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