Texas Supreme Court holds procedural ordinance does not form the basis for a takings claim.


City of Houston v Carleson, et al., 13-0435 (Tex. December 19, 2014)

This is an inverse condemnation case where the Texas Supreme Court agreed with the trial court that the property owners failed to properly allege a taking.

Park Memorial was a condominium complex located in the City which was in disrepair. Some of the owners wanted to market and sell the entire complex for redevelopment while others refused to sell. The City’s concern was the structural safety, especially after an investigation revealed the underground parking facility might fail posing serious harm to people and properties. After the investigation the  City declared the structure unsafe for habitation and ordered all occupants to vacate. In separate litigation, 16 property owners obtained judicial review which reversed the order to vacate for a lack of due process. That litigation was not appealed and became final. The complex was later sold for redevelopment. The same 16 property owners then brought this case asserting the order to vacate resulted in a taking of their property for the years of lost use during the pendency of the due process litigation. The City sought a plea to the jurisdiction which the trial court granted but the court of appeals reversed. The Texas Supreme Court granted review.

The Supreme Court began by reiterating the cherished importance of the property right to own a home. It then noted that government has other obligations as well which sometimes outweigh individual property owner rights. The Plaintiffs did not contest any of the City’s property-use restrictions. They did not argue the ordinances were unreasonable. They simply objected to the penalty imposed (order to vacate) as a basis for the taking. What they challenge is a procedural aspect, which was addressed in the separate ligation. Neither the U.S. Supreme Court nor the Texas Supreme Court has ever recognized a taking based purely on a procedural regulation. In other words, procedural regulations should be addressed through due process challenges, not regulatory taking challenges. All of the property owner’s offered support is not based on procedural regulations alone, but are all tied, in some fashion, to a physical taking or land-use restriction. Accordingly, where a party objects only to the “infirmity of the process,” no taking has been alleged. Further, it is immaterial that the city may have been mistaken regarding the actual safety of the complex. Even assuming the city made a mistake, the respondents’ allegations would amount to nothing more than a claim of negligence on the part of the City for which it is immune. No taking was plead and the plea should be granted.

The short concurring opinion starts by noting that while no taking may have occurred the City “acted rather shabbily toward its citizens” in this case. As a result, it is no wonder they ran afoul of the due process clause and that “Houstonians deserve better.”  However, that alone does not constitute a taking.

If you would like to read this opinion click here. Opinion by Justice Brown.  If you would like to read the concurring opinion by Justice Willett which Justice Devine joined click here. The docket page with attorneys listed can be found here.

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