Trial court properly dismissed subsequent purchaser’s TTCA and Takings claims after City demolished house

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Jorge Rodriguez v. City of Fort Worth, 07-16-00037-CV (Tex.App. – Amarillo, December 8, 2017)

This is a takings/condemnation and TTCA case where the Fort Worth Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Prior to Rodriguez’s ownership of a residential structure, the City’s Building Standards Commission found it to be substandard and hazardous to public health. A copy of the order was mailed to the then owner and filed in the deed records of Tarrant County on October 19, 2012.  Rodriguez purchased the property on December 12, 2012, without personal knowledge of the Commission’s order, but the court found Rodriguez possessed constructive knowledge due to the filing in the deed records. The property was demolished on June 28, 2013 by a contractor hired by the City.   Rodriguez brought suit, alleging the City intentionally destroyed the building (takings) or negligently destroyed it under the Texas Tort Claims Act. The City filed a plea to the jurisdiction which the trial court granted. Rodriguez appealed.

As to Rodriguez’ tort claims, nothing in the record shows City employees were involved with the demolition by “operating” or “using” motor-driven vehicles or equipment or by exercising any control over the independent contractor or its employees. No City owned motor-driven vehicles or equipment were used in the demolition.  As a result, the City has not waived its immunity under the Texas Tort Claims Act. As to Rodriguez’ takings claim, Rodriguez did not allege any facts demonstrating that demolition of his property was for public use.  The improvements on the property were found to be substandard and hazardous to public health; however, the owner was given the opportunity to bring those improvements up to code in order to prevent their demolition. When the owner failed to comply, the City removed the public health hazard. As such, Rodriguez’s claims do not allege a constitutional takings.   Rodriguez also asserted he requested leave to amend his pleadings and was denied. However, Rodriguez was given and took advantage of two prior amendments to address the City’s plea and supplemental plea. Because Rodriguez had a reasonable opportunity to amend he cannot now complain about being deprived of an opportunity to amend.  Furthermore, even if Rodriguez were afforded an opportunity to amend his live pleading indicates incurable defects – specifically, the use of an independent contractor of the tort claims and lack of a public purpose for takings. As a result, the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, Justice Campbell and Justice Pirtle.  Memorandum Opinion by Justice Pirtle. The attorney listed for Rodriguez is Timothy E. Brown.  The attorney listed for the City is Harvey L. Frye.

Texas Supreme Court holds general law city cannot extend building codes into ETJ

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Town of Lakewood Village v Bizios, 15-0106 (Tex. May 27, 2016)

This is an interlocutory appeal from a temporary-injunction order regarding whether a Type A general-law municipality has authority to enforce its building codes and building-permit requirements within its extraterritorial jurisdiction (“ETJ”). The Texas Supreme Court held it could not.

The Town’s ETJ encompasses part of the Sunrise Bay subdivision (the “Subdivision”). Harry Bizios purchased a lot in the Subdivision which is located entirely within the Town’s ETJ. The Town’s ordinances adopt building codes and make them enforceable within its ETJ. Bizios obtained all permits from the County and all other entities except the Town. The Town filed this suit after Bizios ignored its orders to stop construction. The trial court granted the Town’s injunction but the Court of Appeals reversed holding the Town did not have the legal authority to enforce its building codes in the ETJ.

The Texas Supreme Court first determined it had jurisdiction to hear the case since the Town presented an inconsistent opinion and split in the courts of appeals on the subject.  Next the Court went into an analysis of the differences between a general law and home-rule municipality. The Court held without statutory authority, a general law municipality cannot extend its building codes into the ETJ. Texas Government Code §§212.002 and 212.003 allow the extension of certain ordinances in to the ETJ that deal with plats and subdivisions. However, after a lengthy discussion of statutory construction principles, the Court held “building codes” do not relate to plats and subdivisions so cannot be part of that extension. The Court went through several other statutory references and determined none provide authority for a general law city to extent building codes into the ETJ. Additionally, the Court rejected the Towns’ argument that it had implied authority to extend such codes. Finally, the Court discounted the public policy arguments by holding “[w]e cannot judicially confer authority on general law municipalities, even if we believe there are compelling public policy reasons for doing so. We must leave that choice to the policymaking branch of government.” As a result, the Town cannot legally extend building codes into the ETJ.

Justice Boyd delivered the opinion of the Court.  The docket page with attorney information can be found here.

