“As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been established.”
How later courts described this case
- “As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been established.”
- “[A] landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation.” (emphasis added)
- “There is no physical invasion of appellant’s property.”
- stating that we held in DuPuy that “‘a direct physical invasion’ is not required under section 17, article I, of the Texas Constitution by reason of the addition to the Constitution of 1876 of the words ‘damaged or destroyed’”
Written by the judges who cited it.
The opinion
Supreme Court of Texas
══════════
No. 23-0474
══════════
The Commons of Lake Houston, Ltd.,
Petitioner,
v.
City of Houston, Texas,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the First District of Texas
═══════════════════════════════════════
Argued October 31, 2024
JUSTICE BOYD delivered the opinion of the Court.
After Hurricane Harvey struck Texas in 2017, the City of Houston
amended its ordinances to increase the elevation requirements for
construction in a floodplain. A developer sued the City for inverse
condemnation, alleging that the amendments caused a regulatory
taking of the developer’s property under the Texas Constitution. The
trial court denied the City’s plea to the jurisdiction, but the court of
appeals reversed and dismissed the case, holding the developer cannot
establish a valid takings claim because the City amended the ordinance
as a valid exercise of its police power and to comply with a federal
flood-insurance program. Although these facts are undisputed, we do
not agree that they negate the possibility of a taking. Nor do we agree
with the City that the developer’s claims are unripe or that the developer
lacks standing to assert them. We thus reverse the court of appeals’
judgment and remand the case to the trial court for further proceedings.
I.
Background
The Commons of Lake Houston first began developing a
3,300-acre residential community near Lake Houston in 1993. Focusing
on one phase at a time, it has subdivided, platted, and cleared the raw
land in sections, adding streets and utilities and then selling empty lots
to buyers and builders who design and construct the homes. This case
involves a section called The Crossing, a 300-plus-acre area that
includes many of the project’s most valuable lots. The Commons’s
business plan relied on revenue from the earlier phases to finance the
subsequent phases and ultimately produce profits from the last phases,
including The Crossing. The Crossing’s lakefront and lakeview lots are
more valuable than most, but they also lie in areas colloquially referred
to as the 100- and 500-year floodplains.1
1 Like similar federal laws, the City’s ordinances have referred to “base
flood elevations” as areas having a 1-percent or 0.2-percent chance of flooding
in any given year. See HOUS., TEX., CODE, Ordinance 85-1705, §§ 19-2 (defining
base flood elevation as the flood elevation for “a flood having a one percent
chance of being equalled [sic] or exceeded in any one year”), 19-33 (requiring
new construction to be “elevated to or above the base flood elevation”) (Sept.
25, 1985), amended by Ordinance 2018-258 (Apr. 4, 2018); see also Christine A.
Klein, The National Flood Insurance Program at Fifty: How the Fifth
Amendment Takings Doctrine Skews Federal Flood Policy, 31 GEO. ENV’T L.
REV. 285, 296 (2019) [hereafter NFIP at Fifty] (explaining that federal law
2
Part of the overall project, including The Crossing, is within the
City of Houston’s city limits. Through the years, the City has generally
supported the project, approving a municipal utility district, agreeing to
provide utility services, approving a general plan2 for each section, and
granting The Commons various permits and waivers. In 2017, the City
approved a general plan for 122.5 acres in The Crossing, which included
plans for water, sanitary sewer, drainage, and streets for 531 lots. After
obtaining the City’s approval, The Commons proceeded to invest over
$1 million in developing The Crossing.
Because The Crossing lies within the floodplain, however, the
City code requires The Commons to obtain a floodplain-development
permit or a variance from that requirement.3 The City-approved general
plan was based on the code’s requirement that foundation slabs be
constructed at an elevation at least one foot above the 100-year
“focuses on ‘special flood hazard areas,’ which are defined as places that have
a one percent chance each year of flooding (‘1%-chance floodplains’)”). Like the
parties (and many others), we will refer to the 1-percent-chance and
0.2-percent-chance floodplains as the 100-year and 500-year floodplains,
without intending to support the misconception that these areas will flood only
once every 100 or 500 years. See Klein, NFIP at Fifty, 31 GEO. ENV’T L. REV. at
303 (“Although colloquially referred to as the ‘hundred-year floodplain,’ these
areas have a one percent chance of flooding each year, making it possible to
have ‘hundred year’ floods in successive years.”); Flood Zones, FEMA (July 8,
2020), https://www.fema.gov/about/glossary/flood-zones (“The 1-percent
annual chance flood is also referred to as the base flood or 100-year flood.”).
2 A general plan is “a map illustrating the general design features and
street layout of a proposed development of land that is to be subdivided and
platted in sections.” HOUS., TEX., CODE § 42-1 (2024).
3 See id. §§ 19-16, 19-20.
3
floodplain.4 In August 2017, however, Hurricane Harvey struck the
Houston area, dumping over sixty inches of rain, breaking flood-damage
records, and directly causing at least sixty-eight deaths.5 In response,
and anticipating that the Federal Emergency Management Agency
(FEMA) would revise its maps to identify new “special flood hazard
areas,”6 the City amended its ordinances in April 2018. As amended, the
City code now requires that foundation slabs be constructed at an
elevation at least two feet above the 500-year floodplain.7
The Commons asserts that the amendment increased the
required slab elevations in The Crossing by an average of 5.5 feet and,
as a result, rendered 557 of the 669 total lots (and over seventy-five
percent of the total acreage) undevelopable. Because of the new
elevation requirement, The Commons alleges it had to cancel
development and sales contracts, lost $4.4 million in revenue and
$1.8 million in bond reimbursements, and had to borrow over $1 million
to cover cash flow. Ultimately, The Commons asserts, the amendment
destroyed its expected profits from the entire 3,300-acre project.
4 Id. § 19-2 (Sept. 25, 1985), amended by Hous., Tex., Ordinance 2018-
258 (Apr. 4, 2018), https://library.municode.com/tx/houston/ordinances/code_
of_ordinances?nodeId=891265.
5 See Klein, NFIP at Fifty, 31 GEO. ENV’T L. REV. at 306–07.
6 See Hous., Tex., Ordinance 2018-258 (Apr. 4, 2018).
7 See HOUS., TEX., CODE §§ 19-2 (defining “minimum flood protection
elevation” to mean “the 0.2 percent flood elevation, plus 2 feet”), 19-33
(requiring new construction to be “elevated to at least the minimum flood
protection elevation”); see also Flood Zones, FEMA (July 8, 2020),
https://www.fema.gov/about/glossary/flood-zones (defining the
0.2-percent-chance flood level as the 500-year floodplain).
