IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 02-1176

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Hallco Texas, Inc., = Petitioner,

McMullen County, = respondent

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On Petition for Review from = the

Court of Appeals for the Fourth = District of=20 Texas

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Argued January 4,=20 2005

Justice Hecht, joined by = Justice Medina and Justice Willett, = dissenting.

A=20 regulatory-takings claim may challenge a land-use restriction on its = face or as=20 applied to particular property.[1] A facial challenge is ripe = when the=20 restriction is imposed,[2] but an as-applied claim is = not ripe=20 until the regulatory authority has made a final decision regarding the=20 application of the regulation to the property.[3] =93A =91final decision=92 = usually requires=20 . . . the denial of a variance from the controlling = regulations=94=20 unless a request for variance would be futile.[4]

This case=20 illustrates how the government can use this ripeness requirement to = whipsaw a=20 landowner. The government can argue either that there was no request for = a=20 variance when there should have been, or that the request was not = specific=20 enough, or that it was not reasonable enough, or that there was = insufficient=20 time to consider it =97 and therefore the landowner=92s = regulatory-takings claim is=20 premature, unripe, and should be dismissed. Or else it can argue that a = request=20 for a variance would be a waste of time, or that none was authorized, or = that=20 the landowner should have known his ridiculous proposal would never be = seriously=20 considered =97 and therefore his claim is late, barred, and should be = dismissed.=20 One way or the other, the result is the same. Ripening a = regulatory-takings=20 claim thus becomes a costly game of =93Mother, May I=94, in which the = landowner is=20 allowed to take only small steps forwards and backwards until = exhausted.

When Hallco=20 Texas, Inc. first sued McMullen County, alleging that an ordinance aimed = at=20 stopping Hallco from using its property as a nonhazardous industrial = waste=20 landfill effected a compensable taking, the County argued that it = =93ha[d] the=20 authority to grant a variance, or even to rescind the ordinance, if = Hallco=20 present[ed] sufficient justification=94, and therefore, Hallco=92s = action was not=20 ripe because it =93ha[d] not obtained a final decision from the = County=94. This=20 embarrassing fact is buried in a footnote to the Court=92s opinion[5] and never discussed. After = Hallco=20 lost, it submitted a lengthy and detailed request for a variance, which = the=20 County summarily denied. Now in this, Hallco=92s second state-court suit = against=20 the County on its regulatory-takings claim (it has also sued three times = in=20 federal court), the County argues that the prior action was ripe after = all and=20 bars this one because requesting a variance was futile. The Court agrees = and=20 holds that Hallco should not have =93another bite at the apple=94,[6] as if being forced to bob = for apples=20 is the same as ever getting a bite.

The = Court=20 wants Hallco to know that =93[w]e are sympathetic=94.[7] But it adds: =93McMullen = County=20 unquestionably had the power to regulate land use, especially around a = water=20 supply like Choke Canyon Reservoir, and in the abstract, its doing so = would=20 hardly ever give rise to takings liability.=94 [8] Poor Hallco. It should have = known=20 better than to take the County at its word because it could =93hardly = ever=94 win=20 anyway, even if it was successful in obtaining a permit to operate a = landfill,=20 even if the County deprived Hallco of the lawful use and economic = benefit of its=20 property. After spending millions of dollars over twelve years, Hallco, = I rather=20 imagine, would prefer justice to sympathy.

I = would take=20 the County at its word and remand the case for proceedings on the = merits, if=20 Hallco can endure yet another round of litigation. Accordingly, I = respectfully=20 dissent.

In = January=20 1991, Hallco bought 128 acres of raw land in rural McMullen County = (1,142 sq.=20 mi., 1990 pop. 817), a little under two miles from Choke Canyon = Reservoir, a=20 26,000-acre lake on the Frio River halfway between San Antonio and = Corpus=20 Christi. The lake supplies water to Corpus Christi and others and = provides a=20 setting for recreational activities. The only community in the vicinity = of=20 Hallco=92s property is Calliham, some two-and-one-half miles away, which = had about=20 50 residents. Otherwise, the area is mostly pasture.

Hallco bought=20 the property for use as a Class I nonhazardous industrial waste = landfill.[9] No local land-use = regulations=20 restricted solid waste disposal on the property Hallco acquired. Since = 1971,=20 Texas counties have been authorized to prohibit by ordinance the = disposal of=20 solid waste in specific areas where it is a threat to public health, = safety, and=20 welfare,[10] but McMullen County had = never had=20 such an ordinance. All Hallco needed to operate a landfill was a state = permit=20 from what was then the Texas Water Commission (later the Texas Natural = Resource=20 Conservation Commission, and now the Texas Commission on Environmental = Quality,=20 all referred to simply as =93the Commission=94).[11] Hallco applied for the = permit in July=20 1992.

The = County=20 opposed Hallco=92s plans from the start. Eleven days after Hallco = acquired the=20 property, the commissioners court adopted a resolution opposing the = proposed=20 landfill, expressing concern that it might contaminate the reservoir, = the Frio=20 River, the nearby Nueces River, and groundwater, jeopardize residents,=20 livestock, vegetation, and soil, and stink.[12] The County also intervened = in the=20 Commission proceeding along with Corpus Christi and others to oppose = Hallco=92s=20 permit application. But not until June 1993, after the application had = been=20 pending nearly a year and Hallco had spent some $800,000 on the proposed = landfill and permit process, did the commissioners court adopt an = ordinance[13] prohibiting solid waste = disposal=20 within three miles of the reservoir.[14] Although the County had no = technical=20 or scientific studies to support the restriction, the ordinance recited = that

the soil in the area of the lake is porous and = subsurface=20 materials tend to be unstable and volatile; . . . the disposal = of=20 solid waste within three (3) miles of Choke Canyon Lake would constitute = a=20 threat to the public health, safety and welfare; and . . . the = present=20 technology available with regard to the installation, operation and = maintenance=20 of solid waste disposal sites is insufficient to prevent contamination = of=20 adjacent areas . . . .[15]

Despite this=20 ordinance and opposition by the County and others, the Commission did = not=20 determine that Hallco=92s operation of a landfill would be harmful to = the public=20 and instead issued a 78-page revised final draft permit in February = 1995,=20 detailing the specifications for a landfill operation as recommended by = the=20 Commission staff.

Two = weeks=20 later, Hallco sued the County in the United States District Court for = the=20 Southern District of Texas,[16] alleging in part that the = County=92s=20 ordinance was a regulatory-taking requiring compensation under the Fifth = Amendment to the United States Constitution.[17] Around the same time, = Hallco also=20 filed its regulatory-taking claim in state court, asserting violations = of both=20 the Fifth Amendment and article I, section 17 of the Texas = Constitution.[18] The County immediately = moved to=20 dismiss the federal-court action, asserting that it was not ripe for two = reasons: Hallco had not obtained a final decision from the county = regarding the=20 application of the ordinance =97 in effect, a variance =97 and Hallco = had not fully=20 pursued relief in state court. Both were prerequisites to suit in = federal court=20 under the United States Supreme Court=92s decision in Williamson = County=20 Regional Planning Commission v. Hamilton Bank.[19] Hallco responded that it = should be=20 excused from requesting a variance since the ordinance did not provide = for one=20 and any request would be futile. In reply, the County insisted that a = variance=20 was possible and that, in any event, state proceedings had to be = exhausted:

[T]he Supreme Court [in Williamson] has held = that=20 regulatory takings claims, such as the one presented in this case, are = not ripe=20 for federal adjudication unless the Plaintiff: 1) obtains a final = decision from=20 the regulatory entity (here, the County) regarding the application of = the=20 ordinance or regulation . . . to his property; and 2) seeks = just=20 compensation through available state procedures.

