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 O=92Neill delivered = the opinion=20 of the Court as to Parts I, II, III.B, and V, joined by Chief Justice Jefferson, = Justice Wainwright, Justice Brister, and Justice Johnson, and an = opinion as to=20 Part III.A and IV, joined by Chief=20 Justice Jefferson, Justice=20 Brister, and Justice=20 Johnson.

Justice Hecht delivered a = dissenting=20 opinion, joined by Justice = Medina=20 and Justice = Willett.

Justice Green did not = participate in=20 the decision.

Hallco Texas,=20 Inc. contends McMullen County=92s denial of a variance from an ordinance = prohibiting the location of landfills within three miles of a = water-supply=20 reservoir effected an unconstitutional taking of property. We hold that = Hallco=92s=20 claim is barred and thus affirm the court of appeals=92 judgment.

I. Background

In = January=20 1991, Hallco bought 128 acres of land located about 1.75 miles from = Choke Canyon=20 Reservoir, sometimes referred to as Choke Canyon Lake, in McMullen = County. The=20 reservoir impounds water from the Frio River and supplies water to the = City of=20 Corpus Christi and a number of other communities in the region. Hallco = purchased=20 the property with the intent to operate a Class I nonhazardous = industrial waste=20 landfill, a use requiring a permit from the Texas Commission on = Environmental=20 Quality [1]. Class I industrial waste = may include=20 waste that, because of its concentration or physical or chemical=20 characteristics, =93is toxic, corrosive, flammable, a strong sensitizer = or=20 irritant, or a generator of sudden pressure by decomposition, heat, or = other=20 means,=94 and which may pose a potential danger to human health or the=20 environment. Tex. Health & = Safety=20 Code =A7 361.003(2)(A), (B); 30 Tex. Admin. Code = =A7335.1(18)(18). Class=20 I nonhazardous is distinct from Class I hazardous waste, but =93is = considered=20 potentially threatening to human health and the environment if not = properly=20 managed, because of the constituents and properties this class can = include,=94 and=20 thus requires special handling. Texas=20 Commission on Environmental Quality, Guidelines for the Classification = and=20 Coding of Industrial and Hazardous Wastes 2 (2005), available = at=20 http://www.tceq.state.tx.us/comm_exec/forms_pubs/pubs/rg/rg-022_476238.pd= f. In=20 the course of Hallco=92s purchase, the company=92s president discussed = Hallco=92s=20 plans for the property with the McMullen County Judge, who voiced = opposition.=20 Eleven days after Hallco purchased the property, the McMullen County=20 Commissioners Court adopted a resolution expressing opposition to the = proposed=20 use as a potential hazard to local water supplies. Despite the = County=92s=20 disagreement, Hallco proceeded with plans to develop the property as an=20 industrial-waste landfill, and on July 27, 1992, formally filed its = application=20 with the Texas Commission on Environmental Quality.

In = June 1993,=20 the County enacted the ordinance at issue here pursuant to section = 364.012 of=20 the Health and Safety Code. While Texas counties generally enjoy fairly = limited=20 zoning authority, that provision allows a county to prohibit municipal = or=20 industrial solid-waste disposal that presents a threat to the public = health,=20 safety, and welfare, so long as the county designates an area in which = disposal=20 is permissible. Tex. Health = & Safety=20 Code =A7 364.012(a), (b).[2] McMullen County=92s = ordinance prohibits=20 the disposal of solid waste within three miles of Choke Canyon Lake, but = allows=20 disposal in any other area of the county so long as applicable state=20 requirements are met. McMullen County Ord. No. 01-06-93. Although the = County had=20 conducted no technical studies at the time the ordinance was passed, the = ordinance=92s predicatory provisions state that =93a safe and abundant = supply of=20 drinking water is necessary to preserve and protect the health and = welfare of=20 the citizens of McMullen County;=94 that =93soil in the area of the lake = is porous=20 and subsurface materials tend to be unstable and volatile;=94 that = =93the disposal=20 of solid waste within three (3) miles of Choke Canyon Lake would = constitute a=20 threat to the public health, safety, and welfare;=94 and that =93the = 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.=94 Id. Neither the Health and Safety Code nor the = ordinance=20 establish any procedure to obtain a variance from the landfill = prohibition.

