The legal ramifications of Hurricane Harvey continue to percolate through the courts. In San Jacinto River Auth. v. Brocker, et al., (No. 14-18-00517-CV), property owners sued SJRA when their houses were flooded by a release of water from Lake Conroe dam. They asserted inverse condemnation claims under Art. 1, §17, Texas Constitution, and statutory taking claims under Chapter 2007, Government Code. The property owners alleged that SJRA took an inundation, flood, flowage, or drainage easement over their properties. SJRA filed a motion to dismiss under Rule 91a, which the trial court denied.

On appeal, SJRA first raised a challenge to the trial court’s subject matter jurisdiction on the basis that §25.1032(c), Government Code, grants exclusive jurisdiction over all inverse condemnation claims to Harris County civil courts at law, thus depriving the district court of jurisdiction over the homeowner’s claims. The 14th Court of Appeals previously held in other cases involving SJRA that the statute indeed invested Harris count civil courts at law with exclusive jurisdiction, but only with regard to constitutional inverse condemnation claims and statutory claims in which the condemnor makes a bona fide offer that does not exceed $200,000. The court of appeals thus severed the owners’ constitutional claims and reversed the trial court’s denial of the motion to dismiss.

With respect to the statutory takings claims, the court of appeals reviewed the merits of SJRA’s Rule 91a motion de novo, likening the rule’s factual plausibility standard to a legal sufficiency review (citations omitted). The property owners alleged both a taking and a partial taking or easement that reduced their properties’ market value by at least 25 percent. See §2007.002(5), Government Code. To prove a constitutional taking, the property owner must establish that the governmental entity “intentionally took or damaged their property for public use, or was substantially certain that that would be the result” (citations omitted). SJRA alleged in its Rule 91a motion that the property owners failed to allege sufficient facts to support this claim.

The court of appeals held that the property owners alleged sufficient facts that SJRA knew that the flooding caused by an unprecedented water release from the dam would damage their properties (the property owners did not have to show that the governmental entity specifically intended to flood their property). The court further rejected SJRA’s claim that a single flood event could establish intent. With respect to the property owner’s allegations of a physical taking, the court of appeals likewise found that they had pleaded facts sufficient to establish a taking caused by the SJRA’s release of water from the dam. SJRA’s arguments that it could not be held responsible for what amounted to a one-thousand year flood that overwhelmed the dam fell on deaf ears. Finally, the court found sufficient evidence to support the public use element based on SJRA’s decision to release water from the dam to prevent the dam from collapsing, preserve the Lake Conroe reservoir, and prevent upstream flooding. Essentially, the owners argued that SJRA sacrificed their property for the greater good.

Having found that the property pleaded sufficient facts to support the elements of a cause of action for a constitutional taking, the court of appeals held that such showing likewise satisfied the elements of a statutory taking under Chapter 2007. It thus affirmed the trial court’s denial of the Rule 91a motion to dismiss as to those claims. This case should send shivers down the spines of local governmental entities that have to make split-second decisions during catastrophic emergencies. One also wonders if Chapter 2007 was really intended to apply to a situation like Hurricane Harvey. When the legislature adopted the law in 1995, we recall that most, if not all, of the testimony in favor of the bill was aimed at city land use regulations and city attempts to control land use in their extraterritorial jurisdiction. In any event, here we are in 2021, when extreme weather events seem to have become more of the norm rather than the exception. Inverse condemnation claims such as those in this case, while understandable, are awfully expensive for taxpayers.

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