*1 TEXAS, INC., Petitioner, HALLCO COUNTY, Respondent.
McMULLEN
No. 02-1176.
Supreme Court of Texas.
Argued Jan. 2005.
Delivered Dec.
Rehearing Denied June *2 prohibiting
nance the location landfills within three miles of reser- water-supply voir effected unconstitutional property. We hold that Hallco’s claim is *3 thus affirm of ap- barred and the court peals’ judgment. Background
I. January In bought Hallco acres of land located about miles from 1.75 Canyon Reservoir, Choke sometimes re- Lake, Canyon ferred to Choke County. im- McMullen The reservoir pounds water from the Frio and River supplies Corpus water to the Christi and number of other communities region. purchased prop- I erty operate with intent to a Class landfill, a nonhazardous industrial waste requiring use from the Texas Commission on Environmental Quality1. Class I industrial waste waste may include that, physi- because of its concentration or Blais, Lynn University E. of Texas characteristics, toxic, cal or chemical “is Law, Jr., George R. School James corrosive, flammable, strong or sensitizer George Brothers, & L.L.P. Max Re- and irritant, generator pressure sudden Hicks, Law Max nea Office of Renea heat, means,” by decomposition, or other Hicks, Austin, TX, for Petitioner. may pose danger potential and which to Allison, Portia Bosse and James P. Alli- human health or the environment. Tex. L.L.P., Associates, Austin, Bass & for son Safety 361.003(2)(A),(B); § Health & Code Respondent. 335.1(18)(18). 30 Tex. Admin. Code Class I I nonhazardous is distinct from Class O’NEILL the opinion Justice delivered waste, poten- but “is hazardous considered III.B, V, I, II, of the Court as Parts and threatening to human tially health and JEFFERSON, joined by Chief Justice properly environment if not be- WAINWRIGHT, managed, Justice Justice BRISTER, JOHNSON, properties and Justice and of the constituents and cause IV, joined opinion as to Part III.A and include,” requires can this class and thus JEFFERSON, Justice Justice Chief special handling. Texas on En- Commission BRISTER, and Justice JOHNSON. Quality, vironmental Guidelines Coding Texas, Inc. contends McMullen and Industeial Classification (2005), County’s denial an ordi- of variance from available and Hazardous Wastes time, agency changed as the to the Texas Envi- 1. At was known Commission on Quality, Reg. Natural Resource Com- see 27 Tex. Texas Conservation ronmental (2002), opinion. name which we will agency's mission. refer in this protect necessary preserve http://www.tceq.state.tx.us/ water of the citizens of comm_exec/forms_pubs/pubs/rg/rg- the health welfare In the of Hallco’s 022_476238.pdf. course that “soil in the area County;” McMullen dis- purchase, company’s president mate- porous and subsurface of the lake plans volatile;” with cussed rials tend be unstable County Judge, (3) voiced the McMullen who within three disposal of solid waste “the days pur- Halleo opposition. Eleven after Lake consti- Canyon of Choke miles chased McMullen health, safety, a threat to the tute adopted a resolution Commissioners Court welfare;” present “the tech- and that use expressing opposition instal- regard available nology with *4 sup- potential a hazard to local water as lation, solid operation and maintenance of County’s Despite disagreement, the plies. pre- insufficient to disposal sites is waste the proceeded plans develop Halleo with adjacent Id. contamination of areas.” vent landfill, property as an industrial-waste Safety nor the and Code Neither Health 1992, 27, formally filed its July and on any procedure ordinance establish the application with the Texas Commission prohibi- a from the landfill obtain variance Quality. Environmental tion. 1993, the In June the enacted County passed ordi- By the time the pursuant here ordinance at issue to section nance, Halleo it had more claims invested Safety 364.012 the Health Code. $800,000 in the and the than site Commis- enjoy fair- generally While Texas counties The Commission permitting process. sion ly authority, limited zoning provision that January “final permit” a draft in issued county municipal prohibit allows 1995, permit” and a final draft “revised disposal pres- industrial solid-waste A little over month later. final draft health, safety, ents threat recom- permit reflects conditions permit welfare, long county desig- so as the after mended the Commission’s staff disposal permissi- nates area in which review, completion its technical but Safety ble. Tex. Health & Code depend on the permit’s issuance still (b).2 364.012(a), County’s § or- McMullen hearing. See outcome of contested-case prohibits the of solid disposal dinance 80.118(a)(1). § 30 Tex. Admin. Code Canyon waste within three miles of Choke Christi, Corpus County, City of Lake, area disposal but allows other Authority, and oth- River several Nueces long as state county applicable of the so appeared proceed- in the Commission ers requirements are met. McMullen objections ap- to Hallco’s ings and raised Although ORD. No. 01-06-93. application apparently Hallco’s plication. technical at the had conducted no studies pending at the Commission.3 remains ordi- passed, time the ordinance was challenged Halleo predicatory In June provisions nance’s state fifing in the drinking County’s ordinance suit supply “a safe abundant landfills, prohib- solid waste and directed In was amended to industrial 2. the statute adopting suspend processing pend- counties an ordinance the Commission to pending. which a was adopted rules. ing applications such until 364.012(e). R.S., Safety Leg., ch. May 78th Act of Tex Health & Code 2-3, 1117, §§ Gen. 2003 Tex. Laws legislation Legislature enacted adopted rules 3208. The Commission gov- requiring adopt rules the Commission March erning management and aspects all operation new commercial nonhazardous court; federal district it also a paral- filed Amendment claim premature was because proceeding lel in state court. The federal Hallco had not sought compensation under court dismissed Hallco’s substantive due- I, article section 17 of the Texas Constitu- process equal-protection claims with tion. Id.
prejudice, holding that the ordinance was
A week after the federal court’s dis-
rationally
legitimate govern-
related to a
missal,
summary
moved for
purpose.
mental
F.Supp.
241-42
judgment in the state court action. With
(S.D.Tex.1996).
so,
In doing
the court de-
respect
claims,
Hallco’s
List,”
scribed an “Issues
prepared by the
County argued that Hallco had no claim
Office of Public Interest Counsel and at-
for compensation under either the state or
tached as an exhibit to
brief-
federal constitution because Hallco had no
ing,
“aptly
illustrating]
safety
cognizable property
disposing
interest
of this proposed project is
‘fairly
at least
”
property.
waste on its
debatable.’
Id. at 241. The court dis-
argued, alternatively,
prejudice
missed
without
ordinance
al-
leging an
police power
unconstitutional
reasonable exercise of
viola-
tion of the Fifth
deprive
Amendment to the United
that did not
Hallco of all economic
*5
Constitution,
States
holding
ripen
that to
use of its property.
also
its
takings
federal
claim Hallco first had to
summary judgment
moved for
on Hallco’s
compensation
seek
through procedures the
equal-protection, due-process, contracts-
state had established.
Id. at 240. The
clause,
statutory
and state
causes of ac-
court rested that
upon
decision
William-
tion.
granted
The trial court
County Regional
son
Planning Commis- motion as to all
specifying
claims without
Bank,
sion v. Hamilton
473 U.S.
105
Texas,
grounds.
Hallco
Inc. v.
(1985),
S.Ct.