By = the time=20 the County passed the ordinance, Hallco claims it had invested more than = $800,000 in the site and the Commission permitting process. The = Commission=20 issued a =93final draft permit=94 in January 1995, and a =93revised = final draft=20 permit=94 a little over a month later. A final draft permit reflects = permit=20 conditions recommended by the Commission=92s staff after completion of = its=20 technical review, but the permit=92s issuance may still depend on the = outcome of a=20 contested-case hearing. See 30 Tex. Admin. Code =A7 = 80.118(a)(1). The=20 County, the City of Corpus Christi, the Nueces River Authority, and = several=20 others appeared in the Commission proceedings and raised objections to = Hallco=92s=20 application. Hallco=92s application apparently remains pending at the=20 Commission.[3]

In = June 1995,=20 Hallco challenged the County=92s ordinance by filing suit in the federal = district=20 court; it also filed a parallel proceeding in state court. The federal = court=20 dismissed Hallco=92s substantive due-process and equal-protection claims = with=20 prejudice, holding that the ordinance was rationally related to a = legitimate=20 governmental purpose. 934 F. Supp. 238, 241=9642 (W.D. Tex. 1996). In = doing so,=20 the court described an =93Issues List,=94 prepared by the Office of = Public Interest=20 Counsel and attached as an exhibit to the County=92s briefing, as = =93aptly=20 illustrat[ing] that the safety of this proposed project is at least = =91fairly=20 debatable.=92=94 Id. at 241. The court dismissed without = prejudice Hallco=92s=20 claim alleging an unconstitutional taking in violation of the Fifth = Amendment to=20 the United States Constitution, holding that to ripen its federal = takings claim=20 Hallco first had to seek compensation through procedures the state had=20 established. Id. at 240. The court rested that decision upon=20 Williamson County Regional Planning Commission v. Hamilton Bank, = 473 U.S.=20 172 (1985), which requires a party alleging a Fifth Amendment taking to = obtain a=20 final decision regarding application of the challenged regulation to its = property, and to first use any available state procedure to obtain just=20 compensation. The court noted that it was =93arguable whether Hallco = meets the=20 first condition,=94 bypassing Hallco=92s argument that the ordinance = =93constitutes a=20 final decision because it . . . does not expressly = provide any=20 means for obtaining variances from the provisions.=94[4] Id. at 240. Instead, = the court=20 held that Hallco=92s Fifth Amendment claim was premature because Hallco = had not=20 sought compensation under article I, section 17 of the Texas = Constitution.=20 Id.

A = week after=20 the federal court=92s dismissal, the County moved for summary judgment = in the=20 state court action. With respect to Hallco=92s takings claims, the = County argued=20 that Hallco had no claim for compensation under either the state or = federal=20 constitution because Hallco had no cognizable property interest in = disposing of=20 waste on its property. The County argued, alternatively, that the = ordinance was=20 a reasonable exercise of police power that did not deprive Hallco of all = economic use of its property. The County also moved for summary judgment = on=20 Hallco=92s equal-protection, due-process, contracts-clause, and state = statutory=20 causes of action. The trial court granted the County=92s motion as to = all claims=20 without specifying the grounds. Hallco Texas, Inc. v. McMullen = County,=20 1997 WL 184719, *6 (April 16, 1997) (not designated for publication) = (=93Hallco=20 I=94).

The = court of=20 appeals affirmed the trial court=92s judgment, holding that = =93Hallco=92s takings=20 claim must fail because [Hallco] did not have a cognizable property = interest of=20 which the government could deprive [it].=94 Id. at *2, 3. The = court=20 reasoned that =93the Legislature has defined when property owners may = dispose of=20 solid waste on their property via the permitting process=94 under = sections=20 361.061=96361.345 of the Texas Health and Safety Code, and stated that, =

[e]ven if=20 Hallco already had a permit, by definition, it would not have a property = interest in disposal of solid waste. [Commission] regulations define = permits as=20 not being a property interest or a vested right . . . . The only way the = McMullen County regulation affected Hallco was in denying it the right = to=20 operate a solid waste facility on the proposed site. A mere expectancy = of future=20 services which would render the land more valuable, in the absence of a=20 contract, is not a vested property right for purposes of determining = whether a=20 taking has occurred.

Id. at=20 *3 (citations omitted). The court of appeals=92 judgment issued April = 16, 1997,=20 and Hallco did not appeal that decision.

More than two=20 years after the court of appeals=92 judgment and nearly six years after = the=20 ordinance was enacted, Hallco submitted a request for a variance to the = McMullen=20 County Commissioners Court. Hallco offered no changes to its proposed = landfill.=20 Instead, Hallco=92s request claimed the ordinance had no scientific = basis and=20 alleged the County had singled out Hallco and its property for disparate = and=20 unfair treatment. Attached to the request was an appraiser=92s = assessment of the=20 ordinance=92s economic impact on Hallco. Hallco asked the County to = issue a=20 variance permitting it to operate the proposed facility = =93notwithstanding the=20 provisions of the County=92s Ordinance.=94 The County permitted Hallco = to make a=20 presentation on the request to the Commissioners Court, but took no = action on=20 Hallco=92s request.

