City of Pasadena v. Azael Sepulveda

Opinion issued October 28, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00327-CV
———————————
CITY OF PASADENA, Appellant
V.
AZAEL SEPULVEDA, Appellee

On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2023-62583

MEMORANDUM OPINION

This appeal arises from the City of Pasadena’s rejection of a preliminary site

plan submitted by Azael Sepulveda. An approved site plan is a prerequisite to obtain

a certificate of occupancy, which Sepulveda needs to open his automobile repair

shop. Sepulveda and the City previously agreed to certain conditions upon which the

City would approve a certificate of occupancy. When the City rejected Sepulveda’s
preliminary site plan, Sepulveda sued the City for breach of contract and

constitutional violations of due course of law and equal protection. The City moved

for a plea to the jurisdiction, which the trial court denied.

In two issues, the City contends that the trial court erred by denying its plea

to the jurisdiction because Sepulveda’s claims are not ripe and are barred by the

City’s governmental immunity.

Because we conclude Sepulveda’s claims are not ripe, we reverse the trial

court’s order denying the City’s plea to the jurisdiction and render judgment

dismissing Sepulveda’s claims for lack of jurisdiction.

Background

This is Sepulveda’s second suit against the City of Pasadena regarding

property he purchased on Shaver Street (“the Property”) in Pasadena. Sepulveda

purchased the Property with the intent of using it as an automobile electrical repair

shop, Oz Mechanics. A City ordinance requires automobile repair shops to have ten

off-street parking spaces per one thousand square feet. To comply with this

ordinance, the Property must provide 28 parking spaces. In 2021, the City denied

Sepulveda’s land use compliance review application, a prerequisite to applying for

a certificate of occupancy, because (1) the Property did not comply with the

ordinance and (2) the paving and drives did not comply with the City codes.

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Sepulveda applied for a variance, but the City denied his application because it failed

to meet the variance criteria in the City code.

This denial led Sepulveda to bring his first suit against the City regarding the

Property, alleging the City’s parking requirements as applied to the Property were

unconstitutional. The trial court denied the City’s plea to the jurisdiction and issued

a temporary injunction forbidding the City from enforcing the parking ordinance

against Sepulveda. The City filed an interlocutory appeal.

Thereafter, the parties entered into a mediated settlement agreement (the

“Agreement”) by which the City agreed, among other things, to approve Sepulveda’s

application for certificate of occupancy for Oz Mechanics to use the Property for

automotive electrical repair according to the four following conditions:

• The Property will provide seven parking spots: three in front of the
main building on the Property and four on the western side of the
building. No cars parked on the property may back out on to the right
of way;

• The area on the western side of the building will be paved from the
Property line to the shed with asphalt or concrete and the fencing on
this portion of the Property will be removed;

• The floor area of the shed will be paved with concrete, if it is not
already; [and]

• Bollards will be installed . . . with a maximum of four feet between
bollards . . . .

Taking the first step in submitting a certificate of occupancy application,

Sepulveda submitted a site plan to the City. But the City disapproved his site plan.
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The City’s letter reasoned, “(1) [B]ollards must be a maximum of four feet apart,

necessitating that [Sepulveda] add more bollards; and (2) the drive-aisle widths did

not meet City requirements.” The City also added four further requirements in its

marked-up site plan included with the letter:

• The site plans needed to include drainage and restrictor calculations,
and the Property needed to use a particular internal drainage system;

• The Property needed a six-inch curb around the paving and driveways;

• The Property needed a five-foot setback made of grass; and

• Vehicles could not back into the right-of-way.

