In a case that many Texas landowners have been following closely through the courts, the Texas Supreme Court recently published a decision concerning whether a county can be held liable for an impermissible taking of property when the county allows for land development that the county knows will cause substantial flooding to nearby properties and fails to take steps to mitigate or control that flooding.
The Texas Supreme Court Opinion
Harris County Flood District and Harris County v. Kerr et al. involved nearly four hundred homes in the upper White Oak Bayou watershed in Harris County, Texas that were flooded when severe storms passed through the area. The homeowners sued the county and the Harris County Flood Control District based on an inverse condemnation claim. The homeowners asserted that the county and the district did not take steps to control flooding as new developments were created in the White Oak Bayou. A flood control plan was actually developed in the 1980’s, but was never fully implemented by the county, and this plan acknowledged that the unmitigated development of the land in the Bayou would produce serious flooding problems in the area. As a result of a boom in development in the White Oak Bayou, and because of the the county’s failure to adequately control flooding, many homes were flooded. The Plaintiff homeowners claimed that the flooding was a unconstitutional taking of their property that is prohibited by Article I, Section 17 of the Texas Constitution. The evidence showed that the county never intended to cause flood damage to the homeowner’s properties, but that the county knoew that flooding could result.
The Texas Supreme Court noted that the flooding was never the county’s intention, that the county knew generally that flooding would occur, but not that these particular homeowners would be flooded, and that the homeowners’ land was not used by the county for any sort of public use, such as for flood detention or drainage as part of a flood control plan. Rather, in the Court’s view, the county merely took no action and the Court held that inaction cannot give rise to a constitutional taking of property.
The relevant section of the Texas Constitution provides that “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” The Texas Supreme Court noted that even if there were a “taking” as described in this section of the Constitution, there was no public use component.
Dissenting Opinion Makes Some Good Points
The dissent in this case made a several good points. The dissent acknowledged that a government, such as Harris County, does not have a duty to protect all properties from flooding. But in this particular case, the homeowners presented to the court evidence that the county knew that unmitigated developments in and around White Oak Bayou would cause substantial flooding, and yet the county approved those development plans anyway. The dissent argued that since the county went forward with development plans anyway, a fact issue was created that should have been heard by the trial court.
Texas metropolitan areas have experienced substantial growth in the past and will continue to grow in the future as our population increases. It is logical to require Texas counties and flood control districts to protect existing property owners from flooding caused by urban development. This unfortunate result of this opinion is that a Texas County can approve development without taking the consequences into account. While the legal reasoning of the Texas Supreme Court in this case is certainly correct, it puts homeowners at a disadvantage since they have no control over flood producing development near their homes. This is a problem that cries out for a legislative solution.