Takings claim can be heard in appeal from demolition order says Waco Court of Appeals

City of Bryan/Building and Standards Commission v. Kenneth Cavitt, 10-13-00259-CV (Tex. App. – Waco, May 8, 2014).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a structural standards case. The Waco Court of Appeals affirmed the denial.

The City determined the Cavitt property was dilapidated, hazardous, and a public nuisance. In numerous public meetings Cavitt requested the ability to bring the property up to code. The Building and Standards Commission (“BSC”) issued a repair schedule and ordered the Plaintiff to attend each BSC meeting to demonstrate compliance with the schedule. When Cavitt failed to comply with the schedule without adequate explanation, the BSC ordered its demolition. Cavitt appealed the order to district court. In his appeal, he also brought a takings claim. The City filed a plea to the jurisdiction arguing no taking could occur since it was declared a public nuisance. The trial court denied the plea and the City appealed.

The 10th Court of Appeals held that this type of lawsuit is fundamentally a constitutional one and, pursuant to City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012), the determination of a nuisance ultimately must be determined by a court, not a commission. Before a nuisance determination will act as a bar to a takings claim, the determination must be reviewed de novo by a court. As a result, the trial court retained jurisdiction. Both the appeal from the demolition order and the takings claims can be heard.

If you would like to read this opinion click here. Panel: Chief Justice Gray, Justice Davis, Justice Scoggins.  Memorandum Opinion by Justice Scroggins. The attorneys listed for the City are Danielle Craig and William W. Krueger III. The attorney listed for Cavitt is Neeley C. Lewis.