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Click here for the full text of this decision FACTS: After a 12-month moratorium on development, the city of Glenn Heights rezoned undeveloped property owned by Sheffield Development Co., reducing the number of residences that could be built on the property. Sheffield contends that the moratorium and the “downzoning ” each constituted a taking of its property without adequate compensation in violation of Article I, �17 of the Texas Constitution. Sheffield separately requests a declaration that its development rights became vested when it submitted an application during an earlier hiatus in the moratorium. Following a bench trial on liability issues and a jury trial on damages, the district court rendered judgment for Sheffield for $485,000, plus pre- and post-judgment interest, on the downzoning takings claim only. The court concluded that Sheffield’s claim for declaratory relief was not ripe for adjudication. A divided court of appeals concluded that Sheffield was entitled to recover on both takings claims, affirmed the damages award for the downzoning claim, and remanded the moratorium claim for trial on damages. The court also concluded that Sheffield’s claim for declaratory relief was ripe and remanded it. HOLDING: The court reverses the judgment of the court of appeals on Sheffield’s takings claims and renders judgment that Sheffield take nothing against the city, and affirms the judgment of the court of appeals remanding Sheffield’s claim for a declaration that its development rights have been vested by its plat submitted March 11, 1997.The court considers Sheffield’s claims that the rezoning and moratorium each effected a taking of its property without adequate compensation in violation of Article I, �17 of the Texas Constitution. Sheffield makes no claim under the takings clause of the Fifth Amendment to the U.S. Constitution, which is made applicable to the states through the 14th Amendment. The two guarantees, though comparable, are worded differently. The Texas Constitution provides that”[n]o person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made . . . . ” The takings clause of the Fifth Amendment states: “ nor shall private property be taken for public use without just compensation. ” As the court of appeals noted, the court states, it could be argued that the differences in the wording of the two provisions are significant, but neither Sheffield nor the city makes this argument. The city argues that a regulation should not be considered a taking merely because it does not substantially advance legitimate state interests. The U.S. Supreme Court stated in Agins v. City of Tiburon, 447 U.S. 255 (1980), that”[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests. ” This court agreed with that statement in Mayhew v. City of Sunnyvale, 964 S.W.2d 922 (Tex. 1998), and used it in applying the takings provision in the Texas Constitution. But the city argues that the U.S. Supreme Court has receded from its statement in Agins, and so should this court in applying the Texas Constitution. Whether a regulation furthers a legitimate purpose, the city argues, is really a due process concern and not a test for determining whether the government must compensate a taking of property. Furthermore, the city argues, requiring compensation for a regulation merely because it does not advance state interests and therefore does not benefit the public, unfairly burdens taxpayers by requiring them to pay for something from which they did not benefit. The court declines the city’s invitation to reject the substantial advancement test for compensable takings stated in Agins and Mayhew. The court of appeals concluded that the city’s rezoning substantially advanced its interests in avoiding the ill effects of urbanization and preserving the rate and character of community growth. The court pointed to evidence that the downzoning at issue would reduce the potential population and eventually result in more open space, less traffic, greater setbacks and fewer school children, although the court also noted that roads, schools and utilities had all been designed to accommodate original population estimates. Sheffield argues that the most the evidence shows is that rezoning could theoretically advance the city’s legitimate purposes, and that is not enough. The court agrees that the substantial advancement requirement must be, in the U.S. Supreme Court’s words, “more than a pleading requirement, and compliance with it. . . more than an exercise in cleverness and imagination. ” Nollan v. California Coastal Commission, 483 U.S. 825 (1987). The court does not think it must be proved to a certainty. Indeed, the actual effects of the city’s rezoning are for the future and can only be projected and estimated. The city offered evidence that rezoning the planned development district (PD) would lower its potential population by about 6,000, from about 31,000 to 25,000, and that rezoning PD 10 accounted for about one-fourth of this reduction. The city could reasonably conclude that this would substantially advance its legitimate interest in preserving a smaller community environment. Also, the city’s concern with its growth first arose in 1995 and thus was not prompted by Sheffield’s acquisition of Stone Creek, even though Sheffield’s imminent development plans clearly stirred the city’s anxiety. Thus, while the evidence establishes that from the fall of 1996 on, the City had its eye on Sheffield all during the rezoning efforts, the Stone Creek subdivision was not the city’s only focus, and its efforts were not so narrowly directed at Sheffield alone as to indicate that the city’s legitimate interests in controlled growth had taken a back seat. The court agrees with the lower courts that the city’s rezoning substantially advanced legitimate government interests. The evidence reflects an orderly, albeit slow, process toward resolving the differences between the city council, the planning and zoning commission, and the city’s consultant. The court cannot say that the moratorium did not substantially advance a legitimate governmental purpose. Nor can the court say that the moratorium went too far towards a taking. Sheffield claims that the plat it filed on March 11, 1997, vested its development rights because the moratorium was not then in effect and the city did not act on the filing. The court agrees with the court of appeals that this claim was ripe. OPINION: Hecht, J., delivered the opinion of the court.

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