No Categorical Police-Power Immunity for Floodplain Regulations:
Commentary on The Commons of Lake Houston, Ltd. v. City of Houston, Supreme Court of Texas (Mar. 21, 2025)

I. Introduction

In The Commons of Lake Houston, Ltd. v. City of Houston, the Supreme Court of Texas addresses a pressing question at the intersection of property rights, floodplain regulation, and climate-related risk: may a city, by labeling an ordinance as a public-safety measure and aligning it with FEMA’s National Flood Insurance Program (NFIP), insulate itself categorically from takings liability under the Texas Constitution?

The Court’s answer is unequivocal: no. Even a concededly valid exercise of a municipality’s police power—including an ordinance designed to secure NFIP eligibility—may still effect a compensable taking, damage, or destruction of property under Article I, Section 17 of the Texas Constitution.

The case arises from post–Hurricane Harvey floodplain amendments that dramatically increased required building elevations in parts of a long-running residential development on Lake Houston. The developer, The Commons of Lake Houston, alleges that the 2018 ordinance amendments rendered most of one of its most valuable sections (The Crossing) undevelopable and destroyed the economic logic of the entire 3,300‑acre project.

The court of appeals had dismissed the suit, holding that the amendments were a valid exercise of police power, adopted to conform to NFIP criteria, and therefore could not, as a matter of law, give rise to a takings claim. The Supreme Court reverses, holding:

• A regulation does not escape takings scrutiny merely because it is a proper police-power measure or is designed to comply with FEMA/NFIP criteria.
• The developer’s inverse-condemnation claim is ripe even though no permit was formally denied and no variance was requested, because the City’s conduct and litigation position established “de facto” finality.
• The developer has standing as the owner whose property value and project economics are allegedly impaired, regardless of whether it had a “vested right” in earlier regulations or builds structures itself.

The Court remands for the trial court to decide in the first instance whether the developer can prove a regulatory taking under Lucas, Penn Central, or the Texas Constitution’s “damaged” language.

II. Background and Procedural History

A. The Development and the Ordinance Change

The Commons began developing a 3,300‑acre, multi‑phase residential community near Lake Houston in 1993. The business model relied on:

• completing earlier phases,
• using revenues from those phases to finance later phases, and
• ultimately earning profits from the final, most valuable phases.

One such later phase is “The Crossing,” a 300+‑acre section with prized lakefront and lakeview lots. Despite their high market potential, many of these lots lie in the 100‑ and 500‑year floodplains (i.e., areas with 1% and 0.2% annual flood risk).

Over the years, the City of Houston supported the development:

• approving a municipal utility district,
• providing utility services,
• approving general plans for each section, and
• granting permits and waivers.

In 2017, the City approved a general plan for 122.5 acres of The Crossing, covering infrastructure for 531 lots. Relying on that approval and the then‑existing flood ordinance, The Commons invested over $1 million in developing The Crossing.

At that time, City code required new construction in the floodplain to be built with foundation slabs at least one foot above the 100‑year flood elevation.

Then, Hurricane Harvey struck in August 2017, devastating the Houston area with over 60 inches of rain and catastrophic flooding. Anticipating that FEMA would revise its flood maps and NFIP standards, the City amended its floodplain ordinances in April 2018 to require:

• foundation slabs at least two feet above the 500‑year flood elevation (the “0.2‑percent flood elevation”).

The Commons alleges that this change:

• increased required slab elevations in The Crossing by an average of 5.5 feet,
• rendered 557 of 669 lots (more than 75% of the acreage) “undevelopable,” and
• effectively destroyed the profit potential for The Crossing and, by extension, the entire project’s financial plan.

The claimed economic consequences include:

• cancellation of development and sales contracts,
• $4.4 million in lost revenue,
• $1.8 million in lost bond reimbursements, and
• borrowing over $1 million to cover cash flow.

B. Litigation History

1. The First Suit (Commons I) – Ripeness Dismissal

The Commons first sued the City in 2018, even before the 2018 amendments took effect. The City argued that the claim was unripe because:

• the developer had not applied for and been denied a floodplain development permit; and
• the developer had not sought a variance.