4
The Commons filed this suit against the City in 2020,8 asserting
that the amended ordinance caused a regulatory taking for which the
Texas Constitution requires reasonable compensation. The City filed a
plea to the jurisdiction, arguing the claim was unripe because the City
had not yet denied a permit and The Commons had not sought a
variance. The City also argued that governmental immunity bars the
suit because The Commons failed to allege a valid takings claim.
The trial court denied the City’s jurisdictional plea, the City took
an interlocutory appeal, and the court of appeals reversed. 698 S.W.3d
572, 588 (Tex. App.—Houston [1st Dist.] 2023). Without reaching or
addressing the City’s ripeness argument, the court of appeals held that
The Commons failed to assert a valid takings claim because the City
amended the ordinance as a valid exercise of its police power and to
“track” the criteria of the federal National Flood Insurance Program. Id.
at 585–86. We granted The Commons’s petition for review.
II.
Texas Takings Claims
Governmental immunity protects the City against—and deprives
the courts of jurisdiction over—this suit unless that immunity has been
waived. City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex. 2014). The
Texas takings clause—Article I, Section 17 of the Texas Constitution—
waives the City’s immunity and establishes the courts’ jurisdiction, but
8 As described further below, The Commons first filed suit in 2018, even
before the amended ordinance’s effective date. The City argued that the claim
was not ripe, and the court of appeals agreed and dismissed that suit. See City
of Houston v. Commons at Lake Hous., Ltd. (Commons I), 587 S.W.3d 494,
501–02 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
5
only if The Commons has alleged a legally viable takings claim. Id.9 We
thus begin by considering what constitutes a viable Texas takings claim
and then address the court of appeals’ holding that The Commons’s
claim is not viable because the City amended its ordinances in the
exercise of its police power and to comply with the National Flood
Insurance Program.
Article I, Section 17 provides: “No person’s property shall be
taken, damaged, or destroyed for or applied to public use without
adequate compensation being made, unless by the consent of such
person . . . .” TEX. CONST. art. I, § 17. This provision of the Texas Bill of
Rights reflects that the “right to own, use, and enjoy one’s private
property is a fundamental right,” City of Baytown v. Schrock, 645 S.W.3d
174, 179 (Tex. 2022) (citing Hearts Bluff Game Ranch, Inc. v. State, 381
S.W.3d 468, 476 (Tex. 2012)), and “among our most cherished liberties,”
Carlson, 451 S.W.3d at 830. But the clause does not prohibit the
government from taking, damaging, destroying, or applying private
property; it instead requires that any such action be for a public use and
that the government adequately compensate the owner for the property
taken. KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 181
9 See Harris Cnty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex.
2016) (“Sovereign immunity does not shield the government from liability for
compensation under the takings clause.”); City of Dallas v. VSC, LLC, 347
S.W.3d 231, 236 (Tex. 2011) (explaining that the Constitution “waives
immunity for suits brought under the Takings Clause”); Steele v. City of
Houston, 603 S.W.2d 786, 791 (Tex. 1980) (“The Constitution itself is the
authorization for compensation for the destruction of property and is a waiver
of governmental immunity for the taking, damaging or destruction of property
for public use.”).
6
(Tex. 2019).10 The clause thus seeks to balance a citizen’s
private-property rights against the “inexorable” “demands of progress”
and the need to encourage “public improvements” by requiring “all
citizens [to share] equally in the cost of progress.” DuPuy v. City of Waco,
396 S.W.2d 103, 106 (Tex. 1965).11
An owner who believes the government has taken its property
may bring an “inverse” condemnation claim to recover adequate
compensation. Kopplow, 399 S.W.3d at 536.12 To prevail on an
inverse-condemnation claim, the owner must plead and prove that
(1) the government engaged in affirmative conduct 13 (2) that
10 See also Schrock, 645 S.W.3d at 179 (“When the government takes,
damages, or destroys private property for public use, it must provide
compensation.”); Kopplow Dev., Inc. v. City of San Antonio, 399 S.W.3d 532,
535 (Tex. 2013) (“The Texas Constitution resolves the tension between private
property rights and the government’s ability to take private property by
requiring takings to be for public use, with the government paying the
landowner just compensation.”); VSC, 347 S.W.3d at 236 (“[I]t is not the taking
of property, as such, that raises constitutional concerns, but the taking of
property without just compensation.”); Sheffield Dev. Co. v. City of Glenn
Heights, 140 S.W.3d 660, 669 (Tex. 2004) (“[T]he takings provisions of the state
and federal constitutions do not limit the government’s power to take private
property for public use but instead require that a taking be compensated.”).
See also Armstrong v. United States, 364 U.S. 40, 49 (1960)
11
(explaining that the federal Constitution’s takings clause is “designed to bar
Government from forcing some people alone to bear public burdens which, in
all fairness and justice, should be borne by the public as a whole”).
Alternatively, the government may pursue a “statutory”
12
condemnation claim to establish public use and the amount it must pay the
owner before taking his property. Kopplow, 399 S.W.3d at 536.
13 See Kerr, 499 S.W.3d at 799–800, 805.
7
proximately caused14 (3) the taking, damaging, destroying, or applying15
(4) of specific private property16 (5) for a public use17 (6) without paying
the owner adequate compensation18 (7) and did so intentionally or with
knowledge that the result was substantially certain to occur.19 Whether
a compensable taking has occurred is a question of law for the courts to
decide,20 although a factfinder may need to resolve factual disputes
before the court can decide the ultimate legal question.21
At this stage in this case, the parties dispute only the third
element: whether the City’s amendment to its floodplain ordinance
caused a taking, damaging, destroying, or applying of The Commons’s
property. We have recognized two broad types of takings: (1) a physical
14 See Hearts Bluff, 381 S.W.3d at 483–84; City of Austin v. Travis Cnty.
Landfill Co., 73 S.W.3d 234, 243 (Tex. 2002); State v. Schmidt, 867 S.W.2d 769,
777 (Tex. 1993).
15 See Kerr, 499 S.W.3d at 799.
16 Id. at 800.
17 See City of Dallas v. Jennings, 142 S.W.3d 310, 313 (Tex. 2004); Gen.
Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001).
