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					                                  NO. 09-0257
                      IN THE SUPREME COURT OF TEXAS


                                  CITY OF DALLAS,
                                                      Petitioner,
                                        v.

                             HEATHER STEWART,

                                                      Respondent.


BRIEF OF AMICI CURIAE TEXAS MUNICIPAL LEAGUE AND TEXAS CITY
  ATTORNEYS ASSOCIATION IN SUPPORT OF PETITIONER CITY OF
                DALLAS’ MOTION FOR REHEARING



Scott N. Houston                                Lowell F. Denton
State Bar No. 24012858                          State Bar No. 05764700
General Counsel                                 Erin A. Higginbotham
Texas Municipal League                          State Bar No. 24065418
1821 Rutherford Lane, Suite 400                 Denton, Navarro, Rocha & Bernal
Austin, Texas 78754                             A Professional Corporation
(512) 231-7400 – Phone                          2517 N. Main Avenue
(512) 231-7490 – Fax                            San Antonio, Texas 78212
                                                (210) 227-3243 – Phone
                                                (210) 225-4481 – Fax

                                                Counsel for Amici Curiae,
                                                Texas Municipal League and
                                                Texas City Attorneys Association.
                                            TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................ii

INDEX OF AUTHORITIES ......................................................................................... iii

IDENTITY AND INTERESTS OF AMICI CURIAE .................................................... 1

SUMMARY OF THE ARGUMENT .............................................................................. 1

ARGUMENT .................................................................................................................. 3
   I.   As written, the Supreme Court’s opinion could be interpreted to require every
        administrative public health and safety abatement decision to be subject to de
        novo review. ......................................................................................................... 3
   II. As written, the Supreme Court’s opinion could be interpreted to require every
        administrative regulatory determination that involves property interests be
        subject to de novo review. .................................................................................... 5
   III. As written, the Supreme Court’s opinion could expose cities to takings
        claims for every abatement or regulatory decision made in the past 10 years. . 11
PRAYER ....................................................................................................................... 12

CERTIFICATE OF SERVICE ...................................................................................... 15




                                                               ii
                                         INDEX OF AUTHORITIES
Cases

Bayouth v. Lion Oil Co., 671 S.W.2d 867 (Tex.1984) .................................................. 11

Brazos River Auth. v. City of Graham, 354 S.W.2d 99 (Tex. 1961) ............................. 11

City of Dallas v. Stewart, No. 09-0257, 2011 WL 2586882
(Tex. July 1, 2011) .......................................................................................... 1, 2, 3, 4, 5

City of Waco v. Powell, 32 Tex. 258 (1869) ................................................................... 4

Grunwald v. City of Castle Hills, 100 S.W.3d 350 (Tex. App.—
San Antonio 2002, no pet.)........................................................................................ 6, 11

Hues v. Warren Petroleum Co., 814 S.W.2d 526
(Tex. App.—Houston [14th Dist.] 1991, writ denied) .................................................. 11

LDJ Props., Inc. v. City of Greenville, 753 S.W.2d 204
(Tex. App.—Dallas 1988, writ denied) ........................................................................ 4,5

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998) ........................................ 6

Potranco Dev., Ltd. v. City of San Antonio, 298 S.W.3d 242
(Tex. App.—San Antonio 2009, pet denied) .................................................................. 9

Pye v. Peterson, 45 Tex. 312 (1876) ............................................................................... 3

Spann v. City of Dallas, 235 S.W. 513 (Tex. 1921) ........................................................ 5

Westgate, Ltd. v. State, 843 S.W.2d 448 (Tex. 1992) ..................................................... 6

Yee v. City of Escondido, 503 U.S. 519 (1992) ............................................................... 6

Statutes


TEX. CIV. PRAC. REM. CODE § 16.003(a) ........................................................................ 8

TEX. CIV. PRAC. REM. CODE § 16.026(a) ........................................................................ 8

TEX. CONST. art. I, § 17 ................................................................................................... 6