The court of appeals (Fourteenth Court) agreed and dismissed for lack of ripeness in City of Houston v. Commons at Lake Houston, Ltd. (Commons I), 587 S.W.3d 494 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

2. Post‑Commons I Attempts to Obtain a Permit

After Commons I, The Commons sought to engage with the City’s permitting process:

• November 2019: submitted a document seeking approval for slab elevations at the former requirement (one foot above the 100‑year floodplain). The City did not respond.
• The City then informed The Commons that:
  • the floodplain‑development permitting scheme required building‑specific plans, and
  • there was no mechanism for a “general” or “blanket” floodplain development permit for all lots.
• February 2020: The Commons attempted to apply for a site‑wide permit anyway, again seeking a “blanket” elevation approval at the prior standard. The application was rejected for lack of a complete set of plans for a specific building (and, secondarily, for lacking a mitigation plan).
• March 2020: The Commons submitted additional documentation with proposed finished floor elevations per lot, but the City again rejected the application as incomplete because no specific building plans were provided.
• Spring–Summer 2020: The Commons repeatedly sought guidance; the City provided no additional direction.
• Late 2020: The Commons submitted an amended general plan for The Crossing, designed to comply with the new ordinance:
  • scaling back from 122.5 acres to 76.5 acres,
  • eliminating many lots, including all high‑value lakefront lots,
  • allegedly destroying the project’s profitability.
  The City approved the amended general plan but maintained its position that no floodplain development permit could issue without building‑specific plans and elevations.

Only in March 2021—more than a year after the first post‑Commons I application—did the City formally explain the necessary contents of a permit application. And in this litigation, the City now takes the position that The Commons, as a developer, has “no right to obtain the permit” at all and that its takings claim “cannot ever ripen.”

3. The Second Suit and Court of Appeals’ Decision

The Commons filed this second suit in November 2020, alleging a regulatory taking under the Texas Constitution. The City filed a plea to the jurisdiction, arguing:

• Ripeness: no permit denial or variance request, so no final decision on how the ordinance applies to the property.
• Governmental immunity: immunity is not waived because, as a matter of law, the amendments cannot give rise to a valid takings claim since:
  • they are a valid exercise of the City’s police power to protect public health and safety, and
  • they were adopted to conform to NFIP/FEMA flood‑insurance criteria.

The trial court denied the plea. The City took an interlocutory appeal. The First Court of Appeals reversed and dismissed, holding:

• The Commons failed to plead a viable takings claim because the ordinance is a proper police‑power measure and tracks NFIP criteria.
• Because no valid takings claim was stated, immunity was not waived; jurisdiction was lacking.
• The court of appeals did not reach ripeness.

The Supreme Court of Texas granted review and reversed.

III. Summary of the Supreme Court’s Opinion

Justice Boyd, writing for a unanimous Court, holds:

1. No categorical safe harbor for police‑power or NFIP‑based floodplain regulations.
   A regulation may constitute a compensable taking under Article I, Section 17 of the Texas Constitution even if:
   • it is a valid exercise of the government’s police power (e.g., to protect health and safety), and/or
   • it is designed to “track” or comply with FEMA/NFIP criteria.
   Whether a taking occurred depends on the Lucas and Penn Central frameworks and, under Texas law, on whether property is “damaged”—not on the ordinance’s purpose or label.
2. Ripeness: the claim is ripe under a “de facto finality” standard.
   Even without a formal permit denial or variance request, the claim is ripe because:
   • the City’s conduct and explicit litigation position show that the developer has “no right” to the permit and that the claim “cannot ever ripen”; and
   • repetitive or unfair procedural obstacles cannot be used to avoid a final decision.
   The Court applies a pragmatic, Pakdel‑style finality standard: what matters is whether the City has committed to a position, not whether a formal denial has issued.
3. Standing: the developer has standing to bring the takings claim.
   The Commons:
   • owns the property at issue and thus has a vested ownership interest, which suffices for standing in a takings case; and
   • alleges a concrete injury (lost value and profits) traceable to the ordinance, which is redressable by damages (adequate compensation).
   The developer does not need:
   • a “vested right” in prior regulations, or
   • a direct role in constructing the homes (its role as lot developer/seller is enough).
4. Merits deferred.
   The Court does not decide whether the ordinance actually effects:
   • a per se Lucas taking (total wipe‑out of economically beneficial use),
   • a Penn Central taking (unreasonable interference with use and enjoyment), or
   • a taking under the Texas Constitution’s unique “damaged” clause.
   These “merits” issues are left to the trial court on remand.

