City of Houston v. Norcini (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Higley)
(
unconstitutional taking - flood control ordinance, ripeness issue, denial of plea to the jurisdiction
affirmed)
We conclude that Norcini’s claims were ripe when he filed suit. See id. We hold
that the trial court properly denied the City’s jurisdictional challenge.  
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Laura Carter Higley     
Before Justices Jennings, Higley and Sharp   
01-09-00426-CV  The City Of Houston v. Bruce A. Norcini   
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge:
Hon. Linda Storey

O P I N I O N

     In 2006, the City of Houston (“the City”) amended its flood-control ordinances. Under the
amendment, new residential construction was severely restricted on property located in a floodway.
Appellee, Bruce A. Norcini, sued the City alleging that the 2006 amendment constituted an
unconstitutional taking of his property, which was in a floodway. Norcini claimed that the amendment
effectively deprived him use of his property and “drastically reduced” its value.

     The City filed a plea to the jurisdiction, asserting that the trial court lacked subject-matter
jurisdiction because Norcini’s claims were not ripe for adjudication. The trial court denied the City’s
plea. The City appeals, raising one issue.

     We affirm.

Background

     In 2003, Norcini was a principal owner of a company that purchased four lots in Shady Acres, a
Houston subdivision. The company subdivided the lots into eight residential lots, creating the
Savannah Manor subdivision. After obtaining building permits from the City, Norcini’s company built
and sold residences on three of the lots. In early 2006, Norcini acquired from his company two of the
remaining vacant lots (“the Property”), which he intended to sell “to a builder.”

     When Norcini acquired it, the Property was not in a floodway. In June 2006, the City adopted new
maps prepared by FEMA showing the location of floodways in Houston. The FEMA maps placed
Norcini’s newly acquired property in a floodway.           Also in 2006, the City amended its Code of
Ordinances (“Code”) to further restrict development within a floodway, as determined by the FEMA
maps. In particular, amended Code section 19.43(a)(2) prohibited the issuance of a permit for
“development to be located in any floodway . . . if that development provides for . . . [n]ew
construction, additions to existing structures, or substantial improvement of any structure within the
floodway . . . .” Houston, Tex. Code of Ordinances § 19-43(a)(2) (2006) (since amended).

     The ordinance provided an exception for the City Engineer to issue a permit “[f]or those facilities
necessary to protect the health, safety and welfare of the general public” or “for the construction of a
bridge or the repair or replacement of an existing bridge in a floodway[.]” Houston, Tex. Code of
Ordinances § 19-43(b),(c) (2006) (since amended). Relatedly, Code section 19-20 required that “[v]
ariances shall not be granted for development within any floodway if the development cannot meet the
requirements of 19-43(b) of this Code”; that is, development “necessary to protect the health, safety
and welfare of the general public.” Houston, Tex. Code of Ordinances § 19-20 (Ord. No. 2006-894)
(2006) (since amended); see Houston, Tex. Code of Ordinances § 19-43(b) (2006) (since amended).

     On August 9, 2007, Norcini sued the City alleging that, prior to the 2006 amendment, section 19-
43 allowed the City Engineer to issue permits for new construction within a floodway, notwithstanding
a restriction on issuing such permits. Norcini alleged that the 2006 amendment prohibited the
issuance of building permits for, inter alia, new construction and took away the City Engineer’s
discretion to issue such permits.

     Norcini asserted that the City’s 2006 amendment of section 19-43 constituted an unconstitutional
taking of his property under the federal and state constitutions. Specifically, Norcini alleged in his
petition,

The intentional act of the City of Houston in the enactment of the amendment to Section 19-43 of [the
Code] and its refusal to issue building permits as referred to [in the foregoing parts of the original
petition] has unlawfully deprived [Norcini] of the use, benefit and enjoyment of his Property and has
drastically reduced its value because [Norcini] can neither construct any improvement in or upon the
Property nor sell the Property to anyone who desires to construct any improvements in or upon the
Property.

     Norcini also alleged that he “is not required to exhaust administrative remedies prior to the
institution of this lawsuit because no administrative procedures have been established” by the City
“for the issuance of building permits on properties situated in the Floodways . . . .” Norcini claims that
“[t]he amendment to Section 19-43, as stated above, simply denies to Plaintiff the ability to secure a
building permit without any right to be heard by any administrative agency or body.”

