS?R~'ifRLe;FDIST. CLERK
Brazos County , Texas
89--- Deputy
BRAZOS COUNTY, ~TEXAS
85TH JUDICIAL DISTRICT
,~.... . .'
RESPO~p~NTS' REPLY
BRIEF1.AAD- ARGUMENT
Come\ now the Respondents, CITY OF COLLEGE STATION, and
present members of the College-Station City Council, 'GARY HALTER,
PATRICIA BOUGHTON, LTIIN NEMEC McILHANEY, ROBERT RUNNELS, ALVIN
PRAUSE, VICKY REINKE, and GARY ANDERSON, and within "the five (5)
day time period permitted by the Court make this Reply to the
Brief filed herein by
Woodson Lumber Company of Cameron,
Applicant, for Writ of M~rpamus,
iJ .'-" .
and
would
respectfully
demonstrate to the Court:
I.
Applicant concludes in its petition and Brief that all
requirements for platting have been met, but fails to plead a
single specific requirement for platting vlhich was in fact met.
Lacy v. Hoff, 633 S.\v.2d 605 (Tex.Civ.App., Houston [14th Dist.]
1982, Ref. n.r.e.), previously cited by Respondents in their
trial brief, follows prior case law and shows that Applicant1s
pleadings are insufficient as a matter of law t..O support
mandamus.
II.
Applicant
ignores
the
entire
platting
ordinance
(Ordinance 690,. being, Chapter 9, Section 6, of the College
Station City Code) in its Petition, and still does so its brief.
Not only is there no specific pleading of compliance with any
provision of Ordinance- 690, there is not even a conclusion that
the PLATTING ordinance,
instead
of
the: zoning ord~nance
-1-
(Ordinance 850), was complied with.
Respondent freely admits
that the incidental provisions of Ordinance 850 pertaining to lot
size and residential use were met, but the real issue in this
~
case is whether or not Ordinance 690, the platting ordinance,
requires~approval on these facts.
III.
Applicant presented no direct evidence of compliance with
any provision of either ordinance and no evidence to support an
of ,~.:di9creti9n.
The evidence a~ the hearing. can be
summarized as:" follows:
;~
~.~.~ \~
I.
Applicant's
~.ep~esentative
and- engineer,
testified that they don't know why the plat shouldn't
have been approved.
2. The City Planner and City Engineer had no
objections to the plat.
It appeared to them to meet
the technical requirements which were within their
scope of review.
3. The City' s consu:L~:ting engineer told the council
if - . ':41".
that once the sewer line was cleaned out, it would
carry the additional sewage load.
4. The sewer line which will serve the property is
clogged
and
does not carry current sewage flow
adequately during heavy rainfall periods. Sewers back
up into homes and onto the lawns. When cleaned out or
otherwise remedied, the line will carry the increased
sewage input from Applicant's development with no
difficulty.
Efforts are underway to correct the
problem.
5. Several of the lots proposed to be platted lie
almost entirely in the floodplain. The area presently
experiences significant high water problems in periods
of heavy rainfall.
Applicant argues that plat approval is mandatory under
974a, t9tally ignoring
the
IIgeneral
rules"
specifically
authorized by that statute, which appear" in Ordinance 690,
-2-
Section 8. The City Coun'cil is required to hear the l?eti tioner' s
application for plat approval and act within the scope of
Ordinance 690. Ordinance 690 does not allow the ,,-. platting of
property for residential purposes which is subject to "periodic
inundat~on." It also disallows plat approval which would lead to
"unsanit~ry conditions". Respondents do not deny that the plat
complies with the other provisions of city ordinances, but it
does not meet these two "general rules"--lawfully adopted unde'r
express st,~~u~ory authori ty--in the. best jUdgment of the City
Council. .~-~~, -~
: .~ ..:-;..1';
-4 -t ','-. .~!="
Petitioner has not addtessed- either of these rules- in its
argument, nor has he presented proof concerning them to the
Court.
Petitioner's entire argument is that if the City's
Planner, Engineer, and consultant recommend approval of a plat,
the City Council is
powerless
to delay approval for an
uncontroverted existing sewer inadequacy to be remedied, and for
flood control tobeaddr~ssed.;
i~- -:~,.
There is ample room for a difference of opinion on the
sewer and flooding issues.
The Council's conclusion that these
problems must be resolved before further development is eminently
reasonable.
In summary, the City
Council
does
not
have
a
non-discretionary duty to approve Applicant's plat because of its
failure to meet the provisions of Section 8 of Ordinance 690.