55 in Code, stroyed property for use Safety Health and and stated as I, that, article section 17 of violation of alleged Hallco Texas also Constitution. already if a permit, Hallco had [e]ven its property had taken definition, not property it would have a just compensation violation without disposal interest of solid waste. the Fifth Amendment to United States regulations permits [Commission] define purported Hallco to reserve Constitution. being property not interest or a prosecution way the federal only right.... vested courts, citing England v. Loui County regulation federal McMullen affected Examiners, siana Board Medical denying right it the State was 461, 11 L.Ed.2d 440 operate facility pro- waste solid (1964); expectancy Jennings site. A mere v. Caddo Parish School posed future (5th Board, Cir.1976); F.2d which would services render land valuable, Au in the of a Fields Manatee Airport more absence con- v. Sarasota (11th tract, Cir.1992); right thority, F.2d vested (Tex. State, purposes determining whether tak- S.W.2d Guetersloh denied). ing App.-Austin has occurred. Hallco la writ petition a claim ter amended to assert (citations omitted). Id. at *3 The court of Real Property under the Texas Private 16, 1997, appeals’ judgment April issued Act, Rights which allows Preservation appeal and Hallco did decision. govern owners for certain sue years More than two after the court of in an mental actions result unconstitu appeals’ judgment nearly years six use proper tional or restrict the enacted, after the ordinance *6 ty so to value at least as reduce its a request submitted for a variance to the twenty-five percent. Tex. Code Gov’t McMullen County Commissioners Court. that, alleged Hallco a result 2007.021. changes Hallco proposed offered no to its action, County’s of the it had sustained Instead, request landfill. Hallco’s claimed $5,141,700, property-loss damages of busi the ordinance had no basis scientific $15,811,700, damages per ness-loss the alleged singled had out Hallco $821,706. damages mit-expense property disparate and its for and unfair treatment. Attached to request the August moved appraiser’s assessment ordi- all Hallco’s summary judgment on impact nance’s economic Hallco. Hall- that County again argued claims. The County to co asked the issue a variance constitutionally protected no had permitting operate facil- right its land for solid- property use ity “notwithstanding provisions of the did, even if it disposal, waste and that County’s County permit- Ordinance.” The reasonably police exercised its presentation ted Hallco to make a on the also power. asserted Court, request to the Commissioners but judi- Hallco’s claims were all barred res no action on Hallco’s request. took they could been cata because were or later, Finally,
Two
filed the
raised
the first
lawsuit.
months
law
state
limi-
underlying
appeal.
County argued
suit
this
Hallco ex
that the statute of
laches
claims.
pressly
challenge
disavowed
tations and
barred Hallco’s
Instead,
validity.
again granted
Hallco al The trial court
ordinance’s
grounds,
leged
by denying
request
specifying
its variance
motion without
taken,
Tex-
appeals
affirmed. Hallco
damaged,
had
de
court of
as,
(Tex.1984)).
County,
Inc. v.
“Physical
is,
McMullen
possession
cate
2002) (“Hallco
(Tex.App.-San
Antonio
gorically,
taking
compensation
”
II”).
appeals
The court of
reaffirmed
constitutionally
its
mandated....
at
Id.
prior holding that Hallco had no constitu-
(citing
Council,
669-70
Tahoe-Sierra Pres.
tionally protected
property interest
Inc.
Reg’l
v. Tahoe
Planning Agency, 535
disposal
of solid waste on
its
U.S.
152 L.Ed.2d
(2002)).
defeating
thus
Hallco’s takings
Regulatory
action short of
whether it was framed as a facial or an as-
physical confiscation or
may
invasion
also
applied challenge.
Id. at 738-739. The
result in a
A
taking.
regulation
Id.
that,
court also held
regardless of whether
deprives
property
owner of all economi
Hallco’s
ripe
federal
claim was
cally
productive
beneficial or
use of the
decided,
when Hallco I was
property
“the issue of
regulation categori
“makes the
whether a
had
cally taking.”
occurred under ei-
Id. at 671. Lesser inter
ripe,”
ferences, however,
ther federal or state law was
also result
in a
right
Hallco had failed to
taking.
reserve
types
regulatory
These
actions
return to federal
prior
hoc,
court
lawsuit.
require an “essentially ad
factual in
”
granted
Id.
petition
We
....
quiry]
Id. at 672 (quoting Penn
for review.
York,
Cent. Transp.
Co. v.
New
A. Overview regulation A may go so far in imposing public private burdens on inter I, Article section 17 of the Texas require compensation. ests as to Id. at provides Constitution person’s “[n]o In deciding regulatory whether ac taken, damaged shall be or de far,” goes tion carefully weigh “too we “all stroyed or applied use without ” circumstances,” the relevant including: adequate compensation being made.... “ (1) I, § Const., regula- art. 17. Absent a ‘the economic cogniza impact Tex. (2) interest, claimant”; ble a claimant tion on the “the extent to is not I, compensation entitled to which the under article has interfered with *7 Ashmore, expecta- section 17. Tarrant distinct investment-backed (Tex.1982). (3) tions”; 422 Although 635 S.W.2d “the character of the ” takings provision differently governmental our is worded action.’ than the Takings Clause of the Fifth (quoting Id. at 670-72 Connolly v. Pension Amendment to the United States Constitu 211, 225, Corp., Guar. 106 Benefit tion, we have described it as “comparable” (1986) 89 L.Ed.2d (quoting 166 parties agree and the here that it appro is Central, Penn at priate guidance. to look to federal cases for 2646)). governmental The extent of the Devel. Co. v. Glenn Sheffield question intrusion be a for the trier of (Tex.2004). Heights, 140 S.W.3d fact, but whether the facts constitute a “ that, provisions recognize Both while ‘all question a is law. Id. property subject is held to the valid exer (citing Mayhew Sunnyvale, v. Town police power,’” cise of the a (Tex.1998)). S.W.2d 932-33 circumstances, may, under some constitute B. The Parties’ Contentions taking requiring compensation. a Id. at (quoting City College appeals Station v. Hallco contends the court of mi- that, sanalyzed Turtle Rock Corp., takings by holding its its not reserve Halleo did law, lodge tive because Halleo could a matter of According to I. challenge against in Halleo regulatory takings federal claim it had not solely as-applied because chal- Halleo, litigating ordinance its it is waste-disposal an industrial yet obtained Halleo claims time. lenge for the first Halleo, a landowner According to permit. ripe when challenge was not as-applied investment- has a reasonable always particu- no because litigated I was Halleo develop- pursuing expectation backed the ordinance larized when the was lawful project ment that Halleo had been made. property and need not demon- purchased land was now, that County’s position contends necessary all it has secured strate that in- claim, entirely judicata bars res chal- pursue in order permits prior in the position with its consistent Moreover, complains, Halleo lenge. County’s claim was that federal suit one improperly elevated appeals court of final- under Williamson ripe invest- landowner’s relevant factor —the the trial Because requirement. decision dispositive expectations ment-backed —to subject-matter not have had court would contrary Mayhew and inquiry, threshold claim, argues, Halleo jurisdiction over the main- analysis, This Halleo Penn Central. by judicata, res it cannot be barred nuanced, tains, fact-specific transformed County’s affirmative reasons the similar approach of formulaic inquiry type into the laches, and estoppel, collateral defenses of repeatedly cau- Supreme Court has con- Finally, fail. Halleo limitations must that the against. points Halleo out tioned erred affirm- appeals the court of tends Central, Sheffield, in Penn landowners deny- by summary judgment because ing necessary for permits all lacked Mayhew ordinance, variance from the ing Halleo a ap- the court of development, and claims public County imposed a substantial preclude almost ev- peals’ approach would which, in fairness and Halleo all burden on ery takings challenge. Halleo conceivable as a borne justice, statement should be acknowledges this Court’s Mayhew existing permitted that it “was sin- “[t]he Halleo contends whole. ‘pri- constitute uses of Court to by the Commissioners’ gled out mary expectation’ of the landowner county’s choice the entire cost bear ” Mayhew, 964 by regulation.” affected Halleo free of landfills.... to remain added). But ac- (emphasis at 936 S.W.2d sum- unrefuted presented claims that Halleo, “obviously cording to the Court the ordinance proof that mary-judgment existing should look to meant courts the value of its decreased applicable to the land use restrictions it had a distinct ninety-nine percent and reg- determining whether property when expectation investment-backed with reasonable invest- ulation interferes *8 oper- property to use its would be able expectations.” ment backed facility when it solid-waste-disposal ate a appeals court of Halleo also contends the from the Commission. received its summary judgment on affirming erred well that it acted County responds The takings as-applied Fifth Amendment its by passing police power its within appro- the claims it followed claim. Halleo protect the ordinance to enforcing the review to secure federal priate procedure drinking water. of County’s main source it in reserving by expressly of that entitled to County, it was According to the Guetersloh, at 289- 930 S.W.2d petition, its citizens protect its options its explore incorrectly 90, appeals the court of per- in the Commission participating first was ineffec- that the reservation reasoned 58 ”
mitting process
enacting
before
the ordi-
litigated
could have been
in a prior suit.’
nance,
Am.,
and its
presumptively Getty
ordinance is
Oil Co. v. Ins. Co. N.
