Harris County Flood Control District v. Kerr, Edward A. and Normal

Opinion issued March 7, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00014-CV
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HARRIS COUNTY FLOOD CONTROL DISTRICT AND HARRIS
COUNTY, TEXAS, Appellants
V.
EDWARD A. AND NORMA KERR, PATTIE ACKERMNANN AND LEDA
KROLCZYK, DAVID T. ADAMS, CLIFFORD AHLHORN,
INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF
MARGRETE AHLHORN, THE ESTATE OF MARGRETE AHLHORN,
THOMAS E. ALVAREZ, B.J. AND CLAUDENCE ANELLO, PAUL C.
ARDOIN, JR., RONALD L. AND WENDY M. BARR, DONALD H. AND
CYNTHIA L. BECK, OKIE BECK, STEVE AND LINDA BEVERLIN,
DOUGLAS J. AND NANCY K. BLACK, LEROY AND MARY BOLLOM,
STANLEY AND CATHY BORDOVSKY, LORI KRAFT BORQUE,
WENDELL W. BREAZEALE, MICHAEL R. AND DIANA L.
BRINKMEYER, MARK A. AND LEAH BRUMLOW, MICHAEL AND
JUDY BRUNER, MICHAEL AND CYNTHIA BUCHANAN, JOSEPH AND
FAYE BUFFALO, WILLIAM AND SHIRLEY CANNAVINO, RUSSELL D.
AND LYNN CARLSON, JAMES J. AND CONNIE J. CASSENS, JAMES J.
CHRISTY, CARL W. CLARK, SUSAN CLARK, MICHAEL AND
SUZANNE CLAXTON, RONNIE D. AND JUDY A. COCKMAN, LARRY
AND MARY CRAWFORD, ANTONIO AND NILDA CUELLAR, JOLIE
DANIEL, WILLIAM P. AND SUE E. DAY, SUSAN JANE DEESLIE,
DUANE E. DEGNER, DAVID DICK, JACKIE L. AND LILLIAN L.
DILLON, KEVIN AND ELIZABETH DOMAIN, MARVIN J. AND
PAMELA A. DRODDY, JOHN AND BETTY ELLIS, KEITH AND HOLLY
ENGLE, NICKOLAS AND HUGHLEENE S. ERDELY, PATSY A.
EUBANKS, MIKE EVANS, FAIRBANKS ANIMAL CLINIC INC.,
DOUGLAS L. AND DEBRA G. FARES, DONNA FARRAR-WILSON
FORMERLY KNOWN AS DONNA FARRAR, BRANDON FOKKEN,
MARLOWE A. AND MARY M. FOKKEN, DAVID M. AND DEBBIE
FOYT, RICHARD AND TERRI FRITSCHE, SHIRLEY GALIK, PHYLLIS
J. GAMBLE, ARMANDO AND LUCIA GARCIA, ROBERT D. AND
JOVITA GARCIA, STEPHEN B. AND BRENDA GARNEY, ARTHUR AND
KATHERINE PINTSCH JR. AS EXECUTORS OF THE ESTATE OF
NORMAN K. AND LYNDA GARRISON, PAUL D. GERKE, STEPHANIE
K. GERKE – YOUNG, TIMOTHY K. AND DEBORAH K. GLAVIN,
HORACE DEAN AND JANICE M. GOLDEN, MICHAEL AND JENNIFER
L. GONZALEZ, RAY A. AND RITA R. GONZALES, MARK AND
JENNIFER GOODRUM, MIKE AND BRENDA GORSKI, JERRY AND
LINDA GRAGG, ROGER D. AND DEBORAH GREER, LULENE GREGG,
LANCE W. GREMILLION, SHARON GREMILLION, JOE EMENS
GUZMAN, LAMAR AND MARY ANN HAAS, LEO H. AND CATHERINE
HAAS, JR., DAVID AND LISA HALL, JAMES L. HALL, MICHAEL D.
AND KIMBERLY Y. HANEY, LYNN HANSEN FORMERLY KNOWN AS
LYNN HANSON, TERRY D. HARGRAVE, LONNIE AND JO A.
HARRISON, RALEIGH L. AND CHARLOTTE HARVEY, JANICE L.
HAYS, RICHARD LLOYD HAZEL, RICHARD A. AND BETTY J.
HEATHCOTT, ALICE K. HEDSTROM, DARLA HENRY, STEVE HENRY,
STEVEN J. AND MARIE A. HENRY, CAROL HILMERS, LONNIE E. AND
CHERYL A. HOOD, DANIEL AND ALISON HORSTMAN, ROBERT M.
HUBBARD, GARY AND BECKY HUDDLESTON, LYNN M. HUMMEL
FORMERLY KNOWN AS LYNN MARIE BREAZEALE, CHERYL JACKS
FORMERLY KNOWN AS CHERYL SMITH, WANDA L. JACKSON,
CATHERINE L. JOHNSON, INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF GEORGE E. JOHNSON,
DANIEL AND PAMELLA JONES, MAX AND CONNIE JONES, MICKEY
W. AND VIRGINIA KEELING, ALOIS AND KAREN KEILERS, TITUS L.
AND DONNA HOFFMAN KELLEY, CHARLOTTE SUSAN KERR, DAVID
B. AND DENISE M. KIRBY, RAMANATH AND JAYANTHI KONGOVI,
CORINE L. KONVICKA, LILLIAN M. KROLCZYK, PAUL AND JANIS
KUBECZKA, BERTHOLD G. AND MICHELE LAKADOSCH, LILLIAN
M. AND GEORGE W. LANG II, WALTER D. LATHAM, INDIVIDUALLY
AND AS ADMINISTRATOR OF THE ESTATE OF LINDA D. LATHAM,
JOHN S. AND NANCY L. LEATHERMAN, VERNON R. AND JO ANN
LEHDE, BARTLEY A. AND KARLA K. LEWIS, NORMAN J. AND
MARTHA A. LOCASCIO, LOWELL R. AND JUDITH A. LOCKE, CAROL
HOHL AS ADMINISTRATOR OF THE ESTATE OF HERMINE LUECKE,
THE ESTATE OF HERMINE LUECKE C/O CAROL HOHLE,
ADMINISTRATRIX, WAYNE D. AND ALLYSON LYNN, ELIZABETH
MALEK, DON P. MANIHA, FRANK J. AND MADYLENE MARINO,
JASON AND RENE R. MASS, BARBARA J. MATTHEWS, JOE G.