The Council's determination
that
it
did not meet those
requirements as of January, 1983,has not been shown to be a
clear abuse of discretion.
WHEREFORE, premises considered, Respondents respectfully
pray that the Court deny the Writ of Mandamus.
Respectfully submitted,
-3-
CERTIFICATE OF SERVICE
I certify that on this ~ay of December,1983, a true
and cor~ect copy of the foregoing Respondents'
Reply
Brief
and
Argument
was
mailed,
pursuant
to
Rule
72, to Robert Harris,
Attorney 'at Law, 3131
77805.
; \,
,I.
iI~
-4-
;'~~~" -,-:
~'.'
R E eEl V E D, _
AT o'clock - M.
./ I\lQV 2 8 1983 .
N
: t w. D. DURLEY, DlST. CLERK
Ii . Brazos COUlJty, Texas
'! 1 By Deputy
"
NO. 24,755
WOODSON L~mER COMPANY OF
CAl'IERON
IN THE DISTRICT COURT OF
; VS
BRAZOS CO~.TY', T E X A S
r.' . I
>4'''' lILED
At . o'cfoct M :
;
85TH J ICINll\h'~Raa'
.. 'BRIEF
TO THE HONORABLE JUDGE- OF SAID COURT:
w. D. BURLEY, DIST. ClERK \1
' Brazos County, TeXBlr
Deputy
I
I
I
1
i
, ,
I
~
approval of the subdivi~ion pIa-b- known 'as Woodson Village
Plaintiff has sought the mandamus o:G..the City Council for
, ,. J~
Phase Five and for damages' resu~~ing from the City Council's
refusal to so.approye. Defendant~s brief correctly states the
law that in'. order to qualify for mandamus, Plaintiff must plead
and prove the factual basis requiring mandamus, as well as
demonstrating that the law that. justifies the granting of the
writ in this particu.lar case. It is the position of the Plain.tiff
that he has met both criteria and is-entitled to a Writ of
Mandamus aga'inst the City of College Station ~ndmembers - of the
City Council ordering the ~pproval of the plat.
Plaintiff, .in his Original Petitio~J has specially ~nd
specifically alleged. or provedsuffitient facts neces~ary to
entitle the Plaintiff -to such relief. These facts are stated
clearly, fully, and~ un~eservedly, by di'rect and positive allegations.
The Plaint~ff, in his q~igi~~l Petition, stated the exist~nce of
a zoning ordinance whi.ch is, kn,own as ~e,vised Zoning Ordinance
No. 850 approved October. 23, 1972 by the City Council, City of
College Station, Tex,as,. as authorized by the laws of the State
of Texas prior toariy of the events concerned herein. Plaintiff
-1-
included a~d attached a copy of Revi~ed Zoning Ordinance No. 850
to his Origina~ Petition, incorporating it thereto, by reference.
. .
Plaintiff further states in his' Original Petition, his proper and
full compliance with all of the Defendant's ordinance requirem~ntsJ
including Revised Zoning Ordinance No~ 850. That Plaintiff
. -
prqperly and fully complied withal1 of "Defendant's ordinance
',j
requirem~nts was established b)T 'the positive testimony of the'
- -
Director~ of PlC!:nning, the ~Cit~ Engineer, ..and the G,onsulting
Engineer, and Mr. Garrett, P1~intiff's'Engineer, at the hearing
n '
on November 8, 1983, on Plaintiff's requ~$t for mandamus.
~:
Further, the Plaintiff,in .his Original 'Petition, stated
the existence of Article 974A, Section 4, "V.A.C.S.which directs
. a governing body to endorse approval ofa plan or plat if such
I plan or plat conforms to the general rules and regulations govern-
ing plats and subdivisions of said governing body. Plaintiff
included and attached a copy of Article 974A" Section 4, V.A.C.S.
to his Original Petition.,. incorporating it thereto, by reference.
Plaintiff fU'rther ,states, in his Original Petition, his proper
- -
and full compliance wi,th all of the~ rules' a~d regulations of the
. Defendant's rules and regulations 'relating to preliminary and
final plats. '.
In this case';, Plaintiff has complied or substantially
complied with Article 974A, .Section 4, 'V.A.e.S. "The courts favor
a liberal construction of ,the rules by which mandamus may issue
to compel performance by public 'official of duties prescribed
by statute." Miller Vtt State, 53 S.W.2d 838 (Tex.. Civ. App.,
Amarillo, 1932); .Commissioners' Court 'v Frank Jester Development
Co., 199 S.W.2~d 1004" (Tex. Civ. App., Dallas, 1947).