Two = months=20 later, Hallco filed the lawsuit underlying this appeal. Hallco expressly = disavowed any challenge to the ordinance=92s validity. Instead, Hallco = alleged=20 that by denying its variance request the County had taken, damaged, or = destroyed=20 Hallco=92s property for public use in violation of article I, section 17 = of the=20 Texas Constitution. Hallco also alleged that the County had taken its = property=20 without just compensation in violation of the Fifth Amendment to the = United=20 States Constitution. Hallco purported to reserve the federal takings = claim for=20 prosecution in the federal courts, citing England v. Louisiana State = Board of=20 Medical Examiners, 375 U.S. 411 (1964); Jennings v. Caddo Parish = School=20 Board, 531 F.2d 1331 (5th Cir. 1976); Fields v. Sarasota Manatee = Airport=20 Authority, 953 F.2d 1299 (11th Cir. 1992); and Guetersloh v. = State,=20 930 S.W.2d 284 (Tex. App.=97Austin 1996, writ denied). Hallco later = amended its=20 petition to assert a claim under the Texas Private Real Property Rights=20 Preservation Act, which allows property owners to sue for certain = governmental=20 actions that result in an unconstitutional taking or restrict the use of = property so as to reduce its value by at least twenty-five percent. = Tex. Gov=92t Code =A7 = 2007.021. Hallco=20 alleged that, as a result of the County=92s action, it had sustained = property-loss=20 damages of $5,141,700, business-loss damages of $15,811,700, and = permit-expense=20 damages of $821,706.

In = August=20 2001, the County moved for summary judgment on all of Hallco=92s claims. = The=20 County again argued that Hallco had no constitutionally protected = property right=20 to use its land for solid-waste disposal, and that even if it did, the = County=20 reasonably exercised its police power. The County also asserted that = Hallco=92s=20 claims were all barred by res judicata because they were or could have = been=20 raised in the first state lawsuit. Finally, the County argued that the = statute=20 of limitations and laches barred Hallco=92s claims. The trial court = again granted=20 the County=92s motion without specifying the grounds, and the court of = appeals=20 affirmed. Hallco Texas, Inc. v. McMullen County, 94 S.W.3d 735 = (Tex. App=20 =97San Antonio 2002) (=93Hallco II=94). The court of appeals = reaffirmed its=20 prior holding that Hallco had no constitutionally protected property = interest in=20 the disposal of solid waste on its property, thus defeating Hallco=92s = takings=20 claim whether it was framed as a facial or an as-applied challenge. = Id.=20 at 738=96739. The court also held that, regardless of whether Hallco=92s = federal=20 takings claim was ripe when Hallco I was decided, =93the issue of = whether a=20 taking had occurred under either federal or state law was ripe,=94 and = Hallco had=20 failed to reserve its right to return to federal court in the prior = lawsuit.=20 Id. at 739. We granted Hallco=92s petition for review.

II. Parties=92 Arguments

A. Takings Overview

Article I,=20 section 17 of the Texas Constitution provides that =93[n]o person=92s = property shall=20 be taken, damaged or destroyed or applied to public use without adequate = compensation being made . . . .=94 Tex. Const., art. I, =A7 17. = Absent a=20 cognizable property interest, a claimant is not entitled to compensation = under=20 article I, section 17. Tarrant County v. Ashmore, 635 S.W.2d 417, = 422=20 (Tex. 1982). Although our takings provision is worded differently than = the=20 Takings Clause of the Fifth Amendment to the United States Constitution, = we have=20 described it as =93comparable=94 and the parties here agree that it is = appropriate=20 to look to federal cases for guidance. Sheffield Devel. Co. v. City = of Glenn=20 Heights, 140 S.W.3d 660, 669 (Tex. 2004). Both provisions recognize = that,=20 while =93=91all property is held subject to the valid exercise of the = police=20 power,=92=94 a regulation may, under some circumstances, constitute a = taking=20 requiring compensation. Id. at 670 (quoting City of College = Station v.=20 Turtle Rock Corp., 680 S.W.2d 802, 804 (Tex. 1984)). =93Physical = possession=20 is, categorically, a taking for which compensation is constitutionally = mandated=20 . . . .=94 Id. at 669=9670 (citing Tahoe-Sierra = Pres.=20 Council Inc. v. Tahoe Reg=92l Planning Agency, 535 U.S. 302, 322 = (2002)).=20 Regulatory action short of physical confiscation or invasion may also = result in=20 a taking. Id. A regulation that deprives a property owner of all=20 economically beneficial or productive use of the property =93makes the = regulation=20 categorically a taking.=94 Id. at 671. Lesser interferences, = however, may=20 also result in a taking. These types of regulatory actions require an=20 =93essentially ad hoc, factual inquir[y] . . . .=94 Id. at 672 = (quoting=20 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978)). =

