Lead Opinion
delivered the opinion of the Court,
We deny the motion for rehearing. We withdraw our opinion of July 1, 2011 and substitute the following in its place.
Urban blight threatens neighborhoods. Either as a risk to public health or as a base for illicit activity, dilapidated structures harm property values far more than their numbers suggest. Cities must be able to abate
Today we hold that a system that permits constitutional issues of this importance to be decided by an administrative board, whose decisions are essentially conclusive, does not correctly balance the need to abate nuisances against the rights accorded to property owners under our constitution. In the context of a property owner’s appeal of an administrative nuisance determination, independent court review is a constitutional necessity. We affirm the court of appeals’ judgment, but on different grounds.
I. Background
Heather Stewart bought a home in Dallas. Between 1991, when Stewart abandoned her house, and 2002, when the City demolished it, the Stewart home was a regular stop for Dallas Code Enforcement officials. Although utilities were disconnected and windows boarded up, the home suffered vandalism in 1997 and was occasionally occupied by vagrants. Stewart did little to improve the property, apart from building a fence to impede access, and she consistently ignored notices from the City. Inspectors returning to the home often found old notices left on the door.
In September 2001, the Dallas Urban Rehabilitation Standards Board (“URSB” or “Board”), a thirty-member administrative body that enforces municipal zoning ordinances, met to decide whether Stewart’s property was an urban nuisance that should be abated. Stewart’s neighbor, who had registered complaints on six prior occasions, testified that a fallen tree on Stewart’s property had done $8,000 dam
On October 17, 2002, a City inspector found that Stewart had not repaired the property, and on October 28, the City obtained a judicial demolition warrant. The City demolished the house four days later.
Before the demolition, Stewart appealed the Board’s decision to district court, but the appeal did not stay the demolition order. See Tex. Loc. Gov’t Code § 54.039(e). After the demolition, Stewart amended her complaint to include a due process claim and a claim for an unconstitutional taking. The trial court, on substantial evidence review, affirmed the Board’s finding that Stewart’s home was an urban nuisance and awarded the city $2,266.28 in attorneys fees. It then severed Stewart’s constitutional claims and tried them to a jury. At the close of trial, the City moved unsuccessfully for a directed verdict on the grounds that the Board’s nuisance determination was res judicata, precluding Stewart’s takings claim. The jury rejected the City’s contention that Stewart’s home was a public nuisance and awarded her $75,707.67 for the destruction of her house.
The court of appeals affirmed but held that the Board’s nuisance finding could not be preclusive because of the brief delay between the nuisance finding and the house’s demolition.
II. Analysis
Texas law permits municipalities to establish commissions to consider violations of ordinances related to public safety. See Tex. Loc. Gov’t Code §§ 54.032-041; see also id. §§ 214.001-.012.
The Local Government Code authorizes substantial evidence review of standards commissions’ decisions. Tex. Loc. Gov’t Code §§ 54.039(f), 214.0012(f). The same standard governs review of State agency determinations under the Texas Administrative Procedure Act. See Tex. Gov’t Code §§ 2001.174-.175 (“If the law authorizes review of a decision in a contested case under the substantial evidence rule or if the law does not define the scope of judicial review, a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence_” (emphasis added)). Substantial evidence review is limited in that it requires “ ‘only more than a mere scintilla,’ to support an agency’s determination.” Montgomery Indep. Sch. Dist. v. Davis,
As a general matter, we have held that some agency determinations are entitled to preclusive effect in subsequent litigation. See, e.g., Igal v. Brightstar Info. Tech. Grp., Inc.,
A. Eminent Domain and Inverse Condemnation
A city may not take a person’s property without first paying just compensation. Tex. Const, art. I, § 17(d).
if either party be dissatisfied with the decision of said Commissioners, he or they shall have the right to file a petition in the District Court, as in ordinary cases, reciting the cause of action and the failure to agree, and such suit shall proceed, to judgment as in ordinary cases.
Act approved Feb. 8, 1860, 8th Leg., R.S., ch. 51, § 2, 1860 Tex. Gen. Laws 60, 61, reprinted in 1¡. H.P.N. Gammel, The Laws of Texas 1822-1897, at 1422, 1423 (Austin, Gammel Book Co. 1898) (emphasis added).
Frequently, however, the government takes property without first following eminent domain procedures. In these cases, Texas law permits inverse condemnation suits, which are actions commenced by the landowner seeking compensation for the government’s taking or damaging of his or her property through means other than formal condemnation. See, e.g., City of Houston v. Trail Enters., Inc.,
Our earliest cases gave the Legislature extensive leeway in defining the remedies for a taking. In Buffalo Bayou, we held that
*568 [i]t cannot ... be maintained, as is insisted, that the manner of ascertaining and assessing the amount of compensation ..., as prescribed by the act of the legislature granting appellants their charter, is unconstitutional, because it does not require or authorize such compensation to be determined by the findings of a jury.... [T]he constitution does not prescribe a rule for determining what constitutes adequate compensation. It may be done in any manner that the legislature in its discretion may prescribe....
Our decision in Steele v. City of Houston,
It is our opinion that plaintiffs’ pleadings and their claim in contesting the motion for summary judgment established a lawful cause of action under [the Takings Clause]. That claim was made under the authority of the Constitution and was not grounded upon proof of either tort or a nuisance. It was a claim for the destruction of property, and governmental immunity does not shield the City of Houston. The Constitution itself is the authorization for compensation for the destnoction of property and is a waiver of governmental immunity for the taking, d,ama,ging or destruction of property for public use.
Id. at 791 (emphasis added). Steele recognized that the Takings Clause is self-executing — that it alone authorizes suit, regardless of whether the Legislature has statutorily provided for it. See id. Takings suits are thus, fundamentally, constitutional suits and must ultimately be decided by a court rather than an agency. Agencies, we have held, lack the ultimate power of constitutional construction. See Central Power & Light Co. v. Sharp,
Texas has generally recognized this rule. Agency findings in eminent domain cases are subject to de novo trial court review, and inverse condemnation plaintiffs bring their cases in the same manner as any other civil case. The City and the dissents urge us to insulate one type of takings claim from the protections of Steele: those in which an agency has first declared the property a nuisance. We do
B. The Police Power and Nuisance Abatement
A maxim of takings jurisprudence holds that “all property is held subject to the valid exercise of the police power.” City of College Station v. Turtle Rock Corp.,
Our precedents make clear that nuisance determinations must ultimately be made by a court, not an administrative body, when the property owner contests the administrative finding. See City of Houston v. Lurie,
Stewart’s home was declared an urban nuisance according to similarly broad terms. The Local Government Code’s nuisance definition prohibits buildings that are “dilapidated,” “substandard,” or “unfit for human habitation.” Tex. Loc. Gov’t Code § 214.001(a)(1). Like the application of the phrase “contagious disease of citrus fruits,” these terms require more than rote application by an agency; they require an assessment of whether the particular conditions — citrus canker in one case, foundation damage in another — meet the general statutory terms. Judicial review in nuisance cases requires the application of general statutes to specific facts.