MCCOURT, LEE G. AND MARIAN MCDANIEL, PATRICK J. AND SUE
MCDERMOTT, THOMAS F. AND DENISE C. MCNEILLY, E.L. AND
PEGGY L. MCSHAN, JR., ANTONIO AND GUADALUPE MEDRANO,
JOE AND GLORIA MEJIA, DANIEL AND DORRAINE MELCHER,
BENNIE AND LINDA MELESKI, ROBERT L. MIDKIFF, J.T. MILLS,
ADOLPH AND THERESA MOCK, DAMASO C. AND EDITH MOJICA,
CHARLES A. AND LIH-SHIANG C. MONTEITH, DAVID A. AND
SHIRLEY MONTGOMERY, JOE AND DENISE MONTGOMERY, JOHN
T. AND KITTY MONTGOMERY, DAVID N. MOORE, AGNES A.
MURPHREE, LOI VAN AND NHAN K. NGUYEN, BRAD P. NIXON,
DAVID J. AND DONNIE B. NOLL, DAVID A. AND JENNIFER NOWAK,
FRED A. AND CAROLYN M. GARTMAN O’BANNION, KENNETH E.
AND CECILIA O’BANNION, MICHAEL W. AND DIANE O’CONNOR,
JANICE O’KEEFFE, LOUIS AND JOANNA ORLANDO, PETER B. AND
PATRICIA PEDERSEN, RALPH D. AND PATRICIA A. PEREZ,
CLARENCE AND JONCIA PERRY, JOHN AND RUTH PETTIJOHN,
GERARD PICCOLO, KATHERINE PICCOLO, MICHAEL AND
VIRGINIA PLOCH, LEONARD AND PATTIE L. PYLE, PAUL S. QUIN,
AYOUB AND FARIDEH ABDOLHAMID RAZMANDI, MEHDI AND
MARY RUTH RAZMANDI, BARBARA J. READY, WELDON AND
NORMA REED, MARC S. AND CAROL RENDALL, JOHN L. AND
GLORIA A. RILEY, LARRY AND JANIE ROCKETT, JOE E. AND
JULIET RODRIGUEZ, MARIO A. AND CONSUELO RODRIGUEZ,
ROBERT L. AND BARBARA M. ROHDE, RICHARD ROHN, STEPHANIE
RUSH, RANDY AND CINDY M. SARTAIN, JAMES E. AND NANCY C.
SAVOIE, CHRIS SCHILLING, JAMES L. AND VICTORIA R. SHERWIN,
MAY L. SIMPSON, INDIVIDUALLY AND AS ADMINISTRATRIX OF
THE ESTATE OF ERNEST L. SIMPSON, CRAIG D. AND MARY
SLOVAK, CHRISTOPHER A. AND DOROTHY ANNETTE SMALL,
SHARYN M. SMITH, SHELLY D. SMITH, DANNY J. AND CHARLOTTE
J. SRALLA, DANA G. AND MARGARET A. STREBECK, JAMES AND
DONNA TESSMER, KATHLEEN THERIALT, DAVID M. THOMPSON,
DAVID AND MARCIA TIJERINA, ZACHARY W. TOLSON, CARL AND
PATTI TORREGROSSA, BOBBY L. AND JANET UNDERWOOD, BETTY
VARNER, ALBERT AND MARGARET VASQUEZ, CHARLES L. AND
JANET C. VAVRICKA, VICKI VIDES, DAVID R. AND SHIRLEY J.
WAGNER, LYDIA A. WALDEN, JERRY AND SUE WALTON, LARRY J.
AND NORMA M. WASHINGTON, BRENT WESTON AND KAREN
RENEE MCDOWELL, NED E. AND CONNIE WHITTON, BRIAN AND
CAROLYN L. WILLIAMS, THOMAS P. AND DOROTHY W.
WILLIAMSON, DANE WILSON, ETHEL MAY WILSON, LINDA
WILSON RUMFOLO FORMERLY LINDA WILSON, ANDREA R.
WINTER, MARIA T. DE LA FUENTE AND JUDITH A. WOOD, LLOYD C.
AND SHELIA D. WOOD, WENDELL R. AND SHEILA WYBORNY,
GARRY L. AND MYRIAM L. ZALESKY, AND DARRELL D. AND
ANGELA R. ZWINK, Appellees
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Case No. 837329
DISSENTING AND CONCURRING OPINION
I concur in the Court’s opinion with respect to the claims against Harris
County. But I dissent from the Court’s opinion with respect to the Harris County
Flood Control District. Because the District has conclusively disproven the intent
necessary to a takings claim (and a nuisance claim)—the only basis for waiver of
governmental immunity asserted here—I would dismiss the claims against the
District for lack of subject-matter jurisdiction.
Factual Background
Edward and Norma Kerr, together with approximately 400 other plaintiffs
with homes in the upper White Oak Bayou area of northwestern Harris County,
sued Harris County and the District (collectively, the Harris County entities)
alleging that their homes flooded during storms in 1998, 2001, and 2002 because
of the Harris County entities’ activities within the White Oak Bayou watershed.