A = regulation=20 may go so far in imposing public burdens on private interests as to = require=20 compensation. Id. at 672. In deciding whether regulatory action = goes =93too=20 far,=94 we carefully weigh =93all the relevant circumstances,=94 = including:

(1) =93=91the=20 economic impact of the regulation on the claimant=94; (2) =93the extent = to which the=20 regulation has interfered with distinct investment-backed = expectations=94; and (3)=20 =93the character of the governmental action.=92=94

Id. at=20 670-72 (quoting Connolly v. Pension Benefits Guar. Corp., 475 = U.S. 211,=20 225 (1986) (quoting Penn Central, 438 U.S. at 124))). The extent = of the=20 governmental intrusion may be a question for the trier of fact, but = whether the=20 facts constitute a taking is a question of law. Id. at 673 = (citing=20 Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 932-33 (Tex. = 1998)).

B. The Parties=92 Contentions

Hallco=20 contends the court of appeals misanalyzed its takings claim by holding = that, as=20 a matter of law, Hallco could not lodge a regulatory takings challenge = against=20 the County ordinance solely because it had not yet obtained an = industrial=20 waste-disposal permit. According to Hallco, a landowner always = has a=20 reasonable investment-backed expectation in pursuing a development = project that=20 was lawful when the land was purchased and need not demonstrate that it = has=20 secured all necessary permits in order to pursue a takings challenge. = Moreover,=20 Hallco complains, the court of appeals improperly elevated one relevant = factor =97=20 the landowner=92s investment-backed expectations =97 to a dispositive = threshold=20 inquiry, contrary to Mayhew and Penn Central. This = analysis,=20 Hallco maintains, transformed a nuanced, fact-specific inquiry into the = type of=20 formulaic approach the Supreme Court has repeatedly cautioned against. = Hallco=20 points out that the landowners in Penn Central, Sheffield, = and=20 Mayhew all lacked permits necessary for development, and claims = the court=20 of appeals=92 approach would preclude almost every conceivable takings = challenge.=20 Hallco acknowledges this Court=92s statement in Mayhew that = =93[t]he existing=20 and permitted uses of the property constitute the =91primary = expectation=92=20 of the landowner that is affected by regulation.=94 Mayhew, 964 = S.W.2d at=20 936 (emphasis added). But according to Hallco, the Court =93obviously = meant that=20 courts should look to existing land use restrictions applicable to the = property=20 when determining whether a regulation interferes with reasonable = investment=20 backed expectations.=94

Hallco also=20 contends the court of appeals erred in affirming summary judgment on its = as-applied Fifth Amendment takings claim. Hallco claims it followed the=20 appropriate procedure to secure federal review of that claim by = expressly=20 reserving it in its petition, Guetersloh, 930 S.W.2d at 289=9690, = and the=20 court of appeals incorrectly reasoned that the reservation was = ineffective=20 because Hallco did not reserve its federal claim in Hallco I. = According=20 to Hallco, it is litigating its as-applied challenge for the first time. = Hallco=20 claims the as-applied challenge was not ripe when Hallco I was = litigated=20 because no particularized application of the ordinance to Hallco=92s = property had=20 been made. Hallco contends the County=92s position now, that res = judicata bars its=20 claim, is entirely inconsistent with its position in the prior federal = suit that=20 the County=92s claim was not ripe under Williamson County=92s = final-decision=20 requirement. Because the trial court would not have had subject-matter=20 jurisdiction over the claim, Hallco argues, it cannot be barred by res = judicata,=20 and for similar reasons the County=92s affirmative defenses of = collateral=20 estoppel, laches, and limitations must fail. Finally, Hallco contends = the court=20 of appeals erred in affirming summary judgment because by denying Hallco = a=20 variance from the ordinance, the County imposed a substantial public = burden on=20 Hallco which, in all fairness and justice, should be borne by the public = as a=20 whole. Hallco contends that it =93was singled out by the = Commissioners=92 Court to=20 bear the entire cost of the county=92s choice to remain free of = landfills . . . .=94=20 Hallco claims that it presented unrefuted summary-judgment proof that = the=20 ordinance decreased the value of its property by ninety-nine percent and = it had=20 a distinct investment-backed expectation that it would be able to use = its=20 property to operate a solid-waste-disposal facility when it received its = permit=20 from the Commission.

