City of Arlington v. Cerkezi Enterprises, L.L. C., D/B/A Euro Car Tech, and Elio Cerkezi

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-25-00406-CV
___________________________

CITY OF ARLINGTON, Appellant

V.

CERKEZI ENTERPRISES, L.L.C., D/B/A EURO CAR TECH, AND ELIO
CERKEZI, Appellees

On Appeal from the 342nd District Court
Tarrant County, Texas
Trial Court No. 342-350490-24

Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION

I. INTRODUCTION

This interlocutory appeal1 follows the denial of Appellant City of Arlington’s

combined traditional and no-evidence motion for summary judgment and plea to the

jurisdiction (the motion) in a lawsuit dealing with zoning regulations affecting a

business owned by Appellees Cerkezi Enterprises, L.L.C., d/b/a Euro Car Tech, and

Elio Cerkezi (collectively Euro Car Tech). In three issues, the City argues that the

trial court erred by denying the motion, which sought dismissal of Euro Car Tech’s

claims of inverse condemnation, estoppel, and Texas Local Government Code

Section 211.019 violations. Because Euro Car Tech has failed to state a claim waiving

the City’s governmental immunity, we will reverse and render.

II. BACKGROUND

A. The Federal District Court Litigation

This appeal stems from a dispute between the parties relating to property

located at 1850 Parks Springs Boulevard in Arlington. Litigation between the City and

Euro Car Tech involving the property has been ongoing for several years and started

when Euro Car Tech filed suit in federal district court. Ultimately, the federal court

1
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8); see also Harris Cnty. v.
Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (“If the trial court denies the governmental
entity’s claim of no jurisdiction, whether it has been asserted by a plea to the
jurisdiction, a motion for summary judgment, or otherwise, the Legislature has
provided that an interlocutory appeal may be brought.”).

2
dismissed the lawsuit. In making its ruling, the court first summarized the facts giving

rise to the dispute, which facts are also applicable to the subject lawsuit:

Plaintiff Elio Cerkezi has been operating Euro Car Tech in Arlington,
Texas since 2018. From 2018 to 2022, Euro Car Tech sold used cars
and conducted major and minor auto repair. None of these uses are
ordinarily permitted in a Community Commercial Zoning District—the
zoning district in which the property sits. However, the City Council
may approve a Planned Development that includes uses not ordinarily
permitted in a zoning district. Mr. Cerkezi’s property is authorized to be
used for (1) minor auto repair, and (2) any use ordinarily permitted in a
Community Services zoning district. Thus, the Planned Development
for Mr. Cerkezi’s property does not permit major auto repair or used car
sales.[2]

Before a tenant uses or occupies a premises, the tenant must have
a Certificate of Occupancy issued by the Building Official. To get a
Certificate of Occupancy, the Building Official must find that the
premises comply with the Building Code and the City of Arlington’s
applicable zoning regulations. However, in this case, an erroneous
Certificate of Occupancy was issued in 2015 to the previous tenant of
Mr. Cerkezi’s property. The Certificate of Occupancy stated that major
auto repair is authorized on the property, even though the Planned
Development does not permit major auto repair. When Mr. Cerkezi
began operating on the property in 2018, he was reissued an erroneous
Certificate of Occupancy which again stated that major auto repair is
authorized on the property.

From 2018 to 2022, Mr. Cerkezi conducted major auto repair
(which the Certificate of Occupancy erroneously said was authorized)
and sold used cars (which the Certificate of Occupancy did not say was
authorized). In 2022, the State of Texas refused to renew Mr. Cerkezi’s
license to operate a car dealership since neither the 2018 Certificate of
Occupancy nor the Planned Development allow used car sales on the
property. When Mr. Cerkezi approached the City about rezoning the

2
The Planned Development was enacted as part of Ordinance 96-111 in 1996,
so it had been in effect long before Euro Car Tech began its operations at the
location. See Arlington, Tex., Ordinance 96-111 (Aug. 20, 1996).

3
property to allow used car sales, the City discovered that his 2018
Certificate of Occupancy was issued in error and should not have stated
that major auto repair was authorized on the property.

Mr. Cerkezi subsequently requested that the Planned
Development be modified so that he can continue operating his
business. A public hearing was held, in which the City Council
considered whether to authorize used car sales and major auto repair on
the property. Mr. Cerkezi was present at the meeting and advocated for
amending the Planned Development to allow both uses. The City
denied his request and issued a new Certificate of Occupancy the day
after the hearing, which reflected that the Planned Development
permitted minor auto repair but not major auto repair or used car sales.