We adopted this view of Stockwell in Crossman, writing that Stockwell refused to “sustain the validity of [a] statute, in so far as its effect was to deny a hearing before the courts on the question as to whether or not the particular trees involved constituted a nuisance which ought to be summarily destroyed.” Crossman,
A wooden building ... is not a nuisance per se. It can only become a nuisance by the use to which it is put or the state of repair in which it is maintained; but as to whether or not it is, even in these events, a nuisance is a justiciable question, determinable only by a court of competent jurisdiction.
Id. at 813 (emphasis added). To read this as negating a property owner’s right to full judicial review is to reject the opinion’s clear language.
Reagan is particularly on point. There, a statute in the form of the City’s charter gave the City the power to abate “dilapidated” buildings as nuisances, and the City destroyed Reagan’s property pursuant to this authority. The district court concluded that the City’s determination was res judicata. We disagreed, holding that a court must determine whether a building is “in fact” a nuisance:
[NJeither the Legislature nor the City Council can by a declaration make that a nuisance which is not in fact a nuisance; and the question as to whether or not the building here involved was a nuisance was a justiciable question, determinable alone by the court or jury trying the case.
Reagan,
Finally, in Lurie, we stated that “[i]t has been repeatedly held that the question whether property is a public nuisance and may be condemned as such is a justiciable question to be determined by a court.” Lurie,
The City doubts Lurie ⅛ continuing validity, relying on two cases from this Court which, it says, undermine the notion that a claim under the Takings Clause necessitates de novo trial court review. In Brazosport Savings & Loan Ass’n v. American Savings & Loan Ass’n, we held that substantial evidence review was appropriate where the plaintiff asserted that the State’s issuance of a charter to a third party infringed on the plaintiffs due process property rights.
Neither Brazosport nor Blackbird concerns nuisance determinations, and thus each says little about Lurie ⅛ specific holding. Moreover, both predate our decision in Steele, which recognized an implied constitutional right of action for takings claims. Steele, then, undermined their vitality insofar as they give broad deference to the Legislature’s determinations of remedial schemes for property rights violations. Finally, and most fundamentally, Blackbird and Brazosport do not concern agency decisions that directly determine substantive constitutional rights. Rather, they are due process cases alleging improper agency actions implicating property interests. See Blackbird,
In Blackbird> for example, the Court made clear that a city has the power to assess property owners for improvements to their properties, but noted that an improperly supported assessment may run afoul of the Texas Constitution. Blackbird,
The City also relies on two federal cases for the proposition that Lurie has been undermined by the rise of the administrative state. See Freeman v. City of Dallas,
Freeman, too, is not directly on point. In Freeman, the petitioners, whose property was demolished, did not seek judicial review of the URSB’s decision, and so the scope of that review was not at issue. Freeman,
Moreover, neither Traylor nor Freeman addresses the Texas Constitution, under which we decide today’s case. See Freeman,
We consider today not only our Takings and Due Process Clauses, which are generally regarded as functionally similar to their federal counterparts, but also our Separation of Powers Clause, which has no explicit federal analogue. See Tex. Const, art. II, § 1 (“The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy....”). As in most -states, separation of powers principles are ingrained in the Texas Constitution, while they are merely implied in the United States Constitution. See Harold H. Bruff, Separation of Powers Under the Texas Constitution, 68 Tex. L.Rev. 1337, 1340 (1990); see also Neil C. McCabe, Four Faces of State Constitutional Separation of Poivers: Challenges to Speedy Trial and Speedy Disposition Provisions, 62 Temp. L.Rev. 177, 185 (1989) (“The principle of separation of powers has evolved along parallel but distinctly different paths on the state and federal levels.” (internal quotations omitted)). The scope of separation of powers is a function of governmental structure, and because of the differences between Texas and federal government, its requirements at the state level are different. This is especially true given its explicit treatment in our constitution. See Bruff, 68 Tex. L.Rev. at 1348 (noting that the “prominence of Texas’s constitutional command has given the separation-of-powers doctrine a special vigor in a number of respects”). In particular, the fragmentation of Texas’s executive branch “attenuates” the accountability of our administrative agencies. Id. at 1346 (“The structure of Texas government permits the ties between a particular agency and each of the three branches of the state government to be weaker — sometimes far weaker — than they would be in the federal government.”). Accountability is especially weak with regard to municipal-level agencies such as the URSB, which are created by cities that “typically lack the separation of powers of the state and federal governments.”
C. Agencies and Constitutional Construction
JustiCE Guzman laments that we “miss[] the crux of the constitutional issue” before us. See
In a takings case, a nuisance finding generally precludes compensation for the government’s destruction of property. That is so because due compensation is typically a matter “determined by whether the conduct of the sovereign is classified as a noncompensable exercise of the police power or a deprivation of property through eminent domain.” Cabaniss, 44 Tex. L.Rev. at 1584 n. 1. The nuisance determination, therefore, cannot be characterized as somehow apart from the takings claim, because the only sense in which such a determination is significant — its only meaning — is that it gives the government the authority to take and destroy a person’s property without compensation. Nuisance findings are “determination^]—
Moreover, though the value determination that the board of commissioners makes in an eminent domain suit is wholly factual, based on market conditions and similar factors, it is given no weight on appeal to the trial court. The value determination the URSB made here, however, was largely a determination of law based on the application of statutory standards to historical facts. Such a determination is less, not more, appropriate for deferential agency review.
This is especially true because of the constitutional nature of the nuisance inquiry. In Steele, we observed that the law had “moved beyond the earlier notion that the government’s duty to pay for taking property rights is excused by labeling the taking as an exercise of the police powers,” Steele,
Cases from the United States Supreme Court provide further guidance. In a recent line of cases, that Court has reinvigorated the constitutional fact doctrine,
The Supreme Court has required constitutional fact review primarily in the context of the First and Fourth Amendments. In those areas, facts tend to be deeply intertwined with legal issues, necessitating independent review. In Miller v. Fenton,
Articulating precisely what “reasonable suspicion” and “probable cause” mean is not possible.... They are.... fluid concepts that take their substantive content from the particular context in which the standards are being assessed. The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact....
Id. at 695-96,
Takings claims also typically involve mixed questions of fact and law. See Mayhew,
Indeed, we have held that an agency’s adjudicative power is strongest where it decides purely statutory claims and weakest where it decides claims derived from the common law. Compare Emps. Ret. Sys. of Tex. v. Duenez,
Many agencies make decisions that affect property interests — such as licensure and rate setting — but in so doing they do not actually engage in constitutional construction. See 1 Beal, Texas Administrative Procedure & Practice § 9.3.1[c]. Rather, constitutional challenges to agency decisions typically deal not with the substance of the agency’s decision but, rather, with the procedures that the agency followed in making it. See, e.g., Blackbird,
III. Response to Motion for Rehearing
The City and a number of amici
These arguments overlook three key facts. First, takings claims must be asserted on appeal from the administrative nuisance determination. Although agencies have no power to preempt a court’s constitutional construction,
Second, property owners rarely invoke the right to appeal.