The = County=20 responds that it acted well within its police power by passing and = enforcing the=20 ordinance to protect the County=92s main source of drinking water. = According to=20 the County, it was entitled to explore its options to protect its = citizens by=20 first participating in the Commission permitting process before enacting = the=20 ordinance, and its ordinance is presumptively valid. Moreover, the = County=20 asserts, Hallco had no property interest in disposing of solid waste on = its=20 property because it never had a right to such a use; state law prohibits = the=20 disposal of solid waste without a permit, and Hallco cannot assert an=20 investment-backed expectation on the speculative premise that it = might=20 obtain a permit. If that were the case, the County argues, then every = property=20 owner within three miles of Choke Canyon Reservoir would have a similar = takings=20 claim. But even if Hallco had a cognizable property interest, the County = claims,=20 the ordinance was not an unreasonable interference. Government is not = required=20 to ensure that a landowner can make the most profitable use of its = property, and=20 the County presented summary-judgment proof that other reasonably = profitable=20 uses of the property are available to Hallco. In any event, the County = argues,=20 res judicata bars all of Hallco=92s claims because the elements of = Hallco=92s=20 =93facial=94 and =93as-applied=94 claims are the same and were fully = adjudicated in=20 Hallco I. The ordinance created a prohibition, not a regulation, = the=20 County argues, and Hallco=92s submission of a variance changed nothing. = The County=20 maintains that under Hallco=92s theory, Hallco could revive an already = adjudicated=20 claim any number of times simply by submitting additional variance = requests.

III. Analysis

A. Res Judicata

We = begin by=20 considering the County=92s res-judicata argument because, if = meritorious, it is=20 dispositive of this appeal. The doctrine of res judicata, or claim = preclusion,=20 bars a second action by parties and their privies on matters actually = litigated=20 in a previous suit, as well as claims =93=91which, through the exercise = of=20 diligence, could have been litigated in a prior suit.=92=94 Getty Oil = Co. v. Ins.=20 Co. of N. Am., 845 S.W.2d 794, 799 (Tex. 1992) (quoting Barr v.=20 Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992)). We apply = the=20 transactional approach to res judicata, which requires claims arising = out of the=20 same subject matter to be litigated in a single lawsuit. Barr, = 837 S.W.2d=20 at 631. The res-judicata doctrine =93serves vital public = interests=94 by=20 promoting the finality of judgments. San Remo Hotel, L.P. v. San=20 Francisco, 545 U.S. 323, 345 (2005). We have recognized that the = doctrine=20 prevents needless, repetitive litigation, John G. and Marie Stella = Kenedy=20 Mem=92l Found. v. Dewhurst, 90 S.W.3d 268, 288=9689 (Tex. 2002) = (citing=20 Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979)), and in = doing=20 so, =93advance[s] the interest[s] of the litigants (who must pay for = each suit),=20 the courts (who must try each suit), and the public (who must provide = jurors and=20 administration for each suit).=94 Schneider Nat=92l Carriers, = Inc., v.=20 Bates, 147 S.W.3d 264, 278 (Tex. 2004).

Hallco=20 contends res judicata does not apply because Hallco=92s claim in the = previous suit=20 was a facial constitutional challenge to the ordinance while this suit=20 challenges the County=92s particular application of the ordinance to its = property,=20 and its as-applied takings claim was not ripe in Hallco I because = it had=20 not sought a variance from the ordinance. However, neither of these = arguments=20 circumvents res judicata=92s application in this case.

Hallco argues=20 that its as-applied and facial takings claims are distinct and therefore = the=20 adjudication of one cannot bar assertion of the other. Whether or not a=20 cognizable distinction may be drawn between Hallco=92s takings claims, = of course,=20 does not answer the question of whether res judicata bars its as-applied = challenge here. Certainly a contract claim is distinct from one based in = tort,=20 but if the claims arise out of the same subject matter and can be = brought=20 together they cannot be asserted separately. See Getty, 845 = S.W.2d at=20 798. Hallco contends its as-applied takings claim was not ripe in = Hallco=20 I because it had not sought a variance, and the federal court = dismissed its=20 claim for that reason. Hallco mischaracterizes the federal court=92s = decision,=20 however. While the federal court noted that it was =93arguable=94 = whether Hallco=92s=20 suit was ripe under Williamson County=92s final-decision = requirement, it=20 plainly based its ruling on the ground that an inverse condemnation suit = had not=20 been concluded in state court. Hallco Texas, Inc., 934 F. Supp. = at 240=20 (citing Williamson County, 473 U.S. 172 (1985)). But that the = as-applied=20 challenge was not ripe for federal adjudication under = Williamson=20 County does not mean that it wasn=92t ripe for adjudication = in the=20 then-pending state action. The ripeness of the state claim cannot be = measured by=20 the ripeness of Hallco=92s federal claim since a federal claim is not = ripe until=20 state court proceedings have been concluded; if federal and state claims = ripen=20 at the same time, then neither could ever get started.

