The League, joined by the Texas City Attorneys Association, filed an amicus curiae (“friend of the court”) brief in the case of City of Dallas v. Stewart, No. 09-0257 (Tex. July 1, 2011).  The brief supports a motion filed by the City of Dallas seeking rehearing of a decision of the Texas Supreme Court.  The court – in its original opinion – held in a 5-4 decision that an appointed city board’s determination that a building is a public nuisance should not be given deference by a court, but should be reviewed de novo (“from the beginning”).  The opinion could mean that appointed city officials can no longer make substandard building and other nuisance determinations.

The League argued that the Court’s opinion could be interpreted to require every administrative public health and safety abatement decision to be subject to de novo review by a court.  In addition, the opinion could expose cities to takings claims for every abatement or regulatory decision made in the past 10 years.  The League requested that the Court reverse its previous opinion or, in the alternative, narrow the opinion to provide sufficient guidance for cities to carry out nuisance abatement programs.  The International Municipal Lawyers Association; the cities of San Antonio, Houston, Irving, Fort Worth; and a group of cities (Aledo, Granbury, Haltom City, Kennedale, Lake Worth, North Richland Hills, River Oaks, Saginaw, and Southlake) also filed briefs in support of the motion.

Until the rehearing is decided, many cities have brought their substandard structure demolitions to a halt.  The League will continue to monitor the case.  If the rehearing process results in a favorable opinion, the issue may once again be settled.  If not, the issue will certainly go through the League’s legislative policy development process, and may even require a constitutional amendment to fix.

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