SHEFFIELD DEVELOPMENT COMPANY

v. CITY OF GLENN HEIGHTS

SUPREME COURT OF TEXAS

2004 Tex. LEXIS 195

JUSTICE HECHT delivered the opinion of the Court.

After a twelve-month moratorium on development, the City of Glenn Heights rezoned undeveloped property owned by Sheffield Development Co., reducing the number of residences that could be built on the property. Sheffield contends that the moratorium and the "downzoning" each constituted a taking of its property without adequate compensation in violation of article I, section 17 of the Texas Constitution. n1 Sheffield separately requests a declaration that its development rights became vested when it submitted an application during an earlier hiatus in the moratorium. Following a bench trial on liability issues and a jury trial on damages, the district court rendered judgment for Sheffield for $ 485,000, plus pre- and post-judgment interest, on the downzoning takings claim only. The court concluded that Sheffield's claim for declaratory relief was not ripe for adjudication. A divided court of [*2] appeals concluded that Sheffield was entitled to recover on both takings claims, affirmed the damages award for the downzoning claim, and remanded the moratorium claim for trial on damages. n2 The court also concluded that Sheffield's claim for declaratory relief was ripe and remanded it. n3 We hold that Sheffield cannot recover on either takings claim and reverse and render judgment accordingly. We agree with the court of appeals that the case must be remanded to the trial court to determine whether Sheffield fixed its rights by submitting a plat during a hiatus in the moratorium.

n1 TEX. CONST. art. I, ' 17 ("No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made . . . .").

n2 61 S.W.3d 634 (Tex. App.--Waco 2001).

n3 Id. at 660.

I

A

The City of Glenn Heights is a growing suburban community (1990 pop. 4,564; 2000 pop. 8,050) south of Dallas astraddle the Dallas/Ellis County border. [*3] In 1986, the City zoned a 236-acre tract as Planned Development District 10 (PD 10), allowing most of it to be developed for single-family residences on lots no smaller than 6,500 square feet, with a maximum density of 5.5 dwelling units per acre. n4 The owner at the time platted and developed the first phase of the Stone Creek subdivision on just over 43 acres of the tract. Some of the lots in the first phase met only the minimum required sizeminimum-size, but others were larger. The rest of the property was not developed and remained vacant.

n4 Relatively small portions around the perimeter were earmarked for lots of 7500 square feet, 9,000 square feet, and 10,000 square feet.

In 1995, the City adopted a comprehensive "Future Land Use Plan" which found that the City had an oversupply of high-density residential areas. The plan designated the neighborhood including Stone Creek primarily as a lower density residential area to contain four to five dwelling units per acre. Though PD 10 zoning allowed a maximum [*4] of 5.5 dwelling units per acre in the relevant area, the first phase of the development had been built with only 3.9 dwelling units per acre, the trial court found, and thus would comply with the new plan. The plan left PD 10 zoning in place. Except for PD 10 and the thirteen other planned development districts (PDs), all property within the City was rezoned according to the plan, increasing most residential lot sizes to 20,000 square feet minimum. The City did not rezone any of the PDs at that time.

In the summer of 1996, Sheffield Development Co. contracted to purchase the undeveloped part of Stone Creek including certain unbuilt lots in the first phase area, in all about 194 acres, for $ 600 an acre. The price was below market because the owner, a firm headquartered in England, was anxious to liquidate its real estate portfolio in the United States. Sheffield's principal, Gary Sheffield, was an experienced, successful developer of single-family subdivisions. Before closing on the contract, he made a due-diligence investigation of all City regulations and restrictions affecting the property. He met several times with the City Secretary, the City Manager, the Mayor, and various Council [*5] members to advise them of Sheffield's plans to continue the Stone Creek development as permitted by the PD 10 zoning and to ascertain that no zoning changes for the property were planned. He specifically requested that Sheffield be notified of any possible zoning changes. No City officer or employee expressed any objection or reservation to Sheffield's plans or stated that the PD 10 zoning might change, but neither did anyone offer any assurance that the zoning would not change.

