Petition for Writ of Certiorari — City of Houston, Texas, Petitioner v. The Commons of Lake Houston, Ltd.

Supreme Court briefAug 28, 2025

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No. ___________

_______________________________________________

In the Supreme Court of the United States

_______________________________________________

CITY OF HOUSTON, TEXAS,

Petitioner,

THE COMMONS OF LAKE HOUSTON, LTD.,

Respondent.

_______________________________________________

On Petition for Writ of Certiorari to the

Supreme Court of Texas

________________________________________________

PETITION FOR WRIT OF CERTIORARI

________________________________________________

Collyn A. Peddie

City Solicitor General

CITY OF HOUSTON LEGAL

DEPARTMENT

900 Bagby, 4th Floor

Houston, Texas 77002

832.393.6463

collyn.peddie@houstontx.gov

Attorney for Petitioner,

the City of Houston, Texas

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTION PRESENTED

Federal laws creating and implementing the

National Flood Insurance Program (“NFIP”) 1

require that, to qualify for federal flood insurance,

local governments must attempt to reduce flood

losses and the NFIP’s financial burden by enacting

and continuously enforcing floodplain regulations

making local properties that are covered or eligible

for coverage under the NFIP increasingly flood

resilient. Texas law also mandates that local

governments enact such regulations to qualify for the

NFIP. 2 The question presented is, therefore:

Whether federal laws establishing and

implementing the NFIP, when operating as

intended, conflict with and thus preempt

Article I, Section 17 of the Texas Constitution,

as applied to a Texas property owner’s claim

against local government to recover the

alleged diminution in property value

resulting from the local government’s alleged

“taking” or “damaging” 3 the property owner’s

property by enforcing local flood management

regulations enacted to comply with NFIP

requirements?

1 See, e.g., 42 U.S.C.A §§ 4001-4128 (multiple codified statutes

creating and implement the NFIP); 44 C.F.R. § 60.1(a) (federal

regulations mandating “adequate” local flood management

regulations) & infra Statement of the Case, Section II.

2 See Tex. Water Code § 16.3145.

3 The takings/damaged property claims referenced here do not

include claims alleging that all of a property’s economic value

has been destroyed. See Lucas v. S.C. Coastal Council, 505 U.S.

1003, 1019 (1992). Because other uses have already been

approved for the property here, Record 281, Lucas cannot apply.

RELATED PROCEEDINGS

Commons of Lake Houston, Ltd. v. City of Houston,

711 S.W.3d 666 (Tex.2025), reh’g denied (May 30,

2025) (hereafter “Commons II”) – App.A-1a

City of Houston v. Commons of Lake Houston, Ltd.,

698 S.W.3d 572 (Tex. App.—Houston [1st Dist.] 2023),

rev’d, 711 S.W.3d 666 (Tex.2025) – App.B-36a

City of Houston v. Commons at Lake Houston, Ltd.,

587 S.W.3d 494 (Tex. App.—Houston [14th Dist.]

2019, no pet.) (hereafter “Commons I”) – App.D-70a

The Commons of Lake Houston, Ltd. v. City of

Houston, Texas, No. 1161960, 2021 WL 10351997

(Tex. Co. Ct. at Law, July 6, 2021) – App.C-68a

TABLE OF CONTENTS 4

Page

QUESTION PRESENTED…………………………….i

RELATED PROCEEDINGS .................................... ii

TABLE OF CONTENTS ......................................... iii

TABLE OF CITED AUTHORITIES ........................ v

OPINIONS BELOW ................................................. 1

JURISDICTIONAL STATEMENT ......................... 2

RELEVANT LAWS AND

CONSTITUTIONAL

PROVISIONS ............................................... 4

STATEMENT OF THE CASE ................................. 5

THE QUESTION PRESENTED ......................... 5

II.

HOUSTON’S AMENDED CHAPTER 19 AND

RELEVANT FEMA/NFIP REGULATIONS ....... 7

III. RELEVANT FACTS ....................................... 13

REASONS FOR GRANTING THE WRIT............. 17

The City of Houston (hereafter “Houston”), a governmental

entity, has no information that is required to be disclosed under

Supreme Court Rule 14(1)(b). All parties are listed in the caption

of this case.

iii

TEXAS HAS RECOGNIZED BROAD, VIRTUALLYSTANDARDLESS

TAKINGS/

DAMAGED

PROPERTY CLAIMS AVAILABLE TO ALMOST

ANY PROPERTY OWNER WHO ALLEGES

DIMINUTION IN PROPERTY VALUE RESULTING

FROM THE ENFORCEMENT OF HOUSTON’S

NFIP-COMPLIANT REGULATIONS ............... 18

II.

THE COMMONS’ “AS APPLIED” TAKINGS/

DAMAGED PROPERTY CLAIM UNDER ARTICLE

I, SECTION 17 IS CONFLICT-PREEMPTED BY

FEDERAL LAW ............................................ 24

III. THE TEXAS SUPREME COURT’S OPINION

CONFLICTS WITH TWO CIRCUIT OPINIONS ON

THE QUESTION PRESENTED ........................ 31

CONCLUSION ....................................................... 34

APPENDIX

TABLE OF CITED AUTHORITIES

Page(s)

Cases

Adolph v. Federal Emergency Management Agency of

the U.S., 854 F.2d 732 (5th Cir. 1988) ........... 33,34

Arizona v. United States,

567 U.S. 387 (2012) .............................................. 24

Atl. Coast Pipeline, LLC v. Nelson Co. Bd. of

Supervisors, 443 F. Supp. 3d 670

(W.D. Va. 2020) .................................................... 33

Beverly v. Macy,

702 F.2d 931 (11th Cir.1983) ............................... 25

C.E.R. 1988, Inc. v. Aetna Cas. & Sur. Co.,

386 F.3d 263 (3d Cir. 2004) ...................25,27,30,32

City of Baytown v. Schrock,

645 S.W.3d 174 (Tex. 2022) ................................. 19

City of Dallas v. Jennings,

142 S.W.3d 310 (Tex. 2004) ................................. 18

City of Houston v. Commons at Lake Houston, Ltd.,

587 S.W.3d 494 (Tex. App.—Houston [14th Dist.]

2019, no pet.) (“Commons I”) .................. 1,13,20,21

City of Houston v. Commons of Lake Houston, Ltd.,

698 S.W.3d 572 (Tex. App.—Houston [1st Dist.]

2023) ....................................................................... 1

City of San Antonio v. Kopplow Dev., Inc.,

441 S.W.3d 436 (Tex. App.—San Antonio 2014,

pet. denied) ........................................................... 20

Columbia Venture, LLC v. Dewberry & Davis, LLC,

604 F.3d 824 (4th Cir. 2010) ........................... 30,31

Commons of Lake Houston, Ltd. v. City of Houston,

711 S.W.3d 666 (Tex.2025)

(“Commons II”) ......................... 1,10,18-19,21-23,32

The Commons of Lake Houston, Ltd. v. City of

Houston, Texas, No. 1161960, 2021 WL 10351997

(Tex. Co. Ct. at Law, July 6, 2021……..……….ii,1

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) ............................................. 5-7

DM Arbor Court, Ltd. v. City of Houston, Tex.,

No. 23-20385, 2025 WL 2314650 (5th Cir. Aug. 12,

2025) ..................................................................... 34

DuPuy v. City of Waco,

396 S.W.2d 103 (Tex. 1965) ................................. 19

Farrell v. Rose,

253 N.Y. 73, 170 N.E. 498 (1930) ........................ 26

Felts v. Harris Cnty.,

915 S.W.2d 482 (Tex. 1996) ............................ 22-23

Gibson v. Am. Bankers Ins. Co.,

289 F.3d 943 (6th Cir.2002) ................................. 31

Gunter v. Farmers Ins. Co., Inc.,

No. 4:11CV00161 BSM, 2012 WL 12895684 (E.D.