White Oak Bayou is a watershed of over 110 square miles that has long been
identified as a high-risk area for flooding by the Federal Emergency Management
Agency. According to FEMA’s 1976 flood maps, most of the homeowners’
properties were not located in the 100-year floodplain at the time of their
construction in the mid-to-late 1970s and early 1980s. The homeowners asserted
inverse condemnation and nuisance claims against the Harris County entities for
“taking” their property without adequate compensation.
5
The District is a legislatively created special district, 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.’” Act of May 10, 1937, 45th Leg., R.S., ch. 360, § 1, 1937 TEX. GEN.
LAWS 714 (as amended). It is responsible for designing, building, and maintaining
flood-control projects and infrastructure which are intend to reduce the risk of—
but cannot always prevent—flooding. The importance of the District’s work is
underscored by the fact that much of Harris County has been, and for the
foreseeable future will continue to be, at risk for flooding during severe storms.
This risk exists because flooding is inevitable when rainfall levels reach a certain
number. The storm sewers cannot handle the rainfall, causing the storm water to
pond and secondary drainage systems to surcharge.
In the early 1960s, almost 11 miles of White Oak Bayou were enlarged and
lined with concrete by the Army Corps of Engineers. Flood control in the area was
initially handled according to a 1965 study by Turner Collie & Braden, which
called for the construction of drainage facilities throughout the watershed, storm
sewers, drainage ditches, and other improvements to the bayou. At that time, the
Harris County entities believed the bayou had sufficient capacity to accept runoff
from planned development, making onsite detention facilities unnecessary.
6
The first detailed flood-insurance map was produced by the Army Corps in
1976. On that map, nearly all of the homeowners’ homes were built above the 100-
year floodplain. The Corps completed its “Interim Report on Upper White Oak
Bayou” the same year, concluding that the flooding problems there were “caused
primarily by inadequate channel capacities of the streams.” The report observed
that the flooding was “compounded by continuing urbanization which increases
and accelerates the runoff from rainfall,” and recommended a number of
improvements that focused primarily on channel enlargement and rectification of
the lower bayou at a federal cost of about $50 million and a local cost of about $7
million. According to the final report, the District and the Harris County
Commissioners Court “expressed favorable comments concerning the proposed
project and have agreed to provide the necessary items of local cooperation.” The
Corps, however, did not authorize any federal funding for construction.
In 1980, the District, as the local sponsor of federal flood-control projects,
stated its objective to construct and maintain facilities “intended to minimize the
threat of flooding.” The District stated that its objective could be best met in the
long-term by “a continued program of improvement and extension of the District’s
open channels.” However, the curtailment of federal funding had slowed open
channel improvements, and as a result, the District recommended that its approval
policy for new construction projects be modified to adopt “appropriate criteria for
7
covering the design of supplemental storm water systems.” In additions to its
concerns about the lack of federal funding, the District also questioned whether the
Corps’ information and methodology were outdated. Out of these concerns, the
District hired two engineering firms―Turner Collie & Braden and Pate
Engineers―to update the computer models and develop a new method for
determining rainfall/runoff characteristics and flooding. The Pate Plan was the
result of this effort.
The purpose of the Pate Plan was to “to alleviate flooding from the 100-year
storm event along White Oak Bayou and allow full development of the watershed”
and to ensure that “new land developments [did] not increase the flooding potential
for other properties in the watershed.” The Pate Plan was to be funded by “District
resources,” contributions by municipal utility districts, and a $3,000 per acre
impact fee imposed on private developers for properties of less than ten acres. The
Pate Plan had five components, including three regional storm-water-detention
facilities and earthen channel improvements. Two of the stated purposes of the
regional facilities were to: (1) “reduce existing flood levels while not allowing
flood level increases from new developments” and the proliferation of small
detention basins on each development; and (2) collectively fund and install
regional basins, which are more effective and reliable. The total cost for the final
improvements would be more than $66 million. Because the funds were not
8
immediately available, however, the Pate Plan recommended a series of interim
measures to address flooding at a cost of $25 million. That recommendation was
based on the assumption that 2,500 acres of new development would occur and
help fund the project. The County adopted the Pate Plan and authorized the District
to commence work implementing it in 1984.
After a downturn in the economy stalled the anticipated funding, Pate
Engineers conducted an interim study “to define an initial channel improvement
project to eliminate existing flooding upstream of the existing concrete lined
channel.” This 1985 study included the design of the initial project and the
establishment of rights-of-way where the planned improvements were to be
constructed. Land acquisition began the next year, and construction on the first
detention facility began in 1988. The District acknowledged in correspondence
with the Corps that the District would lose federal participation in the project by
moving forward with its own plan; nevertheless, the District remained committed
to constructing the first phase of the Pate Plan because “timely implementation of
the regional project [was] critical.”
In 1989, the Pate Plan had not been fully implemented and severe storms
resulted in the flooding of over 200 homes near White Oak Bayou. In response to a
homeowner complaint, the District responded that it was “very aware of the house
flooding potential” in some subdivisions along White Oak Bayou. To “greatly
9
reduce” this risk, the District was “in the process of implementing the initial
phase” of the Pate Plan and had already purchased regional detention sites,
adjusted bridges, and approved construction plans but was awaiting the
condemnation of various rights-of-way. The District anticipated this work would
be completed in the near future, allowing it to seek construction bids for “the first
channel rectification segment.”
