Supreme Court

The Commons of Lake Hous., Ltd., v. City of Houston

• Case number: 23-0474
• Legal category: Jurisdiction
• Subtype: Ripeness
• Set for oral argument: October 31, 2024

Case Summary

This case concerns the application of the futility doctrine to inverse-condemnation and takings claims.

Commons is the developer of a master-planned community, parts of which are located within the City’s 100-year or 500-year floodplains. In 2017, the City approved Commons’ plans for the community utilities and paving. The following year, the City passed the 2018 floodplain ordinance. The 2018 ordinance requires new residential structures within the 100-year floodplain to be built a foot higher above the flood elevation than the previous ordinance required.

Commons sued the City for inverse condemnation and takings, alleging that the City’s amended floodplain ordinance interferes with Commons’ use and enjoyment of its property and deprives it of economically productive use of the land. The City filed a plea to the jurisdiction arguing that Commons’ regulatory takings claim is not ripe because the City has not made a final decision on a permit or plan application. Commons responded that the City had ample opportunity to issue a final decision, but unreasonably withheld one, making Commons’ claim under the futility doctrine ripe.

The trial court denied the City’s plea, but the court of appeals reversed. The court of appeals held that Commons’ regulatory takings claim is barred by governmental immunity because the 2018 ordinance was a valid exercise of the City’s police power and therefore could not constitute a taking.

Commons petitioned for review, arguing that its claim is ripe under the futility doctrine and that governmental immunity does not bar its inverse-condemnation claim because a valid exercise of police power can still constitute a taking. The Supreme Court granted the petition.

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