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

Federal laws creating and implementing the National Flood Insurance Program (“NFIP”) 1 require that, to qualify for federal flood insurance, local governments must attempt to reduce flood losses and the NFIP’s financial burden by enacting and continuously enforcing floodplain regulations making local properties that are covered or eligible for coverage under the NFIP increasingly flood resilient. Texas law also mandates that local governments enact such regulations to qualify for the NFIP. 2 The question presented is, therefore: Whether federal laws establishing and implementing the NFIP, when operating as intended, conflict with and thus preempt Article I, Section 17 of the Texas Constitution, as applied to a Texas property owner’s claim against local government to recover the alleged diminution in property value resulting from the local government’s alleged “taking” or “damaging” 3 the property owner’s property by enforcing local flood management regulations enacted to comply with NFIP requirements? 1 See, e.g., 42 U.S.C.A §§ 4001-4128 (multiple codified statutes creating and implement the NFIP); 44 C.F.R. § 60.1(a) (federal regulations mandating “adequate” local flood management regulations) & infra Statement of the Case, Section II. 2 See Tex. Water Code § 16.3145. 3 The takings/damaged property claims referenced here do not include claims alleging that all of a property’s economic value has been destroyed. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992). Because other uses have already been approved for the property here, Record 281, Lucas cannot apply.