In 1990, the District ordered a new study of the White Oak Bayou by Klotz
Associates. The reason for the new study is disputed. The District asserts that the
1989 flooding caused the District to reevaluate the Pate Plan. According to its
director, Michael Talbott, the 1989 flood revealed that the engineering model used
to develop the Pate Plan “was not accurate. The computer model failed to predict
unexpected flooding in lower White Oak Bayou and the District was forced to
reevaluate the underlying premises of the Pate [P]lan.” The homeowners assert—
but did not prove—that the new study was conducted to avoid a tax rate increase.1
1
According to the deposition testimony of Art Storey, the District’s executive
director, the tax rate at that time was five cents per hundred dollars of assessed
valuation. Storey testified that he was informally asked by some commissioners
for his opinion on the tax rate and that he recommended raising it above 5 cents.
Storey testified that he “initially identified requirements that could have cost as
much as 10 cents” and that he was successful in getting the rate raised but not to
that level. He also testified that, as “[t]imes started to improve,” there was
agreement regarding a lower rate. The homeowners did not present any evidence
that Klotz was instructed to develop a less expensive alternative to the Pate Plan or
what programs, if any, were part of Storey’s “initial requirements” that were not
implemented because of the lower tax rate.
10
Klotz Associates determined that the Plate Plan “need[ed] to be modified to
provide even more protection” because the flood flows and levels were higher than
those shown in the Pate Plan. Klotz recommended two earthen channel
improvements and a detention storage facility, which would have “eliminated most
of the flooding” in one of the nine subdivisions where the homeowners’ properties
are located. Klotz completed a first report in 1992 in which it updated the
conditions existing at the time. After reworking the computer model and applying
more advanced computer software, Klotz determined that there were “significantly
higher flows and flood levels than in” the previous flood-hazard survey.
The parties dispute the effectiveness of the Klotz Plan. Talbott stated in his
affidavit that Klotz’s “multistage study” recommended a regional flood-control
plan, including some features that “could be implemented over a shorter-term
horizon than the original [Pate] [P]lan. The features of that near-term plan . . .
[were] similar to but more extensive than the . . . Pate Plan.” The Klotz Plan also
called for the District to require on-site detention for future development. The
homeowners in their brief describe the Klotz Plan as “less effective,” “downsized,”
and a “reduced mitigation plan” because it implemented only a portion of the
11
channel improvements in the Pate Plan and did not protect against 100-year
floods.2
Construction began on another detention facility that was not part of the Pate
Plan but was recommended by Klotz. Over the course of the next several years, the
District continued construction and acquired additional land for the project. Klotz
submitted a “Final Recommended Plan for White Oak Bayou” in April 1998,
which the District submitted to FEMA. Tropical Storm Frances—the storm that
first lead to the homeowners’ claims—occurred five months later. FEMA produced
new floodplain maps in 1999. On those maps, the homeowners’ houses were
located in the 100-year floodplain.
The homeowners’ properties experienced flooding during Tropical Storm
Frances and two later storm events, Tropical Storm Allison in June 2001 and an
unnamed storm in October 2002. According to Andrew Yung, an expert for the
District, Tropical Storm Frances saw average rainfall in the Upper White Oak
Bayou watershed between a 50- and 100-year frequency and a rainfall of “greater
than a 100-year event in the immediate vicinity of the Plaintiffs’ homes.” Steve
Fitzgerald, the District’s chief engineer, also stated that Tropical Storm Frances
“was an unprecedented storm that produced extremely heavy rainfall.” The
2
The homeowners’ record citations indicate that the Klotz Plan stated it used the
10-year frequency plan for its analysis. That plan is not in the record.
12
homeowners’ expert, Larry Mays, stated that Tropical Storm Frances resulted in
flooding approximating a 10-year event. With respect to Tropical Storm Allison,
Young stated that it brought rainfall greater than a 100-year frequency; Mays, in
contrast, opined that it was a 50-year event. The third storm did not exceed a 100-
year storm, but was still a serious and unusual storm. According to Yung, it
brought rainfall between a 25-year and a 50-year storm event; according to Mays,
it was a 10-year event.
Pertinent Procedural Background
The homeowners brought takings and nuisance claims against the Harris
County entities. Their claims focus on three acts: (1) the approval of upstream
development, (2) the failure to complete the Pate Plan, and (3) the construction of a
transitional flood-control structure (i.e., a dam).
The Harris County entities challenged each of these claims in a combined
plea to the jurisdiction and motion for summary judgment. The plea was supported
by affidavits from Talbott and Melvin Spinks, P.E., an expert in water resources
engineering and civil engineering. As stated by Talbott, the District did not
proceed with the Pate Plan because the 1989 flooding demonstrated that the Pate
Plan “was based upon faulty information and would not have worked.” Talbott
averred that the Klotz studies in the 1990s—which were before the second and
third storms at issue here—developed a new model that was “more sensitive to
13
observed storm events and additional factors not contained in the [earlier]
computer model.” Talbott further stated that the earlier model was based upon
certain federal policy decisions that required the exclusion of data regarding “a
substantial amount of” development at the time. The District approved the Klotz
Plan based on the engineers’ certification that the project complied with applicable
regulations and would not increase downstream runoff. The revisions to the Pate
Plan resulted in improvements to alleviate flooding, which “greatly exceeded the
work called for in the original Pate Plan,” and additional design and construction
work. At the time of its plea, the District had spent over $70 million improving the
bayou, including the completion of ten regional detention facilities and the
purchase of land for ten more.
