Unreported / Non-Citable
Background
Thomas R. Tepper purchased beachfront property on South Padre Island after Cameron County aligned its building setback line with the line of vegetation, allowing development farther seaward. The County later adopted a 2019 Erosion Response Plan that moved the setback line 230 feet landward to create a dune conservation zone. Because Tepper had sought grandfathering under the earlier rules, the County issued him a 2022 permit allowing two multifamily buildings and sand mitigation between the newer setback line and the line of vegetation.
Tepper did not begin construction. Instead, he sued County Judge Eddie Trevino in his official capacity and Cameron County for inverse condemnation. He alleged that the permit was “bogus” because it authorized construction in an area exposed to erosion, flooding, storm surge, and waves without providing erosion or flood protection, thereby denying him all or almost all economically viable use of the property. The trial court denied the County’s plea to the jurisdiction, and the County brought an interlocutory appeal.
The Court’s Holding
The Thirteenth Court of Appeals held that Tepper failed to plead a cognizable inverse-condemnation claim. Issuing the requested permit did not physically occupy, appropriate, invade, damage, or destroy his property. Nor was it a regulatory taking: the permit authorized construction under the more permissive 2006 setback line and did not prohibit development, compel action, or impose development conditions. Tepper’s conclusory assertion that he had lost all or almost all economically viable use lacked supporting facts.
The court also held that the County’s failure to provide erosion and flood protection was not a taking. Tepper alleged only a risk of future damage, and a governmental decision not to implement a particular protective plan for his investment did not constitute affirmative conduct supporting inverse condemnation. Because his pleadings affirmatively negated a viable takings claim, governmental immunity remained intact and amendment would not cure the jurisdictional defect. The court reversed the order denying the plea to the jurisdiction and rendered judgment dismissing the case for lack of jurisdiction.
Key Takeaways
- A development permit that authorizes the landowner’s requested construction is not a regulatory taking merely because the permitted project faces environmental risks.
- A county’s failure to provide erosion or flood protection does not supply the affirmative governmental conduct required for inverse condemnation.
- When the pleaded facts affirmatively negate a viable takings claim, governmental immunity applies and dismissal may be rendered without allowing the plaintiff to replead.
Why It Matters
The decision reinforces that Texas inverse-condemnation claims require an affirmative governmental act that takes, damages, or destroys specific property—not merely a failure to protect land from natural coastal hazards. Allegations of diminished economic use also require supporting facts rather than a conclusory assertion.
For coastal governments and property owners, the opinion distinguishes restrictions that prevent or condition development from permits that allow construction despite acknowledged environmental risk. Permission to develop does not become a taking because the government declines to shield the development from erosion, flooding, or storm damage.