IV. Detailed Legal Analysis

A. Structure of a Texas Takings (Inverse-Condemnation) Claim

The Court reiterates the elements of an inverse‑condemnation claim under Article I, Section 17:

1. Affirmative governmental conduct;
2. Proximate causation between that conduct and the alleged harm;
3. A taking, damaging, destroying, or applying of
4. Specific private property;
5. For public use;
6. Without adequate compensation; and
7. With intent or knowledge that the result was substantially certain.

Whether a compen­sable taking has occurred is a question of law, although factual disputes may need to be resolved by a factfinder first.

Here the only element seriously contested at this stage is (3): whether the City’s amendment caused a taking, damaging, or destruction of The Commons’s property rights.

B. Regulatory Takings Framework: Loretto, Lucas, Penn Central, and Exactions

The Court aligns Texas regulatory‑takings law with U.S. Supreme Court frameworks, while noting that Texas’s text is broader:

• Physical takings (occupation, invasion, or appropriation) are “categorical” takings requiring compensation.
• Regulatory takings occur when government regulation so restricts property that it effectively “takes” it.

The Court identifies three core categories of regulatory takings:

1. Loretto-type takings – Per se takings where regulation requires a permanent physical occupation by third parties or the government.
   (Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).)
2. Lucas-type takings – Per se takings where regulation completely deprives the owner of all economically beneficial use of the property.
   (Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).)
3. Penn Central-type takings – Non‑categorical takings where government action unreasonably interferes with the owner’s use and enjoyment, determined by an ad hoc, multi‑factor test.
   (Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978).)

The Penn Central factors, which the Court recites and applies elsewhere in its jurisprudence, include:

• Economic impact of the regulation on the property:
  compare the value lost with the value retained and with the owner’s investment.
• Interference with reasonable investment‑backed expectations:
  what was the primary intended use, how reasonable was that expectation, and what uses were legally available prior to regulation?
• Character of the governmental action:
  whether it is general or targeted, whether it takes unfair advantage, and whether procedural mechanisms allow the owner to avoid or mitigate the harm.

Separately, the Court notes a fourth regulatory‑takings category it has recognized in prior cases: land‑use exactions, where government conditions development approval on dedicating land or money. Under Town of Flower Mound v. Stafford Estates Ltd. P’ship, 135 S.W.3d 620 (Tex. 2004), such exactions are takings unless:

• the condition has an essential nexus to a legitimate governmental interest, and
• the degree of the exaction is roughly proportional to the development’s projected impact.

The Commons alleges that the City’s 2018 amendments either:

• effect a Lucas‑type total economic deprivation for the relevant lots, or
• cause a Penn Central‑type unreasonable interference with its use and enjoyment of the property.

The Supreme Court does not decide these questions; it simply holds that such theories are legally cognizable even when the regulation is a flood‑safety measure tracking NFIP standards.

C. The Texas Constitution’s Broader Text: “Taken, Damaged, or Destroyed”

Unlike the federal Takings Clause, the Texas Takings Clause provides compensation when property is: “taken, damaged, or destroyed for or applied to public use”. TEX. CONST. art. I, § 17.

The Court underscores that:

• these verbs (“taken,” “damaged,” “destroyed,” “applied”) are distinct and have different historical origins;
• Texas’s clause therefore “protects against more types of government action than its federal counterpart”;
• “damaged” may encompass non‑physical interference with property, such as substantial loss of access (DuPuy v. City of Waco, 396 S.W.2d 103 (Tex. 1965); City of Waco v. Texland Corp., 446 S.W.2d 1 (Tex. 1969)).

The Court does not fully elaborate the independent doctrine for “damage” by regulation in this case, but it flags the issue: Texas law may, in principle, recognize compensable regulatory “damage” even in circumstances where federal takings doctrine would not. That question is left for the trial court to explore on remand if the parties raise it.

D. Police Power vs. Takings: Clarifying and Limiting Turtle Rock

1. The Court of Appeals’ Error

The First Court of Appeals reasoned that:

• the ordinance amendments were adopted “to promote the public health, safety and general welfare and to minimize public and private losses due to flood conditions,” and
• as such, they were a valid exercise of the City’s police power.

Based on a statement in City of College Station v. Turtle Rock Corp., 680 S.W.2d 802 (Tex. 1984)—that “[a] city is not required to make compensation for losses occasioned by the proper and reasonable exercise of its police power”—the court of appeals concluded that a “valid police‑power regulation” cannot be a taking as a matter of law.

