“[T]he question at bottom is upon whom the loss of the changes
desired
should
fall.”
144
The Supreme Court has developed three analytical categories, as summarized in
Lingle v.
Chevron U.S.A. Inc.
:
Our precedents stake out two categories of regulatory action that generally
will be deemed
per se
takings for Fifth Amendment purposes.
First, where
government requires an owner to suffer a permanent physical invasion of her
142
140 S.W.3d 660 (Tex. 2004).
143
Id.
at 669 (“The two guarantees, though comparable, are worded differently.
The Texas Constitution
provides that ‘[n]o person’s property shall be taken, damaged or destroyed for or applied to public use without adequate
compensation being made . . . .’ The Takings Clause of the Fifth Amendment states: ‘nor shall private property be taken
for public use without just compensation.’ . . .
[I]t could be argued that the differences in the wording of the two
provisions are significant, [but absent such an argument] we . . . look to federal jurisprudence for guidance, as we have
in the past . . . .” (footnotes omitted)).
144
Id
. at 670 (footnotes omitted) (emphasis in original) (quoting
Pa. Coal Co. v. Mahon
, 260 U.S. 393, 413,
416 (1922)).
37
