City not liable for takings claim because of alleged failure to enforce ordinances against neighboring property owner/developer

City of Mason v. William Robin Lee, et al.  04-18-00275-CV (Tex. App. – San Antonio, Nov. 7, 2018).

This is an interlocutory appeal in a regulatory takings case where the Fourth Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the takings claims.

The Zeschs’ trust asserted they owned property adjacent to or downhill from property owned by Tyler and Reyeses. The City approved a minor plat and Reyeses began constructing a single-family residence. The Zeschs assert the development caused increase water runoff damaging the property. Additionally, the Zeschs assert the construction generated nuisance level noise and dust. They assert the City committed a regulatory taking by approving the plat, then refusing to enforce various City ordinances against Reyeses. The City filed a plea to the jurisdiction, which was denied. The City took this interlocutory appeal.

The court first noted a justiciable controversy still exists even though the Zeschs settled with Tyler and Reyes and now own the property since a question remains as to whether the Zeschs’ property was damaged due to the City’s actions. Next, to state a valid takings claim, a plaintiff generally must allege: (1) an intentional governmental act; (2) that resulted in his property being taken; (3) for public use. The crux of the Zeschs claims is that the City failed to impose applicable regulations to the subdivision and to the property owned by the Reyeses. The Texas Supreme Court and the Fourth Court have recognized “the law does not recognize takings liability for a failure to” act. A municipality’s failure to enforce applicable zoning ordinances and special permit restrictions does not constitute a regulatory taking.  The court also cited to precedent noting that if the government’s alleged affirmative conduct is nothing beyond allowing private developers to use their property as they wish, the more appropriate remedy is a claim against the private developers rather than a novel taking claim against the government.  Interestingly, in a footnote, the court held that the Penn Central analysis (applicable when a regulation unreasonably interferes with a property owner’s use and enjoyment of the property) does not apply in this type of case because the Zeschs were not complaining of regulations applied to them, but of the lack of regulations applied to others. No intentional conduct occurred so the plea should have been granted.

If you would like to read this opinion click here. Justice Martinez, Justice Chapa and Justice Rios.  Memorandum Opinion by Justice Rios.  The docket page with attorney information can be found here.