18 See Carlson, 451 S.W.3d at 831.
19See Tex. Dep’t of Transp. v. Self, 690 S.W.3d 12, 26 (Tex. 2024);
Schrock, 645 S.W.3d at 178; Kerr, 499 S.W.3d at 799; Carlson, 451 S.W.3d at
831; Kopplow, 399 S.W.3d at 537–38; Gragg, 151 S.W.3d at 554; Jennings, 142
S.W.3d at 314; Little-Tex, 39 S.W.3d at 598–99.
20 See Kerr, 499 S.W.3d at 806–07; Hearts Bluff, 381 S.W.3d at 477;
Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 839 (Tex. 2012); Travis Cnty.
Landfill, 73 S.W.3d at 241; Little-Tex, 39 S.W.3d at 598; City of Waco v.
Texland Corp., 446 S.W.2d 1, 2 (Tex. 1969); DuPuy, 396 S.W.2d at 110.
21 See City of Lorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 645 (Tex.
2013); Day, 369 S.W.3d at 843.
8
occupation, appropriation, or invasion of property22 and (2) a regulatory
action that is so restrictive or intrusive “that it effectively ‘takes’ the
property.” Jim Olive Photography v. Univ. of Hous. Sys., 624 S.W.3d 764,
771–72 (Tex. 2021) (citing Murr v. Wisconsin, 582 U.S. 383, 393
(2017)).23 The Commons asserts only a regulatory taking, which we have
agreed may result when the government denies a development permit.
Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992).
Finding guidance in United States Supreme Court decisions
construing the federal Constitution’s takings clause,24 we have
recognized that a regulatory taking may occur when a law or ordinance
(1) requires an owner to suffer a permanent physical loss or invasion of
its property (sometimes called a Loretto taking),25 (2) completely
deprives an owner of all economically beneficial use of its property
(sometimes called a Lucas taking),26 or (3) unreasonably interferes with
22 A physical taking “is, categorically, a taking for which compensation
is constitutionally mandated.” Sheffield, 140 S.W.3d at 669–70.
23 See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998)
(“Takings can be classified as either physical or regulatory takings.”).
24 The Fifth Amendment to the United States Constitution, which the
Fourteenth Amendment makes applicable to the states, provides simply, “nor
shall private property be taken for public use, without just compensation.” U.S.
CONST., amend. V.
25 See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,
441 (1982) (holding that state law requiring landlords to permit cable
companies to install cable facilities in apartment buildings caused a per se
regulatory taking).
26 See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019, 1024 (1992)
(holding that regulations that completely deprive an owner of all economically
beneficial use of her property are “categorical” takings). A Lucas taking occurs
in the “extraordinary circumstance” when a regulation permits “no productive
or economically beneficial use of land,” leaving the owner with no more than a
9
the owner’s right to use and enjoy its property (often called a Penn
Central taking).27 Day, 369 S.W.3d at 838–39 (quoting Lingle v. Chevron
U.S.A. Inc., 544 U.S. 528, 540, 537 (2005)); see Mayhew, 964 S.W.2d at
935–36.28 Loretto takings and Lucas takings constitute “per se” takings.
Sheffield, 140 S.W.3d at 671.29 Identifying a Penn Central taking,
however, requires the court to engage in an “ad hoc” and “situation-
specific” factual inquiry, weighing multiple factors including (1) the
regulation’s economic impact on the owner,30 (2) the extent to which the
mere “token interest.” Sheffield, 140 S.W.3d at 671; see Mayhew, 964 S.W.2d
at 936 (explaining that a Lucas taking occurs when the regulatory action
“totally destroy[s] the property’s value”).
27 See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124
(1978).
28 Actually, we have also recognized a fourth type of regulatory taking,
often referred to as a “land-use exaction” claim, see Day, 369 S.W.3d at 839,
which may occur when the government conditions its approval of the use or
development of private property on a particular payment or performance by
the owner. Town of Flower Mound v. Stafford Ests. Ltd. P’ship, 135 S.W.3d
620, 634 (Tex. 2004). Generally, the government’s act of demanding such an
“exaction” from the owner constitutes a compensable taking unless “the
condition (1) bears an essential nexus to the substantial advancement of some
legitimate government interest and (2) is roughly proportional to the projected
impact of the proposed development.” Id.
29 Acknowledging the proximate-cause element of an
inverse-condemnation claim, the United States Supreme Court has held that
a per se regulatory taking does not require compensation when “‘background
principles of nuisance and property law’ independently restrict the owner’s
intended use of the property.” Lingle, 544 U.S. at 540 (quoting Lucas, 505 U.S.
at 1026–32).
30 This first factor measures the “magnitude” of the economic effect on
the owner’s property. Penn Cent., 438 U.S. at 136. We have said that it “merely
compares the value that has been taken from the property with the value that
remains in the property.” Mayhew, 964 S.W.2d at 935–36. It requires
consideration of the extent to which the regulation reduces the property’s value
10
regulation interferes with the owner’s reasonable investment-backed
expectations,31 and (3) the character of the government action.32 Penn
Cent., 438 U.S. at 130–31.33 The Commons alleges in this case that the
City’s ordinance amendment either completely deprived it of all
economically beneficial use of its property (a Lucas taking) or
unreasonably interfered with its right to use and enjoy its property (a
Penn Central taking).
but also of the remaining value as compared to what the owner initially
invested in the property. Sheffield, 140 S.W.3d at 677. It thus may involve
consideration of the owner’s investment profits or losses. Id.
31 This second factor requires consideration of more than just what the
owner may have subjectively “believed was available for development.” Penn
Cent., 438 U.S. at 130. It requires consideration of the owner’s “primary
expectation concerning the use of the parcel,” id. at 136, and whether that
expectation was “reasonable” or merely “speculative,” Sheffield, 140 S.W.3d at
677–78. It also requires consideration of the “existing and permitted uses of
the property” prior to the regulation, Mayhew, 964 S.W.2d at 936; see Sheffield,
140 S.W.3d at 677, and whether the regulation permits the owner to obtain a
“reasonable” return on its investment, Mayhew, 964 S.W.2d at 936.
32 This third factor requires consideration of issues like whether (and
the extent to which) the regulation is specific to the plaintiff’s property or is
“general in character,” Sheffield, 140 S.W.3d at 678, is designed to “take unfair
advantage” of the owner, id., or permits the owner to avoid the harm through
an appellate process or payment, Schrock, 645 S.W.3d at 181. That the
regulation “has a more severe impact on some landowners than on others,”
however, “in itself does not mean that the law effects a ‘taking.’” Penn Cent.,
438 U.S. at 133.
33 See also Jim Olive Photography, 624 S.W.3d at 772; BMTP Holdings,
409 S.W.3d at 644; Hearts Bluff, 381 S.W.3d at 477–78; Sheffield, 140 S.W.3d
at 672. This analysis requires more than a “merely mathematical” process.