In the months following the hearing, Mr. Cerkezi stopped selling
used cars on the property but continued major auto repair in violation of
the Planned Development and his newly-issued Certificate of
Occupancy. The City issued multiple citations for these violations. Mr.
Cerkezi sued, alleging that the City’s issuance of a corrected Certificate
of Occupancy violated his due process rights under the Fifth and
Fourteenth Amendment. The City moved to dismiss under
Rule 12(b)(6).

Cerkezi v. City of Arlington, No. 4:23-cv-00991-P, 2024 WL 265873, at *1 (N.D. Tex.

Jan. 24, 2024) (mem. op. and order) (footnote omitted).

In disposing of Euro Car Tech’s federal claims, the court first held that Euro

Car Tech’s “due process claim failed because [it] did not have a protected property

interest in [the] erroneously-issued Certificate of Occupancy.” Id. at *3. The court

concluded that Euro Car Tech “was never authorized to conduct major auto repair or

sell used cars on the property. . . . To the extent [its] Certificate of Occupancy said

otherwise, the certificate was void.” Id. The court noted that other Texas

constitutional cases had reached the same conclusion when courts encountered

4
“erroneously-issued” certificates or permits. Id. However, the court stated that even

if Euro Car Tech “had a protected property interest in [its] erroneously-issued

Certificate of Occupancy,” it had received notice and a hearing. Id. at *5. Therefore,

Euro Car Tech was provided due process. Id.

Next, the court addressed the argument that the City’s issuance of a new

Certificate of Occupancy that did not permit major auto repair constituted a

regulatory taking in violation of the Fifth and Fourteenth Amendments to the U.S.

Constitution. Id. Again, the court rejected the claim because Euro Car Tech “never

had a right to use the property for major auto repair or used car sales” and had no

property interest in the “erroneously-issued Certificate of Occupancy.” Id.

Finally, the court “decline[d] to estop the City from enforcing its zoning

ordinances insofar as [Euro Car Tech] hinge[d its] estoppel theory on the City’s

alleged violations of [its] constitutional rights.” Id. at *6. The court also declined to

exercise its supplemental jurisdiction over Euro Car Tech’s state law claims. Id.

Therefore, the court granted the City’s motion to dismiss the federal claims with

prejudice and the state claims without prejudice. Id.

B. The Appeal to the Fifth Circuit

Euro Car Tech appealed the district court’s ruling. See Cerkezi v. City of

Arlington, No. 24-10084, 2024 WL 4023769 (5th Cir. Sept. 3, 2024) (per curiam)

(unpublished). While on appeal, the City informed the United States Court of

Appeals for the Fifth Circuit that it had amended its Code of Ordinances to authorize

5
Euro Car Tech’s auto repair business to continue at the same location. Id. at *1.

Because “the circumstances that precipitated [Euro Car Tech’s] lawsuit ha[d] changed,

and the City no longer threaten[ed] to oust [Euro Car Tech] from the current location

for [its] auto repair business,” the Fifth Circuit dismissed the case as moot. Id.

C. The State Court Litigation

Euro Car Tech sued the City in state court. In its pleadings, Euro Car Tech

stated that it performed “major auto repair, as allowed by its Certificate of Occupancy

(‘CO’) issued by the City [ ] in 2018” but that “the City has determined that it issued

the CO in error and now demands that [Euro Car Tech] build an expensive fence or

cease major auto repair operations and abandon their lease and vacate the premises

without any compensation.”3 In Euro Car Tech’s words,

To mitigate [its] damages, on April 9, 2024, [Euro Car Tech] sought a
change from the City Council once again seeking to allow major auto
repair at the location. The Council’s staff advised the Council that [Euro
Car Tech] should build an expensive fence encompassing its property
with automatic gates. [Euro Car Tech] appeared and agreed that the
fence was better than being shut down, recognizing that the City would
not otherwise allow the business to operate, and more citations would
accrue. [footnote omitted]

Euro Car Tech alleged causes of action for inverse condemnation, estoppel, and

violations of Section 211.019(d) of the Texas Local Government Code. It sought

“compensation for the fence [it is] being forced to build, or compensation for closing

3
While Euro Car Tech’s live pleading also referenced its used car business, the
pleadings stated that it has “relocated [its] vehicle sales, without payment by the City,
eliminating that issue from the dispute.”