Plaintiff contends that o~ce an applicant shows compliance
with all existing requirements, plat approval becomes a minister-
ial duty, and mandamus would lie to compel approval of the plat.
Rhodes v. Shapiro, 494 S.W.2d 248' (Tex Civ. App., .Waco, 1973).
-2-
I
I I
. I
-,
,
In Rhodes, mandamus was proper'when builders sought issuance of
a building permit under a zoning ordinance and had complied with
all existing regulations, so that issuance of the building
permit became a mere ministerial duty. As the Defendant so
ably directs in Lacy v. Hoff,633 S.W.2d 605 (Tex. Civ. App.,
Houston, 14th Dist., 19~2, Ref.n.r.e.), plat approval is or
. should not be a disc~etionary. function when all the minimum
platt'ing= requirement's of Article 974a are satisfied when it
stated that:
I, J
'.'
"Ar,tic1e 97 4a, Sections' 3. and 4.; au~horizes the
creation and existence of a Planning Comm~S'S1'OI)..
The general duties of a Planning Connnission are'.
to enforce the platting requirements of Article
974a by refusing to endorse approva~.on any plan
which does not satisfy t.heminimum tr,equirements of
974a, and the rules and. regulations 'ad9Pted by the
City Council 'gove1;ning plats and ,subdivisions of land".
Once the applicant demonstrates satisfaction of the minimum
I requirements, ,plat app~oval loses its dis,cretionary function and
i becomes ministerial in nature. Plaintiff has repeatedly demonst-
rated his compliance with and satisfaction of the minimum require-
ments of the sta.tute and the rules and regulations adopted by
the, City Counc~l governing" 'plats and subdivisions of land, most
recently at the hearing on NovemberS, 1983 on Plaintiff's
request for ~a~damus by the positive testimony of the Director
"of Planning, the City Engineer, the Consulting Engineer and
Mr. Garrett, ',Plaintiff's. Engineer.
Defendant's in their brief, compare the approval of a
building permit,with.plat"approval as being similar functions.
In Rhodes, supra, the approval of a'building permit was held to
be a ministerial act once compliance with all existing requirements
is shown. By Defendant's own .compari's()n' and analogy, plat
approval is a ministerial'act once compliance with all existing
I requirements is shown. · Plaintiff has p~oved compliance with
: all existing requirements and is therefore entitled to mandamus
-3-
j
-
,
. compelling approval of his plat and damages.
Proceeding in the alternative, even if the Court should
rule that plat approval in ,this case remains a discretionary
function, the rule that manqamus will not issue to compel
performance of an act which involves the exercise of discretion
or judgment is not without limitation, and a ~it may issue in
a proper ?ase to c~rrect a clear abuse ,of discretion, especially
-
where there is no adequate remedy at law. Dykes v. -Cit)': of
\\
Houston, 406 S.W.2d 176', (Sup. Ct. Tex. 1966, Ref. n.r.e.).
I In this case, Plaintiff has ,three times s~bmitted preliminary
,I,
,;0,
plats for approval by the Defen~ants~
In all three attempts,
, '
either the preliminary or final plat was denied by the Defendants.
At no time did the Defendants ever make a finding that the
Plaintiff (applicant) had not met all of the requirements of
Ordinance 8850, or,. any other ordinance, rule 'or regulation. In
fact at each request for app:roval, such approval was reconnnended
by the Defendant City of College St,ation' s Director of Planning J
City Engineer, and Consulting Enginee~ on the basis that Plaintiff
(applicant) had met ?11 of the requirements of all relevant
· City ordinanc~~. Defendant's Planning Connnission also reconnnended
approval on all three 'prior requests for approval.
Defendant's continued and willful refusal, to approve
Plaintiff's plat denies the ,Plaintiff the use of its property.
Defendants' repeated denial of approval is, arbitrary, capricious,
\
and illegal. Purs-uant to Article' 974a, . Se(~tion 4 J it was the I
duty of the Defendants 1 to endorse approval 'Ltpon the preliminary
plat if it met all the requirements of,the ordinance. Plaintiff
I contends that it had met, all of the-rules and regulations of the
: Defendants' zoning ordinance as it related to preliminary and
: final plats. Thus, approval of the plat by Defendant was purely
a ministerial act called for by law and not one that involved any
element of discretion. The Plaintiff, therefore, ~as no timely
-4-
4.
