the City of Crowley v. Doug Ray

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00409-CV
THE CITY OF CROWLEY APPELLANT
V.
DOUG RAY APPELLEE
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FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 342-238173-09
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OPINION
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I. INTRODUCTION
Appellant The City of Crowley pursues its second interlocutory appeal in
this litigation stemming from Appellee Doug Ray’s efforts to develop a residential
subdivision in the City. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8)
(West Supp. 2017). In the first four of its five issues, the City argues that the trial
court lacks subject-matter jurisdiction over Ray’s inverse-condemnation claim
because the claim is unripe, because Ray failed to exhaust administrative
remedies, because the City is immune from suit, and because the claim fails as a
matter of law. In its fifth issue, the City challenges the trial court’s authority to
award attorneys’ fees after summarily disposing of Ray’s claim for declaratory
relief. We will affirm.
II. BACKGROUND
The crux of the underlying dispute centers around Ray’s complaint that the
City prohibited him from developing his property in accordance with the City’s
adopted floodplain criteria. We do not tackle that merits question in this
interlocutory appeal, because it is not before us, but it nevertheless plays a
prominent role in our analysis of the City’s issues. Some history is therefore
required to contextualize it.
A. Ray’s Place II—Phases 1 and 2
In January 1999, the City requested that the Federal Emergency
Management Agency (FEMA) revise the Flood Insurance Rate Map (FIRM) and
the Flood Insurance Study (FIS) report for Tarrant County, Texas and
Incorporated Areas to include a flood study that Jerry Parché Consulting
Engineers performed in connection with a proposed residential subdivision
located south of the North Fork of Deer Creek in the City. In response to the
request, FEMA issued a Letter of Map Revision (LOMR) dated March 9, 1999,
and a corrected LOMR effective July 20, 1999. In his affidavit attached to Ray’s
response to the City’s plea to the jurisdiction, Ronald W. Morrison, a registered
professional engineer, stated that the March and July 1999 LOMRs “revised the
2
FIRM and FIS reports, both dated August 2, 1995,” were “reviewed by the City
consultant Teague Nall and Perkins,” and “were adopted by the City of Crowley.” 1
In May 1999, Ray purchased 2 two-acre tracts located adjacent to, or just
north of, the North Fork of Deer Creek to develop a multifamily residential
subdivision. Ray collectively named the properties Ray’s Place II. The August
1995 FIRM and FIS reports, as modified by the March and July 1999 LOMRs,
“cover” the properties. The 1999 LOMRs, based upon the Parché study, listed
the 100-year floodplain elevation where Ray’s Place II is located at 751 feet.
In October 2001, Ray submitted a preliminary plat for the entire four acres
of Ray’s Place II, consisting of seventeen lots and sixteen buildings. When the
City requested information about the 100-year floodplain based on a fully
developed watershed, Ray responded with the 1999 LOMRs. The City approved
the preliminary plat.
Having decided at some point to develop Ray’s Place II in two separate
phases, Ray then submitted a proposed final plat for the northernmost 1.3 acres,
1
Ray directs us to the following ordinance:
Sec. 42-38. Basis for establishing the areas of special flood hazard.
The areas of special flood hazard identified by the Federal
Emergency Management Agency in a scientific and engineering
report entitled, “The Flood Insurance Study for City of Crowley,”
dated August 2, 1995, with accompanying flood insurance rate maps
and flood boundary-floodway maps (FIRM and FBFM), and any
revisions thereto, are hereby adopted by reference and declared to
be a part of this article.
(Ord. No. 95-583, art. 3, § B, 8-17-95)
3
which he called Ray’s Place II, Phase 1.2 The City did not ask Ray to submit a
new flood study along with the final plat, which it approved in October 2002.
Thus, at least as to Phase 1’s development, Ray recounted that the 1999 LOMRs
were “sufficient to provide the information regarding the 100-year floodplain
location.” Ray obtained building permits, constructed six fourplexes, and leased
the units before selling them in May 2005 for approximately $242,000 per lot.