At the time, the Vested Rights Statute allowed a landowner to vest zoning rights by filing a plat. n5 Through the fall of 1996, representatives of the City met to discuss downzoning PD 10 and imposing a moratorium on development, but they did not tell Sheffield of these meetings for fear that it would quickly close on the purchase of the property, file a plat, and vest its zoning rights. When Sheffield finally did close on the purchase of the property in December, the City Council met three days later in executive session to discuss downzoning PD 10.

n5 Act of May 24, 1995, 74th Leg., R.S., ch. 794, ' 1, 1995 Tex. Gen. Laws 4147 (codified as TEX. GOV'T CODE ' ' 481.141-.143), "inadvertently" repealed by Act of June 1, 1997, 75th Leg., R.S., ch. 1041, ' 51(b), 1997 Tex. Gen. Laws 3943, 3966, and reenacted by Act of April 29, 1999, 76th Leg., R.S., ch. 73, ' ' 1, 2 1999 Tex. Gen. Laws 431, 432 (at ' 1, finding that statute was "inadvertently repealed"), and now recodified as TEX. LOCAL GOV'T CODE ' ' 245.001-.006.

[*6]

On January 6, 1997, without prior notice to Sheffield (the law that now requires four days' notice in such circumstances n6 was not yet in effect), the City Council adopted Resolution No. 287-97 prohibiting the filing and acceptance of plats in PDs until February 6 to allow time to determine whether existing PD zoning was consistent with the comprehensive land use plan. The resolution recited:

the temporary suspension is solely for the purpose of allowing the City Council to study, in conjunction with the City's planning and administrative officials, the zoning, growth and development related issues and concerns presented by the nonconformity of the City's planned developments with the City's Code and Future Land Use Plan.

n6 TEX. LOC. GOV'T CODE ' ' 212.134(b) (adopted by Act of May 15, 2001, 77th Leg., R.S., ch. 441, ' 1 2001 Tex. Gen. Laws 863).

Before the end of this moratorium, the City's consultant recommended that PD 10 be rezoned to require lots no smaller than [*7] 12,000 square feet, thereby permitting construction of about half the number of houses permitted by PD 10. The consultant also recommended that eleven other PDs be rezoned, leaving two that would not be rezoned. The recommendation was referred to the City's Planning and Zoning Commission, and the City Council extended the moratorium to March 6.

On March 11, after the moratorium had expired on its face, Sheffield submitted a plat for the development of its property under PD 10 zoning requirements. The City Secretary rejected the plat on the asserted ground that the City Manager had continued the moratorium in effect without Council action. On March 17, the City Council extended the moratorium to May 6.

On March 24, the Planning and Zoning Commission accepted some of the consultant's recommendations for rezoning twelve PDs but rejected the proposed rezoning of PD 10 and four other PDs. Anticipating that the City Council would be unwilling to accept the Commission's decision yet unable to override it -- a three-fourths vote, or six of the seven members, was required by the City charter -- the City Manager recommended that final action be delayed. Accordingly, on April 21, the City Council [*8] rezoned three of the twelve PDs as recommended by the consultant and approved by the Commission, and adopted Resolution No. 292-97, essentially identical to Resolution 287-97, extending the moratorium to July 21. The City Council later extended the moratorium under the same resolution to December 31 and finally to May 15, 1998. From July through December 1997, the City rezoned another seven of the twelve PDs as recommended by the consultant, leaving PD 10 and one other on which the City Council had not acted. At the same time, the City and Sheffield made some efforts to negotiate their differences, but the City had no further studies done or reports made on whether PD 10 should be rezoned.

On April 27, 1998, the Planning and Zoning Commission voted to accept the consultant's January 1997 recommendation to rezone PD 10 and the remaining PD. The same day, the City Council approved the rezoning.

B

Sheffield sued the City for inverse condemnation, arguing that both the moratorium and the rezoning of the property violated the takings provision of the Texas Constitution, article I, section 17. Sheffield also sought a declaratory judgment that the plat it filed in March 1997, during [*9] the gap in the moratorium periods authorized by the City Council, had been deemed approved by the City's failure to take action on it n7 and vested Sheffield's rights by statute. Sheffield's pleadings did not assert the claim for declaratory judgment as an alternative to the claims for damages. n8 Sheffield asserted a number of other claims against the City, which the trial court denied. Sheffield has not appealed the trial court's rulings on those claims, and thus they do not concern us here.

n7 See TEX. LOC. GOV'T CODE ' 212.009.

n8 See 61 S.W.3d at 661 (Vance, J., concurring and dissenting).

