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Although Porretto Beach survived the Great 1900 Storm, Hurricane Carla, Hurricane Camille, Hurricane Alicia, and Hurricane Ike, it was unable to endure the Texas Supreme Court’s recent hurricane-season battering.  The Court’s opinion shows just how hard it is for a landowner to win an “inverse condemnation case” in Texas.

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There are two types of cases when the government takes property through eminent domain. First, there are physical takings cases like highway, power lines, and pipelines where landowners are absolutely entitled to just and adequate compensation under the Texas constitution.  Second, there are inverse cases, like Porretto, where the State does not physically occupy the property, but its actions have a real-world, negative impact on the ability to use the property.

In Porretto, the Texas Supreme Court goes to great length to avoid having the State “take” property.  The evidence showed that the State: (1) claimed ownership of the property through the General Land Office, (2) transferred ownership under the tax records to the State, and (3) leased a portion of the property to the City of Galveston.  If these steps do not constitute a “taking,” then a landowner is left with the question of what actually does.  The takeaway is that mere threats (and even some steps) are likely not going to be enough to establish an inverse condemnation taking in Texas.

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In light of this ruling, Texas landowners must be very careful when negotiating and reaching agreements with the State.  Porretto is a perfect example of where the State may go back on its word!

You can read the full opinion here.