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Was it Harvey or the City of Houston? Flooded Houston Residents File Claim for Inverse Condemnation
Posted By Alison Battiste || Sep 14, 2017
Last week, individuals and businesses affected by the "controlled release" of water from Harris County's Addicks and Barker Reservoirs on August 28, 2017 took action. In a petition filed in the Harris County District Court, the plaintiffs estimate that thousands of homeowners and businesses have had their properties flooded after previously escaping damage from Hurricane Harvey on August 25, 2017.
The lawsuit claims that each of the properties in the path of the reservoir waters took on several feet of flood water. Thus, the homes were destroyed, not by Hurricane Harvey, but by the Harris County Flood District's and the City of Houston's decision to release water from the reservoirs. The plaintiffs specifically note that the Flood Control District and the City "failed to take measures to prevent the reservoirs from becoming risks to those homes near the reservoir but not located in either['s] spillway," despite knowing the risk of massive flooding. The plaintiffs want to be reimbursed for repair costs, diminution in value of the properties, lost income to the properties' owners, and consequential loss of the flooding.
This type of lawsuit, which could work with or instead of insurance coverage, is called an "inverse condemnation" case and occurs when a governmental entity takes private property but fails to compensate the property owners as required by Section 17, Article I of the Texas Constitution. To recover damages on an inverse condemnation claim, a property owner must establish that the governmental entity's actions resulted in a taking, damaging, or destruction of the owner's property. A "taking" by flooding is certainly a type of inverse condemnation. Texas case law confirms that to properly assert an inverse condemnation claim, a party must plead that the governmental entity (1) acted in a way that resulted in the taking, damaging, or destroying of private property; (2) acted intentionally, that is, either knowing that the specific act was causing identifiable harm or knowing that specific property damage was substantially certain to result; and (3) took the property for a public use.
With the aid of experienced condemnation and eminent domain attorneys, property owners affected by the controlled release of the reservoirs appear to have a strong legal argument in their quest to get the money they need to begin repairing their property.