The parties agreed to try liability issues to the court and damages, if necessary, to a jury. After the bench trial, the court issued findings and conclusions that:

. Sheffield purchased the property expecting that it could be developed under PD 10 zoning, in good faith reliance on the City's representations and the already substantial development of the Stone [*10] Creek subdivision;

. the moratorium:

. "substantially advanced a legitimate governmental interest",

. "did not unreasonably interfere with Sheffield's rights to use and enjoy its property", and thus

. "did not constitute a taking without payment of just compensation";

. the rezoning:

. "substantially advanced a legitimate government interest", but

. "had a severe economic impact on Sheffield",

. "deprived Sheffield of its investment-backed expectations",

. "unreasonably interfered with Sheffield's rights to use and enjoy its property", and thus

. "constituted a taking without payment of just compensation under Article I, Sec. 17 of the Texas Constitution."

Although the trial court found that no moratorium was in effect from March 6 to 17, 1997, it concluded, without explanation, that Sheffield's claim that its rights were vested by the plat it filed during that period was not ripe.

In both the bench trial and the subsequent jury trial, the parties offered evidence of the value of Sheffield's property before and after the rezoning. Witnesses for Sheffield testified that the property was worth $ 12,000-$ 14,000/acre ($ 2,328,000 - $ 2,716,000) before the rezoning and [*11] $ 600/acre ($ 116,400) afterward, a reduction of 95% or more. The City's appraiser testified that the property was worth only $ 4,000/acre ($ 776,000) before the rezoning and $ 2,500/acre ($ 485,000) afterward, a reduction of 37.5%. Although the trial court found after the bench trial that the rezoning had had "a severe economic impact on Sheffield", it did not quantify that impact. The jury found that the property was worth $ 970,000 ($ 5,000/acre) before rezoning and $ 485,000 ($ 2,500/acre) afterward, a reduction of 50%. In accordance with its findings and the jury's verdict, the trial court rendered judgment awarding Sheffield $ 485,000.

Both the City and Sheffield appealed. Sheffield argued that the moratorium also constituted a taking of its property, and that its claim for declaratory judgment should not have been dismissed. The City argued that neither the moratorium nor the rezoning was a taking of Sheffield's property.

Drawing from this Court's opinion in Mayhew v. Town of Sunnyvale, n9 the court of appeals stated that Sheffield could establish a compensable regulatory taking if the rezoning or moratorium either (1) did not substantially advance the City's legitimate [*12] interests, n10 (2) deprived Sheffield of all economically viable use of its property, n11 or (3) unreasonably interfered with Sheffield's use of the property n12 as measured by the severity of the economic impact on Sheffield and the extent to which its investment-backed expectations had been defeated. n13 The court held that the rezoning was not a taking under either of the first two tests. The court determined that rezoning Sheffield's property substantially advanced the City's legitimate interest in "protecting the community from the ill effects of urbanization" and "preserving the rate and character of community growth". n14 The court pointed to the City's evidence that rezoning had reduced the estimated potential population of Stone Creek from 3,090 to 1,563, and that a less densely developed subdivision would mean "more open space and less traffic[,] . . . greater setbacks, fewer school children, 'less folks, and less noise . . . .'" n15 The court also held that rezoning did not deprive Sheffield of "all economically viable use" of its property, n16 based on Sheffield's admission that the property was still worth $ 600 acre.

n9 964 S.W.2d 922, 41 Tex. Sup. Ct. J. 517 (Tex. 1998). [*13]

n10 61 S.W.3d at 644, 645.

n11 Id. at 644, 647.

n12 Id. at 647.

n13 Id. at 647-48.

n14 Id. at 646.

n15 Id.

n16 Id. at 647.

But the court concluded that the rezoning unreasonably interfered with Sheffield's use of its property. The court believed that in determining the economic impact on Sheffield it could not consider the jury's finding in the trial on damages but could look only to the evidence offered in the bench trial on liability issues, even though that evidence was substantially the same as the evidence before the jury. The court reasoned that the minimum economic impact on Sheffield was a 38% reduction in the value of its property, based on testimony the City itself had offered, and concluded that such a reduction was "a sufficient adverse economic impact to satisfy the first factor of the unreasonable interference test." n17 The court then evaluated Sheffield's investment-backed expectations. The court noted that the PD 10 zoning was in place when [*14] Sheffield bought the property, that 43 acres of the original tract had already been developed under that zoning, that continued development was consistent with the City's 1995 comprehensive land use plan, and that before closing on the property Sheffield had attempted to confirm its development plans in several meetings with City officials. n18 The court also cited evidence that there was no existing market in Glenn Heights for larger homes and lots, that the highest and best use of the property was to hold it until such a market developed, and that Sheffield had lost anticipated profits of over $ 8 million. n19 The court noted that development under PD 10 zoning would not burden city services because the infrastructure for the development had long been in place. n20 The court recognized that no one fact could determine its inquiry, but concluded, based on all of the circumstances, that the rezoning "unreasonably interfered with Sheffield's investment-backed expectations." n21 Accordingly, the court held that the rezoning "unreasonably interfered with Sheffield's right to use and enjoy the property." n22