845
of
Moreover,
asserts,
794,
(Tex.1992)
valid.
the County
Hall- S.W.2d
799
(quoting Barr
property
co had no
v.
disposing
Corp.,
interest in
Resolution Trust
837 S.W.2d
(Tex.1992)).
waste on
property
solid
its
631
apply
because
nev-
We
the trans
use;
a right
approach
judicata,
er had
to such
actional
to res
state law
requires claims
prohibits
disposal
arising
the
out of
same
of solid waste with-
subject
permit,
matter to be litigated
single
out
in a
Hallco cannot assert an
Barr,
lawsuit.
837 S.W.2d at
investment-backed
631. The
expectation on the
res-judicata doctrine
public
“serves
speculative premise
might
vital
that it
obtain a
by promoting
finality
interests”
case,
If
permit.
the County
were the
Hotel,
judgments. San Remo
v. San
then
L.P.
argues,
every
owner
within
Francisco,
323, 345,
miles
three
of Choke Canyon Reservoir
(2005).
L.Ed.2d
would have a
We
similar
claim. But
takings
recognized that
prevents
if
the doctrine
even
cognizable
Hallco had a
needless,
interest,
repetitive litigation,
G. and
claims,
John
the ordinance
Found,
Kenedy
Marie Stella
Mem’l
v. De
not an
unreasonable interference.
whurst,
(Tex.2002)
90 S.W.3d
288-89
is not required
Government
to ensure that
Shore,
(citing
Hosiery
Parklane
Co. v.
profitable
landowner can make the most
L.Ed.2d
use
its
pre-
and the
(1979)),
so,
and in doing
“advance[s]
summary-judgment
sented
proof
oth-
(who
of the litigants
interest[s]
must
reasonably
er
profitable
prop-
uses
suit),
(who
pay for each
must
are
courts
erty
any event,
available to Hallco. In
suit),
(who
try each
must
County argues,
judicata
res
bars all of
provide jurors and
each
administration for
Hallco’s claims because
elements of
suit).”
Inc.,
Carriers,
Schneider Nat’l
Hallco’s “facial” and “as-applied” claims
(Tex.2004).
Bates,
adjudicated
same
fully
are the
and were
I.
prohi-
ordinance created
judicata
Hallco contends res
does
bition,
regulation,
not a
argues,
apply
previ-
because Hallco’s claim in the
and Hallco’s
submission of
variance
ous suit was a facial
chal-
constitutional
changed
nothing. The
maintains
lenge
chal-
ordinance while this suit
that under
theory,
Hallco could lenges
County’s particular application
an already adjudicated
revive
claim any
of the ordinance to its
its
property, and
as-
simply by submitting
number
times
ad-
takings claim
applied
was not
in Hall-
ripe
requests.
ditional variance
co I
had not sought
because
a variance
However,
from the ordinance.
neither
Analysis
III.
arguments
judicata’s
these
circumvents res
this case.
judicata
A. Res
begin by considering
We
argues
as-ap
County’s res-judicata
because,
argument
if plied
and facial
claims are distinct
meritorious, it
dispositive
appeal.
this
adjudication
and therefore the
can
of one
judicata,
doctrine of
claim pre
res
bar assertion
the other. Whether
*9
clusion,
by parties
bars a
cognizable
may
second action
or not a
distinction
be
privies
claims,
their
actually
and
on matters
liti
takings
drawn between Hallco’s
of
suit,
in a
gated
previous
course,
as well
claims
not answer
of
question
does
the
“ “which,through
of diligence,
judicata
as-applied
the exercise
res
whether
bars its
challenge
takings
a
claim
that
the
claim
be
Certainly
pact
here.
contract
so
tort,
is distinct from one
in
if the
based
but
In Williamson
adequately
assessed.
subject
matter
claims arise out
the same
the
County,
example,
planning
for
commis-
brought
they
can
cannot
together
be
disapproved
developer’s proposed
sion
separately.
Getty, 845
be asserted
See
reasons,
eight specific
including
for
plat
at 798. Hallco contends its as-
S.W.2d
the
density
grade problems,
length
ripe in Hall-
applied takings claim was not
roads,
cul-de-sacs,
grade
certain
two
the
variance,
sought
I
it had
co because
fire
main-access road
protection,
lack of
and the
claim
federal court dismissed its
minimum
disrepair,
problems with
for that reason. Hallco mischaracterizes
County, 473
at
frontage. Williamson
U.S.
decision,
the
however.
federal
court’s
developer
We request September tion of its variance County improperly singled that the tion an ac- constituted enforcement to by acting out to bear burden rejecting But if a variance tion. even permit application through regu- its defeat statute’s comes within the enforcement- rather process. lation than claims, Hallco purview Hallco action as County unquestionably McMullen had the in the request to variance failed assert its use, land power regulate especially cannot prior litigation and resurrect Canyon like supply around water Choke protections Act’s here. Reservoir, abstract, doing and in the its so hardly takings give ever rise to Taking Fifth Amendment Claim IV. liability. governmental But if a enti- even may ty advancing effect a Finally, properly Hallco claims claims,6 illegitimate purpose, Hallco Fifth as-applied its Amendment reserved nothing prevent there was Hallco from claim, takings which it assert. now asserting prior litigation disagree. States Su We As United County targeted unlawfully, clear, the recently preme Court has made judgment and the final I bars Hall- judgment in Hallco I bars final also that claim here. takings Fifth claim. See co’s Amendment Hotel, L.P., reasons, I Remo
For similar
San
Hotel,
judgment
Remo
owners of
final
bars Hallco’s claim under
2491.
San
S.Ct.
takings
Private
a federal
Property Rights
Real
Preser
a hotel asserted
Fran
§
Act.
2007.001-
of San
against
vation
Tex. Gov’t Code
ruled
after
courts
private real-property
.045. The Act allows
cisco
the California
to sue
for cer
them on their state constitutional
political
against
owners
subdivisions
Supreme
held
governmental
require
actions that
claim. The
Court
tain
statute, 28
the Fifth or Four
the full-faith-and-credit
compensation under
§
court
required
Amendments to the
States
federal
teenth
United
U.S.C.
I,
preclusive
effect to the California
give
or article
sections 17 or
Constitution
347-48,
Id. at
judgment.
Texas Constitution.
Tex. Gov’t
requires
include
the federal courts
2007.021. Those actions
Section
Code
[to
full faith and credit
adoption
give
“of an ordi-
“the same
or enforcement
Supreme
takings claims
the Fifth
evaluate
under
We note that the United States
govern-
the United States Constitution.
recently
that whether a
Amendment to
held
U.S.A.,
substantially
legiti-
Lingle v.
