Harris Cnty. Flood Control Dist. v. Kerr

• Decision Date: 17 June 2016
• Docket Number: NO. 13–0303,13–0303
• Citation: 499 S.W.3d 793
• Parties: Harris County Flood Control District and Harris County, Texas, Petitioners, v. Edward A. and Norma Kerr, et al., Respondents
• Court: Texas Supreme Court

499 S.W.3d 793

Harris County Flood Control District and Harris County, Texas, Petitioners,

v.Edward A. and Norma Kerr, et al., Respondents

NO. 13–0303

Supreme Court of Texas.

Argued December 4, 2014

OPINION DELIVERED: June 17, 2016

Rehearing Denied October 21, 2016

Amy Warr, Alexander Dubose Jefferson & Townsend LLP, Austin, Kevin H. Dubose, Alexander Dubose Jefferson & Townsend LLP, Houston, Melissa Spinks, Harris County-Litigation Managing Attorney, Vincent Reed Ryan, Jr., Harris County Attorney, Houston, for Petitioners.

Brett Wagner, Doherty Wagner LLP, Daryl L. Moore, Daryl L. Moore, P.C., James B. Blackburn Jr., Blackburn Carter, P.C., Mary Bond Conner, Irvine & Conner PLLC, Houston, for Respondents.

Michael Jon Weils Siegel, City of Austin Law Department, Scott A. Brister, Andrews Kurth LLP, Michael Pichinson, Associate General Counsel, John B. Dahill, Texas Conference of Urban Counties, Susan Desmarais Bonnen, Office of the Attorney General, Scott N. Houston, Texas Municipal League, Stacey Steinbach, James P. Allison, Austin, Huma Nisar Ahmed, Fort Bend County Attorney's Office, Richmond, Dan Pozza, Pozza & Whyte, PLLC, San Antonio, Jo Anne Bernal, El Paso County Attorney, Kevin McCary, Assistant County Attorney, Manuel Romero Jr., El Paso County Attorney's Office, El Paso, James Arthur Boone, Allen Boone Humphries Robinson LLP, David Alfred Kahne, Law Office of David A. Kahne, Donna Lynn Edmundson, Houston City Attorney, Judith Lee Ramsey, Chief, General Litigation Section, City of Houston Legal Department, Robert Allen Eckels, Gray Reed & McCraw PC, David Allan McNamara, Port of Houston Authority of Harris County, Texas, Houston, Teresa L. Todd, Jeff Davis County Attorney, Fort Davis, John Clinton Schumacher, W. Scott Hastings, Locke Lord LLP, Dallas, for Amicus Curiae.

JUSTICE WILLETT

delivered the opinion of the Court, in which JUSTICE JOHNSON, JUSTICE GUZMAN, JUSTICE LEHRMANN, and JUSTICE BROWN joined.

We granted rehearing in this cause February 19, 2016, and now withdraw the opinion and judgment previously issued and substitute the following opinion.

This long-running dispute poses a question of constitutional law: whether governmental entities that engage in flood-control efforts are liable to homeowners who suffer flood damage, on the theory that the governments effected a taking of the homeowners' property by approving private development without fully implementing a previously approved flood-control plan. Under the circumstances presented, we answer no.

I. Background

A. Factual and Procedural Background

Plaintiffs (the homeowners) consist of about 400 homeowners whose homes were located in the upper White Oak Bayou watershed of Harris County. The homes suffered flood damage one or more times when flooding occurred during Tropical Storm Francis in 1998, Tropical Storm Allison in 2001, and another unnamed storm in 2002. The homeowners sued Harris County and the Harris County Flood Control District (collectively the County), asserting a takings cause of action.¹ The homeowners sued other defendants as well, including the Texas Department of Transportation, municipal utility districts, engineering firms, and private developers; those claims were settled or dismissed and are not presented for review.

The District was created under Article XVI, section 59 of the Constitution

, which authorizes the creation of conservation and reclamation districts. The District is charged with “the control ... of the storm and flood waters, and the waters of the rivers and streams in Harris County and their tributaries for ... flood control ... and other useful purposes.”² The Defendants contend their conduct in this case with respect to flood control was coextensive, and the homeowners do not argue otherwise.³ The Harris County Commissioners Court is the governing body of the District.⁴

