Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Thursday, June 2, 2011

Inverse Condemnation and Takings Claims

INVERSE CONDEMNATION Generally, “„[i]nverse condemnation‟ occurs when property is taken, damaged, or destroyed for public use without process or without proper condemnation proceedings, and the property owner attempts to recover compensation.” Patel v. City of Everman, 179 S.W.3d 1, 7 (Tex. App.—Tyler 2004, pet. denied) (Patel I). “A city is not required to make compensation for losses occasioned by the proper and reasonable exercise of its police power.” City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 804 (Tex. 1984). Whether the exercise of a police power is proper or whether it constitutes a compensable taking is a question of law and not of fact. Id. A municipality may, by ordinance, require the demolition of a dilapidated building that is a hazard to the public‟s health, safety, and welfare. See Tex. Loc. Gov‟t Code Ann. § 214.001(a)(1) (West Supp. 2010). Generally, when a city has determined that a building constitutes a public nuisance, the city‟s administrative determination may be challenged by a judicial review for substantial evidence. See Patel v. City of Everman, No. 2-07-303-CV, 2009 WL 885916, *6 (Tex. App.—Fort Worth Apr. 2, 2009, pet. filed) (mem. op.) FEDERAL FIFTH AMENDMENT TAKINGS CLAIM [ Property owner ] also challenges the trial court‟s dismissal of her federal “takings” claim. See U.S. Const. amends. V, XIV. Generally, the Fifth Amendment‟s Just Compensation Clause grants to a landowner the right to seek compensation for land taken by the State. U.S. Const. amend. V (“[N]or shall private property be taken for public use, without just compensation.”). Nevertheless, not every State action in taking property violates the Just Compensation Clause. “[I]f a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (In a zoning case, landowner‟s federal taking and due process claims were not ripe because the landowner had not sought a variance). Compensation is generally not required when the State takes property to protect the public safety and health. The United States Supreme Court has stated: “The power which the states have of prohibiting such use by individuals of their property, as will be prejudicial to the health, the morals, or the safety of the public, is not, and, consistently with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.” Mugler v. Kansas, 123 U.S. 623, 669, 8 S.Ct. 273, 31 L.Ed. 205 (U.S. 1887). “The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.” Bennis v. Michigan, 516 U.S. 442, 452, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996) “Courts have consistently held that a State need not provide compensation when it diminishes or destroys the value of property by stopping illegal activity or abating a public nuisance.” Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 492 n.22, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). SOURCE: Beaumont Court of Appeals - 09-10-00192-CV - 6/2/11 (City engaged in a valid exercise of its police power to abate a nuisance that existed on landowner's property. See Tex. Loc. Gov‟t Code Ann. § 214.0012.)