City of Austin v. Teague
| Decision Date | 26 July 1978 |
| Docket Number | No. B-7197,B-7197 |
| Citation | 570 S.W.2d 389 |
| Parties | CITY OF AUSTIN, Petitioner, v. Joe M. TEAGUE et al., Respondents. |
| Court | Texas Supreme Court |
Jerry L. Harris, City Atty., Roy Rutland, III, Asst. City Atty., Austin, for petitioner.
Stayton, Maloney, Hearne & Babb, William M. Knolle and Douglass D. Hearne, Austin, for respondents.
Joe M. Teague, Adon Sitra and Cecil Ruby Company, Inc. sued the City of Austin for damages for inverse condemnation of eight and one-half acres of land bordering South Interregional Highway 35 in Austin, Texas. They asked also for an order commanding the City to issue a Water Development Permit required by the City's Creek Ordinance. After a jury trial the court ordered the City to issue the requested permit and rendered judgment for $109,939 for a taking and damaging of the property for the period from June 26, 1975, to November 1, 1976. The City obeyed the order to issue the permit and did not appeal from that part of the judgment. It appealed only from the judgment for damages. The court of civil appeals affirmed the judgment of the trial court conditioned upon a remittitur of $30,000 which the plaintiffs accepted. 556 S.W.2d 400. We reverse the judgments of the courts below and remand the cause to the trial court for a retrial of the damage issue.
When the plaintiffs purchased the land in late 1972, it was zoned as a local retail district. That zoning permitted such businesses as banks, motels, grocery stores and buildings up to sixty-five feet in height. In January, 1973, the plaintiffs bulldozed the brush, trees and other vegetation from the site to prepare the land for development. On January 11, 1973, local residents appeared before the City Council and urged it to stop further development. They asked the Council to take steps to have the site preserved as a scenic easement bordering the southern approach to downtown Austin. On January 26 the Council responded by adopting a resolution requesting the Texas Highway Department to study the feasibility of acquiring the land as a scenic easement. 1
Plaintiffs a short time later applied to the Austin Department of Public Works for a permit to enclose in concrete culverts Harper's Branch and a small tributary called the Ramble, both of which crossed the tract. That department's approval of the permit was appealed to the Planning Commission, which denied the application on April 10, 1973. At that time, plaintiffs were in complete compliance with the demands of every existing ordinance. At the meeting in which the Commission denied the permit, the Director of Planning recommended changes in certain existing ordinances and time for further study of the proposed changes. Plaintiffs then offered to sell the tract to the Texas Highway Department at a price below market value, but the offer was declined.
Plaintiffs submitted a second application for a permit after agreeing to a number of restrictions that were not included in the first application. The City Engineer again recommended that the permit be granted. On appeal, the Planning Commission had a tie vote which, under the City ordinance, did not operate to defeat the City Engineer's decision. On February 14, 1974, the City Council again denied the permit.
The City ordinances under which plaintiffs had made their two applications for a permit required compliance with certain engineering, drainage, and structural requirements, all of which the plaintiffs fulfilled. On February 14, 1974, the same day that the City Council denied the second application, the City Council set a date for a public hearing on what is called the New Creek Ordinance, which was adopted on March 7, 1974. That ordinance provided in its section (f) that any development must preserve "the natural and traditional character of the land and waterway to the greatest extent feasible." 2 The new ordinance for the first time required a Waterway Development Permit.
In February, 1975, the plaintiffs filed a third application for a permit. Plaintiffs' application eliminated the earlier proposal to enclose Harper's Branch in a culvert and proposed instead that the creek be rechannelled and lined with hand-laid stone. The Engineering Department and the Planning Commission again approved the application, but the City Council denied the third application on June 26, 1975. The New Creek Ordinance, which had been adopted after the second application was denied, was the basis of the third denial.
The posture in which the case reaches us is that the City wrongfully denied the permit sought by plaintiffs' third application. The trial court ordered the City to issue the permit to plaintiffs, and from that part of the judgment, the City did not appeal. The City cannot now dispute that its action was, as stated by the court of civil appeals, "unauthorized, unreasonable, arbitrary and an invalid exercise of the police power." The City's denial of the permit was (1) to prevent all development of the tract and (2) to preserve it as a scenic easement for the benefit of the public.