Sheffield, 140 S.W.3d at 677. No one factor “is determinative,” and the court
must consider all the factors together “as well as any other relevant
considerations.” Day, 369 S.W.3d at 840.
11
Unlike the federal Constitution, the Texas Constitution expressly
requires compensation for property that is “damaged” or “destroyed for
or applied to a public use.” TEX. CONST. art. I, § 17. Our Constitution
thus requires compensation “in more circumstances than the United
States Constitution.” Schrock, 645 S.W.3d at 179.34 As the City insists,
we have referred to the “damaged” provision as applying when the
government “physically damages private property.” Jennings, 142
S.W.3d at 314 (emphasis added). But as The Commons insists, we have
also suggested that property may be “damaged” by a non-physical
interference with its use and enjoyment, such as an unreasonable
deprivation of access to the property. See DuPuy, 396 S.W.2d at 108
34 See Self, 690 S.W.3d at 25 (“Our Takings Clause protects against
more types of government action than its federal counterpart, as it contains
the additional verbs ‘damaged,’ ‘destroyed,’ and ‘applied’—each of which
creates a claim with its own distinct scope.” (internal citation omitted)). We
have not fully explored the differences between the two clauses because
litigants have routinely treated the two as if they were the same. See, e.g.,
Stafford Ests., 135 S.W.3d at 631 (“[S]ince neither party makes that argument
here, we assume that the application of both provisions is identical in these
circumstances.”). As a result, up to this point, our “case law on takings under
the Texas Constitution is,” at least for the most part, “consistent with federal
jurisprudence.” Hearts Bluff, 381 S.W.3d at 477. Yet we have observed that
although the “taking, the damaging, or the destruction of property are often
treated, more or less, as synonyms,” these terms “are different and have
different historical origins.” Steele, 603 S.W.2d at 789. Property is “taken,”
we’ve explained, when it is “transferred from one owner to another,” but the
“government’s duty to compensate for damaging property for public use [is] not
dependent upon the transfer of property rights.” Id. at 790. After oral
argument in this case, the City filed a post-submission letter brief with further
arguments on this point and others. The Commons moved to strike the brief.
We hereby deny the motion.
12
(“[D]iminishment in the value of property resulting from a loss of access
constitutes damage.” (emphasis added)).35
At this stage of this case, however, we need not conduct a Penn
Central-takings analysis or consider how the Texas Constitution’s
“damaged” provision affects that analysis because the City has never
raised, and neither the trial court nor the court of appeals have
addressed, those issues. In the trial court and on appeal, the City argued
only that The Commons failed to allege a valid takings claims because,
as a matter of law, a regulation can never cause a compensable taking
if it (1) results from a valid exercise of the government’s police power or,
more specifically, (2) is designed to ensure compliance with the criteria
required for participation in the National Flood Insurance Program. The
trial court rejected these arguments, but the court of appeals agreed
with both. 698 S.W.3d at 583, 587. We agree with the trial court.
35 See also Steele, 603 S.W.2d at 790 (“[If] an injury, not suffered by the
particular property or right only in common with other property or rights in
the same community or section, by reason of the general fact that the public
work exists, be inflicted, then such property may be said to be damaged.”
(emphasis added) (quoting Gulf, Colo. & Santa Fe Ry. Co. v. Fuller, 63 Tex. 467
(1885))); City of Austin v. Teague, 570 S.W.2d 389, 393 (Tex. 1978) (stating that
we held in DuPuy that “‘a direct physical invasion’ is not required under
section 17, article I, of the Texas Constitution by reason of the addition to the
Constitution of 1876 of the words ‘damaged or destroyed’”); Texland, 446
S.W.2d at 2 (“[P]roperty has been damaged for a public use within the meaning
of the Constitution when access is materially and substantially impaired even
though there has not been a deprivation of all reasonable access.”); DuPuy, 396
S.W.2d at 108 (“It was the injustice of requiring an actual taking which
explains the inclusion for the first time in the Constitution of 1876 of the
requirement that compensation be paid for the damaging of property for public
use.”).
13
The City argues, and the court of appeals agreed, that The
Commons cannot establish a taking because the City amended the
ordinance “to promote the public health, safety and general welfare and
to minimize public and private losses due to flood conditions in specific
areas.” Id. at 587 (quoting HOUS., TEX., CODE § 19-1(a)). In the court’s
view, the amendment constitutes “a valid exercise of the city’s police
power” and thus “does not constitute a taking.” Id. at 588 (quoting City
of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 805 (Tex. 1984)).
We have rejected the proposition, however, that a valid exercise of the
police power can never cause a taking.
As we have often explained, all privately owned property “is held
subject to the valid exercise of the police power.” Turtle Rock, 680 S.W.2d
at 804 (citing Lombardo v. City of Dallas, 73 S.W.2d 475, 478 (Tex.
1934)).36 The government must exercise its police power to “satisfy its
responsibilities,” and this commonly requires the imposition of
restrictions on the use of private property. Carlson, 451 S.W.3d at 831.
“Governments interfere with private property rights every day. Some of
those intrusions are compensable; most are not.” Jim Olive
Photography, 624 S.W.3d at 771. Typically, when the government
exercises its police power to, for example, abate a public nuisance or
implement and enforce common zoning laws, no compensable taking
occurs even though property owners lose some control over their
36 See also City of Dallas v. Stewart, 361 S.W.3d 562, 569 (Tex. 2012);
Sheffield, 140 S.W.3d at 670.
14
property rights. Id.37 And this is true even when the government amends
a regulation to impose a new restriction that previously did not exist.
Quick v. City of Austin, 7 S.W.3d 109, 124–25 (Tex. 1998).
But we have long rejected “the notion that the government’s duty
to pay for taking property rights is excused by labeling the taking as an
exercise of police powers.” Steele, 603 S.W.2d at 789.38 Indeed, whether
a regulation constitutes a valid exercise of the police power—or
promotes any other important public policy, purpose, or interest—is
simply irrelevant to whether the regulation causes a compensable
taking. Lingle, 544 U.S. at 543.39 If a regulation does not promote a valid
public purpose, the taking is simply impermissible because it is not a
taking for a “public use,” and “[n]o amount of compensation can
37 See Self, 690 S.W.3d at 27; Stewart, 361 S.W.3d at 569; Mayhew, 964
S.W.2d at 938; Ellis v. City of West University Place, 175 S.W.2d 396, 398 (Tex.
