Owner not liable for demolished historic building says 5th Dist. Court of Appeals

Texas West End, Inc v. City of Dallas and Texas Historical Commission, 05-11-00582-CV, (Tex. App. – April 15, 2013)

This is a historic building demolition case.  The Missouri, Kansas & Texas Railway freight station was a building for which the TCI West End, Inc. (TWE) obtained a demolition permit. Before the demolition, the City revoked the permit, but did not sent written notice. The City and the Texas Historical Commission (the THC) asserted the TWE improperly demolished a historical building.  A jury awarded damages to the THC and civil penalties to the City.  The Fifth District Court of Appeals reversed.

The court first noted that the THC was not entitled to damages under Texas Local Government Code §315.006 because the City did not file and index a verified listing of historic structures as required under Chapter 315. Because the lack of a verified filing prevents the City from bringing such a suit, and because the THC is authorized to “enforce this section” and steps into the shoes of the City, the THC is likewise prevented from bringing suit due to the lack of a verified filing.

Next the Court reversed the civil penalties award to the City noting it did not adopt a civil penalties ordinance for historic overlay districts.  Chapter 211 of the Texas Local Government Code allows suit and allows for civil penalties if the City adopts such penalties specifically.  Also, the penalties under Chapter 315 are “damages” not “penalties” and the City is not entitled to any damages due to its failure to file a verified index. The court next noted that while Texas Local Government Code chapter 54 may possibly allow for civil penalties for ordinance violations regardless of penalty adoption such penalties are only for ordinances that regulate a health or safety matter.  The City failed to establish how their historic building ordinance is a health or safety ordinance and not a general zoning ordinance.  Finally, the court noted that since the owner was never informed of the ordinance itself (even if everyone was arguing about the revocation of the permit), an owner cannot “knowingly” violate an ordinance they do not know exists.  In short, the court reversed and rendered, dismissing all of the City’s and THC’s claims.

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