JIM MATTOX 

Attorney General 

Suprm Cewl BulldIng 

P. 0. Box 12542 

Austin. TX. rnlll- 2545 

512/47S?so1 

Telex Olw87C1287 

T4l~copler 512/47502(16 

714 Jack6m. Suit. 700 

Dd*r. TX. 7520245m 

2W742-8044 

4824 Albwu Ave.. SUIW 16a 

El Paso. TX. 7WOH792 

OlW 

1001 Texas. suite 700 

NolJston, TX. 77m2-3111 

71- 

50s Broadway, suite 312 

Lubbock. TX. 794062472 

8o8n47-522.3 

4209 N. Tmth. Suit. B 

McAllm. TX. 78501.162s 

512lea2.4547 

2m Malt! Plru, suite 400 

San Antonlo. TX. 782052727 

5t~lsl 

A” Equal OPPWtunltYf 

Affl”“.th~ Actlon EmployW 

The Attorney General of Texas 

hne 21, 1985 

Bomrable Carlos VaLdcz Opinion No. JM-328 

Nueces County Attorwy 

Courthowe, Room 2015 Be: Wtether regulations enacted 

Corpw Chrioti, Tasks 78401 pursuant to article 1581e-1. 

V.T.C.S.. and 6WtiOUS 16.311, 

et seq.. of the Tcus Water Code 

couetitute e taking of land 

Deer Hr. Valder: 

The legislature enacted article 1581e-1. V.T.C.S., because it 

recopslzed 

Sec. 1. 

the permbal bardahips end economic distress 

cawd by flood disasters eiace~ it haa become 

uneconomiml for the private insurance industry 

alone to make flood Insurance available to those 

in need o:! euch protection on reanonable terma and 

conditiom,., 

The purpcm of article 1581~1 wan to enable Gulf Coast 

cottlttlc~ toparticipate In the National Flood Insurance Act of 1968, 

42, U.S.C. ,14001.- et ma... Id.: mee alw Tex. Water Code 116.311. et 

General Opin~.~983); MU-171 (1980); E-1Oz 

federal l ct make& flood insurance avaflable throueh 

i&d&&d --effortI, of ,~, t< ~.federal,..govekt ind -the prlvaie 

innrr-•.induIItV :.-but only vhca ~stath and local gOV~l%WtltE comply 

with certaimfedera:, standards. 42 U.S.C.*114022, 4012(c) (1982); see 

Texas Laudowners IUghtst Ase’n v. Earris, 453 1; Supp. ~1025, 1027-28 

?DiD.C:1978), m!,. 598 P.2d 3rl (D.C. Cir. 1979). cert. denied, 444 

U.S. 927.. Addftimmllv: eeveral other tvues of federal financial 

awi6teuce, including % and PgA insured*~*mrtgages, m ctkmunity 

development block lpattts, and disaster resistance. may not be 

available In flood hazard ereas 'of non-complying c-cities. 42 

U.S.C. i4012a; we 42 U.S.C. )4003(a)(4); oee &o T~AE Landowners 

Rlghts.Aes’n o. ~~~, E,. at 1028. 

Pureuent to tha Ilationel Flood Ineureece Act of 1968. ee amended 

by the Flood Dieeetw Protection Act of 1973. 42 U.S.C. 14001 et seq., 

the Pederel Rmergea~cy Management Agency holds authority to adopt 

regulations which ctmdition a loulity'e perticipatlon in the Nationel 

Flood Insurance Pro$;ram. See 42 U.S.C. 14012(c); 44 C.F.R. 160.1(a). 

- 
Ronorsble Carlo6 Vsldea - Page! 2 (JM-328) 

The regulation about which y,u inquire provides that a participating 

community shall, smong other thinga, 

[plrohibit encroschs~snts, Including fill, new constmction. aubstsntLs1 improvemants. and other 

developnwnt within t'he adopted regulatory floodvay 

that would result jlr sny increase in flood levels 

within the community during the occurrence of the 

beae flood dischsrge. (Emphsaia added). 