Third, and perhaps most importantly, de novo review is required only when a nuisance determination is appealed. Thus, the City need not institute court proceedings to abate every nuisance. Rather, the City must defend appeals of nuisance determinations and takings claims asserted in court by property owners who lost before the agency. Given these considerations, we disagree with the City’s and the amici’s characterization of the effects of our holding.
IV. Conclusion
That the URSB’s nuisance determination cannot be accorded preclusive effect in a takings suit is compelled by the constitution and Steele, by Luñe and its antecedents, by the nature of the question and the nature of the right. The protection of property rights, central to the functioning of our society,
Because we believe that unelected municipal agencies cannot be effective bulwarks against constitutional violations, we hold that the URSB’s nuisance determination, and the trial court’s affirmance of
We affirm the court of appeals judgment. Tex.R.App. P. 60.2(a).
Justice GUZMAN delivered a dissenting opinion, joined by Justice WAINWRIGHT, Justice GREEN, and Justice JOHNSON.
Notes
. In the context of nuisance law, "abate” means to "eliminat[e] or nullifyf ].” Black's Law Dictionary 3 (9th ed.2009). Municipalities have, within their police powers, authority to abate nuisances, including the power to do so permanently through demolition. See Schneider Nat'l Carriers, Inc. v. Bates,
. The trial court instructed the jury that, in determining whether Stewart's property was a nuisance in the context of her takings claim, it could consider prior administrative and judicial findings.
. This holding was based on City of Houston v. Crabb,
. The cities of Houston and San Antonio submitted a brief as amicus curiae in support of the City, as did the cities of Aledo, Granbury, Haltom City, Kennedale, Lake Worth, North Richland Hills, River Oaks, Saginaw, and Southlake. We also called for the views of the Solicitor General, who submitted a brief on behalf of the State of Texas as amicus curiae.
. Chapters 54 and 214 of the Local Government Code provide substantially similar authority to municipalities with regard to the regulation and abatement of urban nuisances.
. This repealing ordinance abolished the URSB, replacing it with a system wherein municipal judges make the initial nuisance determination subject to substantial evidence review in district court. See Dallas, Tex., Code §§ 27-16.3, 27-16.10. However, the Dallas Code still contains language permitting administrative nuisance determinations reviewable only under a substantial evidence standard. Id. § 27-16.20.
. The Dallas Municipal Code defines an urban nuisance as "a premises or structure that is dilapidated, substandard, or unfit for human habitation and a hazard to the public health, safety, and welfare.” Dallas, Tex., Code § 27-3(24). This language comes directly from statute. See Tex. Loc. Gov’t Code § 214.001(a)(1); see also id. § 54.012 ("A municipality may bring a civil action for the enforcement of an ordinance ... for the preservation of public safety ... [or] relating to the preservation of public health.... ”).
. Takings without just compensation are also prohibited by the United States Constitution. See U.S. Const, amends. V, XIV. However, that constitution has no requirement of prepayment of compensation. See Ruckelshaus v. Monsanto,
. Like building standards- commissions, the board of commissioners in a condemnation suit need not be made up of lawyers. See Tex. Prop.Code § 21.014 (requiring that the commissioners in a condemnation suit need only be "disinterested freeholders who reside in the county”); Tex. Loc. Gov’t Code § 54.033 (setting no requirements for members of building standards commissions).
. This statute, however, did not govern all early condemnation cases. The State frequently gave railroad companies eminent domain powers. See Eugene O. Porter, Railroad Enterprises in the Republic of Texas, 59 Sw. Hist. Q. 363 (1956) (describing the charters and eminent domain powers of early Texas railroad companies); Harry N. Scheiber, Property Law, Expropriation, and Resource Allocation by Government: The United States, 1789-1910, 33 J. Econ. Hist. 232, 237 (1973) ("Devolution of the eminent-domain power upon ... railroad companies was done in every state.”). In some cases, the charters of these individual railroad companies prescribed somewhat different procedures than were found in the general statutes. See, e.g., Buffalo Bayou, Brazos & Colo. R.R. Co. v. Ferris,
. See, e.g., Lucas v. S.C. Coastal Council,
. Justice Guzman casts these opinions narrowly to create a “general rule” that would never apply in practice. She would hold that de novo review is required only where the agency acts without, a statutory nuisance definition or. a statute requiring substantial evidence review. The Legislature has defined nuisance, see Tex Loc Gov't Code § 214.001, and it has required substantial evidence review for boards like the URSB specifically, id. § 214.0012(f), and for review of agency decisions generally, see Tex. Gov't Code § 2001.175(a). The Legislature has, therefore, evaded Justice Guzman’s "general rule,” which would be unlikely ever to apply again.
Moreover, these cases stand for a broader proposition. In each case, there was statutory authorization for the nuisance finding, and substantial evidence review was already considered the default standard. What these cases in fact stand for, then, is that a court, not an administrative agency, must apply statutory nuisance standards to the facts of a particular case.
. The statute at issue in Stockwell did specifically permit the abatement of trees infected with, e.g., "nematode galls” or "crown galls.” See Stockwell v. State,
. Cities are by statute permitted to demolish buildings that are, inter alia, "dilapidated, substandard, or unfit for human habitation and a hazard to the public health, safety, and welfare.” Tex. Loc. Gov’t Code § 214.001(a)(1). Justice Guzman contends that the phrase “hazard to the public health, safety, and welfare” limits the word "dilapidated” and that, therefore, the statute only permits the demolition of nuisances in fact. This reading strain’s the sentence’s grammar and apparent meaning. The language after the word "or” constitutes a single phrase permitting abatement of buildings that are "unfit for human habitation and a hazard to the public health, safety, and welfare.” Dilapidation and failure to comply with building standards are separate bases for abatement. This reading comports with the doctrine of last antecedent, which suggests that in most cases, a qualifying phrase should be applied only to the portion of the sentence "immediately preceding it.” See Spradlin v. Jim Walter Homes, Inc.,
Moreover, even if the final phrase did modify "dilapidated,” that would not transform all URSB findings into findings that a property was, in fact, a nuisance "in fact.” The Local Government Code's “hazard” language is exactly the same sort of "general term” that we said in Stockwell must be found by a court.
. We should also recognize Lurie's language about the lack of statutory authorization for substantial evidence review for what it was: bolstering. See City of Houston v. Lurie,
. Individuals often have fewer statutory procedural protections before municipal agencies than they do before State agencies. Compare Tex. Gov't Code ch.2001 (enumerating the procedural protections required for contested case hearings conducted by State agencies),
. It is also worth noting that Traylor, on which Freeman relies, predates both our decision in Steele as well as the reinvigoration by the Supreme Court of the constitutional fact cases, discussed below.
