Plaintiff-appellant, brought an initial action against the City of Baytown for refusing to allow him to replace damaged signs. Plaintiff was the owner of multiple off-premises billboards damaged by Hurricane Ike. When plaintiff attempted to replace the signs, the city cited its sign ordinance requiring citizens to apply for a building permit to replace a destroyed or damaged sign. After the city rejected plaintiff’s application, plaintiff appealed to the City’s Sign Committee who denied the appeal as untimely. Plaintiff, subsequently filed this suit for unconstitutional taking with the County Court. The lower court granted summary judgment for the defendants due to (1) lack of subject matter jurisdiction and (2) plaintiff had not asserted a takings claim.
The Appeals Court held that there was no subject matter jurisdiction over plaintiff’s declaratory judgment action because he failed to file a timely petition in district court challenging the Sign Committee’s denial of his appeal. The Court did, however, hold that the takings claim was ripe because the “relevant governmental unit ha[d] reached a final decision.” Although plaintiff had not had the opportunity to appeal, the Court reasoned, it was clear that “for all practicable purposes,” the appeal was “definitive and final.” Thus, although the Court had no subject matter jurisdiction over the declaratory judgment claim, it did maintain jurisdiction over the takings claim.
As to the merits of the takings claim, the Court noted that although the plaintiff clearly asserted its takings claim in the complaint, defendant only briefly replied to this claim in a footnote of the answer. Plaintiff argued that since the city refused to grant his application, it had effectively created a perpetual easement on the land, resulting in the land being damaged and essentially worthless. In reply, the city asserted only that plaintiff’s property was taken by Hurricane Irene, not the city. Since the city had failed to cite any legal authority and had made no legal argument regarding the alleged taking, summary judgment was improper. Thus, the city had not, as a matter of law, established that there was no taking and the issue was, therefore, one for a trier of fact.
Allen v. City of Baytown, 2011 WL 3820963 (Tex. App. Hous. (1st Dist. 8/25/2011)
The opinion can be accessed at: http://www.1stcoa.courts.state.tx.us/opinions/PDFopinion.asp?OpinionID=89583
This case is very similar to my case that I am currently fighting in the New Hampshire Supreme Court (denial of building permit for existing use, untimely filing of ZBA rehearing). The law regarding jurisdiction to hear a constitutional taking case appears to be similar in NH and TX, as I would assume it is nationwide.
It boils down to jurisdiction – a court has original subject matter jurisdiction to hear constitutional takings cases, whereas original subject matter jurisdiction to hear basic zoning cases lies with the town/city. In order for a court to hear a zoning complaint, it has to inherit jurisdiction from the town (which necessitates timely filings). With a constitutional argument, the court is the only one with jurisdiction, so you can file a claim even if you did not follow all the statutory procedures.
On the taking issue, it appears that the court put the burden of proof on the city. I guess this is a victory for property rights, although I would have liked to seen a more definitive decision that denying building permits to replace existing structures is a taking (which is what my case is about).
It gives me hope to see justice prevailed in a case similar to mine.
By: NHBosonetto on October 14, 2011
at 11:06 pm