                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §
 COUNTY OF EL PASO,
                                                 §               No. 08-14-00250-CV
                              Appellant,
                                                 §                  Appeal from the
 v.
                                                 §            243rd Judicial District Court
 JOEL NAVAR,
                                                 §             of El Paso County, Texas
                              Appellee.
                                                 §                 (TC# 2010-1789)

                                  CONCURRING OPINION

       I join in the Court’s opinion and judgment in vacating the trial court’s order and rendering

judgment dismissing Navar’s ex post facto and declaratory judgment claims. I also concur in the

Court’s decision to uphold Navar’s regulatory taking claim, because I agree that portions of

Navar’s pleadings allege a Penn Central taking claim.          Navar, however, makes additional

allegations that in my opinion do not raise a taking claim.

       First, in part of his amended petition, Navar alleges the County refused “without cause”

and “without any legitimate basis” to issue certificates of compliance until he reconstructed new

water and sewage facilities and repositioned the mobile homes located on his property. By these

allegations, Navar does not directly challenge the applicable state or county standards or complain

that their proper application to his property resulted in a regulatory taking. To the extent Navar is
complaining that it was the County’s improper application of the regulatory standards to his

property that interfered with the use of his property, he has not raised a taking claim.

Governmental interference arising from the improper application or misapplication of a regulation

is not a taking.

        The owners in City of Houston v. Carlson, 451 S.W.3d 828 (Tex. 2014), asserted in part

that the city had misapplied the safety regulations to their property, resulting in a taking. Id. at

831–32. The Supreme Court recognized, at least implicitly, that a misapplication claim, while it

may give rise to a due process or Section 1983 claim, is not a taking claim. Id. at 833. Likewise,

the Dallas Court of Appeals, following Carlson, held that the owners of a billboard failed to allege

a regulatory taking claim because they did not challenge the sign regulations in the city’s zoning

ordinance or complain that their proper application resulted in a taking, but rather complained only

about the city’s misapplication of the regulations to their property. CPM Trust v. City of Plano,

461 S.W.3d 661, 673 (Tex.App.--Dallas 2015, no pet.).

        The prohibition against governmental taking applies only to takings for “public use.”

Interference with the use of property arising from the government’s misapplication of a regulation

– even if intentional and arbitrary – is not a taking for public use. The United States Supreme

Court recognized in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 125 S.Ct. 2074, 161 L.Ed.2d 876

(2005), that governmental misapplication of the law can never amount to a taking, even if the

governmental action is arbitrary. The Court explained that while arbitrary actions might violate

due process and give rise to an action under 42 U.S.C. § 1983, the Takings Clause applies only to

takings “for public use,” and arbitrary actions would not be for a public use. Lingle, 544 U.S. at

543, 125 S.Ct. at 2084. Lingle emphasized that the Takings Clause does not bar all government


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actions. Rather, it requires compensation only “in the event of otherwise proper interference

amounting to a taking.” [Emphasis added]. Lingle, 544 U.S. at 537, 125 S.Ct. at 2080. If the

governmental action is not proper, it cannot be a taking. Id. at 543, 125 S.Ct. at 2084 (“[I]f a

government action is found to be impermissible – for instance because it fails to meet the ‘public

use’ requirement or is so arbitrary as to violate due process – that is the end of the inquiry.”).

Thus, to the extent Navar is complaining about the County’s misapplication of the law to his

property, he has not raised a regulatory taking claim.

       Second, Navar also complains that the County failed to timely make the written

certification determinations as required by statute, and that by the time the County issued the

certificates of compliance, he had already suffered damages because of his inability to lease the

mobile homes in the interim. These are objections only to the infirmity of the process and do not

allege a regulatory taking. The Texas Supreme Court recognized in Carlson that while such

claims may constitute a due process or Section 1983 claim, “where a party objects only to the

‘infirmity of the process,’ no taking has been alleged.” [Citations omitted]. Carlson, 451

S.W.3d at 832–33. Thus, to the extent Navar complains about the County’s failure to timely

make the required written determinations and to timely issue the certificates of compliance, Navar

has not raised a taking claim.



August 7, 2015
                                              STEVEN L. HUGHES, Justice

Before Rodriguez, J., Hughes, J., and Barajas, Senior Judge
Barajas, Senior Judge (Sitting by Assignment)




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