Ark. July 11, 2012) ............................................... 27

Hallco Tex., Inc. v. McMullen Cnty., 221 S.W.3d 50

(Tex.2006) ............................................................. 20

Hearts Bluff Game Ranch, Inc. v. State,

381 S.W.3d 468 (Tex. 2012) ................................. 18

Hines v. Davidowitz, 312 U.S. 52 (1941) ................. 24

Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) ..... 24

L–M–S Inc. v. Blackwell, 149 Tex. 348, 233 S.W.2d

286 (1950) ............................................................. 26

Lucas v. S.C. Coastal Council, 505 U.S.

1003 (1992) ........................................................ i, 34

Matusevich v. Middlesex Mut. Assur. Co.,

782 F.3d 56 (1st Cir. 2015) .................................. 25

Mercantile Nat. Bank at Dallas v. Langdeau,

371 U.S. 555 (1963) ................................................ 7

Mut. Pharm. Co., Inc. v. Bartlett, 570 U.S.

472 (2013) ............................................................. 29

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) .............................................. 20

Penn Cent. Transp. Co. v. New York City,

438 U.S. 104 (1978) .............................................. 19

Pope v. Atl. Coast Line R. Co.,

345 U.S. 379 (1953) ................................................ 6

Spence v. Omaha Indem. Ins.,

996 F.2d 793 (5th Cir.1993) ................................. 31

Steele v. City of Houston,

603 S.W.2d 786 (Tex.1980) .................................. 19

Tex. Landowners Rights Ass’n v. Harris,

453 F. Supp. 1025 (D.C.Cir.1978) .................. 29,33

Texas Dept. of Transp. v. City of Sunset Valley,

146 S.W.3d 637 (Tex.2004) .................................. 23

Till v. Unifirst Fed. Sav. & Loan Ass’n,

653 F.2d 152 (5th Cir.1981) ................................. 25

United States v. Locke,

529 U.S. 89 (2000) ................................................ 24

vii

Wright v. Allstate Ins. Co.,

415 F.3d 384 (5th Cir. 2005) ................................ 31

Wright v. Allstate Ins. Co.,

500 F.3d 390 (5th Cir. 2007) ................................ 25

Wyeth v. Levine,

555 U.S. 555 (2009) .............................................. 24

Statutes and Regulations

28 U.S.C.A. § 1257 ............................................... 2,6-7

28 U.S.C.A. § 1257(a) .............................................. 2,5

42 U.S.C.A. § 4001 ............................................. 4,8,25

42 U.S.C.A. § 4001(c) .......................................... 25,30

42 U.S.C.A. § 4001(c)(1) ........................................... 26

42 U.S.C.A. § 4001(e) .......................................... 25,26

42 U.S.C.A. §§ 4001-4128 ........................................... i

42 U.S.C.A. § 4002(b)(3) ........................................... 25

42 U.S.C.A. § 4012 ..................................................... 4

42 U.S.C.A. § 4012a(a) ............................................... 8

42 U.S.C.A. § 4012a(b) .......................................... 8,29

42 U.S.C.A. § 4016 ..................................................... 4

42 U.S.C.A. § 4016(a) ............................................... 29

44 C.F.R. § 59.24 ........................................................ 8

44 C.F.R. § 60.1 ................................................ 4,23,25

44 C.F.R. § 60.1(a) ....................................................... i

44 C.F.R. § 60.1(d) ............................................ 9,28,29

Tex. Loc. Gov’t Code § 245.002(a) ....................... 20-23

viii

Tex. Water Code § 16.3145 ................................. i,8,27

Texas Const., art. 1, § 17 .......... i,2,4-5,17-19,23-24,31

Other Authorities

Houston, Tex., Code of Ordinances,

Chapter 19 (April 4, 2018)………..……………...4,7-14

Houston, Tex., Ordinance

No. 875-1705 (September 25, 1985)……………………4

Houston, Tex., Ordinance

No. 2018-258 (April 4, 2018)………………………4,8-14

J. Peter Byrne, A Fixed Rule for a Changing World:

The Legacy of Lucas v. South Carolina Coastal

Council, 53 Real Prop., Tr. & Est. L. J. 1 (Sept. 11,

2018).…………………………………....…………..…...28

Christine A. Klein, The National Flood Insurance

Program at Fifty: How the Fifth Amendment Takings

Doctrine Skews Federal Flood Policy, 31 Geo. Envtl.

L. Rev. 285 (2019)……………………………………….27

Saul Jay Singer, Flooding the Fifth Amendment: The

National Flood Insurance Program and the “Takings”

Clause, 17 B.C. Envtl. Aff. L. Rev. 323 (1990)……..17

Rules

Supreme Court Rule 13 ........................................... 11

Supreme Court Rule 14(1)(e) ................................... 11

Supreme Court Rule 29(4)(c) ................................... 12

OPINIONS BELOW 5

Commons of Lake Houston, Ltd. v. City of Houston,

711 S.W.3d 666 (Tex.2025), reh’g denied (May 30,

2025) (hereafter “Commons II”) – App.A-1a

City of Houston v. Commons of Lake Houston, Ltd.,

698 S.W.3d 572 (Tex. App.—Houston [1st Dist.] 2023),

rev’d, 711 S.W.3d 666 (Tex.2025) – App.B-36a

City of Houston v. Commons at Lake Houston, Ltd.,

587 S.W.3d 494 (Tex. App.—Houston [14th Dist.]

2019, no pet.) (hereafter “Commons I”) – App.D-70a

The Commons of Lake Houston, Ltd. v. City of

Houston, Texas, No. 1161960, 2021 WL 10351997

(Tex. Co. Ct. at Law, July 6, 2021) – App.C-68a

Unless otherwise indicated, references to the Record are to

pages in the official Clerk’s Record from the Texas courts.

References to the Appendix are designated by “App.,” followed

by the document letter and relevant page number.

JURISDICTIONAL STATEMENT

Pursuant to Supreme Court Rule 14(1)(e), Petitioner

Houston states that jurisdiction for this Court’s

review and granting Houston’s petition is authorized

as follows:

1. This Petition is timely filed under Supreme

Court Rule 13.

a. The opinion of the Supreme Court of Texas on

which this petition is based was issued on

March 21, 2025. See App.A-1a.

b. The Supreme Court of Texas denied

Houston’s timely motion for rehearing on

May 30, 2025. App.E-87a.

2. 28 U.S.C.A § 1257(a) authorizes review on the

ground that the final judgment or decree of the

Texas’ highest court, the Texas Supreme Court,

draws into question the validity of Article I,

Section 17 of the Texas Constitution, as it applies

to a Texas property owner’s claim against a

municipality to recover its alleged diminution in

property value for property allegedly “taken,

damaged, or destroyed for or applied to public

use” as a result

of the municipality’s

enforcement of city-wide flood-plain regulations

enacted to comply with NFIP requirements,

because that state constitutional provision, as so

applied, is repugnant to the laws of the United

States, that is, federal laws creating and

implementing the NFIP.

