Texas Supreme Court changes takings analysis, holding fact questions exist to hold County and District liable for flooding

Harris County Flood Control District and Harris County, Texsas v Edward A. And Norma Kerr, Et Al.,13-0303, (Tex. June, 12, 2015)

This is an inverse condemnation case in a flooding matter allegedly resulting from the failure to mitigate development runoff. The Texas Supreme Court held fact questions exists as to whether the County and District knew unmitigated development would have a flooding impact on homeowner property.

Several flooding events occurred in 1998, 2001 and 2002. Over 400 homeowners sued the County and District asserting new upstream development was allowed without requiring flood-control measures. The government entities have long known that expanding development in the watershed could cause flooding dating back to a 1976 U.S. Army Corps of Engineers report. The entities initiated flood-control plans and held development to those plans. However the plans centered on containing 10 year, not 100 floods. The property owners sued. The City filed a plea to the jurisdiction/summary judgment which the trial court denied and the court of appeals affirmed the denial.

In order to establish a taking, a plaintiff must establish an intent to take.  It is not enough that the act causing the harm be intentional—there must also be knowledge to a substantial certainty that the harm will occur.  A taking cannot rest on the mere negligence of the government. The property owners asserted the entities approved private development without mitigating consequences, being substantially certain the unmitigated development would bring flooding with it. The County approved development without on-site detention and the entities ignored the Corps findings of 100 year flood mitigation. The County produce evidence that it went beyond what was originally adopted in the 10 year plan and spent millions of dollars on drainage issues. However, that simply creates the exact factual disputes which should prevent the granting of a dispositive motion. The homeowners also raised factual issues regarding causation. Without much of an explanation, the Court held some evidence exists the purposes of the County and District actions were for public use, but did not go into detail. The Court was careful to clarify it was not commenting on the merits of the claims or the ultimate outcome, only that factual disputes exists preventing a dispositive motion.

The dissent first disagreed with the majority’s analysis noting that only affirmative conduct, not omissions, form the basis of a takings. Further, specificity of which property is to be taken is a requirement under a takings analysis and is notably absent here. Next the court noted this was “uncharted” territory as it is an “underregulation” case instead of a burdensome overregulation case which addresses third party properties, not the homeowner’s properties. Essentially, the entities did nothing but allow the private developers to use their property the way they saw fit. The court has never held that the public-use element is met where the government does nothing more than approve plats or building permits for private development. This expands governmental takings liability.  [To understand the significance of the majority opinion, one needs to read the dissent.]

If you would like to read this opinion click here. JUSTICE DEVINE delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE GREEN, JUSTICE GUZMAN, and JUSTICE BOYD joined. JUSTICE WILLETT filed a dissenting opinion found here, in which JUSTICE JOHNSON, JUSTICE LEHRMANN, and JUSTICE BROWN joined. The docket page with attorney information is found here.

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