In=20 determining whether Hallco=92s present as-applied challenge was ripe for = adjudication in the prior litigation, it is helpful to examine the = underpinnings=20 of the ripeness requirement in takings litigation. In an as-applied = challenge,=20 requiring a claimant to pursue a variance or otherwise test the = regulation=92s=20 application in order to ripen the claim allows the factfinder to measure = the=20 extent of the regulation=92s economic impact so that the takings claim = may be=20 adequately assessed. In Williamson County, for example, = the=20 planning commission disapproved a developer=92s proposed plat for eight = specific=20 reasons, including density and grade problems, the length of two = cul-de-sacs,=20 the grade of certain roads, lack of fire protection, main-access road = disrepair,=20 and problems with minimum frontage. Williamson County, 473 = U.S. at=20 181. The developer filed a takings suit claiming that it could only = build 67=20 units if it designed the development to meet the commission=92s = objections, which=20 was 409 fewer than the developer claimed it was entitled to build. = Id. at=20 182. The planning commission=92s expert, though, testified that a = 300-unit=20 development could be designed that would overcome the commission=92s = objections.=20 Id. The Supreme Court concluded that the developer=92s takings = claim was=20 not ripe because, without further inquiry and the developer=92s pursuit = of=20 potential variances from the commission=92s specific objections, it was = not=20 possible to determine how the regulations would ultimately be applied, = making it=20 impossible to discern what the economic impact of the challenged action = would be=20 or the extent to which it would interfere with the developer=92s = reasonable=20 investment-backed expectations =97 two key inquiries in a = regulatory-takings=20 claim. Id. at 190=9691.[5] Thus, assessment of the = regulations=92=20 economic impact depended upon determining the optimum use that the = commission=20 would ultimately allow after considering the developer=92s proposals to = meet the=20 commission=92s concerns.

Unlike=20 Williamson County, this is not a case in which a general = zoning or=20 land-use restriction was subject to discretionary application or = variance. In=20 such cases, the impact on a particular property may not be ripe until a = variance=20 is finally denied. See, e.g., Williamson County, 473 U.S. at 186; = Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998). But = this=20 was no zoning ordinance; the ordinance here prohibited precisely the use = Hallco=20 intended to make of this property, and nothing in the ordinance = suggested any=20 exceptions would be made. Hallco=92s taking claim was ripe upon = enactment because=20 at that moment the =93permissible uses of the property [were] known to a = reasonable degree of certainty.=94 Palazzolo v. Rhode Island, 533 = U.S. 606,=20 620 (2001). The factors necessary to assess the ordinance=92s economic = impact and=20 the reasonableness of Hallco=92s investment-backed expectations were = fixed in the=20 prior litigation, and Hallco has made no claim that those elements were = impacted=20 any differently by its variance request. The facts relevant to = Hallco=92s present=20 takings claim =97 the County ordinance=92s wholesale prohibition, the = manner in=20 which it would be applied, and the nature of the damage suffered =97 = were all=20 evident in the prior suit, and Hallco=92s requested variance proposed no = new or=20 different application. Although styled a =93variance request,=94 = Hallco=92s request=20 was nothing more than a demand for the County to reconsider what had = been its=20 position all along. Under these circumstances, Hallco=92s facial and = as-applied=20 challenges were the same regardless of how Hallco chose to frame its = pleadings,=20 and res judicata bars another bite at the apple.

B. Unappealed Prior Judgment

Moreover, the=20 legal ground upon which the court of appeals resolved Hallco=92s prior = takings=20 claim would preclude both an as-applied and a facial takings challenge, = yet=20 Hallco chose not to appeal the Hallco I decision. Specifically, = in=20 Hallco I the court held that Hallco did not have a protected = property=20 interest in the disposal of solid waste and therefore there could be no = taking=20 as a matter of law. 1997 WL 184719 at *3. Whether or not the court of = appeals=20 was correct in deciding that Hallco had no compensable interest, that = holding is=20 dispositive and not subject to collateral attack; claim preclusion = inheres=20 regardless of whether the prior decision was correct. Purcell v.=20 Bellinger, 940 S.W.2d 599, 602 (Tex. 1997). If Hallco wished to = challenge=20 the court of appeals=92 decision, it could have filed an appeal, which = it chose=20 not to do.