The homeowners’ response included an affidavit and reports from their
expert Mays, a professor of civil and environmental engineering at Arizona State
University. Mays stated in his report that the failure to implement the Pate Plan
“for the segment of White Oak Bayou adjacent” to the homeowners’ properties and
approval of “thousands of additional acres of development . . . without proper
stormwater management measures” caused the 1989 flooding of the homeowners’
properties. In his affidavit, Mays averred that the Harris County entities approved
development upstream of the homeowners’ properties knowing that (1)
development causes increased runoff downstream, (2) insufficient capacity existed
14
in the bayou adjacent to the approved upstream development to handle the
increased runoff, and (3) the developers of the upstream area had not provided
sufficient mitigation for the increased runoff. He further stated that the flooding
from the three storms resulted from the approval of the upstream development and
the failure to implement the entire Pate Plan, not unprecedented rainfall or
inadequate local drainage systems within the subdivisions.
More specifically, Mays stated that only three of the Pate Plan’s five
components were implemented, leaving portions of the work that “would have
alleviated” flooding of the homeowners’ properties unfinished. Mays averred that
the full implementation of the Pate Plan would have mitigated the adverse impact
from upstream development along White Oak Bayou, but the District chose not to
implement the phase of the Pate Plan that “would have prevented flooding of [the
homeowners’ properties] up to and including a 100-year flood event.” Mays
further stated that Klotz had to revise the models developed for the Pate Plan
because the District permitted additional land development without adequate
storm-water-runoff mitigation. Finally, based on the Corps’ 1976 study, Mays
stated that the Harris County entities knew that approving “unmitigated upstream
development . . . would be substantially certain to result in increased flooding
along the bayou in the vicinity of the [homeowners’] properties.”
15
The trial court denied the Harris County entities’ motion and they appealed,
challenging all three bases for the homeowners’ claims. The homeowners do not
contend on appeal that the construction of the dam increased flooding on their
property or amounted to a taking of their property.
Immunity
The Harris County entities have governmental immunity. Governmental
immunity includes two distinct principles: immunity from suit and immunity from
liability. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224
(Tex. 2004). While immunity from liability is an affirmative defense, immunity
from suit deprives a court of subject-matter jurisdiction. See id. The Harris County
entities’ governmental immunity deprives the trial court of subject-matter
jurisdiction over this action absent a proper waiver of immunity. See id.; Tex.
Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Governmental
immunity is waived for constitutional takings claims. See TEX. CONST. art. I, §
17; Gen. Servs. Comm’n v. Little–Tex Insulation Co., Inc., 39 S.W.3d 591, 598
(Tex. 2001).
Although the homeowners assert both a takings claim and a nuisance claim,
they rely exclusively on their constitutional takings claim to establish a waiver of
the Harris County entities’ immunity from suit. The trial court’s subject-matter
jurisdiction over this suit is therefore contingent on the jurisdictional requisites of a
16
takings claim, whether asserted as a traditional takings claim or as a nuisance claim
that “rises to the level of a constitutional taking under Article I, Section 17.” See
City of Dallas v. Jennings, 142 S.W.3d 310, 312 (Tex. 2004) (holding that city
retained immunity from nuisance claim because plaintiffs did not establish
constitutional taking and did not assert separate waiver of immunity for nuisance
claim). Thus, if either of the Harris County entities has disproved a jurisdictional
requisite of a takings claim, this Court must dismiss this action—including both the
homeowners’ takings claim and their nuisance claim—with respect to that
defendant. See, e.g., Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 491
(Tex. 2012) (dismissing action for want of subject-matter jurisdiction because
claimant could not establish a viable takings claim); Gulf Coast Waste Disposal
Auth. v. Four Seasons Equip., Inc., 321 S.W.3d 168, 175–76 (Tex. App.—Houston
[1st Dist.] 2010, no pet.) (dismissing takings claim when evidence negated intent
element and, regarding takings claim, observing that “the government retains
immunity absent intentional conduct”). This is true regardless of whether the issue
was raised in the Harris County entities’ plea to the jurisdiction or their motion for
summary judgment. See, e.g., City of Denton v. Paper, 376 S.W.3d 762, 764 (Tex.
2012) (dismissing suit on immunity grounds in interlocutory appeal from denial of
summary judgment); Miranda, 133 S.W.3d at 234 (dismissing suit on immunity
grounds in appeal from denial of plea to jurisdiction).
17
Intent
To recover on a takings claim under Article I, Section 17 of the Texas
Constitution, a property owner must establish that the governmental entity: (1)
engaged in a specific act causing the taking, damaging, or destroying of private
property; (2) engaged in the act intentionally, i.e., either knowing that the specific
act was causing identifiable harm or knowing that specific property damage is
substantially certain to result; and (3) took the property for a public use. See Sw.
Bell Tel., L.P. v. Harris Cnty., 267 S.W.3d 490, 495 (Tex. App.—Houston [14th
Dist.] 2008, no pet.). Thus, in a takings claim, the plaintiff must prove intent,
causation, and public use. See City of San Antonio v. Pollock, 284 S.W.3d 809, 812
(Tex. 2009) (dismissing takings and nuisance claims due to lack of evidence that
city knew its actions were substantially certain to cause harm); City of Keller v.
Wilson, 168 S.W.3d 802, 808 (Tex. 2005) (holding that intent element requires
proof that governmental entity (1) knows that specific act is causing identifiable
harm and intends that harm or (2) knows that specific property damage is
substantially certain to result from authorized government action); Tarrant Reg’l
Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004) (affirming jury verdict for
landowner whose property was repeatedly flooded after upstream construction of
water-supply reservoir); Jennings, 142 S.W.3d at 312 (dismissing takings and
18
nuisance claims because there was no evidence that city knew plaintiffs’ home
would be damaged or that damage was substantially certain).
To prevail on the intent element, it is not enough for the homeowners to
show that the acts themselves were intentional. Jennings, 142 S.W.3d at 313.