..,
-
and adequate remedy at law other than to comp~l'consideration
and issuance of the approval of the. preliminary plat by.Writ
of Mandamus, s:Lnce it appears. likel.ythat resubmission by the
Plaintiff of the plat to Defendan.:ts. wo~.l~ only result in their
continued and unreasonable denial of approval.
Any official who acts ~i,thout. au.tho,ri'ty.o;E. .law .is personally
liable for damages to individua.lsinjured bysu,ch acts.
That
. hi
is, offi~ial$ tiiay ~'be. h~ld p,ex-!sonally. liable. i.fthey, have exceeded ~
the legitimate 'bounds of their office.' 'Bla:dk"~;"Bak~r, 111 S.W.
2d 706 (rex. Com. ~pp., Sec. A.,. 1938) . ',: It is we;tl settled in
~':l
Texas that an officer of a. ci't~: who. acts 'Wholly without, author.ity .
of law may become personally liap,le for. his torts or ultra vires
acts., Burton v. Rogers,' 492 S.W..2d 695, rev. o.g. 504 S.W.2d 404
(Tex.Civ. App. Beaumont, 1973).. By continually and willfully
I
refusing to approve Plaintiff's plat a~ set but herein, the
Defendants actions were completely unreasonable, arbitrary and
capricious and not,' a~ valid. exercise" o~ th.e ci'ty t s own zoning'
i ordinance nor its p.olice powers. '.As suc1;1, Defendants and
I each of them are or should be p.erson~J-l'y-, liable for the damages
suffered by this Plaintiff~
In conclusio~, Plaintiff. has' met ,.the ,requriement~, both
procedural and factua~, for p.leading" ,a mandam~s and is entitled
to such ~ Plaintiff. would.requ,est Court to grant Plaintiff 1 s
Petition.
Respec.tfulJ.;r Hubmitted,
B : Ro '~rt B. .Harr s
3131 Briarcrest Driv~jSuite 200
P,.O. Box 4383
Btyan, Texas 77805
409/77.9-9646
Bar Card No. 09089600
-5-
J
\
CERTIFICATE OF SERVICE
I certify that on this j/I11t~day of November, 1983, a true
and correct copy of the foregoing Plaintiff's Brief was mailed
certified mail, return receipt requested, to Mr~ Lowell F.
Denton, P.O~ Box 9960, College Station, .Texas, 77840 and'to Mr.
Neeley Lewis, 4500 Carter Creek, Bryan, Texas, 77801.
. '>dl"
i" ..<fY~
Ro ert B. Harris
j
n.j'
\
"".6-
NO.
COMPANY OF )
)
)
vs. )
)
CITY OF COLLEGE STATION, TEXAS: )
and GARY HALTER, As' Mayor of )
the City of College Station; )
and PATRICIA BOUGHTON, LYNN )
NEr1EC I\1cILHANEY, ROBERT )
RUNNELS, ALVIN PRAUSE, VICKY )
REIt~KE, GARY ANDERSON, In Their )
Capacities as Members of the )
City Council of the City of )
College Station, Texas )
IN THE DISTRICT COURT OF
BRAZOS COUNTY, TEXAS
85TH JUDICIAL DISTRICT
BRIEF
TO THE HONORABLE JUDGE OF SAID COUR'r:
Plaintiff has sought the mandamus of the City Council for
approval of the subdivision plat of Woodson Village Phase'Five.
In order to qualify for mandamus, Plaintiff must plead and prove
the factual basis requiring Inandamus, as well as demonstrating
that the law that justifies the granting of the writ in this
particular case. It is the position of the Defendants that the -
Plaintiff has not met either criteria and is not entitled to a
\'Jri t of t1andamus against the City of College Station or members
of the City Council ordering the approval of the plat.
In the first instance, the law requires ~hat the Petition
for tbe ~vrit of i,;landarnus to specially and specifically allege
every fact necessary to entitle such party to relief,Wright v.
Valderas, 575 S.Vv.2d 405 (Tex.Civ.App., Ft. vlorth, 1978). It l1as
been held that conclusory pleading is not sufficient in and by
itself and will not support the granting of the writ, Narro
Warehouse, Inc. VQ Kelly, 530 S.W.2d 146 (Tex.Civ.App., Corpus
Christi, 1975, Ref. n.r.e.).
The Court in its decision stated,
II 111 order to make tl,>e jurisdiction of a District Court to hear
and determine the issues raised in a petition for mandamus, it is
incumbent upon the complaining party to state in his petition the
necessary facts clearly, fully, and unreservedly, by direct and
l)osi tive allegations."
entitled
to affirmative
To
be
extraordinary relief, w'hich compe~s tIle approval of a plat,
petitioner must specifically plead and prove every aspect of
-1-
('
compliance required by statute and ordinance.
