City of Houston v. Noonan (Tex.App.- Houston [1st Dist.] May 21, 2009)(Radack)
(ripeness doctrine, denial of the City's plea to the jurisdiction affirmed)
The court overrules the City's issue and hold that Noonan's claim that the 2006
ordinance constitutes an unconstitutional regulatory taking of his property was
ripe for adjudication. The Court affirms the trial court's denial of the City's plea to
the jurisdiction.
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Taft and Sharp
01-08-01030-CV City of Houston v. Harold Dean Noonan, II
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Hon. Linda Storey
MEMORANDUM OPINION
Harold Dean Noonan, II filed suit against the City of Houston ("the City") claiming that a 2006
amendment to the City's Code of Ordinances regulating developments in floodways was an
unconstitutional taking of his property, a portion of which is located in the floodway. The City filed a
plea to the jurisdiction asserting that Noonan's claim was not ripe, and that, therefore, the trial court
had no jurisdiction to hear the case. The trial court denied the City's plea to the jurisdiction, and this
interlocutory appeal followed. We affirm.
BACKGROUND
In April 1998, Noonan purchased two lots totaling 25,352 square feet of land on the shore of Lake
Houston. After Tropical Storm Allison, the Federal Emergency Management Agency ("FEMA")
undertook a study of the impact of the storm on some of the bayous and drainage channels in the City
of Houston. As a result of this study, maps known as Flood Insurance Rate Maps ("FIRMs") were
created. Before these maps were created, Noonan's property was not in a floodway. The FIRMs,
however, for the first time, placed Noonan's property in a floodway.
In 2006, the Houston City Counsel voted to enact a comprehensive amendment to Chapter 19 of the
City's Code of Ordinances, known as the "Flood Plain Ordinance."
Section 19-43(a) provided as follows:
No permit shall hereafter be issued for a development to be located in any floodway . . . if that
development provides for . . . [n]ew construction, additions to existing structures, or substantial
improvement of any structure within the floodway[.]
Houston, Tex., Code of Ordinances §19-43(a)(2) (Ord. No. 2006-894) (2006) (since amended).
The ordinance also provided that the city engineer may issue permits "[f]or those facilities necessary to
protect the health, safety and welfare of the general public" or "for the construction of a bridge or the
repair or replacement of an existing bridge in a floodway[.]" Houston, Tex., Code of Ordinances
§19-43(b), (c) (Ord. No. 2006-894) (2006) (since amended). Noonan intended to build a residence on
his property, so neither of these exceptions allowing for development in floodways would apply to him.
Finally, section 19-20 of the ordinance provided in relevant part that "[v]ariances shall not be granted
for development within any floodway if the development cannot meet the requirements of 19-43(b) of
this Code." Houston, Tex., Code of Ordinances § 19-20 (Ord. No. 2006-894) (2006) (since amended).
As stated above, § 19-43 (b) permitted building in a floodway only if "necessary to protect the health,
safety and welfare of the general public."
Noonan filed suit against the City alleging that after the FEMA approved new FIRMs in June 2007, his
property was within a newly delineated floodway. Noonan alleges that, in light of that new designation,
the City's 2006 amendments to Section 19-43(a) of the Code prohibited the issuance of building
permits for "new construction, additions to existing structures or substantial improvement of any
structure" on his property. It is undisputed that Noonan intended to build a private residence on his
property.
The City, however, contends that Noonan's lawsuit is not ripe. Although Noonan filed an application for
a building permit, which was denied, he never filed an appeal or sought a variance, and, in fact,
withdrew his application. Thus, the City filed a plea to the jurisdiction contending that, because Noonan
had not appealed or sought a variance for his permit, his claims were not ripe, and the trial court lacked
jurisdiction to consider his petition.
Noonan responded that, under the plain language of the Code, his intended use for the
property--residential construction--was expressly forbidden and the Code allowed no discretion or
variances under such circumstances. After a hearing, the trial court denied the City's plea to the
jurisdiction, and this interlocutory appeal followed.
