In Coble v. City of Mansfield, 134 S.W.3d 449 (Tex. App.--Fort Worth 2004, no pet.), the City of Mansfield had condemned part of Coble's land to build streets. 134 S.W.3d at 451.
Before the condemnation occurred, the City had adopted an ordinance requiring screening walls to be erected when a residential subdivision abutted a thoroughfare. Id. at 452.
Coble proffered expert testimony that if he developed his land, which carried single-family residential zoning, into a residential subdivision, the costs of complying with the ordinance would be $186,980, and Coble contended that those costs should therefore have been compensable in the condemnation action. Id. at 452, 455.
The Court held such testimony to be inadmissible, explaining that the testimony was remote, speculative, and conjectural because, in part, Coble's tract had not been platted for residential subdivision development, Coble had applied to change the zoning on his land to commercial, and Coble was "seeking to recover the estimated cost of complying with an ordinance, the applicability of which had not yet been determined at the time of taking." Id. at 455-56.
The Court explained that Coble's proffered expert testimony was "based upon the speculative assumption that residential subdivision development of the remainder tract will occur, and that the property will be platted so that the layout of lots will trigger the necessity to incur the costs to comply, bypassing all of the problems as well as the steps that might occur with possible residential development of the tract." Id. at 457.
The Court also noted that Coble had offered "no evidence that he would be unable to get a variance or a modification of the screening wall requirement from the Mansfield Planning and Zoning Commission." Id.
The Court further discussed how Coble was effectively "seeking to recover the potential future costs of complying with the ordinance as damages for inverse condemnation by a regulatory taking, when the applicability of the ordinance had not been determined at the time of the eminent domain proceeding." Id. at 458.
The Court explained that such an inverse condemnation claim would not be ripe because "no regulatory taking occurs until the governmental entity charged with implementing the regulation reaches a final decision regarding application of the regulation to the property." Id.
The Court held that Mansfield was entitled to a partial summary judgment precluding the property owner from offering evidence that he would have to build a screening wall on part of his remainder property if he developed it as a residential subdivision because the summary judgment evidence showed, among other things, that the owner did not intend to develop the remainder as a residential subdivision and had applied for a zoning change to commercial. 134 S.W.3d at 455-58.
Thus, the expert's testimony regarding the damages incurred by the necessity of building a screening wall was "based on speculation and conjecture," and the property owner was precluded from recovering such damages as a matter of law. Id. at 451, 457.