6
or moving, and compensation for moving [its] used car businesses [as] well as

attorney’s fees and costs of cost, and any other relief to which [it was] entitled.”

The City answered, asserting a general denial and the affirmative defense of

governmental immunity. After conducting discovery, the City filed its motion,

combining traditional and no-evidence motions for summary judgment with a plea to

the jurisdiction. The City attached evidence to the motion including Cerkezi’s

deposition; three City ordinances; five Certificates of Occupancy; an application for

zoning amendment; minutes of various Planning & Zoning Commission and City

Council meetings; a City Staff Report; a letter from the City’s Assistant Director for

Planning and Development Services; and excerpts from the Unified Development

Code, the Building Code, and the zoning ordinances of the City. Euro Car Tech

responded to the motion, attaching as evidence Cerkezi’s declaration; four Certificates

of Occupancy; code compliance documents; photographs; citations; a link to the

March 8, 2022 Arlington City Council meeting; and a city ordinance. The trial court

denied the motion, and the City appealed.

III. DISCUSSION

In three issues on appeal, the City argues that (1) it is entitled to dismissal of

Euro Car Tech’s inverse condemnation claim because it has not unreasonably

interfered with Euro Car Tech’s use and enjoyment of the property; because Euro Car

Tech had no vested property right in the operation of a major auto repair business

since “major auto repair” was a prohibited use before Euro Car Tech signed its lease

7
or opened for business; and because the building official’s issuance of Certificates of

Occupancy in violation of the law did not create a vested property right; (2) it is

entitled to dismissal of Euro Car Tech’s estoppel claims because the City’s zoning

ordinance, and specifically the requirement that Euro Car Tech erect a fence around

the property, should not be estopped in light of the fact that Euro Car Tech (a) agreed

to the fence requirement and (b) has already constructed the fence; because the City

should not be estopped from enforcing its Code of Ordinances because justice does

not require it; and because it would interfere with the City’s performance of its

governmental functions; and (3) it is entitled to dismissal of Euro Car Tech’s claim

pursuant to Section 211.019 of the Texas Local Government Code because Euro Car

Tech’s business is not a “nonconforming business as a result of the adoption of or

change to a zoning regulation or boundary”; because the City’s enforcement of its

pre-existing zoning ordinance is not the “adoption of or change to a zoning regulation

or boundary”; because a Certificate of Occupancy does not adopt or change a zoning

regulation or boundary; and because Euro Car Tech cannot rely on any zoning

changes that occurred before Section 211.019’s effective date of May 19, 2023.

A. Immunity and the Standard of Review

Unless the State consents to suit, sovereign immunity deprives a trial court of

subject-matter jurisdiction over lawsuits against the state or certain governmental

units. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004) (op.

on reh’g). Cities are political subdivisions of the state and, absent waiver, are similarly

8
entitled to governmental immunity.4 Reata Constr. Corp. v. City of Dallas, 197 S.W.3d

371, 374 (Tex. 2006) (op. on reh’g). Subject-matter jurisdiction cannot be conferred

or taken away unless the Legislature has expressly waived immunity. Carroll v. Carroll,

304 S.W.3d 366, 367 (Tex. 2010).

A plea to the jurisdiction challenges a trial court’s subject-matter jurisdiction.

Miranda, 133 S.W.3d at 232. “A jurisdictional plea may challenge the pleadings, the

existence of jurisdictional facts, or both.” Alamo Heights Indep. Sch. Dist. v. Clark,

544 S.W.3d 755, 770 (Tex. 2018). Here, we focus on the City’s challenges to the

jurisdictional facts, as those challenges are dispositive.