. . . Hallco does not dispute that it has = satisfied=20 neither prong of Williamson: it has not obtained a final decision = from=20 the County and it has not sought redress through available state = procedures.=20 Instead, Plaintiff argues only that it would be futile to approach the = county=20 for a final decision on the application of the ordinance to its=20 property.

[Hallco] offers absolutely no authority for the = proposition=20 that futility is an excuse to the requirement of finality. Even if there = were a=20 futility exception, at least one application for variance would be = required to=20 establish futility. Contrary to [Hallco=92s] assertion, the fact that = the=20 ordinance does not contain a provision for reviewing how the ordinance = will be=20 applied to particular property does not establish that it is futile; the = Commissioners Court has the authority to grant a variance, or even to = rescind=20 the ordinance, if Hallco presents sufficient justification. Therefore,=20 [Hallco=92s] argument has no merit.

Moreover, [Hallco] wholly fails to address the = consequences of=20 its failure to seek redress through available state court procedures. = The=20 Williamson case itself makes it abundantly clear that state = remedies must=20 be sought in state court prior to bringing a federal takings = claim.

Without=20 deciding whether Hallco had satisfied Williamson = County=92s first=20 requirement, the district court dismissed the case in August 1995 for = failure to=20 satisfy the second:

It is arguable whether Hallco meets the first = condition.=20 Apparently, it has neither submitted a plan to the County nor sought a = variance=20 or waiver from the Commissioners Court. Hallco argues that the ordinance = constitutes a final decision because, unlike the regulation in = Williamson=20 County, this ordinance does not expressly provide any means for = obtaining=20 variances from its provisions. . . . The Court will not dwell = on this=20 argument since Hallco has not met the second ripeness = condition.

=93[B]efore a takings claim is ripe, the claimant = must=20 unsuccessfully seek compensation. Short of that, it must be certain that = the=20 state would deny that claimant compensation were he to undertake = the=20 obviously futile act of seeking it.=94 Samaad v. City of Dallas, = 940 F.2d=20 [925, 934 (5th Cir. 1991)] (emphasis in=20 original). Under Article I, =A7 17 of the Texas Constitution, property = owners=20 claiming an uncompensated taking may seek compensation through an = inverse=20 condemnation suit. See Westgate Ltd. v. State, 843 S.W.2d = 448, 452=20 (Tex. 1992). Hallco makes no claim to have sought just compensation; = therefore,=20 its takings claim is premature.[20]

The = parties=20 then turned to the state-court action, referred to as = Hallco I.=20 Though Hallco still had not requested a variance from the County, the = state=20 court, like the federal court, did not determine whether such a request = was a=20 prerequisite to Hallco=92s action. Instead, the trial court in May 1996 = granted=20 summary judgment for the County in part on the ground that prohibiting = Hallco=92s=20 proposed landfill operation did not constitute a taking of its property=20 requiring compensation under the state and federal constitutions. In = April 1997,=20 the court of appeals affirmed, reasoning as follows:

We find that Hallco=92s takings claim must fail = because he did=20 not have a cognizable property interest of which the government action = could=20 deprive him.

Hallco=92s takings claim is grounded in the idea = that it has a=20 constitutionally protected property interest or entitlement to use its = property=20 for waste disposal, and that the McMullen County ordinance deprived him = of that=20 right or entitlement. However, Hallco has never had the right to dispose = of=20 industrial waste on its property, and does not now have a right to = dispose of=20 such waste. . . .

In Texas, the Legislature has defined when property = owners may=20 dispose of solid waste on their = property via=20 the permitting process; Tex. = Health=20 & Safety Code Ann. =A7 361.061‑.345 (Vernon 1992 & = Supp. 1997).=20 Even if Hallco already had a permit, by definition it would not have a = property=20 interest in disposal of solid waste. TNRCC regulations define permits as = not=20 being a property interest or a vested right in the permittee. See = 30=20 Tex. Admin. Code=20 =A7 305.122(b) (West 1996).

The only way the McMullen County regulation affected = Hallco=20 was in denying it the right to operate a solid waste facility on the = proposed=20 site. A mere expectancy of future services which would render the land = more=20 valuable, in the absence of a contract, is not a vested property right = for=20 purposes of determining whether a taking has occurred. Estate of = Scott v.=20 Victoria County, 778 S.W.2d 585, 592 (Tex. App.=97Corpus Christi = 1989, no=20 writ). The McMullen County ordinance does not otherwise impact on use of = the=20 property. Because Hallco did not have a property interest in disposal of = solid=20 waste on its property, we hold that the ordinance in question did not = constitute=20 a taking as a matter of law.[21]

The court of=20 appeals did not discuss whether the case was ripe given that Hallco had = not=20 requested a variance. Hallco did not appeal further.

The = Commission never approved Hallco=92s permit, but its application = remained=20 pending.[22] In August 1999, about two = years after=20 the judgment in Hallco I was final on appeal, Hallco = requested a=20 variance from the ordinance. The lengthy request included the revised = final=20 draft permit issued by the Commission and a valuation of the property, = both of=20 which were obtained after the County enacted its ordinance. The = valuation showed=20 that the property was worth $5.2 million if operated as a landfill but = only=20 $58,300 otherwise, and that a landfill business operated on the property = would=20 be worth $15,870,000. The County heard Hallco=92s presentation of its = request but=20 took no further action.

In = December=20 1999, Hallco filed this action, referred to as Hallco II, against = the=20 County, again asserting a regulatory taking of its property. Besides its = constitutional claims, Hallco also sued under the Texas Private Real = Property=20 Rights Preservation Act.[23] Concerned that the state = action might=20 not prevent the running of limitations on a federal action, Hallco also = filed=20 the same action in federal court.[24] The federal court rejected = Hallco=92s=20 concerns and dismissed the action.[25] The County moved for = summary judgment=20 in the state proceeding, arguing that Hallco had not suffered a = compensable=20 taking of its property. The County did not argue that it lacked = authority to=20 grant a variance or reconsider Hallco=92s proposal; the County argued = only that=20 Hallco had not made a case for a variance or reconsideration. The County = also=20 argued that this action is barred by Hallco I and by limitations = and=20 laches. The trial court granted summary judgment for the County without=20 specifying the grounds.

The = court of=20 appeals =93reaffirm[ed]=94 its holding in Hallco I that = =93because Hallco did=20 not have a property interest in the disposal of solid waste on its = property, the=20 ordinance did not constitute a taking as a matter of law.=94[26] The court added that = without a state=20 permit for a landfill, =93Hallco did not have a distinct = investment-backed=20 expectation that it could use the property for solid waste disposal, and = use of=20 the property for solid waste disposal was neither an existing nor a = permitted=20 use.=94 [27] The court did not mention = Hallco=92s=20 statutory claim.