                                                             iii
TEX. HEALTH & SAFETY CODE § 341.011 ...................................................................... 4

TEX. HEALTH & SAFETY CODE § 341.012 ....................................................................... 4

TEX. HEALTH & SAFETY CODE ch. 342 ........................................................................... 6

TEX. HEALTH & SAFETY CODE § 342.008 ....................................................................... 4

TEX. LOC. GOV'T CODE ch. 54 ..................................................................................... 12

TEX. LOC. GOV'T CODE ch. 211 ..................................................................................... 6

TEX. LOC. GOV'T CODE § 212.002 ................................................................................... 7

TEX. LOC. GOV'T CODE § 212.006 ................................................................................... 7

TEX. LOC. GOV'T CODE ch. 214 ..................................................................................... 6

TEX. LOC. GOV'T CODE ch. 216 ..................................................................................... 6

TEX. LOC. GOV'T CODE ch. 217 ..................................................................................... 6

TEX. TRANSP. CODE ch. 683 ........................................................................................... 6

TEX. TRANSP. CODE § 683.074 ....................................................................................... 4


Other Authorities

General Appropriations Bill, 82nd Leg., R.S., ch. 1355. ................................................ 5




                                                          iv
                IDENTITY AND INTERESTS OF AMICI CURIAE

       The Texas Municipal League (TML) is a nonprofit association of over 1,100

Texas cities. The Texas City Attorneys Association (TCAA), an affiliate of TML, is

an organization of over 500 attorneys who represent Texas cities and city officials in

the performance of their duties.

       Amici Curiae believe that the issue before this Court is of great significance to

all Texas cities and all local governments that have authority to regulate and abate

nuisances. The authors of this brief are attorneys with Denton, Navarro, Rocha &

Bernal, P.C. and a salaried employee from the Texas Municipal League who have

received no fee for the preparation of this brief. Neither TML nor TCAA received any

compensation or fee in connection with its preparation of this brief, and they do not

expect to receive any compensation or fees.

                        SUMMARY OF THE ARGUMENT

       On July 1, 2011, the Court issued a 5-4 decision in City of Dallas v. Stewart,

No. 09-0257, 2011 WL 2586882 (Tex. July 1, 2011). The majority decided that an

administrative board’s nuisance determination, even if affirmed by the district court

after a substantial evidence review, did not preclude a takings claim based on the

demolition of that property, but instead the nuisance issue in a takings claim must be

considered de novo. Id. at *12. The Amici disagree with the majority’s opinion that

de novo review is necessary and support the City of Dallas’ Motion for Rehearing.

       In addition to the reasons for reconsideration raised in the Motion for

Rehearing, the Amici argue that the Court should reconsider its opinion to address the


                                           1
questions raised by the opinion that seriously affect a city’s ability to regulate not only

nuisances, but any health or safety risk that has a tangential effect on an individual’s

property rights. The Court equates a nuisance determination with a constitutional

taking and states that it does not believe it should “insulate one type of takings claim”

from the protections of de novo review.         Id. at *4.   Does this mean that every

municipal administrative determination affecting property exposes the city to a takings

claim that will require de novo judicial review? Will a municipal decision about the

abatement of weeds or junk cars be subject to de novo review? What about municipal

decisions regulating the platting and subdividing of land, will they be subject to de

novo review?

       The Amici request that the Court grant the Motion for Rehearing to, at the least,

fully and clearly explain the extent to which its opinion applies to other decisions cities

routinely make that have an affect on an individual’s property rights. The Court

clearly opines that a nuisance determination of a dilapidated building must be

considered a constitutional taking and that it does not believe “that a matter of

constitutional right may finally rest with a panel of citizens untrained in constitutional

law.” Id. However, does this mean that every municipal health and safety decision

affecting property rights should be considered a potential taking and reviewed de

novo? Is that the only way for a city to avoid having to relitigate the decision up to ten

years later if the property owner decides to file a takings claim against the City?

       The Amici argue that this is how the majority opinion could be interpreted and

that failure to make the Court’s opinion clear at this time will result in a flood of


                                            2
litigation to resolve these questions. Forcing cities to obtain clarity about the effects of

this opinion by engaging in litigation to defend every administrative decision will

expose cities and taxpayers to serious financial hardship. More importantly, if not

tailored, this ruling will create significant obstacles to municipal regulation of health

and safety, leaving the public exposed to serious health and other safety risks.

                                      ARGUMENT

I.     As written, the Supreme Court’s opinion could be interpreted to require
       every administrative public health and safety abatement decision to be
       subject to de novo review.

       As Justice Guzman so clearly articulates in her dissenting opinion, the

legislature’s authority to determine that a condition is a nuisance and to provide for its

summary abatement has been recognized for well over a century. See City of Dallas v.