Rather, the homeowners must prove that the Harris County entities “knew (not
should have known) that flooding was substantially certain.” City of Keller,
168 S.W.3d at 829. The governmental entity’s “intent” must be established under a
“heightened intent standard.” City of Arlington v. State Farm Lloyds, 145 S.W.3d
165, 168 (Tex. 2004). “Substantially certain” does not mean flooding is possible, at
increased risk, or even more likely than not. See Pollock, 284 S.W.3d at 821 (“The
governmental entity’s awareness of the mere possibility of damage is no evidence
of intent”); Gulf Coast Waste Disposal Auth., 321 S.W.3d at 175 (holding that
“allegations demonstrat[ing] awareness . . . that an increased risk existed” did not
satisfy “necessarily incident to or a consequential result of” intent standard in
takings case). A government entity has knowledge that flooding is substantially
certain to occur “only when the damage is ‘necessarily an incident to, or
necessarily a consequential result of the [entity’s] action.’” Pollock, 284 S.W.3d at
821 (quoting Jennings, 142 S.W.3d at 314).
There is also a temporal component of intent: “the government’s knowledge
must be determined as of the time it acted, not with benefit of hindsight.” Id. at
19
821. The homeowners’ burden includes producing “evidence of ‘objective indicia
of intent’ showing the [Harris County entities] knew identifiable harm was
occurring or substantially certain to result” from their actions. City of Keller, 168
S.W.3d at 830. In evaluating the objective evidence of a governmental entity’s
intent, a court should evaluate any evidence regarding what the entity was told
about the consequences of its actions. Id. at 829.
A. The District disproved the necessary intent for a takings claim
The homeowners contend that the Harris County entities did not present
admissible evidence negating the intent element of the takings claim. More
specifically, the homeowners contend that Talbott’s affidavit regarding intent is
conclusory and only relates to the District, not the County. Alternatively, the
homeowners contend that they presented sufficient contrary evidence to raise an
issue of fact with respect to intent.
1. Talbott’s affidavit did not establish the County’s lack of intent
The homeowners are correct that Talbott’s twenty-three-page affidavit does
not address the County’s intent; it addresses only the District’s intent. The County
therefore did not satisfy its burden to establish that it lacked the requisite intent, the
homeowners did not have to produce any evidence to raise a fact issue as to intent,3
3
The County relied on Talbott’s affidavit but his affidavit does not address the
County’s intent nor does it show how he would know the County’s intent.
20
and the trial court’s summary judgment in favor of the County cannot be affirmed
on this ground. I therefore concur with the Court’s disposition of the homeowners’
claims against the County.
2. Talbott’s affidavit did establish the District’s lack of intent
Talbott’s affidavit established the District’s lack of intent. Talbott, a licensed
civil engineer and hydrologist, began working for the District as a floodplain
hydrologist and was steadily promoted until he reached his current position as
director. Talbott detailed the District’s attempts to reduce the risk of flooding in
Harris County and categorically stated that the District knew only of the general
possibility of flooding (which he described as “a flooding risk”), but did not know
that its specific actions would cause flooding. He stated that to intentionally cause
flooding would be “contrary to the [District’s] fundamental reason for existence
and its policies and values.” Regarding the area in question, Talbott averred that
the District’s goal for the past twenty-four years has been to implement a regional
flood-damage-reduction plan for White Oak Bayou, and the District has “greatly
exceeded the work that was originally called for in the 1984 Pate Plan and has
spent more than $70 million” on studies and construction “to decrease the risk of
flooding along White Oak Bayou.” He described in detail aspects of the District’s
work in White Oak Bayou. He further stated, “I can say without reservation that
the District did not intentionally cause flooding of Plaintiffs’ properties” and that
21
the District’s work was not “performed with substantial certainty that such work
would cause the flooding of Plaintiffs’ properties or that flooding would be
necessarily incident to or a consequential result of the District’s work.”
Talbott explained that the District does not attempt to eliminate the risk of
flooding; indeed, that would be impossible in many areas of Harris County.
[T]he District cannot prevent all flooding. The area that is called
White Oak Bayou is a natural geographical gateway and watershed
that has transported storm water runoff long before the Allen Brothers
landed in Houston and has flooded many times throughout history. In
simple terms, a “watershed” is the region of land whose water drains
into a body of water such as White Oak Bayou. Plaintiffs’ homes were
built in this naturally occurring watershed near the natural waterway
with its naturally occurring floodplain. The District is well aware of
the flooding potential of this watershed for the reasons stated above
(flat topography, clay soils, abundant rainfall, and history of
flooding); the District is not aware of any flooding caused by actions
of the District.
Talbott also explained that the District’s knowledge about flooding risks
evolved after the Pate Plan was adopted because more information became known
and the various disciplines involved in designing and implementing flood-risk-
reduction plans—e.g., hydrology, hydraulics, civil engineering, geography,
geotechnical engineering, surveying, and computer science—advanced in
technology and in their understanding of the dynamics of flooding. Thus, the
District relied on computer software developed by the Corps and private
engineering firms in trying to predict “how stormwater might act under certain
conditions.” He stated that the Pate Plan was not implemented because “it was
22
based on knowledge and assumptions available at one point in time that were later
proven to be scientifically inaccurate by actual storm events and further analysis by
outside engineering firms.”
Talbott’s statements were not conclusory. A conclusory statement is one that
does not provide the facts on which it is based. Arkoma Basin Exploration Co. v.
FMH Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2000). 4 Talbott’s
affidavit included the factual basis for his statements regarding the District’s intent.
A governmental entity, unlike a natural person, can only testify through its
employees or representatives. See Waterman S.S. Corp. v. Ruiz, 355 S.W.3d 387,
402 (Tex. App.–Houston [1st Dist.] 2011, no pet.) (stating that legal entity’s
representative may testify to facts regarding entity’s activities); Martinez v. Hays
Const., Inc., 355 S.W.3d 170,178 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
(same).