Chevron
mental action
advances
(2005).
test
[a]t amounts to the decision. little more than the concern that it is HECHT, joined by Justice Justice give unfair preclusive effect to state- WILLETT, MEDINA and Justice chosen, proceedings court that are not dissenting. but are instead required order to ripen regulatory-takings may federal claims. A claim chal- Whatever be, lenge the merits of that concern we a land-use restriction on its face or are not disregard applied particular property.1 free to the full faith A facial Keystone particular impact Bituminous Coal v. DeBened and a Ass’n claim that ictis, 470, 494, government specific piece 107 S.Ct action on a (1987) (recognizing impor property requires payment just L.Ed.2d 472 "an com pensation"); City Corpus tant distinction between a claim that the mere Christi v. Pub. Texas, enactment of a statute constitutes a Util. Comm'n “Mother, I”, landown- in which the May is of the restriction challenge ripe when is not as-applied only steps small imposed,2 but to take allowed er is authority has regulatory ripe until until exhausted. and backwards forwards regarding appli- a final decision made Texas, sued Inc. first Halleo When property3 cation of ordi- that an County, alleging McMullen ... usually requires “A ‘final decision’ using Halleo stopping aimed at controlling nance of a variance from denial *13 request for variance industrial unless a a nonhazardous regulations” as property its would be futile.4 tak- compensable effected a landfill waste it County argued “ha[d] ing, the govern- how the case illustrates
This
variance, or even to
a
authority
grant
ripeness requirement
can use this
ment
government
ordinance,
a landowner. The
whipsaw
present[ed]
if Halleo
rescind the
request
that there was no
argue
can
either
therefore,
justification”,
sufficient
when there should
for a variance
ripe because
action was not
Hallco’s
been,
request
specific
was not
or that the
a final decision
not obtained
“ha[d]
not reasonable
enough, or that
embarrassing fact is
County”. This
time
enough, or that there was insufficient
opin-
to the Court’s
buried
a footnote
it—and therefore the landown-
to consider
Halleo
After
and never discussed.
ion5
premature,
claim is
regulatory-takings
er’s
and detailed
lost,
lengthy
a
it submitted
be dismissed. Or else
unripe,
should
variance,
a
request for
a
for a variance
argue
request
it can
this,
Now
summarily denied.
time,
a
or that none was
would be waste
against
suit
second state-court
authorized, or that the landowner should
(it has also
regulatory-takings
on its
would
proposal
have known his ridiculous
court),
in federal
sued three times
there-
seriously
be
considered—and
never
action was
prior
that the
County argues
late, barred,
be
fore his claim is
and should
this one because
ripe after all and bars
other,
way or the
dismissed. One
futile. The
variance was
requesting a
Ripening regulatory-
the same.
a
result is
should
and holds that Halleo
costly game
agrees
takings claim thus becomes a
brings
plaintiff
a facial
(Tex.2001)
required if the
(describing takings
"an
claim as
ordinance.”).
challenge
challenge,
to the
as-applied
rather
constitutional
challenge”).
than a facial
Planning
Regional
3. Williamson
Bank, 473 U.S.
v. Hamilton
Escondido,
Comm’n
533-
2. Yee v.
(1985) ("[A]
L.Ed.2d 126
(1992)
The Court wants Hallco to know that pus supplies Christi. The lake water to sympathetic”.7 “[w]e are But it adds: Corpus provides Christi and others and “McMullen unquestionably had the setting for power regulate use, recreational activities. especially land around a supply Canyon only community water like vicinity Choke of Hallco’s Reservoir, abstract, and in the doing so Calliham, property is some two-and-one- hardly give ever rise to away, half miles which had about 50 resi- liability.”8 Poor Hallco. It should have Otherwise, dents. mostly pas- the area is known better than to take the ture. “hardly its word because it could ever” win *14 bought Hallco the for use as a
anyway, even if it was successful obtain- Class I nonhazardous industrial waste ing permit landfill, a operate if even landfill.9 No local land-use regulations re County deprived the Hallco of the lawful disposal stricted solid waste on proper the use and economic benefit of property. spending ty acquired. After Hallco millions of dollars over Since Texas years, Hallco, twelve I rather imagine, counties have been authorized prohibit prefer justice to sympathy. by disposal ordinance the of solid waste in specific areas public where it is a threat to I would County take the at its word and health, welfare,10 safety, and but McMullen remand the for proceedings case on the County had never had such an ordinance. merits, if yet Hallco can endure another All operate Hallco needed to round landfill was litigation. Accordingly, I respect- fully dissent. permit state from what then (later
Texas Water Commission the Texas I Natural Resource Conservation Commis sion, In January and now bought Hallco the Texas Commission on acres of raw land rural McMullen Quality, Coun- Environmental all referred to sim 6. Ante at 60. any waste' means Class I industrial solid waste that has not been identified or listed as 7. Ante at 60. a hazardous waste administrator of the United States Environmental Protection added). (emphasis 8. Ante at 61 Agency Dispos- under the federal Solid Waste Act, al as amended the Resource Conserva- 361.003(2)- § 9. Tex. Health & Safety Code (42 Recovery tion and Act of 1976 U.S.C. (3)("(2) 'Class I industrial solid waste’ means seq.).”); Section 6901 et see 40 C.F.R. also an industrial solid waste or mixture of indus- 261.4(b) (2006) (listing § nonhazardous solid waste, including trial solid indus- hazardous wastes). waste, trial that because of its concentration (A) physical or or chemical characteristics: Act, Disposal Solid Waste 62nd toxic, corrosive, flammable, strong sensitiz- R.S., Leg., § ch. 1971 Tex. Gen. irritant, generator pres- er or or a of sudden (stating part county Laws that a heat, means; by decomposition, sure or other “may prohibit disposal solid (B) waste poses may pose pres- and or substantial county disposal within the if the solid potential danger ent or to human health or health, safety, waste is a threat improperly processed, the environment if stored, welfare") (codified transported, managed. and as amended at Tex. or otherwise (3) 364.012). § ‘Class I nonhazardous industrial solid Safety Health & Code soil, Commission”).11 stock, stink.12 and ap vegetation, “the ply as July plied for intervened in the Com- also along Corpus with proceeding mission plans opposed Hallco’s oppose per- others Christi and days start. after Hallco ac- Eleven mit But not until June application. quired the commissioners pending had after been adopted opposing court a resolution some nearly spent had year landfill, concern that proposed expressing $800,000 per- landfill and on the reservoir, might contaminate the court River, process, mit did the commissioners River, nearby Frio Nueces solid residents, adopt prohibiting jeopardize live- ordinance13 groundwater, project § create an ob- this could 11. See 361.061 WHEREAS Safety Tex. Code Health & (stating exceptions jectionable neighboring that with not material to odor to residents case, County. present the Texas Commission on McMullen Quality "may require NOW BE IT RESOLVED that Environmental and is- THEREFORE Court permits authorizing governing the McMullen Commissioner’s sue construction, operation, opposes of an industrial and maintenance of the establishment store, Texas, pro- waste landfill the Hallco Inc. the solid facilities used cess, dispose garner Survey No. solid waste this located in the James under 361.086(a) ("A separate § chapter”); per- County. id. Abstract 5 of McMullen meeting required Duly facility.”); adopted mit each waste at a of the McMullen solid (2006). day 30 Tex. Admin. Code 335.2 Commissioner’s this 14th *15 January, 1991. Texas, County, 12. McMullen Resolution No. Texas, County, No. 13. McMullen Ordinance (Jan. 14, 1991): 1-16-91 14, 1993): (June 01-06-93 oppose A the RESOLUTION to establish- ment of an industrial landfill at a site the AN ORDINANCE PROHIBITING SOLID Texas, property, being THREE Inc. WASTE DISPOSAL WITHIN land, upon 128.192 acre CHOKE LAKE AND tract of found resur- MILES OF CANYON vey PEN- to contain 128.214 acres of land in the CIVIL AND CRIMINAL PROVIDING Survey Garner ALTIES James No. Abstract 5 of ordained, adopted by County. McMullen Be it ordered and the County, County WHEREAS McMullen court of McMullen the Commis- commissioners proposal sioner’s Court has reviewed this and Texas: agreed unanimously that the establishment of SECTION 1. GENERALPROVISIONS WHEREAS, project present potential County this would a hazard the McMullen Commis- being responsibility the health both the and and well of the residents of sioners Court has health, safety, authority protect the and McMullen and: the could, County, project WHEREASthe in the of welfare Texas; the citizens of McMullen event of leak, accident, spill, the or contaminate and WHEREAS, supply of the River and abundant waters Frio and Nueces and the safe necessary preserve supplies drinking and water of downstream users of water water protect the citizens those health and welfare of rivers: the Texas; County, project of McMullen and WHEREASthe establishment this accident, WHEREAS, Canyon pro- spill, or the Choke Lake could in the event of a leak underground portion drinking the water pollute and wa- vides contaminate drinking as well as other counties ter sands that are the main source of McMullen municipalities; and and rural residents of McMullen water WHEREAS, livestock, in the the lake the soil area of and the Federal Correction- Institute, porous tend to be and subsurface materials al Three Rivers: volatile; could, project WHEREASthe in the event of unstable and WHEREAS, leak, accident, disposal waste spill, of solid or contaminate life, (3) Canyon adjacent Lake vegetarian, within three miles Choke animal and soil health, public a threat to the and on the below the constitute watershed welfare; safety and and site: disposal waste within health, three miles of the threat to the safety and Although welfare; reservoir.14 had no and ... the present technology technical or support installation, scientific studies to available regard with to the restriction, operation ordinance recited that and maintenance of solid disposal waste sites is pre- insufficient to soil the area of porous the lake is vent contamination adjacent ar- and subsurface materials tend to be un- eas .... volatile; stable and ... disposal (3)
solid waste within three
miles of Despite this
opposition
ordinance and
Canyon
Choke
Lake
others,
would constitute a
the Commission
WHEREAS,
present
technology avail-
SECTION 5. EFFECTIVE DATE
installation,
regard
able with
operation
This ordinance shall become effective im-
disposal
maintenance of solid waste
sites
mediately upon adoption.