Ordinance 30 day limitation to appeal BOA determination was not a statutory prerequisite, so trial court retained jurisdiction of takings claim

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Nancy Wedgeworth v. City of Amarillo, et al. 07-15-00301-CV (Tex. App. – Amarillo, May 17, 2016)

This is a structural standards case where the Amarillo Court of Appeals reversed the trial court’s granting of a plea to the jurisdiction.

Wedgeworth owned a house which was damaged by fire. The property was vacated and two years later the City informed Wedgeworth she had two months to repair the structure. The City posted the property for condemnation.  The City Council conducted a hearing at which Wedgeworth appeared and declared the structure a public nuisance. The City demolished the structure three months later. After demolition, Wedgworth sued alleging a takings claim. The City filed a plea to the jurisdiction asserting Wedgeworth did not appeal the demolition resolution to district court within 30 days as she was entitled to, therefore she did not exhaust her administrative remedies. The trial court granted the City’s plea and Wedgeworth appealed.

The Court of Appeals first determined its own jurisdiction noting that the City was served but not all defendants were served. This gives the appearance the order was interlocutory. However, the court held there was no indication (other than the petition) that Wedgeworth intended to proceed against the unserved individuals, so the court treated those claims as abandoned. Therefore, the order granting the plea is final and appealable. Next, even under a takings claim, immunity from suit is not waived by a governmental unit until a claimant complies with all statutory prerequisites to suit. See Tex. Gov’t Code § 311.034 (West 2013). However, the thirty-day window to file suit and challenge the Council’s determination is created by ordinance and does not qualify as a statutory prerequisite. Therefore, the trial court was not deprived of its jurisdiction and the plea should not have been granted as to those defendants who had entered an appearance.

If you would like to read this opinion click here. Panel: Justice Campbell, Justice Hancock and Justice Pirtle. Memorandum Opinion by Justice Campbell.  The attorney listed for the City is Bryan McWilliams.  Wedgeworth appeared pro se.

City entitled to civil penalties for zoning code violations says Dallas Court of Appeals

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Texas West End, Inc v. City of Dallas, Texas Historical Commission 05-11-00582-CV (Tex. App. – Dallas, March 9, 2016)

This is a civil enforcement case which is on remand from the Texas Supreme Court. After analyzing the case based on the Supreme Court’s order, the Dallas Court of Appeals switched its prior holding and upheld the award of civil penalties issued by the trial court. This is a long case with a lot of statutory construction involved. The main thing to take away is that the City can receive civil penalties for non-compliance with zoning ordinances such as those applicable in a historic overlay district.

The central issue is whether the City of Dallas may recover civil penalties from TCI West End, Inc. based on TCI’s demolition of the MKT Freight Station without prior approval. According to the City, prior approval of the landmark commission was required by city ordinance. The Dallas Court of Appeals original opinion held, among other things, the civil penalty provision for health and safety violations did not apply to zoning ordinances. The Texas Supreme Court disagreed, holding that the penalty provision could be applied.

TCI attempted to avoid enforcement in a variety of ways and arguments, mostly of technical challenges to ordinance wording. TCI would have the court read the cited case law “.. to mean that every requirement pertaining to ordinances, regardless of the language used in the requirement, must be rigidly performed or the ordinance is invalid.”  The court expressly declined to do so. The fact the City did not file a structure list with the County before enforcing the ordinance does not mean the ordinance is not effective. Using statutory construction principles, the court held the express language of the ordinance does not make enforceability contingent upon such a filing. TCI next contended the ordinance does not require landmark commission approval for demolition unless the building sought to be demolished is a “contributing structure.” TCI’s construction of the ordinances is incorrect. Whether a building is a “contributing structure” determines which of two application processes the property owner must follow. The property owner must still obtain the approval of the landmark commission before demolishing a building under either process. Next the court held the general rule is that when a statute is adopted by reference, the adoption takes the statute as it exists at that time, and the subsequent amendment of the statute is not incorporated into the terms of the adopting act. The phrase “as amended” has been found to incorporate future amendments to statutes adopted by reference.  However, such amendments apply to the sections referenced, in this case only to demolition and removal procedures. “The clear intent was that ordinance 22158 was to work in conjunction with the city development code. To hold that future amendments to the development code were not incorporated into section 7.1 would lead to unnecessary confusion in the application process and make it even more difficult for those seeking demolition or removal permits to determine what is required of them.” Having concluded that the jury properly found that TCI violated the ordinances, the court then examined once again whether the City was entitled to recover a civil penalty. The City’s only burden under the instruction given was to show that, after TCI was notified of its violation, TCI either committed acts in violation of the ordinances or took no action to comply with the ordinances. TCI argued that since it had already demolished the building when it received notice it could not do anything to cure or come into compliance. “Impossibility is a plea in avoidance on which the party making the plea bears the burden of pleading and proof.” Since TCI did not plead the defense at trial, the award cannot be reviewed based on the doctrine of impossibility. The $750,000 penalty in the trial court’s judgment does not hold TCI liable for the demolition itself, but for TCI’s post-demolition failure to take action to comply with the ordinance. This is an ongoing violation until TCI takes the required action. Because TCI never submitted an application to the landmark commission, (even after demolition) the possible daily penalty continued to accrue. Accordingly, the jury could have awarded over $1 million in penalties, but chose to award $750,000. The Court of Appeals appeared reluctant to accept the Supreme Court’s interpretation, but it sustained the civil penalty award in the end.