STANDARD OF REVIEW
We review the trial court's ruling on a plea to the jurisdiction under a de novo standard. Tex. Dep't of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). If the plea challenges the sufficiency of
the claimant's pleadings, the trial court must construe the pleadings liberally in the claimant's favor and
deny the plea if the claimant has alleged facts affirmatively demonstrating jurisdiction to hear the case.
If the pleadings are insufficient, the court should afford an opportunity to replead if the defects are
potentially curable but may dismiss if the pleadings affirmatively negate the existence of jurisdiction. Id.
at 226-27.
If the plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court must consider
relevant evidence submitted by the parties. Id. at 227. If the evidence creates a fact question regarding
jurisdiction, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be
resolved by the fact-finder. But 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
227-28. In reviewing the evidence presented in support of the plea to the jurisdiction, we take as true
all evidence favorable to the nonmovant. Id. at 228. We indulge every reasonable inference and
resolve any doubts in the nonmovant's favor. Id. "[T]his standard generally mirrors that of a summary
judgment under Texas Rule of Civil Procedure 166a(c). . . . By requiring the [political subdivision] to
meet the summary judgment standard of proof in cases like this one, we protect the plaintiffs from
having to put on their case simply to establish jurisdiction." Id. (internal quotations and citation omitted);
accord Dallas County v. Wadley, 168 S.W.3d 373, 377 (Tex. App.--Dallas 2005, pet. denied) ("[On a
plea to the jurisdiction,] the burden is on the government to meet the summary judgment standard of
proof.").
We remain mindful of the Texas Supreme Court's admonishment that, although the plaintiff's claims
may form the context against which the jurisdictional plea is determined, the plea generally "should be
decided without delving into the merits of the case." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
554 (Tex. 2000). In general, "the proper function of a dilatory plea does not authorize an inquiry so far
into the substance of the claims presented that plaintiffs are required to put on their case simply to
establish jurisdiction." Id.
RIPENESS
A regulatory-takings claim may challenge a land-use restriction on its face or as applied to particular
property. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 494, 107 S. Ct. 1232, 1247
(1987) (recognizing "an important distinction between a claim that the mere enactment of a statute
constitutes a taking and a claim that the particular impact of government action on a specific piece of
property requires the payment of just compensation"); City of Corpus Christi v. Pub. Util. Comm'n, 51
S.W.3d 231, 247 (Tex. 2001). A facial challenge is ripe when the restriction is imposed, but an
as-applied claim is not ripe until the regulatory authority has made a final decision regarding the
application of the regulation to the property. Compare Yee v. City of Escondido, 503 U.S. 519, 533-34,
112 S. Ct. 1522, 1531-32 (1992) with Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473
U.S. 172, 186, 105 S. Ct. 3108, 3116 (1985). Because Noonan does not allege that the sections of the
Code of Ordinances at issue do not "substantially advance a legitimate state interest" no matter how
they are applied, we construe Noonan's claim as one complaining that the Code, as applied to his
property, amounts to an unconstitutional regulatory taking. See Yee, 503 U.S. at 533-34, 112 S. Ct. at
1531-32.
Ripeness is an element of subject-matter jurisdiction and, as such, is subject to de novo review.
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928-29 (Tex. 1998). We look to the experience of the
federal courts in determining the ripeness of constitutional challenges to land-use regulations. Id.
"[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as
a taking." Pa. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S. Ct. 158, 160 (1922). In an as-applied
takings claim, "[a] court cannot determine whether a regulation has gone 'too far' unless it knows how
far the regulation goes." Mayhew, at 929. To that end, a "final decision" in this context usually requires
both a rejected development plan and the denial of a variance from the controlling regulation. Id.; see
also Williamson County Reg'l Planning Comm'n, 473 U.S. at 186-88, 105 S. Ct. at 3116 (holding takings
claim not ripe when property owner never sought variances from zoning ordinance).