An example of
this would be Myers V,. Zoning and Planning. Commission of the City
of West University Place, 521 S.W.2d 322 (Tex.Civ.App., Houston,
1st Dist. 1975).
Here the Court held that failure to show the
location of the property with respect to the original corner of
the original survey of which it was a part disqualified the
plaintiff from a Writ of Mandamus. The Court confirmed that this
was a valid objection to the request for mandamus in the case of
Lacy v. Hoff, 633 S.~\'.-2d 605 (Tex.Civ.App., I-Iouston, 14th Dist.,
-
1982, ~ef. ~.r.e.~.
In this case the Plaintiff has only
presented conclusory allegations with respect to compliance. fIe
has notshowh specially and specifically the factual allegations
of compliance. Plaintiff has failed to plead the applicable'
provisions of city ordinances, which are not subject to judicial
notice and are necessary to support the granting of mandamus in
municipal administrative matters. City of Houston v. Freedman,
293 S.W.2d 515 (Tex.Civ.App., Galveston,
1956, Ref. n.r.e.).
Plaintiff has failed to include the following elements, which
would entitle mandamus from his pleading:
1 . Compliance \Ii th requirements of Article 974a
- .
of T. R. C. S., specifically., the location of the property
with respect to the original corner of t-he original
survey of vlhich it \vas a part.
2 ~ Compliance vii th the ci t,it Code as enacted by
Ordinance 1268, specifically, in that tl1ere l1as not
been alleged or actual cornpliance with all rules and
regulations of Chapter 9, Subdivisions, or Chapter 13,
Flood IIazard Protection.
3. Additionally, Plaintiff incorrectly pleads
that he has complied wi thZoning Ordinance l~umber 850,
and that it determines the rules and regulati6ns on
subdivision platting.
Thus under tlle reasoning of t'he Court i11 t'he case of Lacy
vs. lioff, sUl~ra, t11e pleadings are totalll' defective.
Plaintiff
has I t-herefore, not bridged the. first hurdle for \vri t of
-2-
mandamus;
that is to say, Plaintiff has not pleaded the factual
elements that would entitle him to a writ of mandamus.
Plat approval is a discretionary function.
State 1 a\,{
requires that a plat be reviewed by the city council for
compliance with the statute, and such IIgerleral rules" as are
adopted by a governing body after public hearing. Article 974a,
Section 5, Texas Revised Civil statutes.
This necessitates a
discretionary decision,
although Plaintiffs would suggest that
the process is rnere Inathenlatics or a cl1ecklist. To suggest that
local legislativer:evi"e\v to assure compliance with these general
rules is mandatory equates the process to a rubber stamp, which
could be performed at the staff level. Obviously, that process
\oJas not contemplated by the legislature in its adopti<?n of
Section 5.
The Court in Lacy v. Hoff, supra, clearly indicated that
plat approval is a discretionary function when it stated that:
"Article 974a, Sections 3 and 4, authorizes the
creation and existence of a Planning Commission. The
general duties of.a Planning Commission are to enforce
the platting requirements of Article 974a by refusing
to endorse approval on any plat which does not satisfy
the rninirnurn requirements of 974a, and tl1e rules ana
regulations adopted by the City Council governing plats
and the subdi visio11 of land."
It should further be pointed out that Article 974a of
Vernon's Texas Revised Annotated civil Statutes allows the
applicant to request reasons why the approval of a plat is
denied.
Plaintiff made no request for a statement of reasons in
this instance.
HO\-;lever,
the city council members who voted
against the application at the hearing stated their sentiments
concernlng the se\ver and flooding problems in the area, which
pronlenlS are clearly related to tl1e IJrovisions of t'he City IS
subdivision ordinance.
l\ddi tionally I by \-vay of cornparison and analogy I tl1e
approval of a building permit l1as been held to be a di~cretionary
furlction I
as stated by the Court in King v. Guerra, 1 S.\~.2d 373
(Te~{.Civ.l\I)P., SaI1 Al1tonio, 1927).
The types of reasons for the
denial of eJ. plat arld a buildiny per:ni tare sirnilar in ma11Y
ins tarlces ,
nalnely,
tl1e availability of access arld esse11tial
-3-
services to property proposed
for development.
Certainly
discretion cannot prevail in one and not the other, exalting form
over substance, where the considerations are essentially the
same.