The ripeness=20 requirement for regulatory-takings claims stems from the root of such = claims,=20 first stated by Justice Holmes:

while property may be regulated to a certain extent, = if=20 regulation goes too far it will be recognized as a taking. = . . .=20 [T]his is a question of degree =97 and therefore cannot be disposed of = by general=20 propositions. . . . [T]he question at bottom is upon whom the = loss of=20 the changes desired should fall.[28]

=93It follows=20 from the nature of a regulatory takings claim,=94 the United States = Supreme Court=20 has since observed, =93that an essential prerequisite to its assertion = is a final=20 and authoritative determination of the type and intensity of development = legally=20 permitted on the subject property. A court cannot determine whether a = regulation=20 has gone =91too far=92 unless it knows how far the regulation goes.=94 [29]

Thus, as we=20 noted above, the Supreme Court held in Williamson County that = =93a claim=20 that the application of government regulations effects a taking of a = property=20 interest [under the Fifth Amendment] is not ripe until the government = entity=20 charged with implementing the regulations has reached a final decision = regarding=20 the application of the regulations to the property at issue.=94[30] More recently, the Supreme = Court has=20 explained:

Williamson=20 County=92s final decision = requirement =93responds=20 to the high degree of discretion characteristically possessed by = land-use boards=20 in softening the strictures of the general regulations they = administer.=94=20 Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 738 [] = (1997).=20 While a landowner must give a land-use authority an opportunity to = exercise its=20 discretion, once it becomes clear that the agency lacks the discretion = to permit=20 any development, or the permissible uses of the property are known to a=20 reasonable degree of certainty, a takings claim is likely to have=20 ripened.

* * * *

[A] landowner may not establish a taking before a = land-use=20 authority has the opportunity, using its own reasonable procedures, to = decide=20 and explain the reach of a challenged regulation. Under our ripeness = rules a=20 takings claim based on a law or regulation which is alleged to go too = far in=20 burdening property depends upon the landowner=92s first having followed = reasonable=20 and necessary steps to allow regulatory agencies to exercise their full=20 discretion in considering development plans for the property, including = the=20 opportunity to grant any variances or waivers allowed by law. As a = general rule,=20 until these ordinary processes have been followed the extent of the = restriction=20 on property is not known and a regulatory taking has not yet been = established.=20 See Suitum, supra, at 736, and n. 10 (noting difficulty of = demonstrating=20 that =93mere enactment=94 of regulations restricting land use effects a = taking).=20 Government authorities, of course, may not burden property by imposition = of=20 repetitive or unfair land-use procedures in order to avoid a final = decision.=20 . . .[31]

This Court=20 has said that =93[a] =91final decision=92 usually requires = . . . the denial=20 of a variance from the controlling regulations=94 unless a request for = variance=20 would be futile.[32] Futility was the reason = Hallco gave=20 the federal court in its first action for not having requested a = variance from=20 the ordinance. The ordinance was crystal clear, Hallco argued, and = applied=20 specifically to its property, and there were no procedures for granting = a=20 variance. The County responded:

Contrary to [Hallco=92s] assertion, the fact that = the ordinance=20 does not contain a provision for reviewing how the ordinance will be = applied to=20 particular property does not establish that it is futile; the = Commissioners=20 Court has the authority to grant a variance, or even to rescind the = ordinance,=20 if Hallco presents sufficient justification. Therefore, [Hallco=92s] = argument has=20 no merit.

The County now=20 insists that Hallco=92s request for a variance should not have the = effect of=20 reviving its claim.

But = ripening=20 is not reviving. In a regulatory-takings case, the dispute must be = sufficiently=20 focused for the court to determine exactly how far a general land-use=20 restriction extends in specific circumstances. General restrictions = almost=20 always have exceptions. The final-decision requirement allows regulators = full=20 discretion in adjusting restrictions to particular property before a=20 constitutional obligation to compensate a landowner can be triggered. = The County=20 enacted its ordinance out of a concern, expressly stated, that = =93present=20 technology available with regard to the installation, operation and = maintenance=20 of solid waste disposal sites is insufficient to prevent contamination = of=20 adjacent areas=94 (emphasis added). That was 20 months before the = Commission=20 issued Hallco a 78-page revised final draft permit with detailed = specifications=20 for the safe operation of the proposed landfill, and six years before = Hallco=20 requested a variance. It was certainly not unreasonable to expect that = the=20 County might be willing to reconsider the appropriateness of a = three-mile zone=20 if a landfill were required to be operated as set out in Hallco=92s = revised final=20 draft permit, or as a result of changes in technology, or simply after = taking=20 another look at the situation. At least the County has always professed = in court=20 its willingness to do so, until now, and here we should take it at its = word.

Hallco claims=20 in this case that the County=92s ordinance effects a taking as = applied, not=20 of any and all property proposed to be used as a landfill within = three=20 miles of Choke Canyon Lake, but only of property on which the prohibited = operation is one that is subject to specifications like those in = Hallco=92s=20 revised final draft permit. Just as a zoning authority might adjust = generally=20 applicable front- or side-yard requirements, or height or size = restrictions, or=20 other regulations affecting construction on property, depending on = particular=20 circumstances, a county=92s determination of whether a landfill can be = operated in=20 an area may depend on the details of the operation.

Despite the=20 County=92s assurances in federal court that it could and would consider = Hallco=92s=20 request for a variance, or for that matter, to repeal the ordinance = altogether,=20 it now protests that no procedure is prescribed for any such request to = be made.=20 Perhaps the County did not previously consider the absence of such = procedure an=20 inhibition to a request for a variance because it knew that general = procedures=20 permitted the request. As we have said,

the term =93variance=94 is =93not definitive or = talismanic;=94 it=20 encompasses =93other types of permits or actions [that] are available = and could=20 provide similar relief.=94 The variance requirement is therefore applied = flexibly=20 in order to serve its purpose of giving the governmental unit an = opportunity to=20 =93grant different forms of relief or make policy decisions which might = abate the=20 alleged taking.=94 [33]

In = fact, the=20 County received the request and allowed Hallco to present it to the=20 commissioners court. In this way, the details of Hallco=92s proposed = operation as=20 specified in the revised final draft permit and an evaluation of the = economic=20 impact of the ordinance on Hallco were presented to the commissioners = court for=20 its consideration. The County cites nothing that affirmatively = prohibited it=20 from amending its ordinance in response to the request. Instead, it = insists that=20 Hallco provided no justification for reconsideration.

The = County=20 suggests, apparently in the alternative, that Hallco should have = requested a=20 variance sooner, but the County cites no deadline for such a request and = no=20 authority for the argument that Hallco should have acted more = diligently. A=20 landowner=92s decision to request a variance may involve many = considerations,=20 personal, economic, technical, and political. Timing may be critical. A=20 landowner who wishes to make a facial challenge to a regulation, as = Hallco did,=20 should not be forced to request a variance before he believes he is in = the best=20 position to do so, or risk losing the facial challenge to limitations or = the=20 as-applied challenge to res judicata.