3. Pursuant to Supreme Court Rule 29(4)(c),

Houston states that 28 U.S.C.A § 2403(b) may

apply and service of this document has been

made on the Attorney General of the State of

Texas contemporaneous with the filing of this

document in this Court.

RELEVANT LAWS AND CONSTITUTIONAL

PROVISIONS

Because they are voluminous, the following laws,

regulations, and constitutional provisions are set

forth as follows in the Appendix:

Texas Const., art. 1, § 17 . . . . . . . . . . . .. . App.G-113a

42 U.S.C.A. § 4001. . . . . . . . . . . . . . . . . . .. App.H-115a

42 U.S.C.A. § 4012. . . . . . . . . . . . . . . . . . . . App.I-119a

42 U.S.C.A. § 4016 . . . . . . . . . . . . . . . . . . . . App.J-123a

44 C.F.R. § 60.1 . . . . . . . . . . . . . . . . . . . . . . App.K-127a

Houston, Tex., Code of Ordinances,

Chapter 19 (April 4, 2018) . . . . . . . . . . . . App.M-180a

Houston, Tex., Ordinance

No. 875-1705 (September 25, 1985). . . . . . App.N-246a

Houston, Tex., Ordinance

No. 2018-258 (April 4, 2018). . . . . . . . . . . . App.O-292a

Texas Local Government Code,

Title 7, Subtitle C, Chapter 245 . . . . . . . App.P-300a

STATEMENT OF THE CASE

Respondent, the Commons of Lake Houston, Ltd.

(“the Commons”), brought this inverse condemnation

lawsuit against the Petitioner Houston under Article

I, Section 17 of the Texas Constitution. The Commons

alleges that the elevation requirements included in

the amendments to Houston’s flood management

ordinances, adopted in 2018, see App.N-274a-77a;

App.O-292a, effected a regulatory taking of and/or

damaged a portion of the Commons’ land, by reducing

its value. Record 276, 281-82.

THE QUESTION PRESENTED

The federal question here was raised and briefed in

detail before the Texas Supreme Court in Houston’s

motion for rehearing as it arose directly from that

Court’s recognition of a new and separate

constitutional “as applied” claim challenging the

application of FEMA/NFIP regulations. See App.F89a (issues on rehearing); 101a-106a. The Texas

Supreme Court denied Houston’s motion for

rehearing without opinion. App.E-86a.

This Court nevertheless has jurisdiction to grant the

writ here under 28 U.S.C.A § 1257(a) and Cox Broad.

Corp. v. Cohn, 420 U.S. 469, 486 (1975). As in Cox,

“Given these factors—that the litigation could be

terminated by our decision on the merits [on

preemption] and that a failure to decide the question

now will leave” local governments in Texas “operating

in the shadow” of a claim and constitutional provision,

as applied, “[t]he constitutionality of which is in

serious doubt,” this Court should likewise find that

“reaching the merits is consistent with the pragmatic

approach that we have followed in the past in

determining finality.” Cox, 420 U.S. at 486. Under

Cox, there are four categories of cases in which this

Court has treated the decision on the federal issue as

a final judgment for the purposes of 28 U.S.C. § 1257

and has taken jurisdiction without awaiting the

completion of the additional proceedings anticipated

in the lower state courts. This Court explained:

In most, if not all, of the cases in these

categories, these additional proceedings would

not require the decision of other federal

questions that might also require review by the

Court at a later date, and immediate rather

than delayed review would be the best way to

avoid ‘the mischief of economic waste and of

delayed justice,’ as well as precipitate

interference with state litigation.

Cox, 420 U.S. at 477–78 (citations omitted). That is

precisely the situation here.

This Court has not interpreted Section 1257 so as to

preclude review of federal questions which are in fact

ripe for adjudication when tested against the policy of

Section 1257. Pope v. Atl. Coast Line R. Co., 345 U.S.

379, 382 (1953). For example, determination of the

preemption issue would eliminate the need for an

expensive, judicially time-consuming and potentially

unnecessary trial and additional appeal. Such

avoidance was sufficient for this Court to assert

jurisdiction in Mercantile Nat. Bank at Dallas v.

Langdeau, 371 U.S. 555, 558 (1963). 6

In addition, the further state proceedings ordered

here might well prevent review of the federal issue

which will still need to be decided. See Cox, 420 U.S.

at 478.

II.

HOUSTON’S AMENDED CHAPTER 19

RELEVANT FEMA/NFIP REGULATIONS

AND

Houston’s Code of Ordinances, Chapter 19, as

amended, governs real property development in

Houston’s floodplains. See App.M-180a. Its stated

purpose “[i]s to … minimize public and private losses

due to flood conditions in specific areas …” See

Id.,182a [§19-1(a)]; Record 53. In particular, it is

intended to provide “the degree of regulation for flood

protection … reasonable for regulatory purposes …

based on maps promulgated by FEMA [Federal

Emergency Management Agency] that are required to

be used as a condition of obtaining flood insurance.”

Id., 183a-84a [§19-1(c)]; Record 53. These

6 This Court explained:

This is a separate and independent matter, anterior to

the merits and not enmeshed in the factual and legal

issues comprising the plaintiff’s cause of action.

Moreover, we believe that it serves the policy underlying

the requirement of finality in 28 U.S.C. § 1257 to

determine [the federal issue] rather than to subject them,

and appellee, to long and complex litigation which may

all be for naught if consideration of the preliminary

[federal] question … is postponed until the conclusion of

the proceedings. Accordingly, we note our jurisdiction to

hear this appeal under §1257(2).

Id. That is precisely the scenario here.

development requirements serve two goals: to provide

subsidized flood insurance for structures in floodprone areas while simultaneously discouraging future

unsafe construction. See 42 U.S.C.A. § 4001.

Chapter 19 and its amendments were specifically

enacted to satisfy FEMA 7/NFIP criteria so that

Houston property owners would remain eligible to

participate in the NFIP and insure their homes

against flood damage. It is undisputed that, if local

governments fail to enact and enforce “adequate

floodplain management regulations consistent with

Federal criteria,” their communities may be

suspended from the NFIP, existing flood insurance

policies will not be renewed, and residents will be

barred from receiving both direct federal financial

assistance and federally-related financing by private

lending institutions for acquisition or construction

purposes, because their flood-prone property is not

covered by flood insurance. 8 Texas cities and counties,

however, are required by state law to enact local flood

management ordinances meeting the requirements

for participation in the NFIP. See Tex. Water Code §

16.3145.

Because of the importance of preserving Houstonians’

access to flood insurance, Houston’s 2018 Floodplain

Ordinance reaffirms:

[T]he City desires to continue its participation

in the Federal Insurance Rate Map (FIRM)

“FEMA” is the acronym for the Federal Emergency

Management Agency.