The Supreme Court firmly rejects this categorical use of “police power” as an immunity shield.

2. The Supreme Court’s Reaffirmation of Earlier Texas Doctrine

The Court surveys its prior decisions and emphasizes:

• All private property is held subject to the valid exercise of police power (Lombardo v. City of Dallas, 73 S.W.2d 475 (Tex. 1934); Turtle Rock).
• Many police‑power regulations (e.g., typical zoning, nuisance abatement) are not compensable takings, because they do not impose severe enough restrictions on property rights.
• However, Texas has “long rejected ‘the notion that the government’s duty to pay for taking property rights is excused by labeling the taking as an exercise of police powers’” (Steele v. City of Houston, 603 S.W.2d 786, 789 (Tex. 1980); see also Teague, DuPuy, San Antonio River Auth. v. Lewis, Brazos River Auth. v. City of Graham).

The key distinction, as the Court explains, is:

“[W]hether a regulation constitutes a valid exercise of the police power—or promotes any other important public policy, purpose, or interest—is simply irrelevant to whether the regulation causes a compensable taking.” (citing Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 543 (2005)).

Put differently:

• If a regulation does not serve a legitimate public purpose, it fails the “public use” requirement—and is invalid regardless of compensation.
• If it does serve a legitimate public purpose (i.e., is a valid police‑power measure), it may still go “too far” in burdening a particular owner, triggering a duty to compensate.
• The analysis of whether a taking has occurred turns on Loretto, Lucas, and Penn Central, not on the government’s label.

The Court characterizes efforts to draw a bright line between “police power” and “takings” as a “Serbonian bog” and “crazy quilt,” echoing its earlier skepticism in Teague and DuPuy. The inquiry is inherently fact‑specific and cannot be resolved by doctrinal labels.

3. Proper Reading of Turtle Rock

The Court clarifies that the statement in Turtle Rock about “proper and reasonable” police‑power regulation must be read in context:

• The next sentence in Turtle Rock expressly rejected a bright line and insisted on “careful analysis of the facts” in each case.
• The case involved an exaction ordinance (parkland dedication or fee in lieu) and held that such an ordinance did not, as a matter of law, constitute a taking if it was reasonably related to public welfare and not arbitrary—but remanded to the trial court to assess whether it was “unduly harsh” or disproportionately burdensome on the particular developer.

Thus, Turtle Rock stands for a reasonableness inquiry, not for categorical immunity:

“A city’s exercise of its police power may be legally valid and proper and yet cause a taking if it causes a permanent physical invasion (Loretto), completely deprives all economically beneficial use (Lucas), or unreasonably interferes with use and enjoyment (Penn Central).”

This clarification is one of the key precedential contributions of The Commons.

E. NFIP Compliance and the Fifth Circuit’s Adolph Decision

1. The Court of Appeals’ Reading of Adolph

The First Court of Appeals also relied heavily on the Fifth Circuit’s decision in Adolph v. FEMA, 854 F.2d 732 (5th Cir. 1988), holding that because the City’s ordinance was adopted to comply with NFIP requirements, any takings claim necessarily fails.

In Adolph, Louisiana property owners sued both FEMA and a parish after the parish adopted NFIP‑compliant elevation regulations that allegedly rendered properties unmarketable. The Fifth Circuit held:

• FEMA could not be liable because the NFIP is a voluntary program—local adoption is not compelled, even if participation is a condition for residents’ access to subsidized insurance.
• Therefore, FEMA’s design of the NFIP did not itself constitute a “taking” of land.

The Fifth Circuit then observed, in dictum, that even where the local government is the defendant, courts had generally rejected takings claims challenging NFIP‑based ordinances.

2. The Texas Supreme Court’s Response

The Texas Supreme Court reads Adolph much more narrowly:

• Adolph held only that FEMA (the federal actor) did not effect a taking by offering a voluntary program.
• As to local governments, Adolph merely noted that prior cases found on the facts that various NFIP‑based regulations did not meet Loretto, Lucas, or Penn Central standards.
• Those courts did not hold that no regulatory takings claim is legally possible when a local government adopts floodplain ordinances consistent with NFIP criteria.

In short, NFIP compliance is not a talisman against takings liability.

The Court further notes that in some of those cases:

• the property still had significant residual value;
• physical invasion was absent;
• economic use remained; or
• flooding risk alone—not the regulation—was the proximate cause of the loss.

