## IN THE SUPREME COURT O F TEX AS

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. 13-0303

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### C O U N T Y 

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### C O N T R O L 

### D IS T R IC T A N D 

### H A R R IS 

### C O U N T Y 

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### , P E T IT IO N E R S 

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### E D W A R D 

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. A N D 

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### K E R R 

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### . , R E S P O N D E N T S

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F I R S T D I S T R I C T O F T E X A S

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Argued Dec em ber 4, 2014

J U S T I C E D E V I N E delivere d the opinion of the Court, in which C H I E F J U S T I C E H E C H T , J U S T I C E G R E E N , J U S T I C E G U Z M A N , and J U S T I C E B O Y D joined.
J U S T IC E W IL L E T T f

il e d a d is s e n ti n g o p in io n , in w h ic h J U S T I C E J O H N S O N , J U S T I C E L E H R M A N N , and J U S T I C E B R O W N joined.
J U S T I C E L E H R M A N N filed a dissenting opinion, in which J U S T I C E W I L L E T T joined.
I n this inverse condemna

tion case , we consider whether homeowner s raised a fac t question

as to the elements of a taking

. The homeowner s blame their county and flood control di s t ri ct for approving new development without mitigating resulting runoff and draina g e issues, causing their
homes to fl o o d

. Be cause the homeowner s prese nted evidenc e that the g overnme nt entities knew unmitigated development would lead t o fl o o ding, that they approve d development without
appropr iately mitigating it, and that this cause d the flooding , we conclude that the homeowner s havera i s ed a fac t issue as to their claim. We aff irm the court of appea ls, which rea ched the s am e conclusion. 445 S.W.3d 242, 247 (Tex . App.—Houston [1st Dist.] 2013). I. Background and Proc edural History
The plaintiffs in this case are more than 400 residents and homeowner s in the upper Whit e Oak Ba y ou water shed in Har

ris County

. Their homes wer e built mostly in the mid-to-late 1970s and
earl y 1 9 8 0 s
. De s p ite a history of flooding in the are a, they initially suffe red littl e to no flood damag e. This chang ed, howeve r, when Tropica l Storm Fr ancis in 1998, Tropica l Storm Allison in 2001, and an unnamed storm in 2002 flooded t h ei r h o m es one or more times. The homeowner s blame Ha rris County and Har ris County Flood Control District, asser ting that they approve d new

u p s tr eam development without implementing appropr iate flood-contr ol mea s u r e s , a n d th a t th e y w e r e substantially

cer tain flooding would result.
The g overnme nt entities have long known t h at expanding development in the water shed
could cause flooding

. I n 1976, the U.S. Army Corps of Eng ineer s prepa red a repor

t on the upper Whit e Oak Ba

y ou. The repor

t noted rec urre nt damag ing flo o ds, which it attributed primarily to “inade quate channe l capa cities of the streams.” This problem was “compounde d by the continuing
incre ases in suburban development which reduc es the infiltr at i o n o f rainfa ll and incre ases and

acc eler ates runoff to the streams.” I nadequa te street draina g e and storm sewe rs also cause d sever e localized flooding

. The repor t predic ted: “Additional residential development is expected to occur with or without an adequate plan for controlling the floods. Although curr ent local regula tions require that new structure s be built above the level of the 100-y ea r fl o o d , damag es will incre ase substantially in the future with incre ased rainfa ll runoff rate s.” Acc ording ly , the Corps proposed

2channe l improvements and other chang es to reduc e flooding cause d by exis ting and future

development. The plan was to be funded pr imarily by the fe dera l gove rnment. The g overnme nt entities concur red with the Corps’ finding s and ag re ed t o fac ilitate the projec t. Their ostensible g oal following the Corps’ repor t was to maint ai n or reduc e the bay ou’s 100-y ear flood plain. But fede ral funding was slow to materia liz e, even as thousands of acr es wer e develope d in the bay ou’s water shed and the County continued approving more. Construction in the 100-y ear flood plain had been prohibited since the ear ly 1970s, meaning that almost none of the new development or

the plaintiffs’ homes w ere in the 100-y ear flood plain when built or appr oved. The delay in fede ral funding for t he C orps’ plan led C ounty offi ci al s to develop their own flood-contr ol plan. The District had alre ady beg un requiring new developments in the upper part of
the water shed to provide on-site detention ponds, though the parties disag ree on whether the District
deviated from this policy

