Date: 04-24-2017

Case Style:

Case Number: 04-16-00253

Judge: Marialyn Barnard

Court: Texas Court of Appeals, Fourth District on appeal from the 25th Judicial District Court, Guadalupe County

Plaintiff's Attorney: J. Marcus Hill and David Eveld for Woodlake Partners, L.P.

Defendant's Attorney: Michael A. Shaunessy and Eric Johnston

Description: Guadalupe County appeals the trial court’s order denying the motion for summary judgment Guadalupe County filed asserting governmental immunity. Guadalupe County contends the trial court erred in denying the motion because the evidence established as a matter of law that any damage to the value of the appellees’ property was proximately caused by the Federal Emergency Management Administration’s (FEMA) revision of its 100-year flood plain maps and federal regulations governing development in flood plains and floodways, not by Guadalupe County’s adoption of its Flood Damage Prevention Court Order.
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BACKGROUND
In 2007, FEMA revised its 100-year Flood Insurance Rate Maps for Guadalupe County.1 After the revisions, several lots owned by Woodlake Partners, Inc. and Woodlake Partners, L.P. (collectively “Woodlake Partners”), which previously were not located in a floodway or flood plain, are now located in a floodway or flood plain.2 In response to FEMA’s revisions, Guadalupe County adopted a Flood Damage Prevention Court Order (“Order”) governing the development of lots located in a floodway or flood plain.
On March 24, 2011, Woodlake Partners submitted a Floodplain Development Permit Application in order to develop one of the lots located in a floodway. On March 28, 2011, Guadalupe County sent Woodlake Partners a letter stating the application was incomplete for various reasons, including Woodlake Partners failure to submit “No-Rise documentation from engineer.” The letter also noted federal regulations required the construction to have the lowest floor elevated to or above the base flood level.
On June 28, 2011, Woodlake Partners filed the underlying lawsuit against Guadalupe County asserting an inverse condemnation. Woodlake Partners alleged a builder can only obtain a No-Rise Certificate “if the builder can trade-off credits by removing existing structures or impediments of equal size or square-footage along the floodway within the building area in question.” Woodlake Partners also alleged they were “informed by a professional environmental engineer that there is little practical or even possible way a No-Rise Certificate could be obtained
1 “Flood Insurance Rate Map (FIRM) means an official map of a community, on which the Federal Insurance Administrator has delineated both the special hazard areas and the risk premium zones applicable to the community.” 44 C.F.R. § 59.1. “Special hazard area means an area having special flood, mudslide (i.e., mudflow), or flood-related erosion hazards.” Id.
2 A “flood plain” is “any land area susceptible to being inundated by water from any source.” 44 C.F.R. § 59.1. A “floodway” is “the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height.” Id.
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for [the] lot(s) located in the floodway because there is no possibility of removing enough material(s) to justify a No-Rise Certificate.” In addition, Woodlake Partners alleged to build on the lots located “in the floodplain (or in the floodway, if [they] could obtain the required No-Rise Certificate), [they] would be required to build houses eight to twelve feet above ground level.” Woodlake Partners further alleged such construction would be in violation of the subdivision’s covenants, would seriously impair the aesthetic value and market value of existing homes in the subdivision, and would be cost-prohibitive.
On January 14, 2016, Guadalupe County filed a no evidence and traditional motion for summary judgment. In the motion, Guadalupe County asserted: (1) Woodlake Partners had no evidence of causation; (2) the evidence establishes the absence of causation as a matter of law; and (3) Guadalupe County has governmental immunity because Woodlake Partners cannot establish their damages were caused by Guadalupe County’s actions as opposed to FEMA’s actions. The trial court denied the motion, and Guadalupe County appeals.
STANDARD OF REVIEW
“The absence of subject-matter jurisdiction may be raised by a plea to the jurisdiction, as well as by other procedural vehicles, such as [in this case] a motion for summary judgment.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review a summary judgment de novo. Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015). To prevail on a traditional motion for summary judgment, the movant must show “there is no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of law.” TEX. R. CIV. P. 166a(c). A trial court must grant a no-evidence motion for summary judgment unless the nonmovant produces some evidence raising a genuine issue of material fact on each element of the nonmovant’s claims challenged in the motion. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). We take as true all evidence favorable to the nonmovant, resolve all conflicts in the
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evidence in the non-movant’s favor, and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Katy Venture, Ltd., 469 S.W.3d at 163.
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