The = County=20 argues that allowing a regulatory-takings claim after every denial of a = variance=20 gives a landowner multiple bites at the apple, threatening repetitious = and=20 harassing litigation. But a landowner who is denied a variance, sues, = loses,=20 requests another variance, is denied again, and sues again, can expect = the same=20 result if the facts have not changed. If the apple is wormy, it is not = clear why=20 someone would take multiple bites. The expense of litigation and the = possibility=20 of sanctions for groundless lawsuits are ample deterrents. And if the = facts have=20 changed, so that the regulation as finally applied effects a taking, = there is no=20 reason to deny the landowner the compensation promised by the = constitution.

The = County=20 adopted its ordinance without a scientific or technical basis for a zone = of=20 three miles as opposed to a shorter distance, and without a specific = proposal=20 for a landfill operation. In such circumstances it is especially = important that=20 there be an ample opportunity to consider a proposed land-use in detail = before=20 making a final decision that may result in a compensable taking. The = Court says=20 that the facts regarding Hallco=92s proposed landfill operation have not = changed=20 since Hallco I. Perhaps not, but Hallco did not request the = variance the=20 County said it would consider until after Hallco I was = concluded.

=93Res=20 judicata, or claims preclusion, prevents the relitigation of a claim or = cause of=20 action that has been finally adjudicated, as well as related matters = that, with=20 the use of diligence, should have been litigated in a prior suit.=94[34] Because the as-applied = claim Hallco=20 makes in the present case was not ripe while Hallco I was = pending, it was=20 not, and could not have been, adjudicated in that case, and thus it is = not=20 barred by res judicata.

The = County=20 also argues that this action is barred by collateral estoppel. = Collateral=20 estoppel bars a claim only if =93(1) the facts sought to be litigated in = the=20 second action were fully and fairly litigated in the first action; (2) = those=20 facts were essential to the judgment in the first action; and (3) the = parties=20 were cast as adversaries in the first action.=94 [35] The only fact specifically = determined=20 in Hallco I was that Hallco had no inherent right to operate a = landfill.=20 This fact is, of course, undisputed, and as I explain below, is not=20 determinative of whether a compensable taking occurred. None of the = issues on=20 which Hallco=92s claim depends =97 the economic impact of the ordinance = on Hallco,=20 the reasonableness of Hallco=92s investment-backed expectations, and = whether the=20 ordinance singled Hallco out instead of promoting a public interest =97 = was =93fully=20 and fairly litigated=94 in Hallco I. Even if the parties raised = these=20 issued in Hallco I, they were not =93essential to the = judgment=94, which was=20 based solely on the only issue specifically determined =97 that Hallco = had no=20 inherent right to operate a landfill. Moreover, the Court has held that = courts=20 should not strictly apply the elements of collateral estoppel when the = purposes=20 of the doctrine are disserved thereby.[36] Those purposes are = disserved when the=20 doctrine is used by the County to escape its representations to a = federal=20 judge.

The = County=20 further argues that this action is barred by limitations and laches. But = the=20 County does not argue that a regulatory-takings claim accrues for = limitations=20 purposes before it is ripe, and there is authority that it does not.[37] It is not entirely clear = what statute=20 of limitations applies to such claims,[38] but none is as short as = three months,=20 the time Hallco waited to file suit after the County refused to grant a=20 variance. Thus, the claim is not barred by limitations. =93Generally in = the=20 absence of some element of estoppel or such extraordinary circumstances = as would=20 render inequitable the enforcement of petitioners=92 right after a = delay, laches=20 will not bar a suit short of the period set forth in the limitation = statute.=94[39] No such circumstances are = present in=20 this case.

III

The = County=20 contends that it has established that its ordinance did not effect a = compensable=20 taking of Hallco=92s property. In Sheffield Development Co. v. City = of Glenn=20 Heights, we explained how a land-use regulation should be analyzed = to=20 determine whether it has effected a compensable taking:

[W]hether regulation has gone =93too far=94 and = become too much=20 like a physical taking for which the constitution requires compensation = requires=20 a careful analysis of how the regulation affects the balance between the = public=92s interest and that of private landowners. While each case must = therefore=20 turn on its facts, guiding considerations can be identified, as the = Supreme=20 Court first explained in Penn Central Transportation Co. v. City of = New=20 York:

In engaging in these essentially ad hoc, factual = inquiries,=20 the Court=92s decisions have identified several factors that have = particular=20 significance. The economic impact of the regulation on the claimant and, = particularly, the extent to which the regulation has interfered with = distinct=20 investment‑backed expectations are, of course, relevant = considerations. So, too,=20 is the character of the governmental action. A =93taking=94 may more = readily be=20 found when the interference with property can be characterized as a = physical=20 invasion by government, than when interference arises from some public = program=20 adjusting the benefits and burdens of economic life to promote the = common=20 good.

The Supreme Court has restated these factors simply=20 as:

(1) =93the economic impact of the regulation on the = claimant=94;=20 (2) =93the extent to which the regulation has interfered with distinct=20 investment‑backed expectations=94; and (3) =93the character of the = governmental=20 action.=94

Nevertheless, the Supreme Court has cautioned that = these=20 factors do not comprise a formulaic test. =93Penn Central does = not supply=20 mathematically precise variables, but instead provides important = guideposts that=20 lead to the ultimate determination whether just compensation is = required.=94 =93The=20 temptation to adopt what amount to per se rules in either = direction must=20 be resisted.=94

Thus, for example, the economic impact of a = regulation may=20 indicate a taking even if the landowner has not been deprived of all=20 economically beneficial use of his property. Nor are the three Penn=20 Central factors the only ones relevant in determining whether the = burden of=20 regulation ought =93in all fairness and justice=94 to be borne by the = public.=20 Whether a regulatory taking has occurred, the Supreme Court has said, = =93depend[s]=20 on a complex of factors including=94 the three set out in Penn = Central. The analysis =93necessarily requires a weighing of private = and public=20 interests=94 and a =93careful examination and weighing of all the = relevant=20 circumstances in this context.=94 As we have ourselves said of = regulatory-takings=20 issues, =93we consider all of the surrounding circumstances=94 in = applying =93a=20 fact‑sensitive test of reasonableness=94.

We have said that while

determining whether a property regulation is = unconstitutional=20 requires the consideration of a number of factual issues, the ultimate = question=20 of whether a zoning ordinance constitutes a compensable taking or = violates due=20 process or equal protection is a question of law, not a question of = fact. In=20 resolving this legal issue, we consider all of the surrounding = circumstances.=20 While we depend on the district court to resolve disputed facts = regarding the=20 extent of the governmental intrusion on the property, the ultimate = determination=20 of whether the facts are sufficient to constitute a taking is a question = of=20 law.[40]

The = court of=20 appeals did not engage in this analysis. In Hallco I, it held = simply that=20 the County=92s ordinance did not effect a taking of Hallco=92s property = because no=20 landowner has =93a property interest in disposal of solid waste on its=20 property=94.[41] The court simply = =93reaffirm[ed]=94 this=20 holding in Hallco II. But no landowner has an unrestricted right = to=20 any use of property. Businesses can be zoned out of residential=20 neighborhoods.[42] Home construction can be = limited in=20 size, height, and placement on the property.[43] Nuisances can be = prohibited.[44] Every landowner=92s right = to use his=20 property may be restricted by the government in the legitimate exercise = of its=20 police power and by the common law. These restrictions do not mean that=20 landowners have no property interest in the use of their land, and = stating that=20 a particular use is subject to permit requirements says nothing about = whether an=20 ordinance prohibiting a use with the requisite permit constitutes = a=20 compensable taking. A taking occurs when the government interferes too = far in a=20 landowner=92s use of property, regardless of the nature of the intended = use.