The term "variance" is "not definitive or talismanic"; it encompasses "other types of permits or actions
[that] are available and could provide similar relief." Mayhew, 964 S.W.2d at 930. The variance
requirement is therefore applied flexibly in order to serve its purpose of giving the governmental unit an
opportunity to "grant different forms of relief or make policy decisions which might abate the alleged
taking." Id.
However, futile variance requests or re-applications are not required. Id. at 929. For instance, property
owners are not required to seek permits for developments that the "property owner does not deem
economically viable." Id. at 932; see also Palazzolo v. Rhode Island, 533 U.S. 606, 622, 121 S. Ct.
2448, 2460 (2001) ("Ripeness doctrine does not require a landowner to submit applications for their
own sake."). "While a landowner must give a land-use authority an opportunity to exercise its discretion,
once it becomes clear that the agency lacks the discretion to permit any development, or the
permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely
to have ripened." Palazzolo, 533 U.S. at 620, 121 S. Ct. at 2459. When an ordinance "prohibit[s]
precisely the use" the property owner "intended to make of th[e] property, and nothing in the ordinance
suggest[s] any exceptions would be made," the owner's "taking claim [i]s ripe upon enactment" of the
ordinance "because at that moment the 'permissible uses of the property [are] known to a reasonable
degree of certainty.'" Hallco Tex., Inc., 221 S.W.3d at 60 (quoting Palazzolo, 533 U.S. at 620, 121 S. Ct.
at 2459). We review the ripeness evidence before the trial court in the light most favorable to Noonan.
Miranda, 133 S.W.3d at 227-28.
The City argues that, because Noonan has withdrawn his application for a permit to develop his
property and never requested a variance, his claim for inverse condemnation cannot be ripe and the
trial court should have granted the City's plea to the jurisdiction. The City relies upon the Texas
Supreme Court's decision in Mayhew to argue that there must be a "final decision" before Noonan's
claim can be ripe. Without such an application, and a denial of that application, the City argues it
cannot be known for certain whether the Noonan's property has been taken or impaired in any way.
The City essentially argues that, despite the seemingly mandatory language of the ordinance, the City
or some agent thereof might grant Noonan a variance or development permit for his property to allow
construction.
The City's reliance on Mayhew is misplaced. In Mayhew, the Mayhews sought permission for a
development with a density exceeding the one-unit-per acre zoning requirement, and they told the town
officials that a planned development would not be feasible under the one-unit-per-acre zoning.
Mayhew, 964 S.W.2d at 925-26. After the Mayhews engaged in a series of discussions with officials
lasting over a year and submitted several studies and evaluative reports, the planned development
request was denied. Id. The Mayhews subsequently filed suit alleging, among other things, that the
town's refusal to approve the planned development was a taking of their property. Id. The town argued
that the Mayhews' claims were not ripe because they submitted only one planned development
application and did not thereafter reapply for development or submit a variance. Id. at 931. The
Supreme Court found that, under the unique facts of the case, the Mayhews' efforts to gain permission
for the development were sufficient to make their claim ripe, and any further applications would have
been futile. Id. Unlike Mayhew, this case does not present the issue of whether Noonan's efforts to gain
a variance or permit are sufficient, but whether the Code's plain language removes the need for any
such efforts.
Noonan points out that the plain language of section 19-43(a)(2) forbids exactly the type of
development he wishes to pursue on his property--"[n]ew construction, additions to existing structures,
or substantial improvement of any structure within the floodway[.]" In addition, Noonan points to section
19-20 of the Code which, while generally allowing applications for variances from the Code's
requirements on the grounds of a "substantial hardship," specifically forbids variances for development
within any floodway "if the development cannot meet the requirements of section 19-43(b) of this
Code," which permits a variance only to "protect the health, safety and welfare of the general public[.]"