. Abatement actions are often motivated, at least in part, by a city’s bottom line. See Nicole Stella Garnett, Ordering (and Order in) the City, 57 Stan. L.Rev. 1, 12-13 (2004) ("Blighted properties contribute to a city’s economic problems by discouraging neighborhood investment, depriving the city of tax revenue, lowering the market value of neighborhood property, and increasing the cost of business and homeowner insurance.” (footnotes omitted)); see also Freeman v. City of Dallas,
. For this reason, Justice Guzman’s suggestion that, as an initial matter, this case falls outside the Takings Clause is peculiar. This case is outside the Takings Clause only if the property was in fact a nuisance and properly found as such. If the jury’s failure to find that Stewart’s property was a nuisance controls, then there was a taking. This case must therefore be analyzed with Takings Clause in mind.
. Tex. Prop.Code § 21.018(b) (requiring that appeals from the board of commissioners’ findings be tried “in the same manner as other civil causes”).
. Justice Guzman fails to articulate any logical reason for treating review of these two types of administrative valuation differently. We agree with Justice Guzman that proper abatement has always required that the property be a nuisance in fact. But if this standard applies to all governmental action with respect to nuisances, why does the scope of review turn on whether the Legislature told the agency about the standard? The nuisance in fact requirement is a common, law norm limiting all governmental exercise of the police power. Statute or no, the question is the same. So must be the standard of review.
The differing treatment of decisions of the URSB and condemnation commissioners is particularly notable considering that the board of commissioners in an eminent domain case is appointed by the trial court, Tex. Prop.Code § 21.014(a) (requiring that the commissioners be appointed by the “judge of a court in which a condemnation petition is filed or to which an eminent domain case is assigned”), and therefore could be considered its agent. Cf. N. Pipeline Constr. Co. v. Marathon Pipe Line Co.,
. The original "constitutional fact” cases dealt with review of administrative decisions implicating constitutional claims. See Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L.Rev. 229, 247-63 (1985). In an especially relevant case involving a confiscation challenge to a public utility rate order, the Supreme Court required plenary court review of constitutionally relevant facts. See Ohio Valley Water Co. v. Ben Avon Borough,
The constitutional fact doctrine was affirmed in Crowell v. Benson,
. Indeed, according to Professor Monaghan, [i]n terms of the constitutional design, the whole process of substituting administrative for judicial adjudication may be thought to suffer from a serious "legitimacy deficit.” The constitutional fact doctrine is an effort to overcome this problem, to reconcile the imperatives of the twentieth century administrative state with the constitutional preference for adjudication by the regular courts. It does so by requiring, at a minimum, that a court asked to enforce an administrative order must engage in constitutional fact review.
Monaghan, 85 Colum. L.Rev. at 262 (footnote omitted); see also Richard H. Fallon, Jr., Legitimacy and, the Constitution, 118 Harv. L.Rev. 1787, 1844 (2005) (noting that the sociological legitimacy deficit of administrative agencies is "serious, even alarming”).
. E.g., did the damage to the structure make it a threat to public health or safety such that the government may deprive a citizen of her ownership of the structure?
. Our holding today is restricted to judicial review of agency decisions of substantive constitutional rights, and thus, despite Justice Guzman's assertions to the contrary,
. The International Municipal Lawyers Association, the Texas City Attorneys Association, the Texas Municipal League, and the Cities of Abilene, Aledo, Cleburne, Euless, Fort Worth, Garland, Granbury, Haltom City, Houston, Irving, Kennedale, Lake Worth, McAllen, Mesquite, North Richland Hills, River Oaks, Saginaw, San Antonio, Southlake, and Sul-phur Springs have submitted amicus curiae briefs in support of the City’s motion for rehearing.
. Cent. Power & Light Co. v. Sharp,
. The amici have provided some anecdotal evidence on this point. The City of Fort Worth states that over the past ten years it has brought 1,250 cases to its Building Stan-dárds Commission, and fewer than ten of those were appealed to district court. The City of Sulphur Springs has abated 86 structures by demolition over the past five years; in 68 of those abatements, the property owner acquiesced in the demolition order. The City of Mesquite has taken 18 cases to its Building Standards Board since 2009. Of those 18, 15 were ordered demolished, and 14 have been demolished. The one remaining property is apparently the only one in which the owner appealed the case to district court, and that appeal has been dismissed for want of prosecution.
. This includes not just litigation costs, but also the civil penalties municipalities can assess against property owners who fail to comply with repair or demolition orders. See, e.g., Freeman,
. See, e.g., John Locke, Second Treatise of Government 133 (2004) ("The reason why men enter into society is the preservation of their property.... ”).
Dissenting Opinion
joined by Justice WAINWRIGHT, Justice GREEN, and Justice GUZMAN, dissenting.
The finding by Dallas’s Urban Rehabilitation Standards Board (URSB) that Heather Stewart’s property was a nuisance, when affirmed by the trial court, should have determined the nuisance question and precluded its relitigation. Because the Court holds otherwise, I respectfully dissent.
I. General
Statutory requirements afford significant safeguards to property owners whose property a city seeks to abate as a public nuisance. See Tex. Loc. Gov’t Code chs. 54, 214. Stewart does not claim that Dallas’s ordinances failed to comply with those requirements; neither does the Court. Stewart simply claims that she is constitutionally entitled to an entirely new consideration of whether her property was a nuisance — a trial de novo — instead of the consideration by the URSB with judicial review under the substantial evidence standard. The Court agrees; I do not.
A. Law
The statutory framework providing abatement of public nuisances is detailed and comprehensive. The Local Government Code specifies that municipalities may provide for abatement of certain types of buildings:
(a) A municipality may, by ordinance, require the vacation, relocation of occupants, securing, repair, removal, or demolition of a building that is:
(1) dilapidated, substandard, or unfit for human habitation and a hazard to the public health, safety, and welfare;
(2) regardless of its structural condition, unoccupied by its owners, lessees, or other invitees and is unsecured from unauthorized entry to the extent that it could be entered or used by vagrants or other uninvited persons as a place of harborage or could be entered or used by children; or
(3) boarded up, fenced, or otherwise secured in any manner if:
(A) the building constitutes a danger to the public even though secured from entry; or
(B) the means used to secure the building are inadequate to prevent unauthorized entry or use of the building in the manner described by Subdivision (2).
Id. § 214.001(a). A city governing body is authorized to appoint a building and standards commission to hear cases concerning alleged violations of ordinances. Id. § 54.033(a). The commission is afforded independence in fulfilling its functions: members are removable only for cause on written charge and the member is entitled to a public hearing on the removal issue. Id. § 544.033(c). The commission must adopt rules and procedures for use in hearings and provide “ample opportunity for presentation of evidence and testimony by respondents or persons opposing
B. The Hearings
Pursuant to the Local Government Code and Dallas’s ordinances, the URSB gave Stewart notice of the alleged code violations regarding her property. The URSB then held an evidentiary hearing concerning the allegations that Stewart’s house was an urban nuisance.
Dallas’s ordinance defined “urban nuisance” as follows:
URBAN NUISANCE means a premises or structure that is dilapidated, substandard, or unfit for human habitation and a hazard to the public health, safety, and welfare.
