No Takings Immunity for NFIP‑Compliant Floodplain Regulations: Commentary on The Commons of Lake Houston, Ltd. v. City of Houston

I. Introduction

The Supreme Court of Texas’s decision in The Commons of Lake Houston, Ltd. v. City of Houston arises at the intersection of land‑use regulation, flood‑risk management, and constitutional property rights in the wake of Hurricane Harvey.

After Harvey devastated the Houston region in 2017, the City of Houston significantly tightened its floodplain regulations. It raised minimum slab elevations from one foot above the 100‑year floodplain to two feet above the 500‑year floodplain. A long‑running residential developer, The Commons of Lake Houston, alleged that this change rendered most of a key project phase (The Crossing) economically undevelopable and destroyed the expected profitability of its 3,300‑acre development.

The case presents three threshold questions:

• Whether a regulation adopted as a valid exercise of the City’s police power and to comply with the National Flood Insurance Program (NFIP) can ever effect a compensable taking.
• Whether the developer’s inverse‑condemnation claim is ripe where the City has not formally denied a permit but has made it functionally impossible to obtain one.
• Whether the developer has standing to bring the claim.

The trial court denied the City’s plea to the jurisdiction, holding that immunity was waived by a viable takings allegation. The First Court of Appeals reversed, concluding that because the ordinance was a valid police‑power measure adopted to align with federal flood‑insurance criteria, no taking could occur as a matter of law. The Supreme Court of Texas disagreed and reversed, remanding the case for further proceedings.

Doctrinally, the opinion is significant on three fronts:

1. It squarely rejects the idea that a regulation adopted under the police power or to comply with NFIP criteria is categorically immune from takings liability.
2. It clarifies and applies the ripeness/finality requirement for Texas regulatory‑takings claims, emphasizing de facto finality and the impropriety of repetitive or unfair permitting obstacles.
3. It reiterates a broad view of standing and the scope of Article I, § 17, emphasizing that an owner need only show a vested ownership interest and a compensable injury, not a vested right in a particular regulatory regime.

II. Summary of the Opinion

A. Factual and Regulatory Background

The Commons of Lake Houston has been developing a 3,300‑acre residential community near Lake Houston since 1993, in multiple phases. The project’s financial model assumed that revenue from earlier phases would fund later phases, with the most valuable profits to be realized from later lakefront and lakeview phases, including a 300‑plus‑acre section called “The Crossing.”

Key background facts:

• In 2017 the City approved a general plan for 122.5 acres in The Crossing, laying out utilities and streets for 531 lots. The developer thereafter invested over $1 million in infrastructure on that basis.
• The Crossing lies within the 100‑ and 500‑year floodplains. Before Harvey, the City’s code required finished floor elevations at least one foot above the 100‑year floodplain.
• After Harvey, the City amended its ordinance in 2018 to require slabs at least two feet above the 500‑year floodplain (the “minimum flood protection elevation”).
• The Commons alleged that this change increased required slab elevations in The Crossing by an average of 5.5 feet, rendering 557 of 669 lots (over 75% of the acreage) undevelopable and destroying the expected profit of the entire project.

The developer claimed millions in lost revenue and reimbursements, cancelled contracts, and substantial borrowing needs. It sued the City for inverse condemnation, alleging a regulatory taking under Article I, § 17 of the Texas Constitution, on theories akin to a Lucas total‑loss taking and a Penn Central unreasonable interference, as well as under the Texas Constitution’s “damaged” language.

B. Procedural History

The Commons filed its first suit in 2018, before the amended ordinance’s effective date. The City argued the claim was unripe because no permit had been denied and no variance sought. The court of appeals agreed and dismissed the suit as unripe (Commons I).

Thereafter, the developer:

• Submitted a 2019 request for approval at the old elevation (one foot above the 100‑year floodplain); the City did not respond.
• Was told it could not obtain a general development‑wide floodplain permit, only building‑specific permits.
• Submitted a site‑wide application in February 2020 seeking a “blanket” approval; the City rejected it for not having specific building plans (and a mitigation plan).
• Resubmitted in March 2020 with lot‑specific finished floor elevations; again rejected for lack of building‑specific plans.
• Repeatedly sought guidance, without meaningful response.
• Ultimately submitted a drastically reduced amended general plan in late 2020, eliminating the most valuable lakefront lots and cutting the acreage and lot count roughly in half; the City approved this plan but still would not entertain non‑building‑specific floodplain permits.

