Full opinion text
Justice O’NEILL delivered the opinion of the Court as to Parts I, II, III.B, and V, joined by Chief Justice JEFFERSON, Justice WAINWRIGHT, Justice BRISTER, and Justice JOHNSON, and an opinion as to Part III.A and IV, joined by Chief Justice JEFFERSON, Justice BRISTER, and Justice JOHNSON. Hallco Texas, Inc. contends McMullen County’s denial of a variance from an ordinance prohibiting the location of landfills within three miles of a water-supply reservoir effected an unconstitutional taking of property. We hold that Hallco’s claim is barred and thus affirm the court of appeals’ judgment. I. Background In January 1991, Hallco bought 128 acres of land located about 1.75 miles from Choke Canyon Reservoir, sometimes referred to as Choke Canyon Lake, in McMullen County. The reservoir impounds water from the Frio River and supplies water to the City of Corpus Christi and a number of other communities in the region. Hallco purchased the property with the intent to operate a Class I nonhazardous industrial waste landfill, a use requiring a permit from the Texas Commission on Environmental Quality. Class I industrial waste may include waste that, because of its concentration or physical or chemical characteristics, “is toxic, corrosive, flammable, a strong sensitizer or irritant, or a generator of sudden pressure by decomposition, heat, or other means,” and which may pose a potential danger to human health or the environment. Tex. Health & Safety Code § 361.003(2)(A), (B); 30 Tex. Admin. Code § 335.1(18)(18). Class I nonhazardous is distinct from Class I hazardous waste, but “is considered potentially threatening to human health and the environment if not properly managed, because of the constituents and properties this class can include,” and thus requires special handling. Texas Commission on Environmental Quality, Guidelines for the Classification and Coding of Industeial and Hazardous Wastes 2 (2005), available at http://www.tceq.state.tx.us/ comm_exec/forms_pubs/pubs/rg/rg-022_476238.pdf. In the course of Hallco’s purchase, the company’s president discussed Hallco’s plans for the property with the McMullen County Judge, who voiced opposition. Eleven days after Halleo purchased the property, the McMullen County Commissioners Court adopted a resolution expressing opposition to the proposed use as a potential hazard to local water supplies. Despite the County’s disagreement, Halleo proceeded with plans to develop the property as an industrial-waste landfill, and on July 27, 1992, formally filed its application with the Texas Commission on Environmental Quality. In June 1993, the County enacted the ordinance at issue here pursuant to section 364.012 of the Health and Safety Code. While Texas counties generally enjoy fairly limited zoning authority, that provision allows a county to prohibit municipal or industrial solid-waste disposal that presents a threat to the public health, safety, and welfare, so long as the county designates an area in which disposal is permissible. Tex. Health & Safety Code § 364.012(a), (b). McMullen County’s ordinance prohibits the disposal of solid waste within three miles of Choke Canyon Lake, but allows disposal in any other area of the county so long as applicable state requirements are met. McMullen County ORD. No. 01-06-93. Although the County had conducted no technical studies at the time the ordinance was passed, the ordinance’s predicatory provisions state that “a safe and abundant supply of drinking water is necessary to preserve and protect the health and welfare of the citizens of McMullen County;” that “soil in the area of the lake is porous and subsurface materials tend to be unstable and volatile;” that “the disposal of solid waste within three (3) miles of Choke Canyon Lake would constitute a threat to the public health, safety, and welfare;” and that “the present technology available with regard to the installation, operation and maintenance of solid waste disposal sites is insufficient to prevent contamination of adjacent areas.” Id. Neither the Health and Safety Code nor the ordinance establish any procedure to obtain a variance from the landfill prohibition. By the time the County passed the ordinance, Halleo claims it had invested more than $800,000 in the site and the Commission permitting process. The Commission issued a “final draft permit” in January 1995, and a “revised final draft permit” a little over a month later. A final draft permit reflects permit conditions recommended by the Commission’s staff after completion of its technical review, but the permit’s issuance may still depend on the outcome of a contested-case hearing. See 30 Tex. Admin. Code § 80.118(a)(1). The County, the City of Corpus Christi, the Nueces River Authority, and several others appeared in the Commission proceedings and raised objections to Hallco’s application. Hallco’s application apparently remains pending at the Commission. In June 1995, Halleo challenged the County’s ordinance by fifing suit in the federal district court; it also filed a parallel proceeding in state court. The federal court dismissed Hallco’s substantive due-process and equal-protection claims with prejudice, holding that the ordinance was rationally related to a legitimate governmental purpose. 934 F.Supp. 238, 241-42 (S.D.Tex.1996). In doing so, the court described an “Issues List,” prepared by the Office of Public Interest Counsel and attached as an exhibit to the County’s briefing, as “aptly illustrating] that the safety of this proposed project is at least ‘fairly debatable.’ ” Id. at 241. The court dismissed without prejudice Hallco’s claim alleging an unconstitutional taking in violation of the Fifth Amendment to the United States Constitution, holding that to ripen its federal takings claim Hallco first had to seek compensation through procedures the state had established. Id. at 240. The court rested that decision upon Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), which requires a party alleging a Fifth Amendment taking to obtain a final decision regarding application of the challenged regulation to its property, and to first use any available state procedure to obtain just compensation. The court noted that it was “arguable whether Hallco meets the first condition,” bypassing Hallco’s argument that the ordinance “constitutes a final decision because it ... does not expressly provide any means for obtaining variances from the provisions.” Id. at 240. Instead, the court held that Hallco’s Fifth Amendment claim was premature because Hallco had not sought compensation under article I, section 17 of the Texas Constitution. Id. A week after the federal court’s dismissal, the County moved for summary judgment in the state court action. With respect to Hallco’s takings claims, the County argued that Hallco had no claim for compensation under either the state or federal constitution because Hallco had no cognizable property interest in disposing of waste on its property. The County argued, alternatively, that the ordinance was a reasonable exercise of police power that did not deprive Hallco of all economic use of its property. The County also moved for summary judgment on Hallco’s equal-protection, due-process, contracts-clause, and state