Ray began developing Phase 2—the southern 2.7 acres of Ray’s Place
II—around December 2006. As happened with Phase 1, when Ray submitted a
preliminary plat for Phase 2 (covering lots 1‒6 and 13‒17), the City requested
that he supply information about the 100-year floodplain, and Ray responded that
he was relying upon the figures contained in the Parché study, which were
incorporated into the FIRM via the 1999 LOMRs. The City approved the
preliminary plat in April 2007.
The following month, Ray submitted a proposed final plat for Phase 2, but
unlike with the Phase 1 development, the City informed Ray that he had to have
a new flood study performed. Ray complied and submitted a new flood study by
Nave Engineering, Inc. The Nave study touched on the City’s reason for
requesting an updated flood study:
In 1998 Jerry Parche Consulting Engineers (JPC) submitted a
LOMR request for the North Fork of Deer Creek for the Stone Brook
Addition to the south of the project site. At that time the rational
2
The Phase 1 lots “are the ones farthest from the” North Fork of Deer
Creek.
4
method was used to determine the 100-year runoff discharge for the
site.
Since that time Teague Nall and Perkins (TNP) has conducted
[a] flood study and replaced the culverts at S. Hampton Road just
downstream of the project site. At that time it was determined that
the discharge for the North Fork of Deer Creek was higher than the
flows found in the JPC study. Additionally Carter and Burgess, Inc.
(CBI) conducted a flood study for the proposed Creekside Addition
upstream of the project site and produced discharges similar to
those found in the TNP study. As a result the City of Crowley
requested that the North Fork of Deer Creek hydrology and hydraulic
models be updated for the proposed project.
Neither side offers much insight into the specific results of the Nave study,
but it evidently affected the City’s opinion about the minimum finished floor
elevations for Phase 2. Specifically, both Ray and Cheryl McClain, the City’s
planning and zoning administrator, explained that the City requires finished floor
elevations to be, at a minimum, two feet above a property’s floodplain elevation.
Relying on the 1999 LOMRs, which were based on the Parché study and which
set the 100-year floodplain elevation for the location of Ray’s Place II at 751 feet,
Ray testified that to build Phase 2, the minimum finished floors would have to be
no less than 753 feet and that the Phase 2 buildings were initially designed to
have a finished floor elevation of 755 feet. But instead of “allow[ing him] to
develop [Phase 2] using the effective floodplain” elevation of 751 feet, Ray
testified that the City is requiring that the finished floors be “10 feet above the
City’s current floodplain criteria,” or at an elevation of no less than 761 feet.3 Ray
3
To be precise, the final plat, which the City ultimately approved, reflects
that the figure is 761.5 feet.
5
calls the City’s minimum 761.5-foot finished floor elevation arbitrary, but Teague
Nall and Perkins advised the City in a memo that “[t]he updated flood study [the
Nave study] will be used for establishing minimum finished floor elevations,” and
page seven of the Nave study contains the following statement:
C. Minimum Finished Floors
The minimum finished floors for lots adjacent to the floodplain are
761.50'. This elevation is 2.00' above the 100-year floodplain water
surface.
It thus appears that the Nave study did not reach the same conclusion that the
Parché study had about the 100-year floodplain elevation for the area where
Phase 2 is located and that the City is utilizing the Nave study’s figures, not the
1999 LOMRs’.4
Ray estimated that to raise the property up by 10 feet, he would have “to
bring in about 270,000 yards of dirt, build retaining walls, pour more footings on
foundations to taper up because it starts right at the edge of the original Phase 1.
We couldn’t put one unit on it without raising the dirt.” He opined that it is no
longer economically feasible to develop the property and that it has no potential
use without “raising the dirt.”
4
Greg Saunders of Teague Nall and Perkins opined in an affidavit that the
FIRM and FIS “do not control the location of the 100 year flood plain; they merely
identify the location of the 100 year flood plain as of the date of the adoption of
the FIRM by the city.” He continued, “If the developer’s updated drainage study
shows that the 100 year flood plain is different than what is shown in the FIRM,
the information contained in the updated drainage study controls the
development criteria for the Property, not the FIRM or FIS.”
