There's nothing terribly novel in the Texas Court of Appeals' opinion in City of Houston v. The Commons at Lake Houston, Ltd., No. 14-18-00664-CV (Oct. 15, 2019), but we highlight it here for a couple of reasons.
First, the court's holding that a regulatory takings claim was not ripe because the property owner had not sought a permit -- and as a consequence, the city had not yet reached a "final decision" whether the regulations in question (which require that buildings in an area be built at least two feet above certain floodplains) -- reminds us that the first prong of Williamson County ripeness is alive and well (even though this was a case purely under Texas law, so Williamson County did not govern). The court noted that the owner "had not any permit of plat applications, or requests for variances, denied as a result of the amended ordinance. Indeed, the ordinance did not become effective until after the trial court denied the plea." Slip op. at 9.
Second, we were interested in this case because of the court's holding about what actions by a public employee can trigger vested rights. Or, more accurately, what actions can a property owner's rely on to move forward. Here, the plaintiff asserted that a city engineer's response to an email inquiry about the ordinance which asked general questions, was enough to for the city to have staked out an official position on whether the plaintiff's property was subject to the regulation, thus ripening a vested rights claim. The court disagreed, concluding the email was really general, and not some kind of official opinion about the applicability of the regulation to the property:
In the 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. The City’s employee clarified that she was “not an attorney” and gave a general answer. She offered to follow-up and get more information if the answer did not help. But The Commons did not respond with a request for more information or make any specific request to have Chapter 245 applied to The Crossing. We conclude that the email exchange is no evidence that the City has made a final decision to apply the new ordinance to The Commons’ property. See Tiki Island I, 464 S.W.3d at 442; Save Our Springs Alliance, 149 S.W.3d at 683–84. Under these circumstances, the Chapter 245 claim is not ripe.
Slip op. at 12 (footnote omitted).
As for the title of this post (sorry, yes, it is clickbait), as if to emphasize the casual and general nature of the inquiry, the plaintiff responded to the engineer's email with the highlighted passage, below:
So here's your land use practice protip of the day: when you are trying to create a record of "official action" or "official assurances" for vested rights or zoning estoppel purposes (your term may be different, but the idea is the same), try to avoid emojis. They don't really help in convincing a court that the conversation you are having with a government official is serious.
City of Houston v. The Commons at Lake Houston, Ltd., No. 14-18-00664-CV (Tex. App. Oct. 15, 2019)