Dallas Tex.Code § 27-3(24). See Tex. Loc. Gov’t Code § 214.001(a)(1). After hearing evidence on September 24, 2001, the commission found based on a preponderance of the evidence that Stewart’s house was an urban nuisance as defined in section 27-3(24) of the Dallas City Code. Stewart did not appear at the hearing, but after the order was entered she requested a rehearing and filed a plan for repairing the house to remedy the specified code violations. The URSB held another hearing on September 23, 2002: The transcript of the second hearing shows that Stewart and her mother appeared and gave testimony contesting the nuisance allegations. The City presented evidence that no substantial repairs had been made to Stewart’s property since the first hearing. As a result of the second hearing the URSB affirmed its September 24, 2001 order.
C. The Lawsuits
As she was authorized to do by statute and Dallas’s ordinances, Stewart timely appealed to the district court. She made several arguments before the district court, but she did not, at that time, argue review of the URSB’s determination under the substantial evidence standard violated her constitutional rights. She alleged that (1) the URSB’s decision was not reasonably supported by substantial evidence; (2) the URSB actions denied her “due process of law and the right to equal protection of the law, as guaranteed by the Constitutions of the United States and the State of Texas in that [Stewart] has not been served an order specifying in detail the findings of the Board” (emphasis added); (3) the URSB exceeded its statutory authority because it did not apply the correct standards in making its ruling; (4) the procedures of the URSB were unlawful in that Stewart was denied the right to cross-examine a city expert witness and a third party witness; and (5) the URSB ignored the evidence and its decision was arbitrary, capricious, and an abuse of discretion.
After the City demolished the property, Stewart amended her pleadings to allege that (1) the URSB’s decision was not reasonably supported by substantial evidence; (2) there were “Errors in Procedure and
After the trial court severed the administrative appeal from her other claims, Stewart pled that she was entitled to damages for the wrongful destruction of her property based on “constitutional claims associated with” the City’s destruction of her home. As the basis for damages, she alleged generally that demolition of the property as a public nuisance was wrongful, and her claims were brought under “the Texas Constitution, Article 1, Sections 17 and 19.” She specified that the bases for her general claim of unconstitutionality were (1) the property was not a nuisance in fact and its destruction “violated the protections afforded Plaintiff by the Texas Constitution and Texas Government Code”; (2) whether her property was a nuisance was a justiciable question to be determined only by the district court or jury trying the case; and (3) Dallas did not give proper notice before demolishing the property, which violated her right to due process. She sought damages for value of the property and mental anguish.
The district court was authorized by statute to conduct a substantial evidence review, and to “reverse or affirm, in whole or in part, or ... modify the decision brought up for review.” Tex. Loc. Gov’t Code § 214.0012(f). After severing Stewart’s appeal of the URSB’s order from her constitutional claims, the court affirmed the URSB order without altering or modifying it. Stewart did not appeal that ruling.
In this severed matter the trial court submitted two liability questions and damages questions contingent on “Yes” answers to the liability questions. The first liability question, question one, charged the jury to find from a preponderance of the evidence if Stewart’s property constituted a public nuisance at the time it was demolished by the City. The second liability question, question three, asked if the city failed to comply with section 27-13 of its ordinances in proceeding with the demolition of Stewart’s property. Stewart’s only objection to the charge was to request that the court define “public nuisance” in question one according to the definition in Dallas’s ordinance. The jury answered question one “No” and found the market value of the structure was $75,707.67 at the time it was demolished. Regarding Stewart’s due process claim, the jury answered question three “No.” Stewart moved the trial court to render judgment in her favor on the verdict of -the jury, which it did. Thus, as to the nuisance issue the jury charge submitted the same question to the jury that the URSB previously answered, and the jury made its findings by a preponderance of the evidence — the same standard by which the URSB made its findings.
II. The Court’s Holding
The Court recognizes and agrees that the government does not commit a taking when it abates a public nuisance. 36l S.W.3d at 566. But the Court allows Stewart to circumvent the URSB’s determination that her house was a nuisance and the trial court’s affirmation of that determination pursuant to its substantial evidence review despite the fact that Stew
Stewart and the Court mainly base their positions on City of Houston v. Lurie,
In Lurie, Aneeth Lurie refused to tear down two buildings she owned after the city council determined the buildings were nuisances. Lurie,
The authority to decide such a question involves the exercise of judicial discretion, and ordinarily includes the authority to weigh evidence, to make findings of fact, and to apply rules of law. It may well be doubted that a limited review of the facts, as under the substantial evidence rule, would amount to a judicial determination of the justiciable question here involved. Trial under that rule would not establish whether or not the buildings are nuisances, “in the same manner as any other fact.” Certainly we would not be justified in applying the substantial evidence rule to this case when there is nothing in the statutes, including the home ride enabling act, or in the city’s charter or in the city’s*585 ordinance, expressing an intention that the suit be tried, under that rule.
Lurie,
Similarly, in the cases upon which Lurie relied — Stockwell, Crossman, and Reagan — there was no statute or ordinance providing for judicial review. See Stockwell,
Since those cases were decided, however, the Legislature has enacted statutes authorizing substantial evidence judicial review of similar types of decisions. See Tex. Loc. Gov’t Code § 54.039(f) (“The district court’s review shall be limited to a hearing under the substantial evidence rule.”); id. § 214.0012(f) (“Appeal in the district court shall be limited to a hearing under the substantial evidence rule.”). The City of Dallas has incorporated the statutory standard into its ordinance. See Dallas Tex.Code § 27-9(e). Thus, in the matter before us, unlike the situations in Lurie, Stockwell, Crossman, and Reagan, statutes and an ordinance provide a definition of nuisance, procedures for giving notice of and determining whether property falls within the definition of nuisance, judicial review of the nuisance determination, and the standard to be used in any judicial review. See Cedar Crest #10, Inc. v. City of Dallas,
Although the Court recognizes that Lu-rie involved the absence of a statutory basis for substantial evidence review, in a footnote of its opinion the Court concludes that the basis of the Court’s holding was not statutory; instead, Lurie focused on the special nature of the right being protected.
In City of Houston v. Blackbird,
An assessment against property and its owner for paving improvements on any basis other than for benefits conferred and in an amount materially greater than the benefits conferred, violates Sec. 17 of Article 1 of the Constitution of Texas, which prohibits the taking of private property for public use without just compensation. The right to judicial review of acts of legislative and administrative bodies affecting constitutional or property rights is axiomatic. The City of Houston does not question the verity or soundness of this proposition. What the City does question is the right of respondents in this case to a fall-blown de novo trial of the question of benefits. We agree with the City that respondents had no such right; and, accordingly, we agree with the City that respondents were not entitled to a jury trial of the issues in this case and that the jury’s answers to the special issues submitted to them should have been disregarded.
