In City of Glenn Heights v. Sheffield Dev. Co., 55 S.W.3d 158 (Tex. App.--Dallas 2001, pet. denied), the plaintiff sued the city alleging that a zoning change passed by the city was an unconstitutional taking of his property. 55 S.W.3d at 164.
He prevailed and was awarded damages based on the taking caused by the zoning change. Id.
Sheffield then filed suit seeking a declaration that, under the zoning existing at the time he sought his permit would allow him to develop his property, i.e., that the zoning change did not affect him. Id.
The court held as follows:
"Sheffield's claim for permanent damages in Sheffield I is clearly inconsistent with Sheffield's . . . claim in this case. There, Sheffield obtained a final judgment for permanent damages resulting from the City's taking of Sheffield's property through the passage of the new zoning ordinance. In this case, however, Sheffield claims that chapter 245 allows it to develop the subject property with the smaller sized lots that were allowed by the older ordinance, notwithstanding the City's zoning change." Id.
Thus, Sheffield's two lawsuits were inconsistent because, in the first he alleged and was awarded damages because the new ordinance was an unconstitutional taking, and in the second suit he alleged that the new ordinance had no effect on him and there was no taking.
The court held that "because that remedy electing to obtain damages based on a taking claim which resulted from the passage of the new ordinance is inconsistent with obtaining declaratory and injunctive relief from the application of that ordinance, Sheffield's claims . . . are barred by the election of remedies doctrine." Id. at 168.