     The City answered and filed a plea to the jurisdiction alleging that the trial court lacked subject-
matter jurisdiction because Norcini’s claim was not ripe. In its trial court briefing, the City contended,
“The claim that Houston’s ordinance effects a regulatory taking as applied to [Norcini’s] property is
unripe because [Norcini] did not apply for a permit or seek an exception.” The City continued, “[Norcini’
s] allegation depends on the extent, if any, to which he may be deprived of the economic use of this
particular piece of property. . . . [F]or a regulatory takings claim to be ripe there must be a final
decision regarding the application of the regulations to the property at issue.” In support of its plea,
the City offered the affidavit of the City Engineer, who testified that Norcini had not applied for a
permit.

     In his response, Norcini acknowledged that he had not applied to the City for a building permit
before filing suit. Footnote Norcini asserted that the 2006 ordinance interfered with “his investment-
backed expectations” to either “build a structure on the property” or “sell it to someone who desires to
do so.” Norcini pointed out that the two permitting exceptions found in the 2006 ordinance did not
apply to his intended use of the property and that no other exceptions or variances were provided in
the Code. Norcini summarized, “[T]his case is ripe for litigation because any application for a permit,
application for a variance or appeal from the denial of either would be a futile exercise that would only
waste the time and the resources of both [Norcini] and [the City].”

     Norcini supported his response with his own affidavit.

     The trial court denied the City’s plea to the jurisdiction. The City filed this interlocutory appeal,
seeking reversal of the trial court’s denial of its jurisdictional challenge.

Standard and Scope of Review

     A plea to the jurisdiction seeks dismissal of a cause based on lack of subject-matter jurisdiction.
Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Whether a court has subject-matter
jurisdiction and whether a plaintiff has affirmatively demonstrated subject-matter jurisdiction are
questions of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004). In deciding a plea to the jurisdiction, we may not weigh the merits of the plaintiff’s
claim, but must consider only the plaintiff’s pleadings, construed in favor of the plaintiff, and the
evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555
(Tex. 2002). We must take as true all evidence favorable to the a plaintiff and “indulge every
reasonable inference and resolve any doubts in [his] favor.” Miranda, 133 S.W.3d at 228.

Analysis: Ripeness of Norcini’s Takings Claims

A.      Relevant Legal Principles

     The Texas Constitution provides that “[n]o 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.” Tex. Const. art. I, § 17. Similarly, the Fifth Amendment’s Just Compensation
Clause provides that “private property [shall not] be taken for public use without just compensation.” U.
S. Const. amend. V. The Just Compensation Clause applies to the states by operation of the
Fourteenth Amendment. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998).

     Takings are classified as either physical or regulatory. Id. A physical taking is an unwarranted
physical appropriation or invasion of the property. See id. A compensable regulatory taking can occur
when a governmental agency imposes restrictions that either deny a property owner all economically
viable use of his property or unreasonably interferes with the owner’s right to use and enjoy the
property. Footnote Id. at 935; Taub v. City of Deer Park, 882 S.W.2d 824, 826 (Tex. 1994).

     “Inverse condemnation occurs when (1) a property owner seeks (2) compensation for (3) property
taken for public use (4) without process or a proper condemnation proceeding.” Villarreal v. Harris
County, 226 S.W.3d 537, 541 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see City of Abilene v.
Burk Royalty Co., 470 S.W.2d 643, 646 (Tex. 1971). To state a cause of action for inverse
condemnation under the Texas constitution, a plaintiff must allege (1) an intentional governmental act,
(2) that resulted in his property being taken, damaged, or destroyed, (3) for public use. Gen. Servs.
Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001).

     The City asserts that the trial court does not have subject-matter jurisdiction because Norcini’s
takings claims are not ripe for adjudication. Ripeness is a threshold issue that implicates subject-
matter jurisdiction. Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998). While the
jurisdictional issue of standing focuses on who may bring an action, ripeness focuses on when that
action may be brought. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000).

     Ripeness concerns whether, at the time a lawsuit is brought, the facts have developed sufficiently
such that an injury has occurred or is likely to occur, rather than being contingent or remote.
Patterson, 971 S.W.2d at 442. To establish that a claim is ripe based on an injury that is likely to
occur, the plaintiff must demonstrate that the injury is imminent, direct, and immediate, and not merely
remote, conjectural, or hypothetical. Gibson, 22 S.W.3d at 852. By focusing on the concreteness of
injury, the ripeness doctrine allows a court to avoid premature adjudication and issuance of advisory
opinions. Id.