8 See 42 U.S.C. §§ 4012a(a) & (b) (penalties); 44 C.F.R. § 59.24

(community suspension and penalties).

program and to continue to meet the

requirements of Title 44 Code of Federal

Regulations, Sections 59 and 60 to allow its

residents and businesses to secure insurance

protection against flooding events at the most

reasonable rates available…

App.O-293a-94a. Consequently,

the City Council [found] that, to promote the

public health, safety and general welfare of

the City, and to meet federal requirements

contained in 44 CFR Part 60, it is desirable to

adopt this Ordinance to: (1) Fulfill the City’s

obligation to regulate development in special

flood hazard areas to ensure continued

participation

FIRM;

(2)

Protect

investments made by citizens and business

owners in real property within the City; (3)

Reduce flood losses and the loss of human life.

App.O-296a-297a.

The referenced federal regulations, however, make

clear that they establish only minimum standards for

participation in the NFIP. For example, 44 C.F.R.

60.1(d) provides:

The criteria set forth in this subpart are

minimum standards for the adoption of flood

plain management regulations by floodprone, mudslide (i.e., mudflow)-prone and

flood-related erosion-prone communities. Any

community may exceed the minimum criteria

under this part by adopting more

comprehensive flood plain management

regulations utilizing the standards such as

contained in subpart C of this part. In some

instances, community officials may have

access to information or knowledge of

conditions that require, particularly for

human safety, higher standards than the

minimum criteria set forth in subpart A of

this part. Therefore, any flood plain

management regulations adopted by a State or

a community which are more restrictive than

the criteria set forth in this part are

encouraged and shall take precedence.

Id. (emphasis supplied). Indeed, the 2018 Floodplain

Ordinance expressly recognizes that:

in accordance with 44 CFR Part 60, FEMA

encourages local communities to evaluate

their regulations after a flood event, to adopt

more stringent requirements based upon local

events, and to provide that local regulations

for flood-prone areas should permit

development in flood-prone areas only if: The

development is appropriate considering the

probability of flood damage and will reduce

flood losses.

App.O-294a. Moreover, it acknowledges that “[i]n the

exercise of its lawful authority, the City may enact

police power ordinances to promote and protect the

health, safety and welfare of the public…” App.O292a-93a.

Pursuant to these express directives, in its 2018

Floodplain Ordinance, adopted a year after Hurricane

Harvey devastated the City, Houston City Council

specifically found that:

• The Mayor charged Houston Public Works, and

the Mayor’s Recovery and Resilience Officers

with studying the impact of these storms on the

City’s residents and business owners, and with

making recommendations on reasonable,

responsible rules for development throughout

the City; and

• Houston Public Works has reviewed Chapter 19,

Floodplains and implementing guidelines, has

received technical assistance and input from

professional stakeholder groups, has provided

opportunity for public comment on these

revisions, with over 3,000 comments received,

and after review and consideration, recommends

the changes contained in this Ordinance …

* * * *

• Atlas 14 … will conclude that new rainfall

amounts should be used in estimates for the

Houston area, as the draft reports [from the

Office of Water Prediction, National Weather

Service, National Oceanic and Atmospheric

Administration] already show; and …

• The City anticipates that FEMA will evaluate

flood areas and issue new maps for the Houston

area; and …

• Based on these preliminary estimations … it is

reasonable to expect that the new special flood

hazard areas will include at least all the areas

currently designated as the 100-year and 500year flood zones on current FEMA maps; and …

• The regulations proposed by Houston Public

Works to require elevation of structures to twofeet above the 500-year elevation [are] therefore

reasonable, will reduce flood losses, and reduce

the danger to human life…

* * * *

• The City Council finds that the regulations

proposed by Houston Public Works to require

elevation of structures to two-feet above the 500year elevation is therefore reasonable, will

reduce flood losses, and reduce the danger to

human life…

App.O-294a-96a. It is undisputed that Houston

remains in full compliance with FEMA/NFIP

requirements now and was at the time this lawsuit

was filed. Nevertheless, the Commons’ lawsuit is

based upon the Commons’ apparent displeasure with

Houston’s 2018 elevation requirements. Record 276.

Chapter 19, as amended, expressly allows and

specifies detailed procedures for applicants to request

variances from such requirements. Subsection 1920(a) provides:

Any applicant for a permit may apply for a

variance from the requirements of this

chapter. Except as may be otherwise provided

in subsection 19-22(f), a variance may be

sought only on the basis that the imposition

of the requirements of this chapter for the

issuance of a permit to the applicant

constitutes an exceptional hardship.

App.M-215a. Subsection 19-20(b) continues: “an

applicant may file a request for variance at any time.”

Id. (emphasis supplied). The variance request is

reviewed by the General Appeals Board. See App.M222a [§19-22(h)]. If the Board denies the variance,

that decision is final. Id.

It is undisputed that, despite its allegations of

financial hardship in its amended petition, the

Commons has still never filed a request for a variance

for the land at issue here nor has such an application

been denied. See Commons I, at 501 (“it is undisputed

that The Commons has not had any permit or plat

applications, or requests for variances, denied as a

result of the amended ordinance”).

III.

RELEVANT FACTS

The Commons admits that, unlike many “developers,”

it does not construct anything. Record 9. It does not

build houses or apartments, shopping centers, or any

other kind of structure. Instead, it sells “finished,” if

empty, lots. Id. That means that it acquires raw land,

determines how it will be marketed, puts in basic

sewers, water, electric lines, and sometimes streets,

curbs, and other very basic infrastructure, then sells

the empty lots to people who later build structures on

them. That is the limited role the Commons admits it

played with in developing the proposed Crossing

development. Record 7.

Houston’s Floodplain Ordinance prohibits any

development in the floodplain without a development

permit, which must be obtained in addition to and

before any other required building, paving, utility

construction, or other permit. See App.M-204a, 209a

[§§19-11, 19-16(a)]; Record 61, 63. Approval for a

street layout [usually part of a general plan] does not

guarantee approval to build homes in a floodplain,

just as it does not guarantee approval of any other of

the myriad of permits that are incident to building

homes in Houston.

The Commons never submitted an application that

even minimally complied with Houston’s floodplain

ordinance. See Record 122 [¶6]; 368 [¶5]. Instead, the

Commons argued that seeking such a permit would

be futile and that it should be allowed to proceed with

its lawsuit having made little or no effort to secure

either a permit or variance. Record 277-78.

Chapter 19, Subsections 19-17 and 18 [App.M-209a13a; Record 63-64], for example, expressly set forth

the minimum requirements for a floodplain

development permit application. App.M-185a-200a

(definitions), 226a-232a, 234a-239a [§§19-2, 19-32,

19-33, and 19-43; Record 54-60, 69-71, 72-73]. The

requirements ensure that “work permitted with a

floodplain development permit [is] undertaken in a

manner designed to minimize surface runoff, erosion,

and sedimentation, and to safeguard life, limb,

property, and the public welfare.” App.M-209a [§1916(c); Record 63]. To that end, Subsections 19-17(c)

and (d), App.M-211a-212a [Record 64], require an

applicant to submit a flood mitigation plan or

statement signed and sealed by a licensed engineer,

complying with Subsection 19-34, indicating how

potential flooding risks will be avoided or reduced.

These critical submissions allow Houston to

determine how the proposed alterations would affect

the conveyance of water in the area and whether they

would result in new flooding risks. Despite these

express, written requirements, the Commons did not

include any mitigation plan in any submission it

attempted, even though it admitted that Houston

officials told its representatives in February 2020 that

one was necessary to secure a development permit.