A plea to the jurisdiction may be like a no-evidence motion for summary

judgment by asserting that the plaintiff has produced no evidence of an element

required for the immunity waiver to apply. City of Austin v. Powell, 704 S.W.3d 437,

447 (Tex. 2024). The plea may mirror a traditional motion for summary judgment by

attaching evidence in an effort to conclusively negate jurisdiction. Id. at 447–48. Or

the plea may be like a hybrid motion for summary judgment where both parties attach

4
Although courts often use the terms sovereign immunity and governmental
immunity interchangeably, we use the term governmental immunity in reference to
the City. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003); see
also Arlington v. City of Arlington, No. 2-23-00288-CV, 2024 WL 2760415, at *1 n.1
(Tex. App.—Fort Worth May 30, 2024, no pet.) (mem. op.). While sovereign
immunity protects the State as well as “various divisions of state government,
including agencies, boards, hospitals, and universities” from liability, governmental
immunity protects political subdivisions of the State, including cities. Wichita Falls
State Hosp., 106 S.W.3d at 694 n.3.

9
evidence. Id. at 448. “Whatever the government may call its jurisdictional

challenge—a plea to the jurisdiction, a motion to dismiss, or a motion for summary

judgment—we look to its substance.” Id.; see Oscar Renda Contracting, Inc. v. Bruce,

689 S.W.3d 305, 311 (Tex. 2024) (noting that “our Court has consistently held that we

examine the substance of a motion or pleading rather than requiring the formality of a

title”).

The plaintiff has the burden of establishing facts that affirmatively show the

trial court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,

446 (Tex. 1993). If the plea challenges the existence of jurisdictional facts, we must

consider the evidence. Miranda, 133 S.W.3d at 227. We review the grant or denial of

a plea to the jurisdiction de novo, “determin[ing] whether the plaintiff’s pleadings,

construed in favor of the plaintiff, allege sufficient facts affirmatively demonstrating

the court’s jurisdiction to hear the case.” Hearts Bluff Game Ranch, Inc. v. State,

381 S.W.3d 468, 476 (Tex. 2012).

B. Inverse Condemnation

In its pleadings, Euro Car Tech complained that the “City enacted a taking in

the form of inverse condemnation under Texas State Constitution Article I § 17 by

requiring [it] to build an expensive fence or close down without compensation for the

fence or for closing the business.” It labels the fence requirement as a “regulatory-

taking in the form of inverse-condemnation.” On appeal, Euro Car Tech

characterizes any consent to the fencing requirement as a “coerced concession.”

10
In its first issue, the City argues that the trial court improperly denied its

motion because Euro Car Tech failed to properly plead an inverse condemnation

claim. Specifically, the City contends that there can be no unreasonable interference

with Euro Car Tech’s use or enjoyment of the property because Euro Car Tech

consented to the fencing restriction, had no vested property right in the use of its

property if it violated the City’s zoning laws, and had no vested property rights in a

Certificate of Occupancy.

The elements of an inverse condemnation or “takings” claim are that (1) an

entity with eminent domain power intentionally performed certain acts (2) that

resulted in taking, damaging, or destroying the property for, or applying it to,

(3) public use. Tex. Dep’t of Transp. v. Self, 690 S.W.3d 12, 26 (Tex. 2024); see Tex.

Const. art. I, § 17 (“No person’s property shall be taken, damaged or destroyed for or

applied to public use without adequate compensation being made, unless by the consent of

such person. . . .” (emphasis added)). “Article I, Section 17 itself recognizes the owner’s

‘consent’ as a defense” to liability for inverse condemnation. Tex. Dep’t of Transp., 690

S.W.3d at 27; see Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829,

844 (Tex. 2010) (“A person who consents to the governmental action, however,

cannot validly assert a takings claim.”); see also Bauer v. City of Waco, No. 10-19-00020-

CV, 2020 WL 7253430, at *4 (Tex. App.—Waco Dec. 9, 2020, no pet.) (mem. op.)

(“A landowner may consent to property being taken or damaged without payment of

any compensation.”).

11
A taking can be a physical occupation, appropriation, or invasion of property

or a regulatory action that is so restrictive or intrusive “that it effectively ‘takes’ the

property.” Commons of Lake Hous., Ltd. v. City of Houston, 711 S.W.3d 666, 676 (Tex.

2025). A regulatory taking may occur when a law or ordinance (1) requires an owner

to suffer a permanent physical loss or invasion of its property, (2) completely deprives

an owner of all economically beneficial use of its property, or (3) unreasonably

interferes with the owner’s right to use and enjoy its property. Id. Whether a

compensable taking has occurred is a question of law for the courts to decide. Id.

Because consent would negate the takings claim, we will examine whether Euro Car

Tech consented to the fence requirement as a condition of the City’s rezoning of the

property. See Kirby Lake Dev., Ltd., 320 S.W.3d at 844.

