Land Use, Vested Rights, and Government Takings

Land Use Lawyer Austin Texas

Mar 15, 2013 — by Jeff Mundy
Tags: Land Use

 

We have described the right to own private property as "fundamental, natural, inherent, inalienable, not derived from the legislature and as pre-existing even constitutions." Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977). One of the most important purposes of our government is to protect private property rights. Id. The Texas Constitution resolves the tension between private property rights and the government's ability to take private property by requiring takings to be for public use, with the government paying the landowner just compensation. TEX.

CONST. art. I, § 17 ("No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made . . . ."). The United States Supreme Court has stated that the rationale for compensating landowners for takings for public use is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49 (1960). When only part of a tract is taken, Texas law assures just compensation by entitling the landowner to the value of the part taken as well as the damage to the owner's remaining property. TEX. PROP.

CODE § 21.042(c).

Takings may be categorized as either statutory (if the government compensates the owner for the taking) or inverse (if the owner must file suit because the government took, damaged, or destroyed the property without paying compensation). Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992). This proceeding has involved statutory and inverse claims. Initially, Kopplow sued because the City did not admit to damaging the property, which sounds in inverse condemnation. 335 S.W.3d at 291.

Kopplow Development v. City of San Antonio, (Texas Supreme Court 2013)

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