Because the District satisfied its burden of proof, the burden to establish
intent shifted to the homeowners.
4
For expert witnesses, a statement is also considered conclusory when the stated
basis for the opinion does not actually support the opinion. Pollock, 284 S.W.3d at
818.
23
B. The homeowners did not create a fact issue on the District’s intent
In the trial court, the homeowners relied upon three categories of conduct by
the Harris County entities that they claim were substantially certain to result in the
flooding of their homes: (1) failure to fully implement the Pate Plan; (2) approval
of upstream development; and (3) construction of a dam. I address each one
separately.
1. Failure to implement the Pate Plan
The District’s failure to implement the Pate Plan cannot, without more,
satisfy the intent element of the homeowners’ takings claim. The intent element
cannot be satisfied by demonstrating that the governmental entity acted with
negligence. City of El Paso v. Ramirez, 349 S.W.3d 181, 187 (Tex. App.—El Paso
2011, no pet.) (“A governmental entity's failure to act, even in the face of evidence
that curative measures are necessary to prevent future damage, rise only to the
level of a negligence claim.”). A governmental entity’s knowledge “of the potential
for” flooding, and “its subsequent failure to take measures to prevent such
flooding,” is insufficient to satisfy this element. Id. Mere negligence does not
constitute “an unconstitutional taking” because that “would be an anomalous result
if . . . an entity otherwise generally entitled to immunity for negligence[ ] were
subject to liability for something less than intentional behavior.” Gragg, 151
S.W.3d at 554. Even “a finding of gross negligence does not supply the requisite
24
intent to sustain liability of a governmental entity for a constitutional takings
claim.” Karnes City v. Kendall, 172 S.W.3d 624, 629 (Tex. App.―San Antonio
2005, pet. denied). And evidence that the governmental entity’s actions caused
flooding does not establish the requisite intent. Ahart v. Tex. Dep’t of Transp., No.
14-05-00027-CV, 2006 WL 2167223, at *4 (Tex. App.—Houston [14th Dist.]
Aug. 1, 2006, pet. denied) (mem. op.).
In City of Keller, the Court held that the city’s failure to comply with its
master drainage plan in approving a developer’s drainage plans did not show intent
to cause flooding damage. 168 S.W.3d at 829. In City of El Paso, the court of
appeals held that the city’s failure to comply with its landfill permit and new
landfill regulations did not show intent to cause flooding damage. 349 S.W.3d at
187. Additionally, prior warnings from the Texas Commission on Environmental
Quality, the city’s own expert report, and previous experience with erosion and
runoff did not show intent to cause flooding damage. Id. at 185−86; see also City
of Van Alstyne v. Young, 146 S.W.3d 846, 850 (Tex. App.—Dallas 2004, no pet.)
(concluding that city’s knowledge of prior pump problems was not same as
knowledge that its decision not to replace pumps would cause flooding of
plaintiff’s home); City of Del Rio v. Felton, No. 04-06-00091-CV, 2007 WL
247655, at *7 (Tex. App.—San Antonio Jan. 31, 2007) (mem. op.) (holding that
25
knowledge that watering of park caused damage to neighboring property did not
establish intent to take plaintiffs’ property).
As the City of El Paso court explained, even when there is evidence that a
governmental entity knew that the specific property damage was substantially
certain to result from government inaction, it is not sufficient if it “fails to account
for the State’s general immunity from liability for negligence, and risks public
payment for damage for which the public received no benefit.” 349 S.W.3d at 186–
87. Like the intent evidence in City of El Paso, the homeowners’ intent evidence
with regard to the District’s failure to implement the Pate Plan is evidence of
negligence here, but it does establish the intent necessary for a takings claim. See
id. “A governmental entity’s failure to act, even in the face of evidence that
curative measures are necessary to prevent future damage, rise[s] only to the level
of a negligence claim.” Id. at 187. 5
5
The homeowners identify the District’s intentional act as the implementation of
the Klotz Plan in lieu of the Pate Plan. But the homeowners cannot convert the
District’s failure to implement the Pate Plan into an affirmative action by pairing it
with the District’s use of the Klotz Plan. They have not argued or presented
evidence tending to show that the implementation of the Klotz Plan caused them
property damage that would not have occurred if the District had not implemented
any flood control measures.
26
2. Approval of development 6
The homeowners argue that their expert affidavit from Mays creates a fact
issue on intent with respect to the District’s approval of upstream development.
Mays opined:
[The Harris County entities] approved development upstream of [the
homeowners’ properties]
o Knowing that development causes increased runoff
downstream[;]
o Knowing that there was insufficient capacity in the bayou
adjacent to [the homeowners’ properties] to handle any
increased runoff from upstream development[; and]
o Knowing that no mitigation or insufficient mitigation was
implemented by the developers associated with their
upstream developments[.]
The District responds that even if Mays’s assertions were true, they do not
provide evidence of the requisite intent because Mays’s theory that the upstream
developers failed to include adequate detention was based on an assumption that
had no “evidentiary support.” But even if we assume that all three of these
6
The Harris County entities have not argued that a governmental entity cannot be
liable for approving a developer’s plans. We therefore do not consider that issue.
See City of Keller, 168 S.W.3d at 810 (reserving this question “for another day”);
but see id. at 833–34 (O’Neill, J., concurring) (stating that “[b]ecause the primary
responsibility for a development’s design rests with the developer, and because the
plat-approval process does not transfer such responsibility to the municipality,
mere plat approval cannot be a basis” for liability and that "the developer’s
defective drainage design,” rather than the city’s approval of the plat was the
proximate cause of the flooding as a matter of law).