If you would like to read this opinion click here. Panel: Justice Fillmore, Justice Evans and Justice Whitehill. Opinion by Justice Evans. The attorneys listed for the City are Christopher J. Caso, Thomas P. Perkins Jr., James B. Pinson, Barbara E. Rosenberg, and Christopher D. Bowers. The attorneys listed for Texas West End are Thomas V. Murto III, Melissa A. Johnson, and Mitchell Madden.

Failure to appeal demolition order prohibits apartment owners from bringing a takings claim says Fort Worth Court of Appeals

1707 New York Ave., LLC v. City of Arlington, 02-14-00259-CV (Tex. App. – Fort Worth, October 22, 2015).

This is a structural standards/constitutional takings case where the Fort Worth Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

After notice and a dangerous-and-substandard-structure hearing, the City’s municipal court signed an order declaring the La Joya Arlington Apartments a nuisance. After the owners did not take advantage of the cure period, the court issued a demolition order. The apartments were sold.  The new owners did not appeal the municipal court’s demolition order but instead filed suit. The City filed a plea to the jurisdiction which the trial court granted.

The owners argued the exhaustion requirements under Dallas v Stewart does not apply since they are bringing claims only under the Texas Constitution and the City’s administrative process was a hybrid of statute and its own ordinance. The court held the Texas Supreme Court has “long held that the government commits no taking when it abates what is, in fact, a public nuisance.” City of Dallas v. Stewart, 361 S.W.3d 562, 569 (Tex. 2012). A party must avail itself of statutory remedies that may moot its takings claim, rather than directly instituting a separate proceeding asserting such a claim.  Here, the prior owner of the apartments did not appeal the municipal court’s order authorizing demolition. As a result, the buildings were a nuisance as a matter of law. Because no one appealed the nuisance determination, the current owners cannot attack collaterally what was not challenged directly. So the plea was properly granted.  Justice Meier’s concurring opinion was aimed at a more detailed analysis of the reason why exhaustion is required, but he did not go into any of the facts, history, etc. present in the memorandum opinion. He tracked the language of the Texas Local Government Code as well as the City’s ordinances. He determined the final judgment is consistent with both Tex. Loc. Gov’t Code Chapter 214 and the City’s Dangerous Building ordinances and did not improperly authorize the City to assess a penalty of demolition against the apartment owners.

If you would like to read this opinion click here. The concurring opinion can be found here. Panel: Justice Walker, Justice Meier and Justice Gabriel. Memorandum Opinion by Justice Walker.  Concurring opinion by Justice Meier. The attorneys listed for the City are Melinda H. Barlow and J. Chad Arnette.  The attorney listed for the apartments is Frank Gilstrap

Failure to appeal Structural Standards Commission order precludes defenses in enforcement suit for civil penaliies

The Gold Feather, Inc. v. City of Farmers Branch, 05-13-01175-CV (Tex. App. – Dallas, Dec. 17, 2014).

This is a structural standards case where the Dallas Court of Appeals affirmed a summary judgment order in favor of the City for Gold Feather’s failure to comply with a commission order.

The City sent notices to Gold Feather of ordinance violations including a parking lot in disrepair, structural disrepair, improper signage, weeds, and more. Gold Feather asserted it recently purchased the property and intended to have it developed but was refusing to bring the property into compliance in the meantime. The Structural Standards Commission held Gold Feather was in non-compliance and assessed civil penalties if the violations were not repaired within 30 days. After giving substantial time for repairs, the City assessed civil penalties in the amount of $22,000 ($500 per day for each day of a continued violation) and brought suit to enforce and collect. Gold Feather asserts it was verbally promised an extension (which as later rescinded) so did not comply as quickly as it could have but should not have been assessed a civil penalty. The City filed a summary judgment which was granted and Gold Feather appealed.

