Subject: IN THE SUPREME COURT OF TEXAS
From: <Saved by Windows Internet Explorer 7>
Date: Sat, 24 Mar 2007 14:11:30 -0500

IN THE SUPREME COURT OF TEXAS

════════════

No. 02-1176

════════════

Hallco Texas, Inc.,
Petitioner,

v.

McMullen County, respondent

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Fourth District of
Texas

════════════════════════════════════════════════════

Argued January 4,
2005

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

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

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

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

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

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

I

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

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

The County
opposed Hallco’s plans from the start. Eleven days after Hallco acquired the
property, the commissioners court adopted a resolution opposing the proposed
landfill, expressing concern that it might contaminate the reservoir, the Frio
River, the nearby Nueces River, and groundwater, jeopardize residents,
livestock, vegetation, and soil, and stink.[12] The County also intervened in the
Commission proceeding along with Corpus Christi and others to oppose Hallco’s
permit application. But not until June 1993, after the application had been
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
within three miles of the reservoir.[14] Although the County had no technical
or scientific studies to support the restriction, the ordinance recited that

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

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

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

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

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

[Hallco] offers absolutely no authority for the proposition
that futility is an excuse to the requirement of finality. Even if there were a
futility exception, at least one application for variance would be required to
establish futility. Contrary to [Hallco’s] assertion, the fact that the
ordinance does not contain a provision for reviewing how the ordinance will be
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
the ordinance, if Hallco presents sufficient justification. Therefore,
[Hallco’s] argument has no merit.

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

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

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

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

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

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

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

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

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

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

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

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

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

II

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

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

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

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

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

* * * *

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

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

Contrary to [Hallco’s] assertion, the fact that the ordinance
does not contain a provision for reviewing how the ordinance will be 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 the ordinance,
if Hallco presents sufficient justification. Therefore, [Hallco’s] argument has
no merit.

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

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

Hallco claims
in this case that the County’s ordinance effects a taking as applied, not
of any and all property proposed to be used as a landfill within three
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’s
revised final draft permit. Just as a zoning authority might adjust generally
applicable front- or side-yard requirements, or height or size restrictions, or
other regulations affecting construction on property, depending on particular
circumstances, a county’s determination of whether a landfill can be operated in
an area may depend on the details of the operation.

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

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

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

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

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

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

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

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

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

III

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

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

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

The Supreme Court has restated these factors simply
as:

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

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

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

We have said that while

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

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

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

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

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

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

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

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

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

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

* * *

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

Nathan L. Hecht

Justice

Opinion
delivered: December 29, 2006

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SECTION
1.           GENERAL
PROVISIONS

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

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

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

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

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

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

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

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

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

SECTION
2.           CIVIL REMEDIES
AND PENALTIES

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

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

SECTION
3.           CRIMINAL
PENALTY

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

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

SECTION
4.
SEVERABILITY

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

SECTION
5.           EFFECTIVE
DATE

This ordinance shall become effective immediately upon
adoption.

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

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

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

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

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

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

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

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

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

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

[18] Tex.
Const. art. I, § 17 (“No person’s property shall be taken, damaged
or destroyed for or applied to public use without adequate compensation being
made . . . .”).

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

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

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

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

[23] Tex. Gov’t
Code § 2007.001-.045.

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

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

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

[27] Id. at 738.

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

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

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

[31] Palazzolo v. Rhode Island, 533 U.S. 606, 620-621
(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,
628 (Tex. 1992).

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

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

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

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

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

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

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

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

[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
Des Moines, 239 U.S. 486, 491-492 (1916) (“So far as the Federal
Constitution is concerned, we have no doubt the State may by itself or through
authorized municipalities declare the emission of dense smoke in cities or
populous neighborhoods a nuisance and subject to restraint as such
. . . .”).

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

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

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

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

[49] Id. at 679.

[50] Tex. Gov’t
Code § 2007.001-.045.