Record 280, 333 [¶6]. The Commons’ purported

application submissions thus never met even these

basic requirements.

Instead, to date, in three tries, the Commons has

submitted just three pages of material allegedly

constituting its “applications” for a floodplain

development permit for a 122.5-acre site, including a

largely-blank application form. See Record 333-34

(Affidavit of Adam Rinehart); 335 (transmittal email

from Rinehart), 337-339 (maps and one-page

application). These scant submissions consist of the

following:

• an admitted “free-form application,” consisting of

two single-page, partial engineering maps

overwritten with elevation numbers but no other

explanation, that the Commons’ engineer emailed

to the City on November 14, 2019;

• a one-page, unsigned, incomplete form “Flood

Development Permit Application,” “‘seeking a

blanket finished floor elevation 1’ above FEMA

current BFE for all current and future

construction,” that the Commons attempted to

submit on February 28, 2020. Record 339. The

Commons said it was informed by an unidentified

city employee that the application was incomplete,

in large part because there was no mitigation plan

Record 280, 333 [¶6]; and

• on March 19, 2020, the Commons combined the

prior two “applications” into a single, three-page

document and attempted to resubmit it as a new

application for a floodplain development permit.

Record 337-39.

By omitting information essential to determining the

effect, if any, the proposed finished floor elevations

would have on area drainage and how to ameliorate

any adverse effects, the Commons deprived Houston

of the ability meaningfully to exercise its discretion to

grant or deny a permit or variance. Instead, in its

pleadings and evidence, it admitted that it attempted

to submit applications with the stated purpose of

seeking a “formal rejection,” Record 280, so that it

could “go back to court.” See Record 318 (email from

Jeff Dewese to Adam Rinehart, dated Apr. 29, 2020)

(“surely we [sic] done enough to prove ‘ripeness’ to go

back to court?”). The Commons thus concedes that it

was simply not willing to submit sufficient

information for its proposed residential lots so that

the Flood Management Office could either approve a

permit, or so that the General Appeals Board could

grant a variance. See Record 122-23, [¶¶6-12].

In fact, the Commons abandoned its efforts to obtain

a permit by applying for and obtaining in 2020 a new

general plan that did not include land allegedly

impacted by the 2018 ordinance. Record 281. Choyce

Morrow, the City’s Managing Engineer, testified that

“[the Commons’ engineer] informed me that the

Commons decided to proceed with “revised general

plan that does not require any variance from the

ordinance as amended” and that “there is not action

item” for the Floodplain Management Office related

to the Commons at this time.” Id.

REASONS FOR GRANTING THE WRIT

“A judicial finding that these types of

floodplain regulations constitute ‘takings,’

thereby invoking the … requirement that the

government tender ‘just compensation,’

would effectively kill the NFIP.” 9

9 Saul Jay Singer, Flooding the Fifth Amendment: The National

Flood Insurance Program and the “Takings” Clause, 17 B.C.

Envtl. Aff. L. Rev. 323, 323 (1990). Although the quote

specifically refers to the Fifth Amendment’s takings clause, it

applies equally to the Texas Constitution’s Article I, Section 17

compensation requirements.

I. TEXAS HAS RECOGNIZED BROAD, VIRTUALLYSTANDARDLESS TAKINGS/DAMAGED PROPERTY

CLAIMS AVAILABLE TO ALMOST ANY PROPERTY

OWNER WHO ALLEGES DIMINUTION IN PROPERTY

VALUE RESULTING FROM THE ENFORCEMENT 10

OF HOUSTON’S NFIP-COMPLIANT REGULATIONS

Article I, Section 17(a) of the Texas Constitution

provides, in relevant part, that “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 ....” In

Commons II, the Texas Supreme Court admitted that,

despite the additional language, “[u]p to this point,

our ‘case law on takings under the Texas Constitution

is,’ at least for the most part, ‘consistent with federal

jurisprudence.’” Commons II, at 678, n.34 (quoting

Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d

468, 477 (Tex. 2012)) (emphasis supplied). Indeed, the

Texas Supreme Court conceded that Texas courts had

previously treated the “taking, the damaging, or the

destruction of property … more or less, as

synonyms...” Id.

Prior to Commons II, if the Texas Supreme Court

made any distinction between the terms, it was to

refer “[t]o the ‘damaged’ provision as applying when

the government ‘physically damages private

property,’” id., 678 (quoting City of Dallas v. Jennings,

142 S.W.3d 310, 314 (Tex. 2004)) (emphasis supplied),

or when it effectively does so, as when government

unreasonably denies physical access to private

10 Respondent asserts no facial challenge to Houston’s enactment

of flood management regulations, only an “as applied” claim.

property. Id., 678-79 (citing DuPuy v. City of Waco,

396 S.W.2d 103, 108 (Tex. 1965)). These important

distinctions meant that, “to be damaged within the

meaning of the [Texas] Constitution,” an alleged

physical injury or unreasonable physical deprivation

of access to property had to inflict “[a]n injury peculiar

to certain property not suffered in common with other

property in the community or section…”. DuPuy, 396

S.W.2d at 108 (emphasis supplied).

In Commons II, however, the Texas Supreme Court

abandoned all such limitations and effectively

announced that any alleged diminution in value

occasioned by enforcement of local flood management

regulations would trigger the “takings” and/or

“damaged property” provision of Article I, Section 17

and require full Penn Central 11 analysis, “[w]hich

requires the court to engage in an ‘ad hoc’ and

‘situation-specific’ factual inquiry.” Commons II, at

677. It explained: the Texas Constitution “[r]equires

compensation ‘in more circumstances than the United

States Constitution.’” Id., 678 (quoting City of

Baytown v. Schrock, 645 S.W.3d 174, 179 (Tex. 2022)).

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., 679 (quoting Steele

v. City of Houston, 603 S.W.2d 786, 790 (Tex.1980))

(emphasis supplied).

11 Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124

(1978).

The Texas Supreme Court effectively created a new

cause of action by doing the following:

First, it eliminated the need for property

owners to use reasonable and necessary

methods to obtain requested relief or ripen

their claims. 12 The Commons had two reasonable

methods to exempt itself from the application of

Houston’s 2018 floodplain amendments and utilize

only those regulations previously in effect: 1) a

variance from the 2018 floodplain regulations and

permit requirements under Houston Code of

Ordinances § 19-20(a); 13 or 2) a pre-2018 vested rights

permit under Local Government Code Chapter 245

that would have allowed the Commons effectively to

freeze existing floodplain regulations in place as of the

date it obtained such a permit. 14 It sought neither. 15

12 See Hallco Tex., Inc. v. McMullen Cnty., 221 S.W.3d 50, 71

(Tex.2006) (citing Palazzolo v. Rhode Island, 533 U.S. 606, 620–

21 (2001)) (plaintiffs must take reasonable and necessary steps

to ripen their claims);

13 It provides: “a variance may be sought only on the basis that

the imposition of the requirements of this chapter for the

issuance of a permit to the applicant constitutes an exceptional

hardship.” Id. Houston allows a party to seek a variance “at any

time,” even when simultaneously seeking a permit. App.M-215a17a [§19-20(b)]; Record 65-66, 268 [§19-20(b), comment].