These are factual determinations, not categorical rules. The Texas Court concludes:

“Here, The Commons contends that the amended floodplain ordinance effects a taking as applied to the lots in The Crossing, not that it effects a taking on its face. Whether it can prevail depends on Lucas and Penn Central (and possibly ‘damage’ under the Texas Constitution), not on whether the ordinance was designed to comply with the NFIP’s criteria.”

The Court also notes (but does not resolve) The Commons’s argument that Houston’s ordinance may actually be more restrictive than NFIP requirements, because it anticipated FEMA map changes that never materialized.

F. Ripeness and the “Final Decision” Requirement

1. General Doctrine

Ripeness is a jurisdictional requirement. A regulatory‑takings claim typically becomes ripe only when:

• there is a final decision about how the regulations apply to the specific property; and
• the property owner has, in general, at least:
  • sought a permit, and
  • sought a variance or similar relief, if available.

The purpose is to ensure the court knows “how far the regulation goes” before deciding whether it has gone “too far” (Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998); MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986); Palazzolo v. Rhode Island, 533 U.S. 606 (2001)).

But the Court stresses:

• The finality requirement is “relatively modest” (Pakdel v. City & County of San Francisco, 594 U.S. 474 (2021)).
• Owners need not pursue futile variance requests or re‑applications (Mayhew).
• De facto finality—where the government’s actions or litigation position show that further applications are useless—is sufficient.

2. Application to The Commons

After Commons I dismissed the first suit as unripe, The Commons:

• submitted multiple applications for floodplain development permits;
• repeatedly attempted to obtain a “blanket” elevation approval;
• received repeated rejections and no meaningful guidance;
• ultimately submitted a drastically scaled‑back general plan to comply with the new ordinance, which the City approved;
• still could not obtain any site‑wide permit; and
• was later informed (in this litigation) that it has “no right” to the permit and that its claim “cannot ever ripen.”

The Court deems this sufficient “finality”:

“Although the City has not yet formally denied a permit, it ‘may not burden property by imposition of repetitive or unfair land-use procedures in order to avoid a final decision.’”
(quoting Palazzolo).

By taking an absolutist stance—asserting that the developer can never ripen a claim—the City has effectively “committed to a position” (to use Pakdel’s phrase). Further applications would be futile.

Accordingly, the claim is ripe.

G. Standing and Redressability

1. Ownership vs. “Vested Regulatory Rights”

The City’s late‑raised standing objections rested on two main assertions:

• The Commons had only a “mere expectancy” that prior regulations would remain unchanged and thus lacked a “vested right” to build under those regulations.
• The developer itself does not construct homes; therefore, it supposedly has no direct interest in the elevation requirements.

The Court rejects both arguments as misapplying standing doctrine and the nature of a takings claim:

• A takings claimant does not need a vested right in existing regulations; it needs a vested ownership interest in the property taken or damaged (Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 644 (Tex. 2004)).
• The Commons indisputably owns the lots and the relevant property interests and alleges that the regulation impaired their value and developability. That is sufficient for standing.
• Whether The Commons personally constructs the structures is irrelevant; its economic injury arises from its inability to develop and sell lots as planned.

2. Redressability

The City also contended that the alleged injury is not redressable because, absent specific building plans, courts supposedly cannot know how the ordinance would apply in practice.

The Court characterizes this as essentially another ripeness/finality argument, and rejects it:

• If the ordinance has, in fact, effected a taking or damage under Lucas, Penn Central, or Article I, Section 17, damages (adequate compensation) can remedy that injury.
• This suffices to establish redressability for constitutional standing (Heckman v. Williamson County, 369 S.W.3d 137 (Tex. 2012); Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477 (Tex. 2018)).

Standing is therefore satisfied.

V. Simplifying the Key Legal Concepts

1. Inverse Condemnation

Normally, when government wants to take property, it files a condemnation action, proves public use, and pays just compensation. Inverse condemnation is the converse:

• the government does (or enforces) something that effectively takes or damages property without first paying; and
• the property owner sues to compel payment of the constitutionally required compensation.

2. Police Power vs. Eminent Domain

Government has two primary tools affecting property:

• Police power – power to regulate for health, safety, welfare, and morals (e.g., zoning, building codes, nuisance laws).
• Eminent domain – power to take property outright for public use, but only with compensation.