It is undisputed that, in 2024, Euro Car Tech sought a change in its zoning to

permit major auto repair on the property. On March 6, 2024, the City’s Planning and

Zoning Commission considered the request to permit major auto repair.5 The

Commission approved the request with various conditions, including the following:

“An eight-foot-tall fence shall be placed along the north, south, and west sides of the

property with at least a six-foot fence from those fences towards the building on the

north and south sides.”

A proposed change to a city’s zoning ordinance must first be brought before
5

the planning and zoning commission. See Tex. Loc. Gov’t Code Ann. § 211.007(b).

12
At the meeting, Euro Car Tech’s attorney stated, “[W]e’ve said that we’ll put a

fence around the facility,” and “[W]e’re willing to build a fence just like we talked

about.”6 In addition, in response to a comment by one commissioner that a fence

would be reasonable and that “[a]uto repair places all over the city do that very same

thing,” Cerkezi responded, “If you guys think that looks good, I’m okay with that

because it’s going to protect my property as well.” He further stated, “I’m okay with

the fence as well around the three sides of the building.”

On April 9, 2024, the City Council considered the request to rezone the

property to permit major auto repair. The Staff Report presented to the Council

stated that the Planning and Zoning Commission had approved the rezoning request

to include “major auto repair” with certain conditions, including that “[a]n eight-foot-

tall fence shall be placed along the north, south, and west sides of the property with at

least a six-foot fence from those fences towards the building on the north and south

sides.” In addition, the Staff Report provided the following in bold: “The applicant

6
Before the trial court and in their respective briefs, both parties cite to various
meetings of the City Council and the City’s Planning and Zoning Commission that are
available on the City’s website. As noted by the parties, a video recording of the
March 6, 2024 meeting of the City’s Planning and Zoning Commission is on the
City’s website—see Arlington, Tex., Planning and Zoning Commission Regular
Session (March 6, 2024), available at
https://arlingtontx.granicus.com/player/clip/4772?view_id=10&redirect=true (last
viewed January 5, 2026)—and we take judicial notice of it. See City of El Paso v. Fox,
458 S.W.3d 66, 72 (Tex. App.—El Paso 2014, no pet.) (sua sponte taking judicial
notice of minutes from city council meeting); Lazarides v. Farris, 367 S.W.3d 788, 799
(Tex. App.—Houston [14th Dist.] 2012, no pet.) (taking judicial notice of minutes
from city council meeting that were publicly available on city’s website).

13
has agreed with the above stipulations and made the updates to the development/site

plan, including landscaping within the landscape setback along Park Springs

Boulevard and fencing towards the front of the structure.”

During the hearing at the City Council meeting,7 the following discussion

occurred:

[Councilmember]: Okay, your client has agreed to the fence on three
sides and partially the front between the building and the property lines
but set back. So that leaves, uh, by my count, eleven parking spaces in
the front.

[Euro Car Tech’s attorney]: That sounds right.

[Councilmember]: Okay.

[Euro Car Tech’s attorney]: And I think there’s a fence. There’s gonna
be a gate too, so it actually will be four sides is my understanding.

[Councilmember]: The fence, it will be a rolling fence from the
[unintelligible] that will secure the entire property.

[Euro Car Tech’s attorney]: That’s correct.

While Euro Car Tech now argues that it did not agree to pay for the fence,

questions about the fence and its cost were addressed at Cerkezi’s deposition, and he

acknowledged that nobody at either the Planning and Zoning Commission or the City

agreed to pay for any part of the fence.

7
A video recording of the April 9, 2024 meeting is available on the City’s
website—see Arlington, Tex., City Council Regular Meeting (April 9, 2024), available
at https://arlingtontx.granicus.com/player/clip/4799?view_id=9&redirect=true (last
viewed January 5, 2026)—and we take judicial notice of it. See City of El Paso, 458
S.W.3d at 72; Lazarides, 367 S.W.3d at 799.

14
Q. The City did tell you that you had to have the fence, though, correct?

A. That’s correct.

Q. And no one on the city council said that the City would contribute to
that, correct?

A. That’s correct.

Q. And no one on the planning and zoning commission said that the
City would contribute to that, correct?

A. That’s correct.

....

Q. Okay. So neither [your attorney] nor you told anyone at the City that
the City was going to be expected to cover some or all of the cost of the
fencing?