Stewart, No. 09-0257, 2011 WL 2586882 at *22-23 (Tex. July 1, 2011) (Guzman, J.,

dissenting) (citing Pye v. Peterson, 45 Tex. 312, 313–14 (1876) (holding that a city

could not treat wooden buildings as nuisances absent a specific grant of such authority

from the legislature)). As far back as 1858, this Court accepted the legislature’s ability

to enact legislation that allowed a city’s “board of aldermen” to “‘as far as practicable,

prevent any nuisances within the limits of the corporation, and cause such as exist to

be removed, at the expense of the persons by whom they were occasioned,’ etc.” City

of Waco v. Powell, 32 Tex. 258, 268 (1869).

       The ability for cities to regulate nuisances within their jurisdiction has been

essential to protecting citizens from dangerous and unhealthy conditions. Regulation

of the public’s health and safety is not limited to dangerous buildings; the legislature


                                             3
has extended to cities the right to abate dangerous weeds,1 junked vehicles2 and

multiple public health nuisances related to sanitation.3 The decision as to whether a

condition is a nuisance as described by these statutes is currently the responsibility of

cities.

          However, the majority opinion states that “[o]ur precedents make clear that

nuisance determinations must ultimately be made by a court, not an administrative

body.” City of Dallas¸ 2011 WL 2586882 at *5. As written, the Court’s opinion

implies that de novo judicial review extends to all types of nuisance determinations

and abatements, both temporary and permanent; decisions affecting both real property

and personal property.

          If it was the Court’s intention to require all nuisance determinations to be

affirmed de novo, the citizenry will endure significant health and safety risks because

cities will be unable to financially support this excessive economic burden. Police

powers to abate nuisances are “necessary and salutary.” LDJ Props., Inc. v. City of

Greenville, 753 S.W.2d 204, 207 (Tex. App.—Dallas 1988, writ denied). Without the

ability to efficiently abate nuisances, the police power will be effectively abrogated.

Without the power, society would be at the mercy of individual interest and neither




1
    TEX. HEALTH & SAFETY CODE § 342.008.
2
    TEX. TRANSP. CODE § 683.074.
3
    TEX. HEALTH & SAFETY CODE §§ 341.011, 341.012.


                                            4
public order nor public security could survive. Id. (citing Spann v. City of Dallas, 235

S.W. 513, 515 (Tex. 1921).

        To add to the stress of the already fractured economy, the legislature cut nearly

$154 million of funds to Texas cities for the 2012-2013 biennium, including $20

million to combat homelessness. See General Appropriations Bill, 82nd Leg., R.S., ch.

1355.    The economy’s practical effect is that cities and their taxpayers lack the

financial resources to seek a de novo judicial review every time they seek to abate a

nuisance. The Court’s holding, combined with the current economic crisis, strips

cities of their police powers to abate nuisances. Without the funds to seek de novo

reviews of every nuisance, nuisances will multiply unchecked, and society will be at

the mercy of individual interests, putting public order and security at peril.

        Accordingly, the Amici ask that the Court grant the Motion for Rehearing and

affirmatively resolve the question of whether or not every nuisance or abatement

determination must be reviewed de novo to limit cities’ exposure to takings claims.

II.     As written, the Supreme Court’s opinion could be interpreted to require
        every administrative regulatory determination that involves property
        interests be subject to de novo review.

        The Court states that “[t]akings suits are thus, fundamentally, constitutional

suits and must ultimately be decided by a court rather than an agency.” City of Dallas¸

2011 WL 2586882 at *4. A person can bring a “takings” suit, also known as an

inverse condemnation suit, when the government physically appropriates or invades

the property, unreasonably interferes with the landowner’s ownership rights through a

regulation, or damages a person’s property. See TEX. CONST. art. I, § 17; Westgate,


                                            5
Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992). Physical takings occur when a

condemning authority physically occupies, destroys, or damages an individual's

property. See Yee v. City of Escondido, 503 U.S. 519, 522 (1992); Grunwald v. City of

Castle Hills, 100 S.W.3d 350, 353-54 (Tex. App.—San Antonio 2002, no pet.).

However, a compensable regulatory taking occurs if the governmental restrictions

deprive landowners of all economically viable use of their property or unreasonably

interfere with their right to use and enjoy the same. Mayhew v. Town of Sunnyvale,

964 S.W.2d 922, 935 (Tex. 1998).

      Accordingly, if every nuisance abatement becomes a constitutional issue that

must ultimately be decided de novo and a regulatory taking can occur if statutorily-

approved governmental nuisance abatement proceedings unreasonably interfere with

their right to use and enjoy their property, the Court’s opinion would suggest that

every regulatory decision affecting property made by a city could potentially require a

takings determination and therefore must be reviewed de novo. The opinion may, in

fact, extend to various municipal police-power authority, including – among others –

