The case was appealed to the Texas Supreme Court. The Court’s opinion states that a taking for inverse condemnation purposes occurs when the government “intentionally took or damaged property for public use, or was substantially certain that would be the result” citing City of Keller v. Wilson, 168 S.W.3d 802, 808 (Tex. 2005). Sovereign immunity does not shield the government from liability.
To prove inverse condemnation, a plaintiff is required to show three elements:
2. Causation, and
3. Public Use
The element of intent may be proven by circumstantial evidence, and can be based on evidence that “a governmental entity knows that a specific act is causing identifiable harm or knows that the harm is substantially certain to result.” Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004).
In the Harris County case, plaintiffs did not argue that the government had a duty to prevent all flooding. However, they claimed that the County and Flood Control District approved private development in the White Oak Bayou watershed knowing that without proper flood control, that development would cause an increase in flooding and an increase in the severity of floods that did occur. The County countered that the intent was not to cause flooding and that they cannot stop all flooding.
The evidence at trial showed that the County had known for decades that development increases flooding in the upper bayou area and that by planning to only contain 10 year floods instead of the original 100 year floods, the County was substantially certain that flooding would result. The Supreme Court also noted that when the flooding became more frequent, the County and Flood Control District were obviously more aware that additional flooding would occur.
The plaintiffs presented evidence that the unmitigated development of the region and change in the land use between 1982 and 1990 caused a significant increase in flows and corresponding water surface elevations for a 10 year flood event. Evidence also showed that two of the three flood events between 1998 and 2002 were 10 year flood events. Finally, the evidence showed that but for the actions of the County in approving unmitigated development and backtracking on implementing the Army Corps’ flood control plan to eliminate flooding for up to a 100 year flood, the plaintiff’s home would not have flooded between 1998 and 2002.
The Texas Supreme Court held that plaintiffs had raised an issue of fact regarding each element of a taking claim. The County and Flood Control District’s plea to jurisdiction and motion for summary judgment dismissing the plaintiff’s case was denied.
Flood control in urban areas is becoming a huge issue these days. Prior to development, flood water has a chance to soak into the soil. Once the soil is covered with concrete and buildings, the flood waters have nowhere to go but downstream, putting homes located downstream at risk. While counties and cities love to see new development that increases their property tax base, they shouldn’t be allowed to do that without protecting the homes downstream.