prevent
is insufficient to
contamination of ad-
June,
adopted
day
Read and
this 14th
areas;
jacent
1993, by
ayes
nays.
vote of 5
and 0
WHEREAS, adequate
disposal
waste
sites
Legislature
amended section
portions
are
county
available in
of the
Safely
364.012 of the Health and
lake;
Code to add
are
proximity
not in close
(e)
(f)
(a)
subsections
as follows:
IT IS THEREFORE ORDAINED AND
disposal
ORDERED that the
of solid waste is
(e)
county
The commissioners court of a
(3)
prohibited within three
miles of Choke
prohibit
processing
disposal
Canyon Lake.
municipal
or industrial solid waste in an
(b) IT IS FURTHER ORDAINED AND OR-
county
area of that
for which:
disposal
DERED that the
of solid waste is not
(1)
for a
or other
prohibited
any
other
county,
area of the
Chapter
authorization under
361 has been
provided
complies
such site
with all
pending
filed with and is
before the com-
applicable
requirements.
state
mission; or
SECTION 2. CIVIL REMEDIES AND PEN-
(2) permit
or other authorization under
ALTIES
Chapter
361 has been issued
the com-
*16
(a) Any violation of this ordinance is sub-
mission.
$10,000.00
ject
penalty
ato
civil
of
for each
(f)
grant
ap-
commission
not
an
penalty
violation. Such
to be forfeited to
plication
permit
process
dispose
for a
or
County,
McMullen
day
Texas. Each
that a
municipal
of
or industrial solid waste in an
separate
violation continues constitutes a
processing
area in
disposal
which the
or
of
ground
recovery.
for
municipal or
pro-
industrial solid waste is
(b) The commissioners court of McMullen
ordinance,
by
hibited
an
county
unless the
Texas,
County,
may bring
legal
action to
(e)
passing
violated Subsection
in
the ordi-
enjoin violations of this ordinance and seek
by
nance. The
may speci-
commission
rule
judgment
any
penalties.
for
civil
fy
procedures
determining
for
whether
SECTION 3. CRIMINALPENALTY
application
processing
for
or dis-
(a) Disposal of solid waste in violation of
posal municipal
of
or industrial solid waste
this ordinance constitutes a Class C misde-
in
processing
an area for which that
or
punishable by
meanor
a fíne not to exceed
disposal prohibited by
an ordinance.
$500.00.
25, 1999,
R.S.,
May
Leg.,
Act of
76th
ch.
(b)
day
Each
that a violation continues con-
364.012,
§
sec.
1999 Tex. Gen. Laws
separate
stitutes a
offense under this ordi-
apply
3111. The amendment does not
to a
nance.
permit application
September
filed before
SECTION 4. SEVERABILITY
1, 1999,
September
if on or before
any portion
If
of this ordinance is deemed
county had enacted an ordinance under sec-
to be in
violation
the statutes or the consti-
6, tion 364.012. Id.
1999 Tex. Gen. Laws at
tution of this state
or the United States
Thus,
apply
this amendment does not
competent jurisdiction,
court of
portion
said
in this case.
severed,
remaining portions
shall be
and the
Texas,
of the ordinance shall
County,
remain in full force and
15. McMullen
Ordinance No.
(June 14, 1993).
effect.
01-06-93
that,
event,
any
in
operation
possible
anee was
not
that Hallco’s
did
determine
had to be exhausted:
proceedings
a landfill would be harmful to
state
78-page
final
and instead issued
revised
]
Supreme
[in
Court Williamson
[T]he
in
February
detailing
draft
claims,
regulatory takings
has held that
specifications
operation
for a landfill
case,
in this
presented
one
such as the
recommended
the Commission staff.
un-
adjudication
are not
for federal
ripe
later, Hallco
Two weeks
sued
Coun-
1)
final deci-
obtains a
less the Plaintiff:
in the United
District Court for
ty
States
(here,
regulatory entity
sion
from
Texas,16 alleging
the Southern
District
County) regarding
application
that the
ordinance was a
part
...
to his
the ordinance
compensation
regulatory-taking requiring
2)
just compensa-
seeks
property; the Fifth Amendment to
under
United
procedures.
tion
available state
through
Constitution.17 Around the same
States
dispute
it has
... Hallco does not
that
time,
also
regulatory-taking
filed its
prong
neither
Williamson:
satisfied
court, asserting
claim state
violations
a final
from
it has not obtained
decision
I,
Fifth
both the
Amendment and article
sought
it has
re-
not
17 of
section
the Texas Constitution.18
proce-
available
through
dress
state
County immediately
moved
dismiss
Instead,
only
argues
dures.
Plaintiff
action, asserting
the federal-court
approach
that it
be futile
would
ripe
was not
two reasons: Hallco had
county
appli-
final decision on the
for a
not obtained
final decision from the
property.
cation
the ordinance to its
county regarding
application
authority
absolutely
offers
no
[Hallco]
effect, a
Hall-
ordinance—in
variance —and
futility
is an
proposition
for the
fully pursued
co had not
relief in' state
finality.
requirement
excuse to the
court. Both
prerequisites
were
suit
futility exception,
Even
were a
if there
court
federal
under the United States Su-
for variance
least one
preme Court’s
decision Williamson
futility.
required
would
to establish
be
County Regional Planning
Commission
assertion, the fact
Contrary to
responded
[Hallco’s]
Bank.19
Hamilton
does
contain
the ordinance
requesting
should be
a vari-
excused
provision
reviewing how the ordi-
since the
provide
ance
ordinance did
applied
particular prop-
nance
for one and
futile.
will be
request
*17
futile;
erty
establish that it is
reply,
County
In
insisted
a vari-
does not
Texas,
U.S.
125 S.Ct.
162 L.Ed.2d
County,
16. Hallco
v. McMullen
Inc.
C.J.,
(indi-
(2005)
(S.D.Tex.1996),
(Rehnquist,
concurring)
315
F.Supp.
aff'd,
934
240
(5th Cir.1997) (table).
cating
to
need
reconsider
Wil-
the Court
69
Hall-
approved
never
The Commission
being prop-
a
permits as not
tions define
remained
application
but its
permit,
co’s
in the
right
erty interest or a vested
1999, about
two
August
In
pending.22
See 30
permittee.
Tex. Admin. Code
I
in Hallco was
judgment
years after the
1996).
305.122(b)(West
a vari-
requested
appeal,
final on
McMullen
only way the
The
lengthy
ordinance.
ance from the
deny-
Hallco was
regulation affected
revised final draft
included the
request
a solid waste
ing
right
operate
it the
a
by the Commission
permit issued
site.
