Last week, we posted our amici brief in Texas v. Clear Channel Outdoor, Inc., a case in which the Texas Supreme Court is considering two questions: first, whether a billboard owner is entitled to just compensation when the land on which it sits is taken by eminent domain, and second, what method of valuation can be used to measure compensation, if so. Here are the rest of the briefs in the case.
Texas needed to widen a freeway, and condemned the land on which the billboards were located. It refused to pay just compensation on the grounds that the billboards were personal property and not "realty," and thus the owner could simply move them. The State issued a removal order. In response, the owner filed an inverse condemnation action to recover just compensation for the billboard takings.
The court concluded the billboards are not moveable property, but are fixed to the ground, and that the state should have condemned and paid for them. It also overruled the state's objection to the method of determining just compensation, which allowed the jury to consider the "income capitalization" approach (how much income from the billboards would generate, a factor than a buyer would consider). The State argued that only the raw material value of the billboards should be considered. The Court of Appeals affirmed.
The State's brief presents these questions:
1. Since 1877, Texas courts have applied a three-factor test for determining whether personal property has become part of the realty as an improvement or fixture. Was the court of appeals wrong to reject this traditional test in a condemnation case?2. The court of appeals acknowledged the State’s argument that the billboards are personal property, not part of the real estate. Did the court of appeals err in holding that the State took the billboards based on its conclusion that it was undisputed that the billboards are part of the real estate?
3. This Court held in State v. Central Expressway Sign Associates that courts “should not allow evidence of valuation based on advertising income.” Was it an abuse of discretion for the trial court to admit evidence and testimony of Clear Channel’s appraisal expert that
estimated the value of the billboards based on advertising revenue?State's Brief at xiv. The property owner doesn't see it quite the same way, of course, and presents the issues this way:
1. Did the Court of Appeals correctly follow decisions of this Court and the U.S. Supreme Court in holding that a massive sign structure, firmly attached to land, is part of the realty for condemnation purposes?2. Did the Court of Appeals correctly hold that the trial court did not abuse its discretion in admitting Clear Channel’s expert testimony valuing Clear Channel’s sign structures using the accepted methods of determining a property’s fair market value? And in any event, did the Court of Appeals correctly hold that the State failed to show harm in connection with the admission of any expert testimony?
3. Did the Court of Appeals correctly hold that the evidence is legally sufficient to support the jury’s damages findings?
Property Owner's Brief at xviii.
Here are all of the briefs filed:
- State's Brief
- Property Owner's Brief
- State's Reply Brief
- Amici Curiae Brief of City of Houston, Harris Cty.; Tex. Municipal League; Tex. Assoc. of Counties; Tex. Conference of Urban Counties; Alamo, Ctrl. Tex., N. East Tex., and N. Tex. Reg. Mobility Auth.; and Scenic Tex., Inc.
- Amicus Brief of the City of Fort Worth, Texas
- Response to Amicus Brief filed on behalf of Clear Channel Outdoor, Inc.
- Amicus Brief of Outdoor Advertising Association of America
- Amicus Brief filed on behalf of National Federation of Independent Business Small Business Legal Center and Owners' Counsel of America
- Supplemental Letter Brief filed on behalf of Clear Channel Outdoor, Inc.
The court is scheduled to hear oral arguments on September 17, 2014. We'll have more then.