Nor is it determinative that Hallco had not yet = obtained a=20 permit for its proposed landfill. The government cannot deny a landowner = all=20 reasonable use of his property and refuse to compensate him for the = taking=20 simply because his proposed use of his property requires a permit he has = not yet=20 obtained. If the government could avoid its constitutional obligation by = denying=20 permits, there would be little left to the guarantee of = compensation.

A = requirement=20 that a permit be obtained before property can be used in a particular = way does=20 not preclude a landowner from having a reasonable, investment-backed = expectation=20 that he will succeed in obtaining the permit and pursue the intended = use,=20 contrary to the court of appeals=92 conclusion in Hallco II. To = be sure,=20 the uses to which a piece of property has been put historically are = important in=20 assessing the reasonableness of a purchaser=92s expectations,[45] but an expectation of a = particular=20 use of property is not unreasonable merely because it is new or subject = to a=20 permit requirement. Hallco appears to have anticipated correctly that = obtaining=20 a landfill permit was reasonably likely, since the Commission went so = far as to=20 issue a revised final draft permit. But the final permit never issued, = and the=20 reasons are not clear from the record before us. The record does not = establish=20 that Hallco=92s expectations of operating a landfill were reasonable, = but neither=20 does it establish that they were unreasonable.

Even if the=20 record were clearer on this point, and the reasonableness of Hallco=92s=20 investment-backed expectations could be better assessed, the issue of = whether=20 the County=92s ordinance constituted a compensable taking could not be = determined=20 without an assessment of other relevant factors. Again, whether a = land-use=20 regulation is an unreasonable restriction amounting to a compensable = taking=20 requires a careful analysis of all relevant factors and circumstances. A = formulaic approach cannot be used.

One = factor=20 that must be considered is the economic impact of the ordinance on the=20 landowner. Hallco offered evidence that its property was worth $5.2 = million as a=20 landfill but only $58,300 with the ordinance in place, and that its = proposed=20 landfill business would be worth nearly $16 million. However, Hallco = never=20 obtained a final permit to operate a landfill, so it is unclear what the = ultimate economic impact of the ordinance actually was. Also, the price = of=20 acquisition and the worth of the property put to other uses must be = considered.=20 And whatever the economic impact of the ordinance on Hallco, taking into = account=20 all pertinent information, economic impact is but one factor to be = considered in=20 determining whether there was a compensable taking.

Another=20 factor, and one especially troubling in this case, is whether the County = singled=20 out Hallco without substantially advancing legitimate public interests. = Although=20 the United States Supreme Court has made clear that this not =93a = stand‑alone=20 regulatory takings test that is wholly independent of Penn = Central or any=20 other test=94,[46] this Court concluded in = Sheffield=20 that it may be a consideration in an appropriate case.[47] The County insists that it = adopted=20 the ordinance to protect the health and safety of its residents, but the = record=20 contains little solid evidence to support that assertion. The County=92s = resolution in January 1991 recited problems that could result = from a=20 landfill operation, but the County does not claim to have had any = evidence that=20 they actually would. Rather, the County simply opposed Hallco=92s = proposed=20 use of its property. The operation of a landfill undeniably poses risks = to=20 surrounding areas, hence the requirement of a state permit. But the = question is=20 whether the County=92s ordinance was directed at the risks or at Hallco. = The=20 Commission=92s issuance of a revised final draft permit to Hallco over = the=20 objection of the County and others after two-and-one-half years of = proceedings=20 certainly suggests that the County=92s professed concerns lacked firm = footing. The=20 county judge conceded that when the ordinance was adopted in July 1993, = the=20 County had no scientific or technical information to support the = three-mile=20 restriction. The County has yet to point to evidence that a landfill = three miles=20 from Choke Canyon Lake was safe when one two miles or one mile from the = lake was=20 not. At this point, the conclusion is certainly reasonable that the = County=92s=20 decision was dictated, not by any evaluation of health or safety = concerns, but=20 by the fortuity that Hallco acquired property where it did.

The = timing of=20 the ordinance also suggests that it may have been directed at injuring = Hallco=20 rather than protecting the County. The County argues with some force = that it had=20 no reason to enact an ordinance prohibiting landfills near Choke Canyon = Lake=20 before Hallco purchased property and made its proposal in January 1991. = That was=20 the first time the issue had arisen. But the County offers no = explanation for=20 delaying adoption of an ordinance until July 1993. By that time, = according to=20 Hallco=92s evidence, it had spent two years and over $800,000 on = Commission=20 proceedings and the proposed landfill, and was on the verge of obtaining = a final=20 draft permit. Had the County enacted an ordinance when it first learned = of=20 Hallco=92s plans, Hallco might have deferred its application until it = had tested=20 the validity of the ordinance. Even if it had gone ahead, it would have = done so=20 knowing the obstacles it faced. A reasonable inference from the record = before us=20 is that the County delayed enactment of the ordinance merely to = disadvantage=20 Hallco in its proceedings before the Commission.

In=20 Sheffield, the evidence was =93quite strong=94 that the city had = attempted to=20 take unfair advantage of a developer by imposing a moratorium on = development in=20 specific response to the developer=92s plans, extending the moratorium = long after=20 any purpose had been served, and delaying action on the developer=92s = plans until=20 it could muster the votes for rezoning.[48] Although we found the = city=92s conduct=20 =93troubling=94, we concluded that the delay may only have been = lethargic, and that=20 in the end the city had completed a comprehensive rezoning that arguably = benefitted the entire community.[49] In the present case, by = contrast, the=20 evidence is stronger that the County=92s delay was ill-motivated, and = there is=20 almost no evidence whether the ordinance benefitted the County=92s = residents or=20 not.

Again,=20 however, the character of the ordinance and the manner in which it was = adopted=20 are but factors to be considered in determining whether there was a = compensable=20 taking of Hallco=92s property. Whether a regulatory taking has occurred = is, as we=20 have said, a question of law, but it must be answered after the relevant = facts=20 have been determined. Considering the evidence of the reasonableness of = Hallco=92s=20 investment-backed expectations, the economic impact of the ordinance, = and the=20 singling out of Hallco without a legitimate public purpose, I would hold = that=20 the County failed to establish its entitlement to judgment as a matter = of law.=20 Because Hallco=92s claim under the Texas Private Real Property Rights = Preservation=20 Act is based on its constitutional claims, the County was not entitled = to=20 summary judgment on the statutory claim.[50] It, too, should be remanded = to the=20 trial court for further proceedings.

* * *

Hallco is=20 entitled to a decision on the merits of its claims that the County=92s = ordinance=20 effected a compensable taking of its property. Because the Court = disagrees, I=20 respectfully dissent.