Most of the homeowners' homes were built in the 1970s and early 1980s. Prior to the three flood events in issue, the homeowners' properties had suffered little or no flood damage, although the area has a long history of flooding. In 1976 the U.S. Army Corps of Engineers prepared an “Interim Report on Upper White Oak Bayou.” The report was prepared for consideration by numerous federal and state entities including the District, the Cities of Houston and Jersey Village, and the Harris County Commissioners Court. The report noted recurring flooding in the upper White Oak Bayou drainage basin, an area covering 61 square miles, and described damaging flooding “occurring almost annually for the past several years.” It stated that the flooding was “caused primarily by inadequate channel capacities of the streams,” and that the problem was “compounded by continuing urbanization” of the fast-growing area. It predicted: “Additional residential development is expected to occur with or without an adequate plan for controlling the floods. Although current local regulations require that new structures be built above the level of the 100–year flood, damages will increase substantially in the future with increased rainfall runoff rates.” It proposed “enlargement, rectification, and partial paving” of the bayou and tributaries, together with other flood-control measures. The plan was to be funded primarily by the federal government.

The County concurred with Corps' findings and agreed to act as a sponsor for the project, but federal funding was slow to materialize. The County approved new residential developments in the 1976–1984 period. The District began requiring new developments in the upper Bayou watershed to provide on-site detention ponds. The parties disagree on the extent to which the District deviated from this policy. The District eventually hired Pate Engineers to develop a flood-control plan, which was presented in a written report in 1984. The Pate Plan noted a “current policy requiring on-site stormwater detention on all new development projects in the Upper White Oak Bayou watershed,” and proposed channel improvements combined with detention basins, with the goal of eliminating “the [100–year] flood plain in the upper portion of the watershed.” The Plan stated that its implementation “should eliminate the existing flood plains through the existing developed portion of upper White Oak Bayou and provide for phased implementation of the ultimate plan to maintain 100–year flood protection on White Oak Bayou as future development occurs.” In 1984, the County approved the Pate Plan and authorized the District to implement it. The Plan was to be funded through local taxes and impact fees, because federal funding was no longer available, and was to be implemented in phases. Developers who did not construct on-site detention facilities could pay an impact fee that would fund the construction of regional detention facilities.

The Pate Plan was never fully implemented, and flooding continued. In 1990 the District commissioned a new study by Klotz Associates to address flood concerns. The Klotz Plan called for measures that were different from the Pate Plan measures. The parties offer different characterizations of the shift from the Pate Plan to the Klotz Plan. The County contends that the Klotz Plan was necessary because assumptions in the Pate Plan proved wrong, and that the Klotz Plan was more ambitious than the Pate Plan. The homeowners contend that the Klotz Plan was less extensive than the Pate Plan for various reasons.

The homeowners claim that the flooding of their homes was caused by the County's approval of “unmitigated” upstream development, combined with a failure to fully implement the Pate Plan.⁵ Their expert, Larry Mays, relied on alleged unmitigated development occurring in the 1976–1990 time frame.⁶

The County filed a combined plea to the jurisdiction and motion for summary judgment, contending that no genuine issue of material fact had been raised on the elements of the takings claim. The trial court grudgingly denied the motion,⁷ and the court of appeals affirmed.⁸

B. Contentions of the Parties on Appeal

The parties raise many arguments. Briefly, the County contends the homeowners failed to raise a fact issue on the issues of intent, causation, and public use.

On intent, the County argues that it never intended to cause flood damage to the homeowners' properties. The County disputes that the evidence raised a fact issue on whether the County was substantially certain that flooding would result from approval of development or failure to fully implement the Pate Plan. It argues that Mays' opinion regarding intent and causation is conclusory, suffers from analytical gaps, and therefore is not competent expert evidence.

On causation, the County contends that Mays opined that full implementation of the Pate Plan would have prevented flooding of the homeowners' properties, because the three floods were all less than the 100–year flood and the Pate Plan would have prevented flooding up to the 100–year event. The County contends Mays made no attempt to show, with scientifically reliable analysis, that full implementation of the Plan would have met this goal. The County offered evidence that assumptions in the Pate Plan became outdated, and argues that the Plan's goal of preventing flooding for anything less than a 100–year event was aspirational only. It points out that Mays, in his deposition, could not say that full implementation would have contained “the 100–year flood,” only that “the intent of [the Pate Plan] was to contain” such a flood. The County also disputes that it ever authorized “unmitigated” development as described by Mays. It further complains of “Mays' failure to connect any particular unmitigated development to any particular flooded property.”

On public use, the County argues that when, as here, property damage is merely the accidental result of the government's acts, there is no public benefit and the property is not taken or damaged for public use under the Texas Constitution. The County also argues there was no evidence the...