A. While I was there, no.

As a condition to the rezoning request, the City required a fence to be built

around part of the property. While the fence was discussed at length before both the

Planning and Zoning Commission and the City Council, Euro Car Tech never

objected to or raised any concerns about the fencing requirement. Ultimately, the

zoning request was approved and became effective April 30, 2024.

The Fifth Circuit “reviewed the recordings of official meetings” and stated,

“That [Euro Car Tech] would have to install a fence around some portion of the

property was discussed in the meetings, and neither [Euro Car Tech] nor [its] counsel

demurred.” Cerkezi, 2024 WL 4023769, at *1. We agree. By seeking the rezoning of

its property and failing to raise an objection about the fence before either the

15
Planning and Zoning Commission or the City Council, we conclude that Euro Car

Tech consented to the construction of the fence around its property as a condition to

the City’s rezoning of the property for use as “major auto repair.” Compare Rischon

Dev. Corp. v. City of Keller, 242 S.W.3d 161, 169 (Tex. App.—Fort Worth 2007, pet.

denied) (holding that “by proposing, adopting without objection, or agreeing . . .

without objection” to certain requirements, the applicant consented to those

requirements), and Midtown Edge, L.P. v. City of Houston, No. 01-12-00730-CV,

2014 WL 586232, at *10 (Tex. App.—Houston [1st Dist.] Feb. 13, 2014, no pet.)

(mem. op.) (“By choosing to construct the new line at its own expense and adopting

without objection the City’s requirements, Edge consented to those requirements.”), with

Town of Flower Mound v. Stafford Ests. L.P., 71 S.W.3d 18, 28 (Tex. App.—Fort Worth

2002) (overruling the Town’s issue and emphasizing that the landowner “did

unsuccessfully object to the [road] improvements condition at every administrative

level within the Town”), aff’d, 135 S.W.3d 620 (Tex. 2004), and Sefzik v. City of

McKinney, 198 S.W.3d 884, 895 (Tex. App.—Dallas 2006, no pet.) (rejecting city’s

waiver and estoppel defenses when developer objected to the condition imposed for

plat approval at every administrative level). Because a person who consents to

governmental action cannot validly assert a takings claim, Euro Car Tech’s inverse

condemnation claim must be dismissed.8 See Kirby Lake Dev., Ltd., 320 S.W.3d at 844;

Bauer, 2020 WL 7253430, at *4. Therefore, we sustain the City’s first issue.

8
While Euro Car Tech argues that its consent was coerced or involuntary, it

16
C. Estoppel

In addition to its inverse condemnation claim, Euro Car Tech alleged that

because it “relied on City agents” in opening its business under the issued Certificate

of Occupancy, the City should be “estopped from closing” its major auto repair

business without compensation. It pleads both equitable and quasi-estoppel against

the City. Similar to its argument about the takings claim, the City contends that it

should not be estopped from requiring Euro Car Tech to install a fence around the

property because Euro Car Tech agreed to the requirement and it has already installed

the fence.9

Equitable estoppel requires proof of five elements: (1) a false representation or

concealment of material facts; (2) made with knowledge, actual or constructive, of

those facts; (3) with the intention that it should be acted on; (4) to a party without

knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies

offers no evidence to support that allegation.
9
The City states that Euro Car Tech has “on information and belief” completed
installation of the fence. However, the City “recognizes that the record on appeal
does not include proof that Euro Car Tech has completed the fence and gate
installation.” In its reply brief, the City argues that Euro Car Tech has “implicitly
conced[ed] that the fence has been built” by Euro Car Tech’s statement in its brief
that it is asserting estoppel “even if the fence is now built at [Euro Car Tech’s]
expense.” Because there is no evidence in the record that the fence has been installed,
we do not consider this part of the City’s argument. See Quorum Intern. v. Tarrant
Appraisal Dist., 114 S.W.3d 568, 572 (Tex. App.—Fort Worth 2003, pet. denied) (“We
cannot look outside the record in an effort to discover relevant facts omitted by the
parties; rather, we are bound to determine this case on the record as filed.”).

17
on the representations. PDT Holdings, Inc. v. City of Dallas, 712 S.W.3d 597, 603 (Tex.

