A short one from the Texas Court of Appeals (Third District), involving inverse condemnation. In City of Austin v. GHI Investments, LLC, No. 03-12-00198CV (Tex. App. Apr. 30, 2013), the court held that flooding resulting from the city's approval of drainage designs that were part of a road widening and bike lane project, stated a claim for inverse condemnation. The trial court refused the city's motion to dismiss and on an interlocutory appeal, the court of appeals affirmed.
Texas municipalities, like many of their parallel entities in other states, enjoy a limited immunity from tort lawsuits, but that immunity has been waived under the Texas Constitution's takings clause (and its parallels). That, of course, includes inverse condemnation, and "[t]o plead a valid inverse condemnation claim and establish waiver of immunity under the takings clause, a plaintiff must allege that the governmental agency (1) intentionally performed certain acts in the exercise of its lawful authority (2) that resulted in taking, damaging, or destroying the plaintiff’s property (3) for public use." Slip op. at 9.
The city claimed it did not have the requisite intent, and its conduct revealed at most negligence. The court rejected that argument, holding that construing the complaint in the light most favorable to the plaintiff (remember, this was review of a denial of a motion to dismiss), the property owner alleged that the city acted intentionally because it was "aware or substantially certain" that its plans would have the noted results.
There's more, but it's probably more efficient for you to read the opinion yourself than for us to summarize it, since it's short and well written. Hat tip to our colleague Dwight Merriam for sending us this case.
City of Austin v. GHI Investments, LLC, No. 03-12-00198CV (Tex. App. Apr. 30, 2013)