The Commons filed the second suit (this case) in November 2020. The City filed a plea to the jurisdiction, arguing:

• The claim was unripe (no denial of a proper permit or variance).
• Governmental immunity barred the suit because no viable takings claim was alleged, as the ordinance was a valid police‑power measure adopted to track NFIP criteria.

The trial court denied the plea. The First Court of Appeals reversed and dismissed, holding that:

• The ordinance was a valid exercise of the police power to protect health and safety and minimize flood losses; and
• Because it tracked FEMA/NFIP requirements, the regulation could not, as a matter of law, constitute a taking (relying in part on the Fifth Circuit’s decision in Adolph v. FEMA).

The court of appeals did not reach ripeness. The Texas Supreme Court granted review.

C. Holdings

The Supreme Court of Texas held:

1. Police power / NFIP compliance not categorically immune: The fact that the ordinance was a valid exercise of the City’s police power and intended to comply with NFIP/FEMA criteria does not negate the possibility of a compensable taking under Article I, § 17.
2. Ripeness: Under the particular facts, The Commons’s claim is ripe. The City’s conduct and litigation positions established de facto finality; the claim “cannot ever ripen,” by the City’s own admission, making further applications futile.
3. Standing: The Commons has standing. It has a vested ownership interest in the property and alleges a concrete, redressable injury (loss of value and profits) allegedly caused by the ordinance. It need not possess a vested right in the perpetuation of the prior, more lenient regulatory regime.

The Court did not decide whether a compensable taking has actually occurred under Lucas, Penn Central, or the Texas “damaged” clause. Those merits questions are left to the trial court on remand.

III. Detailed Analysis

A. The Court’s Framework for Texas Takings Claims

1. Elements of an Inverse‑Condemnation Claim

The Court restates the basic structure of a Texas inverse‑condemnation claim under Article I, § 17, which “waives” governmental immunity only when a plaintiff establishes a viable takings cause of action. To prevail, a property owner must show:

1. Affirmative governmental conduct (not merely inaction).
2. Proximate causation between that conduct and the alleged injury.
3. A taking, damaging, destroying, or applying of
4. Specific private property
5. For public use,
6. Without adequate compensation, and
7. With the government acting intentionally or with knowledge that the result was substantially certain.

Only element (3) — whether the ordinance effected a “taking, damaging, or destroying” — is disputed at this stage.

2. Types of Takings Recognized

The Court adopts the familiar federal framework, but emphasizes that Texas’s Constitution is textually broader.

• Physical takings: Direct physical appropriation, occupation, or invasion. These are categorically compensable.
• Regulatory takings (three main categories):
  • Loretto / per se physical‑occupation taking: Regulation requiring a permanent physical occupation (e.g., mandatory cable installations on buildings).
  • Lucas / total economic loss taking: Regulation that deprives the owner of all economically beneficial or productive uses, leaving only a “token interest.”
  • Penn Central / ad hoc balancing taking: Regulation that unreasonably interferes with use and enjoyment, assessed via a multi‑factor, fact‑specific test:
    • Economic impact (magnitude of loss and remaining value, relative to investment).
    • Interference with reasonable, investment‑backed expectations (looking at primary expected use, objective reasonableness, and existing permitted uses).
    • Character of the government action (broad/general vs. targeted, fairness of burdens, availability of relief mechanisms).

The Commons alleges that the ordinance amendment either:

• Completely deprived it of economically beneficial use as to the affected lots (a Lucas theory), or
• Unreasonably interfered with its use and enjoyment (a Penn Central theory).

3. Texas’s Additional Verbs: “Damaged,” “Destroyed,” “Applied”

Article I, § 17 of the Texas Constitution provides that “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation….”

The Court underscores that these extra verbs mean Texas’s Takings Clause:

• Reaches more types of government action than the Fifth Amendment, which speaks only of “takings.”
• Has historically been applied to non‑physical harms such as substantial, unreasonable impairments of access to property.

The Court cites earlier Texas decisions (e.g., DuPuy, Texland, Steele) recognizing “damage” without physical invasion, such as loss of accessibility or special harm beyond that shared by the public at large.

However, the Court expressly declines to resolve how the “damaged” language would affect the Penn Central analysis in this case, because that argument was not fully developed below and is not pressed by the City as a separate issue. The reach of “damaged” thus remains an open and important field for future litigation and doctrinal development.

