Harris Cnty. Flood Control Dist. v. Kerr
| Decision Date | 12 June 2015 |
| Docket Number | NO. 13–0303,13–0303 |
| Citation | 485 S.W.3d 1 |
| Parties | Harris County Flood Control District and Harris County, Texas, Petitioners, v. Edward A. and Norma Kerr, et al., Respondents |
| Court | Texas Supreme Court |
Amy Warr, Kevin H. Dubose, Alexander Dubose Jefferson & Townsend LLP, 515 Congress Ave., Suite 2350, Austin, TX, for Petitioners Harris County Flood Control District and Harris County, Texas.
Brett Wagner, Doherty Wagner LLP, 13810 Champion Forest Dr., Suite 225, Houston, TX, Daryl L. Moore, Daryl L. Moore, P.C., 1005 Heights Blvd., Houston, TX, James B. Blackburn Jr., Mary Conner, Blackburn Carter, P.C., 4709 Austin Street, Houston, TX, for Respondents Edward Kerr and Norma Kerr.
John B. Dahill, Texas Conference of Urban Counties, 500 W 13th St., Austin, TX, for Amicus Curiae Texas Municipal League and Texas Association of Counties.
In this inverse condemnation case, we consider whether homeowners raised a fact question as to the elements of a taking. The homeowners blame their county and flood control district for approving new development without mitigating resulting runoff and drainage issues, causing their homes to flood. Because the homeowners presented evidence that the government entities knew unmitigated development would lead to flooding, that they approved development without appropriately mitigating it, and that this caused the flooding, we conclude that the homeowners have raised a fact issue as to their claim. We affirm the court of appeals, which reached the same conclusion. 445 S.W.3d 242, 247 (Tex.App.–Houston [1st Dist.] 2013)
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The plaintiffs in this case are more than 400 residents and homeowners in the upper White Oak Bayou watershed in Harris County. Their homes were built mostly in the mid-to-late 1970s and early 1980s. Despite a history of flooding in the area, they initially suffered little to no flood damage. This changed, however, when Tropical Storm Francis in 1998, Tropical Storm Allison in 2001, and an unnamed storm in 2002 flooded their homes one or more times. The homeowners blame Harris County and Harris County Flood Control District, asserting that they approved new upstream development without implementing appropriate flood-control measures, and that they were substantially certain flooding would result.
The government entities have long known that expanding development in the watershed could cause flooding. In 1976, the U.S. Army Corps of Engineers prepared a report on the upper White Oak Bayou. The report noted recurrent damaging floods, which it attributed primarily to "inadequate channel capacities of the streams." This problem was "compounded by the continuing increases in suburban development which reduces the infiltration of rainfall and increases and accelerates runoff to the streams." Inadequate street drainage and storm sewers also caused severe localized flooding. The report predicted: Accordingly, the Corps proposed channel improvements and other changes to reduce flooding caused by existing and future development. The plan was to be funded primarily by the federal government.
The government entities concurred with the Corps' findings and agreed to facilitate the project. Their ostensible goal following the Corps' report was to maintain or reduce the bayou's 100–year flood plain. But federal funding was slow to materialize, even as thousands of acres were developed in the bayou's watershed and the County continued approving more. Construction in the 100–year flood plain had been prohibited since the early 1970s, meaning that almost none of the new development or the plaintiffs' homes were in the 100–year flood plain when built or approved.
The delay in federal funding for the Corps' plan led County officials to develop their own flood-control plan. The District had already begun requiring new developments in the upper part of the watershed to provide on-site detention ponds, though the parties disagree on whether the District deviated from this policy. The government entities commissioned Pate Engineers to develop a plan. The "Pate Plan," adopted by the County in 1984, proposed to eliminate flooding along the upper bayou for 100–year flood events. Like the Corps' plan, the Pate Plan called for channel improvements along the upper portion of the bayou (some near the plaintiffs' homes). But it also called for more, such as for regional detention ponds to mitigate continuing development in the upper watershed. The plan was to be funded through local taxes and impact fees, but it was never fully implemented.
A 1989 flood led residents to inquire about the flood-control measures. The District's director assured them of plans to protect their property from 100–year floods. Yet the 1989 flood revealed flaws in the Pate Plan's engineering analysis, and the District commissioned another report on the upper White Oak Bayou watershed. Klotz Associates presented its findings in the early 1990s, concluding that the Pate Plan seriously underestimated the bayou's flood flows and levels. Though the Klotz Plan's features were more extensive in some regards than the Pate Plan, the Klotz Plan was modeled around containing 10–year (as opposed to 100–year) flood events. The government entities adopted these changes.
The new information led the Federal Emergency Management Agency to update the bayou's flood plain maps in the 1990s. Revisions exposed an expanding flood plain, encompassing more and more of the plaintiffs' homes. According to the homeowners, by 1999, all of their homes were within the 100–year flood plain—something the government entities do not dispute here. Indeed, from 1998 to 2002, most of their homes were inundated in three successive floods.
The homeowners filed an inverse condemnation suit. The government entities responded with 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 denied the motion, and the court of appeals affirmed the denial of the plea to the jurisdiction.1
provides:
No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person....
(a).
Those seeking recovery for a taking must prove the government "intentionally took or damaged their property for public use, or was substantially certain that would be the result." City of Keller v. Wilson, 168 S.W.3d 802, 808 (Tex.2005)
. Sovereign immunity does not shield the government from liability for compensation under the takings clause. Gen. Servs. Comm'n v. Little–Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001).2 To defeat the government entities' plea to the jurisdiction, the homeowners need only raise a fact issue as to each element of their claim. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004) (). That is, the homeowners must raise a fact issue as to intent, causation, and public use. Little–Tex Insulation Co., 39 S.W.3d at 598. While determining whether they have met this burden, we take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Miranda, 133 S.W.3d at 228
.
In a takings case, "the requisite intent is present when a governmental entity knows that a specific act is causing identifiable harm or knows that the harm is substantially certain to result." Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex.2004)
. 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. City of Dallas v. Jennings, 142 S.W.3d 310, 313–14 (Tex.2004). Intent, in takings cases as in other contexts, may be proven by circumstantial evidence. See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986). But a taking cannot rest on the mere negligence of the government. City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex.1997). The issue here is whether the homeowners' circumstantial evidence raises a fact question as to the government entities' knowledge that "harm [was] substantially certain to result" to the homeowners' homes because of the entities' actions. See Gragg, 151 S.W.3d at 555.
The homeowners do not argue that the government entities have a general legal duty to prevent all flooding. Instead, they urge that the entities approved private development in the White Oak Bayou watershed without mitigating its consequences, being substantially certain the unmitigated development would bring flooding with it. The government entities respond that they did not intend the flooding; indeed, the District's very purpose is to plan for storm-water runoff and control flooding. They assert that they cannot stop all flooding, and to the extent flooding does occur, their intent is to reduce or prevent it, not cause it.
The summary judgment evidence shows a fact question exists regarding whether the government entities were substantially certain their actions in approving development without appropriately mitigating it would cause the plaintiffs' homes to flood. The Corps' report, Pate Plan, and Klotz report confirm that the entities have known for several decades that development...
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