'A mere
facility
on the
both of which
property,
of the
valuation
of future services
expectancy
County enacted
after the
were obtained
valuable, in
land more
render the
showed that
The valuation
its ordinance.
contract, is not a vested
of a
the absence
if op-
million
worth
property
$5.2
of determin-
right
purposes
for
$58,300 oth-
only
a landfill but
erated as
taking
has occurred. Es-
ing whether
oper-
erwise,
that a landfill business
778
County,
v. Victoria
tate
Scott
be worth
property would
ated on the
585,
(Tex.App.-Corpus
592
S.W.2d
County heard
$15,870,000. The
writ).
1989,
McMullen
no
Christi
took no
request but
presentation of its
im-
does not otherwise
County ordinance
further action.
property.
Because
pact on use
1999,
ac-
Hallco filed this
In December
interest
Hallco did not have a
II,
tion,
against
to as Hallco
referred
of solid waste on its
disposal
tak-
asserting
regulatory
County, again
in question
that the ordinance
we hold
its constitu-
Besides
ing
property.
of its
as a matter of
did not constitute
claims,
under the
Hallco also sued
tional
law.21
Rights Pres-
Property
Real
Texas Private
appeals did not discuss
the state
The court of
Act.23 Concerned
ervation
running
that Hall-
ripe given
prevent
the case was
might
whether
action
action, Hallco also
on a federal
requested
co had not
a variance.
limitations
court.24
action
federal
filed the same
appeal
further.
did
time,
Texas,
authority
that a
County,
case
indicated
24. At the
21. Hallco
Inc. v. McMullen
04-96-00681-CV,
satisfy the Wil
Tex.App.
party suing in state court to
1997
LEXIS
No.
*6-9,
184719,
(Tex.
2020,
re
requirement could
at *3
exhaustion
1997 WL
liamson
16, 1997,
writ)
litigation in fed
April
for later
App.-San Antonio
no
federal claims
serve
("Hallco I").
(not
judgment
designated
publication)
court so that
state-court
for
eral
action. See Gueter-
bar the federal
would not
284,
(Tex.
State,
S.W.2d
289-290
2003,
930
sloh
required
Legislature
the Com-
cert, denied,
1996,
denied),
App.-Austin
writ
"adopt
governing
aspects
all
rules
mission
1040,
L.Ed.2d
522 U.S.
management
operation
a new
(1998) (citing England v. Louisiana State
facility
proposes to
landfill
commercial
415-416,
Exam'rs,
Bd. Med.
accept
industrial solid waste
nonhazardous
(1964);
Jennings
11 L.Ed.2d
84 S.Ct.
permit
has not been issued”
for which
Bd.,
1331, 1332
Sch.
531 F.2d
process
v. Caddo Parish
"suspend
permitting
Cir.1976);
(5th
v. Sarasota Mana
and Fields
...
pending
[such]
Auth.,
1299, 1305-1306
Airport
953 F.2d
adopted ...
take effect.” Act
tee
until the rules
however,
then,
R.S.,
Cir.1992)).
27, 2003,
(11th
Leg.,
ch.
Since
May
78th
1-2,
held that
Supreme
3207-
Court has
§§
Tex.
Laws
States
Gen.
United
preclu-
complied March
avoid the
Commission
does not
3208. The
such
reservation
(2004);
judgment.
Reg.
see also
San
2004. 29 Tex.
of the state-court
sive effect
Hotel,
§§
San
City and
30 Tex. Admin. Code
335.580-.594.
L.P. v.
Remo
323, 338,
Francisco,
*19
(2005) ("England
not
does
162 L.Ed.2d
23. Tex. Gov’t Code
2007.001-.045.
rejected
claims,
The federal court
Hallco’s con-
such
by
first
stated
Justice
cerns and dismissed the action.25
The Holmes:
County
summary
moved for
judgment
property may
regulated
while
be
to a
proceeding, arguing
state
that Hallco
extent,
goes
certain
if
too far
regulation
had not
a compensable taking
suffered
of
taking....
it will
as a
recognized
property.
its
argue
The
did not
degree
question
is a
[T]his
—and
authority
grant
that it lacked
a variance
by
disposed
gen-
therefore cannot be
proposal;
or reconsider Hallco’s
the Coun-
at
question
eral propositions....
[T]he
ty argued only that Hallco had not made a
loss of the
upon
bottom is
whom the
case for
variance or
reconsideration.
changes desired should
fall.28
The
argued
also
that this action is
barred
Hallco I and
limitations and
regulatory
“It follows from
of a
the nature
granted
laches. The trial court
summary
takings claim,”
Supreme
the United States
judgment for
specify-
without
observed,
Court has since
“that an essen-
ing
grounds.
tial
final
prerequisite to its assertion is a
appeals
court of
“reaffirm[ed]”
type
and authoritative determination of the
holding Hallco I that “because Hallco
intensity
development legally per-
did not have a
interest
A court
subject property.
mitted on the
disposal of solid
waste on its
cannot
has
determine whether
ordinance did
taking
not constitute a
as a gone
far the
‘too far’ unless
knows how
matter of
The court added that
law.”26
regulation goes.”29
landfill,
without
state
for a
“Hall-
Thus,
above,
Supreme
as we
noted
co did not
distinct
investment-
Court held
that “a
Williamson
expectation
backed
that it could use the
application
government
claim that
property for solid
disposal,
waste
and use
regulations
effects a
of a
of the property
disposal
for solid waste
interest
Fifth
[under the
Amendment]
existing
permitted
was neither an
nor a
ripe
government entity
until
The court
did
mention Hall-
use.”27
charged
implementing
regulations
with
statutory
co’s
claim.
has reached a final
regarding
decision
II
regulations
prop-
erty
at
ripeness requirement
regulato-
recently,
More
the Su-
issue.”30
ry-takings
preme
claims stems from the root of
has explained:
(1922);
support
expectation
[the] erroneous
[a]
accord
Dev. Co.
Sheffield
(Tex.
fully negate
preclusive
Heights,
reservation would
Glenn
140 S.W.3d
2004) (footnotes omitted).
judgment
respect
effect of the state-court
with
might
and all federal issues that
arise
litigation.”).
in the future federal
MacDonald,
29.
Sommer & Frates v.
Yolo,
340, 348,
106 S.Ct.
Texas,
County,
25. Hallco
Inc. v. McMullen
(1986);
Mayhew
L.Ed.2d 285
accord
v. Town
(S.D.
24, 2000) (order
April
No. L-00-14
Tex.
(Tex.
Sunnyvale, 964 S.W.2d
dismissing
prejudice
action without
for want
1998).
jurisdiction).
County Regional Planning
30. Williamson
II,
26. Hallco
94 S.W.3d
738-739.
Bank,
172, 186,
Comm’nv. Hamilton
473 U.S.
(1985);
