Harris County Flood Control District and Harris County, Texas v. Edward A. and Norma Kerr, et al.

Summary

This is a dissenting opinion in an inverse-condemnation case involving flooding allegedly caused by Harris County and the Harris County Flood Control District's approval of development and failure to implement adequate mitigation measures. The dissent concludes that the homeowners raised fact issues concerning governmental intent, causation, and public use, and therefore that the plea to the jurisdiction should have been denied.

Holdings

1. In Justice Devine's dissenting view, the homeowners presented sufficient circumstantial and expert evidence to raise a fact question whether Harris County and the Flood Control District knew that approving development without adequate mitigation would substantially certainly cause flooding of the homeowners' properties.
2. In Justice Devine's dissenting view, the homeowners' evidence raised a fact question whether the entities' approval of unmitigated development and failure to implement adequate flood-control measures caused the homes to flood.
3. In Justice Devine's dissenting view, evidence that the entities approved development and adopted drainage plans for the benefit of the community, while allegedly sacrificing homeowners' properties to accommodate that development, was sufficient to raise a fact issue on public use.
4. Justice Devine would have held that fact questions existed on every element of the homeowners' takings claim and would have denied the government's plea to the jurisdiction.

Questions Presented

1. Whether the homeowners raised a fact issue on governmental intent or substantial certainty that the challenged development and drainage decisions would cause flooding of their homes.
2. Whether the homeowners raised a fact issue that the government's actions caused the flooding and resulting property damage.
3. Whether the alleged taking or damage was for public use.
4. Whether the plea to the jurisdiction and motion for summary judgment should therefore be denied.

Disposition

other