6
B. Litigation
In 2009, Ray sued the City for declaratory relief and Teague Nall and
Perkins for negligence and other claims. The City argued in a plea to the
jurisdiction that it was immune from Ray’s suit because he had failed to allege a
valid claim for declaratory relief, but the trial court denied the City’s plea, and this
court affirmed the trial court’s interlocutory order. See City of Crowley v. Ray,
No. 02-09-00290-CV, 2010 WL 1006278, at *5, *7 (Tex. App.—Fort Worth Mar.
18, 2010, no pet.) (mem. op.). Before the trial court granted the City summary
judgment on some of Ray’s claims for declaratory relief, Ray filed an amended
petition that added a claim against the City for inverse condemnation, averring
that the City’s actions effected an unconstitutional taking of property. The City
then filed another jurisdictional plea, this time arguing that Ray’s inverse-
condemnation claim is unripe and that its governmental immunity had not been
waived. After a hearing at which testimonial and documentary evidence was
admitted, the trial court denied the City’s plea, and this interlocutory appeal
followed.5
III. STANDARD OF REVIEW
The City premised its jurisdictional challenge on both ripeness and
governmental immunity. Ripeness, like standing, is a component of subject-
matter jurisdiction and may be raised in a plea to the jurisdiction. Mayhew v.
5
The trial court issued findings of fact and conclusions of law.
7
Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S.
1144 (1999). Immunity from suit likewise defeats a trial court’s subject-matter
jurisdiction and is therefore properly asserted in a plea to the jurisdiction. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225‒26 (Tex. 2004).
A plea to the jurisdiction may challenge either the pleadings or the
existence of jurisdictional facts. Id. at 226‒27. When the pleadings are
challenged, we consider whether the pleader has alleged sufficient facts to
demonstrate the court’s subject-matter jurisdiction over the matter, construing the
pleadings liberally in favor of the plaintiff and looking to the pleader’s intent. Id.;
see City of Waco v. Kirwan, 298 S.W.3d 618, 621 (Tex. 2009). When the
existence of jurisdictional facts is challenged, we consider relevant evidence
submitted by the parties when necessary to resolve the jurisdictional issues that
have been raised. Miranda, 133 S.W.3d at 227. If the relevant evidence is
undisputed or fails to raise a fact question on the jurisdictional issue, the trial
court rules on the plea to the jurisdiction as a matter of law. Id. at 228. We
review a trial court’s ruling on a plea to the jurisdiction under a de novo standard.
Id.
IV. FINAL DECISION RIPENESS AND EXHAUSTION OF ADMINISTRATIVE REMEDIES
In its first issue, the City argues that Ray’s inverse-condemnation claim is
not ripe for judicial review because the City has made no final decision involving
Phase 2’s development. In its second issue, which the City joins with its first, the
City contends that Ray failed to exhaust administrative remedies or other
8
procedures that might have alleviated the alleged regulatory taking. Ray
responds that dismissal is inappropriate under either theory.
A. Regulatory takings
Article I, section 17 of the Texas constitution, the “takings clause,”
mandates that “[n]o person’s property shall be taken, damaged, or destroyed for
or applied to public use without adequate compensation being made, unless by
the consent of such person . . . .” Tex. Const. art. I, § 17. When the State takes
private property for public use without just compensation, the property owner
may seek just compensation through a cause of action for inverse condemnation.
State v. Clear Channel Outdoor, Inc., 274 S.W.3d 162, 164 (Tex. App.—Houston
[1st Dist.] 2008, no pet.). The proceeding is “inverse” because the property
owner brings the suit, as compared to a condemnation proceeding brought by a
governmental entity to appropriate private property for a public purpose. City of
Carrollton v. HEB Parkway S., Ltd., 317 S.W.3d 787, 792 (Tex. App.—Fort Worth
2010, no pet.).
A taking can take the form of a physical invasion of property or a regulation
that imposes some limitation on how the property can be used. Lowenberg v.