statutory causes of action. The trial court granted the County’s motion as to all claims without specifying the grounds. Hallco Texas, Inc. v. McMullen County, 1997 WL 184719, *6 (April 16, 1997) (not designated for publication) (“Hallco T’). The court of appeals affirmed the trial court’s judgment, holding that “Hallco’s takings claim must fail because [Hallco] did not have a cognizable property interest of which the government could deprive [it].” Id. at *2, 3. The court reasoned that “the Legislature has defined when property owners may dispose of solid waste on their property via the permitting process” under sections 361.061-361.345 of the Texas Health and Safety Code, and stated that, [e]ven if Hallco already had a permit, by definition, it would not have a property interest in disposal of solid waste. [Commission] regulations define permits as not being a property interest or a vested right.... The only way the McMullen County regulation affected Hallco was in denying it the right to operate a solid waste facility on the proposed site. A mere expectancy of future services which would render the land more valuable, in the absence of a contract, is not a vested property right for purposes of determining whether a taking has occurred. Id. at *3 (citations omitted). The court of appeals’ judgment issued April 16, 1997, and Hallco did not appeal that decision. More than two years after the court of appeals’ judgment and nearly six years after the ordinance was enacted, Hallco submitted a request for a variance to the McMullen County Commissioners Court. Hallco offered no changes to its proposed landfill. Instead, Hallco’s request claimed the ordinance had no scientific basis and alleged the County had singled out Hallco and its property for disparate and unfair treatment. Attached to the request was an appraiser’s assessment of the ordinance’s economic impact on Hallco. Hall-co asked the County to issue a variance permitting it to operate the proposed facility “notwithstanding the provisions of the County’s Ordinance.” The County permitted Hallco to make a presentation on the request to the Commissioners Court, but took no action on Hallco’s request. Two months later, Hallco filed the lawsuit underlying this appeal. Hallco expressly disavowed any challenge to the ordinance’s validity. Instead, Hallco alleged that by denying its variance request the County had taken, damaged, or destroyed Hallco’s property for public use in violation of article I, section 17 of the Texas Constitution. Hallco also alleged that the County had taken its property without just compensation in violation of the Fifth Amendment to the United States Constitution. Hallco purported to reserve the federal takings claim for prosecution in the federal courts, citing England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); Jennings v. Caddo Parish School Board, 531 F.2d 1331 (5th Cir.1976); Fields v. Sarasota Manatee Airport Authority, 953 F.2d 1299 (11th Cir.1992); and Guetersloh v. State, 930 S.W.2d 284 (Tex.App.-Austin 1996, writ denied). Hallco later amended its petition to assert a claim under the Texas Private Real Property Rights Preservation Act, which allows property owners to sue for certain governmental actions that result in an unconstitutional taking or restrict the use of property so as to reduce its value by at least twenty-five percent. Tex. Gov’t Code § 2007.021. Hallco alleged that, as a result of the County’s action, it had sustained property-loss damages of $5,141,700, business-loss damages of $15,811,700, and permit-expense damages of $821,706. In August 2001, the County moved for summary judgment on all of Hallco’s claims. The County again argued that Hallco had no constitutionally protected property right to use its land for solid-waste disposal, and that even if it did, the County reasonably exercised its police power. The County also asserted that Hallco’s claims were all barred by res judi-cata because they were or could have been raised in the first state lawsuit. Finally, the County argued that the statute of limitations and laches barred Hallco’s claims. The trial court again granted the County’s motion without specifying the grounds, and the court of appeals affirmed. Hallco Tex as, Inc. v. McMullen County, 94 S.W.3d 735 (Tex.App.-San Antonio 2002) (“Hallco II”). The court of appeals reaffirmed its prior holding that Hallco had no constitutionally protected property interest in the disposal of solid waste on its property, thus defeating Hallco’s takings claim whether it was framed as a facial or an as-applied challenge. Id. at 738-739. The court also held that, regardless of whether Hallco’s federal takings claim was ripe when Hallco I was decided, “the issue of whether a taking had occurred under either federal or state law was ripe,” and Hallco had failed to reserve its right to return to federal court in the prior lawsuit. Id. at 739. We granted Hallco’s petition for review. II. Parties’ Arguments A. Takings Overview Article I, section 17 of the Texas Constitution provides that “[n]o person’s property shall be taken, damaged or destroyed or applied to public use without adequate compensation being made.... ” Tex. Const., art. I, § 17. Absent a cognizable property interest, a claimant is not entitled to compensation under article I, section 17. Tarrant County v. Ashmore, 635 S.W.2d 417, 422 (Tex.1982). Although our takings provision is worded differently than the Takings Clause of the Fifth Amendment to the United States Constitution, we have described it as “comparable” and the parties here agree that it is appropriate to look to federal cases for guidance. Sheffield Devel. Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex.2004). Both provisions recognize that, while “ ‘all property is held subject to the valid exercise of the police power,’” a regulation may, under some circumstances, constitute a taking requiring compensation. Id. at 670 (quoting City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 804 (Tex.1984)). “Physical possession is, categorically, a taking for which compensation is constitutionally mandated.... ” Id. at 669-70 (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002)). Regulatory action short of physical confiscation or invasion may also result in a taking. Id. A regulation that deprives a property owner of all economically beneficial or productive use of the property “makes the regulation categorically a taking.” Id. at 671. Lesser interferences, however, may also result in a taking. These types of regulatory actions require an “essentially ad hoc, factual inquiry] .... ” Id. at 672 (quoting Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)). A regulation may go so far in imposing public burdens on private interests as to require compensation. Id. at 672. In deciding whether regulatory action goes “too far,” we carefully weigh “all the relevant circumstances,” including: (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.’ ” Id. at 670-72 (quoting Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 225, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986) (quoting Penn Central, 438 U.S. at 124, 98 S.Ct. 2646)). The extent of the governmental intrusion may be a question for the trier of fact, but whether the facts constitute a taking is a question of law. Id. at 673 (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 932-33 (Tex.1998)). B. The Parties’ Contentions Hallco contends the court of appeals mi-sanalyzed its takings claim by holding that, as a matter of law, Halleo could not lodge a regulatory takings challenge against the County ordinance solely because it had not yet obtained an industrial waste-disposal permit. According to Halleo, a landowner always has a reasonable investment-backed expectation in pursuing a development project that was lawful when the land was purchased and need not demonstrate that it has secured all necessary permits in order to pursue a takings challenge. Moreover, Halleo complains, the court of appeals improperly elevated one relevant factor — the landowner’s investment-backed expectations — to a dispositive threshold inquiry, contrary to Mayhew and Penn Central. This analysis, Halleo maintains, transformed a nuanced, fact-specific inquiry into the type of formulaic approach the Supreme Court has repeatedly cautioned against. Halleo points out that the landowners in Penn Central, Sheffield, and Mayhew all lacked permits necessary for development, and claims the court of appeals’ approach would preclude almost every conceivable takings challenge. Halleo acknowledges this Court’s statement in Mayhew that “[t]he existing and permitted uses of the property constitute the ‘primary expectation’ of the landowner that is affected by regulation.” Mayhew, 964 S.W.2d at 936 (emphasis added). But according to Halleo, the Court “obviously meant that courts should look to existing land use restrictions applicable to the property when determining whether a regulation interferes with reasonable investment backed expectations.” Halleo also contends the court of appeals erred in affirming summary judgment on its as-applied Fifth Amendment takings claim. Halleo claims it followed the appropriate procedure to secure federal review of that claim by expressly reserving it in its petition, Guetersloh, 930 S.W.2d at 289-90, and the court of appeals incorrectly reasoned that the reservation was ineffective because Halleo did not reserve its federal claim in Halleo I. According to Halleo, it is litigating its as-applied challenge for the first time. Halleo claims the as-applied challenge was not ripe when Halleo I was litigated because no particularized application of the ordinance to Hallco’s property had been made. Halleo contends the County’s position now, that res judicata bars its claim, is entirely inconsistent with its position in the prior federal suit that the County’s claim was not ripe under Williamson County’s final-decision requirement. Because the trial court would not have had subject-matter jurisdiction over the claim, Halleo argues, it cannot be barred by res judicata, and for similar reasons the County’s affirmative defenses of collateral estoppel, laches, and limitations must fail. Finally, Halleo contends the court of appeals erred in affirming summary judgment because by denying Halleo a variance from the ordinance, the County imposed a substantial public burden on Halleo which, in all fairness and justice, should be borne by the public as a whole. Halleo contends that it “was singled out by the Commissioners’ Court to bear the entire cost of the county’s choice to remain free of landfills.... ” Halleo claims that it presented unrefuted summary-judgment proof that the ordinance decreased the value of its property by ninety-nine percent and it had a distinct investment-backed expectation that it would be able to use its property to operate a solid-waste-disposal facility when it received its permit from the Commission. The County responds that it acted well within its police power by passing and enforcing the ordinance to protect the County’s main source of drinking water. According to the County, it was entitled to explore its options to protect its citizens by first participating in the Commission permitting process before enacting the ordinance, and its ordinance is presumptively valid. Moreover, the County asserts, Hall-co had no property interest in disposing of solid waste on its property because it never had a right to such a use; state law prohibits the disposal of solid waste without a permit, and Hallco cannot assert an investment-backed expectation on the speculative premise that it might obtain a permit. If that were the case, the County argues, then every property owner within three miles of Choke Canyon Reservoir would have a similar takings claim. But even if Hallco had a cognizable property interest, the County claims, the ordinance was not an unreasonable interference. Government is not required to ensure that a landowner can make the most profitable use of its property, and the County presented summary-judgment proof that other reasonably profitable uses of the property are available to Hallco. In any event, the County argues, res judicata bars all of Hallco’s claims because the elements of Hallco’s “facial” and “as-applied” claims are the same and were fully adjudicated in Hallco I. The ordinance created a prohibition, not a regulation, the County argues, and Hallco’s submission of a variance changed nothing. The County maintains that under Hallco’s theory, Hallco could revive an already adjudicated claim any number of times simply by submitting additional variance requests. III. Analysis A. Res judicata We begin by considering the County’s res-judicata argument because, if meritorious, it is dispositive of this appeal. The doctrine of res judicata, or claim preclusion, bars a second action by parties and their privies on matters actually litigated in a previous suit, as well as claims “ “which, through the exercise of diligence, could have been litigated in a prior suit.’ ” Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 799 (Tex.1992) (quoting Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex.1992)). We apply the transactional approach to res judicata, which requires claims arising out of the same subject matter to be litigated in a single lawsuit. Barr, 837 S.W.2d at 631. The res-judicata doctrine “serves vital public interests” by promoting the finality of judgments. San Remo Hotel, L.P. v. San Francisco, 545 U.S. 323, 345, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005). We have recognized that the doctrine prevents needless, repetitive litigation, John G. and Marie Stella Kenedy Mem’l Found, v. Dewhurst, 90 S.W.3d 268, 288-89 (Tex.2002) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)), and in doing so, “advance[s] the interest[s] of the litigants (who must pay for each suit), the courts (who must try each suit), and the public (who must provide jurors and administration for each suit).” Schneider Nat’l Carriers, Inc., v. Bates, 147 S.W.3d 264, 278 (Tex.2004). Hallco contends res judicata does not apply because Hallco’s claim in the previous suit was a facial constitutional challenge to the ordinance while this suit challenges the County’s particular application of the ordinance to its property, and its as-applied takings claim was not ripe in Hall-co I because it had not sought a variance from the ordinance. However, neither of these arguments circumvents res judicata’s