Homeowners properly pled a taking by flooding due to channel reconstruction and temporary embankments says El Paso Court of Appeals

 

CITY OF SOCORRO, Texas v.  SAMUEL CAMPOS, et al, 08-14-00295-CV (Tex.App— El Paso, September 14,2016)

This is a takings/flooding case where the El Paso Court of Appeals held the Plaintiffs properly pled a takings case.

The residents contend that the City of Socorro intentionally caused flooding by constructing a ditch, and later two embankments, that were intended to protect one subdivision (Valley Ridge) at the expense of their neighborhood (Patti Jo Neighborhood). In 2006 El Paso and it surrounding area suffered a historic rain event. To remedy the flooding in the Valley Ridge Subdivision, the City of Socorro in 2009 built a diversion channel designed to intercept water and mud coming down the Sparks Arroyo and redirect it towards another existing drainage channel. These channels would redirect the flow around the Valley Ridge Subdivision and deposit it onto a tract of land to the east. In 2010, the United States Army Corps of Engineers issued a report noting that Socorro’s actions had diverted water from its original flow path. That same year, the El Paso Water Utilities, El Paso County, and the Texas Water Development Board released a master storm water plan that recognized Socorro’s efforts were “intended to relocate the arroyo flow path.” The storm water plan made detailed recommendations to address the risk of flooding to downstream communities caused by Socorro’s actions, but the City did not implement them. In a three-day period in September 2013, the area received over six inches of rainfall. Socorro’s diversion channel worked in the sense that the Valley Ridge subdivision was spared any flooding from the upstream direction, but the water and mud from the Spark’s arroyo collected on the east side of Thunder Road to such an extent that the Valley Ridge subdivision was once again threatened with flooding. So the City created two temporary sand embankments to stop the flooding. Unfortunately, the redirection of water poured onto the Patti Jo Neighborhood, flooding the Plaintiffs’ homes. Plaintiffs asserted both through the original 2009 diversion channel, and the 2013 Thunder Road embankments, Socorro purposely redirected the flow of water from the Valley Ridge subdivision towards the Patti Jo Neighborhood. They allege that the City of Socorro was “substantially certain” these actions would cause flooding and damage to their homes.  The City filed a plea to the jurisdiction which the trial court denied.

A takings claim consists of three elements: (1) an intentional act by the government under its lawful authority, (2) resulting in a taking, damaging, or destruction of the plaintiff’s property, and (3) for public use. The intent element requires those seeking redress to show that the government “intentionally took or damaged their property . . . or was substantially certain that would be the result.” It is not enough that the act causing the harm is intentional; the governmental entity must know to a substantial certainty that the harm complained of would occur. Accordingly, a takings claim cannot rest on mere negligence. The court held that the mere possibility of future flooding would not rise to the level of a constitutional taking.  However, the petition as a whole alleges that the diversion of water and mud from the 2009 ditch plus the funneling of that water across by the sand embankments is what extensively damaged their property. The pleadings allege the City was substantially certain the embankments combining of the diversion water from the channels would result in flooding of their homes. And while the court held the case law supports that a single flood event is not usually the basis of a taking, the court held multiple floods are not a requirement. As a result, the Plaintiffs properly pled that the City was substantially certain that the combined channel plus temporary embankments equates to an intentional taking.  The court did note that such a determination was limited to analyzing the four corners of the pleadings only and should this case ever return on a factual record the court may determine a taking is not supported under the facts. But, from a pleadings standpoint, the Plaintiffs are permitted to go forward.

If you would like to read this opinion click here. The Panel includes Chief Justice McClure, Justice Rodriguez and Senior Judge Larsen.  Chief Justice McClure delivered the opinion on the court. Attorneys listed for the City are Kurt Paxson,. James A. Martinez and John P. Mobbs. Attorneys listed for the Plaintiffs are Christopher C. Benoit, Lynn Anne Coyle,  Francisco  X. Dominguez , Michael Russell, Robert Doggett and Alberto Mesta Jr.