n17 Id. at 648. [*15]

n18 Id. at 650.

n19 Id. at 650-51.

n20 Id. at 651.

n21 Id. at 652.

n22 Id.

Turning to the moratorium, the court disagreed with the trial court that the moratorium substantially advanced the City's legitimate interests for the entire period it was in effect. n23 The court noted that the City's stated purpose for the moratorium -- to study whether PD 10 and other planned development areas should be rezoned -- was completed when the City's consultant tendered his report and recommendations less than a month after the moratorium was first put in place. n24 Yet the moratorium was extended and re-extended a total of fifteen months (excluding the twelve-day gap found by the trial court). The court of appeals cited testimony by the Mayor and one Councilman that the moratorium was extended because of a stalemate on the Council and in order to pressure Sheffield into accepting the City's development conditions. n25 The Mayor testified that one Councilman "had expressed his concern that the City did not have [*16] enough leverage, as he likes to put it, over the developer". n26 From the evidence, the court concluded that "the motivation for the moratorium was never simply to study the zoning issue." n27 "Once the city had all the information it needed to make a decision," the court concluded, "the stalemate on the council [over whether to reject the Planning and Zoning Commission's decision not to rezone PD 10 and four other PDs] was not a legitimate reason to continue the moratorium which prevented development of the property". n28 Thus, the court held that the moratorium was a compensable taking of Sheffield's property beginning with the Council's stalemate on April 21, 1997. n29

n23 Id. at 657.

n24 Id. at 655.

n25 Id. at 655-56.

n26 Id. at 656.

n27 Id. at 657.

n28 Id.

n29 Id.

Finally, the court also disagreed with the trial court's dismissal of Sheffield's claim for a declaratory judgment [*17] as not ripe. Rather, the court of appeals concluded, "nothing else . . . can occur that will affect Sheffield's entitlement to a determination of" whether it had filed a plat vesting its development rights during a gap in the moratorium. n30 Accordingly, the court affirmed the judgment for damages for the rezoning and remanded the case for a determination of damages for the moratorium and of Sheffield's claim for declaratory relief. n31 As the dissent noted, however, the court gave no guidance on whether Sheffield could "prevail on approval of the plat (thereby gaining the right to develop the property under the former zoning) and recover damages for the moratorium and re-zoning". n32

n30 Id. at 658.

n31 Id. at 660.

n32 Id. at 661 (Vance, J., concurring and dissenting).

We granted both parties' petitions for review. n33

n33 45 Tex. Sup. Ct. J. 984 (July 3, 2002).

[*18]

II

We first consider Sheffield's claims that the rezoning and moratorium each effected a taking of its property without adequate compensation in violation of article I, section 17 of the Texas Constitution. Sheffield makes no claim under the Takings Clause of the Fifth Amendment to the United States Constitution, which is made applicable to the states through the Fourteenth Amendment. n34 The two guarantees, though comparable, are worded differently. The Texas Constitution provides that "no person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made . . . ." n35 The Takings Clause of the Fifth Amendment states: "nor shall private property be taken for public use without just compensation." n36 As the court of appeals noted, it could be argued that the differences in the wording of the two provisions are significant, but neither Sheffield nor the City makes this argument. n37 Both agree that in applying the Texas constitutional provision in this case, we should look to federal jurisprudence for guidance, as we have in the past, n38 and so we do.