1943); Lombardo, 73 S.W.2d at 478–81, 486.
38See also Teague, 570 S.W.2d at 391 (explaining that we have
repeatedly held “that one’s property may not be taken without compensation
under some circumstances even in the exercise of the police power”).
39 See Lucas, 505 U.S. at 1028 (explaining that both a physical taking
and a regulatory taking may occur “no matter how weighty the asserted ‘public
interests’ involved”); Penn Cent,, 438 U.S. at 127 (“[A] state statute that
substantially furthers important public policies may so frustrate distinct
investment-backed expectations as to amount to a ‘taking.’”). As a rare
exception to this rule, however, we have suggested that a compensable taking
may not occur when the government takes action to address a matter of “great
public necessity,” such as a fire or “war, riot, pestilence or other great public
calamity,” because of which the property is “destined to destruction anyway.”
Steele, 603 S.W.2d at 792; see Baker v. City of McKinney, 84 F.4th 378, 385 (5th
Cir. 2023) (holding that “history, tradition, and historical precedent reaching
back to the Founding supports the existence of a necessity exception to the
Takings Clause”), cert. denied, No. 23-1363, 2024 WL 4874818 (U.S. Nov. 25,
2024). As no one contends that the City amended its ordinance to respond to
such a public necessity, we need not explore that concept in this case.
15
authorize such action.” Id.40 So whether a regulation constitutes a valid
exercise of the police power “is a separate question” than whether it
results in a compensable taking. Loretto, 458 U.S. at 425. We do not even
attempt to “compartmentalize” a government regulation as being either
a taking or an exercise of the police power because of “the manifest
illusoriness of the distinctions” between the two. DuPuy, 396 S.W.2d at
107.41 Simply put, any attempt to create a dichotomy between takings
and police-power regulations “has not proved helpful in determining
when private citizens affected by governmental actions must be
compensated.” Steele, 603 S.W.2d at 789 (citing Teague, 570 S.W.2d at
389; DuPuy, 396 S.W.2d at 103; San Antonio River Auth. v. Lewis, 363
S.W.2d 444 (Tex. 1963); Brazos River Auth. v. City of Graham, 354
S.W.2d 99 (Tex. 1962)).
40 See Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 240 (1984) (“The
‘public use’ requirement is thus coterminous with the scope of a sovereign’s
police powers.”).
41 As we explained more than forty-five years ago:
The labels are not helpful. These two doctrines police power and
eminent domain merge at so many places when applied to
specific problems, that the legal battlefields have been variously
termed a “sophistic Miltonian Serbonian Bog,” Brazos River
Authority v. City of Graham, 354 S.W.2d 99, 105 (Tex. 1962); a
“crazy-quilt pattern,” San Antonio River Authority v. Garrett
Brothers, 528 S.W.2d 266, 273 (Tex. Civ. App.—San Antonio
1975, writ ref’d n.r.e.); “the manifest illusoriness of distinctions,”
DuPuy, 396 S.W.2d at 107; producing decisions that are
“conflicting, and often . . . irreconcilable in principle.” Sauer v.
City of New York, 206 U.S. 536, 548 (1906).
Teague, 570 S.W.2d at 391.
16
The court of appeals relied in this case, however, on our statement
in Turtle Rock that “[a] city is not required to make compensation for
losses occasioned by the proper and reasonable exercise of its police
power.” 698 S.W.3d at 586 (quoting Turtle Rock, 680 S.W.2d at 804). The
key to that statement, however, are the words “proper” and
“reasonable.” If the government exercises its police power to limit
private-property rights in a way that causes no “unreasonable
interference” under Penn Central, then no compensable taking occurs.
But as we stated in the very next sentence in Turtle Rock, we have
“refused to establish a bright line for distinguishing between an exercise
of the police power which does constitute a taking and one which does
not. Instead, the cases demonstrate that a careful analysis of the facts
is necessary in each case of this kind.” Turtle Rock, 680 S.W.2d at 804
(citing Teague, 570 S.W.2d at 391; DuPuy, 396 S.W.2d at 107). A city’s
exercise of its police power may be legally valid and proper and yet cause
a taking if it causes a permanent physical invasion of private property
(a Loretto taking), completely deprives an owner of all economically
beneficial use of its property (a Lucas taking), or unreasonably
interferes with the owner’s right to use and enjoy its property (a Penn
Central taking).
Turtle Rock involved the fourth type of regulatory taking, a
land-use-exaction claim42 challenging a city ordinance that required
developers to either dedicate a portion of their land as park land or pay
the city money as a condition to the city’s approval of a subdivision plat.
42 See supra note 28.
17
Id. at 803. The trial court and court of appeals held that the requirement
caused a compensable taking as a matter of law, but we reversed,
holding that the exaction requirement did not constitute a taking if it
was substantially related to the people’s general welfare and was
reasonable and not arbitrary. Id. at 805. We held that the ordinance was
not “unconstitutionally arbitrary or unreasonable on its face,” but we
remanded the case for the trial court to consider whether, under those
facts, the ordinance was “unduly harsh” or created “a disproportionate
burden” on the developer. Id. at 806.43 Turtle Rock does not support the
court of appeals’ holding in this case, and our prior decisions have
repeatedly and consistently rejected it. We reaffirm today that a
regulation can cause a compensable Texas taking even if it results from
a valid exercise of the government’s police power.
The court of appeals found it particularly relevant, however, that
the City amended its floodplain ordinance for the specific and express
purpose of ensuring that its residents can obtain property insurance
through the federal National Flood Insurance Program (NFIP).44
43 As explained above, see supra note 28, we subsequently adopted the
United States Supreme Court’s “refinement” of this test for land-use-exaction
cases, holding that an exaction constitutes a compensable taking unless the
exaction “(1) bears an essential nexus to the substantial advancement of some
legitimate government interest and (2) is roughly proportional to the projected
impact of the proposed development.” Stafford Ests., 135 S.W.3d at 634.
44 See 42 U.S.C. § 4011(a) (“[T]he Administrator of the Federal
Emergency Management Agency is authorized to establish and carry out a
national flood insurance program which will enable interested persons to
purchase insurance against loss resulting from physical damage to or loss of
real property or personal property related thereto arising from any flood
occurring in the United States.”). Presumably, at least, Congress created the
18
Relying primarily on the Fifth Circuit’s decision in Adolph v. Federal
Emergency Management Agency, 854 F.2d 732 (5th Cir. 1988), the court
held that the amended ordinance could not have caused a taking
because, as a matter of law, “requiring compliance with local laws
consistent with FEMA/NFIP requirements does not constitute a taking.”