2025). “[W]hen equitable estoppel is invoked against a municipality, the case must be

an exceptional one in which ‘justice requires’ estoppel and its application must not

‘interfere[ ] with the exercise of . . . governmental functions.’” Id. (quoting City of

White Settlement v. Super Wash, Inc., 198 S.W.3d 770, 774 (Tex. 2006)); see City of Hutchins

v. Prasifka, 450 S.W.2d 829, 835 (Tex. 1970) (stating that, as a general rule, the doctrine

of equitable estoppel does not apply against a unit of government exercising its public

or governmental functions). Whether equitable estoppel applies is a question for a

court to decide. PDT Holdings, Inc., 712 S.W.3d at 603.

Ordinarily, the party asserting estoppel is required to establish the elements of

equitable estoppel. Saunders v. Hartley, No. 14-24-00575-CV, 2025 WL 2355814, at *7

(Tex. App.—Houston [14th Dist.] Aug. 14, 2025, no pet.) (mem. op.). However, in

some situations, courts will dispense with the need for showing all elements of formal

estoppel, thus applying a type of estoppel known as quasi-estoppel. Id.; Forney 921 Lot

Dev. Partners I, L.P. v. Paul Taylor Homes, Ltd., 349 S.W.3d 258, 268 (Tex. App.—Dallas

2011, pet. denied) (“Unlike equitable estoppel, quasi-estoppel does not require a

showing of a false representation or detrimental reliance.”). Quasi-estoppel precludes

a party from asserting, to another’s disadvantage, a right inconsistent with a position

previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex.

2000).

18
Here, as set out above, the evidence reflects that Euro Car Tech raised no

objection to building a fence around the property in order to receive the City’s

approval of the zoning change. And while Euro Car Tech complains that it had relied

on the “erroneously-issued” Certificate of Occupancy, Euro Car Tech had no

protected property interest in the “erroneously-issued” Certificate of Occupancy.10

See Cerkezi, 2024 WL 265873, at *3; see also Bd. of Adjustment for City of San Antonio v. E.

Cent. Indep. Sch. Dist., No. 04-14-00341-CV, 2015 WL 1244665, at *5 (Tex. App.—San

Antonio March 18, 2015, pet. denied) (mem. op.) (“Because the certificate of

occupancy was issued in violation of the ordinance, the certificate was void, and

Sarosh Management did not acquire any rights under the certificate.”); Swain v. Bd. of

10
Both Euro Car Tech and the City rely on PDT Holdings, Inc. in support of
their positions. 712 S.W.3d 597. In PDT Holdings, Inc., the Texas Supreme Court
examined whether estoppel was applicable where “city officials affirmatively told the
builder that 36 feet was the applicable height limit, issued an amended permit for that
height after inspecting the construction, and stated that the duplex was ‘OK TO
FINISH’ even after they identified the ordinance violation.” Id. at 600. In deciding
the issue, the court first noted that “[m]istaken actions by city officials generally will
not equitably estop the city from performing its governmental functions.” Id. It then
recognized that estoppel may be necessary “to prevent manifest injustice in
exceptional cases where a citizen relies on affirmatively misleading government
statements and suffers a substantial loss as a result.” Id. In ultimately finding estoppel
applicable, the court stated that “this is not a case involving a city official’s mere
mistaken issuance of a building permit or mistaken acquiescence in an ordinance
violation.” Id. at 607. Rather, the court noted that (1) there was evidence that the city
officials affirmatively misled the builder into constructing a noncompliant structure;
(2) there was evidence that the builder would be completely denied relief absent
estoppel; (3) there was evidence that the city’s affirmative misrepresentation would
result in permanent loss; (4) affirmative misdirection by the city overcame
constructive notice; and (5) the city did not act quickly in notifying the builder of the
ordinance in question. Id. at 607–08. Such “exceptional” facts are not present here.

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Adjustment of City of Univ. Park, 433 S.W.2d 727, 733 (Tex. App.—Dallas 1968, writ

ref’d n.r.e.) (holding permit issued in violation of ordinance was void ab initio and no

rights were acquired by the permit holder).

