1707 New York Ave., LLC v. City of Arlington

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00259-CV

1707 NEW YORK AVE., LLC APPELLANT

V.

CITY OF ARLINGTON APPELLEE

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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 352-271175-14

CONCURRING MEMORANDUM OPINION1

I write separately to more precisely explain why Appellant’s argument that

it was not required to timely assert its taking claim in an appeal of the order

authorizing demolition is unquestionably without merit.

At oral argument, Appellant maintained that local government code chapter

214 and its judicial review component do not apply to this case because,

1 See Tex. R. App. P. 47.4. although nothing in chapter 214 permits a city to assess a fee or penalty against

a building owner, the final judgment authorized the City to assess a penalty

against Appellant. Because chapter 214 does not apply, Appellant argued, it was

relieved of the burden to exhaust its administrative remedies by seeking judicial

review of the order authorizing demolition. See City of Dallas v. Stewart, 361

S.W.3d 562, 579‒80 (Tex. 2012); Patel v. City of Everman, 361 S.W.3d 600,

601‒02 (Tex. 2012). A review of chapter 214 and Article XVI of the City’s

Ordinances Governing Construction reveals that the final judgment strictly

complies with those authorities.

Local government code section 214.001(d) provides that if a building is

found to be dangerous, a municipality may order that it be “vacated, secured,

repaired, removed, or demolished by the owner within a reasonable time.” Tex.

Loc. Gov’t Code Ann. § 214.001(d) (West Supp. 2014). The City’s Dangerous

Building ordinances track this language. See Arlington, Tex., Code of

Ordinances ch. Construction, art. XVI, § 16.04(A) (2015) (stating that municipal

court determines whether dangerous building “shall be vacated, secured,

repaired, removed, and/or demolished”); see also id. § 16.05(D)(2)(a) (“repair,

remove or demolish the building”), § 16.05(D)(2)(b) (“remove or demolish the

building”), § 16.05(D)(2)(c) (“remove the accumulated matter”), § 16.05(D)(2)(d)

(“secure, demolish or remove the building”), § 16.05(D)(2)(e) (“secure or remove

all building materials, equipment and tools”).

2 Chapter 214 also addresses what actions a municipality may take when a

building owner ultimately fails to comply with an order declaring a building

dangerous. Not only may the municipality “vacate, secure, remove, or demolish

the building,” but it has the additional authority to “assess a civil penalty against

the property owner for failure to repair, remove, or demolish the building.”2 Tex.

Loc. Gov’t Code Ann. §§ 214.001(m), 214.0015(b)(2) (West 2008). Once again,

the City’s Dangerous Building ordinances follow chapter 214’s lead. See

Arlington, Tex., Code of Ordinances ch. Construction, art. XVI, § 16.07(A), (B)

(stating that in the event of noncompliance, City may “[v]acate, secure, repair,

remove and/or demolish the building” or “[a]ssess a civil penalty against the

owner of the building”); see also id. § 16.05(D)(5) (“The Hearing Authority shall

also order a civil penalty that the City may assess if the owner fails to repair,

remove or demolish the building . . . .”) (emphasis added).

Considering all of this together, and applying it here, the City could only

assess a penalty against Appellant for its failure to comply with the final

judgment, and that is exactly how the final judgment was structured. The final

judgment states that the “Owner of the property shall repair, remove or demolish

the Building.” In a different section, it provides that if Appellant “fails to comply

with any part of this order by the specified dates,” “the City is hereby authorized

2 Section 214.0015 “applies only to a municipality that has adopted an ordinance under Section 214.001,” which the City has done. Tex. Loc. Gov’t Code Ann. § 214.0015(a).

3 at its discretion to vacate, secure, repair, remove and/or demolish the Building”

or, alternatively, “assess a civil penalty on the owner.” Thus, the final judgment is

consistent with both chapter 214 and the City’s Dangerous Building ordinances

and did not improperly authorize the City to assess a penalty against Appellant.

For these reasons, Appellant’s argument that chapter 214 is inapplicable—and

that Appellant therefore did not have to appeal the order authorizing demolition—

is without merit.

/s/ Bill Meier BILL MEIER JUSTICE

DELIVERED: October 22, 2015