regulatory takings claim in Texas

2025The Texas Supreme Court held that “for a regulatory takings claim to be ripe there must be a final [and authoritative determination] regarding the application of the regulations to the property at issue.” The Commons of Lake Houston, Ltd. v. City of Houston, No. 23-0474 at *23 (quoting Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)) (emphasis added).

2025A takings claim must also be ripe for the court’s consideration because “[r]ipeness is an element of subject-matter jurisdiction.” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) (noting that “ripeness doctrine conserves judicial time and resources for real and 4 current controversies, rather than abstract, hypothetical, or remote disputes”). “[F]or a regulatory takings claim to be ripe, there must be a final decision regarding the application of the regulations to the property at issue.” Id. at 929 .

2015See also MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 , 106 S.Ct. 2561 , 2565–66, 91 L.Ed.2d 285 (1986)(final decision is an “essential prerequisite” of a regulatory takings claim).

2015See also MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 , 106 S.Ct. 2561 , 2565–66, 91 L.Ed.2d 285 (1986)(final decision is an “essential prerequisite” of a regulatory takings claim).

2009As the City argued to the trial court, “in 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.” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998) (citing Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 734 (1997); Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186 (1985)).

2009As the City argued to the trial court, "in 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." Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 929 (Tex. 1998) (citing Suitum v. Tahoe Reg'l Planning Agency , 520 U.S. 725, 734 (1997); Williamson County Reg'l Planning Comm'n v. Hamilton Bank , 473 U.S. 172, 186 (1985)).

2013“A regulatory-takings claim may challenge a land-use restriction on its face or as applied to particular property.” Id. at 62 .

2013“A regulatory-takings claim may challenge a land-use restriction on its face or as applied to particular property.” Id. at 62 .

2009As the City argued to the trial court, “in 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.” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998) (citing Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 734 (1997); Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186 (1985)).

2009As the City argued to the trial court, "in 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." Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 929 (Tex. 1998) (citing Suitum v. Tahoe Reg'l Planning Agency , 520 U.S. 725, 734 (1997); Williamson County Reg'l Planning Comm'n v. Hamilton Bank , 473 U.S. 172, 186 (1985)).

2012Id. at 628 , 121 S.Ct. 2448 (“It would be illogical, and unfair, to bar a regulatory takings claim because of the post-enactment transfer of ownership where the steps necessary to make the claim ripe were not taken, or could not have been taken, by a previous owner.”).

2012Id. at 628 , 121 S.Ct. 2448 (“It would be illogical, and unfair, to bar a regulatory takings claim because of the post-enactment transfer of ownership where the steps necessary to make the claim ripe were not taken, or could not have been taken, by a previous owner.”).

2009See Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 494 , 107 S.Ct. 1232, 1247 , 94 L.Ed.2d 472 (1987).

2009See Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 494 , 107 S.Ct. 1232, 1247 , 94 L.Ed.2d 472 (1987).

2012Lingle, 544 U.S. at 548 ; cf. Sheffield, 140 S.W .3d at 673–74. - 11 - We now turn to clarify the basis of Hearts Bluff’s claim and then consider the factors in a regulatory takings analysis.

2010Inc., 544 U.S. 528, 537 , 125 S. Ct. 2074 , 2080–81 (2005). 7 regulation). 13 A regulatory takings claim may be based on a number of different theories.

2015Coastal Council, 505 U.S. 1003, 1015 , 112 S. Ct. 2886, 2893 (1992) (quoting Penn Cent.

2015Coastal Council, 505 U.S. 1003, 1015 , 112 S. Ct. 2886, 2893 (1992) (quoting Penn Cent.

2023Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). 4 “[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.” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998).

2008See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998); see also Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998) (explaining that ripeness is necessary component of subject-matter jurisdiction and concerns when a claim may be made).

2021Edwards Aquifer Auth. v. Bragg, 421 S.W.3d 118, 134 (Tex. App.—San Antonio 2013, pets. denied) (op. on reh’g).

2016A regulatory takings claim is a type, of inverse condemnation claim, Edwards Aquifer Auth. v. Bragg, 421 S.W.3d 118, 134 (Tex.App.—San Antonio 2013, pets, denied) (op. on reh'g), and can include a governmental entity’s application of a zoning law in a way that constitutes a taking, e.g., Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex.1998), cert, denied, 526 U.S. 1144 , 119 S.Ct. 2018 , 143 L.Ed.2d 1030 (1999). .