&n= bsp; &nb= sp; &nbs= p; = ; = &= nbsp; &n= bsp; =20

Nathan L. Hecht

Justice

Opinion=20 delivered: December 29, 2006

^[1] Keystone Bituminous Coal Ass=92n v. = DeBenedictis,=20 480 U.S. 470, 494 (1987) (recognizing =93an important distinction = between a claim=20 that the mere enactment of a statute constitutes a taking and a claim = that the=20 particular impact of government action on a specific piece of property = requires=20 the payment of just compensation=94); City of Corpus Christi v. Pub. = Utils.=20 Comm=92n of Texas, 51 S.W.3d 231, 247 (Tex. 2001) (describing a = takings claim=20 as =93an as‑applied constitutional challenge, rather than a facial = challenge=94).

^[2] Yee v. City of Escondido, 503 U.S. = 519, 533-534=20 (1992) (=93While respondent is correct that a claim that the ordinance = effects a=20 regulatory taking as applied to petitioners=92 property would be unripe = [because=20 petitioners did not seek an exception], petitioners mount a facial = challenge to=20 the ordinance. . . . As this allegation does not depend on the = extent=20 to which petitioners are deprived of the economic use of their = particular pieces=20 of property or the extent to which these particular petitioners are = compensated,=20 petitioners=92 facial challenge is ripe.=94 (citations omitted)); = Mayhew v. Town=20 of Sunnyvale, 964 S.W.2d 922, 930 (Tex. 1998) (=93[A] final decision = on the=20 application of the zoning ordinance to the plaintiff=92s property is not = required=20 if the plaintiff brings a facial challenge to the = ordinance.=94).

^[3] Williamson County Regional Planning = Comm=92n v.=20 Hamilton Bank, 473 U.S. 172, 186 (1985) (=93[A] claim that the = application of=20 government regulations effects a taking of a property interest is not = ripe until=20 the government entity charged with implementing the regulations has = reached a=20 final decision regarding the application of the regulations to the = property at=20 issue.=94); Mayhew, 964 S.W.2d at 929 (=93[I]n order for a = regulatory takings=20 claim to be ripe, there must be a final decision regarding the = application of=20 the regulations to the property at issue.=94).

^[4] Mayhew, 964 S.W.2d at = 929.

^[5] Ante at ___ n.4.

^[6] Ante at ___.

^[7] Ante at ___.

^[8] Ante at ___ (emphasis = added).

^[9] Tex. Health=20 & Safety Code =A7 361.003(2)-(3) (=93(2) =91Class I = industrial solid=20 waste=92 means an industrial solid waste or mixture of industrial solid = waste,=20 including hazardous industrial waste, that because of its concentration = or=20 physical or chemical characteristics: (A) is toxic, corrosive, = flammable, a=20 strong sensitizer or irritant, or a generator of sudden pressure by=20 decomposition, heat, or other means; and (B) poses or may pose a = substantial=20 present or potential danger to human health or the environment if = improperly=20 processed, stored, transported, or otherwise managed. (3) =91Class I = nonhazardous=20 industrial solid waste=92 means any Class I industrial solid waste that = has not=20 been identified or listed as a hazardous waste by the administrator of = the=20 United States Environmental Protection Agency under the federal Solid = Waste=20 Disposal Act, as amended by the Resource Conservation and Recovery Act = of 1976=20 (42 U.S.C. Section 6901 et seq.).=94); see also 40 C.F.R. = =A7 261.4(b)=20 (2006) (listing nonhazardous solid wastes).

^[10] County Solid Waste Disposal Act, 62nd Leg., = R.S., ch.=20 516, =A7 18, 1971 Tex. Gen. Laws 1757, 1762 (stating in part that a = county=20 =93may prohibit the disposal of any solid waste within the county if the = disposal=20 of the solid waste is a threat to the public health, safety, and = welfare=94)=20 (codified as amended at Tex. = Health=20 & Safety Code =A7 364.012).

^[11] See Tex.=20 Health & Safety Code =A7 361.061 (stating that with = exceptions not=20 material to the present case, the Texas Commission on Environmental = Quality =93may=20 require and issue permits authorizing and governing the construction, = operation,=20 and maintenance of the solid waste facilities used to store, process, or = dispose=20 of solid waste under this chapter=94); id. =A7 361.086(a) = (=93A separate=20 permit is required for each solid waste facility.=94); 30 Tex. Admin. Code = =A7 335.2=20 (2006).

^[12] McMullen County, Texas, Resolution No. = 1-16-91 (Jan.=20 14, 1991):

A RESOLUTION to=20 oppose the establishment of an industrial landfill at a site on the = Hallco=20 Texas, Inc. property, being that 128.192 acre tract of land, found upon = resurvey=20 to contain 128.214 acres of land in the James Garner Survey No. 6, = Abstract 5 of=20 McMullen County.

WHEREAS the=20 McMullen County Commissioner=92s Court has reviewed this proposal and = agreed=20 unanimously that the establishment of this project would present a = potential=20 hazard to the health and well being of the residents of McMullen County=20 and:

WHEREAS the=20 project could, in the event of a spill, leak, or accident, contaminate = the=20 waters of the Frio and Nueces River and the water supplies of downstream = users=20 of water from those rivers:

WHEREAS the=20 establishment of this project could in the event of a spill, leak or = accident,=20 pollute and contaminate the underground water sands that are the main = source of=20 drinking water for the rural residents of McMullen County livestock, and = the=20 Federal Correctional Institute, Three Rivers:

WHEREAS the the=20 project could, in the event of a spill, leak, or accident, contaminate = the=20 vegetarian, animal life, and soil adjacent to and on the watershed below = the=20 proposed site:

WHEREAS this=20 project could create an objectionable odor to neighboring residents of = McMullen=20 County.

NOW THEREFORE BE IT RESOLVED that the McMullen County Commissioner=92s = Court opposes=20 the establishment of an industrial landfill on the Hallco Texas, Inc. = property=20 located in the James garner Survey No. 6, Abstract 5 of McMullen=20 County.

Duly adopted at a meeting of the McMullen = County=20 Commissioner=92s Court this 14th day of January, 1991.

^[13] McMullen County, Texas, Ordinance No. = 01-06-93 (June=20 14, 1993):

AN ORDINANCE PROHIBITING SOLID WASTE DISPOSAL = WITHIN=20 THREE MILES OF CHOKE CANYON LAKE AND PROVIDING CIVIL AND CRIMINAL=20 PENALTIES

Be it ordained, ordered and adopted by the = commissioners=20 court of McMullen County, Texas:

SECTION=20 1. GENERAL=20 PROVISIONS

WHEREAS, the McMullen County Commissioners = Court has=20 both the responsibility and the authority to protect the health, safety, = and=20 welfare of the citizens of McMullen County, Texas; and

WHEREAS, a safe and abundant supply of = drinking water is=20 necessary to preserve and protect the health and welfare of the citizens = of=20 McMullen County, Texas; and

WHEREAS, the Choke Canyon Lake provides a = portion of the=20 drinking water for McMullen County as well as other counties and = municipalities;=20 and

WHEREAS, the soil in the area of the lake is = porous and=20 subsurface materials tend to be unstable and volatile;

WHEREAS, the disposal of solid waste within = three (3)=20 miles of Choke Canyon Lake would constitute a threat to the public = health,=20 safety and welfare; and

WHEREAS, the present technology available with = regard to=20 the installation, operation and maintenance of solid waste disposal = sites is=20 insufficient to prevent contamination of adjacent areas; and

WHEREAS, adequate waste disposal sites are = available in=20 portions of the county which are not in close proximity of the = lake;

(a) =20 IT IS THEREFORE ORDAINED AND ORDERED that the disposal of solid waste is = prohibited within three (3) miles of Choke Canyon Lake.

