City of San Antonio asks Texas Supreme Court to Review Substandard Structure Decision

Relying on City of Dallas v. Stewart (a 2012 opinion of the Texas Supreme Court), the Fourth Court of Appeals has recently held that a takings claim could be filed at any point “in the same proceeding” as the appeal of an administrative nuisance determination.  Wu v. City of San Antonio, No. 04-10-00836-CV, 2013 WL 4084721 at *5 (Tex. App.—San Antonio Aug. 14, 2013). This is a troubling conclusion.

City attorneys had believed that statements made by the Texas Supreme Court in City of Dallas v. Stewart operated as an assurance to cities that they would not be left vulnerable to a flood of takings litigation. In Stewart, the Court recognized that state law provides a “narrow thirty-day window for seeking review” of an administrative nuisance determination. Many city attorneys believed this and other statements by the Stewart court meant that a city could continue to use the city council or building and standards commission abatement process, and protect itself from a takings claim by simply waiting until the 30-day window for appeal to pass before demolishing a structure. The Fourth Court’s holding in Wu v. City of San Antonio undermines this assurance.

The City of San Antonio has asked the Texas Supreme Court to review the Fourth Court’s holding, and to provide a bright-line rule as to when a takings claim may be brought. TML and the Texas City Attorneys Association filed an amicus brief with the Court on December 17, 2013, in support of the city’s petition for review.

Information about the City of Dallas v. Stewart case is available here. The Fourth Court’s opinion in Wu v. City of San Antonio is available here.

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.

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