Chapter 217, Texas Local Government Code (general authority to define, regulate and

abate nuisances); Chapter 342, Texas Health and Safety Code (general authority to

define, regulate and abate stagnant water, high weeds, grass, trash, debris, unsightly

and unwholesome conditions): Chapter 211, Texas Local Government Code (zoning

authority, with administrative quasi-judicial review of challenges subject to abuse of

discretion standard review); Chapter 683, Texas Transportation Code (civil and

criminal authority to abate junked vehicles); and Chapter 216, Texas Government


                                          6
Code (administrative sign board authority to remove, relocate signs). For example,

does the court’s opinion apply to the following nuisance abatements?

                 x Draining a stagnant pool, made black by neglect of the property
                   owner, that is teaming with mosquitoes and other disease vectors:




                 x Preventing a hoarder from storing junk in his yard that provides a
                   breeding ground and harborage for rats and snakes:




                 x Abating a vehicle that will likely never function again, and that is
                   dripping oil and gas into the environment and providing an
                   attractive nuisance to children:




                                          7
                 x Abating a fire-destroyed structure that has been neglected for
                   decades, despite numerous attempts to force the owner to secure it
                   against vagrants, squatters and illegal raves:




      The requirement of protracted takings litigation that could subject a city to

monetary liability for abating nuisances like those shown above would be a disaster.

      A more in-depth example of a regulatory decision that affects property rights

would be platting and subdivision regulations. Chapter 212 of the Local Government

Code extends to cities the right to regulate subdivisions and property development.

Section 212.002 states that “[a]fter a public hearing on the matter, the governing body

of a municipality may adopt rules governing plats and subdivisions of land within the

municipality's jurisdiction to promote the health, safety, morals, or general welfare of



                                           8
the municipality and the safe, orderly, and healthful development of the municipality.”

TEX. LOC. GOV'T CODE § 212.002.

      Under Section 212.002, a city has the authority to pass an ordinance

conditioning plat approval on a specified percentage of tree preservation. Id. See

Milestone Potranco Dev., Ltd. v. City of San Antonio, 298 S.W.3d 242, 245 (Tex.

App.—2009, pet. denied.      The decision as to whether all the conditions of plat

approval (including whether sufficient trees will be preserved) have been met is made

by “a municipal planning commission or, if the municipality has no planning

commission, the governing body of the municipality.” TEX. LOC. GOV'T CODE §

212.006. However, what if the property owner believes that this regulation is an

unreasonable interference with his right to use and enjoy his property? He may decide

to file a regulatory takings claim against the city. That claim is expensive to defend,

and could result in a Texas hill country landscape being developed unchecked by those

who would use “scorched earth” construction tactics like this:




                                           9
         Prior to the Court’s opinion in this case, the Amici argue that such a claim

would not have merit because the city made an administrative decision that the tree

preservation regulation was reasonable and applicable in this situation. Therefore, it

could not be characterized as an “unreasonable interference” with the property owner’s

use and enjoyment. However, after the Court’s opinion in this case, if the owner were

to assert a regulatory takings claim against the city, it would appear that the city’s

decision that the tree preservation regulation is reasonable and applies to this property

would be subject to de novo review. That would expose the city and taxpayers to the

financial costs of defending itself in litigation and constantly relitigating the

reasonableness and applicability of its platting and subdividing regulations.

         This is only one example of how a routine regulatory practice of cities all over

the state will be adversely affected by the Court’s majority opinion. Cities have been

charged with the responsibility of protecting the public’s health and safety in a variety

of ways, which extend from implementing zoning restrictions4 to regulating swimming

pool enclosures.5 Inevitably, that responsibility will have an affect on an individual’s

use of his or her property. But if every municipal decision that affects individual

property rights must be reviewed de novo by a court, the financial burden involved




4
    TEX. LOC. GOV'T CODE § 211.003 .

5
    TEX. LOC. GOV'T CODE §§ 214.101, 214.102.



                                            10
will be a significant obstacle to a city’s ability to protect the public from serious health

and life safety risks.

III.   As written, the Supreme Court’s opinion could expose cities to takings
       claims for every abatement or regulatory decision made in the past 10
       years.

       To make matters worse, courts have held that an action for a physical or

regulatory taking is barred after the expiration of the ten-year period of limitations.

See TEX. CIV. PRAC. REM. CODE §§ 16.003(a), 16.026(a); Grunwald v. City of Castle

Hills, 100 S.W.3d 350, 353-54 (Tex. App.—San Antonio 2002, no pet.); Bayouth v.

