Low-income housing project foiled by changes to fire code

Comunidad Balboa, LLC v. The City of Nassau Bay, et al. 14-12-00619-CV (Tex. App. – Houston [14th Dist.] June 13, 2013).

This is an appeal from a non-profit developer whose claims were dismissed in the City of Nassau Bay’s plea to the jurisdiction. Comunidad sued the City and several elected officials for City actions and ordinances he claims destroyed all economic use of his property.

In 2003 Comunidad purchased a 1969 apartment complex intending to make housing available to low-income individuals.  In 2006 the City amended its fire-prevention ordinance making sprinkler systems mandatory for new and existing structures (although Comunidad’s property was the only existing structure which fell within the regulations criteria).  Comunidad asserts it would cost $1,000,000 to upgrade, so instead, in 2010, racked up over 50 citations punishable by up to a $2,000 fine for each day of non-compliance. He sued for conspiracy and inverse condemnation and sought injunctive and declaratory relief.

The Fourteenth District Court of Appeals affirmed the dismissal noting 1) while the higher cost for low-income housing was created by the ordinance, it did not render the property void of all economic use, 2) while the regulation had a significant economic impact on Comunidad the court must balance that against the public purpose of upgrading life-saving fire codes, 3) fire regulations change all the time and Comunidad should have planned for the need for future upgrades, 4) the City’s actions were not in bad faith or targeted solely at Comunidad since new construction must also comply, 5) the City allowed a three year compliance schedule which Comunidad failed to utilize, and 6) upgrading the City’s fire-prevention ordinance was well within its police power authority.  Comunidad brought several other claims such as conspiracy and nuisance, but the court disposes of those noting simply that Comunidad failed to brief the issues. As a result, the trial court properly granted the City’s plea to the jurisdiction and the judgment is affirmed.

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