Billboard company can sue for inverse condemnation even though it failed to exhaust admin remedies

City of Grapevine and Grapevine Board of Adjustment v. CBS Outdoor, Inc., 02-12-00040-CV (Tex. App. – Fort Worth, September 19, 2013).

The City of Grapevine and its Board of Adjustment appealed the order denying its plea to the jurisdiction relating to an appeal from a BOA decision on an outside advertising billboard. After the Second Court of Appeals originally reversed the denial in an earlier opinion, CBS requested a rehearing and rehearing en banc. The court denied both requests, but withdrew the prior opinion and issued this one.

The State of Texas condemned property along Highway 114 for an expansion. The CBS billboard support pole was not located on the condemned property, but aerially encroached over the property so the State included CBS in the condemnation suit. The billboard was non-conforming and grandfathered, but therefore could not be altered, remodeled, etc. without losing its grandfather status under City regulations. The City denied CBS’ request to shift the sign out of the encroachment but CBS did it anyway asserting it was merely performing maintenance. The City ordered CBS to remove the sign and CBS filed for a variance with the BOA which denied the request.   CBS appealed to district court but also brought requests for injunctive relief, inverse condemnation, constitutional challenges and a variety of other claims. The trial court denied the City’s plea to the jurisdiction as to all claims.

The court first went through an analysis of whether CBS timely appealed since it appealed the variance denial, not the denial of the shifting of the sign. The City asserted the shifting decision had to be appealed since it informed CBS it could not alter the sign without losing grandfathered status. The prior opinion agreed with the City’s characterization and was a point of contention in CBS’ motion for rehearing. The court clarified its holding that when the City denied the request to shift the sign, it did not say “we deny your request to shift the sign” it said “you cannot move, alter, or adjust the sign.”  Failing to appeal that decision, with is broader terms and determinations, CBS is now prevented from filing another request in an attempt to revive the lapsed deadline. Further, since the trial court lacks jurisdiction for judicial review of the BOA order (denying shifting) it also lacks jurisdiction for injunctive relief.

However, the court held since the appeal from the BOA could not have mooted an inverse condemnation claim it did not have to be exhausted before filing such a claim. [Personally, I think that’s contrary to the spirit of the Supreme Court’s holding in Dallas v Stewart, even though the court tried to distinguish it]. Further, even though the State condemned the property, its regulations would have allowed the sign to be shifted and it was the City’s regulations which prevented shifting.  The court next went through a flip-flop analysis but ultimately held the trial court lacked jurisdiction over CBS’ due process claims.  CBS’ claim for declaratory relief is nothing more than a recast of its appeal from the BOA, which is barred.  Finally, the City retains immunity from a claim for attorney’s fees. In the end, the court sustained the denial of the inverse condemnation claim (and remanded for trial) and dismissed all other claims.

If you would like to read this opinion click here.