Agenda - Planning Commission - 10/05/2006

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Page 8 - September 10, 2006 Z.B. across a parcel of property in the city of Laredo in 1990. In 1993, Duarte ac- quired the' property through which the easement ran. In October 2002, the residential plan examiner for the city reviewed a site plan for construction on Duarte's property and requested that a modified site plan,. showing the ease- ment, be submitted. In December 2003, the building inspector visited the Duarte property and issued a stop-work order, because the structure being built en- croached on the easement. The building inspector allowed construction to recommence pursuant to a modified plan. In April 2004, the building inspector returned to the site and rejected the inspection because the structure continued to encroach on the easement. The building inspector then ordered Duarte to remove that portion ofthe building. In October 2004, Duarte filed a lawsuit against the citj,.claiming that issuing a building permit, and later ordering part of his building removed, amounted to negligence on the part of the city. Duarte also claimed that the removal of part of his building amounted to a taking, and alleged that the city's actions were arbitrary, unreasonable, and capricious. The city responded by claiming that they were immune from liability on these ~laims and that the court lacked the jurisdiction to award the damages sought. The trial court rejected the city's claims and found in Duarte's favor. The city appealed. DECISION: Reversed. Generally, cities had immunity from being sued for performing govern- mental functions unless the legislature waived the immunity. These govern- mental functions were duties and obligations conferred upon the munici- pality by order of the legislature, to be exercised in favor of the general public. Functions related to the enforcement of building cqdes, plan ap- proval, and planning and zoning are recognized as governmental functions that qualify for immunity. As such, the law did not support claims related to these functions. Municipalities do not have immunity from lawsuits arising from a taking; however, in this case, Duarte did not have a valid taking claim. The city did not exercise a taking against Duarte's property; they were merely enforcing an existing easement, for which the previous owner had presumably been com- pensated. Since Duarte had claimed title through the former owner, his taking claim failed; The judgment of the trial court was reversed and the case was dismissed on, ail claims. see also: Bennett v. Tarrant County Water Control & Improvement Dist. No. One, 894 S. W2d 441 (1995). @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 84 /" I , (