Opinions reversing grants of summary judgment tend to be unexciting by nature because they are all about whether one side or the other submitted enough evidence to create a factual dispute that a jury must resolve. Civil procedure mavens rejoice, but the substantive law in the opinion can be dry. The latest inverse condemnation case from the Texas Supreme Court, Harris Cnty Flood Control Dist. v. Kerr, No. 13-0303 (June 12, 2015) is no exception, even though it is about (sorry, pun intended) flooding.
The property owners brought an inverse case after their land and homes were repeatedly flooded, blaming the flood control district for approving the development of the land in the first place, even though the district spent a lot of money on flood control. The property is in a flood zone, and the district didn't require the appropriate mitigation measures when it approved development.
Under Texas law, a property owner must show "the government 'intentionally took or damaged their property for public use, or was substantially certain that would be the result.'" Slip op. at 5 (citing City of Keller v. Wilson, 168 S.W.3d 802, 808 (Tex. 2005)). The trial court entered summary judgment in favor of the district, concluding there was no question the district didn't intend to flood the plaintiffs' land. The court of appeals reversed.
The Supreme Court affirmed the court of appeals, and held that the property owners had submitted enough evidence that the district was substantially certain that flooding might occur, even if it didn't intend for that to happen:
Evidence exists that the entities approved development without appropriately mitigating it, and that at times they deviated from their early policy of requiring on-site detention ponds. There is also evidence that they abandoned plans protecting against 100-year floods for plans targeting only 10-year floods. Though none of the evidence on its own might raise a fact question, together it raises a question of fact as to the entities’ intent to take the homeowners’ property to facilitate new development without appropriate mitigation.
Slip op. at 8.
The court also held that the property owners submitted sufficient evidence about causation and public use to require a trial.
Four justices dissented, arguing that the property owners did not raise a fact issue about the district's affirmative actions (as opposed to its alleged nonfeasance).
And, in the most interesting opinion (for us takings nerds), two of those justices also separately dissented, emphasizing that compensation should be available for any taking, whether it is for public or private use ("I join Justice Willett's dissent because I agree that the circumstances of this case do not give rise to a cognizable takings claim. We also agree on the availability of compensation when a taking occurs, regardless of whether it is for public or private use. The latter point, while not crucial to today’s dispute, warrants further discussion."). Here's the crux of the dissent:
Because the Texas Legislature has opted to give greater protection to individual property rights, I disfavor any possible suggestion that a private-use taking might bar a property owner’s right to recovery. The Constitution limits government power; it does not limit Texans’ rights to obtain appropriate relief when that power is exceeded.Dissent at 5.
Harris Cnty Flood Control Dist. v. Kerr, No. 13-0303 (Tex. June 12, 2015)