B. Police Power vs. Takings: Precedents and Doctrinal Clarification

1. The Court of Appeals’ Error: A False Dichotomy

The First Court of Appeals held that because the ordinance was:

• A valid exercise of the City’s police power to protect public health, safety, and welfare, and
• Designed to “track” FEMA/NFIP standards,

it could not as a matter of law cause a compensable taking. The Supreme Court of Texas unequivocally rejects that proposition.

The key doctrinal clarification: whether a regulation is a proper police‑power measure is analytically distinct from whether it effects a compensable taking. The two categories are not mutually exclusive.

2. Texas Precedent: No Categorical Police‑Power Immunity

The Court marshals a line of its prior decisions to show that the “police power vs. takings” dichotomy has long been disfavored:

• Steele v. City of Houston (1980): Explicitly rejected the notion that the government’s duty to compensate is excused by labeling its actions “police power.” The Constitution itself is the waiver of immunity when property is taken, damaged, or destroyed for public use.
• DuPuy v. City of Waco (1965): Acknowledged the “illusive” distinction between police power and eminent domain; emphasized the need for careful, case‑specific factual analysis rather than bright‑line categorization.
• Teague and related cases: Noted the doctrinal morass (“Serbonian bog,” “crazy‑quilt pattern”) arising from attempts to treat police power and eminent domain as rigidly distinct.
• City of College Station v. Turtle Rock Corp. (1984): Stated that the City need not compensate for losses from “proper and reasonable” exercises of police power, but explicitly required fact‑specific analysis and remanded to assess whether a park‑land exaction was “unduly harsh” or imposed a disproportionate burden.

The Court clarifies that the reference in Turtle Rock — that a city need not compensate for losses from proper and reasonable exercises of police power — must be read in context. The “proper and reasonable” language is, in essence, a shorthand for the conclusion that the regulation, as applied, does not amount to a compensable taking (e.g., does not cross the Penn Central line), not a categorical immunity rule.

In other words:

3. Federal Guidance: Lingle, Loretto, Lucas, and Penn Central

The Court adopts the U.S. Supreme Court’s framework for regulatory takings, relying particularly on:

• Penn Central Transportation Co. v. New York City: Established the ad hoc balancing test for non‑categorical regulatory takings.
• Loretto v. Teleprompter Manhattan CATV Corp.: Held that permanent physical occupations are per se takings, regardless of public interest.
• Lucas v. South Carolina Coastal Council: Held that total economic wipeouts are categorical takings (subject to background principles of nuisance/property law).
• Lingle v. Chevron U.S.A.: Clarified that “means‑ends” rationality (whether a regulation substantially advances a legitimate state interest) is a due process inquiry, not the takings test; the takings analysis instead asks whether the government has “taken” property, not whether the regulation is wise or efficient.

Drawing on Lingle, the Texas Court stresses that:

• Whether a regulation is good policy, well‑tailored, or strongly in the public interest is irrelevant to whether it effects a taking.
• If a regulation is not for a public use, it may be invalid even with compensation. But once the public‑use requirement is satisfied, the key question is whether the government must pay for the burdens it imposes.

4. The Necessity Exception (Not Implicated Here)

The Court briefly notes a narrow, historical “necessity” exception: in cases of war, fire, riot, pestilence, or other great public calamity where the property would be “destined to destruction anyway,” some decisions have excused compensation. The opinion references recent federal jurisprudence (Baker v. City of McKinney) confirming such an exception’s historical roots.

Crucially, the Court holds that this exception is not applicable here. The City did not amend the ordinance as a direct response to an immediate emergency threatening imminent destruction of specific property. Instead, it enacted a forward‑looking regulatory scheme. That kind of measure is subject to ordinary takings analysis.

C. NFIP Compliance and the Adolph Line of Cases

1. The City’s NFIP‑Based Defense

The City argued, and the court of appeals accepted, that because the ordinance was adopted to align with FEMA/NFIP criteria, any alleged harm could not, as a matter of law, constitute a compensable taking. The opinion:

• Recognizes that the 2018 amendment was adopted “to comply with NFIP/FEMA standards and in anticipation of new FEMA floodplain maps.”
• Notes that FEMA never actually imposed the stricter 500‑year‑plus‑two‑feet standard; the City’s ordinance is therefore more restrictive than current NFIP minimums.

However, the Court holds that even if the ordinance simply mirrored NFIP criteria, that would not categorically bar a takings claim.