698 S.W.3d at 583. Again, we disagree.
Adolph was a class-action lawsuit against both FEMA and a
Louisiana parish in which property owners complained that the parish’s
adoption of local regulations requiring compliance with FEMA’s criteria
for participation in the NFIP caused a taking by rendering their
property unmarketable. 854 F.2d at 733–34. The trial court dismissed
the claims against FEMA, and the Fifth Circuit affirmed. It first
concluded that FEMA could not be liable for a taking because “the NFIP
represents a voluntary federal program” with which the parish was not
required to comply unless it wanted to make federally subsidized
insurance available to its residents under the NFIP. Id. at 735–36.
Because “the parish was not compelled to participate in the NFIP,” the
court held, “FEMA could not be charged with an unconstitutional taking
of property, even if, arguendo, the elevation requirements otherwise
could be shown to constitute an actual deprivation without
NFIP in 1968 to ensure adequate insurance coverage for properties subject to
damaging floods, require owners of such properties (rather than the public at
large) to bear the expense of such damage, minimize federal costs of responding
to flood disasters, and ultimately discourage development in flood-prone areas.
See Klein, NFIP at Fifty, 31 GEO. ENV’T L. REV. at 288–90, 295, 314. The NFIP
makes federally subsidized insurance available to property owners but only if
local regulations prohibit development within the 100-year floodplain. See id.
at 296, 300–03.
19
compensation.” Id. at 736 (emphasis added). Based on this reasoning,
the Fifth Circuit concluded that “the NFIP, when operating precisely as
intended by Congress, results in no unconstitutional taking of plaintiffs’
property, regardless of state law.” Id. at 737 (citing Tex. Landowners
Rights Ass’n v. Harris, 453 F. Supp. 1025, 1032–33 (D.D.C. 1978), aff’d,
598 F.2d 311 (D.C. Cir. 1979)).
The Fifth Circuit went on to observe in Adolph that the “plaintiffs’
chance of prevailing on the merits here is not increased by having joined
the parish as a party-defendant, because even when the local
government is sued directly, the same rejection of the takings claim
obtains.” Id. at 738. The court of appeals in this case relied on this
statement to support its conclusion that Adolph stands for the
proposition that any takings claim complaining of a local ordinance
adopted to comply with the NFIP’s requirements must fail as a matter
of law. 698 S.W.3d at 586. But that’s not what the Fifth Circuit held in
Adolph. The Fifth Circuit discussed several decisions in which courts
found that local ordinances adopted for participation in the NFIP did
not cause an unconstitutional taking, but the courts in those cases
concluded that the plaintiffs had failed to establish a taking under
Loretto, Lucas, or Penn Central,45 not that they could never establish
45 The Fifth Circuit relied heavily in Adolph on the decision in Texas
Landowners, but even in that case the district court found it relevant that
“plaintiffs do not allege that their land has become useless” or “valueless” (and
thus did not support a Lucas taking) and concluded that “this case turns upon
the usual balancing test of social policy and public interest versus the rights of
a landowner to be unencumbered in the use of his property.” Tex. Landowners,
453 F. Supp. at 1032. These and other cases demonstrate that proving a flood-
control regulation has caused a regulatory taking can be quite difficult, either
because the regulation (1) does not compel the owner to endure a physical
20
such a taking as a matter of law. Adolph, 854 F.2d at 738–40. The Fifth
Circuit thus concluded in Adolph that a local regulation that “tracks the
invasion of its property under Loretto, see Maple Leaf Invs., Inc. v. Dep’t of
Ecology, 565 P.2d 1162, 1165 (Wash. 1977) (“There is no physical invasion of
appellant’s property.”); (2) does not deprive the owner of all beneficial use of
its property under Lucas, see Pope v. City of Atlanta, 249 S.E.2d 16, 21 (Ga.
1978) (holding plaintiff could not establish a taking because flood-control
measures “only regulate her use of her property and do not deprive her of all
her rights in the property”); Maple Leaf, 565 P.2d at 1166 (noting no evidence
that regulations “prohibit the appellant from making a profitable use of its
property”); Dur-Bar Realty Co. v. City of Utica, 394 N.Y.S.2d 913, 918 (App.
Div. 1977) (noting that flood-control regulations did not “destroy the economic
utility of the subject parcel”), aff’d, 380 N.E.2d 328 (N.Y. 1978); Grenier v.
Zoning Bd. of Appeals of Chatham, 814 N.E.2d 1154, 1160–61 (Mass. App. Ct.
2004) (noting restrictions did not deprive owner of “all economically beneficial
use” of her lot, which retained “a residual value of $23,000,” even though it
deprived her “of the most profitable use”), aff’d sub nom. Gove v. Zoning Bd. of
Appeals of Chatham, 831 N.E.2d 865 (Mass. 2005); Turner v. County of Del
Norte, 24 Cal. App. 3d 311, 315 (Ct. App. 1972) (noting that owners “may use
their lands in a number of ways which may be of economic benefit to them”);
(3) does not unreasonably interfere with the owner’s use and enjoyment of its
property under Penn Central, see Responsible Citizens in Opposition to Flood
Plain Ordinance v. City of Asheville, 302 S.E.2d 204, 210–11 (N.C. 1983)
(concluding no taking under Penn Central because “each plaintiff . . . continues
to have a ‘practical’ use for his property of ‘reasonable value,’” even “assuming
that the cost of complying with the land-use regulations is prohibitive . . . and
recognizing that the market value of plaintiffs’ properties has diminished”
(quoting Helms v. City of Charlotte, 122 S.E.2d 817 (N.C. 1961))); or (4) does
not proximately cause the owner’s injury, see Maple Leaf, 565 P.2d at 1166
(observing it was “[n]ature,” and “not the State,” that “placed appellant’s
property in the path of floods,” such that even without the challenged
regulation “the property would still be subject to physical realities”); Turner,
24 Cal. App. 3d at 314 (noting evidence “of a frequency of flooding which would
almost certainly eventually destroy any permanent residences built on this
land,” thus establishing that the zoning ordinance at issue imposed “no
restrictions more stringent than the existing danger demands”). But they do
not support the court of appeals’ conclusion that landowners can never prevail
on their claim if the challenged flood-control measure is adopted to comply with
the NFIP.
