JudicialLocal NewsCity of Kemah’s Seizure of Local Food Truck Draws Federal Lawsuit

Plaintiffs say officials from the City of Kemah illegally entered the property and seized a food truck without warning in violation of Fifth Amendment Rights.
January 24, 2022
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Following months of contentious negotiations over permits, a business owner says the City of Kemah illegally entered his property without warning and seized a food truck. He is now suing the city in federal court for violations of the takings, due process, and equal protection clauses of the U.S. and Texas Constitutions.

A private property that includes a local bar known as “Palapa” and two residential units had been operating as a mixed-use property under city permits in the popular Texas tourist destination since about 1992, but in February of 2021 T&W Holding Company owned by Matthew Placek purchased the property and an accompanying mobile food truck.

After last February’s Winter Storm Uri wreaked havoc on Palapa’s building, the city allowed Palapa’s owners and other local businesses to proceed with repairs to broken water and sewage lines without permits, but also granted Placek an emergency work order for further repairs.

Initially, negotiations were congenial according to court filings, and in March Placek and Palapa’s general manager Walter Wilson met with city officials then-mayor Terri Gale, city administrator Walter Gant, and building code administrator Brandon Shoaf, to discuss repair and renovation plans, during which none of the city officials expressed any concerns about the plans. Plaintiffs say Shoaf even recommended directly connecting plumbing and electricity to the food truck to use as a kitchen.

Shoaf also allegedly inspected the work on a concrete slab and approved permitting on April 6.

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However, on April 14, Shoaf returned to the property and told Wilson he would need another permit for a ground-level wooden deck under construction, and later that day Shoaf issued a stop work order.

Although plaintiffs say there is no ordinance in the city’s code requiring a permit for such a deck, Wilson later went to city hall to pay the fee, but Shoaf said Palapa’s must submit new drawings and plans for the deck. On April 20, Wilson says he returned to submit engineering drawings and plans along with a permit fee, but Shoaf refused to accept the application.

Days later Shoaf sent a letter to Wilson stating that the food truck could not operate between 2 and 6 a.m. and could not be parked on the location for more than a 24-hour period. Plaintiffs say Shoaf did not cite any city code and they do not believe there are any such restrictions.

According to the lawsuit, on April 29, the City of Kemah posted a notice saying there was no permit on file for the food truck and instructed owners to “please remove by 4/30/2021.” Also on that day, the city issued a new stop work order saying that the Galveston County Health District would not be issuing a “Food Establishment Permit” for the Palapa property. City officials then also refused to issue certifications of occupancy for the residential portions of the property since they claimed there had been a “change of occupancy type.”

Plaintiffs say they ceased work on property renovations and continued to negotiate with the city for permits to use the food truck and residential portions, but on the morning of October 11, city officials entered the property and seized the food truck without any advance notice. 

“Towing the truck off of private property is truly an outrageous action by the city that they had no authority to do,” plaintiffs’ attorney Brian Kilpatrick told The Texan

Kilpatrick notes that while permits are required to operate a food truck, there are no requirements in Kemah city ordinances prohibiting the storage of the truck. Furthermore, even if Palapa had been operating the food truck without a permit, city code states that owners can be fined, but there is no language calling for the seizure of property.

“There are provisions in the law for what is considered a non-consent tow, but advance notices are required, and the City of Kemah did not provide these. However, there are not even legal grounds for them to have towed this vehicle,” Kilpatrick continued.

“The city did not have a legal right to enter the property much less to take private property.”

Although plaintiffs sent a demand for the immediate return of the truck on November 16, 2021, they say the city has not responded. 

Kemah, with its residential population of 2,037, has been mired in controversy over the past few years with investigations into activities undertaken by former mayor Matt Wiggins and accusations of at least one council member not paying property taxes. A highly contentious three-way mayoral election in the spring of 2021 between then-incumbent Terri Gale and former mayors Wiggins and Carl Joiner drew multiple complaints and lawsuits, even after Joiner won the race. 

Last August, Texas Rangers arrested Wiggins on felony charges of abuse of official capacity of office while he presided over the Kemah area water district. 

The City of Kemah has declined requests for comment citing pending litigation. 

Until recently, claims over unconstitutional takings of property had to first be examined in state courts, but the Supreme Court’s 2019 ruling in Knick v. Township of Scott says that immediately after taking of property the case is ripe for federal court.

Filed in the U.S. District Court in Galveston, the case is pending before Trump appointed Judge Jeffrey V. Brown. 

The city had been served with the lawsuit and has until February 8 to respond. Kilpatrick says he is working to move forward with a preliminary injunction hearing as soon as possible.

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Holly Hansen

Holly Hansen is a regional reporter for The Texan living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.