TX Appeals Court Holds Challenges to Floodplain Development Ordinance were Unripe

This post was authored by Matthew Loeser, Esq.

The City of Houston passed Ordinance No. 2018-258 to amend the existing floodplain development ordinance in Chapter 19 of the City’s Code of Ordinances. The old ordinance required that new residential structures within the 100-year floodplain had to be built at least one foot above the flood elevation. Among other changes, the new ordinance required that new residential structures within the 500-year floodplain must be built at least two feet above the flood elevation. The Commons at Lake Houston, Ltd.  sued the City before the effective date of the ordinance and made claims for inverse condemnation and a declaratory judgment. The Commons alleged that the application of the amended ordinance to its property would substantially damage the market value of the property, and the current development plan would be unfeasible. The City filed a plea to the jurisdiction, contending that The Commons’ claims were not ripe, and the trial court denied the plea.

On appeal, the City alleged that it had not made any final decision applying the ordinance to deny any permit application for The Commons’ property, or otherwise decided whether the former or amended ordinance applied to The Crossing. Here, it was undisputed that The Commons had not had any permit or plat applications, or requests for variances, denied as a result of the amended ordinance. The Commons argued that the futility exception applied because its financial hardship alone could not justify a variance under the ordinance. Additionally, The Commons claimed that it could not comply with particular requirements for the application for a floodplain development permit because it was a developer and not a builder. Because the ordinance did not prohibit the granting of a variance based on financial hardship, however, the court found the inverse condemnation claim was not ripe.

The Commons next argued that its email exchange with one of the City’s engineers reflected that the City had finally decided that Chapter 245 was inapplicable. The record reflected that, in this email, The Commons asked a general question about unspecified tracts of land without providing any details about the prior plan, plat, or permit applications that had been filed for The Crossing. In response, the City’s employee stated that she was “not an attorney” and gave a general answer. While the employee offered to follow-up and get more information if the answer did not help, The Commons did not respond with a request for more information or make any specific request to have Chapter 245 applied to The Crossing. Accordingly, the court held that this email exchange was not evidence that the City had made a final decision to apply the new ordinance to The Commons’ property. The Chapter 245 claim was therefore also found unripe.

City of Houston v. Commons at Lake Houston, Ltd, 2019 WL 5158725 (TX App. 10/15/2019)