City of College Station v. Turtle Rock Corp.

Decision Date21 November 1984
Docket NumberNo. C-2918,C-2918
Citation680 S.W.2d 802
PartiesCITY OF COLLEGE STATION, Petitioner, v. TURTLE ROCK CORPORATION, Respondent.
CourtTexas Supreme Court

Lowell F. Denton, City Atty., Neeley C. Lewis, Asst. City Atty., College Station, for petitioner.

Lawrence, Thornton, Payne, Watson & Kling, Bill Payne, Bryan, for respondent.

ROBERTSON, Justice.

This is a suit for declaratory judgment brought by Turtle Rock Corporation, a real estate developer, challenging the constitutionality and validity of the City of College Station's ordinance requiring park land dedication or money in lieu thereof as a condition to subdivision plat approval.

The trial court granted summary judgment for Turtle Rock. The court of appeals affirmed, holding that College Station's ordinance was a "taking" without compensation in violation of TEX. CONST. art. 1 § 17 and that it violated TEX.REV.CIV.STAT.ANN. art. 6081e and art. 1175. 666 S.W.2d 318. We reverse the judgments of the courts below and remand this cause to the trial court.

College Station is a home rule city, and Turtle Rock Corporation is a real estate development corporation with a project located within the city limits. At issue is College Station's Ordinance No. 1265, the park land dedication ordinance. The stated purpose of this ordinance is "to provide recreational areas in the form of neighborhood parks as a function of subdivision

development ...." Basically, the ordinance requires, as a condition precedent to subdivision plat approval, that the developer dedicate land to the city for park purposes. The ordinance contains provisions to the following effect:

(1) that a developer must grant to the city a fee simple dedication of one acre of land for each 133 proposed dwelling units;

(2) that a developer must pay cash in lieu of land if fewer than 133 units are proposed;

(3) that the city may decide whether to accept the dedication or to require cash payment if between one and five acres of land are to be dedicated;

(4) that the developer may elect to pay cash, subject to a city council veto, in lieu of any dedication required.

The ordinance further requires that the city establish a special fund for the deposit of all sums paid in lieu of land dedication. These sums must be expended within two years for the acquisition or development of a neighborhood park; otherwise the owners of property in the subdivision are entitled to a refund.

Turtle Rock elected to pay $34,200.00 in lieu of dedicating the required amount of land. Upon agreement between the parties, this amount was placed in an escrow fund, pending the resolution of this lawsuit.

CONSTITUTIONAL CHALLENGE

The Texas Constitution, article 1, section 17 requires that adequate compensation be paid when private property is taken for public use. However, all property is held subject to the valid exercise of the police power. Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, 478 (1934). A city is not required to make compensation for losses occasioned by the proper and reasonable exercise of its police power. Lombardo, 73 S.W.2d at 479; Edge v. City of Bellaire, 200 S.W.2d 224, 226 (Tex.Civ.App.--Galveston 1947, writ ref'd).

Recognizing the illusory nature of the problem, we have previously refused to establish a bright line for distinguishing between an exercise of the police power which does constitute a taking and one which does not. City of Austin v. Teague, 570 S.W.2d 389, 391 (Tex.1978); DuPuy v. City of Waco, 396 S.W.2d 103, 107 (Tex.1965). Instead, the cases demonstrate that a careful analysis of the facts is necessary in each case of this kind.

There is ... no one test and no single sentence rule .... The need to adjust the conflicts between private ownership of property and the public's interests is a very old one which has produced no single solution.

Teague, 570 S.W.2d at 392. See also Goldblatt v. Town of Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387-388, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926). The question of whether a police power regulation is proper or whether it constitutes a compensable taking is a question of law and not of fact. Hunt v. City of San Antonio, 462 S.W.2d 536, 539 (Tex.1971); Dupuy, 396 S.W.2d at 110; City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43, 45 (1958); City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477, 481 (1955). Nevertheless, we have held that the court must consider all of the circumstances. Hunt, 462 S.W.2d at 539; Lamkin, 317 S.W.2d at 45; Watkins, 275 S.W.2d at 481; Edge, 200 S.W.2d at 227.

The cases provide examples of numerous factors that have proven useful in resolving particular police power questions, but ultimately a fact-sensitive test of reasonableness is required. See Teague; City of University Park v. Benners, 485 S.W.2d 773 (Tex.1972), appeal dismissed 411 U.S. 901, 93 S.Ct. 1530, 36 L.Ed.2d 191 (1973); DuPuy; City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218 (1958).