application in this case. Hallco argues that its as-applied and facial takings claims are distinct and therefore the adjudication of one cannot bar assertion of the other. Whether or not a cognizable distinction may be drawn between Hallco’s takings claims, of course, does not answer the question of whether res judicata bars its as-applied challenge here. Certainly a contract claim is distinct from one based in tort, but if the claims arise out of the same subject matter and can be brought together they cannot be asserted separately. See Getty, 845 S.W.2d at 798. Hallco contends its as-applied takings claim was not ripe in Hall-co I because it had not sought a variance, and the federal court dismissed its claim for that reason. Hallco mischaracterizes the federal court’s decision, however. While the federal court noted that it was “arguable” whether Hallco’s suit was ripe under Williamson County’s final-decision requirement, it plainly based its ruling on the ground that an inverse condemnation suit had not been concluded in state court. Hallco Texas, Inc., 934 F.Supp. at 240 (citing Williamson County, 473 U.S. 172, 105 S.Ct. 3108 (1985)). But that the as-applied challenge was not ripe for federal adjudication under Williamson County does not mean that it wasn’t ripe for adjudication in the then-pending state action. The ripeness of the state claim cannot be measured by the ripeness of Hallco’s federal claim since a federal claim is not ripe until state court proceedings have been concluded; if federal and state claims ripen at the same time, then neither could ever get started. In determining whether Hallco’s present as-applied challenge was ripe for adjudication in the prior litigation, it is helpful to examine the underpinnings of the ripeness requirement in takings litigation. In an as-applied challenge, requiring a claimant to pursue a variance or otherwise test the regulation’s application in order to ripen the claim allows the factfinder to measure the extent of the regulation’s economic impact so that the takings claim may be adequately assessed. In Williamson County, for example, the planning commission disapproved a developer’s proposed plat for eight specific reasons, including density and grade problems, the length of two cul-de-sacs, the grade of certain roads, lack of fire protection, main-access road disrepair, and problems with minimum frontage. Williamson County, 473 U.S. at 181, 105 S.Ct. 3108. The developer filed a takings suit claiming that it could only build 67 units if it designed the development to meet the commission’s objections, which was 409 fewer than the developer claimed it was entitled to build. Id. at 182, 105 S.Ct. 3108. The planning commission’s expert, though, testified that a 300-unit development could be designed that would overcome the commission’s objections. Id. The Supreme Court concluded that the developer’s takings claim was not ripe because, without further inquiry and the developer’s pursuit of potential variances from the commission’s specific objections, it was not possible to determine how the regulations would ultimately be applied, making it impossible to discern what the economic impact of the challenged action would be or the extent to which it would interfere with the developer’s reasonable investment-backed expectations— two key inquiries in a regulatory-takings claim. Id. at 190-91, 105 S.Ct. 3108. Thus, assessment of the regulations’ economic impact depended upon determining the optimum use that the commission would ultimately allow after considering the developer’s proposals to meet the commission’s concerns. Unlike Williamson County, this is not a case in which a general zoning or land-use restriction was subject to discretionary application or variance. In such cases, the impact on a particular property may not be ripe until a variance is finally denied. See, e.g., Williamson County, 473 U.S. at 186, 105 S.Ct. 3108; Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex.1998). But this was no zoning ordinance; the ordinance here prohibited precisely the use Hallco intended to make of this property, and nothing in the ordinance suggested any exceptions would be made. Hallco’s taking claim was ripe upon enactment because at that moment the “permissible uses of the property [were] known to a reasonable degree of certainty.” Palazzolo v. Rhode Island, 533 U.S. 606, 620, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001). The factors necessary to assess the ordinance’s economic impact and the reasonableness of Hallco’s investment-backed expectations were fixed in the prior litigation, and Hallco has made no claim that those elements were impacted any differently by its variance request. The facts relevant to Hall-co’s present takings claim — the County ordinance’s wholesale prohibition, the manner in which it would be applied, and the nature of the damage suffered — were all evident in the prior suit, and Hallco’s requested variance proposed no new or different application. Although styled a “variance request,” Hallco’s request was nothing more than a demand for the County to reconsider what had been its position all along. Under these circumstances, Hallco’s facial and as-applied challenges were the same regardless of how Hallco chose to frame its pleadings, and res judicata bars another bite at the apple. B. Unappealed prior judgment Moreover, the legal ground upon which the court of appeals resolved Hall-co’s prior takings claim would preclude both an as-applied and a facial takings challenge, yet Hallco chose not to appeal the Hallco I decision. Specifically, in Hallco I the court held that Hallco did not have a protected property interest in the disposal of solid waste and therefore there could be no taking as a matter of law. 1997 WL 184719 at *3. Whether or not the court of appeals was correct in deciding that Hallco had no compensable interest, that holding is dispositive and not subject to collateral attack; claim preclusion inheres regardless of whether the prior decision was correct. Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex.1997). If Hallco wished to challenge the court of appeals’ decision, it could have filed an appeal, which it chose not to do. We have emphasized the strong policies discouraging seriatim litigation on several recent occasions. For example, we have rejected the notion that parties may elect whether to assert a temporary or permanent nuisance, noting that “claimants cannot opt for an indefinite limitations period or a series of suits whenever they would prefer.” Schneider, 147 S.W.3d at 281-82; Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 647 (Tex.2000) (noting that single-action rule is a species of res judica-ta designed to “prevent[] vexatious and oppressive litigation”). In Pustejovsky, we declined to apply the single-action rule to a mesothelioma claimant who had earlier brought an action for asbestosis. 