City of Pharr v. Pena
| Decision Date | 25 February 1993 |
| Docket Number | No. 13-91-356-CV,13-91-356-CV |
| Citation | 853 S.W.2d 56 |
| Parties | CITY OF PHARR, Appellant, v. Arnulfo PENA, Appellee. |
| Court | Texas Court of Appeals |
Donald W. Allee, McAllen, Alejandro Moreno, Jr., Edinburg, for appellant.
George P. Powell, Hinojosa & Powell, McAllen, James A. Herrmann, Harlingen, for appellee.
Before SEERDEN, KENNEDY and GILBERTO HINOJOSA, JJ.
This is an inverse condemnation case. Arnulfo Pena sued the City of Pharr for taking his property by preventing him from operating a junkyard thereon. The trial court agreed that the City had taken Pena's land and based on the jury's verdict ordered that Pena recover from the City $272,500 in actual damages, and $112,500 in exemplary damages. The City of Pharr brings eleven points of error. We reverse and render.
The evidence viewed in the light most favorable to the verdict shows that in 1979 Pena and a partner purchased a 44-acre tract of land along U.S. Highway 281 outside the city limits of Pharr, but within the City's extraterritorial jurisdiction. Pena and his partner planned to start a junkyard and used car business on the property. In accordance with these plans, they subdivided the 44 acres into separate tracts between themselves and two other purchasers, all of whom planned to set up junkyards.
In January or February of 1980, Pena started to prepare his separate tract for opening a junkyard business by clearing the land, putting down a caliche surface, and putting 20 or 30 cars on his tract. However, on February 22, 1980, the City filed suit against Pena and the other owners for wrongfully subdividing the 44-acre tract without the City's approval, in violation of city ordinances which were applicable to land within the City's extraterritorial jurisdiction.
On March 12, 1980, the City had its action against Pena and the other owners dismissed. The City's Planning and Zoning Commission had discussed annexation of the property as a condition for allowing the owners to develop their junkyards and represented that the City would provide the owners with the necessary permits and zoning.
The owners then submitted a subdivision plat and requested annexation into the City of Pharr. The City Commission approved the subdivision plat on May 6, 1980. Pena then continued preparations for opening his junkyard business. He erected a fence, put a mobile home on the property to use as an office, put in a septic tank, and installed a concrete foundation for his mechanic shop.
On some unspecified date shortly after the subdivision plat had been approved, the City annexed a 660-foot wide strip of Pena's property abutting U.S. Highway 281 and zoned it residential, which did not allow the operation of a junkyard or a used car lot. Although the back portion of Pena's tract remained outside the city limits, the front portion annexed by the city was much better suited to business operations because of its proximity to the highway.
On September 16, 1980, Pena applied to the City for rezoning from residential to industrial in order to allow operation of his junkyard. However, after a December 16, 1980, hearing, the City Commission denied Pena's application for rezoning. This denial of rezoning is the basis for Pena's claim that the City took his land.
By its first point of error, the City contends that as a matter of law it did not take Pena's property. Pena claims that the City's failure to rezone his property industrial in order to allow him to operate a junkyard amounted to a taking of his property without just compensation. He argues that the continued residential zoning classification of his property did not constitute a reasonable exercise of the City's police power, was contrary to an agreement by the City to allow him to operate his junkyard, and interfered with his entitlement to continue his junkyard business as a nonconforming preexisting use.
Tex. Const. art. I, § 17 provides in pertinent part 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." A wrongful taking of property by a governmental entity without compensation to the owner in violation of Tex. Const. art. I, § 17, is generally referred to as inverse condemnation, and in order to recover under a theory of inverse condemnation, the property owner must establish that the governmental entity intentionally performed certain acts that resulted in a taking of his property for public use. Woodson Lumber Co. v. City of College Station, 752 S.W.2d 744, 746-47 (Tex.App.--Houston [1st Dist.] 1988, no writ).