44 C.P.R. l60.3(d)(3). 

Your offfce contend6 thirt the wording of this provision must be 

taken as s blsnket prohibition of any development in flood hazard 

areas. Accordingly, you aak whether the passage and enforcement by 

the county~of lsnd use regulotiona with this prohibition, pursuant to 

srtlcle 1581c1. V.T.C.S.. owi~aections 16.311 through 16.319 of the 

Texas Water Code. constitute s taking of lsnd without compensation in 

violation of the Fifth and Fourteenth Amwdmsnts of the United States 

Constitution. You also aak whether application of this flood hsrsrd 

regulation to only portions of the total ntier of flood hazard sreea 

violate6 the Equsl Protection Clause of the Fourteenth tindxnent. A 

number of prior opinions of ,&is office considered, various aspects of 

counties' participation In t'w Nations1 Flood Insurance Progrsm. See 

Attomay General Opinion6 JW-123 (1983); MU-171 (1980); H-1102 

E-1024, E-1011. E-978 (1977). Several of these opinions deslt 

specifically with article l!ieile-1. but none addressed the constitutionsl issua raised by your request. - See Attorney General Opinions 

a-123; MU-171; R-1024. 

AA a prelimlnsry msttor. It la not entirely clear that the 

federsl regulation ia queatfon requires the county to prohibit “all" 

developamt in.federslly dec;f,gnsted floodwaya. The Suprcmc Court of 

North Xarolins recently conrlidered the vslidity of a local land use 

ordinsnce for flood,luaard ares6 which wea enected in order to comply 

with the Rations1 Flood Inno!snce Progrsm. See Reaponaible Citizen6 

in Opposition to the Flood Qain Ordinance vxity of Asheville, 302 

S.E.Zd 204 (N.C. 1983). Tha: ordinance, in lsngusge slooat identical 

to that in isauc here, prahLbited sll fill, new conatmction. snd 

aubatsntisl irprov-ts except those that "ahsll not result in 9 

incresac of the regulstory f:lood [level] during occurrence of the base 

flood discharge." Id. et 210. n. 4 (emphasis edded). The court 

construed this ,lsnpr- to authorize nav conatmction or aubataatisl 

imprwamwta in e menner th;at prevent8 or ~nimiaea any potentlal 

iacresse in flood d.msge. 302 S.E.2d at 210. You do not indicate 

thst s perticuler lendowner 'has presented evidence from an engineer 

thst no development at all ia physically poaalble vhich vi11 not 

result in soy incraese in !Flood levels. You indicate that prior 

federal reatricthns snd pra:tice generally permitted new construction 

if the structure wsa l lsvstad on pilings. We also note that the 

federsl regulations provide for the adoption of limited variances and 

p. 1501 
Eonorsble Csrloa Valder - Page 3 (JM-328) 

exceptions in extreme clrcum~~tsncea. See 44 C.F.R. 160.6. Uoreover, 

evsn if new constmctlon is not feasible. the provision in question 

does not necessarily pr0hibi.t all uses of property in flood hazard 

arses. See generally Turner v. CounTof Del Norte. 24 Cal. App. 3d 

311, 101 Cal. Rptr. 93mj (upheld limit on use under flood plsin 

ordlnsnce to recreation snd sgriculture). 

Under the Fifth and Fourteenth Amendments of the United Ststes 

Constitution. private property msy not be "t&en" in the uercise of s 

governmsnt's eminent domain pavers without "just compensation.” You 

do not oak about the Texsa Conatltution. Set Tex. Coast. srt. I. 117; 

City of College Ststion v. Turtle Rock Corporation. 680 S.W.Zd 802 

(Tax. 1984); City of Austin v. Tesgue. 570 S.W.Zd 389 (Tex. 1978). We 

note. hovever. that the Texas spprosch is in line with cases resolving 

"taking" claim6 under the Federsl Constitution. See City of Austin v. 

Tesgw, 570 S.W.Zd at 393 (balancing of public ati~rivate intareata). 