N34 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 306 n.1, 152 L. Ed. 2d 517, 122 S. Ct. 1465 (2002) (citing Chicago, B.& Q. R.R. Co. v. Chicago, 166 U.S. 226, 239, 241, 41 L. Ed. 979, 17 S. Ct. 581 (1897)); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933, 41 Tex. Sup. Ct. J. 517 (Tex. 1998) (also citing Chicago, B.& Q. R.R. Co.). [*19]

n35 TEX. CONST. art. I, ' 17.

n36 U.S. CONST. amend. V.

n37 61 S.W.3d at 642-44. See DuPuy v. City of Waco, 396 S.W.2d 103, 108, 9 Tex. Sup. Ct. J. 42 (Tex. 1965) ("It was the injustice of requiring an actual [physical] taking which explains the inclusion for the first time in the Constitution of 1876 of the requirement that compensation be paid for the damaging of property for public use."); Trinity & S. Ry. Co. v. Meadows, 73 Tex. 32, 11 S.W. 145, 146 (Tex. 1889) ("The insertion of the words 'damaged or destroyed' in [article I, section 17] was doubtless intended to obviate this question [of whether a compensable taking required a physical appropriation], and to afford protection to the owner of property, by allowing him compensation, when by the construction of a public work his property was directly damaged or destroyed, although no part of it was actually appropriated.").

n38 E.g., City of Austin v. Travis County Landfill Co., 73 S.W.3d 234, 238-39, 45 Tex. Sup. Ct. J. 511 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 932, 41 Tex. Sup. Ct. J. 517 (Tex. 1982).

[*20]

A

By their plain terms, the takings provisions of the state and federal constitutions do not limit the government's power to take private property for public use but instead require that a taking be compensated. n39 Physical possession is, categorically, a taking for which compensation is constitutionally mandated, n40 but a restriction in the permissible uses of property or a diminution in its value, resulting from regulatory action within the government's police power, may or may not be a compensable taking. n41 As we have said, "all property is held subject to the valid exercise of the police power" and thus not every regulation is a compensable taking, although some are. n42

There is . . . no one test and no single sentence rule . . . . The need to adjust the conflicts between private ownership of property and the public's interests is a very old one which has produced no single solution. n43

"Government hardly could go on", wrote Justice Holmes in the first regulatory takings case in the United States Supreme Court, "if to some extent values incident to property could not be diminished [by government regulation] without paying for every such change in the general [*21] law." n44 Yet, he continued, "a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." n45 "The general rule at least", he concluded, is "that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking", n46 adding, "this is a question of degree -- and therefore cannot be disposed of by general propositions." n47 "The question at bottom is upon whom the loss of the changes desired should fall." n48

n39 See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 314, 96 L. Ed. 2d 250, 107 S. Ct. 2378 (1987) ("As its language indicates, and as the Court has frequently noted, this provision does not prohibit the taking of private property, but instead places a condition on the exercise of that power.") (citations omitted).

n40 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 322, 152 L. Ed. 2d 517, 122 S. Ct. 1465 (2002) ("When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner . . . ."). [*22]

n41 Taub v. City of Deer Park, 882 S.W.2d 824, 826, 37 Tex. Sup. Ct. J. 1079 (Tex. 1994) ("An act short of actual physical invasion, appropriation, or occupation can amount to a compensable taking when a governmental agency has imposed restrictions that constitute an unreasonable interference with the landowner's right to use and enjoy the property.")(citation omitted).

n42 City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 804, 28 Tex. Sup. Ct. J. 104 (Tex. 1984).

n43 Id. (quoting City of Austin v. Teague, 570 S.W.2d 389, 392, 21 Tex. Sup. Ct. J. 534 (Tex. 1978)).

n44 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 67 L. Ed. 322, 43 S. Ct. 158 (1922).

n45 Id. at 416.

n46 Id. at 415.

n47 Id. at 416.

n48 Id. (emphasis added).

While the United States Supreme Court has never questioned this rule since Justice Holmes stated it, n49 the Court has acknowledged that determining how far is "too far"

has proved to be a problem of considerable difficulty. While this Court has recognized that the "Fifth Amendment's [*23] guarantee . . . [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole," this Court, quite simply, has been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. Indeed, we have frequently observed that whether a particular restriction will be rendered invalid by the government's failure to pay for any losses proximately caused by it depends largely "upon the particular circumstances [in that] case." n50