A "taking" requires either actual physical appropriation or invasion of the property, or unreasonable interference with the land owner's right to use and enjoy his property. DuPuy v. City of Waco, 396 S.W.2d 103, 108-09 (Tex.1965); Allen v. City of Texas City, 775 S.W.2d 863, 865 (Tex.App.--Houston [1st Dist.] 1989, writ denied). Specifically, governmental restrictions on the use of property can be so burdensome as to constitute a compensable taking. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922); 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.).
However, all property is held subject to the valid exercise of the police power, and a city is not required to make compensation for losses occasioned by the proper and reasonable exercise of its police power. In order for a city ordinance to be a valid exercise of police power, rather than a taking, it must be: (1) adopted to accomplish a legitimate goal and substantially related to public health, safety or general welfare; and (2) reasonable and not arbitrary. City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 804-05 (Tex.1984).
Nevertheless, whether a particular ordinance is a proper exercise of the police power or constitutes a compensable taking is a question of law for the court, and the ordinance is presumed to be a valid exercise of the police power absent a contrary showing by the plaintiff on the basis of which reasonable minds could not differ. Turtle Rock Corp., 680 S.W.2d at 804-05; DuPuy, 396 S.W.2d at 110; Estate of Scott v. Victoria County, 778 S.W.2d 585, 590 (Tex.App.--Corpus Christi 1989, no writ). 1 In making this determination, the trial court must consider all of the circumstances to determine the reasonableness of the regulation, and a careful analysis of the facts is necessary in each case of this kind. Turtle Rock Corp., 680 S.W.2d at 804; Estate of Scott, 778 S.W.2d at 591. The mere fact that a regulation may prevent the most profitable use of property does not conclusively establish that there has been a taking. Estate of Scott, 778 S.W.2d at 590.
Specifically, cities may establish zoning districts under the police power to safeguard the health, comfort and general welfare of their citizens, so long as zoning ordinances constitute a reasonable exercise of that power. City of Corpus Christi v. Allen, 152 Tex. 137, 254 S.W.2d 759, 761 (1953); Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475 (1934); Woodson Lumber Co. v. City of College Station, 752 S.W.2d 744, 748 (Tex.App.--Houston [1st Dist.] 1988, no writ). This reasonableness requirement is expressed in the statute authorizing municipalities to adopt zoning regulations "with reasonable consideration, among other things, for the character of each district and its peculiar suitability for particular uses, with a view of conserving the value of buildings and encouraging the most appropriate use of land in the municipality." Tex.Local Gov't Code Ann. § 211.005(b) (Vernon 1988) 2; see also Allen, 254 S.W.2d at 761.
In the present case, it was Pena's burden to show that the City's failure to rezone his property from residential to industrial was not a valid exercise of the City's police power. However, all that Pena showed was that the City as well as neighboring landowners were concerned about the appearance of this strip of land along the highway near the site of a planned international bridge to Mexico.
Cris Vela, community development director for the City of Pharr, testified that the City annexed this strip of land along U.S. Highway 281 in connection with its international bridge project across the Rio Grande to Mexico. Vela explained that the City wanted the corridors along the sides of the highway under its jurisdiction in order to control the aesthetics as well as the land use in conjunction with the bridge project. In addition, at the hearing on Pena's application for rezoning, several neighboring landowners voiced opposition to giving Pena a permit to set up a junkyard because it would make the City look dirty, would not look nice in that area, and would lower the value of their property.
Considerations of aesthetics as well as surrounding property values thus apparently motivated the City not to rezone the property industrial for the establishment of businesses such as Pena's junkyard. These concerns represent a legitimate goal, were substantially related to the public welfare, and provide a reasonable basis for the City's failure to rezone in accordance with Pena's desire to operate a junkyard.
Nevertheless, Pena cites the cases of City of Austin v. Teague, 570 S.W.2d 389 (Tex.1978) and San Antonio River Authority v. Garrett Brothers, 528 S.W.2d 266, 273-74 (Tex.Civ.App.--San Antonio 1975, writ ref'd n.r.e.) to show that the City's concern about preserving the appearance of this strip of land was an improper reason for refusing to rezone it industrial. In Teague, the City of Austin in effect acquired a scenic easement on the plaintiffs' property by denying the plaintiffs a necessary permit to rechannel a creek in order to prepare the land...
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