Under certain circumatancea. ,property uy be eppropristed by govemment action without sny corpenastion as an exercise of the stste’s 

police paver - the power to protect the public health. safety, snd 

welfare. u.s. 621 ,S;;o;n Diego Go6 b, Electric Co. v. C::', ~sS~l~~;;~ 

Agin v. City of Tlburon. 447 U.S. 255 (1980) 

Central Trsnaportation Co. *;. NW York City, . . ; 

Texss Landowners Rights Asa'~~ v. Esrria. *. The factors uauslly 

considered in determining whe:ther or not a taking hsa occurred include 

whether there hss been a #yalcal invasion or sppropristion, the 

degree of diminution In the value of the clsiment'a lsnd, the distinction between forcing baneflt~; snd preventing hsrma, snd a balersing of 

public benefits against privjxe losses. Aa the United States Supreme 

Court stated in Agina v. C:lJ:p of Tiburon. m. %o precise rule 

determines vhsn property he6 b,een token . . . the question nece66arily 

requires a weighing of prfirste end public interests." Thus. vh‘t 

constitutes a "taking" rfth regard to the actusl application of a 

local flood ordinsnce depend!, upon the fscts in each particular case. 

Accordingly, we con only set forth whst the general state of the lsw 

is in the arae. 

It has slresdy been estsblished in a- jurisdictions that 

similar loco1 land use regulmtions eaaociated with the Notions1 Flood 

Insurance Progrsn ore a va1j.d exarcise of the police power and that. 

therefore they do not. on their face, effect s “taking.” See Texas 

Landowners Rights Aaa’n v. 'llsrris, m Responsible Citizens in 

Opposftion to the Flood Pl& Ordinsnce v. City of Asheville, m 

Flood hszsrd zone regulstion; serve a vitsl purpose in protecting the 

people who occupy the regul.a,ted land and in protecting neighboring 

lsndovners from increased flood dsmsge and in protecting the general 

public. See Turnpike Reslt:r Co. v. Tow of Dedham. 284 N.E.2d 891 

(Ness. 19m cert. denied, 609 U.S. 1108 (1973). For these ressona, 

they have been upheld se vr.lid exercises of the police paver. See 

Texhs Landowners -Rights Ass’n. v. Hsrrls, supra; Responsible Citia~ 

in Opposition to the Flood-Plsin Ordinance v. City of Aahsville. 

s. Moreover, SE shown agove. the provision in question does not 

p. 1502 
Ronorablc Carlos Valdez - Page 4 (JM-328) 

prohibit all uses of property within a flood risk area. Clearly some 

intensive u*es, such as extensive uev construction. mey be ruled out 

as * practical matter. As lnilicated, however. decisions of the United 

States Supreme Court establish that uses of land which are Injurious 

to the public may be prohib:tted entirely without compensation. In 

borderline c.sses the courts hsve found the existence of authorization 

for some remaining uses to te a significant factor in the "taking" 

ISSUL. See, e.g., Aglus v. CJ.ty of Tiburon. supra; Turner v. CouutY 

of Del Norte, supra. The ultimate question Is whether a landowner is 

denied all economically viab'le use of his land, Agins, 447 U.S. at 

260, not whether he mst be a1,l.e to show au immediate profit. 

The fact that the authorized uses are not the "highest and best" 

uses or that the cost of complying with flood control land-use 

regulations lay be financially "prohibitive" is not controll! 

r-1051. 1066 (:5th Cir.-i 

i-F.2d 1184 (Ct. 198i);-; 

Decisions of the United States SF 

upheld prohibitions of similar injurious uses and activities, to 

prevent harm to the public, even when the financial impact on the land 

in question is substantial. See, e.g., Agins v. City of Tiburon, 

w For example, the Supreme Court in the Penn Central cnse noted 

that It previously upheld, without requiring compensation, a 75 

percent diminution in value Ln Euclid v. Ambler Realty Co., 272 U.S. 

365 (1926). snd uuheld an 87% nercent diminution In value In Radscheck 

v. Sebsst&n. 236 U.S. 394 (1;315). 438 U.S. at 131; see als;ne 

Landowners Rights Aesn’n v. Barris. 453 F. Supp. at 1032. 

cases the landowners whose jamis restricted also receive certain 

reciprocal benefits which incr,case the value of their property. Such 

benefits may arise both from the fact that restrictions applicable to 

their neighbors protect the liwdovners themselves from increased flood 

hazards and from the ivailabllity to the landowner of flood insurance 

end federally-related financing. See Responsible Citizens in Opposition to the Flood Plain Ordinance City V. of Asheville. 302 S.R.2d st 

213. That the costs of dev&pment necessary to comply with flood 

hazard restrictions are "prdn:Lbitive" or that. the lover value of a 

less intensive use of land is not immediately profitable pay merely 

indicate that .s particular lctndowner has paid too much for land in a 

flood hazard area. The Fifth and Fourteenth Amendments do not require 

that the government guarantcw that a landowner be favored to the 

detriment of the public merely because he has paid a speculative price 

for land. As the Supreme Cou,rt stated in Penn Centrsl Transportation 

Co. v. New York City: 

[T]he submission thw [landowners] may establish a 

' taking’ simply by shoving that they have been 

p. 1503 
. 