35 S.W.3d at 652. We noted that, while both asbestosis and mesothelioma result from asbestos exposure, they are distinct conditions. Id. We reasoned that the “transactional approach set out in Barr does not necessarily penalize a plaintiff for not bringing a claim arising out of the same facts that nonetheless could not have been litigated in the initial action.” Id. at 651. Pustejovsky’s mesothelioma claim was not barred because, as a practical matter, he could not have proven that he would get the disease to a reasonable medical probability in the previous action. Id. at 652. In contrast, the takings claim asserted in Hallco I sought compensation for the same injury asserted here, and the elements of both an as-applied and facial challenge were fixed and known in the prior litigation. We are sympathetic to Hallco’s contention that the County improperly singled it out to bear a public burden by acting to defeat its permit application through regulation rather than the permit process. McMullen County unquestionably had the power to regulate land use, especially around a water supply like Choke Canyon Reservoir, and in the abstract, its doing so would hardly ever give rise to takings liability. But even if a governmental entity may effect a taking by advancing an illegitimate purpose, as Hallco claims, there was nothing to prevent Hallco from asserting in the prior litigation that the County targeted its property unlawfully, and the final judgment in Hallco I bars that claim here. For similar reasons, the Hallco I final judgment bars Hallco’s claim under the Private Real Property Rights Preservation Act. Tex. Gov’t Code § 2007.001-.045. The Act allows private real-property owners to sue political subdivisions for certain governmental actions that require compensation under the Fifth or Fourteenth Amendments to the United States Constitution or article I, sections 17 or 19 of the Texas Constitution. Tex. Gov’t Code § 2007.021. Those actions include the adoption or enforcement “of an ordinance, rule, regulatory requirement, resolution, policy, guideline, or similar measure.” Id. at §§ 2007.003(a)(1), (4). The Act applies only to ordinances proposed on or after September 1, 1995, or to enforcement actions initiated on or after the same date. Private Real Property Rights Preservation Act, 74th Leg., R.S. ch. 517, § 6, 1995 Tex. Gen. Laws 3266, 3272. Because the County’s ordinance was enacted before the Act’s effective date, the statute can only apply if, as Hallco argues, the rejection of its variance request on September 13, 1999, constituted an enforcement action. But even if rejecting a variance comes within the statute’s enforcement-action purview as Hallco claims, Hallco failed to assert its variance request in the prior litigation and cannot resurrect the Act’s protections here. IV. Fifth Amendment Taking Claim Finally, Hallco claims it properly reserved its as-applied Fifth Amendment takings claim, which it may now assert. We disagree. As the United States Supreme Court has recently made clear, the final judgment in Hallco I also bars Hall-co’s Fifth Amendment takings claim. See San Remo Hotel, L.P., 545 U.S. 323, 125 S.Ct. 2491. In San Remo Hotel, owners of a hotel asserted a federal takings claim against the City and County of San Francisco after the California courts ruled against them on their state constitutional takings claim. The Supreme Court held that the full-faith-and-credit statute, 28 U.S.C. § 1738, required the federal court to give preclusive effect to the California judgment. Id. at 347-48, 125 S.Ct. 2491. Section 1738 requires the federal courts to give “the same full faith and credit [to judicial proceedings] as they have by law or usage in the” state courts, 28 U.S.C. § 1738, and “has long been understood to encompass the doctrines of res judicata ... and collateral estoppel.” San Remo, 545 U.S. at 386, 125 S.Ct. 2491. In San Remo Hotel, the petitioners attempted to reserve their federal takings claim for resolution in federal court, just as Hallco attempted to do here. Id. at 337-42, 125 S.Ct. 2491. The Court acknowledged that the petitioners could have reserved a federal claim that was distinct from an antecedent state action capable of mooting a federal issue under England v. Louisiana Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). But the Court emphasized that “[t]he purpose of the England reservation is not to grant plaintiffs a second bite at the apple in their forum of choice.” Id. at 346, 125 S.Ct. 2491. Because the hotel owners had argued in state court that a development-fee ordinance on its face and as applied failed to substantially advance a legitimate governmental purpose and imposed an undue economic burden, they were not entitled to reserve their federal takings claim for adjudication in federal court. Id. at 341. The Court acknowledged that the petitioners’ federal claims were not ripe until they sought relief under state law. Id. at 346, 125 S.Ct. 2491. But, the Court said, [a]t base, petitioners claim amounts to little more than the concern that it is unfair to give preclusive effect to state-court proceedings that are not chosen, but are instead required in order to ripen federal takings claims. Whatever the merits of that concern may be, we are not free to disregard the full faith and credit statute solely to preserve the availability of a federal forum. Id. at 347, 125 S.Ct. 2491. While San Remo concerned the application of collateral estoppel, rather than res judicata, nothing in the Court’s opinion suggests that it would recognize an exception to the full-faith-and-credit statute when state law would apply res judicata or collateral es-toppel principles to bar a second claim. To the contrary, the Supreme Court has broadly construed the statute to require “all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so.” Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Because we hold that Hallco’s as-applied challenge is barred, its Fifth Amendment claim is similarly barred and Hallco’s reservation is immaterial. Accordingly, the court of appeals did not err in affirming summary judgment on Hallco’s federal takings claim. V. Conclusion We affirm the court of appeals’ judgment. Justice HECHT delivered a dissenting opinion, joined by Justice MEDINA and Justice WILLETT. Justice GREEN did not participate in the decision. . At the time, the agency was known as the Texas Natural Resource Conservation Commission. In 2002, the agency's name was changed to the Texas Commission on Environmental Quality, see 27 Tex. Reg. 8340 (2002), to which we will refer in this opinion. . In 1999, the statute was amended to prohibit counties from adopting an ordinance for which a permit application was pending. Tex Health & Safety Code § 364.012(e). . In 2003, the Legislature enacted legislation requiring the Commission to adopt rules governing all aspects of the management and operation of new commercial nonhazardous industrial solid waste landfills, and directed the Commission to suspend processing pending applications until it adopted such rules. Act of May 27, 2003, 78th Leg., R.S., ch. 1117, §§ 2-3, 2003 Tex. Gen. Laws 3207, 3208. The Commission adopted rules in March 2004. . The County responded to Hallco's final-decision argument that, [e]ven if there were a futility exception, at least one application for variance would be required to establish futility. Contrary to Plaintiffs assertion, the fact that the ordinance does not contain a provision for reviewing how the ordinance will be applied to particular property does not establish that it is futile; the