2. Re‑reading Adolph v. FEMA

The First Court of Appeals relied heavily on the Fifth Circuit’s decision in Adolph v. FEMA, where property owners sued both FEMA and a local parish over height‑elevation requirements adopted in connection with NFIP participation. The Texas Supreme Court carefully parses that decision:

• As to FEMA, the Fifth Circuit held there was no taking because NFIP participation is voluntary; FEMA did not compel the parish to adopt the ordinance. Thus FEMA itself had not “taken” property.
• As to local governments, the Fifth Circuit observed that NFIP‑compliant ordinances had in several cases been found not to effect a taking, but those decisions rested on detailed applications of Loretto, Lucas, and Penn Central — not on a categorical NFIP immunity rule.
• Crucially, Adolph itself ends by emphasizing that the validity of an NFIP‑tracking ordinance “depends upon the facts involved in each case.”

In other words, NFIP compliance may provide a strong public‑policy justification and may go a long way toward showing that an ordinance is substantively reasonable. But it does not automatically resolve:

• Whether the regulation causes a physical occupation (Loretto),
• Whether it eliminates all economic use (Lucas), or
• Whether it imposes an unreasonable, disproportionate burden on a particular owner under Penn Central (or under Texas’s “damaged” clause).

By rejecting a categorical NFIP‑based defense, the Court ensures that:

D. Ripeness and the Final‑Decision Requirement

1. General Ripeness Doctrine in Regulatory‑Takings Cases

For regulatory‑takings claims, ripeness turns on whether there is a final decision applying the regulation to the property. As the Court summarizes (following Mayhew and U.S. Supreme Court cases):

• The owner generally must:
  • Submit at least one permit application, and
  • Seek a variance or similar relief if the application is denied.
• The goal is to know how far the regulation actually goes, i.e., the extent of the restriction and whether some meaningful, economically beneficial use remains.
• The “finality requirement is relatively modest” (citing Pakdel); it asks only whether the government has committed to a position and whether further procedures could realistically alter the outcome.

Futility doctrine is critical: owners are not required to engage in repetitive, empty exercises when the authority has already made its position clear.

2. Application to The Commons: From Unripe (First Suit) to Ripe (Second Suit)

The first lawsuit was dismissed as unripe because it was filed before the ordinance took effect and before any real permit engagement. The second lawsuit presents a different picture.

The developer’s efforts post‑Commons I included:

• 2019 application for approval at the old elevation — no response from the City.
• Attempts to secure a development‑wide floodplain permit — City insisted there was no such process, only lot‑by‑lot building permits requiring full structural plans.
• Multiple re‑submissions, met with rejections on process (structural plans) rather than substance (elevation).
• Submission of a dramatically down‑scaled general plan in late 2020 consistent with the new elevation standard, at severe cost to the project’s anticipated profitability.
• Continued refusal by the City to consider non‑building‑specific floodplain permits.
• Eventually, in this litigation, the City’s position that The Commons, as a developer, has “no right” to a floodplain‑development permit and that its takings claim “cannot ever ripen.”

The Court emphasizes that the City not only failed to provide a clear path forward but affirmatively maintained (in the Supreme Court) that The Commons can never obtain the permit it seeks. Two key points follow:

• Engaging in further applications would be futile; the City has signaled finality by its practices and litigation stance.
• The City cannot “burden property by imposition of repetitive or unfair land‑use procedures in order to avoid a final decision” (quoting Palazzolo).

On these facts, the Court holds that the final‑decision requirement has been satisfied de facto: the City has committed to a position that bars the relief that might avoid a taking.

3. Distinguishing “Ripeness” from Merits and from “Standing”

The City attempted to recast ripeness as a standing or redressability problem (citing Urban Developers LLC v. City of Jackson). The Court treats this as essentially another way of arguing non‑finality, and rejects it:

• Ripeness asks whether the dispute is sufficiently concrete and the regulatory impact sufficiently determined.
• Standing asks whether the plaintiff has suffered (or is threatened with) a concrete, particularized injury that is fairly traceable to the defendant and redressable by a court.
• Here, if a taking is found, a damages award will redress the injury. That is enough.

E. Standing, Vested Rights, and Redressability

1. Ownership vs. Vested Regulatory Rights

The City argued that The Commons lacked standing because:

• It had only a “mere expectancy” that the old, less stringent floodplain regulations would remain in place; and
• It didn’t build homes itself, so it allegedly had no interest affected by a restriction on where homes may be located.

The Court rejects both arguments.

Key points:

• A “vested right” in the constitutional takings context is a right of ownership in the property, not a vested right to an unchanging regulatory scheme.
• The Commons plainly owns the land and therefore has a vested interest in the property and its value.
• Article I, § 17 protects that ownership interest from uncompensated taking, damaging, or destruction; it does not freeze zoning or floodplain ordinances in place.