Id. at 162-63 (emphasis added) (citations omitted). As the Court noted, the Legislature “precluded judicial review of such acts to the extent of its constitutional power” and the Legislature did not intend to provide “dissatisfied property owners a de novo review thereof.” Id. at 163. The Court upheld that choice by the Legislature, even though the takings clause was the basis for the property owners’ challenge, just as it underlies Stewart’s challenge.
Similarly, the Court held in Brazosport Savings and Loan Ass’n v. American Savings and Loan Ass’n that parties claiming an agency’s decision infringed their vested property rights in franchises had a right to judicial review, but the right was limited to “prov[ing] their allegations that the Commissioner’s action was illegal or without support in substantial evidence.”
The Court discounts the holdings of Blackbird and Brazosport by reading them as “due process cases alleging improper agency actions implicating property interests.”
The Court also states that Blackbird and Brazosport “both predate our decision in [Steele v. City of Houston,
In Steele, police sought to flush and capture fugitive prisoners by starting k fire in the house where the fugitives were hiding.
In contrast to Steele, where the question was whether an emergency existed and property was destroyed without prior proceedings to determine the public nuisance question, statutorily authorized abatement proceedings involve quasi-judicial determinations occurring before destruction of the property and affording procedural and substantive safeguards to property owners. See Tex. Loc. Gov’t Code § 54.034. Situations involving determining whether property was previously destroyed because of great public necessity are different from situations involving destruction of property following proceedings pursuant to statutes and ordinances requiring advance notice, a hearing with the opportunity to challenge the public nuisance determination before destruction, and review by a court empowered to set aside or modify the final order. In my view Steele is inapposite. See, e.g., Crossman,
III. Issue Preclusion
Citing City of Houston v. Crabb,
Unlike the situation in Crabb, the URSB found Stewart’s property to be a nuisance in two evidentiary hearings that took place a year apart — the second being a rehearing pursuant to her request. Stewart has never denied adequate notice of both hearings. The transcript of the second hearing shows that Stewart appeared, took part, and even brought a witness who testified on her behalf.
Following its September 2001 hearing, the URSB found by a preponderance of the evidence that Stewart’s property was a public nuisance as defined by Dallas’s ordinances and the Local Government Code and rendered an order to that effect. The Board specifically reaffirmed the 2001 findings and order on September 23, 2002 — again specifically by a preponderance of the evidence — after hearing evidence from the city inspectors, Stewart, Stewart’s mother, and the same neighbor who testified in September 2001. At the second hearing, Stewart did not claim that repairs had been made to the property since the first hearing or that she did not have notice of the specific problems that resulted in the determination that the property was a nuisance. She claimed that she had always intended to repair the property, but the extent to which she carried out that intent was to install a fence that she maintained restricted entry to the property. On September 26, 2002, Stewart received written notice that the City intended to demolish the property; on October 17, 2002, a city inspector re-inspected the property and determined that the code violations had not been corrected; and a week later the City’s special-projects manager inspected the property and determined that no repairs had been made. On October 28, 2002, a City magistrate signed a judicial warrant authorizing demolition of the property and the demolition took place on November 1, 2002.
As previously noted, Stewart disputed the City’s contention that her property was a nuisance, but she did not claim or offer evidence that there had been a substantial change in her property between the time of the URSB’s September 23, 2002 finding that the property continued to be a public nuisance and the property’s demolition on November 1, 2002. Nor did she seek a court order — which she could have — directing the City to defer any action until after her appeal was complete.
I would hold that under this record, Stewart’s takings claim was barred by the URSB’s nuisance finding and the trial court’s affirming of it. See, e.g., Igal v. Brightstar Info. Tech. Grp., Inc., 250
IY. Conclusion
I would hold that the process provided to Stewart by the URSB proceedings and appellate review of those proceedings and the URSB’s order by the substantial evidence standard was sufficient. In this regard I join Justice Guzman’s dissent.
I would reverse the judgment of the court of appeals and render judgment that Stewart take nothing.
. Some provisions of the Code have been amended. References will be to code language applicable to this matter.
. In an effort to undercut the legitimacy of the URSB’s determinations, the Court states that abatement proceedings are necessarily motivated in part by the City’s bottom line because the URSB’s job is to eliminate unsightly conditions adversely affecting the economic value of neighboring property and the City’s tax base.
Dissenting Opinion
joined by Justice WAINWRIGHT, Justice GREEN, and Justice JOHNSON, dissenting.
The upsurge of abandoned buildings caused by the subprime mortgage debacle and the recent recession is well known, as are the difficulties it has caused for cities.
Today, the Court holds that “substantial evidence review of a nuisance determination resulting in a home’s demolition does not sufficiently protect a person’s rights under Article I, Section 17 of the Texas Constitution,” and thus concludes that a party whose real property has been determined a nuisance is entitled to an absolute right to de novo judicial review of the underlying nuisance determination made by an administrative board when the person alleges a taking. By doing so, the Court misses the crux of the constitutional issue here: do the procedures created by the Legislature for abatement of urban nuisances violate the due process rights of property owners? Our nuisance precedents establish that due process does not necessitate a de novo judicial determination that a condition is a nuisance if the Legislature has both (1) properly declared that the condition in question is a nuisance and provided for its summary abatement, and (2) specified a different standard of review of such an abatement. Here, the
I. Proper Abatement of a Public Nuisance Does Not Constitute a Taking
A. Due Process
Although the Court rushes to apply the Takings Clause, the correct inquiry is whether there was proper abatement of a public nuisance, consonant with due process. As the Supreme Court has explained, proper abatement of a public nuisance does not constitute a taking. See Lucas v. S.C. Coastal Council,
Due process is a flexible concept, and its precise requirements depend on the particular situation in question.
B. The Legislature’s Authority to Abate Nuisances
For over a century, this Court has recognized the Legislature’s authority to determine that a condition is a nuisance, and to provide for its summary abatement. As far back as 1876, we explained that the Legislature could declare that wooden buildings are nuisances under certain circumstances, and could so authorize their abatement. See Pye v. Peterson,
Consequently, we have long recognized that the Legislature, pursuant to its authority to declare and abate nuisances, can confer to agencies or municipalities (by statute or grant of authority, as in a municipal charter) the ability to abate a specified nuisance, as defined by the legislative grant. See Crossman,
First, the Legislature cannot declare something a nuisance that is not so in fact. City of Houston v. Lurie,
Second, the Legislature cannot delegate an open-ended authority to define nuisances to agencies or municipalities; rather, in authorizing abatement, the Legislature itself must define the nuisance in question. See City of Texarkana v. Reagan,
The Court concludes that only a court is competent to ultimately determine whether a building is a nuisance, and that any such determination by an agency is always subject to de novo review, despite a legislative determination that the substantial evidence rule should apply. Though I agree with the Court that a nuisance determination is generally “a justiciable
In Stockwell, the commissioner of agriculture did not merely determine that the particular hedge in question was a nuisance; instead, he determined that the type of citrus disease infecting the region was a nuisance under the general, catch-all provision of the statute in question. See Stockwell,
Similar issues confronted this Court in Crossman. The principal due process defect in that case was that the municipality lacked authorization from the Legislature to abate the type of nuisance in question. See Crossman,
In Reagan, we invalidated another city ordinance, holding that “this ordinance, in so far as it makes final the orders of the city council declaring the building a nuisance ... is void.” Reagan,
Finally, in Lurie, we twice recognized the Legislature’s authority to declare a condition to be a nuisance. Lurie,
Thus, although Lurie goes on to state there is a right to judicial determination of whether a property is a nuisance, that right only arises when the Legislature or common law has not already defined the class of things in question as a nuisance. Id. at 875, 877. Of course, where the Legislature has made such a determination, due process still guarantees a qualified judicial review, but does not require that the review be de novo. Cf. City of Houston v. Blackbird,
Here, the Legislature has authorized cities to abate a particular nuisance, and has specifically defined it as:
[A] building that is: (1) dilapidated, substandard, or unfit for human habitation and a hazard to the public health, safety, and welfare; (2) regardless of its structural condition, unoccupied by its owners, lessees, or other invitees and is unsecured from unauthorized entry to the extent that it could be entered or used by vagrants or other uninvited persons as a place of haborage or could be entered or used by children; or (3) boarded up, fenced, or otherwise secured in any manner if (a) the building constitutes a danger to the public even though secured from entry; or (b) the means used to secure the building are inadequate to prevent unauthorized entry or use of the building in the manner described in Subdivision (2).