105 S.Ct.
County responded: assertion, fact Contrary to [Hallco’s] establish a tak- landowner not [A] not contain the ordinance does authority land-use ing before a has reviewing for how the ordi- provision opportunity, using its own reasonable applied particular prop- to nance will be explain the procedures, to decide and futile; that it erty not establish is does challenged regulation. reach of a Under au- has the Commissioners ripeness a takings our rules claim based variance, or even to thority grant alleged is on law or ordinance, if Hallco presents rescind go property in burdening too far de- Therefore, justification. [Hall- sufficient having first pends upon landowner’s has no merit. argument co’s] necessary steps followed reasonable and re- that Hallco’s now insists regulatory agencies to exercise allow not have the quest a variance should considering their full discretion in devel- reviving its claim. effect of including opment plans reviving. regu- In a grant any ripening But not opportunity variances case, dispute must be general latory-takings allowed law. As waivers rule, the court to deter- sufficiently focused for ordinary processes until these have exactly general mine how far a land-use been followed extent restric- specific extends circum- known and a restriction tion almost al- restrictions regulatory taking yet been es- stances. General has Suitum, supra, 736, ways exceptions. at The final-decision tablished. See full discre- 10[, (noting requirement regulators allows and n. diffi- 1659] particular adjusting “mere tion in restrictions culty demonstrating enact- Mayhew, at 929. regulations cation of the issue.”). Island, v. Rhode Palazzolo 620-621, L.Ed.2d 592
(2001). *21 matter, property before a constitutional to obligation repeal the ordinance altogether, compensate to can trig- protests landowner be it now that procedure pre- no is County gered. any The enacted its ordinance scribed for such to request be made. concern, stated, of a expressly out that Perhaps previously did not “present technology regard available with procedure consider an the absence such installation, operation to the and mainte- request inhibition to a variance be- disposal nance solid waste sites is insuf- procedures that general per- cause knew adja- prevent ficient to contamination of said, request. mitted the As we added). (emphasis cent areas” That was the term “variance” “not or is definitive 20 months before the Commission issued talismanic;” types it encompasses “other Hallco a 78-page permit revised final draft permits or actions are available [that] specifications with detailed for the safe provide and could similar relief.” The operation landfill, of the proposed and six requirement is ap- variance therefore years requested before Hallco a variance. in to plied flexibly pur- order serve its expect It was certainly unreasonable to pose giving governmental an unit that the County might willing be to recon- opportunity “grant to different forms of the appropriateness sider of a three-mile relief or make policy decisions if a required oper- zone landfill were to be might alleged taking.”33 abate the ated as set final out Hallco’s revised fact, In request received the permit, draft as a changes or result of present and allowed Hallco to it to the technology, simply taking or after another court. way, commissioners this the de- look the situation. At least the proposed operation tails of Hallco’s as always professed willing- has in court its specified in the revised final draft now, so, to ness do until we here impact and an evaluation the economic should take it at its word. on presented ordinance Hallco were Hallco claims this case that the Coun- to the commissioners court for its consid- ty’s applied, ordinance effects a as nothing eration. The cites all property proposed not of to be affirmatively amending prohibited it used as a landfill within three miles request. response its ordinance in Lake, Canyon only Choke but of property Instead, it provided insists no operation on prohibited which the one justification for reconsideration. subject specifications that is like those County suggests, apparently in the in Hallco’s permit. revised final draft Just alternative, re- Hallco should have zoning authority adjust might general- as a sooner, quested a variance but the ly applicable side-yard front-or require- deadline request cites no for such a no ments, restrictions, or or height size authority argument for the that Hallco regulations affecting other on construction A diligently. should have acted more property, depending particular on circum- request landowner’s a variance decision stances, county’s determination of wheth- considerations, many may personal, involve landfill be area operated er a can economic, technical, political. Timing may depend the details of the opera- A critical. landowner who wishes tion. make a challenge regulation, facial to a did, Despite assurances in fed- should not be forced to eral court that it could and would consider a variance he he request before believes variance, so, request or for that in the best position losing to do or risk (citations omitted). Id. at 930 litigated in a been diligence, as- should have challenge the facial limitations or the as-applied suit.”34 Because prior challenge judicata. applied res case present makes in the claim Hallco County argues allowing regu- pending, I was ripe while Hallco every latory-takings after denial *22 not, been, adjudi- have was and could not gives a bites multiple variance landowner case, and it is not barred cated in that thus and apple, threatening repetitious at the judicata. by res harassing litigation. But a landowner who action also that this County argues The loses, variance, sues, requests is denied a estoppel. collateral Collateral by is barred variance, again, is sues another denied and “(1) if facts only a claim the estoppel bars if the again, expect can the same result litigated to in the second action sought be changed. is apple facts have not If the fully fairly first litigated and the were wormy, why it not clear someone would is (2) action; those facts were essential multiple litiga- expense take bites. The of (3) action; the the first and judgment possibility and for tion the of sanctions as in the were cast adversaries parties ample groundless lawsuits are deterrents. only specifically The fact first action.”35 if the so changed, And facts that Hallco I was determined in that finally tak- regulation applied as effects a right operate a landfill. had no inherent deny there land- ing, is no reason to course, I is, undisputed, fact and as This of compensation by owner the promised below, explain is not determinative constitution. taking compensable whether a occurred. County adopted its ordinance with- on Hallco’s claim None of the issues which out a scientific or technical basis a zone impact the ordi- depends economic —the three opposed miles as to a shorter Hallco, nance on the reasonableness distance, specific proposal and without a expectations, Hallco’s investment-backed operation. for a landfill In such circum- singled Hallco and whether the ordinance it especially important that stances promoting inter- out instead of there be ample opportunity consider “fully fairly litigated” est—was land-use mak- proposed in detail before if the these parties Hallco I. Even raised in a ing final decision that result I, they not “essential issued Hallco were compensable taking. says The Court solely judgment”, based regarding the facts land- Hallco’s only specifically determined— issue operation changed fill have not Hall- since right oper- no that Hallco had inherent not, co I. but Hallco not re- Perhaps did Moreover, a landfill. the Court has ate quest the variance said strictly apply not held courts should would until I was consider after Hallco when estoppel the elements of collateral concluded. are purposes of the doctrine disserved judicata, preclusion, pre- “Res or claims thereby.36 purposes Those are disserved relitigation vents of a or cause the doctrine is used when adjudicated, finally action has to a federal escape representations been that, judge. use well as related matters with the Servs., 36. Sysco Corp., S.W.2d at 801-804
34. Barr v. Resolution Trust 837 S.W.2d Food 1992). (Tex. (holding estoppel would not that collateral though applied, three factors were even all not serve present, because would Kenedy John and Marie Mem. G. Stella Dewhurst, (Tex. purposes intended v. doctrine's Found. —it resources, Servs., 2002); prevent Sysco judicial mul Trapnell, not conserve Food Inc. lawsuits, (Tex. 1994). in tiple possibility avoid S.W.2d argues further this ac- compensable taking property. tion is barred limitations laches. Development Co. v. Sheffield argue Heights, But does that a explained Glenn we how land- regulatory-takings claim accrues for limi- regulation analyzed use should be to deter- purposes ripe, tations before it compensa- mine whether has effected a authority there is that it not.37 It is taking: does ble entirely clear what statute of limita- gone has “too far” [WJhether applies tions to such claims38 but none is too much physical become like a months, as short as three time which the constitution re- to file waited suit after the refused *23 quires compensation requires a careful grant Thus, variance. is not the of analysis regulation how the affects “Generally barred in limitations. the balance public’s between the interest of estoppel absence some element of private of and that landowners. While extraordinary such circumstances as would each must case therefore turn on its inequitable render of peti- enforcement facts, guiding can considerations be right delay, tioners’ after a laches will not identified, as Supreme first Court bar a short period suit of the set forth explained in Penn Transporta- Central limitation statute.”39 No such circum- City v. tion Co. New York: of present are stances this case. engaging essentially in these ad hoc, inquiries, factual deci- Court’s