The court first held that Gold Feather’s assertion of ineffective assistance of counsel does not apply to civil cases and the City’s penalties are civil in nature, not criminal. Next, Gold Feather failed to appeal the commission’s order so it could not raise a takings or due process claim by asserting the taking was performed by a non-judicial body. Without deciding whether such a defense/claim is even proper, it must still be raised in an appeal from the commission’s order, which did not occur. As a result, the summary judgment order is affirmed.

If you would like to read this opinion click here. Panel: Justice FitzGerald, Justice Lang, and Justice Brown.  Memorandum Opinion by Justice Brown. The attorney listed for Gold Feather is Joyce Byrd.  The attorney listed for the City is Whitt L. Wyatt.

Owner of demolished condo cannot piggyback on other owners’ attempts to appeal in order to obtain standing says Houston Court of Appeals

Lee Ann Wheelbarger v. City of El Lago and Richard Smith, 01-13-00704-CV (Tex. App. – Houston [1st Dist.], September 18, 2014),

Wheelbarger owned a condominium (built in 1970s) in a complex called the Landing which was severely damaged by Hurricane Ike in 2008. Smith was the City’s building official. The Landing was a non-conforming use under the City’s zoning ordinance, which stated no permit would issue for a non-conforming use repair which is damaged to an extent greater than 51% of its market value unless the repair brought the structure up to current building standards. Bringing the Landing up to current building standards (especially in common areas) would incur such a cost that it was not economically feasible. Therefore the Landing’s management council did not seek a repair permit. The City’s Structural Standards Commission declared the complex a substandard building and a nuisance and ordered it to be repaired or demolished. The Landing’s management council demolished the complex. Interestingly, Wheelbarger was on the management council.  In that role she obtained a report noting the complex had sustained only minor damage. The management council sued Wheelbarger for inciting litigation. Wheelbarger counterclaimed and added the City as a third-party. Her claims against the City and Smith assert she was deprived property without due process, essentially stating the complex was declared substandard by the building official without an opportunity to challenge. The trial court granted the City’s plea to the jurisdiction and summary judgment motion and severed the claims involving the City from suit.

The court noted that Smith’s determination the complex was substandard was superseded by the Structural Standards Commission’s order of repair or demolition, which Wheelbarger could have participated in, but chose not to. And while other condo owners attempted to appeal the determination, Wheelbarger was not one of them. She did not exhaust her options and never sought an appeal. She cannot piggyback on the attempted appeal of other property owners and has no standing on her own. As a result, the trial court properly concluded it had no jurisdiction over her claims.

If you would like to read this opinion click here. Panel: Chief Justice Radack,, Justice Jennings and Justice Massengale. Opinion by Justice Massengale. The attorney listed for the City is Arthur Val Perkins.  The attorney listed for Wheelbarger is William A. Taylor.

Appellant did not submit court records, so waived takings and structural standards appeal

Samuel T. Russell v. City of Dallas, 05-13-00061-CV (Tex. App. – Dallas, May 16, 2014).

This is a substandard building case where Russell challenged the demolition of a building on his property and brought a takings claim against the City. The trial court issued a judgment for the City and the Dallas Court of Appeals affirmed.

The City sought and received a demolition order for a building on the property from its municipal court of record.  Russell filed suit asserting that since acquiring the property he had brought it up to code (or close enough), it was no longer an urban nuisance under the City’s Code, and he brought a takings claim.  The trial court entered a temporary order requiring Russell to do certain actions and make the property available for inspection.  However, after a trial to the court, the court ordered the building demolished and Russell appealed.

This holding is not of great significance because the court never really gets to the heart of the matter. It first notes that since Russell did not present a reporter’s record of the trial or request findings of fact, the appellate court must assume the record supports the judgment. Russell failed to properly preserve for appeal his challenge to the requirement of a verified pleading (because it can be waived). His takings claim focused on unpled claims and without a proper record to show otherwise, Russell waived this claim as well. The trial judgment was affirmed.

If you would like to read this opinion click here. Panel: Justice FitzGerald, Justice Fillmore, and Justice Evans.  Memorandum Opinion by Justice Fillmore. The attorneys listed for the City are Thomas P. Perkins Jr., Barbara E. Rosenberg, Christopher J. Caso, and Andrew M. Gilbert.  The attorneys for Russell are Samuel T. Russell and Timothy E. Baker.