By contrast, the court of appeals in effect held that all park land dedication ordinances [A] required dedication of land for streets and waterworks clearly 'bears a substantial relation to the safety and health of the community' while a required dedication for park land does not .... We note that parks are not necessarily beneficial to a community or neighborhood.

are per se invalid. The court stated its holding as follows:

666 S.W.2d at 321.

The issue in this appeal is not whether parks are always and necessarily a benefit to the community; the issue is whether Turtle Rock met its burden for summary judgment of showing that College Station's ordinance is invalid as a matter of law.

A city may enact reasonable regulations to promote the health, safety, and general welfare of its people. Ellis v. City of West University Place, 141 Tex. 608, 175 S.W.2d 396 (1943); Lombardo, 73 S.W.2d at 478. Thus, in order for this ordinance to be a valid exercise of the city's police power, not constituting a taking, there are two related requirements. First, the regulation must be adopted to accomplish a legitimate goal; it must be "substantially related" to the health, safety, or general welfare of the people. Watkins, 275 S.W.2d at 481; Lombardo, 73 S.W.2d at 479. Second, the regulation must be reasonable; it cannot be arbitrary. Benners, 485 S.W.2d at 778; Lombardo, 73 S.W.2d at 479.

The presumption favors the reasonableness and validity of the ordinance. An "extraordinary burden" rests on one attacking a city ordinance. Hunt, 462 S.W.2d at 539.

The concept of the public welfare has a broad range. Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954).

If reasonable minds may differ as to whether or not a particular zoning ordinance has a substantial relationship to the public health, safety, morals, or general welfare ... the ordinance must stand as a valid exercise of the city's policy power.

Hunt, 462 S.W.2d at 539. Numerous other jurisdictions have upheld park land dedication ordinances as being legitimate exercises of the police power. See, e.g., Associated Home Builders of the Greater East Bay, Inc. v. City of Walnut Creek, 4 Cal.3d 633, 94 Cal.Rptr. 630, 484 P.2d 606, appeal dismissed, 404 U.S. 878, 92 S.Ct. 202, 30 L.Ed.2d 159 (1971); Home Builders Ass'n of Greater Kansas City v. City of Kansas City, 555 S.W.2d 832 (Mo.1977); Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394 P.2d 182 (1964); Jenad, Inc. v. Village of Scarsdale, 18 N.Y.2d 78, 271 N.Y.S.2d 955, 218 N.E.2d 673 (1966); Banberry Development Corp. v. South Jordan City, 631 P.2d 899 (Utah 1981); Jordan v. Village of Menomonee Falls, 28 Wis.2d 608, 137 N.W.2d 442 (1965), appeal dismissed, 385 U.S. 4, 87 S.Ct. 36, 17 L.Ed.2d 3 (1966). Although we are not bound by these authorities, they are persuasive. We therefore hold that College Station's ordinance is at least one about which reasonable minds might differ. The court of appeals erred in holding that, as a matter of law, a requirement for dedication of park land does not bear a substantial relation to the health, safety, or general welfare of the community.

The court of appeals relied upon the case of Berg Development Co. v. City of Missouri City, 603 S.W.2d 273 (Tex.Civ.App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.). However, the Missouri City ordinance did not preclude the city from exacting funds from a developer and then failing to use the money to provide parks for the assessed development. Therefore, that park dedication ordinance placed a special economic burden upon the developer and ultimately upon the home buyers with no guarantee that they would benefit from the exaction. This defect made the Missouri City ordinance arbitrary and therefore unreasonable and unconstitutional.

College Station's ordinance, unlike that of Missouri City, specifically identifies the legitimate goal of providing neighborhood The ordinance does not permit the city to initiate action that compels a dedication of park land. As long as the land is not developed, the city requires nothing. It is only when a developer chooses to develop land that the city can step in to impose reasonable regulations upon that development.

parks for developments, and it requires that the land or money be used only for that purpose within a reasonable time period.

The transfer of title to a small portion of the property does not of itself create a compensable taking. Texas courts have expressly recognized that municipalities can require the "donation" of streets, alleys, water mains, and sewer mains as a condition to subdivision development.

The overwhelming weight of authority is that such donation is not a taking of ... property for public use without reimbursement. The exercise of governmental discretion to impose reasonable regulations as a condition for use of property, or as a condition precedent to the subdivision of...

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