Ill have sions identified several factors The particular contends that it has estab- significance. that have The lished impact ordinance did not effect a regulation economic of the Houston, 625, findings City consistent fairness concerns Inc. v. 957 S.W.2d 631 —and of especially important light pro 1997, were of the (Tex.App.-Houston pet. [14th de Dist.] uniqueness case) (citing cedural Blon nied); see also Tex. Civ. Prac. & Ann. Rem.Code Labs., der-Tongue University Inc. v. Illinois 16.026(a) (Vernon § of Supp.2002); Riv Brazos Found., 313, 328, 1434, 28 Graham, 167, City er Auth. v. 354 163 Tex. of (1971) (stating preclusion L.Ed.2d 788 99, (1961); City S.W.2d 110 Waddy v. of "goal limiting relitiga doctrines 97, Houston, (Tex.App.-Hous 834 S.W.2d 102 tion of issues where that can be achieved 1992, denied); [1st Dist.] ton writ Hudson v. particular compromising without fairness in Co., 561, Louisiana Arkansas Gas 626 S.W.2d cases”)). 1981, (Tex.App.-Texarkana 563 writ ref'd Christi, n.r.e.); City Corpus Hubler v. 564 724, City Chicago, 37. Biddison v. F.2d 921 816, (Tex.Civ.App.-Corpus 823 S.W.2d Christi (7th Cir.1991) ("several regulatory 728-729 1978, n.r.e.).”), ref'd writ with Tex. Civ. taking cases hold accrues at the Prac. & 16.003(a) ("a bring (citing person ripens”) same time that must Norco Rem.Code 1143, King trespass County, injury v. Constr. (9th Cir.1986); 801 F.2d 1146 suit for or to estate City Corn v. Lauderdale property of another ... not than two later Lakes, (11th Cir.1990); 904 F.2d 588 years day ac after the cause of action Dist., v. McMillan Goleta 792 Water F.2d crues”). (9th Cir.1986)). 1457 Co., v. Howard M. 426 Smith 39. Barfield Compare Maguire Oil Co. v. Hous (Tex. 1968) (citing S.W.2d & G Oil K ton, (Tex.App.-Texar 69 S.W.3d 358 n. 4 Serv., Fishing Tool & Serv. Co. v. G & G Tool denied) (“There pet. specific kana nois (1958), Tex. statute limitations for condem an inverse Pickens, Culver S.W.2d Tex. However, claim. held nation courts have (1944)). acquire ten-year statute of limitations to land Enters., possession applies. adverse Trail public. by the borne and, justice” particularly, ex- claimant oc- taking has regulatory Whether has tent which the inter- said, has curred, Supreme investment-backed fered with distinct in- complex of factors on a “depend[s] course, are, relevant expectations ” out in Penn Cen- the three set cluding too, So, is the charac- considerations. “necessarily requires analysis tral. A governmental action. ter of public inter- private weighing readily be found “taking” more a “careful examination ests” and when the interference with circum- of all the relevant weighing physical can as a in- be characterized As we have in this context.” stances by government, when in- vasion than regulatory-takings is- said of ourselves terference arises some surrounding sues, all of the “we consider adjusting the benefits and program “a fact-sensi- applying circumstances” promote burdens of economic life to test of reasonableness”. tive good. the common determining that while have said We Supreme Court has restated these regulation is uncon- whether simply factors as: *24 of the consideration requires stitutional (1) impact regu- “the economic of issues, of the ultimate a number factual (2) claimant”; “the lation on ex- a ordinance question zoning of whether regulation tent to which the has inter- taking a or vio- compensable constitutes with distinct investment-backed fered equal is a process protection due lates (3) expectations”; and “the character law, fact. question not a of question of of action.” governmental issue, resolving legal In we consider this Nevertheless, Supreme has surrounding all circumstances. of cautioned that not com- these factors do depend on district court to While we prise a formulaic test. “Penn disputed Central facts the ex- regarding resolve supply precise mathematically does not on governmental tent of the intrusion variables, provides impor- but instead the ultimate determination to guideposts tant that lead to the ultimate of the facts are sufficient whether just compensa- taking question a is a of law.40 determination whether constitute required.” temptation tion is “The engage of not appeals court did adopt per rules in what amount se I, simply Hallco it held analysis. this either must be direction resisted.” not ordinance did effect Thus, im- example, economic no property because a of Hallco’s pact of a indicate tak- in dis- has “a interest property landowner ing if the property”.41 even landowner has been on its posal of solid waste deprived economically of all beneficial this hold- simply “reafSrm[ed]” The court has an property. Nor are the three II. But no landowner ing use of his in Hallco only right property. Penn ones rele- use Central factors unrestricted can be zoned out residential determining vant in whether the burden Businesses can Home construction neighborhoods.42 “in all fairness and regulation ought 42. See, Realty Heights, e.g., Village v. Ambler Euclid Dev. Glenn Co. Sheffield (foot- Co., (Tex.2004) 671-673 (1926) zoning omitted). (upholding regula L.Ed. 303 *25 his property requires permit a has not taking he sable could be determined yet government obtained. If the could an without of assessment other relevant avoid by its constitutional obligation deny- Again, factors. whether a land-use regu- ing permits, there would be left to an little lation is unreasonable restriction guarantee compensation. of amounting to a taking re- compensable quires a careful of all analysis relevant A requirement permit that a be obtained A factors circumstances. formulaic property before particular can be used in a approach cannot be used. way preclude does not landowner reasonable, having factor investment-backed One that be is must considered expectation will impact that he succeed in obtain- the economic of the on ordinance ing permit pursue the intended the landowner. Hallco offered evidence use, contrary the court appeals’ property con- that its was worth million as $5.2 cluded”); Dallas, concerned, City v. Lombardo Federal Constitution is we have (1934) ("The right Tex. 73 S.W.2d by through may no doubt the State itself or zoning
to establish
districts is well established
municipalities
authorized
declare the emis-
States,
throughout
the United
been
and has
populous
sion
dense smoke in cities or
approved by
many jurisdic
the courts of
subject
neighborhoods a
nuisance
to re-
tions.”).
such....”).
straint as
See,
Vanesko,
e.g., City
Dallas v.
45. Mayhew v.
Sunnyvale,
Town
(Tex.2006).
S.W.3d 769
(Tex. 1998) ("Historical
uses of the
See,
critically important
e.g.,
are
when
Laundry
deter
Northwestern
Moines,
486, 491-492,
mining
Des
the reasonable investment-backed ex
(1916) ("So
landowner.”).
pectation
action developer’s on the plans until
could rezoning.48 muster the votes for Al-
though city’s we found the conduct “trou-
bling”, we delay may concluded that the only lethargic, have been and that In the of K.A.F. Interest
end the city completed had comprehen- sive rezoning arguably No. benefítted the 09-04-028 CV. case, entire community.49In present Texas, Court of Appeals contrast, the evidence is stronger Beaumont. County’s ill-motivated, delay was there March 2004. is almost no evidence whether the ordi- nance benefítted the residents or Review Granted Dec. not. however, Again, character Rehearing May Denied
ordinance and the manner in it was adopted are but factors to be considered in
determining whether compen- there was a
sable taking of Hallco’s property. Wheth- is, er a regulatory taking has occurred *27 pro Susan Carroll se. Capps, said, we law, question of but must Woodlands, Hanby, Clinard J. be answered after relevant facts have appellant. been Considering determined. evi- dence of Cohee, Beaumont, the reasonableness of Hallco’s for appellee. Ronnie expectations, investment-backed the eco- Paasch, J. Rod litem. ad ordinance, nomic impact of the and the singling legitimate McKEITHEN, C.J., out of Hallco without a Before BURGESS GAULTNEY, I purpose, would hold that JJ. Sheffield, S.W.3d at 678-679. 2007.001-.045. 50. Tex. Gov't Code Id. at 679. notes districts, creating “residential tions sort, I, every in and trade of Tex.App. which business 41. Hallco LEXIS houses, *8, apartment ex cluding are hotels and WL at *3. size, height, be limited in placement sure, elusion Hallco II. To be the uses the property.43 prohibit- can piece Nuisances be property put has been ed.44 Every right historically landowner’s to use his important are assessing the property may govern- be restricted reasonableness of a purchaser’s expecta- ment in legitimate police tions,45 its expectation exercise of but an particular power and by the common merely law. These use of is not unreasonable restrictions subject do not mean that landowners permit because is new or to a have no requirement. appears interest the use of to have an- land, their stating particular that a ticipated correctly obtaining use a landfill subject permit requirements says reasonably permit likely, since the nothing pro- about whether an ordinance Commission went as to so far issue a re- hibiting requisite permit use with the final permit. vised draft But the final compensable issued, constitutes a A tak- taking. permit never and the are reasons ing government occurs when the interferes not clear from the record before us. The too far in a landowner’s use of property, record does not establish Hallco’s ex- regardless of the nature of the intended pectations of a landfill operating were rea- sonable, use. but neither does it establish that they were unreasonable. Nor is it determinative that had yet proposed obtained if Even the record were clearer on this landfill. government deny point, cannot and the reasonableness of Hallco’s landowner all proper- reasonable use of expectations his investment-backed could ty and compensate assessed, refuse to him for the better the issue whether the taking simply because his use of County’s a compen- ordinance constituted