Tex. Loo. Gov’t Code § 214.001(a)(1) — (3). This definition of what constitutes a nuisance is specific, and constitutes a nuisance in fact. See Spartan’s Indus.,
As Justice Johnson notes in his dissent, the Court effectively overturns the statutory system created by the Legislature to facilitate nuisance abatement. This is especially troubling because the Legislature appears to have made every reasonable effort to draft these statutes in accordance with the relevant standards pronounced by Texas courts, including other due process requirements not at issue here. In particular, the statutes provide for: (1) notice and hearing, compare Tex. Loc. Gov’t Code § 214.001(b)(2) — (3), with Perry v. Del Rio,
In addition, there is no need for the novel course the Court embarks on today. Although there are important substantive rights behind the procedural issue in this case — i.e., rights under the Takings Clause — creating a new procedural entitlement to protect such rights is unnecessary. The right to compensation for takings of private property is a vital one, as evidenced by its enshrinement in both the Federal and Texas Constitutions. Without reservation, I share the Court’s laudable concern with preventing uncompensated takings. As such, I note that even under substantial evidence review, it is still possible to prove that an agency’s or municipality’s action is illegal, see Brazosport Sav. & Loan Ass’n,
In summary, the Legislature has both (1) validly defined the nuisance in question and authorized its abatement, Tex. Loc. Gov’t Code § 214.001, and (2) specified what standard of review applies, id. § 214.0012(f). As a result, I would conclude that the urban nuisance statutes at issue comport with our nuisance precedents, and therefore afforded Stewart due process, and thus should have precluded Stewart’s takings claim.
II. The Court’s Reasons for Disregarding our Nuisance Jurisprudence Fall Short
The Court circumvents our due process nuisance jurisprudence discussed above in favor of a takings inquiry. Its justifications for doing so are (1) a misreading of the extent of our holding in Steele v. City of Houston, and (2) an entirely novel application of the constitutional fact doctrine. Both of these justifications fail.
A. Misplaced Reliance bn Steele
The Court argues that the Stockwell-Lurie line of cases described above is no longer valid in light of Steele v. City of Houston,
In fact, Steele says very little about the question in this case — in Steele, there was no due process at all, because the Houston police summarily set fire to the plaintiffs home in an attempt to flush out fugitives, id. at 789, nor was the city claiming to abate a nuisance, see generally id. Steele simply stands for the proposition that the Takings Clause is self-executing, and that sovereign immunity is waived for takings claims. See id. at 789. An important
B. The Constitutional Fact Doctrine
The Court further reaches its conclusion by a novel adoption and application of the constitutional fact doctrine. But there are two important reasons that I would decline to import that doctrine from its proper, federal context.
First, the doctrine is generally applied in the context of the First and Fourth Amendments, not to nuisance or takings questions, as the Court itself admits.
Second, the Court’s reason for applying the doctrine is disquieting, both for its unsound basis, and for the breadth of its potential application in future cases. The Court applies the doctrine merely because “[tjakings claims also typically involve mixed questions of fact and law.”
III. Conclusion
The Court’s decision opens the door to a host of takings challenges to agency determinations of every sort, and in every such challenge a right to trial de novo will be claimed. Judges at every level of our court system are invited by today’s decision to substitute their own factual determinations for that of an agency or even a lower court. The consequences of the Court’s decision will not be limited to the courtroom. As discussed above, cities are faced with complex challenges posed by a crisis level of abandoned and dangerous buildings, and one of the most important weapons provided by the Legislature to combat this problem is summary nuisance
Because the Legislature has both (1) validly defined the nuisance in question and authorized its abatement, Tex. Loc. Gov’t Code § 214.001, and (2) specified what standard of review applies, id. § 214.0012(f), due process does not require de novo review under our precedents. The Board’s finding, pursuant to that authority, as affirmed by the trial court on substantial evidence review, should have precluded Stewart’s takings claim. Accordingly, I would reverse thé court of appeals and render judgment that Stewart take nothing.
. See, e.g., Kristin M. Pinkston, In the Weeds: Homeowners Falling Behind on Their Mortgages, Lenders Playing the Foreclosure Game, and Cities Left Paying the Price, 34 S. Ill. U. L.J. 621, 627-33 (2010).
. Melissa C. King, Recouping Costs for Repairing “Broken Windows": The Use of Public Nuisance by Cities to Hold Banks Liable for the Costs of Mass Foreclosures, 45 Tort Trial & Ins. Prac. LJ. 97, 98-101 (2009); see generally James Q. Wilson & George L. Kelling; Broken Windows, Atlantic Monthly, Mar. 1982, at 29.
. See, e.g., King, supra note 2, at 99; Joseph Schilling, Code Enforcement and Community Stabilization: The Forgotten First Responders to Vacant and Foreclosed Homes, 2 Alb. Gov’t L.Rev. 101, 129-30(2009).
. The Court asserts that I present no "logical reason” for treating this nuisance case differently from an eminent domain case.
. The Stockwell opinion clearly distinguished between (1) the commissioner's determination that citrus canker was a nuisance generally, and (2) the particular finding that Stock-well’s hedge should be destroyed as a result. See Stockwell,
. The Court inappropriately reasons that the statutes in Stockwell and in this case are equivalently broad, see
. The Court's comparison of the charter in Reagan and the instant statute also fails. The charter in Reagan was not limited to nuisances in fact because any dilapidated building could purportedly be demolished pursuant to the charter, and the Reagan Court accordingly suggested that the charter was invalid on this point because not even the Legislature can declare something a nuisance
The Court attempts to explain away this distinction by invoking the last antecedent rule to misconstrue section 214.001 as allowing demolition of homes for merely being "dilapidated" or “substandard,” and reasons that the definition is thus not limited to nuisances in fact.
statute, Acker v. Tex. Water Comm'n,
. The Court asserts that the general rule of de novo determination or review of nuisance findings is "unlikely ever to apply again” under my approach.
