SCOTX – Harris County Flood Control Dist. v. Kerr

No. 13-0303, J. Devine

In this inverse condemnation case, the court considered whether the plaintiff homeowners raised an issue of fact at to the elements of a government taking. The court decided they did, and remanded the case for further proceedings.

The court said that remand was necessary because the homeowners presented evidence that the government entities knew unmitigated development would lead to leading and that they approved further development without appropriately mitigating it, and this caused the flooding.

More than four hundred residents in the Upper Oak Bayou watershed in Harris County filed suit against the county and water district. They had been hit by tropical storm Francis in 1998, tropical storm Allison in 2001, and an unnamed storm in 2002. These storms flooded the plaintiffs' homes one or more times. The plaintiffs asserted that Harris County and the flood-control district had approved upstream development without implementing appropriate flood-control measures. In other words, they asserted that the government entities knew that expanding development in the watershed could cause flooding. 

After summarizing the factual history of the entities' flood-control plans, the court turned to the law. It said that the plaintiffs had to prove that the governmental entities "intentionally took or damaged their property for public use, or was substantially certain that would be the result." It noted that sovereign immunity doesn't shield the government from liability for compensation under the takings clause. To defeat the government's plea to the jurisdiction, the homeowners were required only to raise a fact question as to each element of their claim. The court, without deciding the merits of the case, decided that the parties' experts and the government entities' flood-control plans for 10-year floods, not 100-year floods, created a question of fact for each element.