Texas Attorney General Opinion: JC-142 Page: 6 of 9
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The Honorable Bill G. Carter - Page 6
245.002(a), adopted by Act of Apr. 29, 1999, 76th Leg., R.S., ch. 73, 2, sec. 245.002, 1999
Tex. Sess. Law Serv. 431, 432 (emphasis added); see id. 245.003 - .004, adopted by Act of
Apr. 29, 1999, 76th Leg., R.S., ch. 73, 2, secs. 245.003 - .004, 1999 Tex. Sess. Law Serv. 431,433
(delimiting applicability of chapter and listing exemptions).
In its brief to this office, the Texas Association of Builders relies on Estate of Scott v.
Victoria County, 778 S.W.2d 585 (Tex. App.-Corpus Christi 1989, no writ), for its argument that
a home-rule municipality may not implement a growth-management plan in the absence of an
emergency. See Home & Apartment Builders Brief, supra, at 4. The Association raises an
important, different issue.
The issue you raise is whether a home-rule municipality may institute a growth-management
plan. The issue in Estate of Scott is whether a temporary moratorium prohibiting additional
sewer hookups in certain areas of the county constituted an unconstitutional taking for which the
owners must be compensated. See Estate of Scott, 778 S.W.2d at 589-91. The appellants, who
owned undeveloped tracts of land in Victoria County, claimed that the County unconstitutionally
"'took' their property without just compensation" by issuing the temporary sewer moratorium. Id.
at 586-87. Whether a home-rule municipality has authority to undertake an action is different from
whether it must provide compensation for actions under the takings provision of either the federal
or state constitution.
The Just Compensation Clause of the Fifth Amendment to the United States Constitution
forbids the State to take private property for public use without just compensation. U.S. CONST.
amend. V; see Mayhew, 964 S.W.2d at 933; Estate of Scott, 778 S.W.2d at 589. Article I, section
17 of the Texas Constitution similarly prohibits the taking o fprivate property for public use "without
adequate compensation being made." TEX. CONST. art. I, 17; see Mayhew, 964 S.W.2d at 933;
Estate of Scott, 778 S.W.2d at 589-90. A regulatory taking occurs if a municipal ordinance '"does
not substantially advance legitimate state interests."' Mayhew, 964 S.W.2d at 933 (quoting Agins
v. City of Tiburon, 447 U.S. 255, 260 (1980)). The United States Supreme Court has recognized
several governmental interests as legitimate:
protecting residents from the "ill effects of urbanization[,]" Agins,
447 U.S. at 261 ... ; enhancing the quality of life[,] Penn Central
Transp. Co. v. New York City, 438 U.S. 104, 129 ... (1978); and
protecting a beach system for recreation, tourism, and public health[,]
Keystone [Bituminous Coal Ass 'n v. DeBenedictis, 480 U.S. 470, 488
(1987)]; Esposito v. South Carolina Coastal Council, 939 F.2d 165,
169 (4th Cir. 1991), cert. denied, 505 U.S. 1219 ... (1992).
Mayhew, 964 S.W.2d at 934. "The 'substantial advancement' requirement examines the nexus
between the effect of the ordinance and the legitimate state interest it is supposed to advance." Id.
Even if a municipal ordinance substantially advances legitimate state interests, it may constitute a
compensable regulatory taking if it (1) denies a landowner of all economically viable use of his or(JC-0142)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-142, text, November 10, 1999; (https://texashistory.unt.edu/ark:/67531/metapth274451/m1/6/?rotate=90: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.