As previously noted, Guadalupe County filed both a no evidence and traditional motion for summary judgment. We only have jurisdiction to consider this appeal because Guadalupe County is appealing an order denying a motion for summary judgment based on an assertion of immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2016); see also Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006) (“The Legislature provided for an interlocutory appeal when a trial court denies a governmental unit’s challenge to subject matter jurisdiction, irrespective of the procedural vehicle used.”). Because Guadalupe County’s motion challenges the trial court’s subject matter jurisdiction, Guadalupe County had the burden of proof. Arthur v. Uvalde Cty. Appraisal Dist., No. 04-14-00533-CV, 2015 WL 2405343, at *9 (Tex. App.—San Antonio May 20, 2015, pet. denied). This court has previously held a defendant “may not raise a jurisdictional challenge in a no-evidence motion for summary judgment” because it “improperly shifts the jurisdictional evidentiary burdens.” Id.; see also Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785, 794 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (holding “a court’s subject-matter jurisdiction cannot be challenged in a no-evidence motion for summary judgment”); cf. Foreman v. Whitty, 392 S.W.3d 265, 279 (Tex. App.—San Antonio 2012, no pet.) (“A movant cannot file a no-evidence motion for summary judgment on a claim or defense on which he has the burden of proof at trial.”). Therefore, we do not further address the no evidence motion.
IMMUNITY AND CAUSATION
A political subdivision of the State, like a county, enjoys government immunity from suit. Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006). However, governmental immunity does not
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shield a governmental entity from a takings claim. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 592, 598 (Tex. 2001); City of Dall. v. VRC LLC, 260 S.W.3d 60, 64 (Tex. App.—Dallas 2008, no pet.). “Whether particular facts are enough to constitute a taking is a question of law.” Gen. Servs. Comm’n, 39 S.W.3d at 598.
To state a valid takings claim, a plaintiff must allege: (1) an intentional governmental act; (2) that resulted in his property being taken; (3) for public use. Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016); Gen. Servs. Comm’n, 39 S.W.3d at 598. “Proximate cause is an essential element of a takings case.” Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 483 (Tex. 2012). As an element of a takings claim, proximate cause can be considered a jurisdictional fact when it is necessary to resolve whether a plaintiff has alleged a valid takings claim. See State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009). This does not mean Woodlake Partners must prove its takings claim in order to satisfy the jurisdictional hurdle. Id. at 884; Bland Indep. Sch. Dist., 34 S.W.3d at 554. However, because Guadalupe County “challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties [as] necessary to resolve the jurisdictional issues raised.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). “If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the [motion for summary judgment], and the fact issue will be resolved by the fact finder.” Id. at 227-28. “However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the [motion for summary judgment] as a matter of law.” Id. at 228.
As previously noted, “[c]ausation is intrinsic to a takings claim.” Hearts Bluff Game Ranch, Inc., 381 S.W.3d at 484. Where, as here, the property owner is required to file suit because the government took, damaged or destroyed property without paying compensation, the takings claim is categorized as in inverse condemnation claim. Kopplow Dev., Inc. v. City of San Antonio,
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399 S.W.3d 532, 536 (Tex. 2013). And, “owners of inversely condemned property cannot recover damages the government did not cause.” Id. at 539; Hearts Bluff Game Ranch, Inc., 381 S.W.3d at 483 (noting “the governmental entity must be the cause of the harm”).
In their petition, Woodlake Partners based their takings claim on the portions of the Order requiring them to obtain a No-Rise Certificate to develop the lots that are now located in the a floodway and to construct the houses eight to twelve feet above ground level.3 Therefore, Woodlake Partners’ claim appears to be based on: (1) Article 5, Section B(1) of the Order requiring all new residential construction to “have the lowest floor (basement) elevated to 1 foot above the base flood elevation;” and (2) Article 5, Section E(1) of the Order prohibiting encroachments “including fill, new construction, substantial improvements, and other development within the adopted regulatory floodway unless it has demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment would not result in any increase in flood levels within the community during the occurrence of the base flood discharge.” (emphasis in original).
As Guadalupe County asserted in its motion, however, these same requirements appear in the federal regulations setting forth flood pain management criteria for flood-prone areas which: (1) require all new residential construction to “have the lowest floor (including basement) elevated to or above the base flood level;”4 and (2) prohibit encroachments in a floodway “including fill, new construction, substantial improvements, and other development within the adopted regulatory