B.      Concrete Injury

     On appeal, the City contends that Norcini has not alleged that he suffered a “concrete injury.”

     In his petition, Norcini alleged that he had been deprived of the “use, benefit and enjoyment of his
property” because he “can neither construct any improvement in or upon the Property nor sell the
Property to anyone who desires to construct any improvements in or upon the property.”

     Norcini supported his response to the City’s jurisdictional challenge with his own affidavit
testimony. In the affidavit, Norcini testified that, in 2003, he owned fifty percent of a company that
purchased four residential building lots in Shady Acres, a Houston subdivision. Norcini’s company
subdivided these lots into eight residential building lots. After subdividing the lots, Norcini’s company
then “secured building permits from the City of Houston and built and sold three residences on three
of the lots.” In early 2006, Norcini “personally acquired” two of the remaining lots from his company.
Norcini testified that he “intend[ed] to sell [the lots] to a builder.”

     Norcini further averred that he had “made inquiries of the City of Houston as to whether it would
issue building permits for the two lots referred to above . . . .” Norcini continued that he was “told that
the City of Houston would issue no permits for the construction of any structure of any kind or nature
on those lots, stating, as its reason, Chapter 19 of its Code of Ordinances.” Norcini testified that “[r]
epresentatives of the City of Houston have repeatedly told me that I can secure no permits to
construct any improvement on the property . . . .” Norcini also testified that he had placed for sale
signs on the Property but “no one has expressed an interest in purchasing those lots and I can use
them for no other purpose.”

     Relying on Waco Independent School District v. Gibson, the City alleges,

In the absence of any concrete plan for development or renovation on the Property, or even any
application that would allow the City, in the first instance, to determine that the Property lies within a
floodway to which the Ordinance applies, there is at best an abstract, hypothetical and remote
dispute, which the ripeness doctrine precludes from being litigated.

See 22 S.W.3d at 852 (“A case is not ripe when determining whether the plaintiff has a concrete injury
depends on contingent or hypothetical facts, or upon events that have not yet come to pass.”). The
City further contends, “Because Norcini still owns his property, and has not alleged that he had a
specific plan or even a time line for developing or selling the Property when the 2006 Amendment was
enacted, Norcini failed to ripen his claim.” Footnote

     The record does not support the City’s contention. We are mindful that, in addition to viewing
Norcini’s allegations in his favor, we must take as true all evidence favorable to Norcini and “indulge
every reasonable inference and resolve any doubts in the [his] favor.” See Miranda, 133 S.W.3d at
228. Viewing the record through this prism, Norcini has alleged a “concrete injury.”

     Norcini alleged that his property was in a Houston floodway. He also alleged that the 2006
amendments deprived him of the “use, benefit, and enjoyment” of the Property because he could not
sell it to anyone who desired “to construct any improvements in or upon the property.” Norcini testified
in his affidavit that he intended to sell the Property to a builder, indicating that, contrary to the City’s
contention, Norcini had a definitive plan for the Property, which Norcini alleged was effectively
destroyed by the enactment of the 2006 amendment. Footnote

     The definitive, as opposed to hypothetical or contingent, nature of Norcini’s plan for the Property
can also be reasonably inferred from Norcini’s testimony regarding his historical involvement with
developing the Property. Norcini testified that his company purchased and subdivided four lots into
eight lots, creating a new subdivision, which included the two lots at issue. Norcini testified that his
company built and sold residences on three of these newly created lots. Norcini personally acquired
two of the remaining vacant lots in the subdivision from his company. The acquisition occurred only a
few months before the City enacted the 2006 amendments, which effectively prohibited the
construction of residential improvements on the Property.

     Norcini also provided affidavit testimony that he had inquired with the City whether building permits
would be issued for the Property, and was informed no permits would be issued. Norcini’s testimony
further indicated that he had taken affirmative steps to sell the Property.