Thus, The Commons has standing to assert a takings claim based on decreased value and lost economic use, irrespective of whether it builds homes itself or sells lots to builders.

2. Redressability

For standing, an injury must be redressable by court order. The City contended that without specific structural plans and lot‑level elevations, a court could not determine how the City would apply the ordinance, and thus could not know if a taking occurred.

The Court responds that:

• This is at most an argument about proof and merits, not about the court’s power to grant relief.
• If The Commons proves that the ordinance, as applied, caused a taking or damage, the court can award compensation — exactly what Article I, § 17 requires.
• That potential for a damages remedy is sufficient to satisfy the redressability component of standing.

IV. Impact and Implications

A. No Categorical Safe Harbor for Flood‑Risk Regulations

The decision sends a clear signal: even the most laudable regulatory goals — including flood risk mitigation and eligibility for federal flood insurance — do not automatically shield governments from takings liability.

Implications:

• Texas municipalities cannot assume that aligning with or exceeding NFIP standards confers takings immunity.
• Courts must still conduct fact‑intensive analyses to determine whether particular applications of floodplain regulations:
  • Eliminate all economically beneficial use of affected parcels, or
  • Impose unreasonable, disproportionate burdens on specific owners.
• Developers and landowners in floodplains retain access to inverse‑condemnation remedies, though prevailing on the merits will often be difficult given the factual and economic showings required under Lucas and Penn Central.

B. Municipal Permitting Practices Under Scrutiny

The Court’s ripeness discussion has practical implications for how cities process permits when faced with potential takings claims:

• Cities that refuse to take a clear position — by indefinitely delaying, demanding constantly shifting application formats, or insisting claims will “never ripen” — risk having courts find de facto finality and ripeness against them.
• Agencies are discouraged from using procedural obstacles as a strategy to avoid judicial review.
• Clear, timely, written denials or approvals (with or without conditions) will generally better position governmental entities in subsequent litigation, even if such clarity also makes suits ripe sooner.

C. Re‑centering Texas’s Distinct Constitutional Text

The opinion contributes to a broader trend in Texas jurisprudence of taking the text of Article I, § 17 seriously, rather than simply shadowing federal doctrine. It:

• Stresses the extra verbs “damaged,” “destroyed,” and “applied,” and hints that their “distinct scope” may justify results beyond those required by the federal Fifth Amendment.
• Recalls historical decisions that compensated non‑physical harms — especially impairments of access and special injuries beyond those shared by the public at large.
• Leaves open the possibility that future cases will more fully separate Texas takings doctrine from its federal counterpart, particularly under the “damaged” clause.

Although the Court does not decide the “damaged” issue here, litigants can be expected to invoke that language more aggressively, especially in cases involving severe regulatory impacts that fall short of total value wipeout.

D. Flood‑Control, Climate Risk, and Development Strategy

From a planning and policy perspective, the case illustrates the tension between:

• Long‑term climate and flood‑risk management, encouraging or compelling safer siting and construction practices; and
• Investment‑backed expectations of developers who made substantial investments under an earlier regulatory baseline.

While governments retain broad authority to regulate land in flood‑prone zones, the cost of significant retroactive burdens may sometimes have to be shared with affected owners via compensation. The opinion emphasizes that:

• Inverse condemnation is the constitutional mechanism for spreading the cost of public improvements (or newly recognized risks) across the public at large, rather than forcing a small number of owners to absorb all losses.
• Floodplain ordinances that preserve meaningful development value are far less likely to trigger takings liability than those that effectively sterilize land or destroy core project economics.

V. Complex Concepts Simplified

1. Inverse Condemnation

“Inverse condemnation” is the label for a lawsuit brought by a property owner against the government, claiming that the government has taken or damaged property without following formal eminent‑domain procedures or paying compensation. Instead of the government suing to condemn property (direct condemnation), the owner sues to recover constitutionally required compensation for a taking that has already occurred.

2. Police Power vs. Eminent Domain

Two core governmental powers often overlap:

• Police power is the authority to regulate for public health, safety, morals, and general welfare (e.g., zoning, building codes, environmental protection).
• Eminent domain is the power to take private property for public use upon payment of just compensation.

Historically, courts tried to draw a bright line: regulation (police power) requires no compensation; takings (eminent domain) do. The Texas Supreme Court (and the U.S. Supreme Court) now reject that rigid dichotomy. A valid regulation can still go “too far” and amount to a taking, requiring compensation.