See Tex., Code of Ordinances § 19-20. Thus, Noonan contends that applying for a permit or a
variance, or filing an appeal from the denial of a permit, would be an exercise in futility and a waste of
resources. We agree.
In light of the plain language of the ordinance, specifically section 19-20's prohibition of variances for
the type of development sought by Noonan, we believe the outcome in this case is controlled by the
United States Supreme Court's decision in Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725,
117 S. Ct. 1659 (1997) and the Supreme Court of Texas's opinion in Hallco Tex., Inc., 221 S.W.3d 50.
In Suitum, a landowner filed suit claiming an unconstitutional regulatory taking of her land after the
regional planning agency adopted a plan restricting development on parcels of land carrying runoff into
area watersheds, a designation that included her land. The agency rules at issue did not permit any
"additional land coverage or other permanent land disturbances" on such land. 520 U.S. at 730, 117 S.
Ct. at 1663. Further, the rules did not provide for variances or exceptions, although they did provide for
certain credits that landowners of land ineligible for construction could sell to owners of eligible parcels.
Id. The agency argued that Suitum's claim could not be ripe, in part because she had not yet applied
for a permit to develop her land. The Supreme Court disagreed, finding that, in light of the agency's
complete lack of discretion under its rules to actually allow Suitum to build on her land, "no occasion
exists for applying [the] requirement that a landowner take steps to obtain a final decision about the
use that will be permitted on a particular parcel." Id. at 739, 117 S. Ct. at 1667.
In Hallco, the plaintiff purchased land in McMullen County near the Choke County Reservoir, which
supplies water to Corpus Christi and surrounding areas. Hallco intended to operate an industrial waste
landfill on the site. 221 S.W.3d at 60. After Hallco purchased the land, an ordinance was passed
prohibiting the disposal of solid waste within three miles of the Reservoir, an area that included Hallco's
property. Id. at 52-53. The ordinance did not establish any procedures for obtaining a variance. Id. at
53. Hallco filed suit alleging that the ordinance amounted to an unconstitutional regulatory taking of its
property. Id. In addressing when Hallco's takings claim had ripened, the Court noted that "this is not a
case in which a general zoning or land-use restriction was subject to discretionary application." Id. at
60. Instead, "the ordinance here prohibited precisely the use that Hallco intended to make of this
property, and nothing in the ordinance suggested any exceptions would be made." Id. Accordingly, the
Court concluded that "Hallco's claim was ripe upon enactment because at that moment the permissible
uses of the property were known to a reasonable degree of certainty." Id. (citing Palazzolo, 533 U.S. at
620, 121 S. Ct. at 2459).
Like the plaintiff in Suitum, Noonan alleges that the Code does not provide the City or any other agency
discretion in allowing Noonan to develop or build upon his property as he desires. Similarly, as in
Hallco, the Code prohibits precisely the use Noonan intends to make of his property, and nothing in the
ordinance suggests any exceptions or variances would be granted to him for this use. Thus, like the
plaintiffs in Suitum and Hallco, we conclude that Noonan's claim under the 2006 ordinance was ripe,
despite the fact that Noonan withdrew his application and never applied for a variance. Such an
application or request for variance would have been futile.
Nevertheless, the City argues that, because the 2006 ordinance was amended in 2008, "and because
[Noonan] never ripened his claim under the 2006 Amendment to the Ordinance, it is not forever
impossible for [Noonan] to ripen his would-be claim under the 2006 amendment." However, we have
held that Noonan's claim under the 2006 amendment was ripe when Noonan's suit was filed. Thus, the
2008 amendment is irrelevant.
CONCLUSION
Accordingly, we overrule the City's issue and hold that Noonan's claim that the 2006 ordinance
constitutes an unconstitutional regulatory taking of his property was ripe for adjudication. We affirm the
trial court's denial of the City's plea to the jurisdiction.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Taft and Sharp.