We = have=20 emphasized the strong policies discouraging seriatim litigation = on=20 several recent occasions. For example, we have rejected the notion that = parties=20 may elect whether to assert a temporary or permanent nuisance, noting = that=20 =93claimants cannot opt for an indefinite limitations period or a series = of suits=20 whenever they would prefer.=94 Schneider, 147 S.W.3d at 281=9682; = Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 647 (Tex. 2000) = (noting=20 that single-action rule is a species of res judicata designed to = =93prevent[]=20 vexatious and oppressive litigation=94). In Pustejovsky, we = declined to=20 apply the single-action rule to a mesothelioma claimant who had earlier = brought=20 an action for asbestosis. 35 S.W.3d at 652. We noted that, while both = asbestosis=20 and mesothelioma result from asbestos exposure, they are distinct = conditions.=20 Id. We reasoned that the =93transactional approach set out in = Barr=20 does not necessarily penalize a plaintiff for not bringing a claim = arising out=20 of the same facts that nonetheless could not have been litigated in the = initial=20 action.=94 Id. at 651. Pustejovsky=92s mesothelioma claim was not = barred=20 because, as a practical matter, he could not have proven that he would = get the=20 disease to a reasonable medical probability in the previous action. = Id.=20 at 652. In contrast, the takings claim asserted in Hallco I = sought=20 compensation for the same injury asserted here, and the elements of both = an=20 as-applied and facial challenge were fixed and known in the prior = litigation.=20

We = are=20 sympathetic to Hallco=92s contention that the County improperly singled = it out to=20 bear a public burden by acting to defeat its permit application through=20 regulation rather than the permit process. McMullen County = unquestionably had=20 the power to regulate land use, especially around a water supply like = Choke=20 Canyon Reservoir, and in the abstract, its doing so would hardly ever = give rise=20 to takings liability. But even if a governmental entity may effect a = taking by=20 advancing an illegitimate purpose, as Hallco claims,[6] there was nothing to prevent = Hallco=20 from asserting in the prior litigation that the County targeted its = property=20 unlawfully, and the final judgment in Hallco I bars that claim = here.

For = similar=20 reasons, the Hallco I final judgment bars Hallco=92s claim under = the=20 Private Real Property Rights Preservation Act. Tex. Gov=92t Code =A7 = 2007.001=96.045. The=20 Act allows private real-property owners to sue political subdivisions = for=20 certain governmental actions that require compensation under the Fifth = or=20 Fourteenth Amendments to the United States Constitution or article I, = sections=20 17 or 19 of the Texas Constitution. Tex.=20 Gov=92t Code =A7 2007.021. Those actions include the adoption or = enforcement=20 =93of an ordinance, rule, regulatory requirement, resolution, policy, = guideline,=20 or similar measure.=94 Id. at =A7=A7 2007.003(a)(1), (4). The Act = applies only=20 to ordinances proposed on or after September 1, 1995, or to enforcement = actions=20 initiated on or after the same date. Private Real Property Rights = Preservation=20 Act, 74th Leg., R.S. ch. 517, =A7 6, 1995 Tex. Gen. Laws 3266, 3272. = Because the=20 County=92s ordinance was enacted before the Act=92s effective date, the = statute can=20 only apply if, as Hallco argues, the rejection of its variance request = on=20 September 13, 1999, constituted an enforcement action. But even if = rejecting a=20 variance comes within the statute=92s enforcement-action purview as = Hallco claims,=20 Hallco failed to assert its variance request in the prior litigation and = cannot=20 resurrect the Act=92s protections here.

IV. Fifth Amendment Taking Claim

Finally,=20 Hallco claims it properly reserved its as-applied Fifth Amendment = takings claim,=20 which it may now assert. We disagree. As the United States Supreme Court = has=20 recently made clear, the final judgment in Hallco I also bars = Hallco=92s=20 Fifth Amendment takings claim. See San Remo Hotel, L.P., 545 U.S. = 323. In=20 San Remo Hotel, owners of a hotel asserted a federal takings = claim=20 against the City and County of San Francisco after the California courts = ruled=20 against them on their state constitutional takings claim. The Supreme = Court held=20 that the full-faith-and-credit statute, 28 U.S.C. =A7 1738, required the = federal=20 court to give preclusive effect to the California judgment. Id. = at=20 347=9648. Section 1738 requires the federal courts to give =93the same = full faith=20 and credit [to judicial proceedings] as they have by law or usage in = the=94 state=20 courts, 28 U.S.C. =A7 1738, and =93has long been understood to encompass = the=20 doctrines of res judicata . . . and collateral estoppel.=94 San = Remo, 545=20 U.S. at 336. In San Remo Hotel, the petitioners attempted to = reserve=20 their federal takings claim for resolution in federal court, just as = Hallco=20 attempted to do here. Id. at 337=9642. The Court acknowledged = that the=20 petitioners could have reserved a federal claim that was distinct from = an=20 antecedent state action capable of mooting a federal issue under = England v.=20 Louisiana Board of Medical Examiners, 375 U.S. 411 (1964). But the = Court=20 emphasized that =93[t]he purpose of the England reservation is = not to grant=20 plaintiffs a second bite at the apple in their forum of choice.=94 = Id. at=20 346. Because the hotel owners had argued in state court that a = development-fee=20 ordinance on its face and as applied failed to substantially advance a=20 legitimate governmental purpose and imposed an undue economic burden, = they were=20 not entitled to reserve their federal takings claim for adjudication in = federal=20 court. Id. at 341. The Court acknowledged that the petitioners=92 = federal=20 claims were not ripe until they sought relief under state law. = Id. at=20 346. But, the Court said,

