Emily W. Rogers Bickerstaff Heath Delgado Acosta LLP 3711 S. MoPac Expwy. Bldg. 1, Suite 300 Austin, TX May 16-20, 2016 South Padre Island, TX Lower Rio Grande Valley 18 th Annual Water Quality Management Planning Conference Liability for Flooding: Takings of Property

Negligence claims Nuisance claims Texas Water Code § claims Takings claims Typical Causes of Actions brought for Flooding © 2016 Bickerstaff Heath Delgado Acosta LLP

The Policy 1.The right to own private property is fundamental. 2.Public burdens borne by the public as a whole. 3.Just compensation for land taking for public use is required. The Law 1.A takings cause of action elements: (1) an intentional act by the government under its lawful authority, (2) resulting in a taking of the plaintiff's property, and (3) for public use. 2.The governmental entity must either know: (1) that a specific act is causing identifiable harm; or (2) that the specific property damage is substantially certain to result from an authorized government action. 3.Accidental damage not a taking. Takings – The Basics © 2016 Bickerstaff Heath Delgado Acosta LLP

Types of Takings 1.Takings can be classified as either physical or regulatory. A physical taking occurs when the government authorizes an unwarranted physical occupation of an individual's property. A regulatory taking may occur when a government conditions the granting of a permit or some other type of government approval on an exaction from a landowner seeking that approval. Takings – The Basics © 2016 Bickerstaff Heath Delgado Acosta LLP

Supreme Court of Texas. Kopplow Development, Inc., Petitioner, v. The City of San Antonio, Respondent. 399 S.W.3d 532 (Tex. 2013) Inverse Condemnation Claims © 2016 Bickerstaff Heath Delgado Acosta LLP

Kopplow Development, Inc. (Kopplow) purchased acres of land in San Antonio in 1996/1997 to develop. Kopplow’s property was below the 100–year floodplain elevation, as defined by the Federal Emergency Management Agency (FEMA). Kopplow obtained a floodplain permit from the City of San Antonio and filled most of the property to above the floodplain elevation. Background © 2016 Bickerstaff Heath Delgado Acosta LLP

San Antonio experienced 100–year floods in 1998 and The City then planned a regional storm water detention facility for the Leon Creek watershed south of Kopplow’s property to mitigate downstream flooding which would inundate portions of Kopplow’s property but the City did not obtain any easements from Kopplow. The City built a concrete in-flow wall and a large berm or dam south of the Kopplow property. The dam’s peak elevation is 748 feet. Background (cont.) © 2016 Bickerstaff Heath Delgado Acosta LLP

The facility will cause increased inundation on Kopplow’s property and that the FEMA 100–year floodplain is two feet higher on Kopplow’s property because of the facility. Kopplow must file for a floodplain development permit to further develop its property, and fill the property to the new level of the 100–year floodplain. Because of this, Kopplow sued the City for a taking:  The jury found that: (1) the value of the part taken was $4,600; (2) the City’s use of the part taken proximately caused damages to the remainder; and (3) Kopplow’s remainder damages were $690,000. The main issue of the case is whether Kopplow’s inverse condemnation claim was ripe. The court found the claim was ripe. Background (cont.) © 2016 Bickerstaff Heath Delgado Acosta LLP

Kopplow’s claim is about development, not flooding.  Kopplow purchased the property to develop it, obtained development permits (including a vested rights permit), and filled the property to the 100–year flood level to develop it before the City constructed the project that rendered the land undevelopable unless filled again.  Even if the Kopplow property never actually floods, the property is nonetheless undevelopable unless filled because of the project. Add “status of development” to the list of items to evaluate when studying a projects feasibility. Discussion © 2016 Bickerstaff Heath Delgado Acosta LLP

Nuisance Takings Harris County Flood Control District and Harris County, TX, appellants v. Kerr --- S.W.3d ----, 2015 WL (Tex. Supreme Ct.) June 12, 2015 Motion for Rehearing Granted on February 19, 2016 © 2016 Bickerstaff Heath Delgado Acosta LLP

In 1984, Harris County formally approved the “White Oak Bayou Regional Flood Control Project” and authorized Harris County Flood Control District (District) to implement the plan (the Pate Plan). The Pate Plan was based in significant part upon the District’s 1983 Flood Hazard Study, as well as FEMA floodplain maps that were also based on the 1983 study. The purpose of the Pate Plan was to eliminate flooding along the upper bayou, including in the vicinity of suing landowners’ properties, for floods up to and including a 100–year event, by expanding the bayou’s capacity to handle storm water runoff produced from existing and expected future development in the upper bayou. The Plan, once fully implemented, was intended to “maintain 100–year flood protection on White Oak Bayou as future development occur[ed].” The District discovered that the engineering analysis used in developing the Pate Plan was either inadequate or inaccurate and, in 1990, another engineering firm (Klotz), was commissioned for a new multi-phase study of existing White Oak Bayou watershed conditions. Background © 2016 Bickerstaff Heath Delgado Acosta LLP