. The g overnme nt entities commissioned Pate Eng ineer s to develop a plan.
The “Pate P l an , ” adopted by the County in 1984, proposed to eliminate flooding along the upper b ay o u fo r 1 0 0-y ear flood events. L ike the Corps’ plan, the Pate Plan called for channel improvements along the upper portion of t he bay ou (some near the plaintiffs’ homes). But it also
called for more, such as for reg ional detention ponds to mitigate continuing development in the
upper w ater shed. The pla n was to be funded throug h local taxes a nd impact fee s, but it was never fully implemented.
A 1989 flood l ed residents to inquire about the flood-contr ol measure s. The District’s
dir ec t o r as s u red them of pl ans t o protec t their property from 100-y ear floods. Yet the 1989 flood

reve aled flaws in the Pate Plan’s eng ineer ing analy sis, and the District commissioned another repor t

3on the upper W h i t e Oa k Ba y ou water shed. Klotz Associates prese nted its finding s in the ear ly 1990s, concluding that the Pate Plan se riously undere stimated the bay ou’s flood flows and levels. Thoug h the Klotz Plan’s fea tures wer e more extensive in some reg ards than the Pate Plan, the Klotz
Plan was modeled around containing 10-y ear (as opposed to 100-y ear ) fl ood events. The
g overnme nt entities adopted these c hang es. The new information led the Fe dera l Emerg ency Manag ement Ag ency to update the bay ou’s
flood plain maps in the 1990s. Revisions exposed an expanding flood plain, encompa ssing more and

more of the plaintiffs’ homes. Acc ording to the homeowner s, by 1999, all of their ho mes wer e within the 100-y ear flood plain—something the g overnme nt entiti es d o n o t d ispute here

. I ndeed, from 1998 to 2002, most of their homes we re inunda ted in three succe ssive floods.
The homeowner s filed an inverse condemna tion s u i t

. The g overnme nt entities responde d
with a combined plea to the jurisdiction and motion fo r summary judgme nt, contending that no
g enuine issue of materia l fac t had been raised on the elements of the taking s claim. The trial court denied the motion, and the c ourt of appe als aff irmed the de nial of the plea to the jurisdiction. 1 II. Analysi s Article I , Section 17 of our Constitution provides: No per son’s proper

ty shall be taken, damag ed or destroy ed for or applied to public use without ade q u at e co mpensation being made, unless by the consent of such person . . . .

T h e h o m e o w n e r s a l s o a l l e g e d n u i s a n c e
. T h e c o u r t o f a p p e a l s h e l d t h a t b e c a u s e t h e h o m e o w n e r s d i d n o t i n v o k e 1
a s e p a r a t e w a i v e r o f g o v e r n m e n t a l i m m u n i t y f o r t h e i r n u i s a n c e c l a i m , t h e c l a i m w a s d e p e n d e n t o n t h e t a k i n g s c l a i m i n t h a t t h e p l a i n t i f

f s c o u l d o n l y s u e “ f

o r a n u i s a n c e t h a t r i s e s t o t h e l e v e l o f a c o n s t i t u t i o n a l t a k i n g
. ” 4 4 5 S

. W

. 3 d a t 2 5 4 ( q u o t i n g C i t

y o f D a l l a s v
. J

e n n i n g s , 1 4 2 S

. W

. 3 d 3 1 0 , 3 1 2 ( T e x
. 2 0 0 4 ) )

. T h e h o m e o w n e r s d o n o t d i s p u t e t h a t c o n c l u s i o n
. 4T E X
. C O N S T
. art. I , § 17(a)

.

Those seeking rec overy for a taking must prove the g overnme nt “inten tionally took or damag ed their pr operty for public use, or was subst antially cer tain that would be the result.” City of Keller v. W

ilson , 168 S.W .3d 802, 808 (Tex. 2005). Sovereig n immuni t y d o es n o t shield the
g overnme nt from liability for compensa tion under the taking s clause