Upon the denial of his site plan, Sepulveda did not apply for any variances or

appeal the denial of his site plan. Sepulveda brought this second suit against the City,

alleging the City breached the Agreement and violated the Texas Constitution’s

“Due Course of Law” and equal protection provisions. In his petition, Sepulveda

agreed to fix the bollards, add drainage calculations, follow the City’s preferred

system, and add a curb throughout the Property. Sepulveda alleged that the City

breached the Agreement because (1) the City’s requirement of larger drive-aisle

widths would not allow the Property to have the four parking spaces on the side;

(2) the City’s requirement of a five-foot grass setback conflicts with the provision of

the Agreement that the area on the side of the building “will be paved from the

Property line to the shed;” and (3) the City contorts the definition of “right-of-way”

by prohibiting vehicles from backing into the “right-of-way.”
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Sepulveda defined the City’s requirements that allegedly breach the parties’

Agreement as the “New Parking Demands.” He alleged that these “New Parking

Demands,” as applied to Sepulveda, violate the Texas Constitution’s Due Course of

Law guarantee. Additionally, he alleged that the City’s disparate treatment of him

violates his right to equal protection of the laws.

In its plea to the jurisdiction, the City argued that Sepulveda’s claims were not

ripe and that the City’s governmental immunity bars Sepulveda’s claims. After two

hearings, the trial court denied the City’s plea to the jurisdiction.

Ripeness

In its first issue, the City contends that the trial court erred in denying its plea

to the jurisdiction because Sepulveda’s claims are not ripe. We agree.

A. Standard of Review

Ripeness is an element of subject-matter jurisdiction and thus is subject to a

de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928

(Tex.1998). When reviewing a plea to the jurisdiction in which disputed evidence

implicates both the court's subject-matter jurisdiction and the merits of the case, we

consider relevant evidence submitted by the parties to determine whether a fact issue

exists. Suarez v. City of Tex. City, 465 S.W.3d 623, 632-33 (Tex. 2015). “We take

as true all evidence favorable to the nonmovant, indulge every reasonable inference,

and resolve any doubts in the nonmovant’s favor.” Id. at 633. If the evidence creates

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a fact question regarding jurisdiction, then the plea must be denied because the fact

finder must resolve the issue. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 227-28 (Tex. 2004). “If the evidence fails to raise a question of fact, however,

the plea to the jurisdiction must be granted as a matter of law.” Suarez, 465 S.W.3d

at 633.

B. Analysis

“Ripeness is a jurisdictional prerequisite to suit.” Zaatari v. City of Austin,

615 S.W.3d 172, 183 (Tex. App.—Austin 2019, pet. denied). “[A]voiding premature

litigation prevents courts from entangling themselves in abstract disagreements over

administrative policies while at the same time serving to protect the agencies from

judicial interference until an administrative decision has been formalized and its

effects felt in a concrete way by the challenging parties.” Patterson v. Planned

Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998) (citation

modified).

When determining whether a claim is ripe, “courts must consider whether, at

the time the suit is filed, the facts are sufficiently developed so that an injury has

occurred or is likely to occur, rather than being contingent or remote.” Patel v. Tex.

Dep’t of Licensing & Regulation, 469 S.W.3d 69, 78 (Tex. 2015) (citation modified).

Thus, a case is not ripe if it involves uncertain or contingent future events that may

not occur as anticipated. Id.

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In land use cases, a claim is not ripe without a “final and authoritative

determination” regarding the application of a regulation because a court “cannot

determine whether a regulation has gone ‘too far’ unless it knows how far the

regulation goes.” Commons of Lake Houston, Ltd. v. City of Houston, 711 S.W.3d

666, 684 (Tex. 2025). Generally, to obtain a final determination, the property owner

must submit an application for the permitted use and seek a variance if the

application is denied. Id. But “futile variance requests or re-applications are not

required.” Id. at 685 (citing Mayhew, 964 S.W.2d at 929). A subsequent application

or variance request is futile when the government has clarified that the owner cannot

obtain approval for his desired use, that his request for a permit has been definitively

rejected, or that any subsequent request would not make a difference. Id.

Sepulveda argues that the City, by denying his site plan, gave him its

definitive position that he may not open his automobile repair shop at his Property.

In support of his argument, Sepulveda relies on our decision in City of Houston v.