Lion Oil Co., 671 S.W.2d 867, 868 (Tex.1984); Brazos River Auth. v. City of Graham,

354 S.W.2d 99, 110 (Tex. 1961); Hues v. Warren Petroleum Co., 814 S.W.2d 526,

528–29 (Tex. App.—Houston [14th Dist.] 1991, writ denied). An action for damage to

property is governed by the two-year period of limitations. Id. Consequently, every

property that has been declared a nuisances and abated or even regulated in the past 10

years has a colorable takings claim against the city.

       Even if the takings claims proves to be unsuccessful, the cost associated with

defending the lawsuits is unpredictable and would create severe financial hardship for

cities and taxpayers. Accordingly, the Amici urge the Court to grant the Motion for

Rehearing to at least clarify the opinion’s applicability to other abatement and

regulatory decisions made by non-judicial municipal bodies. In addition, the Amici

seek clarification that a judge of a municipal court of record is a competent judicial

body to hear and make public nuisance determinations under current statutory

authority. Granting the Motion and making the clarifications described above will


                                            11
save the taxpayers the time, money, and extended exposure to health and safety risks

that will result if these issues must be resolved through piecemeal litigation. One way

the Court could narrow its opinion is by providing that a city’s building and standards

commission or city council serving in that capacity make express and detailed findings

of fact in substandard building determinations. A court could then review those facts

pursuant to any subsequent takings claim, which would do away with the requirement

for a de novo review. It may even be appropriate for the Court to examine whether a

legislative modification to Texas Local Government Code Chapters 54 and/or 214

could successfully implement a holding of that nature.

                                       PRAYER

       Amici Curiae, the Texas Municipal League and Texas City Attorneys

Association, respectfully request that this Court grant the City’s Motion for Rehearing.

If the rehearing is granted, the Amici Curiae request the Court to reverse its prior

opinion and render judgment in favor of the City’s right to assert its prior nuisance

determination as a dispositive affirmative defense to the takings claim.               Or

alternatively, limit the Court’s opinion to the particular facts presented in this appeal.

Without clarification and/or a carefully narrowed interpretation of a city’s authority to

abate public nuisances, the broad wording of the opinion may have the practical effect

of eviscerating the historic police power of cities to protect the health, safety and

welfare of their citizens.




                                           12
Respectfully submitted,



__/s/ Scott N. Houston_________

Scott N. Houston
General Counsel
State Bar No. 24012858
Texas Municipal League
1821 Rutherford Lane, Suite 400
Austin, Texas 78754
(512) 231-7400 – Phone
(512) 231-7490 – Fax


Lowell F. Denton
State Bar No. 05764700
Erin A. Higginbotham
State Bar No. 24065418
Denton, Navarro, Rocha & Bernal
A Professional Corporation
2517 N. Main Avenue
San Antonio, Texas 78212
(210) 227-3243 – Phone
(210) 225-4481 – Fax

Counsel for Amici Curiae,
Texas Municipal League and
Texas City Attorneys Association.




13
                          CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing Brief of Amici

Curiae has been served upon the following individuals by first class mail or through e-

service this 22nd day of August, 2011:

Thomas P. Perkins, Jr.
Barbara Rosenberg
Christopher D. Bowers
James Pinson
Patricia Medrano
City Attorney’s Office
1500 Marilla Street, Room 7B North
Dallas, Texas 75201

Julius Staev, Esq.
8144 Walnut Hill Lane, Suite 1080,
Dallas, Texas 75231

Wayne K. Olson, Esq.
Fredrick “Fritz” Quast
Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
6000 Western Place, Suite 200
Fort Worth, Texas 76107-4654

Michael D. Bernard, Esq.
Martha G. Sepeda, Esq.
Jose I. Nino, Esq.
Savita Rai, Esq.
City of San Antonio
Office of the City Attorney
401S. Frio
San Antonio, Texas 78207




                                          14
Arturo G. Michel, Esq.
Donna L. Edmundson, Esq.
Sandra N. Eidson, Esq.
Arva L. Howard, Esq.
City of Houston
Office of the City Attorney
P. O. Box 1562
900 Bagby St.
Houston, Texas 77251

Rance L. Craft
Assistant Solicter General
Office of the Attorney General
P.O. Box 12548 (MC059)
Austin, Texas 78711-2548




                                 /s/ Scott N. Houston_________________
                                 SCOTT N. HOUSTON
                                 LOWELL F. DENTON
                                 ERIN A. HIGGINBOTHAM




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