14 See Tex. Loc. Gov’t Code § 245.002(a); City of San Antonio v.

Kopplow Dev., Inc., 441 S.W.3d 436, 442 (Tex. App.—San

Antonio 2014, pet. denied) (Chapter 245’s exemption for federal

floodplain regulations likely would not apply to Houston’s 2018

floodplain regulations since FEMA had not updated its maps to

reflect them).

15 In Commons I, at 502 , the appellate panel held that seeking

a variance here would not be futile and essentially instructed the

Commons to seek one to ripen its claim. Commons I’s holding

was not appealed, and nothing changed regarding a variance

Instead, the Texas Supreme Court allowed the

Commons’ claims to advance based on the Commons’

submission of an alleged compliance permit 16

application, as discussed above, consisting of just

three sheets of paper, none of which addressed any

form of compliance with Houston’s existing floodplain

regulations.

Second, the Texas Supreme Court eliminated

the need for developers to obtain vested-rights

permits to freeze in place applicable

regulations. In Commons I, at 502-03, the appellate

panel also held that the Commons’ damages claim,

then based upon an alleged vested rights permit,

never ripened because the Commons never asked that

Chapter 245, Texas’ vested rights statute, apply to its

project in any of the permits or plans it sought and

after that ruling. Instead, the Commons II Court inappropriately

seized upon Houston’s argument—that the Commons’ claim will

never ripen—as somehow admitting futility to seek both a

permit and variance. Commons II, at 686. It doesn’t. Houston

argued only that the Commons’ claim would not ripen because

the Commons voluntarily sought and obtained approval of a plan

for different use for the property, has no pending permit or

variance application for its original development, and has stated

that it will no longer seek such relief. Texas Supreme Court

Respondent’s Br. 6-9.

16 The permit sought here does not allow a permittee the “right

to develop its property under the old ordinance,” see Commons

II, at 686-87, the Commons’ desired relief. See App.M-209a-12a

[§19-17(f)], 213a-15a [§19-19] (“approval or denial of a floodplain

development permit by the city engineer shall be based upon

compliance with the applicable provisions of this chapter”). By

contrast, the point of a variance is to “[g]rant [] relief to a person

from the requirements of this chapter that allows development

in a manner otherwise prohibited by this chapter.” App.M-185a200a [§19-2].

had approved before 2018, including those referenced

in Commons II. Nevertheless, in Commons II, the

Texas Supreme Court implied that these past

approved permits or plans somehow provide the

Commons with sufficient detrimental reliance to

ripen its claims. See Commons II, at 673-674 . They

don’t and never have.

As an initial matter, the Commons never appealed the

Commons I finding that it failed to protect itself

under Chapter 245: it abandoned its Chapter 245

arguments when it last repleaded. See Record 123

[¶10]; 135-43. Second, by allowing any kind of

development permit or plan approval to provide the

vested rights or unique injury necessary to assert a

takings/damaged property claim, the Texas Supreme

Court effectively nullified Chapter 245 in Commons II

and removed the bright-line standard it supplies to

distinguish those developers who are protected by it

and those who are not. The Texas Supreme Court

supplied no new standards to determine when any

permits/plans suffice to ripen a claim. Cities and

developers will be left to litigate the question. This is

important here because the Commons’ failure to avail

itself of Chapter 245’s statutory protections means it

could have had no investment-backed expectations

that it would be free of subsequent, more stringent

flood management regulations. Consequently, it could

never satisfy Penn Central’s requirements even if

they are applied here.

Finally, the Texas Supreme Court eliminated or

fatally weakened its

“unique injury”

requirement for takings/damaged property

claims. In Felts v. Harris Cnty., 915 S.W.2d 482, 484

(Tex.1996) (citations omitted), the Texas Supreme

Court previously held: “[T]he Texas Constitution does

not require … compensation for every decrease in

market value attributed to a governmental activity …

Throughout its history, courts have construed Article

I, Section 17 to allow recovery only if the injury is not

one suffered by the community in general.” 17 The

Texas Supreme Court’s opinion in Commons II

undermines or eliminates this requirement.

FEMA/NFIP regulations apply to a community at

large that imposes floodplain regulations intended to

qualify the community for federal flood insurance. See

44 C.F.R. § 60.1. Consequently, while the Commons’

alleged loss of property value may be larger than some

other Houstonians’ because of the size of its real

estate holdings, there was no showing here that its

alleged injury in having to comply with the 2018

floodplain elevation requirements is somehow unique

or different from that of thousands of other

Houstonians who live and work in its floodplains and

who are also subject to Houston’s city-wide floodplain

elevation requirements. The fact that the Commons

obtained unrelated permits, had unrelated plans

approved, or invested money does not render its

current alleged injury unique.

The Texas Supreme Court did not articulate any

standards for determining when a few unrelated

permits render an alleged injury unique, if it imposed

that requirement at all.

17 See, e.g., Texas Dept. of Transp. v. City of Sunset Valley, 146

S.W.3d 637 (Tex.2004).

II.

THE COMMONS’

“AS APPLIED” TAKINGS/

DAMAGED PROPERTY CLAIM UNDER ARTICLE I,

SECTION 17 IS CONFLICT-PREEMPTED BY

FEDERAL LAW

There are two types of conflict preemption under

federal law. The first, “impossibility” preemption,

occurs when it is not possible to comply with both

state and federal law. See, e.g., Wyeth v. Levine, 555

U.S. 555, 573 (2009). The second, “obstacle

preemption,” applies “where the challenged state law

‘stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of

Congress.’” Arizona v. United States, 567 U.S. 387,

399 (2012) (quoting Hines v. Davidowitz, 312 U.S. 52,

67 (1941)). This occurs where state law “interferes

with the methods by which the federal statute was

designed to reach this goal.” Int’l Paper Co. v.

Ouellette, 479 U.S. 481, 494 (1987). “What is a

sufficient obstacle is a matter of judgment, to be

informed by examining the federal statute as a whole

and identifying its purpose and intended effects.”

Arizona, 567 U.S. at 399 (quotation marks and

citation omitted). In making that determination, no

“assumption” of non-pre-emption is triggered because

the state cause of action arises in an area where there

has been a history of significant federal presence. See,

e.g., United States v. Locke, 529 U.S. 89, 108 (2000).

Although it would arguably be impossible for local

governments to comply fully with NFIP requirements

while being subjected to the takings/damaged

property claims the Texas Supreme Court recently

recognized, Houston’s focus here is on obstacle

preemption.

In treating the Commons’ takings/damaged property

claims as just another regulatory takings claim and

holding flood management regulations “designed to

comply with the [NFIP’s]” criteria irrelevant to such

claims’ viability, the Texas Supreme Court

disregarded the central purpose of the NFIP:

“Indisputably a central purpose of the [NFIP] is to

reduce fiscal pressure on federal flood relief efforts. 18

Indeed, virtually every circuit has confirmed this

purpose and how it is to be achieved. 19

18 C.E.R. 1988, Inc. v. Aetna Cas. & Sur. Co., 386 F.3d 263, 270

(3d Cir. 2004) (citing Till v. Unifirst Fed. Sav. & Loan Ass’n, 653

F.2d 152, 159 (5th Cir.1981) (“Clearly, the principal purpose in

enacting the Program was to reduce, by implementation of

adequate land use controls and flood insurance, the massive

burden on the federal fisc of the ever-increasing federal flood

disaster assistance”).