2015In other actions [that] are available and could provide similar relief.” words, the federal courts have reasoned that a court cannot Southern Pacific, 922 F.2d at 503; see also Executive determine whether a taking or other constitutional violation 100, Inc. v. Martin County, 922 F.2d 1536, 1541 (11th has occurred until the court can compare the uses prohibited Cir.) (aggrieved landowner must “have sought variances or by the regulation to any permissible uses that may be made pursued alternative, less ambitious development plans”), cert. of the affected property. denied, 502 U.S. 810 , 112 S.Ct

2010Co., 922 F.2d at 503). 41 Id. 42 See, e.g., Stafford, 135 S.W .3d at 638 (noting that there is no practical difference between “approval on condition and denial for want of the condition”); Mayhew, 964 S.W .2d at 929 (stating broadly that “in 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”); see also City of Dallas v. Chicory Court Simpson Stuart L.P., 271 S.W .3d 412, 421–22 (Tex. App.—Dallas 2008, pet. denied) (applying the ripeness standards of regulatory takings claims generally to an

2010Co. v. City of N.Y. , 438 U.S. 104, 124 , 98 S. Ct. 2646, 2659 (1978) (setting out factors for evaluating regulatory takings claims under the federal constitution); see also Lingle , 544 U.S. at 537–38, 125 S. Ct. at 2081 (noting that a regulation that “goes too far” will constitute a taking and that regulatory takings challenges outside of the two per se regulatory takings categories and the context of land-use exactions are governed by the standards set out in Penn Central ); Hallco Tex., Inc. , 221 S.W.3d at 56 . 19: See, e.g. , Mayhew , 964 S.W.2d at 929, 937 (evaluating a town’s denial of

2010See, e.g., Stafford, 135 S.W.3d at 638 (noting that there is no practical difference between "approval on condition and denial for want of the condition”); Mayhew, 964 S.W.2d at 929 (stating broadly that "in 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”); see also City of Dallas v. Chicory Court Simpson Stuart L.P., 271 S.W.3d 412, 421-22 (Tex.App.-Dallas 2008, pet. denied) (applying the ripeness standards of regulatory takings claims generally to an exactions takings claim); but see Del Mo

2015As such, “courts generally eschew any ‘set formula’ in determining how far is too far when performing a regulatory takings analysis, preferring to ‘ “engag[e] in ... essentially ad hoc, factual inquiries.” ’ ” Id. (quoting Lucas v. S.C.

2010Co. v. City of N.Y., 438 U.S. 104, 124 , 98 S. Ct. 2646, 2659 (1978) (setting out factors for evaluating regulatory takings claims under the federal constitution); see also Lingle, 544 U.S. at 537–38, 125 S. Ct. at 2081 (noting that a regulation that “goes too far” will constitute a taking and that regulatory takings challenges outside of the two per se regulatory takings categories and the context of land-use exactions are governed by the standards set out in Penn Central); Hallco Tex., Inc., 221 S.W .3d at 56. 19 See, e.g., Mayhew, 964 S.W .2d at 929, 937 (evaluating a town’s denial of dev

2022See Miranda, 133 S.W.3d at 228 (“If evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the 16 jurisdiction, and the fact issue will be resolved by the fact finder.”); City of Grapevine v. Muns, ___S.W.3d ___, No. 02-19-00257-CV, 2021 WL 3419675 , at *13 (Tex. App.— Dallas Aug. 5, 2021, no pet.) (“The Homeowners did not simply plead lost profits, though; they presented supporting evidence—evidence of the type that a trial court can consider in a regulatory-takings claim,” and is thus some evidence of an economic impact.); see Vill.

2021See Vill. of Tiki Island, 463 S.W.3d at 579 .

2010Co. , 922 F.2d at 503). 41: Id. 42: See, e.g. , Stafford , 135 S.W.3d at 638 (noting that there is no practical difference between “approval on condition and denial for want of the condition”); Mayhew , 964 S.W.2d at 929 (stating broadly that “in 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”); see also City of Dallas v. Chicory Court Simpson Stuart L.P. , 271 S.W.3d 412 , 421–22 (Tex. App.—Dallas 2008, pet. denied) (applying the ripeness standards of regulatory takings claims generally to a

2010See, e.g., Stafford, 135 S.W.3d at 638 (noting that there is no practical difference between "approval on condition and denial for want of the condition”); Mayhew, 964 S.W.2d at 929 (stating broadly that "in 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”); see also City of Dallas v. Chicory Court Simpson Stuart L.P., 271 S.W.3d 412, 421-22 (Tex.App.-Dallas 2008, pet. denied) (applying the ripeness standards of regulatory takings claims generally to an exactions takings claim); but see Del Mo

2008Id.; see also Sheffield, 140 S.W.3d at 671–72.

