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A Dallas suit challenges nuisance law, too

I hoped to have more for you on this case today, readers, but I'm still awaiting return calls. Check next week's QueQue for a more in-depth discussion of this angle. If you're interested in this (and you should be), you can read the court filings, and watch oral arguments before the Texas Supreme Court.


Slavin v. City of San Antonio, one subject of this week’s news story about the worrisome intersection of our Dangerous Structures Determination Board and the Dangerous Assessment Response Team, isn’t the only Constitutional challenge to these unelected, largely unsupervised boards. In City of Dallas v. Heather Stewart, attorney Julius Staev argues that citizens have the right to bring a separate takings claim against the government, even when a reviewing court has affirmed the ruling of a dangerous-structures board.

The City of Dallas (and San Antonio and Houston in an amici brief) insists that when the legislature amended the statute in 1993 to allow only limited review of the boards’ decisions, they meant to make that avenue of appeal final. But Staev says that conclusion is logically repugnant.

“Whatever legislative intent was thrown around, nothing says anything about getting rid of Constitutional protections,” he says. “If [lawmakers] inadvertently or indirectly amended the [Texas] Constitution,’ it would have to be voted on as a Constitutional amendment.”

Staev is also alarmed by the argument, made in Stewart and as part of Patel v. City of Everman yet another case before the Texas Supreme Court, that once a property has been ruled a nuisance, the owner loses control of it and cannot make any improvements that could be used to subsequently challenge the board’s finding.

“If the cities were to have their way,” Staev says, “it would literally change the landscape.”

Yes, court cases take time, but if a building really presents an emergency, governments have a recourse, says San Antonio attorney Eddie Bravenec: Tear down the building. If the owner sues and wins, pay the damages.

If the City was right most of the time, it might not be much more expensive than the present system: During the last fiscal year, the City billed more than $620,000 for 89 demolitions, $492,000 of which is still outstanding. The City’s recourse in those cases is to file a lien, which runs with the property until it is sold.

Without the built-in safety net of the current system, which makes it nearly impossible to challenge the DSDB’s decisions, “the City would only do it if it was really an emergency,” Bravenec says. “If the City gets to demolish [private property] without facing punitive damages, well, they’re going to demolish a whole bunch of other properties — and that’s what they’ve been doing.”

 

Posted by Elaine Wolff on 4/9/2010 4:38:14 PM
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