21
criteria of the NFIP does not, on its face, effect a taking in violation of
the fifth and fourteenth amendments” but the “validity under state law
of the actual application of this ordinance to a particular piece of
property depends upon the facts involved in each case.” Id. at 740
(emphases added).
Here, The Commons contends that the amended floodplain
ordinance effects a taking as applied to the lots in The Crossing, not that
it effects a taking on its face. Whether it can prevail on that claim
depends on whether it can support its allegations that the ordinance
deprives it of all economic benefit under Lucas or unreasonably
interferes with its use and enjoyment of the property (or causes
“damage”) under Penn Central,46 not on whether the ordinance was
designed to comply with the NFIP’s criteria.47 We do not in any way
46 The Fifth Circuit noted in Adolph that if it were to consider the
alternative ground FEMA proposed for its dismissal—that the loss of a
property’s best or most-valuable use does not rise to the level of a taking—the
court would consider, among other things, the Penn Central factors to
determine if a taking had occurred. 854 F.2d at 739 n.11 (citing Kaiser Aetna
v. United States, 444 U.S. 164, 174–75 (1979) (reciting the Penn Central
factors)). Although the court did not consider this alternative ground, it
likewise did not dismiss it as unviable.
47 The Commons argues that, even if Adolph stands for the proposition
that a local ordinance that “tracks” the NFIP’s requirements can never cause
a compensable taking, Adolph does not apply here because the City’s amended
ordinance is more restrictive than the NFIP. As mentioned, the City amended
its ordinance to require slabs at elevations at least two feet above the 500-year
floodplain because it anticipated that FEMA would revise the NFIP criteria to
impose that requirement. See 698 S.W.3d at 585 (noting that the 2018
ordinance states that it was adopted “to comply with NFIP/FEMA standards
and in anticipation of new FEMA floodplain maps generated in response to
Hurricane Harvey” (emphasis added)). As the court of appeals observed, the
amended ordinance “states on its face that it was designed to be consistent
with FEMA/NFIP criteria to allow Houston residents to obtain flood insurance,
22
prejudge the merits of those issues today, as neither the trial court nor
the court of appeals has addressed them. We hold only that a regulatory
taking can occur even when the regulation at issue is intended to
promote compliance with the federal flood-insurance program.
III.
Ripeness and Standing
In addition to arguing that The Commons has not asserted a valid
takings claim, the City argued in the trial court and in the court of
appeals that the claim is not ripe. The court of appeals did not reach
that issue,48 but the City raises it in this Court as an alternative ground
for affirming the court’s judgment. In addition, the City argues for the
first time in this Court that The Commons lacks standing to pursue its
claim. We disagree on both counts.
Ripeness is an element of subject-matter jurisdiction that
presents a question of law we review de novo. Mayhew, 964 S.W.2d at
928. “In order for a regulatory takings claim to be ripe, there must be a
final decision regarding the application of the regulations to the
and to protect the public health, safety, and welfare from the dangers of
flooding.” Id. at 584. But FEMA never made the anticipated revisions, so the
City’s amended ordinance imposes greater restrictions than the NFIP imposes.
Because we conclude that an ordinance can cause a compensable taking even
if it exactly tracks the NFIP’s requirements, we need not address this
argument.
48 Id. at 588 n.11 (“In light of our disposition, we do not reach the City’s
second issue asserting that The Commons’ takings claim is not ripe for
adjudication.”).
23
property at issue.” Id. at 929.49 A claim is not ripe without a “final and
authoritative determination” because a court “cannot determine
whether a regulation has gone ‘too far’ unless it knows how far the
regulation goes.” Id. (quoting MacDonald, Sommer & Frates v. Yolo
County, 477 U.S. 340, 348 (1986)).
To obtain a final determination, the property owner generally
must submit at least one application for the permitted use and seek a
variance if the application is denied. Id.50 But the “finality requirement
is relatively modest,” Pakdel v. City & County of San Francisco, 594 U.S.
474, 478 (2021), and “futile variance requests or re-applications are not
required,” Mayhew, 964 S.W.2d at 929. A subsequent application or
variance request is “futile” when the government has made it clear that
the owner cannot obtain approval for its desired use, that its request for
a permit has been “definitively rejected,” or that any subsequent request
would make “no difference.” Herrington v. County of Sonoma, 857 F.2d
567, 569–70 (9th Cir. 1988). The government may demonstrate such
finality through its interactions and communications with the owner,
see Mayhew, 964 S.W.2d at 931–32, or even through its briefs and
arguments in the appellate court, Palazzolo, 533 U.S. at 621. Only “de
49 A “final decision” applying the regulation to specific property is not
required if the plaintiff “brings a facial challenge to the ordinance.” Mayhew,
964 S.W.2d at 930.
50 See Palazzolo v. Rhode Island, 533 U.S. 606, 620–21 (2001) (“As a
general rule, until these ordinary processes have been followed the extent of
the restriction on property is not known and a regulatory taking has not yet
been established.”). The requirement that the owner seek a “variance” or other
form of waiver simply ensures that the government receives an opportunity to
provide some form of relief to prevent a compensable taking. Mayhew, 964
S.W.2d at 930.
24
facto” finality is required, demonstrating that the government has
“committed to a position.” Pakdel, 594 U.S. at 479.
In this case, The Commons first filed suit against the City in 2018,
even before the amended ordinance became effective. The City filed a
plea to the jurisdiction, arguing that the claim was not ripe because The
Commons had not yet sought or been denied a floodplain-development
permit or a variance. See Commons I, 587 S.W.3d at 501. The trial court
denied the City’s plea, but the City took an interlocutory appeal, and the
court of appeals reversed, dismissing The Commons’s claims as unripe.
Id. at 502.
The Commons then made a series of attempts to obtain a
floodplain-development permit. In November 2019, it submitted a
document requesting approval for slab elevations at the former level,
one foot above the 100-year floodplain. The City never responded to that
application. The City then told The Commons that the City’s permit
process required building-specific plans and that there was no process
by which The Commons could obtain a general floodplain development
permit for the entire development. The Commons attempted to apply for
a site-wide permit anyway. It filed its application in February 2020,
again seeking a “blanket finished floor elevation [one foot] above FEMA
current [base flood elevation].” The City rejected the application because
it lacked “a complete set of plans for a specific building.”51 The Commons
51 The City points out that the application was also rejected for not
including a “mitigation plan.” But even taking this into account, nothing
indicates that the City would have accepted the application if it had a
mitigation plan but still lacked structural plans. Nor is there any evidence
that, in the year that The Commons attempted to file a compliant application,
25
made a second attempt the next month, submitting documents showing
proposed finished floor elevations for each lot, and it was again rejected
for not having plans for specific structures. The Commons made
repeated attempts to discuss the problem with the City from April 21,
2020, until August 3, 2020, but never received any further guidance.
