Charles McFarland, arguing.
Here's the latest in a case we've been following closely (and disclosure: our firm filed an amicus brief in the Texas Supreme Court).
In The Commons of Lake Houston, Ltd. v. City of Houston, the Texas Court of Appeals held that the city could not be liable for a taking for an ordinance that limited development and use within the city's 100-and-500-year floodplains because the ordinance was a valid exercise of police power and otherwise survived the rational basis test.
As we wrote here, that seems like utter nonsense to say that a valid police power reason categorically insulates a government action from a takings challenge. After all, the entire regulatory takings doctrine is built on the notion that an otherwise-valid exercise of government power (here, the police power, delegated from the State to the city) can so impact an owner's property rights that the law will treat it as a de facto exercise of eminent domain, and require just compensation. The doctrine pretty much presumes that the governmental action is valid, and challenges to what are claimed to be invalid government actions fall under the due process label.
Our friend and colleague Charles McFarland represents the property owner. Last week, he presented oral argument at the Texas Supreme Court (watch the video here).
Here are the Issues Presented by the property owner:
1. The lower court erred in applying a bright-line flooding mitigation exception to the Texas Constitution’s requirement of compensation for the taking, damaging, or destruction of private property.2. The lower court erred in applying a bright-line “police power” exception to the Texas Constitution’s requirement of compensation for the taking, damaging, or destruction of private property.3. The lower court erred in failing to apply the state-law standard of the Texas Constitution’s takings clause, which allows for compensation when government action damages private property for public use.
The State of Texas does not agree with this formulation of the issues. Instead, it argues these are the issues (apparently leaving nothing, kitchen sink included, off the table):
1. Whether Petitioner has standing to assert purported takings/damaged property claims?2. Alternatively, whether Petitioner’s purported takings/damaged property claims are ripe?3. Alternatively, whether Petitioner’s claims are redressable; therefore, whether Petitioner was improperly deprived of review under Penn Central or any other requested test?4. Alternatively, whether Houston is immune from Petitioner’s takings/damaged property claims because local floodplain regulations that track FEMA/NFIP requirements do not constitute a taking?5. Alternatively, whether Houston is immune from Petitioner’s claims because this Court’s decision in Turtle Rock and its progeny hold that the application of Houston’s floodplain regulations to Petitioner’s property, if any, is not a compensable taking?6. Alternatively, whether Petitioner’s new, blanket rule—that all local land-use regulations that adversely affect property automatically constitutes a taking and/or “damaged” property under article I, section 17, entitling the landowner to Penn Central or other compensation analysis—contravenes Texas law?7. Whether Petitioner’s “damaged” property claim is time barred?8. Whether Petitioner has suffered a compensable injury under Article I, Section 17’s “damaged” property provision?
Watch the oral argument recording to see how the court addresses these seemingly very divergent worldviews.
More on the case here, including all the briefing.
Stay tuned. We'll bring you the court's ruling when it is issued.