Commissioners Court has the authority to grant a variance, or even to rescind the ordinance, if Hallco presents sufficient justification. Case No. 95-L-22, United States District Court for the Southern District of Texas, Laredo Division, Defendants' Replies to Both Plaintiffs [sic] Motion to Stay Based on Abstention Principles and Plaintiff s Amended Response to Defendant’s Motion to Dismiss with Brief in Support. . The Court noted that the developer's expert witness who testified about the regulations’ economic impact did not itemize the effect of each of the commission’s eight objections, and thus concluded the jury was "unable to discern how a grant of a variance from any one of the regulations at issue would have affected the profitability of the development” or "whether [the developer] 'will be unable to derive economic benefit’ from the land.” Id. at 191, 105 S.Ct. 3108. . We note that the United States Supreme Court recently held that whether a governmental action substantially advances a legitimate state interest is not an appropriate test to evaluate takings claims under the Fifth Amendment to the United States Constitution. Lingle v. Chevron U.S.A., 544 U.S. 528, 532, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005).
Justice HECHT, joined by Justice MEDINA and Justice WILLETT, dissenting. A regulatory-takings claim may challenge a land-use restriction on its face or as applied to particular property. A facial challenge is ripe when the restriction is imposed, but an as-applied claim is not ripe until the regulatory authority has made a final decision regarding the application of the regulation to the property “A ‘final decision’ usually requires ... the denial of a variance from the controlling regulations” unless a request for variance would be futile. This case illustrates how the government can use this ripeness requirement to whipsaw a landowner. The government can argue either that there was no request for a variance when there should have been, or that the request was not specific enough, or that it was not reasonable enough, or that there was insufficient time to consider it — and therefore the landowner’s regulatory-takings claim is premature, unripe, and should be dismissed. Or else it can argue that a request for a variance would be a waste of time, or that none was authorized, or that the landowner should have known his ridiculous proposal would never be seriously considered — and therefore his claim is late, barred, and should be dismissed. One way or the other, the result is the same. Ripening a regulatory-takings claim thus becomes a costly game of “Mother, May I”, in which the landowner is allowed to take only small steps forwards and backwards until exhausted. When Halleo Texas, Inc. first sued McMullen County, alleging that an ordinance aimed at stopping Halleo from using its property as a nonhazardous industrial waste landfill effected a compensable taking, the County argued that it “ha[d] the authority to grant a variance, or even to rescind the ordinance, if Halleo present[ed] sufficient justification”, and therefore, Hallco’s action was not ripe because it “ha[d] not obtained a final decision from the County”. This embarrassing fact is buried in a footnote to the Court’s opinion and never discussed. After Halleo lost, it submitted a lengthy and detailed request for a variance, which the County summarily denied. Now in this, Hallco’s second state-court suit against the County on its regulatory-takings claim (it has also sued three times in federal court), the County argues that the prior action was ripe after all and bars this one because requesting a variance was futile. The Court agrees and holds that Halleo should not have “another bite at the apple”, as if being forced to bob for apples is the same as ever getting a bite. The Court wants Hallco to know that “[w]e are sympathetic”. But it adds: “McMullen County unquestionably had the power to regulate land use, especially around a water supply like Choke Canyon Reservoir, and in the abstract, its doing so would hardly ever give rise to takings liability.” Poor Hallco. It should have known better than to take the County at its word because it could “hardly ever” win anyway, even if it was successful in obtaining a permit to operate a landfill, even if the County deprived Hallco of the lawful use and economic benefit of its property. After spending millions of dollars over twelve years, Hallco, I rather imagine, would prefer justice to sympathy. I would take the County at its word and remand the case for proceedings on the merits, if Hallco can endure yet another round of litigation. Accordingly, I respectfully dissent. I In January 1991, Hallco bought 128 acres of raw land in rural McMullen County (1,142 sq. mi., 1990 pop. 817), a little under two miles from Choke Canyon Reservoir, a 26,000-acre lake on the Frio River halfway between San Antonio and Corpus Christi. The lake supplies water to Corpus Christi and others and provides a setting for recreational activities. The only community in the vicinity of Hallco’s property is Calliham, some two-and-one-half miles away, which had about 50 residents. Otherwise, the area is mostly pasture. Hallco bought the property for use as a Class I nonhazardous industrial waste landfill. No local land-use regulations restricted solid waste disposal on the property Hallco acquired. Since 1971, Texas counties have been authorized to prohibit by ordinance the disposal of solid waste in specific areas where it is a threat to public health, safety, and welfare, but McMullen County had never had such an ordinance. All Hallco needed to operate a landfill was a state permit from what was then the Texas Water Commission (later the Texas Natural Resource Conservation Commission, and now the Texas Commission on Environmental Quality, all referred to simply as “the Commission”). Hallco applied for the permit in July 1992. The County opposed Hallco’s plans from the start. Eleven days after Hallco acquired the property, the commissioners court adopted a resolution opposing the proposed landfill, expressing concern that it might contaminate the reservoir, the Frio River, the nearby Nueces River, and groundwater, jeopardize residents, livestock, vegetation, and soil, and stink. The County also intervened in the Commission proceeding along with Corpus Christi and others to oppose Hallco’s permit application. But not until June 1993, after the application had been pending nearly a year and Hallco had spent some $800,000 on the proposed landfill and permit process, did the commissioners court adopt an ordinance prohibiting solid waste disposal within three miles of the reservoir. Although the County had no technical or scientific studies to support the restriction, the ordinance recited that the soil in the area of the lake is porous and subsurface materials tend to be unstable and volatile; ... the disposal of solid waste within three (3) miles of Choke Canyon Lake would constitute a threat to the public health, safety and welfare; and ... the present technology available with regard to the installation, operation and maintenance of solid waste disposal sites is insufficient to prevent contamination of adjacent areas .... Despite this ordinance and