19 See, e.g., Matusevich v. Middlesex Mut. Assur. Co., 782 F.3d

56, 57 (1st Cir. 2015) (“The NFIP is also intended to change

building practices in order to deter future flood risk—and thus

hopefully reduce future losses to life and property due to floods—

through the adoption of floodplain management and mitigation

initiatives”) (citing §§ 4001(e), 4002(b)(3); 44 C.F.R. § 60.1);

Wright v. Allstate Ins. Co., 500 F.3d 390, 396 (5th Cir. 2007) (“the

principal purpose in enacting [the NFIP] was to reduce, by

implementation of adequate land use controls and flood

insurance, the massive burden on the federal fisc of the everincreasing federal flood disaster assistance”); Beverly v. Macy,

702 F.2d 931, 937 (11th Cir.1983) (“[t]he flood insurance

program was partially intended to encourage state and local

governments to be more active in regulating the development

and use of land that is exposed to potential flood damage,

thereby relieving the federal government of the heavy burden of

flood disaster relief”) (citing § 4001).

Consequently, this is not a situation in which this

Court must guess Congress’ intent or purposes for the

NFIP, a frequent complaint in this Court’s recent

discussions of obstacle preemption. Instead,

Congress’ purposes are stated clearly in the relevant

statutes. In 42 U.S.C.A. § 4001(c)(1), for example,

Congress found that the NFIP promotes the public

interest “[b]y providing appropriate protection

against the perils of flood losses and encouraging

sound land use by minimizing exposure of property to

flood losses…” Specifically, Section 4001(e) states:

It is the further purpose of this chapter to (1)

encourage State and local governments to

make appropriate land use adjustments to

constrict the development of land which is

exposed to flood damage and minimize

damage caused by flood losses, (2) guide the

development of proposed future construction,

where practicable, away from locations which

are threatened by flood hazards…

The Texas Supreme Court also failed to consider the

unique nature of the NFIP in providing propertyvalue-enhancing flood insurance. Indeed, an earlier

court had observed that compliance with regulations

like those at issue here would provide the plaintiffs

like the Commons “[n]o right to relief, recognizing

that [the Commons] recoups [its] damage in the

benefit [flood insurance] which he shares with the

general public in the ultimate improvement which is

being made.” L–M–S Inc. v. Blackwell, 149 Tex. 348,

233 S.W.2d 286, 289 (1950) (quoting Farrell v. Rose,

253 N.Y. 73, 170 N.E. 498, 499 (1930)).

Finally, the Texas Supreme Court also overlooked the

heavy burden that the mere filing and fact-intensive

litigation of Penn Central-type claims places on local

governments. One court found litigation of NFIP

issues “usually expensive.” Gunter v. Farmers Ins.

Co., Inc., No. 4:11CV00161 BSM, 2012 WL 12895684,

at *3 (E.D. Ark. July 11, 2012), aff’d, 736 F.3d 768 (8th

Cir. 2013) (quoting C.E.R. 1988, 386 F.3d 263). By

removing virtually all limiting principles on when and

whether a property owner may sue for alleged lost

property value allegedly caused by enforcement of

local flood management regulations, the Texas

Supreme Court condemned all Texas local

governments to an impossible choice: water-down

their floodplain regulations, risk greater flood

damage and loss of life and/or flood insurance so they

will not be subject to thousands of fact-intensive

takings/damaged property claims or follow federal

regulations and risk ruinous litigation, financial

uncertainty, and potential insolvency.

When it faced exactly this choice in 2007, Houston

opted for weaker regulations. State law prevented it

from opting out of the NFIP altogether. See Tex.

Water Code § 16.3145. As one commentator who

studied carefully Houston’s experience, among others,

concluded: “Actual or threatened takings litigation by

regulated landowners can deter risk-adverse local

governments from enacting strict regulations. In

Houston, for example, when landowners filed

lawsuits claiming that 2006 floodplain regulations

constituted

regulatory

taking

requiring

compensation, the city withdrew its ordinance and

subsequently reissued a weaker version.” Christine A.

Klein, The National Flood Insurance Program at

Fifty: How the Fifth Amendment Takings Doctrine

Skews Federal Flood Policy, 31 Geo. Envtl. L. Rev.

285, 312 & n.155 (2019); J. Peter Byrne, A Fixed Rule

for a Changing World: The Legacy of Lucas v. South

Carolina Coastal Council, 53 Real Prop., Tr. & Est. L.

J. 1, 22 (Sept. 11, 2018) (regulators’ fears of costly

litigation, takings liability, and political discord

prevent regulation).

The Texas Supreme Court has placed Houston and all

Texas local governments in a worse situation here.

Using hard-earned data from Hurricane Harvey,

Houston amended its flood management regulations

to anticipate changes in the FEMA-issued 2007

floodplain maps [the last revision] that were expected

years ago but may not be issued until 2026.

FEMA/NFIP

regulations

encourage

local

governments to make such changes as soon as

possible and thus provide that such changes “take

precedence” over then-existing FEMA maps. 44

C.F.R. § 60.1(d).

In this case, the Commons seeks to comply only with

Houston’s 2007 flood management regulations.

Allowing a multi-million dollar takings/damaged

property claim for the alleged diminution in value of

Respondent’s property because Houston followed

federal regulations would undermine those

regulations and strongly encourage Houston to ease

its regulations to pre-Harvey levels, thereby

increasing flood losses and injuries and the federal

government’s cost of the next flood disaster. The factspecific nature of Penn Central analysis means that

local governments can have no reasonable estimate of

their potential liability, both for litigation costs and

potential compensation, at the time they pass local

flood management regulations. 20 That uncertainty

will have a chilling effect on these governments’

willingness to enact the “adequate” floodplain

regulation essential both to comply with existing

FEMA requirements and to protect the public by

imposing the more stringent requirements FEMA

encourages. See 44 C.F.R. § 60.1(d). If Houston

henceforth relies on only the 2007 FEMA/NFIP

requirements and not its 2018, post-Harvey

standards, the financial burden on the federal

government in having to restore less-flood-resilient

structures would grow and remain high for the life of

the less-flood-resilient buildings. If Houston had

somehow opted out of the NFIP, 21 the federal goal of

universal flood insurance coverage and increased

resilience would be thwarted. By contrast, if Houston

stuck with its 2018 standards, and followed strictly

federal regulations, it would subject itself to the

20 That calculation is made more difficult by the penalties federal

regulations place on local governments suspended from the

NFIP. The 1973 NFIA amendments prohibited individuals in

non-participating communities from receiving direct federal

grants or loans for building in flood-prone areas and federallyregulated private lenders from financing construction and

acquisitions in flood-prone areas in participating communities

unless the property was covered by flood insurance. See Tex.

Landowners Rights Ass’n v. Harris, 453 F. Supp. 1025, 1027-28

(D.C.Cir.1978); 42 U.S.C. §§ 4016(a); 4012(b). Consequently, the

fact that participation in the program is ostensibly “voluntary,”

but not in Texas, does not mean that local governments will not

suffer severe consequences if they fail to participate in the NFIP.

Indeed, the diminished value of property because of the loss of

flood insurance was the alleged “taking” in Texas Landowners.