[a]t base,=20 petitioners claim amounts to little more than the concern that it is = unfair to=20 give preclusive effect to state-court proceedings that are not chosen, = but are=20 instead required in order to ripen federal takings claims. = Whatever the=20 merits of that concern may be, we are not free to disregard the full = faith and=20 credit statute solely to preserve the availability of a federal = forum.

Id. at=20 347. While San Remo concerned the application of collateral = estoppel,=20 rather than res judicata, nothing in the Court=92s opinion suggests that = it would=20 recognize an exception to the full-faith-and-credit statute when state = law would=20 apply res judicata or collateral estoppel principles to bar a second = claim. To=20 the contrary, the Supreme Court has broadly construed the statute to = require=20 =93all federal courts to give preclusive effect to state-court judgments = whenever=20 the courts of the State from which the judgments emerged would do so.=94 = Allen=20 v. McCurry, 449 U.S. 90, 96 (1980). Because we hold that Hallco=92s = as-applied=20 challenge is barred, its Fifth Amendment claim is similarly barred and = Hallco=92s=20 reservation is immaterial. Accordingly, the court of appeals did not err = in=20 affirming summary judgment on Hallco=92s federal takings claim.

V. Conclusion

We = affirm the=20 court of appeals=92 judgment.

__________________________________________

Harriet=20 O=92Neill

Justice

OPINION = DELIVERED:=20 December 29, 2006

^[1] At the time, the agency was known as the Texas = Natural=20 Resource Conservation Commission. In 2002, the agency=92s name was = changed to the=20 Texas Commission on Environmental Quality, see 27 Tex. Reg. 8340 = (2002),=20 to which we will refer in this opinion.

^[2] In 1999, the statute was amended to prohibit = counties=20 from adopting an ordinance for which a permit application was pending. = Tex. Health & Safety Code = =A7=20 364.012(e).

^[3] In 2003, the Legislature enacted legislation = requiring=20 the Commission to adopt rules governing all aspects of the management = and=20 operation of new commercial nonhazardous industrial solid waste = landfills, and=20 directed the Commission to suspend processing pending applications until = it=20 adopted such rules. Act of May 27, 2003, 78th Leg., R.S., ch. 1117, = =A7=A7 2-3, 2003=20 Tex. Gen. Laws 3207, 3208. The Commission adopted rules in March=20 2004.

^[4] The County responded to Hallco=92s = final-decision argument=20 that,

[e]ven if there were a futility exception, at = least one=20 application for variance would be required to establish futility. = Contrary to=20 Plaintiff=92s assertion, the fact that the ordinance does not contain a = provision=20 for reviewing how the ordinance will be applied to particular property = does not=20 establish that it is futile; the Commissioners Court has the authority = to grant=20 a variance, or even to rescind the ordinance, if Hallco presents = sufficient=20 justification.

Case No. 95-L-22, United States District Court = for the=20 Southern District of Texas, Laredo Division, Defendants=92 Replies to = Both=20 Plantiff=92s [sic] Motion to Stay Based on Abstention Principles and = Plaintiff=92s=20 Amended Response to Defendant=92s Motion to Dismiss with Brief in=20 Support.

^[5] The Court noted that the developer=92s expert = witness who=20 testified about the regulations=92 economic impact did not itemize the = effect of=20 each of the commission=92s eight objections, and thus concluded the jury = was=20 =93unable to discern how a grant of a variance from any one of the = regulations at=20 issue would have affected the profitability of the development=94 or = =93whether [the=20 developer] =91will be unable to derive economic benefit=92 from the = land.=94=20 Id. at 191.

^[6] We note that the United States Supreme Court = recently=20 held that whether a governmental action substantially advances a = legitimate=20 state interest is not an appropriate test to evaluate takings claims = under the=20 Fifth Amendment to the United States Constitution. Lingle v. = Chevrolet,=20 544 U.S. 528, 532 (2005).