The Texas 14th Court of Appeals has sided with the SJRA and against 85 plaintiffs who sued the SJRA for flooding their homes during Hurricane Harvey. This particular group of plaintiffs claimed that the Lake Conroe release resulted in the government unconstitutionally “taking” their property. However, the appeals court found that:
The case should be dismissed with prejudice for lack of subject-matter jurisdiction based on governmental immunity.
Expert Witness Went Unchallenged
The SJRA hired a hydrologist to produce a computer model showing what would have happened to the homes in question if no water had been released from the Lake Conroe dam. The model showed that the homes would have flooded from Spring and Cypress Creeks. The plaintiffs’ attorney did not challenge the SJRA’s expert witness. That meant the evidence was “undisputed” as a matter of law.
Summary of Findings
The appeals court stated in its conclusion, “We reverse the trial court’s order and render judgment dismissing with prejudice (1) all takings claims asserted by the Gonzalez Parties, (2) the Gonzalez Parties’ purported claims against the Authority for grossly negligent maintenance and operation of the Lake Conroe Dam; and (3) all nuisance claims asserted by the Gonzalez Parties.” (Such group lawsuits are typically named after the first party listed in the suit.)
Justice Randy Wilson signed the opinion for Chief Justice Christopher, Justice Zimmerer and himself.
Although one lawyer I talked to opined that the plaintiffs might appeal to the Texas Supreme Court, “dismissal with prejudice” bars the them from refiling the case in the same court.
What Ruling Means for Similar Cases
This may be a failure of the attorneys for the homeowners, but it is still a “win” for the SJRA. Several other groups of lawsuits in Kingwood and Atascocita are still undecided. The question now is, “How will this decision affect those?”
It may and it may not. Page 8 of the appellate opinion states that, “…the Authority asserts that it is physically impossible that any of the molecules of water released from Lake Conroe during Harvey would have reached any of the Gonzalez Parties’ homes because: (1) the Gonzalez Parties live several miles up two different streams––Cypress Creek and Spring Creek; and (2) to reach the Gonzalez Parties’ homes, water from Lake Conroe would have had to flow 41 miles south to its juncture with these creeks, and then several miles upstream against massive flooding coming the other way.”
However, the parties in Kingwood and Atascocita live directly in the path of water released from Lake Conroe. That’s a substantial difference. The SJRA cannot credibly claim that no water from Lake Conroe reached their homes. The decision in these other cases will more likely hinge on whether the increase in flow flooded homes that would otherwise not have flooded.
Decision in Gonzalez Case Contradicts Experience in Other Cases
One Kingwood homeowner I talked to typifies many others. He said, “Frankly that [appellate] conclusion contradicts what I witnessed. I survived the Harvey rain; my home didn’t flood until the release occurred.”
The SJRA cases are hard to follow because there are so many. But at least three (Medina, Burney and Argento) have been consolidated. Those cases already won an interlocutory appeal to the Supreme Court on the SJRA’s motion to dismiss based on governmental immunity.
In an interlocutory appeal, a ruling by a trial court is appealed while other aspects of the case are still proceeding.
Posted by Bob Rehak on 10/24/22with thanks to Steven Selbe, Senior Counsel with Gordon Rees Scully Mansukhani for the heads up on Gonzalez decision
1882 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2022/10/Screen-Shot-2022-10-24-at-1.21.53-PM.png?fit=1528%2C1040&ssl=110401528adminadmin2022-10-24 13:27:552022-10-24 19:25:26One Set of SJRA Harvey Lawsuits Dismissed With Prejudice
Because the Laurel Springs RV Resort was grandfathered under old drainage regulations, it got away with building a detention pond that was half the size required by current regulations.
But assuming the developers were just shrewd businessmen who legally and successfully exploited the system, did they follow the rest of the rules? Let’s look at two other things.
The percentage of impervious cover on the site
How the number of parking spots increased 25% without the impervious cover increasing.
Laurel Springs RV Resort as of 10/22/22. The contractor still has one more “pour” to complete the concrete in the far upper right of the image.
Were Impervious Cover Calculations Correct?
Detention-pond volume calculations begin with impervious cover (i.e., land covered by concrete plus the entire detention pond area). See below.
The total site covers 20.032 acres. The proposed impervious portion, they claim, covers 13.349 acres. That works out to 66.6%. So one third of the site should be grass, trees and other vegetation. But since the entire 5-acre detention pond counts as impervious, mathematically, the remainder of the site can have no more than about 60% concrete and still comply with the percentage they promised.
But just eyeballing that trapezoidal area in the photo above, it seems much more than 60% is covered with concrete.
If my eyeball assessment is correct, then the detention pond is even more undersized than I initially thought because the percentage of impervious cover has increased and with it the amount of runoff.
I wish the developer would show us the basis for those calculations.
