November 6, 2015
The right to keep and bear arms is, to say the least, a hot-button issue. Gun cases have reached the U.S. Supreme Court twice in the past seven years. Most recently, in 2010, the high court ruled that an individual’s constitutional right to possess a firearm considerably diminishes the authority of local governments to enact restrictive legislation.
But what happens when localities head in the other direction—accommodating the lawful use of guns? When two Texas communities decided to host a firing range on public property they had recently acquired, their plan stirred up a different kind of challenge.
Harold and Rosealice Trant entered into an option contract with the cities of Bryan and
College Station, giving the municipalities the right to purchase approximately 382 acres of land in Grimes County. The terms included a provision stating that “[the Cities] contemplate using the Property as a ... Landfill.” The cities subsequently purchased the property, and the parties executed deed, which incorporated the provisions in the option contract. The cities and the Trants also signed an easement agreement giving the Trants non-exclusive access to their land adjacent to the property.
The cities then formed the Brazos Valley Solid Waste Management Agency (“Agency”) a governmental entity that currently operates a landfill on the property. In 2014, the Trants learned that the cities had decided to put a firing range on a portion of the property near their land. The Trants sent a letter to the cities and the Agency, contending that the property could be used only as a landfill. Legal counsel for the Agency responded by letter that while the option contract contemplated an intended use of the property as a landfill, the contract did not restrict the cities’ use of the property to such purpose.
Forcing the issue, the Trants filed suit for breach of contract and fraudulent inducement. They contended that the cities made false representations to them as to the intended use of the property to induce them into selling. Oddly, however, the Trants named as a defendant only the Agency and not the cities. The lawsuit sought monetary damages and an injunction preventing the Agency from using the property as a gun range. The Agency filed a response seeking dismissal of the suit, and the trial court so ordered. On appeal, the Trants challenged the trial court’s order by raising nine distinct issues. In affirming the lower court ruling, the three-judge appellate panel spurned all of the Trants’ arguments, but the use restriction drew the most attention from the court.
The Trants asserted that they could enforce against the Agency the restrictive use covenant in the deed and easement agreement. They claimed that the deed included a restrictive use covenant allowing the land to be used only as a landfill. However, nothing in the documents indicates that the Trants retained a possessory interest in the property contingent on the cities' using it as a landfill. “The only language referencing any use of the property ... merely reflects how the cities anticipated using the property -- the Cities did not agree to use the property only
as a landfill,” the appellate opinion noted. [Emphasis supplied] “We may not enlarge the words of the contract.”
The Trants further argued that the Agency had violated restrictive use covenants in the easement agreement by "authorizing its contractors, agents, employees, licensees and/or lessees to use the easement... to operate and access its landfill and [having] surveyors staking off the 'firearm range.'" The Trants claimed that under the easement agreement, the public is not allowed "to use the Easement Property for any purpose."
Under the easement agreement, “the cities granted the Trants the ‘non-exclusive right to use [an] existing gravel road ... for pedestrian and vehicular ingress and egress’ to the Trants' property adjacent to the cities' property,” the court observed. However, the opinion continued, the cities reserved “the right to use all or part of the Easement ... solely for the purposes of use, occupancy, operations, development and ingress to and from [the Cities' property] and the right to convey to others the right to use ... the Easement in conjunction with [the Trants' property], as long as such further conveyance is limited to the use, occupancy, operation, development and ingress to and egress from the [Cities' property] and is subject to the terms of this agreement.”
Construing the easement agreement as a whole, the appeals court reached the following conclusions: (1) the Trants' right to use the easement was non-exclusive; (2) the cities reserved the right to use the easement and could convey that right to others; (3) the cities declined to grant public access to the easement, but the agreement does not require the Cities to limit future access of the easement by the public; and (4) nothing in the agreement prevents the cities from authorizing others "to use the easement... to operate and access [the] landfill" and to stake off a firearm range.”
Trant v. Brazos Valley Solid Waste Management Agency, Inc., Tex. App., 14th Dist., No. 14-14-00507-CV, Sept. 29, 2015.
Barry Shanoff is a Bethesda, Md., attorney and general counsel of the Solid Waste Association of North America.