City of Dallas, 168 S.W.3d 800, 801 (Tex. 2005). Ray’s inverse-condemnation
claim complains of the latter, a regulatory taking violative of article I, section 17 of
the Texas constitution. See Tex. Const. art. I, § 17. The City largely bases its
ripeness argument on federal regulatory takings jurisprudence, but that is no
problem because we look to federal jurisprudence construing and applying the
9
Fifth Amendment when analyzing article I, section 17. See Sheffield Dev. Co. v.
City of Glenn Heights, 140 S.W.3d 660, 669 (Tex. 2004).
The United States Supreme Court has identified two categories of
regulatory action that generally will be deemed per se takings under the Fifth
Amendment. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538, 125 S. Ct. 2074,
2081 (2005). One categorical rule covers regulations that completely deprive an
owner of all economically beneficial use of the owner’s property. Id., 125 S. Ct.
at 2081 (citing Lucas v. S. Carolina Coastal Comm’n, 505 U.S. 1003, 112 S. Ct.
2886 (1992)). The other requires an owner to suffer a permanent physical
invasion of her property, no matter how small. Id., 125 S. Ct. at 2081 (citing
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct. 3164
(1982)). Regulatory-takings challenges not covered by these two categories (or
by exaction standards) are governed by the factors analysis set out in Penn
Central Transportation Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646
(1978). Id. at 538‒39, 125 S. Ct. at 2081‒82.
B. Ripeness
1. Final decision
As with any other claim, to be justiciable, an inverse-condemnation claim
premised upon a regulatory taking must be ripe for judicial review.6 Mayhew v.
Town of Sunnyvale, 964 S.W.2d at 928‒29. A regulatory takings claim ordinarily
6
Again, we may look to federal authorities when considering ripeness
challenges to regulatory-takings claims. See Mayhew, 964 S.W.2d at 928‒29.
10
“is not ripe until the government entity charged with implementing the regulations
has reached a final decision regarding the application of the regulations to the
property at issue.” Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 186, 105 S. Ct. 3108, 3116 (1985). Stated
differently, ripeness requires “a final and authoritative determination of the type
and intensity of development legally permitted on the subject property.”
MacDonald, Sommer & Frates v. Yolo Cty., 477 U.S. 340, 348, 106 S. Ct. 2561,
2566 (1986). A final decision is necessary because it establishes, with sufficient
certainty, what limitations will be placed on the property. See id. at 350‒51, 106
S. Ct. at 2567. “Although there is no single rule dispositive of all questions of
finality, courts . . . should treat as final a decision ‘which is definitive, promulgated
in a formal manner and one with which the agency expects compliance.’” Texas-
New Mexico Power Co. v. Tex. Indus. Energy Consumers, 806 S.W.2d 230, 232
(Tex. 1991) (quoting 5 J. Stein, G. Mitchell & B. Mezines, Administrative Law 48-
10 (1988)).
2. The City made a final decision
The City first argues that Ray’s inverse-condemnation claim is unripe for
the following reason:
[Ray’s] only requests have been to develop Phase 2 to the fullest
extent possible, forcing as many lots, residential units, and buildings
on the 2.7-acre property as legally and practically possible. His
takings theory is based on the assumption that full development of
the property with as many four-plexes and buildable lots as
physically possible will require considerable expense to raise the
finished floors of each structure to two feet above base flood
11
elevation as determined by [Ray’s] engineer. . . . Moreover, [Ray’s]
only development proposal is to build virtually identical two-story
four-plexes on each lot with two residences on the first floor. [Ray’s]
proposal does not consider the option of structures with vehicle
garage or uninhabitable storage space on the ground floor.
The argument, quite clearly, attempts to analogize the facts of this case to those
in MacDonald and, consequently, seeks to obtain the same result that the
governmental entity in that case achieved. The analogy is inappropriate.