Plans Show Increase in Density With No Increase In Impervious Cover
The developer’s permit allows 182 RV spaces, but the plans show 226 – about a 24% increase. However, the impervious cover shown on the plans before and after the permit approval didnot change. That could also affect detention pond capacity requirements. And explain why the percentage of concrete appears higher than they claim.
Why Underestimate Impervious Cover?
Why would a developer underestimate the amount of impervious cover? Two reasons:
It would make the detention pond smaller and thus allow the remaining property to produce more income.
I’m not alleging they did anything illegal. I’m just saying that much more than 60% of that trapezoid in the photo above appears to be concrete and I sure would like to see how they arrived at their figures. I requested the drainage analysis twice and never got it. That should tell you something.
Posted by Bob Rehak on 10/23/22
1881 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
In January of this year, when they kicked off construction at the Preserve at Woodridge, I posted about the Montgomery County development claiming 65% impervious cover. It’s time to get out the ruler. See pictures below taken on 10/22/22.
Looking SE across Woodridge Parkway toward Kingwood Park High School out of frame at the top.
I felt at the time that the 65% claim didn’t pass eyeball test. I feel even more strongly about that now.
The Preserve at Woodridge will boast 131 homelets on about 10 acres. Looking west toward St. Martha Catholic Church.Some are just 4 feet apart. The wider row at the top will be divided into backyards.
The walkway going left to right through the bottom of the frame will be people’s front yards. Not quite southern mansions. But there’s plenty of room for a daffodil and a fire hose.
How Impervious Cover Can Contribute to Flooding
The higher the percentage of impervious cover, the less stormwater soaks into the ground. It runs off faster. And without sufficient detention pond capacity, flood peaks build higher.
That’s why I’m so concerned about the accuracy of the 65% estimate. The capacity of their detention pond was configured based on one third grass.
The lack of green space upstream is a growing issue downstream. Our drainage systems never anticipated this kind of density.
Areas with high rates of impervious cover, as determined by Descartes Labs.Black dots represent growth of impervious cover. Note the ring around Houston.
To put 65% impervious cover in perspective (assuming the developer’s estimate is accurate), nationwide only about 4.4% of the land in the U.S. has more than 40%. And usually only shopping malls and high-density apartment complexes have more than 65%.
Current drainage capacity rarely anticipates development like this. That’s why so much of Houston’s drainage infrastructure struggles to function properly in heavy rains. It’s also why in 2010, the City of Houston instituted a drainage fee based on the percentage of impervious cover. The purpose: to raise money to repair/upgrade antiquated drainage systems taxed by overdevelopment and to encourage developers to leave more green space.
Close inspection of this site shows that the developer did leave leave one row of pet-friendly trees along the northern side.
Somebody screwed up. They could have squeezed another row of homes in there.
Posted by Bob Rehak on 10/22/22
1880 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2022/10/20221022-DJI_0961.jpg?fit=1200%2C799&ssl=17991200adminadmin2022-10-22 16:45:342022-10-22 16:59:0165% Impervious Cover? Get Out the Ruler!
One Set of SJRA Harvey Lawsuits Dismissed With Prejudice
The Texas 14th Court of Appeals has sided with the SJRA and against 85 plaintiffs who sued the SJRA for flooding their homes during Hurricane Harvey. This particular group of plaintiffs claimed that the Lake Conroe release resulted in the government unconstitutionally “taking” their property. However, the appeals court found that:
Expert Witness Went Unchallenged
The SJRA hired a hydrologist to produce a computer model showing what would have happened to the homes in question if no water had been released from the Lake Conroe dam. The model showed that the homes would have flooded from Spring and Cypress Creeks. The plaintiffs’ attorney did not challenge the SJRA’s expert witness. That meant the evidence was “undisputed” as a matter of law.
Summary of Findings
The appeals court stated in its conclusion, “We reverse the trial court’s order and render judgment dismissing with prejudice (1) all takings claims asserted by the Gonzalez Parties, (2) the Gonzalez Parties’ purported claims against the Authority for grossly negligent maintenance and operation of the Lake Conroe Dam; and (3) all nuisance claims asserted by the Gonzalez Parties.” (Such group lawsuits are typically named after the first party listed in the suit.)
Justice Randy Wilson signed the opinion for Chief Justice Christopher, Justice Zimmerer and himself.
Although one lawyer I talked to opined that the plaintiffs might appeal to the Texas Supreme Court, “dismissal with prejudice” bars the them from refiling the case in the same court.
What Ruling Means for Similar Cases
This may be a failure of the attorneys for the homeowners, but it is still a “win” for the SJRA. Several other groups of lawsuits in Kingwood and Atascocita are still undecided. The question now is, “How will this decision affect those?”
It may and it may not. Page 8 of the appellate opinion states that, “…the Authority asserts that it is physically impossible that any of the molecules of water released from Lake Conroe during Harvey would have reached any of the Gonzalez Parties’ homes because: (1) the Gonzalez Parties live several miles up two different streams––Cypress Creek and Spring Creek; and (2) to reach the Gonzalez Parties’ homes, water from Lake Conroe would have had to flow 41 miles south to its juncture with these creeks, and then several miles upstream against massive flooding coming the other way.”
