Over the last decade, Texans have been on the receiving end of some of the more devastating impacts Mother Nature can unleash, from destructive hurricanes barreling down on the Gulf Coast to multiple “once-in-a-generation” freezes that threaten to cripple our energy grid. Unpredictable weather can create havoc, altering the lives of countless Texans and causing billions of dollars in damage. These impacts have sent the state’s legislators scrambling to implement measures counteracting the impacts of these events before they occur. While these measures have taken a variety of forms, the resulting legislation has increasingly focused on a familiar target: private property rights. It is vital that attorneys understand the ever-changing landscape of these governmental actions so they can serve as a check on these exercises of governmental power.
Government regulates private property in one of two ways: directly, through “physical invasion” of the property at issue, or indirectly, through legislation that restricts the property’s use. The most “direct” form of government’s regulation of private property is through the use of eminent domain. “Eminent domain” refers to the right of governmental entities (and certain private entities) to take private property for public use. Government’s eminent domain power is one of the most important tools it possesses to address large-scale societal needs. Consider, for example, the numerous TxDOT projects throughout the state designed to address traffic congestion caused by our growing population. The less obvious, indirect governmental action comes in the form of regulation that limits, alters, or restricts private property without actually acquiring it. The government’s varied strategies to curtail the impacts of catastrophic weather have taken both forms of private property regulation.
For example, following Hurricane Harvey, numerous condemnation projects both big and small have sprung up throughout the greater Houston area to counteract widespread flooding. We have seen acquisition projects to add needed capacity to existing bayous and creeks, as well as isolated projects creating entirely new drainage systems to prevent localized flooding. Even the federal government has gotten involved. With the aid of federal dollars, Harris County Flood Control District oversaw massive acquisition projects in flood-prone areas. The projects identified properties that had suffered multiple floodings and proactively acquired the properties—either through voluntary acquisition (under the threat of condemnation) or by initiating condemnation proceedings to take the properties. The project resulted in the relocation of countless individuals out of these flood-prone areas.
These types of property acquisition projects designed to limit the effects of weather events are not going away. A Google search of “Entergy Texas Projects,” for example, brings up a litany of upcoming transmission line projects. According to Entergy, these projects are designed to “address reliability” issues throughout the state and “strengthen the power grid”—in the hopes that the state can avoid the blackouts that threatened to bring the state to its knees over the past few years.
While the issues involved in these types of eminent domain acquisition projects can be complex and the emotions they engender high, there is at least one bright side: in a statutory condemnation case, the government’s liability is established. There is no dispute that the government has a constitutional obligation to pay just compensation for taking the property at issue. The dispute is usually over how much it has to pay. A more difficult, nuanced, and tenuous analysis occurs when the government uses its legislative authority to regulate private property without physically taking it. When this occurs, the uncertainty arises as to what point the regulation rises to the level of a regulatory taking. In other words: how far is too far?
The Texas Supreme Court recently weighed into this discussion in a decision styled The Commons at Lake Houston v. City of Houston, No. 23-0474 (Mar. 21, 2025). The case involved the City of Houston’s amended floodplain ordinance enacted in response to Hurricane Harvey. Among other things, the ordinance extended the regulated floodplain from the 100-year floodplain to the 500-year floodplain and mandated that all foundation slabs be constructed to an elevation at least two feet above the 500-year floodplain, which was previously unregulated.
The developer owned and was in the process of developing a 3,300-acre residential community near Lake Houston that was no longer possible under the amended ordinance. He filed an inverse condemnation action against the city claiming, among other things, that the ordinance rendered over 550 lots undevelopable, resulting in millions of dollars in damages. As is standard in regulatory takings cases, the city filed a plea to the jurisdiction seeking dismissal of the case. As its primary argument, the city claimed that the ordinance constituted a valid exercise of the city’s police powers and, as such, could not rise to the level of a taking. The trial court denied the plea. The First Court of Appeals reversed, holding that the plaintiff failed to assert a valid takings claim since the ordinance was a valid exercise of the city’s police power.
The Supreme Court disagreed. Noting that the Court has “long rejected the notion that the government’s duty to pay for taking property rights is excused by labeling the taking as an exercise of police powers,” the Court remanded the case to the trial court for additional proceedings to determine whether the ordinance’s impact constitutes a taking under the Court’s established jurisprudence.
The Commons litigation is a stark example of the wide spectrum of options available to governments to respond to the impact of devastating weather changes. With the stroke of a pen, the government can dramatically alter the character of private property—without paying a dime to those impacted. The case also highlights the uncertainty faced by landowners as they deal with onerous legislation.
Amidst that uncertainty, two things are clear: Texas weather will continue to wreak havoc on our state, and our public institutions will continue passing legislation to counteract these impacts, necessarily affecting private property rights. As a society, we need the government to use its powers to address matters of the “common good” in a way that only it can. This includes being proactive to curtail the devastating impacts threatened by changing weather patterns. At the same time, public benefits should not be borne on the backs of private property owners. It is incumbent upon lawyers representing property owners to serve as a check on that government authority and ensure that governmental efforts to protect the common good comply with the obligations imposed by the Texas Constitution.
The original article published on Texas Lawyer can be found here (subscription required).
Reprinted with permission from the May 23, 2025 issue of Texas Lawyer. ©2025 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.