. Gen. Servs. Comm’n v. Litt leTex Insulation Co. , 39 S.W .3d 591, 598 (Tex. 2001). To defe at the g overnme nt entities’ plea to the 2 jurisdiction, the homeowner s need only raise a fac t issue as to eac h element of their claim. See Tex. Dep’ t of Parks & W

ildlif e v. Miranda , 133 S.W .3d 21 7 , 2 2 8 (Tex

. 2004) (noting that plea to the jurisdiction procedur e “mirr ors” our summary judgme nt prac tice). That i s, the hom eowne rs m ust raise a fac t issue as to intent, causa tion, and public use. Litt le-Tex Insulation Co. , 39 S.W .3d at 598.
Whil e deter

mining whether they have met this burden, we take as true all evidenc e favor able to the
nonmovant, indulging ever y rea son a b le in f e r e n c e a n d r e s o lv in g a

ny d o u b ts in th e n o n

mo v ant’s favor

. Miranda , 133 S.W .3d at 228.
A. Intent
I n a taking s case , “the requisite intent is prese nt when a g overnme ntal enti t y k nows that a specific act is causing identifiable harm or knows that the harm is subst antially cer tain to result.”
Tarrant Reg’l W

ater Dist. v. Gragg , 151 S.W .3d 546, 555 (Tex. 2004). I t is not enoug h that the act causing the harm be intentional—there m ust also be knowledg e to a substantial cer tainty that the
harm will occur
. City of

Dallas v. Jennings , 142 S.W .3d 310, 313–14 (Tex. 2004). I ntent, in taking s

F o r c o n v e n i e n c e , o u r r e f e r e n c e s t o “ s o v e r e i g n i m m u n i t y ” t h r o u g h o u t t h i s o p i n i o n r e f e r t o t h e r e l a t e d d o c t r i n e s 2
o f s o v e r e i g n i m m u n i t y a n d g o v e r n m e n t a l i m m u n i t y
. S e e C i t y o f H o u s t o n v
. W i l l i a m s , 3 5 3 S

. W

. 3 d 1 2 8 , 1 3 4 n
. 5 ( T e x
. 2 0 1 1 ) ( e x p l a i n i n g t h a t g o v e r n m e n t a l i m m u n i t y p r o t e c t s p o l i t i c a l s u b d i v i s i o n s o f t h e S t a t e )

. 5case s as in other contexts, may be proven by circ umstantial ev i d ence
. See Spoljaric v. Perciv al

Tours, Inc

. , 708 S.W .2d 432, 435 (Tex. 1986)

. But a taking cannot rest on the mere neg lige nce of
the g overnme nt. City of Tyler v. Likes , 962 S.W .2d 489, 505 (Tex. 1997). The issue here is whether
the homeowner s’ circ umstantial evidenc e raises a fac t question as to th e go v ernment entities’ knowledg e that “ha

rm [was] substantially cer tain to r esult” to the homeowne rs’ homes be cause of
the entities’ ac tions. See G ragg , 151 S.W .3d at 555.
The homeowner s do not arg ue that the go vernme nt entities have a g ener al leg al duty to
preve nt all flooding

. I nstead, they urg e that the entities approve d private development in the Whit e Oak Ba y ou water shed without mitigating its consequen ces, being substantially cer tain the unmitigated development would bring flooding with it. The g overnme nt entities respond that they
did not intend the flooding ; indeed, the District’s very purpose is to plan for storm-wate r runoff and
control flooding

. They asser t that they cannot stop all flooding , and to t h e extent flooding does

occur , their intent is to reduce or pre vent it, not cause it.
The summary judgme nt evi d en ce shows a fac t question exis ts reg arding whether the
g overnme nt entities wer e substantially cer tain their actions in ap p ro v ing development without
appropr iately mitigating it would cause the plaintiffs’ homes to flood. The Corps’ repor t, Pate Plan,
and Klotz repor

t confirm that the entities have known f or seve ral de cade s that development in the bay ou’s water shed exacer bates flooding in the upper bay ou. The homeowner s point to evidenc e that
the County appro v ed d evelopment without the previously require d on-site detention. The Klotz 3

T h e g o v e r n m e n t e n t i t i e s n o t e t h a t t h e h o m e o w n e r s ’ p l e a d i n g s s p e c i f i c a l l y b l a m e d f

l o o d i n g o n d e v e l o p m e n t 3

“ [ s ] i n c e 1 9 8 4

. ” T h e p l e a d i n g s s t a t e d t h a t p r i o r t o 1 9 8 4 , t h e D i s t r i c t “ r e q u i r e d a l l n e w d e v e l o p m e n t p r o j e c t s t o i n c o r p o r a t e o n - s i t e s t o r m w a t e r d e t e n t i o n i n t o t h e i r d e v e l o p m e n t p l a n s
. ” T h e e n t i t i e s a s s e r t t h a t t h e h o m e o w n e r s 6repor