The standard for review on the merits, in an action for
mandamus involving a discretionary function is lIa clear abuse of
discretionll standard. City of Clute v. Liscomb, 446 S.vJ.2d 377
(Tex.Civ.App., Houston,
[1st Dist.] 1969) and King v. Guerra,
supra.
-
_. ,
The ~ourts .."have held th'at' only where the decision is so
obviously arbitrary and unreasonable that it cannot be based upon
fact, then should the writ be granted. The Court in Knowles v.
Scofield,
598 S.1'l.2d 854 (Tex.Cr.App. 1980) held tl1at mandamus'
lies only to compelrnatters beyond dispute. If reasonable minds
could reach the conclusion complained of, the requested relief
will not lie.
The City of College Station, pursuant to Section 5 of
Article 974a, and
after
public
hearing, adopted certain
provisions in i tssubdi vision regulations I \tlhich pertain to the
City Council1sconsideration of the Woodson Village Plat. Those
provisions are as follows:
1. Chapter 9,
general requirements
requires:
Section 8-B, which sets out the
for the suitability of lands,
IIT11e cormnission shall not approve the subdivision of
land if, from adequate investigations conducted by all
public agencies concerned, it has been determined that
in tl1e best interest of the public, the site is not
suitable for platting and development purposes of the
kind proposed. Land subject to flooding and land
deemed to be topographically Ullsuitableshall not be
platted for residential occul)ancy, nor for s,ucl1 otl1er
uses as may increase danger to health, life, or
property, or aggravate erosion or flood hazard. Such
land within the plat shall be set as~de for such uses
as shall not be endangered by 'periodic or occasional
inundation or shall not produce unsatisfactory living
conditions. II
2. Chapter 13, Section D, which pertains to
subdivision proposal standards additionally requires
that lIall subdivision proposals sllall have adeqtlate
drainage provided to reduce. exposure ,to flood 'hazards"
an.d that ll[aJll subdivision proposals shall "have public
utilities and facilities such as sevier, gas I
electrical, and \"atersysterHS located and constructed
to lninimize flood damage."
-4-
The record of the proceedings at the January 20th
meeting, and the test~lnony at the hearing qn tlle \Alri t of 11andamus
will demonstrate that reason, and not caprice, dictated a
decision to deny the Woodson Village Plat until solutions to
problems could be affected.
The problems perceived by the
council, whether corr.ect, incorrect, right or \vrong 1 are direct'ly
related to the above provisons in the ordinance, are substantive
in nature, are judgrnentsshared by many, and are not arbitrary and
c~pricious.
_ .w
In s"ever'al"' otl1er states where a mandanlus has been sought
to compel the approval of a plat, Courts have held that this is a
discretionary function and that mandamus will be granted only as
to the l1earing of the application for plat approval.
Tl1e ,Court
in Hillis Homes,
Inc. v. Snohomish County,
647 P.2d 43, 32
Wasl1.App. 279 (Wash.Civ.App. - Div. 1 [1982J) held that "a1thougll.
mandamus will not lie to control the exercise of discretion, it
\vill require that discretion by exercised ( cases cited). II
This
was also the ruling in Simac Design,
Inc. v. Alciati, 154
Cal.Rptr. 676, 92 Cal.App.3d 119, (1st Dist., Div. 4 [1979J), and
in Babiak v. Rich1and Township Planning Commission, 412A.2d 202
(pa.Cmwith. [1980J).
Clearly these cases hold that pl~t
approval is a discretionary function and that mandamus will not
lie \lJhere that discretion has been e:xercised. tvlandaluus will only
lie to require the consideration of a subdivision plat.
In c011clusion, the Plaintiff has not rnet ei thel- the
procedural requirements for pleading a mandamus, nor the factual
requirements for entitlement to that writ.
Defendant \\"ould
request the Court to dismiss the Petition.
Respectfully submitted,
LOWELLF. DENTON, City Attorney
for the City of College Station
BY:
P. O. Box 9960
College Station, TX 77840
(409) 764-3515
Bar Card No. 05764700
r-
--:>-
LEWIS & LEWIS, P.C.
CERTIFICATE OF SERVICE
I certify t'hat on this
day of :t~overnber, 1983, a true
a11d correct copy of the foregoing Defendants I Brief vias hand
delivered, pursuant to-Rule 72, to Robert Harris, Attorney at
-
_ Law, 3131 Briarcreit D~ive, Bryan, Texas 77805.
Lowell F. Denton
-6-