Many regulations under police power are not takings. But if a regulation crosses a certain severity threshold—physically invades, wipes out value, or unreasonably burdens a specific owner—it can become a taking that must be compensated. The labels “police power” vs. “eminent domain” do not control; the effect on property rights does.

3. Physical vs. Regulatory Takings

• A physical taking occurs when the government or public is physically installed on or occupies property (e.g., a roadway, utility lines, required cable boxes).
• A regulatory taking occurs when regulations so heavily restrict uses that, as a practical matter, the owner has lost key attributes of ownership (e.g., ability to build, develop, or realize value).

The core question in regulatory takings is: Has government gone too far in limiting how the owner can use the property?

4. The Lucas and Penn Central Tests

In simple terms:

• Lucas – a regulation is automatically a taking if it leaves the owner with no economically beneficial use of the property.
• Penn Central – if some economic use remains, courts weigh:
  • the severity of the economic impact,
  • how much it frustrates reasonable investment‑backed expectations, and
  • the character of the governmental action.
  A taking is found only if the regulation unreasonably burdens the owner.

5. NFIP and Floodplain Designations

The NFIP is a federal program administered by FEMA that:

• offers subsidized flood insurance in communities that adopt and enforce minimum floodplain management ordinances;
• focuses on “special flood hazard areas” — mainly 1% annual chance floodplains (100‑year floodplains);
• uses mapping and elevation standards to determine where and how building may occur.

Local governments are not required to participate. But if they do not, property owners may have difficulty obtaining flood insurance or loans. Participation often leads to stricter local building requirements in flood‑prone areas—like Houston’s two‑feet‑above‑500‑year‑floodplain rule in this case.

6. Ripeness and Futility

A claim is unripe if it is too early for a court to decide because:

• we do not yet know how the government will apply the regulation in practice; or
• the owner has not tried to get relief through ordinary channels (permits, variances).

But if the government, in effect, says:

“You have no right to what you want, nothing you do will change our position, and your claim can never ripen,”

then making the owner go through further procedural hoops is futile. At that point, the claim is ripe.

7. Standing

To have standing, a plaintiff must show:

• a concrete injury,
• traceable to the defendant, and
• redressable by a favorable court decision.

In takings cases, the injury is typically loss of property or value caused by government. If damages can make the plaintiff whole (or partly so), the redressability prong is satisfied.

VI. Impact and Future Implications

A. No Categorical Shield for Flood-Safety or NFIP-Based Regulations

The most direct doctrinal impact is the Court’s clear rejection of any bright‑line rule that:

“Valid police‑power regulations, particularly those adopted for NFIP compliance, can never be takings.”

Instead, each such regulation is potentially subject to Lucas/Penn Central/“damage” analysis as applied to specific property.

For Texas municipalities, this means:

• Adopting stricter floodplain or climate‑resilience regulations is permissible, but not automatically cost‑free.
• If regulations impose extreme burdens on particular properties—especially those with heavy pre‑existing investment—cities may be required to pay compensation.
• There is no “NFIP safe harbor” from state takings claims.

B. Strengthening of Texas’s Independent Takings Jurisprudence

The opinion fits within a broader arc of recent Texas cases that:

• emphasize the independent text and scope of Article I, Section 17 (Self v. TxDOT, Schrock, Day);
• explore the distinct roles of “taken,” “damaged,” “destroyed,” and “applied”;
• adopt federal analytical frameworks (e.g., Penn Central, Lingle) but insist that Texas’s textual protections can be more robust.

The Commons reinforces that:

• Texas courts will not mechanically equate “valid regulation” with “no taking”;
• property owners may press for compensation when regulations cause extraordinary project‑specific harms, even if those regulations are generally laudable.

C. Practical Consequences for Developers and Landowners

Developers in Texas can draw several lessons:

• Regulatory change risk is not entirely uncompensated. While property is held subject to regulatory change, drastic post‑investment shifts (e.g., Harvey‑driven ordinances) may, in extreme cases, support takings claims.
• Build a record on economic impact and expectations. To succeed under Lucas or Penn Central, detailed evidence of:
  • invested capital,
  • lost revenues/profits,
  • foregone uses, and
  • prior regulatory environment and approvals
  will be crucial.
• Engage seriously with local procedures—but document futility. The path to ripeness often requires good‑faith engagement with permitting and variance processes. But when the government’s conduct shows that further efforts are pointless, Texas courts will not require more.