3. Floodplain Terminology: 100‑Year and 500‑Year Floodplains

The opinion uses:

• 100‑year floodplain (1%‑chance floodplain): Area with a 1% chance of flooding in any given year, not literally flooding once every 100 years.
• 500‑year floodplain (0.2%‑chance floodplain): Area with a 0.2% annual chance of flooding.

Houston’s pre‑Harvey ordinance required finished floor elevations one foot above the 100‑year floodplain. The post‑Harvey amendment required two feet above the 500‑year floodplain, a substantial increase in required height.

4. NFIP (National Flood Insurance Program)

The NFIP is a federal program, administered by FEMA, that offers flood insurance in communities that adopt and enforce minimum floodplain management regulations. Communities voluntarily participate but must:

• Map flood hazards (e.g., 100‑year floodplains), and
• Impose certain building and development restrictions in those zones.

Local ordinances “tracking” NFIP criteria often:

• Limit or condition development in flood‑prone areas, and
• Raise construction costs by requiring higher elevations or other mitigation measures.

This case holds that such NFIP‑motivated ordinances are not categorically shielded from takings claims; they are judged under standard takings principles.

5. Lucas and Penn Central in Practical Terms

• Lucas‑type taking:
  • Occurs when a regulation leaves land with no economically beneficial or productive use — effectively worthless except as a nominal ownership interest.
  • Example: A regulation that prohibits all building, farming, or other income‑producing uses on a parcel, leaving only bare title.
• Penn Central‑type taking:
  • Does not require total loss of value.
  • Considers:
    • How much value was lost.
    • Whether the regulation upset reasonable, investment‑backed expectations (not mere hopes).
    • How the government’s action is structured and whether it unfairly singles out or disproportionately burdens some owners.

The Commons is essentially arguing both that:

• Certain lots or acreage have been left with no viable development value (a possible Lucas claim), and
• The overall economic hit to the project — especially loss of its most valuable lots and profit expectations — constitutes an unreasonable interference under Penn Central (and possibly under Texas’s “damaged” clause).

6. Ripeness and Finality

In regulatory‑takings cases, ripeness is about whether the government’s position is sufficiently final to make the dispute concrete:

• Not ripe: The owner hasn’t applied for any permit or sought a variance, and the government hasn’t yet said “yes” or “no” to any specific proposal.
• Ripe: The owner has applied (perhaps multiple times) and the government has clearly indicated that the requested use will not be allowed, or has made it clear further requests would be pointless.

Courts do not require owners to repeatedly apply when it is obvious, from the government’s conduct or explicit statements, that further applications would be denied.

VI. Conclusion

The Commons of Lake Houston, Ltd. v. City of Houston is primarily a jurisdictional and doctrinal clarification, not a final resolution of whether Houston’s post‑Harvey floodplain ordinance actually effected a taking. Nonetheless, it establishes several important principles for Texas takings law:

• No categorical immunity for police‑power or NFIP‑driven regulations. A land‑use regulation serving public health and safety, even one modeled on or exceeding federal flood‑insurance criteria, may still effect a compensable taking, depending on the severity and distribution of its burdens.
• Ripeness is practical and fact‑based. When a city’s procedures and litigation posture make clear that a particular use will not be allowed and that a claim “cannot ever ripen,” courts will treat the dispute as ripe rather than requiring futile additional applications.
• Standing rests on ownership and injury, not a vested regulatory status quo. A landowner who holds title and alleges concrete economic injury from a regulation has standing to seek compensation, even if it does not directly construct improvements itself.
• Texas’s Takings Clause retains an independent identity. By emphasizing the “taken, damaged, or destroyed for or applied to public use” language and citing its own cases on non‑physical damages, the Court continues to position Article I, § 17 as potentially more protective than the federal Takings Clause.

On remand, the trial court will need to undertake the demanding factual work of determining whether, and to what extent, the City’s floodplain ordinance:

• Eliminated all economically beneficial use of some or all of The Commons’s property,
• Unreasonably interfered with its investment‑backed expectations and use and enjoyment, or
• “Damaged” its property within the meaning of the Texas Constitution’s distinctive text.

Regardless of the ultimate outcome on the merits, this opinion stands as an important precedent in Texas land‑use and floodplain regulation, ensuring that even in the face of legitimate and pressing public safety concerns, the constitutional mandate of “adequate compensation” retains real force.