Finally, in late 2020, The Commons submitted an amended
general plan for The Crossing that it believed would comply with the
City’s amended floodplain ordinance. Under this plan, The Commons
would develop only 76.5 of the original 122.5 acres, would sell less than
half of the original number of lots, and would not sell any of the
most-valuable lakefront lots at all, essentially depriving The Commons
of the project’s anticipated profits. The City approved the amended
general plan but still declined to act on any permit application that did
not detail proposed structures and elevations on the lots.
The Commons filed this (its second) suit in November 2020. The
City finally responded to The Commons in March 2021, well over a year
after The Commons first sought permit approval. Even then, the City
told The Commons that an application must include “a site plan that
depicted the lot, the proposed location of the structure relative to the lot
lines, and the footprint of the structure, as well as building elevations
indicating the foundation type, elevation of the finished grade adjacent
to the structure, and the required minimum flood protection elevation.”
And the City argues, for the first time after two lawsuits spanning over
six years, that The Commons will never be able to obtain a floodplain-
the City suggested to The Commons that the application would have been
accepted with any other documents except structural plans.
26
development permit because it, as a developer, “has no right to obtain
the permit.” Tellingly, the City argues in this Court that The Commons’s
regulatory-takings claim “is not ripe on any questions presented and
cannot ever ripen.”
Perhaps if the City had ever told The Commons that it was
requesting the wrong permit or applying in the wrong manner, the City
could have an argument that it was never given the opportunity to grant
or deny The Commons relief. See Mayhew, 964 S.W.2d at 929. What the
City has instead is a paper trail down which it dragged The Commons
for months, if not years, with no suggestion of compromise or a final
determination. See Palazzolo, 533 U.S. at 620 (“[A] landowner may not
establish a taking before a land-use authority has the opportunity, using
its own reasonable procedures, to decide and explain the reach of a
challenged regulation.” (emphasis added)). Nevertheless, the City’s
assertions that The Commons simply has “no right” to obtain a
floodplain-development permit and that its claim “cannot ever ripen”
clearly indicates absolute finality. Although the City has not yet
formally denied a permit, it “may not burden property by imposition of
repetitive or unfair land-use procedures in order to avoid a final
decision.” Id. Under these facts, we conclude that The Commons’s
inverse-condemnation claim is ripe for adjudication.52
52 The City also argues, for the first time in this Court, that the two-
year statute of limitations bars The Commons’s claim. See TEX. CIV. PRAC. &
REM. CODE § 16.003(a). Even if the City has not waived this defense (as The
Commons contends), the claim could not have ripened and accrued until
sometime after the court of appeals held that the first suit was not ripe in 2019,
less than two years before The Commons filed this suit in November 2020.
27
The City argues for the first time in this Court that The Commons
lacks standing to pursue its claim.53 Specifically, the City contends that
The Commons lacks standing because it possessed only a mere
expectancy, and not a vested interest, in the right to develop its property
under the old elevation requirements and because its claims are not
redressable by the courts. We disagree.
Generally, a “vested” right requires “something more than a mere
expectancy based upon an anticipated continuance of an existing law.”
Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54, 61 (Tex. 2018).
But The Commons is not suing the City to enforce a right to develop its
property under the old ordinance. Instead, it is suing for damages in the
form of the compensation the Texas takings clause requires the City to
pay if, in fact, the amended ordinance has taken, damaged, or destroyed
the property for a public use. To have standing to recover for a Texas
taking, The Commons need only establish that it has a vested
“ownership interest in the property taken.” Tex. Dep’t of Transp. v. City
of Sunset Valley, 146 S.W.3d 637, 644 (Tex. 2004).
Similarly, the City contends that The Commons lacks standing to
challenge the amended ordinance because The Commons does not build
homes on its lots and thus has no legal interest in an ordinance that
restricts where homes can be built. But again, The Commons is suing
the City to recover compensation for the damages it contends the
53 As a component of subject-matter jurisdiction, issues of standing may
be raised for the first time on appeal. Meyers v. JDC/Firethorne, Ltd., 548
S.W.3d 477, 484 (Tex. 2018).
28
amended ordinance has caused to The Commons’s property interest, not
to challenge or invalidate the amended ordinance. The Commons
indisputably possesses a vested interest in the property at issue and in
the property’s value.
Finally, we agree, of course, that “[c]onstitutional standing
requires a concrete injury that is both traceable to the defendant’s
conduct and redressable by court order.” Tex. Bd. of Chiropractic
Exam’rs v. Tex. Med. Ass’n, 616 S.W.3d 558, 567 (Tex. 2021). The City
argues that The Commons’s claim in this case is not redressable because
courts cannot determine whether the amended ordinance has caused a
compensable taking when The Commons cannot provide specific
information about proposed structures and elevations to enable a court
to determine how the City would apply the amended ordinance. To the
extent we understand this argument, for which the City relies on Urban
Developers LLC v. City of Jackson, 468 F.3d 281 (5th Cir. 2006), it
merely represents an alternative attempt to challenge ripeness. See id.
at 287 (agreeing that none of the owner’s claims “were ripe for review”),
294 (noting that the city “has not made a final decision on whether to
condemn the property[] and has done nothing more than state its intent
to proceed with condemnation”). We conclude that The Commons’s
takings claim is redressable because, if the amended ordinance has
caused a compensable taking, damages awarded requiring such
compensation “will remedy the alleged injury.” Meyers, 548 S.W.3d at
485 (citing Heckman v. Williamson County, 369 S.W.3d 137, 155–56
(Tex. 2012)).
29
IV.
Conclusion
We hold that (1) The Commons can assert a valid
regulatory-takings claim even though the City amended the ordinance
as a valid exercise of its police power and to ensure compliance with the
National Flood Insurance Program, (2) The Commons’s claim is ripe for
adjudication under these facts, and (3) The Commons has standing to
assert its claim. We do not address whether The Commons has in fact
asserted a valid regulatory-takings claim under Lucas, Penn Central, or
the Texas Constitution’s “damaged” provision. We reverse the court of
appeals’ judgment dismissing the claim and remand the case to the trial
court for further proceedings.
Jeffrey S. Boyd
Justice
OPINION DELIVERED: March 21, 2025
30