27
statements are supported by the summary judgment evidence, the District’s
knowledge that runoff would increase and that the bayou could not handle the
increase does not equate to knowledge that specific property damage was
substantially certain to occur. For example, the runoff could fill the streets or yards
but cause no property damage.
Regardless, Mays’s assertion regarding the adequacy of the developers’
mitigation efforts is conclusory. Inadequate detention cannot be assumed “merely
because flooding subsequently occurred.” Mays conceded that he did not know
which developments upstream of the homeowners’ homes were in fact developed
with no or insufficient mitigation. The District also points out that it required new
development to include either adequate onsite detention facilities or, for tracts of
less than ten acres, a $3,000 per acre impact fee to be used for construction of
larger regional detention facilities. The District presented evidence that it intended
to raise money via the impact fees to provide regional detention and flood-control
measures, which the District believed would be more effective. Regardless of
whether the District was correct or was negligent in its implementation of such
regional measures, this evidence negates the homeowners’ reliance on the mere
absence of detention facilities in new construction to establish intent.
The District was in the midst of an ongoing flood control program. It was
necessary, therefore, for the District to know that the flooding of the homeowners’
28
properties was substantially certain to occur as a result of additional development
before the District completed its revised program. To demonstrate such knowledge,
the homeowners had to show: (1) the amount of additional development that
occurred in the time between the adoption of the Pate Plan and each of the three
flood events; (2) the construction undertaken in that interim period both pursuant
to and in lieu of the Pate Plan; and (3) the County was substantially certain the
totality of the construction work would be insufficient. Instead, the homeowners
offered proof that the entirety of the Pate Plan was not followed and that the Klotz
Plan was less effective than the Pate Plan.
The homeowners did not present any “evidence that the [District] knew that
the [homeowners’] property was being damaged or that damage was a necessary
consequence” in the delay in completing the flood-control measures. Pollock, 284
S.W.3d at 821. The District certainly knew that it was possible that the additional
development in the area would increase runoff in the bayou and that a rainfall
could occur that would cause some flooding,7 but its “awareness of the mere
possibility of damage is no evidence of intent.” Id. The homeowners had no
evidence that the District’s decisions made downstream flooding before
completion of flood control measures “inevitable.” Gragg, 151 S.W.3d at 555; see
7
The very existence of a 100-year floodplain is an acknowledgment that a flood is
likely to occur once every 100 years. As explained by Talbott, a 100-year flood is
“a flood that statistically should occur once in 100 years, or more accurately . . .
[is] a 1% chance of being equaled or exceeded in any given year.”
29
also Jennings, 142 S.W.3d at 315 (it is insufficient to show that the governmental
entity’s action “sometimes results” in the claimed property damage). Just as in
Pollock, the damage the homeowners claim—flood water flowing onto their land
from upstream development—“is neither necessarily incident to or a consequential
result of the [approval of the other developments].” “It can be prevented,” id., and
the District established that it was in the process of taking measures to prevent it.
The homeowners’ true complaint is that the District could have prevented or
lessened the risk of damage to their property but failed to do so. Such allegations
might support a negligence claim but, absent evidence that the District took
affirmative action that it knew would cause the damage to the homeowners’
properties, will not support a takings claim against a governmental entity.
The homeowners also contend that the District’s intent was demonstrated by
evidence of reoccurrence: three floods in five years. Recurrence “is a probative
factor” in determining whether the claimed property damage is “substantially
certain to occur.” Gragg, 151 S.W.3d at 555. But only one of the three floods—the
1989 flood—occurred before the County approved the developments in question.
One flood does not establish recurrence. See Pollock, 284 S.W.3d at 821 (Tex.
2009) (“The government’s knowledge must be determined as of the time it acted,
not with benefit of hindsight.”).
30
3. Construction of a dam 8
Finally, Mays states in his affidavit that the District “constructed a dam
downstream of [the homeowners’ properties] that was intended to ensure that [the
homeowners’ properties] received no benefit from that portion of the [regional
flood-control] plan that had been constructed downstream.” But Mays’s affidavit
and reports do not provide any factual basis for this assertion of the District’s
intent. See, e.g., City of Keller, 168 S.W.3d at 830 (requiring claimant to produce
“objective indicia of intent” that governmental entity “knew identifiable harm was
occurring or substantially certain to result”) (quoting Gragg, 151 S.W.3d at 555).
The District, on the other hand, presented evidence that it “never intended
that the [dam would] cause flooding” and “never had any information that showed
with substantial certainty that the temporary [s]tructure would cause flooding or
that flooding would be necessarily incident to or necessarily a consequential result
of [] building and maintaining the [s]tructure.” Talbott testified that transition
control structures such as the dam used by the District, “are not known to increase
any flooding risk” and “are commonly used in many waterways and have been
built across Harris County, other counties, communities, and cities across the
United States, and the United States Army Corps of Engineers has used transition
8
The homeowners argued this theory in their summary-judgment briefing but not in
their appellate briefing.
31
control structures on many of their projects.” He further testified that the dam used
by the District was “typical” and was a temporary measure until channel work
continued upstream. Thus, the homeowners failed to rebut the District’s evidence
that it lacked the requisite intent for a takings claim and the attendant waiver of
governmental immunity.
Conclusion
Because the District has presented evidence establishing its lack of the
requisite intent for a takings claim—the sole basis for the homeowners’ asserted
waiver of the District’s governmental immunity—and the homeowners have not
presented contrary evidence raising an issue of fact on intent, I would dismiss the
homeowners’ claims against the District. I therefore dissent from the portion of the
Court’s opinion that affirms the trial court’s order denying the plea to the
jurisdiction with respect to the District. I concur in the remainder of the Court’s
disposition.
Harvey Brown
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Justice Brown, concurring and dissenting.
32