In MacDonald, the petitioner submitted a proposal to subdivide a tract of
land into 159 single-family and multifamily residential lots. MacDonald, 477 U.S.
at 342, 106 S. Ct. at 2563. The county rejected the plan for several reasons,
including issues involving inadequate access, sanitation services, and police
protection, and the petitioner immediately filed suit. Id. at 343‒44, 106 S. Ct. at
2563‒64. Siding with the county, the California court of appeals observed that
the petitioner’s claim failed because it had sought “approval of a particular and
relatively intensive residential development,” the “denial [of which could not] be
equated with a refusal to permit any development”; “[l]and use planning is not an
all-or-nothing proposition. A governmental entity is not required to permit a
landowner to develop property to [the] full extent he might desire or be charged
with an unconstitutional taking of the property.” Id. at 347, 106 S. Ct. at 2565.
Connecting the state appellate court’s reasoning to its final-decision
jurisprudence, the Supreme Court stressed the difficulty (or impossibility) of
attempting to determine whether a regulatory taking had occurred before the
governmental entity makes a final decision that applies the relevant regulation to
12
the property. Id. at 348‒51, 106 S. Ct. at 2566‒567. “Our cases uniformly reflect
an insistence on knowing the nature and extent of permitted development before
adjudicating the constitutionality of the regulations that purport to limit it.” Id. at
351, 106 S. Ct. at 2567. Because there was a possibility that some development
would be permitted, and because the petitioner had not received a final decision
from the county, the Supreme Court concluded that the petitioner’s claim was not
ripe. Id. at 351‒52, 106 S. Ct. at 2567‒68.
Unlike the petitioner in MacDonald, Ray did not dash to the courthouse
and file suit immediately after the City denied a proposal to intensively develop
Ray’s Place II “to the fullest extent possible.” Instead, Ray claims that by
requiring him to raise the minimum finished floor elevation to ten feet above “the
current adopted floodplain criteria” instead of only two feet, the City has
prohibited him from developing Phase 2 using “the effective floodplain,” rendering
the property’s development economically unfeasible in light of the costs
associated with “raising the dirt.” And from our review of the record, the City
would probably insist on the same requirement even if Ray proposed a less
intense development. Thus, the nature of the alleged taking is not one that left
open the possibility that the property could be developed some other way,
thereby precluding a final decision on the type and intensity of the development.
13
The City also argues that Ray’s regulatory-taking claim is not ripe because
“[t]here were no variances, flood determination appeals, CLOMRs,[7] [or]
administrative determination appeals requested or filed.” But “[t]he futility of
complying with applicable administrative procedures has been recognized as an
exception to the ripeness doctrine in takings cases.” Barlow & Haun, Inc. v.
United States, 118 Fed. Cl. 597, 617 (2014); see Mayhew, 964 S.W.2d at 929
(observing that “futile variance requests or re-applications are not required”).
The record shows that the City formally approved Phase 2’s final plat with a
minimum finished floor elevation of 761.5 feet, that the City stressed through its
questioning of Ray at the hearing on the plea that Phase 2 must not be
developed so that it is amenable to flooding and is unsafe, and that Ray sought
to develop Phase 2 in accordance with the “effective floodplain” for the location,
not contrary to it. In its reply brief, the City states that “it is audacious to suggest
the City should or even that it has the legal authority to ignore the results of the
Nave study.” We think the record fairly shows that the City has taken the
definitive position that the minimum finished floor elevations for Phase 2 must be
no lower than ten feet above 751 feet and that Ray’s pursuing a variance or other
administrative procedure at this point would be futile.
7
CLOMR is an acronym for conditional letter of map revision, “FEMA’s
comment on a proposed project that would, upon construction, affect the
hydrologic or hydraulic characteristics of a flooding source and thus result in the
modification of the existing regulatory floodway.” City of Keller v. Hall, 433
S.W.3d 708, 717 & n.51 (Tex. App.—Fort Worth 2014, pet. denied) (citing 44
C.F.R. § 72.2 (West, Westlaw through Aug. 10, 2018)).
14
As we observed at the outset, the dispute stems from the City’s decision to
utilize the Nave study’s flood-elevation data instead of the 1999 LOMRs’. The
City’s decision on the minimum finished floor elevation is definitive, sufficiently
formal, and one with which the City certainly expects compliance. See Texas-
New Mexico Power Co., 806 S.W.2d at 232. Ray’s inverse-condemnation claim
is not unripe for lacking a final decision by the City. We overrule the City’s first
issue.