Eonornble Cnrlos Valder - Pago 5 (Jh-328) 

denied the nbility to exploit n property interest 

that they heretofolre had believed vns availsble 

for developmet is quite simply untenable. 

438 U.S. at 130; see also And:nm v. Allard, 444 U.S. 51. 65-66 (1979). -- 

~For these reasons, ve conclude that adoption by the county of the 

federnl standard for flood haxerd laud-use regulation in question. see 

44 C.P.R. 960.3(d)(3) (quoted previously), would not on its face 

effect n taking. The validity of the appllcatiou of a flood plain 

ordinance to a particular piece of..property depends upou fnctual 

determinations. Numerous courts in other stntes have upheld similar 

flood zone prohibitions.. 8ee Turner vr County of Del Norte, 24 Cal. 

App. 3d 311. 101 Cal. 'Rptr. 93 

S.E.Zd 16 (Ga. 1978). cert. denied. 1 

(1972): Pope v. City of Atlant 

Plumbing 6 Bent1 

C40 U.S. 936 (1979); 

ng ~I&.~v.za Nnturai Reaourccr Council. 276 

377 (Iown 1979); 

(l4aml.. 1972). q Le~L~;j;.2;~;f D=dham- 284 

England v. Board of Apue . . 

Usdin v., State Department of Envlronmentrl PI 

,(N.J; 8uner. Ct. LAW Div. 19fa). aff'd. 430 A.2d 94! 

:“, 249 

N%% . . 

I N.E.2d 891 

m Subnru of New 

(Haas. App. Ct. 1979); 

yeaction. 414 A.2d 280 

9 (N.J. Super. Ct. 

,&p. Old. 1981); Ma le Leaf Iuvex~. Inc. v. State Department of 

Ecology, 565 P.Zdwi. 1977) 8ce also Graham v.~Bstuary 

Properties. Inc.. 399 80. 2d 1374 (Fl;. i-t. denied, 454 U.S. 

1083 (1981). 

You also indicqte thnt tire proposed regulation would apply only 

to flood hasard areas on the Fiueces Biver which are designated by the 

Federal Bmergency Plarugement Agency and that the Agency plans to 

designate only a portion of IBS total mumher of flood hazard atess nt 

a the. Becuuse this may rewlt in differing treatment of landoeners 

who nre similarly. situated. you ask whether such partial regulation 

violates the Equal Protection (Clause of the Fourteenth Amendment. 

We note *s a prefatory wetter that Gulf Coast counties are not 

limited in their enactment and enforcement of flood hsrard regulations 

to nrens which have been designeted as flood hasnrd areas by the 

Federal Rmergency Dnnagement Agency. Counties hold only those pouers 

nnd duties that nre specificnlly or by necessary implication conferred 

on them. Canales v. Lau8n:Lin. 214 S.W.Zd 451 (Ten. 1948). As 

initially enacted. the Flood-Control and Insurance Act granted only 

limited powers to counties. See Ten. Water Code S16.311 et seq. This 

office previously concludei~>hat this act nuthoriree political 

subdivisions to enact land use regulstions which have as their purpose 

and effect eomplinnce with the requir-ts of the National Flood 

Iosurnnce Program, but that, such regulations have no application 

outside of federally designsted flood hasnrd areas. See Attorney 

General Opinions WI-171 (1983'); R-978 (1977). NeverthelG. srticle 

1581e-1 grnnts l dditionsl flood damage control powers to counties 

bordering the Gulf of Mexicc~ or ita tidewater limits. These pavers 

sre not restricted to or conditioned on the actions of any federnl 

p. 1504 
Eonorable Carlos Valdez - Page 6 (JM-328) 