t led the entities to plan for 10-y ear flood events rathe r than 100-y ear floods as called for by the
Pate Plan. And the homeowner s’ expert witness, Dr. L arr y May s, o p i n ed t hat when the entities
approve d development, knowing that surfa ce runoff would incre ase i f t h e d ev elopment was not mitigated, and then planned to contain only 10-y ear floods, the entities wer e substantially cer tain that flooding would result. The gove rnment entit ies respond that their “knowledg e mus t be determined as of t h e t i me [t hey ] acted, not with benef it of hi ndsight.” City of San Antonio v. Pollock , 284 S.W .3d 809, 821 (Tex. 2009). The e ntities urge that they chang ed from the Pate Plan to the Klotz P lan bec ause the
Pate Plan was flawe d. There is no evidenc e they knew of the flaws at the time they adopt ed it or
approve d most of the development. I n other words, no evidenc e exis ts that at the time they approve d

most of the development at issue, they wer e substantially cer tain the flood-contr ol measure s would
fail and flooding wou l d result. When the 1989 flood reve aled the Pate Plan’s flaws, the entities
followed their eng ineer s’ advice and adopted the Klotz Plan. Since then, they have spe nt mill ions
of dol lars on draina g e and infrastruc ture that, acc ording to th ei r ex p er t s , g oes far bey ond the P ate Plan, and no evidenc e exis ts that the Pate Plan would have stopped the floods the homeowner s complain about. Michae l David Talbott, an expert witness fo r t h e entities, explained that the

j u d i c i a l l y a d m i t t e d t h a t o n - s i t e d e t e n t i o n a c c o m p a n i e d a l l p r e - 1 9 8 4 d e v e l o p m e n t

. A j u d i c i a l a d m i s s i o n , h o w e v e r , m u s t b e c l e a r a n d u n e q u i v o c a l

. S e e H o r i z o n / C M S H e a l t h c a r e C o r

p
. v
. A u l d , 3 4 S

. W

. 3 d 8 8 7 , 9 0 5 ( T e x
. 2 0 0 0 )

. A p o s s i b l e i n t e r p r e t a t i o n o f t h e h o m e o w n e r s ’ p l e a d i n g s i s t h a t t h e D i s t r i c t h a d a r e q u i r e m e n t o f o n - s i t e d e t e n t i o n , b u t t h i s s a y s n o t h i n g a b o u t t h e D i s t r i c t ’ s a d h e r e n c e t o t h a t r e q u i r e m e n t

. I n d e e d , t h e h o m e o w n e r s ’ r e s p o n s e t o t h e e n t i t i e s ’ p l e a t o t h e j u r i s d i c t i o n a n d s u m m a r y j u d g m e n t m o t i o n s p e c i f i c a l l y c l a i m e d t h a t “ D e f e n d a n t s c o n t i n u e d t o a p p r o v e n e w d e v e l o p m e n t w i t h o u t o n - s i t e m i t i g a t i o n e v e n a f t e r t h i s 1 9 7 6 s t u d y h a d c l e a r l y s h o w n t h e m t h a t t h e b a y o u d i d n o t h a v e t h e c a p a c i t y t o h a n d l e a n y a d d i t i o n a l s t o r m w a t e r r u n o f f

. ” A s e v i d e n c e t h a t s o m e p r e - 1 9 8 4 d e v e l o p m e n t w a s n o t m i t i g a t e d , t h e h o m e o w n e r s r e l y o n a t a b l e s u p p l i e d b y t h e e n t i t i e s ’ e x p e r t , M e l v i n S p i n k s
. T h e p a r t i e s i n t e r p r e t t h e t a b l e d i f f e r e n t l y , a n d t h e t a b l e i t s e l f i s n o t c l e a r o n i t s f a c e , b u t t h e h o m e o w n e r s ’ p l e a d i n g s d o n o t c o n t a i n a n u n e q u i v o c a l a d m i s s i o n o n t h e s u b j e c t

