Here’s a short one from the Court of Appeals of Texas, Eighth District, involving how well a regulatory takings claim needs to be pleaded in a complaint.
In County of El Paso v. Navar, No 08-14-00250-CV (Aug. 7, 2015), the court held that a pro se plaintiff who alleged, among other things, that the County refused “
to issue certificates of
compliance to him without a legitimate basis unreasonably interfered with his right to use and
enjoy his property as a mobile home park”
was specific enough to give the County notice of the allegation, and should not be dismissed.
Read the opinion for the details of the claim, but here’s the critical allegation in the complaint:
The [County]’s conduct, as alleged, was intentional and constituted an unreasonably interfered [sic] with [his] right to use and enjoy his property. The economic impact and the extent to which the regulation interfered with [his] investment backed expectations was severe. Without utility service, [he] cannot rent any of the trailers on his property. And, the character of the County’s action weighs heavily against the County, because the County has failed to articulate any legitimate basis whatsoever for refusing to issue the certificates even though adequate facilities had been installed for decades.
Slip op. at 7.
Although the plaintiff labeled his claim a “regulatory takings” claim and did not specify further — but when pressed asserted he was alleging both Nollan–Dolan and Penn Central claims — the court concluded that the allegation was sufficient to state a claim for a Penn Central taking only:
He alleges specifically how his current, existing use of the property is circumscribed by the County’s illegitimate conduct, i.e., he was unable to lease mobile homes, as well as how he was harmed, i.e., loss of rental income. These allegations, though bare, touch upon the three Penn Central factors: (1) economic impact; (2) investment-backed expectation; and (3) character of government action. Lost profits are one relevant factor to consider in assessing the severity of the economic impact of government action, especially when the property affected has had a proven, profitable use at the time of the government action.
Slip op. at 7. In short, the plaintiff alleged “that the County affected a regulatory taking by revoking the property’s grandfathered status.” Id. at 9.
The court rejected the County’s argument that in order to state a claim for a regulatory taking, the property owner was required to allege the elements for an inverse condemnation under Texas law. The court also held that regulatory takings claims are not limited to cases in which it is alleged the government “acted to gain an unfair advantage against [the owner’s] economic interests.” Slip op. at 10. Finally, the court rejected the County’s claim that it was entitled to immunity. The court held that the government isn’t entitled to immunity from claims for just compensation under the takings clause. Slip op. at 5.
This case is a good reminder that it shouldn’t take much to allege a regulatory takings claim, and that a complaint should pass muster if it provides notice of the claim, despite being inartfully drafted, a point we made in a recent amicus brief.
County of El Paso v. Navar, No. 08-14-00250-CV (Tex. App. Aug. 7, 2015)