D. Guidance for Municipalities and Regulators

For cities and regulatory bodies, the opinion strongly suggests:

• Design relief mechanisms. Variance or waiver processes, tailored to address extraordinary hardship or pre‑existing investments, can:
  • reduce takings risk, and
  • demonstrate that the city is not imposing uncompromising burdens.
• Avoid procedural gamesmanship. Repeatedly rejecting or ignoring applications, while later insisting the claim “can never ripen,” invites judicial findings of ripeness and finality.
• Recognize that NFIP compliance does not grant absolute immunity. When local rules go beyond NFIP minimums—or even when they match them—they can still lead to compensable regulatory takings in outlier situations.

E. Climate Adaptation, Disasters, and the “Necessity” Exception

The opinion briefly acknowledges a narrow “necessity” exception, referencing:

• Steele’s discussion of “war, riot, pestilence, or other great public calamity” where property is “destined to destruction anyway,” and
• the Fifth Circuit’s recent Baker v. City of McKinney, 84 F.4th 378 (5th Cir. 2023), which recognized a historical necessity exception to the Takings Clause for actions like emergency demolition to stop an ongoing fire.

But the Court carefully limits that doctrine:

• It applies in extraordinary, immediate emergency circumstances, not as a general license for proactive regulatory responses to natural hazards.
• No party contends that Houston’s 2018 ordinance was adopted under such emergency necessity; rather, it was a policy response to Harvey and anticipated future floods.

Thus, municipalities cannot invoke “necessity” as a blanket defense to compensation for long‑term planning regulations—even in the climate and disaster context.

F. Unresolved Issues on Remand

The trial court on remand will face several fact‑intensive issues:

• Economic impact – Does the ordinance truly render 557 lots undevelopable and destroy the project’s financial viability, or do viable uses remain?
• Investment‑backed expectations – Were The Commons’s expectations:
  • reasonable in light of the prior regulatory regime and City approvals?
  • merely speculative given the known flood risks and the City’s regulatory authority?
• Character of the governmental action – Is the regulation:
  • general in scope and evenly applied,
  • or does it impose unusually harsh burdens on this specific development without realistic avenues of relief?
• Proximate cause – To what extent is the loss attributable to:
  • the ordinance,
  • pre‑existing flood risk and market realities,
  • or independent factors (e.g., financing, market demand)?
• “Damage” under Article I, Section 17 – Does the ordinance’s alleged destruction of the project’s economics, absent physical invasion, constitute “damage” requiring compensation?

How the trial court and any subsequent appellate review resolve these questions will significantly shape the practical reach of The Commons.

VII. Conclusion: Key Takeaways

The Commons of Lake Houston, Ltd. v. City of Houston is a pivotal decision in Texas takings law, particularly for land‑use regulation in flood‑prone and disaster‑affected regions. Its central messages are:

1. Police power is not a talisman.
   Even valid, well‑intentioned regulations—enacted to protect public health and safety—can amount to compensable takings if they impose severe, project‑specific burdens under Lucas or Penn Central, or “damage” property under Article I, Section 17.
2. NFIP compliance is not a safe harbor.
   Local floodplain ordinances that “track” federal flood‑insurance criteria (or go beyond them) are not categorically insulated from takings scrutiny. Courts must examine their actual impact on specific properties.
3. Ripeness is practical, not mechanical.
   When a government makes clear—through conduct and litigation position—that it will not grant relief and that further applications would be futile, a takings claim is ripe even without a formal permit denial or variance proceeding.
4. Ownership, not regulatory expectations, anchors standing.
   A property owner has standing to seek compensation for a taking or damage to its property; it need not show a vested right in prior regulations or personally build the end structures.
5. Texas’s takings clause retains independent force.
   By emphasizing “taken, damaged, or destroyed” and rejecting categorical police‑power immunity, the Court continues to develop a robust, text‑driven state constitutional doctrine that, in some respects, may exceed federal baselines.

Ultimately, The Commons does not decide whether Houston’s post‑Harvey elevation requirements actually amount to a taking. It decides something more foundational: that such a claim is legally possible and must be evaluated on the facts. Municipalities remain empowered to regulate for flood safety and resilience, but where those regulations impose extraordinary burdens on particular owners, the Texas Constitution may require that the public share the cost of progress through just compensation.