(b) =20 IT IS FURTHER ORDAINED AND ORDERED that the disposal of solid waste is = not=20 prohibited in any other area of the county, provided that any such site = complies=20 with all applicable state requirements.

SECTION=20 2. CIVIL = REMEDIES=20 AND PENALTIES

(a) =20 Any violation of this ordinance is subject to a civil penalty of = $10,000.00 for=20 each violation. Such penalty to be forfeited to McMullen County, Texas. = Each day=20 that a violation continues constitutes a separate ground for=20 recovery.

(b) =20 The commissioners court of McMullen County, Texas, may bring a legal = action to=20 enjoin violations of this ordinance and seek judgment for any civil=20 penalties.

SECTION=20 3. CRIMINAL=20 PENALTY

(a) =20 Disposal of solid waste in violation of this ordinance constitutes a=20 Class C misdemeanor punishable by a fine not to exceed = $500.00.

(b) =20 Each day that a violation continues constitutes a separate offense under = this=20 ordinance.

SECTION=20 4. =20 SEVERABILITY

If any portion of this ordinance is deemed to = be in=20 violation of the statutes or the constitution of this state or the = United States=20 by a court of competent jurisdiction, said portion shall be severed, and = the=20 remaining portions of the ordinance shall remain in full force and=20 effect.

SECTION=20 5. EFFECTIVE = DATE

This ordinance shall become effective = immediately upon=20 adoption.

Read and adopted this 14th = day of=20 June, 1993, by a vote of 5 ayes and = 0 =20 nays.

^[14] In 1999, the Legislature amended section = 364.012 of the=20 Health and Safety Code to add subsections (e) and (f) as = follows:

(e) =20 The commissioners court of a county may not prohibit the processing or = disposal=20 of municipal or industrial solid waste in an area of that county for=20 which:

(1) =20 an application for a permit or other authorization under Chapter 361 has = been=20 filed with and is pending before the commission; or

(2) =20 a permit or other authorization under Chapter 361 has been issued by the = commission.

(f) &nbs= p;=20 The commission may not grant an application for a permit to process or = dispose=20 of municipal or industrial solid waste in an area in which the = processing or=20 disposal of municipal or industrial solid waste is prohibited by an = ordinance,=20 unless the county violated Subsection (e) in passing the ordinance. The=20 commission by rule may specify the procedures for determining whether an = application is for the processing or disposal of municipal or industrial = solid=20 waste in an area for which that processing or disposal is prohibited by = an=20 ordinance.

Act of May 25, 1999, 76th Leg., R.S., ch. 570, = =A7 5,=20 sec. 364.012, 1999 Tex. Gen. Laws 3110, 3111. The amendment does not = apply to a=20 permit application filed before September 1, 1998, if on or before = September 1,=20 1999, a county had enacted an ordinance under section 364.012. = Id.=20 =A7 6, 1999 Tex. Gen. Laws at 3112. Thus, this amendment does not = apply in=20 this case.

^[15] McMullen County, Texas, Ordinance No. = 01-06-93 (June=20 14, 1993).

^[16] Hallco Texas, Inc v. McMullen County, = 934 F.=20 Supp. 238, 240 (S.D. Tex. 1996), aff=92d, 109 F.3d 768 (5th Cir. = 1997)=20 (table).

^[17] Id. at 240; see U.S. Const. amend. V (=93nor = shall=20 private property be taken for public use, without just=20 compensation=94).

^[18] Tex.=20 Const. art. I, =A7 17 (=93No person=92s property shall be = taken, damaged=20 or destroyed for or applied to public use without adequate compensation = being=20 made . . . .=94).

^[19] 473 U.S. 172, 185‑197 (1985); but = see San Remo=20 Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323, 348 = (2005)=20 (Rehnquist, C.J., concurring) (indicating the Court may need to = reconsider=20 Williamson County=92s requirement that a litigant pursue relief = in state=20 court first); Scott A. Keller, Note, Judicial Jurisdiction = Stripping=20 Masquerading as Ripeness: Eliminating the Williamson County State = Litigation=20 Requirement for Regulatory Takings Claims, 85 Tex. L. Rev. 199 (2006); J. = David=20 Breemer, You Can Check Out But You Can Never Leave: the Story of San = Remo=20 Hotel--the Supreme Court Relegates Federal Takings Claims to State = Courts under=20 a Rule Intended to Ripen the Claims for Federal Review, 33 B.C. Envtl. Aff. L. Rev. 247=20 (2006).

^[20] Hallco, 934 F. Supp. at = 240.

^[21] Hallco Texas, Inc. v. McMullen County, = No.=20 04‑96‑00681‑CV, 1997 Tex. App. LEXIS 2020, at *6-9, = 1997 WL 184719, at *3 (Tex.=20 App.=97San Antonio April 16, 1997, no writ) (not designated for = publication)=20 (=93Hallco I=94).

^[22] In 2003, the Legislature required the = Commission to=20 =93adopt rules governing all aspects of the management and operation of = a new=20 commercial landfill facility that proposes to accept nonhazardous = industrial=20 solid waste for which a permit has not been issued=94 and to =93suspend = the=20 permitting process for any pending application for [such] a permit=20 . . . until the rules adopted . . . take effect.=94 = Act of May=20 27, 2003, 78th Leg., R.S., ch. 1117, =A7=A7 1-2, 2003 Tex. Gen. = Laws 3207,=20 3207-3208. The Commission complied on March 19, 2004. 29 Tex. Reg. 2888 = (2004);=20 see also 30 Tex. Admin. = Code =A7=A7 335.580-.594.

^[23] Tex. Gov=92t=20 Code =A7 2007.001-.045.

^[24] At the time, case authority indicated that a = party=20 suing in state court to satisfy the Williamson exhaustion = requirement=20 could reserve federal claims for later litigation in federal court so = that the=20 state-court judgment would not bar the federal action. See = Guetersloh=20 v. State, 930 S.W.2d 284, 289-290 (Tex. App.=97Austin 1996, writ = denied),=20 cert. denied, 522 U.S. 1110 (1998) (citing England v. = Louisiana State=20 Bd. of Med. Exam=92rs, 375 U.S. 411, 415-416 (1964); Jennings v. = Caddo=20 Parish Sch. Bd., 531 F.2d 1331, 1332 (5th Cir. 1976); and Fields = v.=20 Sarasota Manatee Airport Auth., 953 F.2d 1299, 1305-1306 (11th Cir. = 1992)).=20 Since then, however, the United States Supreme Court has held that such = a=20 reservation does not avoid the preclusive effect of the state-court = judgment.=20 San Remo Hotel, L.P. v. City and County of San Francisco, 545 = U.S. 323,=20 338 (2005) (=93England does not support [the] erroneous = expectation that=20 [a] reservation would fully negate the preclusive effect of the = state-court=20 judgment with respect to any and all federal issues that might arise in = the=20 future federal litigation.=94).