Klotz found the information in many areas to significantly differ from the FEMA floodplain maps that were based upon the 1983 Flood Hazard Study. After including new upstream development, Klotz determined that the flood flows and flood levels along the bayou were much higher than the Pate Plan showed. Background (cont.) © 2016 Bickerstaff Heath Delgado Acosta LLP

The Pate Plan, designed to protect against 100–year flood events, called for construction of concrete-lined channel improvements for a sizable portion of upper White Oak Bayou, including near the landowners’ subdivisions. The Klotz Plan, designed to provide protection from ten-year flood events, recommended shallower, earthen channel improvements that stopped just downstream from the landowners’ properties. Thus, the portions of the Klotz Plan adopted by the District not only protected fewer property owners but did so from less-severe flooding events. The District claims that it relied upon the Klotz engineers’ certification that the revised Plan complied with regulations and would not increase downstream runoff. Plaintiffs’ homes were flooded in a series of between 1998 and Background (cont.) © 2016 Bickerstaff Heath Delgado Acosta LLP

The landowners sued “for a nuisance that rises to the level of a constitutional taking.” Intent and Public Use At issue was whether landowners had established an intentional act of the governmental body. The District was aware that its approval of upstream development without sufficient mitigation was substantially certain to flood landowners’ properties as early as The District subsequently chose to implement a scaled-back version of the Pate Plan—the Klotz Plan—which undeniably provided less protection to fewer property owners. Appellees’ Takings and Nuisance Claims © 2016 Bickerstaff Heath Delgado Acosta LLP

Supreme Court said a fact issue about whether a takings occurred existed: Some evidence the county knew it was approved development without mitigation. County and District adopted a 10-year flood event plan rather than 100-year plan. Approving development was a public use – county was sacrificing the Plaintiffs’ property for the sake of new development. © 2016 Bickerstaff Heath Delgado Acosta LLP Initial Supreme Court Decision

Dissent disagreed: Failure to act is not an element of inverse condemnation claims. Concerned that the decision will make governments an insurer of all manner of natural disasters. Motion for rehearing was filed and supported by numerous entities and associations. On February 19, 2016, the court granted the motion for rehearing. Initial Supreme Court Decision © 2016 Bickerstaff Heath Delgado Acosta LLP

City of Keller v. Hall 433 S.W.3d 708 (Tex.App. – Fort Worth 2014) © 2016 Bickerstaff Heath Delgado Acosta LLP Physical Taking

Plaintiff’s property is bordered by Keller Smithfield Road, Big Bear Creek, and Bear Creek Parkway. Plaintiffs brought a takings claim against the city, complaining that the city widening the creek bed, raising the road bed of Keller Smithfield Road, and replacing the bridge that crosses the creek increased flooding on their property. City asked Court to dismiss the case because of governmental immunity. The issue before the court is whether there are fact questions that exist that would prevent summary disposition. © 2016 Bickerstaff Heath Delgado Acosta LLP City of Keller v. Hall

City claimed: Property already in the floodplain based on FEMA maps. No acts of the City made it worse. Property was susceptible to flooding. Plaintiffs stated: City has undergone significant urbanization which has increased runoff. Opening of the bridge over the creek is not large enough and causes water to backup on their property. City knew of these problems. Court said there was a fact issue raised with taking claim and trial court did not commit an error in denying the City’s summary judgment dismissal of the case. © 2016 Bickerstaff Heath Delgado Acosta LLP City of Keller v. Hall

City of Friendswood v. Horn, et al. --- S.W.3d ---, 2016 WL February 11, 2016 © 2016 Bickerstaff Heath Delgado Acosta LLP Taking of Deed Restrictions

Background: After tropical storm Allison destroyed the Imperial Estates Section One Subdivision, the city, with federal assistance, acquired 38 or 42 lots within the subdivision, and turned it into open space. Four landowners declined and rebuilt their homes. 10 years later, the city decided to develop the property within the parameters of the federal regulations. Plans did not comport with subdivision’s original 1958 deed restrictions. So, city amended those restrictions on its 38 lots. © 2016 Bickerstaff Heath Delgado Acosta LLP City of Friendswood v. Horn, et al.

Homeowners’ lawsuit: Brought inverse condemnation claim against the city alleging the unilateral amendment of the deed restrictions to allow its lots to become a public park impairs the use and value of the remaining homeowners. Court found that the deed restrictions comprise a property interest held by the homeowners. However, homeowners did not allege property values were diminished. They alleged the park impairs their use and enjoyment of their property by changing the character. Court said this allegation was not sufficient for a takings claim. Increased traffic and noise do not give rise to a compensable taking. © 2016 Bickerstaff Heath Delgado Acosta LLP City of Friendswood v. Horn, et al.

© 2016 Bickerstaff Heath Delgado Acosta LLP Questions?

24 Emily W. Rogers Tel: Emily practices in the areas of water and environmental law, administrative law, and public law. She represents municipalities, river authorities and water districts before state and federal agencies on water and environmental permitting and enforcement matters. © 2016 Bickerstaff Heath Delgado Acosta LLP