As a result, the Supreme Court has admitted, "cases attempting to decide when a regulation becomes a taking are among the most litigated and perplexing in current law." n51 For our part, we have called these legal battlefields "a 'sophistic Miltonian Serbonian Bog'". n52

n49 See, e.g., First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 328, 96 L. Ed. 2d 250, 107 S. Ct. 2378 (1987) ("There is no dispute about the proposition that a regulation which goes 'too far' must be deemed a taking."). [*24]

n50 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-24, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978) (alteration in original) (citations omitted).

n51 Eastern Enters. v. Apfel, 524 U.S. 498, 541, 141 L. Ed. 2d 451, 118 S. Ct. 2131 (1998).

n52 City of Austin v. Teague, 570 S.W.2d 389, 391, 21 Tex. Sup. Ct. J. 534 (Tex. 1978) (quoting Brazos River Auth. v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 105, 5 Tex. Sup. Ct. J. 12 (Tex. 1962)); see also JOHN MILTON, PARADISE LOST 49, bk. II, ll. 592-94 (Scott Elledge ed., Norton & Co. 1993)(1674)(describing the land beyond Lethe as "A gulf profound as that Serbonian bog / Betwixt Damiata and Mount Casius old, / Where armies whole have sunk").

There are small islands in the bog. The Supreme Court has identified, in its words, "at least two discrete categories of regulatory action as compensable without case-specific inquiry". n53 One is where regulation "compels the property owner to suffer a physical 'invasion' of his property." n54 The direct, physical effect on property, though short of government possession, makes the regulation [*25] categorically a taking. Another is "where regulation denies all economically beneficial or productive use of land." n55 To deprive an owner of all economically beneficial use of land is tantamount to depriving him of the land itself. But this is "limited to 'the extraordinary circumstance when no productive or economically beneficial use of land is permitted'" n56 and "the landowner is left with a token interest." n57 In addition to these two situations, the Supreme Court has stated that regulation "effects a taking if [it] does not substantially advance legitimate state interests". n58

n53 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1016, 120 L. Ed. 2d 798, 112 S. Ct. 2886 (1992).

n54 Id. (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-40, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982)) (holding that "law requiring landlords to allow television cable companies to emplace cable facilities in their apartment buildings constituted a taking").

n55 Id. at 1015-16 (citing Agins v. City of Tiburon, 447 U.S. 255, 260, 65 L. Ed. 2d 106, 100 S. Ct. 2138 (1980)); see also Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933, 41 Tex. Sup. Ct. J. 517 (Tex. 1998). [*26]

n56 Tahoe-Sierra Pres. Council, Inc., v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 330, 152 L. Ed. 2d 517, 122 S. Ct. 1465 (2002) (quoting Lucas, 505 U.S. at 1017-19); see also Mayhew, 964 S.W.2d at 935. But see Lucas, 505 U.S. at 1016 n.7 ("Regrettably, the rhetorical force of our 'deprivation of all economically feasible use' rule is greater than its precision, since the rule does not make clear the 'property interest' against which the loss of value is to be measured. When, for example, a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole.").

n57 Palazzolo v. Rhode Island, 533 U.S. 606, 631, 150 L. Ed. 2d 592, 121 S. Ct. 2448 (2001); cf. Tahoe-Sierra, 535 U.S. at 350 (Rehnquist, C.J., dissenting) (arguing that economically beneficial use in Lucas is not synonymous with value).

n58 Agins, 447 U.S. at 260 (1980) citation omitted); see also Mayhew, 964 S.W.2d at 933-34.

[*27]

Otherwise, however, whether regulation has gone "too far" and become too much like a physical taking for which the constitution requires compensation requires a careful analysis of how the regulation affects the balance between the public's interest and that of private landowners. While each case must therefore turn on its facts, guiding considerations can be identified, as the Supreme Court first explained in Penn Central Transportation Co. v. City of New York:

In engaging in these essentially ad hoc, factual inquiries, the Court's decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. So, too, is the character of the governmental action. A "taking" may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good. n59

n59 438 U.S. 104, 124, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978) (citations omitted).

[*28]

The Supreme Court has restated these factors simply as:

(1) "the economic impact of the regulation on the claimant"; (2) "the extent to which the regulation has interfered with distinct investment-backed expectations"; and (3) "the character of the governmental action." n60

n60 Connolly v. Pension Benefits Guar. Corp., 475 U.S. 211, 225, 89 L. Ed. 2d 166, 106 S. Ct. 1018 (1986) (quoting Penn Cent. Transp. Co. v. City of New York, 438 U.S. at 124).