. Although the Court asserts that its holding is limited to "review of agency decisions of substantive constitutional rights,” and thus "does no violence” to the general rule,
. As a particularly relevant example, the Court’s decision today is contrary to Crowell v. Benson,
And where administrative bodies have been appropriately created to meet the exigencies of certain classes of cases and their action is of a judicial character, the question of the conclusiveness of their administrative findings of fact generally arises where the facts are clearly not jurisdictional and the scope of review as to such facts has been determined by the applicable legislation.
Id. at 58,
The limitation found in Crowell is germane here because, although the Supreme Court was addressing the jurisdictional fact doctrine, that doctrine is an English antecedent of the constitutional fact doctrine, Henry P. Monaghan, Constitutional Fact Review, 85 Co-lum. L.Rev. 229, 249 (1985), and by applying the jurisdictional fact doctrine in the American, constitutional context, the Supreme Court "both confirmed and generalized the constitutional fact doctrine in strong terms," id. at 253. "While conceding that ordinary facts could be established in the administrative process, the Court held that constitutional facts must be found by the courts." Id. (emphasis added).
. It is further worth noting that as part of its justification for ignoring the long-established distinction between nuisance abatement and takings, and for invoking the constitutional fact doctrine, the Court relies on regulatoty takings cases such as Mayhew v. Town of Sunnyvale,
Because of the differences between regulatory and conventional takings cases, it is generally inappropriate to treat regulatory takings cases as controlling precedent for conventional takings. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,
. See Brief of the State of Texas as Amicus Curiae, City of Dallas v. Stewart, No. 09-0257 (Tex. Feb. 3, 2010); Brief of Amici Curiae City of San Antonio, Texas, City of Houston, Texas, In Support of Petitioner City of Dallas, Stewart, No. 09-0257 (Tex. Sep. 17, 2009); Brief of Amici Curiae the Cities of Aledo, Granbury, Haltom City, Kennedale, Lake Worth, North Richland Hills, River Oaks, Saginaw and Southlake, Texas, Stewart, No. 09-0257 (Tex. May 11, 2009).
Dissenting Opinion
dissenting from the denial of rehearing.
Abandoned buildings, dilapidated homes and hazardous properties have in many instances become a haven for vagrants, criminal activity and potential hazards to surrounding neighborhood properties. The Court’s holding and today’s denial of the Motion for Rehearing in effect have essentially decimated summary nuisance abatement — a city’s crucial, front-line tool to combat the detrimental effects of nuisance on the health, safety, and welfare of its citizens.
Underscoring the risk to the safety and vitality of entire communities, the City of Dallas urges this Court to vacate its holding. Twelve separate amicus briefs have been submitted in support of the Motion for Rehearing.
I believe the cities’ concerns warrant closer examination. But, despite the rapid manifestation of the broad-sweeping effects I cautioned about in my dissent, this Court adheres to its untenable holding— despite long-standing precedent dictating otherwise
Because the Court’s decision essentially strips municipalities of their legislatively provided tool to combat public nuisance, I would grant the motion for rehearing. Because the Court declines to do so, I respectfully dissent.
. City of Dallas v. Stewart,
. The Texas Municipal League (TML), Texas City Attorneys Association (TCAA), and the International Municipal Lawyers Association (IMLA), as well as the cities of Abilene, Aledo, Cleburne, Euless, Fort Worth, Garland, Gran-bury, Grapevine, Haltom City, Houston, Hurst, Iving, Kennedale, Lake Worth, McAl-len, Mesquite, North Richland Hills, River Oaks, Saginaw, San Antonio, Southlake, and Sulphur Springs submitted a total of twelve amicus curiae briefs in support of the City of Dallas’s Motion for Rehearing.
.Brief in Support of Petitioner’s Motion for Rehearing for Amicus Curiae, City of Abilene at 8-9, Stewart, No. 09-0257 (Tex. Aug. 31, 2011); Brief of Amicus Curiae, the City of Garland, in Support of the City of Dallas’s Motion for Rehearing at 1, Stewart, No. 09-0257 (Tex. Oct. 13, 2011); Brief of Amicus Curiae, IMLA, in Support of Petitioner’s Motion for Rehearing at 13, Stewart, No. 09-0257 (Tex. Aug. 23, 2011); Amicus Curiae Brief of the City of Irving in Support of Motion for Rehearing at 10-11, Stewart, No. 09-0257 (Tex. Aug. 19, 2011); Brief of Amicus Curiae the City of Sulphur Springs, Texas in
.See, e.g., Laura Mueller, City of Dallas v. Stewart: Divided Supreme Court of Texas Holds That Nuisance Decisions Should Be Made by Courts Rather Than City Boards, Tex. City Attorneys Ass’n News, June/July 2011, at 3, available at http://www.tml.orgdegal_tcaa news/News-June-July201 l.pdf (stating many cities have halted their nuisance ordinance enforcement until this rehearing is decided) (all Internet materials as visited January 25, 2012 and copy in Clerk of Court’s file); Rudolph Bush, Texas Supreme Court Wants To Hear More About Dallas’s Demolition of ‘Nuisance’ Property, Dallas Morning News, Oct. 20, 2011, available at http://cityhallblog.dallas news.com/archives/2011/10/texas-supreme-court-wants-to-h.html (noting that ”[m]any, if not all, of those cities have since stopped destroying nuisance properties absent a court order”); Brief of Amicus Curiae the City of Sulphur Springs, Texas in Support of Petitioner City of Dallas's Motion for Rehearing at 10, Stewart, No. 09-0257 (Tex. Sept. 1, 2011) (stating that the city’s program to eliminate dangerous and unhealthy structures has ceased as a direct consequence of this Court's holding).
. See, e.g., Ken Fountain, The Hazard Next Door: Texas Riding Restricts Cities from Eliminating Blighted Structures, Bellaire Examiner, Aug. 11, 2011, available at http://www.your houstonnews.com/bellaire/news/article_ea69 abc2-l 15b-5edf-9972-7d4ffcl6706e.html (indicating that proceeding with demolition after a board's determination opens the municipality to potential costly litigation); Patricia Kilday Hart, Hart: Whose Property Rights Are Being Protected?, The Houston Chronicle, Jan. 7, 2012, available at http://www.chron.com/ news/kilday-hart/article/Hart-Whose-property-rights-are-being-protected-2448385.php (suggesting the Court’s opinion "has made it more difficult for municipalities to order demolitions of abandoned nuisances,” noting that demolition orders — following a nuisance finding by the municipal board — are now likely to only be acted upon when public health and safety risks outweigh the exposure of a takings claim).
. See Stewart,
. See Lamar Homes, Inc. v. Mid-Continent Cas. Co.,