opposition by the County and others, the Commission did not determine that Hallco’s operation of a landfill would be harmful to the public and instead issued a 78-page revised final draft permit in February 1995, detailing the specifications for a landfill operation as recommended by the Commission staff. Two weeks later, Hallco sued the County in the United States District Court for the Southern District of Texas, alleging in part that the County’s ordinance was a regulatory-taking requiring compensation under the Fifth Amendment to the United States Constitution. Around the same time, Hallco also filed its regulatory-taking claim in state court, asserting violations of both the Fifth Amendment and article I, section 17 of the Texas Constitution. The County immediately moved to dismiss the federal-court action, asserting that it was not ripe for two reasons: Hallco had not obtained a final decision from the county regarding the application of the ordinance — in effect, a variance — and Hall-co had not fully pursued relief in' state court. Both were prerequisites to suit in federal court under the United States Supreme Court’s decision in Williamson County Regional Planning Commission v. Hamilton Bank. Hallco responded that it should be excused from requesting a variance since the ordinance did not provide for one and any request would be futile. In reply, the County insisted that a vari-anee was possible and that, in any event, state proceedings had to be exhausted: [T]he Supreme Court [in Williamson ] has held that regulatory takings claims, such as the one presented in this case, are not ripe for federal adjudication unless the Plaintiff: 1) obtains a final decision from the regulatory entity (here, the County) regarding the application of the ordinance or regulation ... to his property; and 2) seeks just compensation through available state procedures. ... Hallco does not dispute that it has satisfied neither prong of Williamson: it has not obtained a final decision from the County and it has not sought redress through available state procedures. Instead, Plaintiff argues only that it would be futile to approach the county for a final decision on the application of the ordinance to its property. [Hallco] offers absolutely no authority for the proposition that futility is an excuse to the requirement of finality. Even if there were a futility exception, at least one application for variance would be required to establish futility. Contrary to [Hallco’s] assertion, the fact that the ordinance does not contain a provision for reviewing how the ordinance will be applied to particular property does not establish that it is futile; the Commissioners Court has the authority to grant a variance, or even to rescind the ordinance, if Hallco presents sufficient justification. Therefore, [Hall-co’s] argument has no merit. Moreover, [Hallco] wholly fails to address the consequences of its failure to seek redress through available state court procedures. The Williamson case itself makes it abundantly clear that state remedies must be sought in state court prior to bringing a federal takings claim. Without deciding whether Hallco had satisfied Williamson County’s first requirement, the district court dismissed the case in August 1995 for failure to satisfy the second: It is arguable whether Hallco meets the first condition. Apparently, it has neither submitted a plan to the County nor sought a variance or waiver from the Commissioners Court. Hallco argues that the ordinance constitutes a final decision because, unlike the regulation in Williamson County, this ordinance does not expressly provide any means for obtaining variances from its provisions .... The Court will not dwell on this argument since Hallco has not met the second ripeness condition. “[B]efore a takings claim is ripe, the claimant must unsuccessfully seek compensation. Short of that, it must be certain that the state would deny that claimant compensation were he to undertake the obviously futile act of seeking it.” Samaad v. City of Dallas, 940 F.2d [925, 934 (5th Cir.1991) ] (emphasis in original). Under Article I, § 17 of the Texas Constitution, property owners claiming an uncompensated taking may seek compensation through an inverse condemnation suit. See Westgate Ltd. v. State, 843 S.W.2d 448, 452 (Tex.1992). Hallco makes no claim to have sought just compensation; therefore, its takings claim is premature. The parties then turned to the state-court action, referred to as Hallco I. Though Hallco still had not requested a variance from the County, the state court, like the federal court, did not determine whether such a request was a prerequisite to Hallco’s action. Instead, the trial court in May 1996 granted summary judgment for the County in part on the ground that prohibiting Hallco’s proposed landfill operation did not constitute a taking of its property requiring compensation under the state and federal constitutions. In April 1997, the court of appeals affirmed, reasoning as follows: We find that Hallco’s takings claim must fail because he did not have a cognizable property interest of which the government action could deprive him. Hallco’s takings claim is grounded in the idea that it has a constitutionally protected property interest or entitlement to use its property for waste disposal, and that the McMullen County ordinance deprived him of that right or entitlement. However, Hallco has never had the right to dispose of industrial waste on its property, and does not now have a right to dispose of such waste.... In Texas, the Legislature has defined when property owners may dispose of solid waste on their property via the permitting process; Tex. Health & Safety Code Ann. § 361.061-.345 (Vernon 1992 & Supp.1997). Even if Hallco already had a permit, by definition it would not have a property interest in disposal of solid waste. TNRCC regulations define permits as not being a property interest or a vested right in the permittee. See 30 Tex. Admin. Code § 305.122(b) (West 1996). The only way the McMullen County regulation affected Hallco was in denying it the right to operate a solid waste facility on the proposed site. 'A mere expectancy of future services which would render the land more valuable, in the absence of a contract, is not a vested property right for purposes of determining whether a taking has occurred. Estate of Scott v. Victoria County, 778 S.W.2d 585, 592 (Tex.App.