ageucy in dcsiguating nn aren ,as n flood hasard. See Attorney General 

Opinions HW-171 (1980); N-1024 (1977). As ve inKsted in Attorney 

General Opinion JM-123 (1983). article 1581e-1 must be construed in 

conformity with its purpose of enabling certain counties to quelify 

for pnrtlcipatiou in the National Flood Insurance Program. Consequently, Attorney Caneral Opinion JM-I23 concluded that a particular 

county lackad powers broad enough to deny utility sewice to 

individuals and autities vhlch were not in compllauca vlth county 

flood regulations. Navcrth~aless. federal regulations encourage 

comprehensive flood mwagemrut by local c-nitleo sad expressly 

allow more stringent regulat:tcms than we federally required. See 44 

C.F.X. 1160.1, 60.3(b). Thw,, Gulf Coast counties are not limi?Z in 

their article 1581c-1 flood z,cgulatiou pavers to areas which have been 

designated as flood hasard as’eae by the fedaral governmant. They are, 

howwer. limlted to enactin only land use regulations and only in 

flood-prone areas. See Attonmy Ganeral Opinion E-1024 (1977). - 

If tha county decides , houever, that it is feasible to enact nnd 

anforce flood regulations only in the areas which have been federally 

designated as flood haanrd areas , such action vould not result in a 

danial of equal protection ea a matter of law. It is well established 

that governmanta entitian amp implament their programs a step at n 

time., See City of NW Orleans v. Uukas, 427 U.S. 297 (1976); 

Kataenba~v. Xorgan. 384 U2. ace also Beckandorff v. 

Rarris-Calvcston Coastal Subl3:Ldence District, 558 S.W.2d 75, 81 (Tax. 

Civ. App. - Houston [14th D&t.] 1977). aff'd 563 S.W.Zd 239 (Tex. 

1978). So long as the Gulf Coast county ha~ational reason for not 

enacting and enforcing flood regulations in all flood hazard areas at 

one tkc. no aqua1 protection claim anista l s a matter of lnv. The 

validity of the actual application of this langunge to a parficular 

piece of property depands upon the fscts involved in each cnse. 

1. This is not to sn:r that. in a particular case. a landowner 

could not show that a county's flood plain boundary draving Is discridnetory as applied. See enerall 

154 Cal. Rptr. 580 v9'79 -s+ 

Visa v. State, 92 Cal. App. 3d 

15. Nor do ve nddress the question of 

whether a partlculnr landouner may have other claims against the 

enforcement of a flood p1c:d.n rcgulstion. See Hcrnandcz v. City of 

Lnfaycttc. 649 F.2d 336 (5~11 Cir. 

denied. 102 s.ct. 1251 (19A2); 

1981). (cnnteral cstoppel) e 

Town of Large v. Imperial Aomes 

Corporatfon. 309 So.2d 571 (Pin. 1975) (equitable cstoppel). 

p. 1505 
. 

Nonornble Carloa Valder - Page 7 (JR-3281 

Language in loaLL land-use regulations vhich 

tracks the criter:ia of the Natioual Flood 

Insurance Program set forth in 44 C.F.R. section 

60.3(d)(3), does not 00 its face effect a "taking" 

in violation of the Fifth and Fourteauth Ameudmeets of the United States Constitution. The 

county may adopt flood haaard regulations oue step 

at n the, such that they apply 0019 In federally 

designated flood hazard areas, vithout coustitutlag a violation of the Bqual Protection Clause of 

the Fourteeuth Ameuhseut as a matter of lav. The 

validity of the ectual application of this 

language to a partiwlar piece of property depends 

upou the facts invo:tved in each use. 

JIM MATTOX 

Attorney Geueral of Texas 

TonGxEEN 

First Assistant Attorney Gaaeml 

DAVID X. BICEARDS 

Executive Aaaiatant Attorney General 

ROBERT GRAT 

Special Assistant Attorney General 

RICR GILPIN 

Chairman. Opinion Comittae 

Prepared by Jeuuifer Riggs 

Assistant Attorney General 

APPROVEI: 

OPINION CGXRITlEE 

Rick Gilpin. Chairman 

Jon Bible 

Tony Guillory 

Jim noellinger 

Jennifer Riggs 

Nancy Sutton 

Snrah Uoelk 

p. 1506