Texas Supreme Court holds city responsible for “potential” flooding.

Kopplow Dev. v City of San Antonio, NO. 11-0104, (Tex. March 8, 2013)

The question in this case is whether an inverse condemnation claim is premature when premised on the owner’s inability to develop its property as the city previously approved.  The Plaintiff purchased land to develop (which the city granted permits on) but the City constructed a facility on part of the property which placed it below the 100-year flood level, making in undevelopable without additional fill under the permits.  Plaintiff sued for inverse condemnation and won at a jury trial.  The Court of Appeals reversed holding the inverse condemnation claims were premature because no flood occurred yet.  The Supreme Court reversed holding that because it could not be presently developed due to the high possibility of flood damage, the claims were not premature.

The Court noted that normally, negligence which results in a flood is not a compensable taking and that a single flood event is not normally a taking as its benefit to the public is too temporal or speculative to warrant compensation.  However, the court noted that when an entity knows that a  specific act is causing identifiable harm or knows that the harm is substantially certain to result,  then a taking can occur.  In this case, the City asked the property owner for part of the property initially as it knew its facility would increase the flood level on the property. The jury could properly determine the City knew the substantial certainty of the increased flooding and proceeded anyway. However, the Court noted that this case was not really about flooding, but development [a fine line to draw to be sure]. To be consistent with prior caselaw holding that a mere increase in the probability of flooding is not necessarily actionable, the Court determined that because the City previously approved a development, then constructed the facility, it essentially made the property undevelopable as previously approved.  This is not a case where development has already occurred and a mere increase in flooding probability exists.

Cities are often faced with a guessing game as to the results of certain public purpose actions. This case is a warning to be cautious of how certain a city may be regarding the effect of an improvement on neighboring properties.  If it looks like there is a strong chance of increased damage, it may be better to simply condemn the property and know, ahead of time, exactly how much the total price of the public improvement may be.  Otherwise, if the city guesses wrong, the costs could be higher, including attorney’s fees issues. Hindsight is always 20/20 but foresight is. . . well an art form.

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