441 S.W.3d 436
Tex. App.2014Background
- Kopplow Development, Inc. brought a claim for inverse condemnation and the City of San Antonio counterclaimed for condemnation of Kopplow’s easement, arising from a flood-control project that included a concrete inflow wall built on adjacent land.
- Kopplow had a vested rights permit under Texas Local Government Code Chapter 245 dating to 2004, allowing development under pre-1996 rules, but the City later changed floodplain regulations.
- The City’s floodplain changes raised additional fill costs (from 741 to 743 feet) that Kopplow wished to present to recover damages.
- The trial court excluded evidence related to the full cost of fill due to the vesting issue, limiting Kopplow’s damages evidence to a narrower scope.
- On remand, the Texas Supreme Court directed the appellate court to reconsider Kopplow’s cross-appeal about admitting evidence of vesting-era development costs.
- The appellate court ultimately held that the trial court erred in excluding the vesting-cost evidence and remanded for a new trial on remainder damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether error on vested rights was preserved | Kopplow preserved error by objection and offer of proof | City argues no preservation due to interlocutory order not appealed | Error preserved; trial court erred in excluding vesting evidence |
| Whether section 245.004(9) exempts vested rights from floodplain rules | Kopplow vested rights not barred by exemption (9) | City invokes exemption to bar vested-right evidence | Exemption (9) does not apply; vesting evidence admissible |
| Whether exclusion of vesting-cost evidence was harmful | Full cost to fill supported higher remainder damages | Exclusion harmless as cumulative/uncorroborated | Exclusion harmful; must remand for new trial on remainder damages |
Key Cases Cited
- Milestone Potranco Dev., Ltd. v. City of San Antonio, 298 S.W.3d 242 (Tex. App.—San Antonio 2009) (vested rights under chap. 245; preexisting regulations govern)
- City of San Antonio v. Rogers Shavano Ranch, Ltd., 383 S.W.3d 234 (Tex. App.—San Antonio 2012) (vested rights protections in development; middle-of-game concern)
- Harper Park Two, LP v. City of Austin, 359 S.W.3d 247 (Tex. App.—Austin 2011) (vesting rules shield from intervening regulations)
- Denisco v. Commission for Lawyer Discipline, 132 S.W.3d 211 (Tex. App.—Houston [14th Dist.] 2004) (statutory interpretation governs floodplain-related exemptions)
- Cail v. Service Motors, Inc., 660 S.W.2d 814 (Tex. 1983) (plain meaning governs statutory construction)