The Texas Supreme Court is generally pretty good about property rights. See this opinion, this one, and this one, for examples.
So when the legal analysis in one of its regulatory takings/inverse condemnation opinions has the following language -- especially in a case where a municipal government has treated the plaintiffs/property owners very badly -- it would be understandable if you predicted the court was coming down on the side of the property owners:
The right to acquire and maintain private property is among our most cherished liberties. As Locke explained, the value of private property lies not only in its objective utility, but also in any personal investment therein. See John Locke, Two Treatises of Government 134 (Thomas I. Cook ed., Hafner Press 1947) (1689). Accordingly, the right to undisturbed enjoyment of residential property is all the more sacred. The unique importance of the home is reflected in our Bill of Rights, which protects us from uncompensated dispossession, unwarranted search, and unwanted guests. See U.S. Const. amends. III, IV, V. This Court, in particular, has long recognized the undisturbed enjoyment of private property as “a foundational liberty, not a contingent privilege.” Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, 363 S.W.3d 192, 204 n.34 (Tex. 2012).The preservation of these property rights is “one of the most important purposes of government.” Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977).
City of Houston v. Carlson, No. 13--435, slip op. at 4-5 (Dec. 19, 2014).
But alas, it was not to be.
The case involved a 108-unit condo that "was suffering from an increasing number of cosmetic and structural problems, and the condominium owners disagreed as to how best address those issues." Slip op. at 2. One of the owners informed the city, which investigated, found that the underground parking facility might fail, and declared the entire condominium uninhabitable. The city gave the condo 10 days to fix the problems.
After 30 days passed, the city did not issue another citation but gave the residents 31 days to get out.
Ultimately, a Texas court of appeals reversed the order to get out, concluding that it violated procedural due process. The owners sold the condo for redevelopment, and then several of the owners sued the city for inverse condemnation, alleging that the vacate order was a taking. The trial court dismissed, but the court of appeals reversed, holding that the plaintiffs stated a valid takings claim.
The Supreme Court reversed, concluding that "although the [property owners] insist they have suffered a regulatory taking, their allegations do not support the claim." Slip op. at 6. The plaintiffs did not contest any of the city's regulations, nor did they claim that the regulations were "so burdensome as to interfere with the use of their property." Id. "Instead, the respondents object only to the penalty imposed and the manner in which the city enforced its standards." Id. All they complained about was that the city didn't tell them what the violations were, and that the remedy was excessive.
The key moment in the oral arguments begins at the 16:25 mark, where Justice Guzman and counsel had this colloquy:
Justice Guzman: So they presumably violated the due process rights of your homeowners. But assuming without deciding that there is no remedy available under the takings theory -- just for purposes of argument -- did you pursue, or have you found any other avenue other than a takings theory for making your homeowners whole? And if you have, did you assert that in the trial court?Counsel: The answer is I know of no other remedy other than a takings case. In this case, I don't know how to describe the frustration of not only my clients but the other people living there when you're told to vacate your property, you can't go back, and you are not told what's wrong. You're simply told -- and it's in the record in a letter -- "we're concerned." I don't know how you remedy a concern. The second thing is in this case is which makes it so abusive, is the City of Houston had a far, far lesser alternative. And that was to issue a citation that says you violated our building code. But the problem there with issuing a citation is you would have had to have told us specifically what was wrong. And of course the city couldn't do that because there was nothing wrong structurally with these places. There was a concern.
The opinion does not directly address the police power vs. takings argument that we have seen crop up more directly in decisions of other courts. See, for example, this recent opinion by the Alaska Supreme Court, this one from the Federal Circuit, and one from the Arizona Court of Appeals. Unlike this one, however, those cases were instances of the property owners being made to suffer for the wrongs of others. The Texas court's underlying rationale seems more like that of the Supreme Court of North Dakota in a case where the plaintiff's troubles that resulted in the alleged taking were ultimately of his own making.
In a very short concurring opinion, two justices agreed with the outcome and wrote separately to note that the city "acted rather shabbilty toward its citizens" when it "enforced the order in contravention of state law and the City's own protocol." The justices concluded that "Houstonians deserve better," and that this was a due process violation.
More on the case:
City of Houston v. Carlson, No. 13-0435 (Tex. Dec. 19, 2014)