     Considering Norcini’s allegations and jurisdictional evidence as we must, we conclude that Norcini
has alleged a “concrete injury.” Footnote

C.      Futility Exception

     The City also contends that Norcini’s claim is not ripe because he did not apply for a building
permit, seek a variance, or request any other type of regulatory relief from the ordinance’s
restrictions. The City relies on the legal principle that a regulatory takings claim is not ripe until there
is a final decision by the regulatory agency regarding the application of the regulations to the property
at issue. Citing Mayhew, the City contends that a determination whether Norcini’s property has been
taken or impaired cannot be made until the City has denied Norcini’s application for a permit or a
variance. See Mayhew, 964 S.W.2d at 929–30.

     Norcini responds that applying for a permit or seeking a variance would have been futile because,
under the subject Code provisions, the City or its agencies had no discretion to issue a building
permit or variance for the Property. Norcini correctly points out that this Court has held that the futility
exception applies to the 2006 flood-control provisions at issue here. See City of Houston v. Noonan,
No. 01-08-01030-CV, 2009 WL 1424608, at *5 (Tex. App.—Houston [1st Dist.] May 21, 2009, no pet.)
(mem. op.); City of Houston v. O’Fiel, No. 01-08-00242-CV, 2009 WL 214350, at *5 (Tex. App—
Houston [1st Dist.] Jan. 29, 2009, pet. filed) (mem. op.).

     As in this case, the plaintiffs in Noonan and O’Fiel alleged that the 2006 flood-control provisions
prohibited them from constructing a residential improvement on property located in a Houston
floodway. Noonan, 2009 WL 1424608, at *1–2; O’Fiel, 2009 WL 214350, at *1–2. We held that the
plaintiffs’ claims were ripe even though they had not sought or obtained a final decision regarding
whether a permit or variance would be issued for the construction of residential improvements on the
subject property. See Noonan, 2009 WL 1424608, at *5; O’Fiel, 2009 WL 214350, at *5–6. We
recognized that, because no City agency had discretion to issue a permit or a variance under the
2006 flood-control provisions, it would be futile for a landowner to apply for a building permit or to
seek a variance to construct a residential improvement on property located within a Houston floodway.
See Noonan, 2009 WL 1424608, at *5; O’Fiel, 2009 WL 214350, at *5.

     Our holdings in O’Fiel and Noonan control here. There are no meaningful distinctions between the
claims alleged here and those alleged in Noonan and O’Fiel. Thus, for the reasons stated in Noonan
and O’Fiel, we conclude that Norcini’s takings claims are ripe even though he did not formally apply
for a building permit or seek a variance regarding the subject property. See Noonan, 2009 WL
1424608, at *5; O’Fiel, 2009 WL 214350, at *5.

D.      2008 Amendment

     Lastly, the City contends that Norcini’s claims are “incapable of ripening” because the City Council
amended Code section 19-43 in 2008. The 2008 amendment provides the City Engineer with some
discretion to issue building permits for development of vacant land within floodways, if certain criteria
are satisfied. See Houston, Tex. Code of Ordinances Houston, Tex ., Ordinance 2008-658 (July 23,
2008) (codified at Houston, Tex. Code of Ordinances § 19-43 (2009)).

     The City made this same argument in Noonan. See 2009 WL 1424608, at *6. We explained that,
because Noonan’s claims under the 2006 amendment were ripe when he filed his suit, the 2008
amendment was irrelevant. See id. Similarly, Norcini’s claims under the 2006 amendment were ripe
when he filed suit in August 2007. Thus, the 2008 amendment is “irrelevant” to the ripening of Norcini’
s claims arising from the 2006 amendment. Footnote See id.

Conclusion

     After viewing his allegations favorably, accepting his evidence as true, indulging every reasonable
inference from his evidence, and resolving any doubts in his favor, we conclude that Norcini has
alleged a concrete injury. See Miranda, 133 S.W.3d at 228. In addition, we conclude that Norcini was
not required to apply for a building permit or to seek a variance for his claims to ripen. Given the
provisions of the 2006 amendment, seeking a permit or variance would have been futile. See Noonan,
2009 WL 1424608, at *5; O’Fiel, 2009 WL 214350, at *5. Finally, the 2008 amendment has no
relevance to whether Norcini’s claims under the 2006 amendment are ripe. See Noonan, 2009 WL
1424608, at *6. We conclude that Norcini’s claims were ripe when he filed suit. See id. We hold that
the trial court properly denied the City’s jurisdictional challenge.

     We overrule the City’s sole issue. We affirm the trial court’s order denying the City’s plea to the
jurisdiction.

                                                        
Laura Carter Higley

                                                        Justice