Posted by: Patricia Salkin | May 28, 2015

TX Supreme Court Finds Statutes Authorizing Municipalities to Bring Civil Actions and to Recover Civil Penalties for Violations of Ordinances Provided City Authority to Bring Action Against Developer Who Razed a Historic Building

Section 54.012(3) of the Texas Local Government Code authorizes a municipality to pursue a civil action against a property owner to enforce an ordinance “for zoning that provides for the use of land or classifies a parcel of land according to the municipality’s district classification scheme.” Despite section 54.012(3)’s clear and unambiguous language, the court of appeals held that a municipality cannot pursue a civil action under that statute for violations of “general zoning ordinances regulating the use of land.” Here, the City of Dallas contended that TCI West End, Inc. demolished a building located in a historic overlay district in violation of a city ordinance, and the City sued TCI for civil penalties under section 54.017 of the Texas Local Government Code.

The court of appeals interpreted section 54.012(3) as incorporating a health-and-safety limitation. However, the court determined that by interposing a limitation into subsection (3) that the Legislature deliberately chose to include in some—but not all—of section 54.012’s subparts, the court of appeals’ construction of the statute defeated the purpose of the Legislature’s carefully chosen words. Thus, its holding was found erroneous.

The court of appeals also determined that the City’s civil-penalty claim would fail on the merits due to legally insufficient evidence that TCI had received actual notice of the ordinance provision before it demolished the building in violation of the ordinance. This argument likewise failed, however, because section 54.017 authorizes an award of civil penalties if the defendant violated an ordinance after receiving notice of its provisions or failed to take action necessary for compliance with the ordinance after receiving such notice. Thus, the court failed to consider whether TCI could have sought a post-demolition permit or taken other steps “necessary for compliance with the ordinance after receiving such notice.” The court of appeals’ judgment was therefore reversed.

City of Dallas v TCI West End, Inc., 2015 WL 2147986 (TX 5/8/2015)

The opinion can be accessed at: http://law.justia.com/cases/texas/supreme-court/2015/13-0795.html


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