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Click here for the full text of this decision FACTS:El Dorado Amusement Co. operated a city-block wide bar, pool hall and club in San Antonio. For all the years it operated, El Dorado always served alcoholic beverages. In January 1999, the city council adopted a change to the zoning laws that would change the district where El Dorado was located so as to prohibit the sale of on- or off-premises alcoholic beverages. The city denied El Dorado’s application for a nonconforming use permit to allow for alcohol consumption. The Board of Adjustment upheld the denial. El Dorado sued the city, saying the city had effected a taking against El Dorado. Alternatively, El Dorado claimed it was entitled to a nonconforming use permit. El Dorado asserted: 1. a takings had occurred; 2. the rezoning ordinance was invalid because the city council did not follow Robert’s Rules of Order when it considered the ordinance; 3. the ordinance was not designed to follow the city’s comprehensive zoning plan and was, instead, intended to discriminate against the property owner; and 4. if the ordinance was valid, the property owner was entitled to nonconforming use rights, the denial of which was unlawful. The trial court agreed that a taking had occurred. The trial court awarded damages of $662,301, of which $420,301 went to lost profits and $242,000 went to the lost value of the property when the owner sold it. The trial court also awarded attorneys’ fees. HOLDING:Affirmed in part; reversed and remanded in part. First, the court finds the trial court did not err in failing to make additional findings of facts and conclusions of law. Its findings within the takings ruling included all material elements and sufficiently reflected the evidence. The city, therefore, was not “forced to guess” at the trial court’s reasoning underlying the decision. The court then reviews whether the rezoning constituted a taking. The court confirms that the type of taking at issue is a regulatory taking, which requires an ad hoc factual inquiry into all of the relevant circumstances. Noting that it is inappropriate to characterize case law on physical takings of property as binding precedent for regulatory takings cases, the court concludes that El Dorado did not have to establish that the taking was for public use, as it would in a physical takings case. For the same reason � that this is a regulatory takings case, not a physical takings case � El Dorado did not need to show that the city knew that its decision to rezone would cause El Dorado an identifiable harm or that specific damage was substantially certain to result. In next considering whether the city unreasonably interfered with El Dorado’s right to use and enjoy its property, the court analyzes two factors: the economic impact of the regulation, and the extent to which the regulation interferes with distinct, investment-backed expectations. Here, the court finds, El Dorado always had a license to sell alcohol for on-premises consumption. This existing and permitted use before the rezoning constituted a “primary expectation.” The court takes note of testimony of El Dorado’s owner, where he recounted his $800,000 investment in the property, which he eventually sold in 2003 for $418,000. He also noted that before the rezoning, the ability to sell alcohol justified charging higher rents to tenants who wanted to operate clubs on the premises; without the license, tenants paid significantly less. The court concludes this evidence supports a finding that the rezoning ordinance had a severe economic impact on El Dorado’s business and unreasonably interfered with El Dorado’s investment-backed expectations. Consequently, the city was required to compensate El Dorado for its regulatory taking of El Dorado’s property. The court disagrees with the city’s challenge to the award of damages in two respects. First, the court says as one of three traditional approaches to determining market value El Dorado was entitled to use the income method in calculating its business losses. Second, the court finds that El Dorado’s expert properly calculated damages using that that method. The court does agree with the city, however, that the trial court erred by entering a judgment that essentially awarded El Dorado a double-recovery for both lost profits and the difference in market value after the property’s sale. “Any award for lost profits constitutes double recovery,” the court writes in reducing the damages award by $420,301. The court also agrees with the city that the trial court erred in its calculation of prejudgment interest when it used the wrong start-date. The court remands for recalculation of this amount. Also, the trial court erred in awarding attorneys’ fees because El Dorado did not recover any declaratory relief. The court rules that El Dorado should take nothing here. El Dorado asserts that it was entitled to damages for civil rights violations under the federal and Texas constitutions were violated, but the court disagrees. El Dorado has no statutory or implied private right of action for damages for constitutional violations. Finally, the court rules that El Dorado did not exhaust its administrative remedies in protesting the denial of its nonconforming use permit. The trial court had no jurisdiction to review the propriety of the city’s denial of the permit. OPINION:Marion, J.; Duncan, Angelini and Marion, JJ.

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