Fact question exists on whether City substantially knew increased development would cause flooding says 2nd Court of Appeals

The City of Keller v. Hall, et al, 02-12-00061-CV (Tex. App. – Fort Worth, May 1, 2014).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a flooding/inverse condemnation case. The Fort Worth Court of Appeals affirmed the denial. This is a 49 page opinion with a 22 page dissent. If you are going to read the opinion, set aside a few hours.

The Halls owned property which was near a creek, a golf course, and various roadways.  They alleged the City’s maintenance of the creek, expansion of the roadways, replacement of a bridge and other various acts caused increased flooding to their property. The City filed a plea to the jurisdiction asserting it established as a matter of law that the City could not have caused the flooding and no intentional invasion occurred for public use since the City was not substantially certain its actions would cause the flooding. The trial court denied the plea and the City appealed.

The court first went through an explanation of where a lot of the evidence came from in the case; specifically the National Flood Insurance Program (“NFIP”).  Included in various documents are rate maps and maps indicating hazard areas for flooding. The court next noted it would give no weight to the City’s opening brief statements where it quoted some lines from Creedence Clearwater Revival’s song “Who’ll Stop the Rain?” It then noted that the City’s communication with FEMA under the NFIP explained the expected consequences of the various construction projects. And while the studies show the property has always been in the 100 year flood plain, it is the consequences of the construction that is the proper issue for consideration. The City knew the creek would have increased flood volume due to a surge in development.  The Halls produced an engineer’s affidavit noting the major flooding events did not exceed the two-year, one-hour storm event under the City’s regulations. The Halls had been expressing concerns over the increased flooding since 1999. After going through an exhaustive list of the facts and discovery, it held the evidence is sufficient to raise a fact issue of whether the City knew flooding could increase. [It also took a jab at the dissent arguing about whether a map was illegible because the court could not read it even with a magnifying glass. It also commented in an almost mocking manner that some of the arguments in the City’s brief were “intended to be humorous rather than merely gratuitous snideness and that the City does not seriously suggest that there is no possible remedy to stop a property from flooding when it rains.”]  A lengthy discussion about excluded evidence followed, with little substantive result; however the dissent believes the exclusion was harmful. The majority held jurisdiction existed since a fact question was present as to the City’s knowledge of a likelihood of increased flooding. The court then held that the “notice” provision for claims in the City’s Charter is not applicable to constitutional claims.

The dissent argued that the majority failed to follow the proper standard of review. After the Hall’s pled an inverse condemnation claim, the City offered evidence to challenge the jurisdiction of the court. The burden is then on the Halls to show the City knew (not should have known) additional flooding would occur. Justice Gabriel does not believe the Halls met this burden. He went through a lengthy discussion of excluded evidence and that under a de novo standard of review, the court could not consider evidence properly excluded (while the majority asserts it could consider the entire record).  In the end, the majority affirmed the denial and remanded the case for trial.

If you would like to read this opinion click here. The descent’s opinion is here. Panel: Justice Dauphinot, Justice Walker, and Justice Gabriel.  Opinion by Justice Dauphinot. Dissent by Justice Gabriel. The attorney for the City is listed as Fredrick ‘Fritz’ Quast.  The attorney for the Halls is listed as Michael J. Vernone.