C. Exhausting administrative remedies
The City supports its second issue—that Ray failed to exhaust
administrative remedies—with the same argument that it used to support the
second half of its first issue: “There were no variances, flood determination
appeals, CLOMRs, [or] administrative determination appeals requested or filed.”
But while questions of ripeness and exhaustion of administrative remedies often
overlap, they involve “distinct and separate inquiries.” Garrett Operators, Inc. v.
City of Houston, 360 S.W.3d 36, 41 (Tex. App.—Houston [1st Dist.] 2011, pet.
denied). “The requirement of a final decision, in [the] context of an inverse
condemnation case, concerns whether the governmental entity charged with
implementing the regulation that allegedly caused the taking has fixed some legal
relationship between the parties.” Id. at 41‒42 (citing Texas-New Mexico Power
Co., 806 S.W.2d at 232). “In contrast, exhaustion of administrative remedies
concerns whether an agency has exclusive jurisdiction in making an initial
determination on the matter in question and whether the plaintiff has exhausted
15
all required administrative remedies before filing a claim in the trial court.” Id. at
42. The City directs us to two cases that aptly address the latter concept: City of
Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012) (op. on reh’g), and City of Dallas
v. VSC, LLC, 347 S.W.3d 231 (Tex. 2011).
In VSC, the supreme court concluded that VSC had prematurely sued the
City of Dallas for unconstitutionally taking its vehicles because VSC had failed to
first utilize the remedial statutory procedure contained in code of criminal
procedure chapter 47. 347 S.W.3d at 234‒37. In contrast, in Stewart, the
supreme court reasoned that Stewart had properly asserted her takings claim in
district court after having first challenged an administrative board’s determination
that her property was an urban nuisance. 361 S.W.3d at 579. The logical
rationale sustaining both cases is straightforward: If the legislature has made
available a statutory procedure that may provide compensation, then “recourse
may be had to a constitutional suit only where the procedure proves inadequate.”
VSC, LLC, 347 S.W.3d at 236; see Williamson Cty. Reg’l Planning Comm’n, 473
U.S. at 194‒95, 105 S. Ct. at 3121 (“If the government has provided an adequate
process for obtaining compensation, and if resort to that process ‘yield[s] just
compensation,’ then the property owner ‘has no claim against the [g]overnment’
for a taking.” (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1013, 104
S. Ct. 2862, 2878 (1984))).
The City argues that Ray never “sought to formally appeal any
administrative determination under the City’s subdivision ordinance or flood
16
prevention regulations,” but the City does not disclose or otherwise direct us to
any remedial statutory scheme that Ray should have utilized before suing the
City, nor do we feel compelled to rummage through the City’s ordinances in
search of some supposed administrative procedure without any guidance from
the parties. See Stewart, 361 S.W.3d at 565‒66 (identifying subchapter C of
local government code chapter 54 and Dallas ordinances); VSC, LLC, 347
S.W.3d at 234 (identifying code of criminal procedure chapter 47).
The City complains that Ray never sought a variance or an LOMR, but
neither procedure would have obviated the need to file the underlying suit
because Ray sought to design Phase 2 so that its minimum finished floor
elevations complied with, not varied from, the floodplain elevation that the City
had allegedly adopted. See Variance, Black’s Law Dictionary (10th ed. 2014)
(defining variance to mean “[a] license or official authorization to depart from a
zoning law”) (emphasis added)). We cannot conclude that the City met its initial
burden to prove that Ray’s failure to exhaust administrative remedies deprived
the trial court of subject-matter jurisdiction over his inverse-condemnation claim.
We overrule the City’s second issue.
V. DIRECT CITY ACTION OR CAUSATION
In its third issue, the City argues that its governmental immunity has not
been waived because Ray failed to allege or produce any evidence that the City
intentionally and directly acted to cause a taking.
17
Governmental immunity is not waived when a plaintiff fails to allege a valid
inverse-condemnation claim. City of Argyle v. Pierce, 258 S.W.3d 674, 683 (Tex.