^[25] Hallco Texas, Inc. v. McMullen = County,=20 No. L-00-14 (S.D. Tex. April 24, 2000) (order dismissing action = without=20 prejudice for want of jurisdiction).

^[26] Hallco II, 94 S.W.3d 735,=20 738-739.

^[27] Id. at 738.

^[28] Pennsylvania Coal Co. v. Mahon, 260 = U.S. 393,=20 415-416 (1922); accord Sheffield Dev. Co. v. City of Glenn=20 Heights, 140 S.W.3d 660, 670 (Tex. 2004) (footnotes=20 omitted).

^[29] MacDonald, Sommer & Frates v. County = of=20 Yolo, 477 U.S. 340, 348 (1986); accord Mayhew v. Town of=20 Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998).

^[30] Williamson County Regional Planning = Comm=92n v.=20 Hamilton Bank, 473 U.S. 172, 186 (1985); accord = Mayhew, 964=20 S.W.2d at 929 (=93[I]n order for a regulatory takings claim to be ripe, = there must=20 be a final decision regarding the application of the regulations to the = property=20 at issue.=94).

^[31] Palazzolo v. Rhode Island, 533 U.S. = 606, 620-621=20 (2001).

^[32] Mayhew, 964 S.W.2d at = 929.

^[33] Id. at 930 (citations = omitted).

^[34] Barr v. Resolution Trust Corp., 837 = S.W.2d 627,=20 628 (Tex. 1992).

^[35] John G. and Marie Stella Kenedy Mem. = Found. v.=20 Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002); Sysco Food Servs., Inc. = v.=20 Trapnell, 890 S.W.2d 796, 801 (Tex. 1994).

^[36] Sysco Food Servs., 890 S.W.2d at = 801-804=20 (holding that collateral estoppel would not be applied, even though all = three=20 factors were present, because application would not serve the = doctrine=92s=20 intended purposes =96 it would not conserve judicial resources, prevent = multiple=20 lawsuits, or avoid the possibility of inconsistent findings =96 and = fairness=20 concerns were especially important in light of the procedural uniqueness = of the=20 case) (citing Blonder-Tongue Labs., Inc. v. University of Illinois=20 Found., 402 U.S. 313, 328 (1971) (stating that preclusion doctrines = have the=20 =93goal of limiting relitigation of issues where that can be achieved = without=20 compromising fairness in particular cases=94)).

^[37] Biddison v. City of Chicago, 921 F.2d = 724,=20 728-729 (7th Cir. 1991) (=93several regulatory taking cases hold that a = taking=20 accrues at the same time that it ripens=94) (citing Norco Constr. v. = King=20 County, 801 F.2d 1143, 1146 (9th Cir. 1986); Corn v. City of = Lauderdale=20 Lakes, 904 F.2d 585, 588 (11th Cir. 1990); and McMillan v. Goleta = Water=20 Dist., 792 F.2d 1453, 1457 (9th Cir. 1986)).

^[38] Compare Maguire Oil Co. v. City of=20 Houston, 69 S.W.3d 350, 358 n.4 (Tex. App.=97Texarkana 2002, pet. = denied)=20 (=93There is no specific statute of limitations for an inverse = condemnation claim.=20 However, courts have held the ten‑year statute of limitations to = acquire land by=20 adverse possession applies. Trail Enters., Inc. v. City of = Houston, 957=20 S.W.2d 625, 631 (Tex. App.=97Houston [14th Dist.] 1997, pet. denied); = see=20 also Tex. Civ. Prac. & = Rem. Code=20 Ann. =A7 16.026(a) (Vernon Supp. 2002); Brazos River = Auth. v. City=20 of Graham, 163 Tex. 167, 354 S.W.2d 99, 110 (1961); Waddy v. City = of=20 Houston, 834 S.W.2d 97, 102 (Tex. App.=97Houston [1st Dist.] 1992, = writ=20 denied); Hudson v. Arkansas Louisiana Gas Co., 626 S.W.2d 561, = 563 (Tex.=20 App.=97Texarkana 1981, writ ref=92d n.r.e.); Hubler v. City of Corpus = Christi, 564 S.W.2d 816, 823 (Tex. Civ. App.=97Corpus Christi 1978, = writ ref=92d=20 n.r.e.).=94), with Tex. = Civ. Prac.=20 & Rem. Code =A7 16.003(a) (=93a person must bring suit = for trespass=20 for injury to the estate or to the property of another . . . = not later=20 than two years after the day the cause of action = accrues=94).

^[39] Barfield v. Howard M. Smith Co., 426 = S.W.2d 834,=20 840 (Tex. 1968) (citing K & G Oil Tool & Serv. Co. v. G & = G=20 Fishing Tool Serv., 314 S.W.2d 782 (Tex. 1958), and Culver v.=20 Pickens, 176 S.W.2d 167 (Tex. 1944)).

^[40] Sheffield Dev. Co. v. City of Glenn = Heights, 140=20 S.W.3d 660, 671-673 (Tex. 2004) (footnotes omitted).

^[41] Hallco I, 1997 Tex. App. LEXIS 2020, = at *8, 1997=20 WL 184719, at *3.

^[42] See, e.g., Village of Euclid v. = Amber Realty=20 Co., 272 U.S. 365, 390, 397 (1926) (upholding zoning regulations = creating=20 =93residential districts, from which business and trade of every sort, = including=20 hotels and apartment houses, are excluded=94); Lombardo v. City of = Dallas,=20 73 S.W.2d 475, 478 (Tex. 1934) (=93The right to establish zoning = districts is well=20 established throughout the United States, and has been approved by the = courts of=20 many jurisdictions.=94).

^[43] See, e.g., City of Dallas v. = Vanesko, 189 S.W.3d 768 (Tex. 2006).

^[44] See, e.g., Northwestern Laundry v. = City of=20 Des Moines, 239 U.S. 486, 491-492 (1916) (=93So far as the Federal=20 Constitution is concerned, we have no doubt the State may by itself or = through=20 authorized municipalities declare the emission of dense smoke in cities = or=20 populous neighborhoods a nuisance and subject to restraint as such=20 . . . .=94).

^[45] Mayhew v. Town of Sunnyvale, 964 = S.W.2d 922, 937=20 (Tex. 1998) (=93Historical uses of the property are critically important = when=20 determining the reasonable investment‑backed expectation of the=20 landowner.=94).

^[46] Lingle v. Chevron USA, Inc., 544 U.S. = 528, 540=20 (2005).

^[47] Sheffield, 140 S.W.3d 660, 674 (Tex. = 2004)=20 (=93Furthermore, apart from what the Supreme Court has said, we continue = to=20 believe for purposes of state constitutional law, as we held in = [Mayhew,=20 964 S.W.2d at 933-934], that the statement in Agins is correct: = that=20 whether regulation substantially advances legitimate state interests is = an=20 appropriate test for a constitutionally compensable taking, at least in = some=20 situations.=94).

^[48] Sheffield, 140 S.W.3d at=20 678-679.

^[49] Id. at 679.

^[50] Tex. Gov=92t=20 Code = =A7 2007.001-.045.