Moreover, the City’s building ordinance stated that “[i]ssuance of a Certificate

of Occupancy shall not be construed as an approval of a violation of the provisions of

this code or of other ordinances of the jurisdiction.” Arlington, Tex., Constr. Code

§ 4.14.C (2022). Almost identical language was found on the Certificate of

Occupancy issued to Euro Car Tech in 2018. In addition, the City’s building

ordinance provided that the “Building Official may, in writing, suspend or revoke a

Certificate of Occupancy . . . issued under the provisions of this Code whenever the

certificate is issued in error, or on the basis of incorrect information supplied, or when

it is determined that the building or structure or portion thereof is in violation of any

ordinance or regulation or any provision of this Code or other provisions of law.” Id.

§ 4.14.F.

Under the Certificate of Occupancy issued here, Euro Car Tech could acquire

no rights, and no estoppel would have been created. See City of Amarillo v. Stapf,

101 S.W.2d 229, 232 (Tex. [Comm’n Op.] 1937) (stating that the action of the

building inspector in granting a permit was unauthorized, the permit was void, and

“[u]nder such permit appellee could acquire no rights, and no estoppel would be

created”). Therefore, Euro Car Tech failed to assert a valid estoppel claim and

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thereby failed to waive the City’s immunity. Accordingly, we sustain the City’s second

issue.

D. Local Government Code Section 211.019

In its third issue, the City attacks Euro Car Tech’s claim under Local

Government Code Section 211.019, a statute that addresses nonconforming land use.

Specifically, the Section states that “[a] person using a property in a manner

considered to be a nonconforming use as a result of the adoption of or change to a

zoning regulation or boundary may continue to use the property in the same manner

unless required by a municipality to stop the nonconforming use of the property.”

Tex. Loc. Gov’t Code Ann. § 211.019(b). If a municipality requires a property owner

or lessee to stop the nonconforming use of a property, the owner or lessee is entitled

to recover certain damages. Id. § 211.019(d). A municipality’s immunity from suit

and governmental immunity from liability are waived for purposes of an action

brought under this Section of the Local Government Code. Id. § 211.019(p).

Here, however, there is no nonconforming land use as a result of the adoption

of or change to a zoning regulation or boundary. Our sister court has defined a

“nonconforming use of land” as a use that existed legally when the zoning restriction

became effective and has continued to exist even though no longer in compliance

with currently applicable restrictions. Anderton v. City of Cedar Hill, 447 S.W.3d 84, 89

(Tex. App.—Dallas 2014, pet. denied) (citing City of Univ. Park v. Benners, 485 S.W.2d

773, 777 (1972) and Black’s Law Dictionary 1540 (7th ed. 1999) for definition of

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“nonconforming use” as “land use that is impermissible under current zoning

restrictions but that is allowed because the use existed lawfully before the restrictions

took effect”). When determining whether there is a legal “nonconforming use” in a

particular case, the proper focus is on the legislative enactments of the regulation

body. Id. And the party claiming privilege to continue a “nonconforming use”—in

this case Euro Car Tech—bears the burden of proving its preexisting status. Id.

The evidence reflects that Euro Car Tech’s business was not a “nonconforming

use.” See Tex. Loc. Gov’t Code Ann. § 211.019(b). The ordinance at issue here,

Ordinance 96-111, was enacted in 1996. See Arlington, Tex., Ordinance 96-111

(Aug. 20, 1996). That ordinance changed the zoning to a “PD” or “Planned

Development,” continued the “Community Services” designation, and added a minor

auto repair use that was not otherwise permitted in this zoning. See Cerkezi, 2024 WL

265873, at *1. The zoning did not authorize major auto repair or used car sales.

See id.

Cerkezi offered jurisdictional evidence that he “operated [his] business under

the name Euro Car Tech” and used the property for major auto repair and used car

sales from 2018 until 2022. However, based on the zoning established by Ordinance

96-111, Euro Car Tech’s uses of the property for major auto repair and used car sales

were not legal uses when the zoning restriction became effective. See id. at *3. And

Euro Car Tech acquired no rights under the “erroneously-issued” Certificate of

Occupancy, as it was void. See id.; City of Amarillo, 101 S.W.2d at 232. Therefore, the

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use was not a “nonconforming use,” and Texas Local Government Code

Section 211.019 is inapplicable and will not support a claim. We therefore sustain the

City’s third issue.

IV. CONCLUSION

Having sustained the City’s three issues, we reverse the trial court’s order

denying the City’s motion and render judgment dismissing Euro Car Tech’s claims

against the City.

/s/ Dana Womack

Dana Womack
Justice

Delivered: January 8, 2026

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