App.—Fort Worth 2008, pets. dism’d). To state a cause of action for inverse
condemnation under the Texas constitution, a plaintiff must allege (1) an
intentional governmental act, (2) that resulted in a taking of property, (3) for
public use. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598
(Tex. 2001). “The governmental entity sued must have taken direct
governmental action, or have been the proximate cause, of the harm.” Hearts
Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 484 (Tex. 2012), cert. denied,
569 U.S. 947 (2013).
The City directs us to Hearts Bluff. There, the plaintiff purchased
approximately 4,000 acres of bottomland in Northeast Texas to create a federal
mitigation bank. Id. at 473. The land purchased fell within the bounds of a site
long identified by the State as a possible drinking water reservoir to service the
DFW area—the potential Marvin Nichols Reservoir. Id. at 474. The United
States Army Corps of Engineers ultimately denied the plaintiff’s application for a
permit because the mitigation bank would not exist in perpetuity if the legislature
chose to build the reservoir. Id. at 475. The plaintiff then sued the State for
inverse condemnation, theorizing that the Corps denied the permit because the
legislature had approved a 2006 water plan issued by the Texas Water
Development Board that recommended conferring a “unique” designation on the
potential reservoir site, which effectively destroyed the perpetuity requirement for
18
mitigation banking. Id. at 475, 479. The supreme court concluded that the
plaintiff had not alleged a valid takings claim because the Corps denied the
permit, not the State, and because the State did not directly restrict the land by
merely designating the property as “unique.” Id. at 481.
The City claims that Ray relies upon the following “specific allegations of
direct action” to support his inverse-condemnation claim: he “bought the property
under the impression or unaware that it was affected or impacted by the 100-year
flood plain,” he “proceeded with development of the second phase relying on the
1995 FIRM as modified by the 1999 LOMR,” and “the City and TNP required
[him] to obtain a new flood study.” The City argues that because Ray’s claim
“focus[es] on the location of the 100-year floodplain across Phase Two,” it cannot
be held liable for any regulatory taking “based on the location of the 100-year
flood plain or the federally-mandated regulations which accompany that
designation.” The City thus contends that like the plaintiff in Hearts Bluff, who
failed to state a valid claim by seeking to hold the State liable for the Corps’
unilateral act of denying the permit, Ray has failed to state a valid claim by
seeking to hold the City liable under a takings theory that is premised upon the
floodplain elevation as set by the 1999 LOMRs. The City’s attempt to shift
responsibility is unpersuasive (not to mention contrary to basic notions of
proximate causation).
As we have repeatedly clarified, Ray sued the City because it prohibited
him from developing Phase 2 using the “effective” floodplain criteria. That Ray
19
sought to develop Phase 2 using the figures contained in the 1999 LOMRs does
not mean that the LOMRs are responsible for the City’s refusal to utilize them
during the development stage. Ray thus complains of direct, governmental
action by the City, and he submitted supporting jurisdictional evidence. If any
comparison can be made between Hearts Bluff and this case, the complained-of
action taken by the City here is much more akin to the Corps’ denial of the
application for the mitigation bank permit than to the State’s conduct in identifying
the land as a potential reservoir site. We overrule the City’s third issue.
VI. LUCAS CLAIM
In its fourth issue, the City argues that Ray’s Lucas claim fails as a matter
of law because “the relevant parcel for takings analysis must include the Phase 1
lots,” which Ray was able to develop, rent, and sell to investors for a profit,
thereby eliminating Phase 2’s alleged economical-value deficiency. See Tahoe-
Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 330,
122 S. Ct. 1465, 1483 (2002) (observing that Lucas holding “was limited to ‘the
extraordinary circumstance when no productive or economically beneficial use of
land is permitted’”) (quoting Lucas, 505 U.S. at 1017, 112 S. Ct. at 2894)). The
City contends that Phase 1 and Phase 2 should be treated as one property for
purposes of a value determination because Ray purchased Phase 1 and Phase 2
at the same time and because Ray initially attempted to develop the entire four
acres simultaneously.