. 7District’s knowledge of t he watershed “cha ng ed si g nificantly over tim e” and conti nued to chang e “with the advent of new technolog ies and with observa tions of actua l events.” The chang ing flood plains and cha

ng ing pla ns were not premeditate d; they resulted f rom new da ta and knowle dg e. This competing evidenc e demonstrates, in the words of the court of ap p ea l s below, “the
fac tual complexit y surrounding this issue and the difficulty of pinpointing prec isely what [t he
g overnme nt enti t i es ] k n ew about flooding in the upper water shed and when they knew it.” 445
S.W .3d at 258. Evidence exis ts that the entities approve d development without appropr iately mitigating it, and that at times they deviated from their ear ly policy of requiring on-site detention ponds. There is also evidenc e that they abandone d plans protec ting ag ainst 100-y ear floods for plans targ eting only 10-y ear floods. Thoug h none of the evidenc e on its own might raise a fac t question, toge ther it raises a question of fac t as to the entitie s ’ i n t en t to take the homeowner s’ proper ty to fac ilitate new deve lopment without appropriate mitig ation.
The homeowner s also submit t h at t h e rec urring nature of these floods is probative of the
g overnme nt entities’ intent and the extent of the taking

. See Gragg , 151 S.W .3d at 555 (“I n the case of flood-wa ter impacts, rec urre nce is a probative fac tor in deter mining the extent of the taking and
whether it is nece ssarily incident to authorized g overnme nt activity , and there fore substan t i al ly

cer tain to occur .”); see also Kopplow Dev ., Inc. v. City of San Antonio , 399 S.W .3d 532, 537 (Tex. 2013) (“With flood water impacts, rec urre nce is a probative fac tor in assessing intent and the extent of t h e taking .”). Her e, the entities knew that flooding occur red fre quently in the bay ou, and they orig inally planned for 100-y ear events. Yet there is evidenc e that they later planned only for 10-y ear

8events. Th e fa ct t h at storms sometimes surpass 10-y ear events is no surprise to the entities. The

rec urring nature of the flood e vents is evidence of intent and the e x tent of the taking

. The g overnme nt entities invoke City of Keller v. W

ilson , wher e we held that a city could rely

on eng ineer s’ conclusions that a draina g e ditch was unnece ssary , even though, as it turne d out, the
ditch might have stopped flooding

. See 168 S.W .3d at 829. Her e, the entities did rec eive eng ineer s’
advice . Yet the e ntities were a lso awa re that the Klot z Plan would protec t ag ainst 10-y ear events, wher eas the prior plan had been t o protect aga i n s t 100-y ear floods. There is evidenc e the entities
knew (base d, in part, on eng ineer s’ repor ts) that unmitigated development would lead to flooding

. Unlike in City of Keller , the eng ineer s’ rec ommendations here informed the entities of the dang er.
I n sum, the homeowner s have raised a fac t question reg arding intent. T h is case is unlike
others wher e there wa s n o “e v i d en ce that the act

. . . was substantially cer tain to lead to such damag e.” Jennings , 142 S.W .3d at 315.
B. Causation
To preva il, the homeowner s must also raise a fa ct issue as to whether the g overnme nt entities’ ac tions “resulted in a ‘taking ’ of pr operty .” Litt le-Tex Insulation Co. , 39 S.W .3d at 598.
The e ntities assert that the homeowne rs fa iled to do so. W e disag ree
. The homeowner s’ expert, Dr. May s, perf ormed a study that raises a fac t question reg arding
whether the g overnme nt entities’ approva l of development an d s u b s equent failure to proper ly mitigate it cause d the homes to flood. Dr. May s investiga ted the eff ects of unmitigated development

on the wa tershed, perf

orming his “Eff

ect of Urba

nization on Peak Dischar g es” analy sis to demonstrate the differ ence betwee n 1982 land use conditions and 1990 land use condit i o n s
. He

9compar ed peak discharg es and runoff hy drog raphs from conditions in 1982 to peak discharg es and

runoff hy drog raphs from conditions in 1998, concluding that the primary cause of flooding along
Whit e Oak Ba

y ou was development “without the implementation of pr o p e r stormwater manag ement

m ea s u res (such as detention and/or rete ntion).” This cause d “sig nificant incre ases in flows and

corr esponding water surfa ce eleva tions for an ap p ro x i m ate 10-y ear flood event.” Dr. May s deter mined that two o f the t hree flood events between 1998 and 2002 wer e 10-y ear flood events.
He co n cluded: “‘B ut for’ the actions by the County of approving this unmitigated development, and/or by not fully implementing the Pate Plan (which w ould have e liminated the risk of flooding along the bay ou for up to a 100-y ear event) , the Plaintiffs’ proper ties would not have flooded during
these thre e flood e vents.”
The g overnme nt entities point to purported “an al y t i ca l g aps” in Dr. May s’ study

. For example, the entities point out that Dr. May s fre ely admitted that he never modeled or tested the Pate
Plan to show that it would have stopped the flooding

