BMTP Holdings, L.P. v. City of Lorena
2011 Tex. App. LEXIS 4207
| Tex. App. | 2011Background
- BMTP developed subdivisions around Lorena, including Phase IV and Phase V of South Meadows Estates, with infrastructure (water, sewer, streets) constructed and inspected prior to any moratorium.
- Final plat for Phase V was approved January 16, 2006, but delivered to BMTP on June 5, 2006; sewer taps had to be connected and tested before building permits.
- On June 5, 2006 the City adopted a sewer-tap moratorium on new residential or commercial connections for 120 days, exempting 15 Phase V lots already sold or under contract as of June 5, 2006; the moratorium was extended and reworded through November 17, 2008.
- City knew of sewer-capacity problems as early as 2003; engineers later advised capacity would be exceeded by end of May 2006, prompting the moratorium to allow mitigation through a new sewer plant.
- BMTP had already completed infrastructure and had sold most Phase V lots by the moratorium’s start; Phase V is argued to be “approved for development” prior to the moratorium under Chapter 212.
- BMTP filed suit April 24, 2008 seeking a declaratory judgment that the moratorium did not apply to Phase V, and that permits could not be denied for those lots; BMTP also added an inverse-condemnation claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Phase V was exempt from the moratorium under Local Government Code Chapter 212. | BMTP argues Phase V was approved for development before moratoriums. | City asserts only part of development was approved and Phase V remains subject. | Phase V not subject to moratorium; BMTP entitled to declaratory relief. |
| Whether the moratorium improperly prevented Phase V development. | BMTP contends moratorium cannot deny permits for Phase V. | City claims moratorium applicable until completion of approved development. | Moratorium not enforceable against Phase V; declaratory relief granted. |
| Whether the moratorium constitutes a regulatory taking under the Texas Constitution. | BMTP alleges taking under inverse condemnation. | City argues no taking as to Phase V since not applicable. | Reversed and remanded; moratorium did not apply to BMTP’s lots, so no compensable taking at this stage. |
| Whether attorney’s fees were properly awarded to the City. | BMTP challenges fee award under the Uniform Declaratory Judgment Act. | City seeks its fees based on prevailing status. | Fees award reversed and remanded for proper determination consistent with the opinion. |
Key Cases Cited
- Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660 (Tex. 2004) (adverse effects of temporary moratoriums; Penn Central-like analysis applied)
- Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998) (regulatory taking framework for temporary moratoria)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1980) (foundation for Penn Central factors in regulatory takings)
- Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50 (Tex. 2006) (Texas takings framework; Penn Central factors applied)
- Hartsell v. Town of Tally, 130 S.W.3d 325 (Tex. App.-Dallas 2004) (project/permit scope similar to multi-stage development)
- City of Galveston v. Texas Gen. Land Office, 196 S.W.3d 218 (Tex. App.-Hous. [1st Dist.] 2006) (declaratory judgments reviewed de novo; cross-motions for summary judgment)