-Corpus Christi 1989, no writ). The McMullen County ordinance does not otherwise impact on use of the property. Because Hallco did not have a property interest in disposal of solid waste on its property, we hold that the ordinance in question did not constitute a taking as a matter of law. The court of appeals did not discuss whether the case was ripe given that Hall-co had not requested a variance. Hallco did not appeal further. The Commission never approved Hall-co’s permit, but its application remained pending. In August 1999, about two years after the judgment in Hallco I was final on appeal, Hallco requested a variance from the ordinance. The lengthy request included the revised final draft permit issued by the Commission and a valuation of the property, both of which were obtained after the County enacted its ordinance. The valuation showed that the property was worth $5.2 million if operated as a landfill but only $58,300 otherwise, and that a landfill business operated on the property would be worth $15,870,000. The County heard Hallco’s presentation of its request but took no further action. In December 1999, Hallco filed this action, referred to as Hallco II, against the County, again asserting a regulatory taking of its property. Besides its constitutional claims, Hallco also sued under the Texas Private Real Property Rights Preservation Act. Concerned that the state action might not prevent the running of limitations on a federal action, Hallco also filed the same action in federal court. The federal court rejected Hallco’s concerns and dismissed the action. The County moved for summary judgment in the state proceeding, arguing that Hallco had not suffered a compensable taking of its property. The County did not argue that it lacked authority to grant a variance or reconsider Hallco’s proposal; the County argued only that Hallco had not made a case for a variance or reconsideration. The County also argued that this action is barred by Hallco I and by limitations and laches. The trial court granted summary judgment for the County without specifying the grounds. The court of appeals “reaffirm[ed]” its holding in Hallco I that “because Hallco did not have a property interest in the disposal of solid waste on its property, the ordinance did not constitute a taking as a matter of law.” The court added that without a state permit for a landfill, “Hall-co did not have a distinct investment-backed expectation that it could use the property for solid waste disposal, and use of the property for solid waste disposal was neither an existing nor a permitted use.” The court did not mention Hall-co’s statutory claim. II The ripeness requirement for regulatory-takings claims stems from the root of such claims, first stated by Justice Holmes: while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.... [T]his is a question of degree — and therefore cannot be disposed of by general propositions.... [T]he question at bottom is upon whom the loss of the changes desired should fall. “It follows from the nature of a regulatory takings claim,” the United States Supreme Court has since observed, “that an essential prerequisite to its assertion is a final and authoritative determination of the type and intensity of development legally permitted on the subject property. A court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes.” Thus, as we noted above, the Supreme Court held in Williamson County that “a claim that the application of government regulations effects a taking of a property interest [under the Fifth Amendment] is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” More recently, the Supreme Court has explained: Williamson County’s final decision requirement “responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer.” Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 738[, 117 S.Ct. 1659, 137 L.Ed.2d 980] (1997). While a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened. [A] landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law. As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been established. See Suitum, supra, at 736, and n. 10[, 117 S.Ct. 1659] (noting difficulty of demonstrating that “mere enactment” of regulations restricting land use effects a taking). Government authorities, of course, may not burden property by imposition of repetitive or unfair land-use procedures in order to avoid a final decision.... This Court has said that “[a] ‘final decision’ usually requires ... the denial of a variance from the controlling regulations” unless a request for variance would be futile. Futility was the reason Hallco gave the federal court in its first action for not having requested a variance from the ordinance. The ordinance was crystal clear, Hallco argued, and applied specifically to its property, and there were no procedures for granting a variance. The County responded: Contrary to [Hallco’s] assertion, the fact that the ordinance does not contain a provision for reviewing how the ordinance will be applied to particular property does not establish that it is futile; the Commissioners Court has the authority to grant a variance, or even to rescind the ordinance, if Hallco presents sufficient justification. Therefore, [Hall-co’s] argument has no merit. The County now insists that Hallco’s request for a variance should not have the effect of reviving its claim. But ripening is not reviving. In a regulatory-takings case, the dispute must be sufficiently focused for the court to determine exactly how far a general land-use restriction extends in specific circumstances. General restrictions almost always have exceptions. The final-decision requirement allows regulators full discretion in adjusting restrictions to particular property before a constitutional obligation to compensate a landowner can be triggered. The County enacted its ordinance out of a concern, expressly stated, that “present technology available with regard to the installation, operation and maintenance of solid waste disposal sites is insufficient to prevent contamination of adjacent areas” (emphasis added). That was 20 months before the Commission issued Hallco a 78-page revised final draft permit with detailed specifications for the safe operation of the proposed landfill, and six years before Hallco requested a variance. It was certainly not unreasonable to expect that the County might be willing to reconsider the appropriateness of a three-mile zone if a landfill were required to be operated as set out in Hallco’s revised final draft permit, or as a result of changes in technology, or simply after taking another look at the situation. At least the County has always professed in court its willingness to do so, until now, and here we should take it at its word. Hallco claims in this case that the County’s ordinance effects a taking as applied, not of any and all property proposed to be used as a landfill within three miles of Choke Canyon Lake, but only of property on which the prohibited operation is one that is subject to specifications like those in Hallco’s revised final draft permit. Just as a zoning authority might adjust generally applicable front-or side-yard requirements, or height or size restrictions, or other regulations affecting construction on property, depending on particular circumstances, a county’s determination of whether a landfill can be operated in an area may depend on the details of the operation. Despite the County’s assurances in federal court that it could and would consider Hallco’s request for a variance, or for that matter, to repeal the ordinance altogether, it now protests that no procedure is prescribed for any such request to be made. Perhaps the County did not previously consider the absence of such procedure an inhibition to a request for a variance because it knew that general procedures permitted the request. As we have said, the term “variance” is “not definitive or talismanic;” it encompasses “other types of permits or actions [that] are available and could provide similar relief.” The variance requirement is therefore applied