2006Co. 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 , 106 S.Ct. 2561 , 91 L.Ed.2d 285 (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 , 105 S.Ct. 3108 , 87 L.Ed.2d 126 (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.

2016Instead, a regulatory takings claim requires the plaintiff to ultimately prove a regulation “so onerous that its effect is tantamount to a direct appropriation or ouster.” Id. at 831 , quoting Lingle v. Chevron U.S.A.

2015Further, the supreme court stated the owners “appear to suggest that a civil-enforcement procedure alone can serve as the basis of a regulatory-takings claim,” but “have identified no authority for such a proposition.” Id. at 832 .

2021We further note the unremarkable and well-established notion that private-property ownership is a fundamental right, see Hearts Bluff, 381 S.W.3d at 476 , that embraces such “essential attributes” as “the right to use, lease[,] and dispose of it for lawful purposes,” Terrace v. Thompson, 263 U.S. 197, 215 , 44 S. Ct. 15 , 17–18 (1923).

2015Courts have “generally eschew[ed] any ‘set formula’ for determining how far is too far,” when performing a regulatory takings analysis, preferring to “‘engag[e] in . . . essentially ad hoc, factual inquiries.’” Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 477 (Tex. 2012) (citing Lucas v. S.C.

2025Stated another way, “[a] regulatory takings claim ordinarily is not ripe until there has been a ‘final and authoritative determination’ by the governmental entity applying the regulations at issue to the property.” Murphy, 533 S.W.3d at 360 (citing Mayhew, 964 S.W.2d at 929 ).

2018An essential prerequisite to the ripeness of a regulatory takings claim is a “‘final and authoritative determination’ by the governmental entity applying the regulations at issue to the property.” City of Galveston v. Murphy, 533 S.W.3d 355, 360 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (quoting Mayhew, 964 S.W.2d at 929 ).

2013Id.

2010As this court has previously noted, however, these are not required elements in a regulatory takings claim which is the type of takings claim asserted by Horton and Del Papa. -5- 04-09-00375-CV See City of San Antonio v. El Dorado Amusement Co., 195 S.W.3d 238, 244-45 (Tex. App.—San Antonio 2006, pet. denied).

2010Co. v. City of N.Y. , 438 U.S. 104, 124 , 98 S. Ct. 2646, 2659 (1978) (setting out factors for evaluating regulatory takings claims under the federal constitution); see also Lingle , 544 U.S. at 537–38, 125 S. Ct. at 2081 (noting that a regulation that “goes too far” will constitute a taking and that regulatory takings challenges outside of the two per se regulatory takings categories and the context of land-use exactions are governed by the standards set out in Penn Central ); Hallco Tex., Inc. , 221 S.W.3d at 56 . 19: See, e.g. , Mayhew , 964 S.W.2d at 929, 937 (evaluating a town’s denial of

2010Co. v. City of N.Y. , 438 U.S. 104, 124 , 98 S. Ct. 2646, 2659 (1978) (setting out factors for evaluating regulatory takings claims under the federal constitution); see also Lingle , 544 U.S. at 537–38, 125 S. Ct. at 2081 (noting that a regulation that “goes too far” will constitute a taking and that regulatory takings challenges outside of the two per se regulatory takings categories and the context of land-use exactions are governed by the standards set out in Penn Central ); Hallco Tex., Inc. , 221 S.W.3d at 56 . 19: See, e.g. , Mayhew , 964 S.W.2d at 929, 937 (evaluating a town’s denial of

2010Co., 922 F.2d at 503). 41 Id. 42 See, e.g., Stafford, 135 S.W .3d at 638 (noting that there is no practical difference between “approval on condition and denial for want of the condition”); Mayhew, 964 S.W .2d at 929 (stating broadly that “in 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”); see also City of Dallas v. Chicory Court Simpson Stuart L.P., 271 S.W .3d 412, 421–22 (Tex. App.—Dallas 2008, pet. denied) (applying the ripeness standards of regulatory takings claims generally to an