20
The United States Supreme Court recently explained how a court should
identify the relevant parcel for purposes of determining whether a regulatory
taking has occurred, a potentially outcome-determinative issue. See Murr v.
Wisconsin, 137 S. Ct. 1933, 1945‒46 (2017). Consistent with its sustained
hesitance to craft inflexible, categorical rules in regulatory-takings cases, the
Supreme Court opted to utilize a factors analysis, which includes the treatment of
the land under state and local law, the physical characteristics of the land, and
the prospective value of the regulated land. Id. Ultimately, “[t]he endeavor
should determine whether reasonable expectations about property ownership
would lead a landowner to anticipate that his holdings would be treated as one
parcel, or, instead, as separate tracts.” Id. at 1945.
We disagree that Phase 1 has any relevance to Phase 2’s value
determination. Ray purchased the properties at the same time, but we fail to see
how the timing of the purchases alone could effectively override the separate
legal identity of each tract, nor does the City direct us to any local or state law
that requires the tracts to be treated as one. And although Ray initially submitted
a preliminary plat to develop both tracts at once, he ultimately decided to develop
the properties in two separate phases and submitted a final plat for only Phase 1.
21
Ray then proceeded to develop Phase 1, lease the units, and later sell them. All
of this happened before Phase 2’s development ever commenced.8
Moreover, as Ray observes, unlike with Phase 2, the City permitted Phase
1 to be built using the flood-elevation figures contained in the 1999 LOMRs. The
dispute between the parties over the applicable base floodplain elevation and
related minimum finished floor elevation thus has no effect on Phase 1’s long-
completed units. Further, unlike the properties at issue in Murr, which were
located along the Lower St. Croix River and subject to state law regulating their
development, there is nothing in the record to indicate that the Phase 1 and
Phase 2 properties are located in an area that is, or may at some point in the
future become, subject to “environmental or other regulation.” See id. at 1940,
1945–46.
The Murr factors and other relevant considerations weigh against treating
Phase 1 and Phase 2 as a single unit for purposes of making an economic-value
determination. We overrule the City’s fourth issue.
VII. ATTORNEYS’ FEES
In its fifth and final issue, the City argues that we should dismiss Ray’s still-
pending claim for attorneys’ fees because the trial court, by summary judgment,
disposed of the request for declaratory relief upon which the fees were
8
Ray sold the Phase 1 units in May 2005. He contacted Bill Boomer and
began developing Phase 2 in December 2006. Ray testified that he did
“[n]othing” with Phase 2 between 2002 and 2006.
22
predicated, and in the absence of a valid waiver of immunity, attorney’s fees are
not recoverable under the Uniform Declaratory Judgments Act. But as Ray
points out, the trial court has not made any award of attorneys’ fees one way or
the other; this is an interlocutory appeal, and no final judgment has been entered.
With no award of attorneys’ fees, any analysis by this court at this point would be
purely advisory and improper. See In re Fort Worth Star-Telegram, 441 S.W.3d
847, 857 (Tex. App.—Fort Worth 2014, orig. proceeding) (“The Texas
constitution’s separation of powers provision prohibits courts from issuing
advisory opinions that decide abstract questions of law.”). We therefore overrule
the City’s fifth issue.9
VIII. CONCLUSION
Having overruled the City’s five issues, we affirm the trial court’s order
denying the City’s jurisdictional plea.10
/s/ Bill Meier
BILL MEIER
JUSTICE
Insofar as we may not have accurately identified the City’s fifth issue, it is
9
waived as inadequately briefed. See Tex. R. App. P. 38.1(i) (requiring brief to
contain clear and concise argument for contention made).
10
As we are bound to do, we conducted a responsive analysis of only the
five specific issues that the City raised in its briefing on appeal. Our opinion,
therefore, should not be broadly construed as an endorsement that Ray
otherwise alleged a valid takings claim upon which relief may be granted.
23
PANEL: SUDDERTH, C.J.; WALKER and MEIER, JJ.
DELIVERED: August 23, 2018
24