21 A defendants is not required to opt out of an activity to avoid

preemption. See Mut. Pharm. Co., Inc. v. Bartlett, 570 U.S. 472,

488 (2013).

virtually-unlimited, financially-ruinous litigation the

Texas Supreme Court has authorized. 22

Finally, intentionally-weakened flood management

regulations stand as an obstacle to the NFIP’s

achieving “[a] unified national program for flood plain

management…” 42 U.S.C.A. § 4001(c).

When faced with other claims that similarly placed an

increased burden on the NFIP and federal finances,

courts around the country have not hesitated to find

such claims preempted by the National Flood

Insurance Act (“NFIA”) and its progeny, and FEMA

regulations. In C.E.R. 1988, Inc. v. Aetna Cas. and

Sur. Co., 386 F.3d 263 (3d Cir. 2004), the panel held

that the insured’s tort claims based on the insurer’s

administration of a federal flood policy were

preempted by the NFIA because the application of

state tort law would impede Congress’ objectives in

enacting it.

In Columbia Venture, LLC v. Dewberry & Davis, LLC,

604 F.3d 824, 831 (4th Cir. 2010), the court held that

state law causes of action against FEMA’s

independent contractors undermine the primary

purposes of the NFIA “to strike a balance between

protecting property owners’ right to appeal flood

elevation determinations and the government’s

interest in minimizing the costs inherent in updating

22 The fact that the Texas Supreme Court cited pre-Adolph cases

apparently to demonstrate courts’ ability undertake Penn

Central analysis for cases involving floodplain regulations does

not demonstrate that the virtually-unlimited litigation it

authorized here would not harm cities.

flood maps in order to provide flood insurance.” See

Wright v. Allstate Ins. Co., 415 F.3d 384, 390 (5th Cir.

2005); Gibson v. Am. Bankers Ins. Co., 289 F.3d 943,

949 (6th Cir.2002); Spence v. Omaha Indem. Ins., 996

F.2d 793 (5th Cir.1993)). Texas local governments

face a similar Hobbesian choice now.

Local governments should not be forced to weaken

their local flood-management regulations in violation

of FEMA/NFIP regulations, risk suspension from the

NFIP and violations of the Water Code’s mandates

and increase significantly the financial burden on

federal taxpayers and the NFIP to avoid ruinous

litigation and potential insolvency.

Where, as here, Article I, Section 17, as applied to

takings/damaged property claims arising from

NFIP/FEMA-compliant local flood management

regulations enacted to qualify local property for flood

insurance, thus frustrates the purpose and/or stands

as an obstacle to laws creating and implementing the

NFIP and their full implementation and operation,

such claims are preempted by federal law.

III. THE TEXAS SUPREME COURT’S OPINION

CONFLICTS WITH TWO CIRCUIT OPINIONS ON

THE QUESTION PRESENTED

One of the primary grounds on which certiorari is

granted is because of a conflict between the decisions

of a state’s highest court and a circuit court. Here,

there are two such conflicts.

First, the Texas Supreme Court’s decision conflicts

with Columbia Venture, LLC v. Dewberry & Davis,

LLC, 604 F.3d 824, 831 (4th Cir. 2010). In that case,

the Court held that state law causes of action against

FEMA’s independent contractors “[u]ndermine the

primary purposes of the NFIA to strike a balance

between protecting property owners’ right to appeal

flood elevation determinations and the government’s

interest in minimizing the costs inherent in updating

flood maps in order to provide flood insurance.” Id.

The Fourth Circuit found that allowing such claims to

proceed would “[i]ncrease the financial burden on the

Treasury and hinder FEMA’s efforts to implement the

flood insurance program, thus destroying the balance

struck by Congress in promulgating the NFIA.” Id.

Likewise, Commons II conflicts with In C.E.R. 1988,

Inc. v. Aetna Cas. and Sur. Co., 386 F.3d 263 (3d Cir.

2004). In concluding that the application of state tort

law would impede Congress’ objectives in the NFIP,

the Court first recognized that “[t]he central purpose

of the Program is to reduce fiscal pressure on federal

flood relief efforts.” Id. (citations omitted). It then

held that state tort suits against NFIP insurance

companies “which are usually expensive, undermine

this goal.” Id. Because such claims would directly

burden the federal Treasury, the Court held such

claims preempted as an obstacle to the NFIP.

Although the facts vary, the same considerations

govern here. It would be inconsistent for this Court to

allow two circuit courts to hold that shifting the cost

of litigating claims against independent contractors

or insurance carriers to FEMA would increase its

financial burden and undermine its efforts to

implement the NFIP sufficient to preempt such

claims, while holding that a huge city like Houston

must intentionally weaken its city-wide flood

management ordinances to avoid costly litigation,

thereby increasing FEMA’s cost of recovery after

hurricanes and floods, but not pose an obstacle to the

NFIP. See also Atl. Coast Pipeline, LLC v. Nelson Co.

Bd. of Supervisors, 443 F. Supp. 3d 670, 683 (W.D. Va.

2020) (local floodplain ordinances stand “[a]s an

obstacle to [the Natural Gas Act] and, at least as

applied to the Atlantic Coast Pipeline, [are]

preempted”). To the extent each of the circuit courts

found that claims that would tend to increase the cost

to the federal government of the NFIP, but the Texas

Supreme Court found any reference to the NFIP in

this context irrelevant, the cases conflict.

In addition to these conflicts, numerous state and

federal courts have used different approaches to

address the central dilemma of whether takings

claims should lie against local governments for

enacting or enforcing local regulations intended to

comply with requirements for participation in the

NFIP. In one group of cases, the lead of which is

Adolph v. Federal Emergency Management Agency of

the U.S., 854 F.2d 732, 740 (5th Cir. 1988), courts

rejected facial Takings Clause challenges to land-use

regulations promulgated under the NFIP. Id. (citing

44 C.F.R. §§59.1, 60.3). 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., 737

(citing Texas Landowners, 453 F. Supp. at 1032–33)

(emphasis supplied). Accordingly, it held that

“[l]anguage in the local land-use regulations that

tracks the criteria of the NFIP does not, on its face,

effect a taking in violation of the fifth and fourteenth

amendments.” Id., 740.

Up until recently, it was arguable that Adolph applied

to “as applied” challenges like the Commons’ here. In

DM Arbor Court, Ltd. v. City of Houston, Tex., No. 2320385, 2025 WL 2314650, at *6 (5th Cir. Aug. 12,

2025), however, the Court recently held that it did not

even though that court focused on Lucas takings to

which it held Adolph also did not apply. That,

however, only leaves the issue of what happens to “as

applied” claims for resolution by this Court. This

Court could moot the question of whether local flood

management regulations intended to comply with

FEMA/NFIA regulations cannot constitute a taking

as a matter of law under the U.S. Constitution by

holding that such state law claims are preempted.

CONCLUSION

For these reasons, Respondent, the City of Houston,

respectfully requests this Court grant and issue a writ

of certiorari, set the case for briefing and oral

argument, and, ultimately, reverse the decision of the

Texas Supreme Court to hold that Respondent’s

claims are preempted.

Respectfully submitted,

By:

/s/ Collyn A. Peddie

Collyn A. Peddie

City Solicitor General

CITY OF HOUSTON LEGAL

DEPARTMENT

900 Bagby Street, 4th Floor

Houston, Texas 77002

832.393.6463 (telephone)

collyn.peddie@houstontx.gov

Attorney for Petitioner,

The City of Houston

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