Mack, 312 S.W.3d 855, 863 (Tex. App.—Houston [1st Dist.] 2009, no pet.). There,

flood insurance rate maps adopted by the city in 2007 placed the Macks’ property in

a floodway for the first time. Id. The city also amended its flood ordinance to further

restrict development in the floodway. Id. According to the Macks, the new

designation prohibited the Macks from obtaining building permits for new

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construction or improvements to existing structures on their property. See id. at 859,

862.

The Macks sued the city for inverse condemnation. Id. at 859. The city argued

that the Macks’ claim was not ripe because they had had not applied for a building

permit or sought a variance. Id. But, noting that the flood ordinance stripped the

government’s discretion, this Court concluded that the property owners’ claims fell

within the narrow futility exception to the final decision requirement such that the

plaintiff-landowners’ claims were ripe. See id.

Sepulveda does not direct us to an ordinance that has a similar effect in this

case. Here, once Sepulveda formally applies for a certificate of occupancy, the City

retains the discretion regarding whether to approve Sepulveda’s application or grant

a variance. Thus, there must be a final decision by the City regarding the application

of the ordinances at issue. See Mayhew, 64 S.W.2d at 929.

Sepulveda has not obtained a final decision from the City. The City denied his

preliminary site plan based on a number of requirements Sepulveda had not met.

Sepulveda agrees that the following requirements do not or are unlikely to conflict

with the Agreement: (1) fixing the bollards, (2) adding drainage calculations and

using a particular drainage system, and (3) adding a curb throughout the Property.

Yet, Sepulveda did not submit a revised preliminary site plan. In his petition, he

admits that he “will agree” to revise his site plan to comply with these requirements.

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But such futuristic language itself evinces that his claims are not ripe. Additionally,

although Sepulveda complains of the City’s requirements regarding the drive-aisle

widths, setback spacing, and right-of-way definition, Sepulveda did not seek a

variance from any of these requirements. See Mayhew, 964 S.W.2d at 929 (“A ‘final

decision’ usually requires both a rejected development plan and the denial of a

variance from the controlling regulations.”). Further, he did not appeal the denial of

his site plan to the Planning and Zoning Commission or to the City Council. See

PASADENA, TEX. CODE OF ORDINANCES ch. 28, art. VII § 28-66(e). Because there is

not yet a final determination by the City, his constitutional claims are not ripe.

Regarding his breach-of-contract claim, Sepulveda contends that his site plan

“generally complied with the Agreement” and that the City’s disapproval of his site

plan conflicts with the Agreement. The City responds that his site plan did not

comply with the Agreement. We agree with the City. The Agreement states that the

bollards must be installed with a “maximum of four feet between bollards” and “[n]o

that cars parked on the property may back out on to the right of way.” Non-

compliance with these conditions in the Agreement were two of the reasons the City

gave for denying Sepulveda’s site plan. Because Sepulveda has not yet submitted a

site plan complying with the conditions in the Agreement, his allegation that the City

breached the Agreement is mere speculation about a future event. At this time, it is

uncertain whether the City will approve Sepulveda’s future application for a

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certificate of occupancy that complies with the Agreement’s conditions. See

Patterson, 971 S.W.2d at 443 (“A case is not ripe when its resolution depends on

contingent or hypothetical facts, or upon events that have not yet come to pass.”).

Thus, his breach of contract claim is not ripe for adjudication.

Because Sepulveda’s claims are not ripe, we hold that the trial court erred in

denying the City’s plea to the jurisdiction. Accordingly, we sustain the City’s first

issue.1

Conclusion

We reverse the trial court’s order denying the City’s plea to the jurisdiction

and render judgment dismissing Sepulveda’s claims for lack of jurisdiction.

Clint Morgan
Justice

Panel consists of Chief Justice Adams and Justices Morgan and Dokupil.

1
Because the first issue is dispositive, we need not address the City’s second issue,
which contends that the trial court erred in denying the plea because Sepulveda’s
claims are barred by governmental immunity. See TEX. R. APP. P. 47.1.
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