The City seeks to escape liability for damages by its contention that the denial of a permit was an exercise of its "police power." Plaintiffs, on the other hand, say that the Texas Constitution entitles them to damages for the City's exercise of the power of "eminent domain." Tex.Const. art. I, § 17. The labels are not helpful. These two doctrines police power and eminent domain merge at so many places when applied to specific problems, that the legal battlefields have been variously termed a "sophistic Miltonian Serbonian Bog," Brazos River Authority v. City of Graham, 163 Tex. 167, 176, 354 S.W.2d 99, 105 (1962); a "crazy-quilt pattern," San Antonio River Authority v. Garrett Brothers, 528 S.W.2d 266, 273 (Tex.Civ.App. San Antonio 1975, writ ref'd n. r. e.); "the manifest illusoriness of distinctions," DuPuy v. City of Waco, 396 S.W.2d 103, 107 (Tex.1965); producing decisions that are "conflicting, and often . . . irreconcilable in principle." Sauer v. City of New York, 206 U.S. 536, 548, 27 S.Ct. 686, 690, 51 L.Ed. 1176 (1906). It is for that reason that this court has in three decisions rejected the dichotomy, holding that one's property may not be taken without compensation under some circumstances even in the exercise of the police power. DuPuy v. City of Waco, supra ; San Antonio River Authority v. Lewis, 363 S.W.2d 444 (Tex.1963); Brazos River Authority v. City of Graham, supra.
City of Austin relies upon several correctly decided cases which, for one reason or another, placed their decisions under the aegis of police power. They include City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218 (1958); Ellis v. City of West University Place, 141 Tex. 608, 175 S.W.2d 396 (1943); Urban Renewal Agency of Austin v. Georgetown Savings & Loan Ass'n, 509 S.W.2d 419 (Tex.Civ.App. Austin 1974, writ ref'd n. r. e.); Thurow v. City of Dallas, 499 S.W.2d 347 (Tex.Civ.App. Dallas 1973, writ ref'd n. r. e.); City of Houston v. Biggers, 380 S.W.2d 700 (Tex.Civ.App. Houston 1964, writ ref'd n. r. e.); Kirschke v. City of Houston, 330 S.W.2d 629 (Tex.Civ.App. Houston 1959, writ ref'd n. r. e.).
In Brazos River Authority v. City of Graham, supra, the Authority had erected a dam and because of siltation in the lake, water was backed into the City of Graham's sewage disposal plant. City of Graham filed a suit for inverse condemnation which Brazos River Authority defended upon the principle that it was only exercising police power for which the government is not liable. While recognizing that the lines between police power and the power of eminent domain are often blurred and disregarded, this court held that a decent regard for private property rights, rights that enjoy the protection of the constitution, required governmental agencies in acquiring properties for public purposes generally to proceed under the power of eminent domain rather than under the police power. In that case there was an actual taking. The principle was extended in San Antonio River Authority v. Lewis, 363 S.W.2d 444 (Tex.1963), to protect a landowner's right to have the waters of the San Antonio River that he used for irrigation purposes to continue to flow in their accustomed channel. The court again refused to place the case on one side or the other of the mysterious line which is supposed to divide police power from eminent domain, and held that the City was liable for damages.
In DuPuy v. City of Waco, supra, this court even more thoroughly summarized the precedents which denied damages to a landowner that arose as an incident to the exercise of the police power and compared those with our other cases which awarded damages to a landowner to protect private property rights when the owner suffers losses not common to the general public. After reviewing the several efforts to find the line between police power and eminent domain, this court again refused to "compartmentalize" what is manifestly illusory. The court in DuPuy after permitting recovery because the property owner was denied all reasonable access to his property, contrasted that holding with the denial of damages where there was only an incidental interference with the right of access. See Moorlane Company v. Highway Department, 384 S.W.2d 415 (Tex.Civ.App. Amarillo 1964, writ ref'd n. r. e.). In DuPuy we discussed most of the cases relied upon by City of Austin in this present case. We deem it unnecessary to repeat the analysis of the specific cases which reached varying results.
DuPuy v. City of Waco, supra, is this court's last expression of our rejection of the categorization of governmental conduct as an exercise of police power or as an exercise of eminent domain. The case went further, however, and stated that there were better tests. We held that a government's correction of something that is a "detriment to the public" or a mere "regulation"...
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