3 We note the Order contains a provision for requesting a variance, and the summary judgment evidence establishes Guadalupe County’s attorney notified Woodlake Partners in December of 2015 that FEMA authorized it to grant a variance under certain circumstances but not solely on the basis of financial hardship. The summary judgment evidence does not establish Woodlake Partners requested any such variance.
4 Although the provision in the Order requires the lowest floor to be elevated to one foot above base level as opposed to being elevated to or above the base flood level as provided in the federal regulations, Woodlake Partners does not allege in their pleading that they were damaged by the additional foot requirement in the Order. Instead, Woodlake Partners alleged they were damaged by having to build “eight to twelve feet above ground level.”
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floodway unless it has demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment would not result in any increase in flood levels within the community during the occurrence of the base flood discharge.” See 44 C.F.R. § 60.3(c)(2), (d)(1), (d)(3). Furthermore, with regard to whether the Order tracks FEMA’s requirements, Lance A. Huber, Woodlake Partners’ expert, testified the Order did “as far as I know.” In addition, Huber testified lenders financing any construction on the lots would require an elevation certificate and flood insurance which would necessarily require the construction to comply with the FEMA regulations. See 12 C.F.R. §§ 339.2-.3, 760.2-.3 (prohibiting an FDIC-supervised institution or credit union from making a loan secured by a building located or to be located in a special flood hazard area unless the property securing the loan is covered by flood insurance). Huber further admitted if Guadalupe County had not passed the Order adopting FEMA’s revised maps, neither flood insurance nor financing would be available for homes built on the lots. See 44 C.F.R. 60.1(a) (prohibiting flood insurance to be sold or renewed in a community that has not adopted adequate flood plain management regulations consistent with federal criteria). Accordingly, we hold the summary judgment evidence conclusively established as a matter of law that Guadalupe County’s inclusion of the provisions in the Order which form the basis of Woodlake Partners’ inverse condemnation claim did not cause Woodlake Partners any damages because Woodlake Partners would be required to comply with those same provisions to develop the lots based on the federal regulations.
5 See Responsible
5 Guadalupe County also argues it conclusively negated the causation element of Woodlake Partners’ claim because the Declaration of Covenants, Conditions, Easements and Restrictions affecting the lots also requires “[a]ll residences, garages, or any structures built upon any lot which is located in whole or part in a flood plain [to be] constructed in accordance with the [federal] guidelines” or regulations. We agree with Woodlake Partners that Guadalupe County did not raise the Declaration as a ground for negating causation in its motion for summary judgment. See TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”); Nail v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (noting “court of appeals cannot ‘read between the lines’ or infer from the pleadings any grounds for granting the summary judgment other than those grounds expressly set forth before the trial court”); City of Houston v. Clear Creek Basin Auth., 589
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Citizens in Opposition to the Flood Plain Ordinance v. City of Asheville, 302 S.E.2d 204, 211 (N.C. 1983) (holding community’s enactment or adoption of flood plain regulations or ordinance in order for federal flood insurance to be available does not constitute a taking and noting decision is in accord with decisions in several other states) (citing Turnpike Realty Co. v. Town of Dedham, 362 Mass. 221, 284 N.E.2d 891 (1972); Cappture Realty Corp. v. Bd. of Adjustment of Elmwood Park, 126 N.J.Super. 200, 313 A.2d 624 (1973), aff’d, 133 N.J.Super. 216, 336 A.2d 30 (1975); Dur-Bar Realty Co. v. City of Utica, 57 A.D.2d 51, 394 N.Y.S.2d 913 (1977), aff’d, 44 N.Y.2d 1002, 380 N.E.2d 328, 408 N.Y.S.2d 502 (1978); Maple Leaf Inv’rs, Inc. v. State of Wash., 88 Wash.2d 726, 565 P.2d 1162 (1977)); see also Adolph v. Fed. Emergency Mgmt. Agency of the U.S., 854 F.2d 732, 736-38 (5th Cir. 1988) (holding FEMA regulations implementing National Flood Insurance Program do not result in a taking and noting almost uniform rejection of takings claim where state flood-management authorities are sued on allegations that their building restrictions, which were adopted for purposes of participating in the NFIP, constituted takings). Therefore, we reverse the trial court’s order and render judgment granting Guadalupe County’s traditional motion for summary judgment and dismissing Woodlake Partners’ inverse condemnation claim for lack of subject matter jurisdiction.

Outcome: Because the summary judgment evidence negates the causation element of Woodlake Partners’ takings claim as a matter of law, the trial court’s order denying Guadalupe County’s motion for summary judgment is reversed, and judgment is rendered granting Guadalupe County’s motion for summary judgment and dismissing Woodlake Partners’ inverse condemnation claim.

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