. Wit hout proving there was a way to stop the flooding , Dr. May s could not prove the entities cause d it

. T h e en tities prese nt evidenc e that the expanding flood plain was cause d (at least in pa rt) by new knowledg e about exis ting conditions a s opposed to chang es in conditions. The enti ties asser t that intense, unexpected rainfa ll—not their

own actions—ca

used the floods, observing that flooding occur red all ov er Ha rr i s County during these storms, not just in t he White Oak Bay ou water shed. They also challeng e Dr . May s’ method
of dete rmining the siz e of the storms, arg uing tha t they wer e lar g er. After revie wing the rec ord, we conclude the homeowner s have raised a fac t issue reg arding
whether the ent it ie s ’ a c tions cause d the flooding

. The homeowner s prese nted evidenc e that the Klotz

1 0Plan targ eted 10-y ear events, wher eas the Pate Plan had aspi re d t o co n t ain 100-y ear floods. Dr.

May s prese nted data supporting his conclusion that the flooding was cause d by water exceeding the
bounds of the ba

y ou rathe r than by

the pooling of water in the homeowner s’ y ards. Reg arding the
siz e of the flood eve nts, the entities’ own expert, Andy Yung , cre ated a

fac t issue. I n an af

fidavit, Yung stated that the rainfa ll for the 2001 s t o rm ex ce ed ed a 100-y ear event. But in a repor t, he
conclude d that the 1998 and 2001 floods wer e about 50-y ear events and the “mag nitude of the 2002
flood event was considera bly less.” He then conclude d that “in all three of these events, are as wer e inundated which have been historically identified in the 100-y ear flood plain.” I n other words, the
entities’ own expert provides evidence that the floods wer e less than 100-y ear events, but that the flooding extended into are as not anticipated even for 1 0 0 -y ear events. A fac t question exis ts
reg arding the ca

use of the f

loods.
I n sum, sever al unresolved fac t questions exis t. For example, the parties dispute the nature and deg ree of the three flood events. The g overnme nt entities have contende d that two of the storms produce d unprec edente d rainfa ll, y et evidenc e exists t hat t hese storms wer e within the par ameter s plan n ed for by the Pate Plan and the Corps’ study

. The parties also dispute the deg ree to which unmitigated development contributed to the 100-y ear flood plain’s expansion, the rela tive benef its
and shortcoming s of the Pate and Klotz Plans, and the entities’ abilit y t o m anag e and control development in the bay ou’s water shed, as well as the entities’ eff orts to mitigate the eff

ects of new development. Ex pert s h av e weig hed in on both sides of the debate , but the questions rema in unsettled, and the me rits of these homeow ners’ claims depe nd on their re solution.

1 1C. P ubl ic Use

The g overnme nt entities asser t that no evidenc e exis ts of a taking for public use. They arg ue that proper

ty is only “dama g ed for public use” if the “g overnme ntal entity is awa re that its action will

nece ssarily cause phy sical damag e to cer tain private proper

ty , and y et deter

mines that the benef

it to the public outweig hs the harm cause d to that proper ty .” Jennings , 142 S.W .3d at 314. The entities’
arg uments on this point, howeve r, m ere ly repe at t heir arg uments conce rning intent and ca usation:
the entities made no conscious decision to sacr ifice the plaintiffs’ proper ty for public use, and their
conduct did not cause the flooding , so it was not fo r p ublic use. I n response , the homeowner s
conten d t h e en tities approve d development and made draina g e-pla n decisions for the sake of the public.
At least some evidenc e exis ts that in approving new development and draina g e plans causing flooding , the entiti es ’ wer e acting for a public use. To the extent the g overnme nt entities wer e substantially cer

tain the homeowner s’ homes would flood beca use of unmitigated development, but

sacr ificed their homes for the sake of new development, this was for a public use. I f the homeowner s bore the burden of the g rowing community , then, “in all fairne ss and justice, [t he burden] should be borne by the public as a

whole.” Gragg , 151 S.W .3d at 554.

III. Conclusi on We do not decide the merits of the disp ute, nor do we mean to imply that the g overnme nt entities have a duty to preve nt all flooding

. We mere ly conclude that a fac t question exis ts as to eac h
element of the homeowner s’ taking s claim. Acc ording ly , the g overnme nt entities’ plea to the jurisdiction should be denied. The c ourt of appe als’ judg ment is affirme d.

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J ohn P. Devine J ustice

Opinion Delivere d: J une 12, 2015

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