Order to vacate for public safety equates to “public use” for takings analysis says 14th Court of Appeals.

Carleson, et al v City of Houston, NO. 14-12-00099-CV (Tex. App – Houston [14th Dist.] May 2, 2013).

Plaintiffs owns several condominiums which the City determined were unsafe for habitation and which did not have certificates of occupancy (“C/O”).  After providing a time to cure, the City issued an order to vacate. In a related lawsuit, an administrative hearing judge affirmed the order to vacate which several tenants and property owners appealed.  The trial court denied injunctive relief to suspend the order (requiring homeowners to vacate) but ultimately reversed the order to vacate. The 14th Court of Appeals affirmed including the trial court’s determination the City violated the homeowners rights to procedural due process by failing to give adequate notice and a public hearing under Tex. Gov‘t Code § 214.001 (requiring proper notice and public hearing to determine whether a building ―is found in violation of the standards set out in the ordinance‖ before a municipality may issue an order).

The homeowners filed this collateral lawsuit alleging inverse condemnation based on the loss of use after being forced to vacate without being afforded procedural due process. The City filed a Plea to the Jurisdiction which the trial court granted.  However, the 14th reversed.  Despite the City’s assertion the homeowners had no property right to occupy the property (since no C/Os were issued), the court determined that fact does not entitled automatic eviction without due process or compensation. And because the City failed to conclusively prove the divestment of ownership rights, the Plaintiffs had a property interest in occupying the buildings despite no C/O.  Second, the court determined a “public use” includes matters of public health and safety such as unsafe buildings constituting nuisances.  So, by protecting the public from unsafe buildings, the City took property for the public’s benefit and therefore is a public use.  The court reversed the granting of the Plea and remanded.

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