2010Co. v. City of N.Y. , 438 U.S. 104, 124 , 98 S. Ct. 2646, 2659 (1978) (setting out factors for evaluating regulatory takings claims under the federal constitution); see also Lingle , 544 U.S. at 537–38, 125 S. Ct. at 2081 (noting that a regulation that “goes too far” will constitute a taking and that regulatory takings challenges outside of the two per se regulatory takings categories and the context of land-use exactions are governed by the standards set out in Penn Central ); Hallco Tex., Inc. , 221 S.W.3d at 56 . 19: See, e.g. , Mayhew , 964 S.W.2d at 929, 937 (evaluating a town’s denial of

2010Co. v. City of N.Y. , 438 U.S. 104, 124 , 98 S. Ct. 2646, 2659 (1978) (setting out factors for evaluating regulatory takings claims under the federal constitution); see also Lingle , 544 U.S. at 537–38, 125 S. Ct. at 2081 (noting that a regulation that “goes too far” will constitute a taking and that regulatory takings challenges outside of the two per se regulatory takings categories and the context of land-use exactions are governed by the standards set out in Penn Central ); Hallco Tex., Inc. , 221 S.W.3d at 56 . 19: See, e.g. , Mayhew , 964 S.W.2d at 929, 937 (evaluating a town’s denial of

2010Co. v. City of N.Y. , 438 U.S. 104, 124 , 98 S. Ct. 2646, 2659 (1978) (setting out factors for evaluating regulatory takings claims under the federal constitution); see also Lingle , 544 U.S. at 537–38, 125 S. Ct. at 2081 (noting that a regulation that “goes too far” will constitute a taking and that regulatory takings challenges outside of the two per se regulatory takings categories and the context of land-use exactions are governed by the standards set out in Penn Central ); Hallco Tex., Inc. , 221 S.W.3d at 56 . 19: See, e.g. , Mayhew , 964 S.W.2d at 929, 937 (evaluating a town’s denial of

2007We also note that, in the portion of their petition in which they attempted to reserve for federal court "unripe federal Constitutional takings claims" against all defendants, the Howeth parties specifically represented that they were not "plead[ing] such [federal] claims at this time." Section 1983 provides a remedy for violations of federal rights committed by persons acting under color of state law. 42 U.S.C.S. § 1983 (LexisNexis 2002) (speaking in terms of violations, etc., of federal Constitution and laws); Parratt v. Taylor , 451 U.S. 527, 535 , 101 S. Ct. 1908, 1913 (1981) (establishing

2007We also note that, in the portion of their petition in which they attempted to reserve for federal court "unripe federal Constitutional takings claims" against all defendants, the Howeth parties specifically represented that they were not "plead[ing] such [federal] claims at this time." Section 1983 provides a remedy for violations of federal rights committed by persons acting under color of state law. 42 U.S.C.S. § 1983 (LexisNexis 2002) (speaking in terms of violations, etc., of federal Constitution and laws); Parratt v. Taylor , 451 U.S. 527, 535 , 101 S. Ct. 1908, 1913 (1981) (establishing

2007We also note that, in the portion of their petition in which they attempted to reserve for federal court "unripe federal Constitutional takings claims" against all defendants, the Howeth parties specifically represented that they were not "plead[ing] such [federal] claims at this time." Section 1983 provides a remedy for violations of federal rights committed by persons acting under color of state law. 42 U.S.C.S. § 1983 (LexisNexis 2002) (speaking in terms of violations, etc., of federal Constitution and laws); Parratt v. Taylor , 451 U.S. 527, 535 , 101 S. Ct. 1908, 1913 (1981) (establishing

2007We also note that, in the portion of their petition in which they attempted to reserve for federal court "unripe federal Constitutional takings claims" against all defendants, the Howeth parties specifically represented that they were not "plead[ing] such [federal] claims at this time." Section 1983 provides a remedy for violations of federal rights committed by persons acting under color of state law. 42 U.S.C.S. § 1983 (LexisNexis 2002) (speaking in terms of violations, etc., of federal Constitution and laws); Parratt v. Taylor , 451 U.S. 527, 535 , 101 S. Ct. 1908, 1913 (1981) (establishing