law-regulatory-taking | condemnation and eminent domain | land use zoning regulation |
REGULATORY TAKING
The Texas Constitution expressly prohibits the State from taking one’s property under its
sovereign powers without consent or adequate compensation. TEX. CONST. art. I, § 17. A
property interest must find its origin in some aspect of state law. Spring Branch I.S.D. v. Stamos,
695 S.W.2d 556, 561 (Tex. 1985); see also Bishop v. Wood, 426 U.S. 341, 344-46, 96 S. Ct.
2074, 2077–78 (1976) (holding that state law determines which state-created interests constitute
property). To raise a valid regulatory takings claim, a plaintiff must establish that a regulation has
either (1) destroyed all economically viable use of his property or (2) unreasonably interfered with
the use and enjoyment of his property. Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d
660, 671 (Tex. 2004); Taub v. City of Deer Park, 882 S.W.2d 824, 826 (Tex. 1994); TCI W. End,
Inc. v. City of Dallas, 274 S.W.3d 913, 917 (Tex. App.—Dallas 2008, pet. denied). A plaintiff
must also establish that he has an ownership interest in the property. See Sheffield, 140 S.W.3d
at 671.
A regulatory-takings claim may challenge a land-use restriction on its face or as applied to particular
property. Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 494, 107 S. Ct. 1232, 1246
(1987) (recognizing “an important distinction between a claim that the mere enactment of a statute
constitutes a taking and a claim that the particular impact of government action on a specific piece of
property requires the payment of just compensation”); City of Corpus Christi v. Pub. Util. Comm’n, 51 S.W.
3d 231, 247 (Tex. 2001). A facial challenge is ripe when the restriction is imposed, but an as-applied
claim is not ripe until the regulatory authority has made a final decision regarding the application of the
regulation to the property. Yee v. City of Escondido, 503 U.S. 519, 533-34, 112 S. Ct. 1522, 1531-32
(1992); Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186, 105 S. Ct. 3108,
3116 (1985).
City of Houston v. HS Tejas, Ltd. (Tex.App.- Houston [1st Dist.] Oct. 22, 2009)(Massengale)
(inverse condemnation, regulatory takings claim, plea to the jurisdiction proper, ripeness issue,
opportunity to amend)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER
PROCEEDINGS: Opinion by Justice Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-09-00393-CV City of Houston v. HS Tejas, Ltd
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Jacqueline Lucci Smith
City of Houston v. O'Fiel, No. 01-08-00242-CV, 2009 WL 214350 (Tex. App—Houston [1st Dist.] Jan. 29,
2009, pet. filed)(Hanks) (regulatory taking, flood zone land use, ripeness doctrine)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Jennings, Hanks and Bland
01-08-00242-CV The City of Houston v. John O'Fiel and Mary Jane O'Fiel
Appeal from Co Civil Ct at Law No 1 of Harris County
Trial Court Judge: Hon. R. Jack Cagle
CLAIMS AND DEFENSES IN TEXAS COURTS | INDEX TO HOUSTON CASE LAW PAGES |
TEXAS COURT OF APPEALS OPINIONS
HOUSTON OPINIONS HOME PAGE