However, the parties in Kingwood and Atascocita live directly in the path of water released from Lake Conroe. That’s a substantial difference. The SJRA cannot credibly claim that no water from Lake Conroe reached their homes. The decision in these other cases will more likely hinge on whether the increase in flow flooded homes that would otherwise not have flooded.
Decision in Gonzalez Case Contradicts Experience in Other Cases
One Kingwood homeowner I talked to typifies many others. He said, “Frankly that [appellate] conclusion contradicts what I witnessed. I survived the Harvey rain; my home didn’t flood until the release occurred.”
The SJRA cases are hard to follow because there are so many. But at least three (Medina, Burney and Argento) have been consolidated. Those cases already won an interlocutory appeal to the Supreme Court on the SJRA’s motion to dismiss based on governmental immunity.
In an interlocutory appeal, a ruling by a trial court is appealed while other aspects of the case are still proceeding.
The Supreme Court denied the River Authority’s motion to dismiss those cases. They are still undecided.
For more information, see the:
Posted by Bob Rehak on 10/24/22 with thanks to Steven Selbe, Senior Counsel with Gordon Rees Scully Mansukhani for the heads up on Gonzalez decision
1882 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
66% Impervious Cover? Really?
Because the Laurel Springs RV Resort was grandfathered under old drainage regulations, it got away with building a detention pond that was half the size required by current regulations.
But assuming the developers were just shrewd businessmen who legally and successfully exploited the system, did they follow the rest of the rules? Let’s look at two other things.
Were Impervious Cover Calculations Correct?
Detention-pond volume calculations begin with impervious cover (i.e., land covered by concrete plus the entire detention pond area). See below.
The total site covers 20.032 acres. The proposed impervious portion, they claim, covers 13.349 acres. That works out to 66.6%. So one third of the site should be grass, trees and other vegetation. But since the entire 5-acre detention pond counts as impervious, mathematically, the remainder of the site can have no more than about 60% concrete and still comply with the percentage they promised.
But just eyeballing that trapezoidal area in the photo above, it seems much more than 60% is covered with concrete.
If my eyeball assessment is correct, then the detention pond is even more undersized than I initially thought because the percentage of impervious cover has increased and with it the amount of runoff.
I wish the developer would show us the basis for those calculations.
Plans Show Increase in Density With No Increase In Impervious Cover
The developer’s permit allows 182 RV spaces, but the plans show 226 – about a 24% increase. However, the impervious cover shown on the plans before and after the permit approval did not change. That could also affect detention pond capacity requirements. And explain why the percentage of concrete appears higher than they claim.
Why Underestimate Impervious Cover?
Why would a developer underestimate the amount of impervious cover? Two reasons:
I’m not alleging they did anything illegal. I’m just saying that much more than 60% of that trapezoid in the photo above appears to be concrete and I sure would like to see how they arrived at their figures. I requested the drainage analysis twice and never got it. That should tell you something.
Posted by Bob Rehak on 10/23/22
1881 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
65% Impervious Cover? Get Out the Ruler!
In January of this year, when they kicked off construction at the Preserve at Woodridge, I posted about the Montgomery County development claiming 65% impervious cover. It’s time to get out the ruler. See pictures below taken on 10/22/22.
I felt at the time that the 65% claim didn’t pass eyeball test. I feel even more strongly about that now.
The walkway going left to right through the bottom of the frame will be people’s front yards. Not quite southern mansions. But there’s plenty of room for a daffodil and a fire hose.
How Impervious Cover Can Contribute to Flooding
The higher the percentage of impervious cover, the less stormwater soaks into the ground. It runs off faster. And without sufficient detention pond capacity, flood peaks build higher.
That’s why I’m so concerned about the accuracy of the 65% estimate. The capacity of their detention pond was configured based on one third grass.
The lack of green space upstream is a growing issue downstream. Our drainage systems never anticipated this kind of density.
And don’t forget, this development also based its drainage calculations on pre-Atlas 14 rainfall rates.
Growth of Impervious Cover
USGS says one third of Harris County is now impervious cover. With more developments like this, the southern part of Montgomery County could one day surpass Harris County!
In December, the New York Times published a story about a company called Descartes Labs, which had trained computers to scan satellite images to detect changes in impervious cover. Descartes found that Texas had 9 of the top 20 counties in the U.S. when ranked by the growth of impervious cover.
To put 65% impervious cover in perspective (assuming the developer’s estimate is accurate), nationwide only about 4.4% of the land in the U.S. has more than 40%. And usually only shopping malls and high-density apartment complexes have more than 65%.
Current drainage capacity rarely anticipates development like this. That’s why so much of Houston’s drainage infrastructure struggles to function properly in heavy rains. It’s also why in 2010, the City of Houston instituted a drainage fee based on the percentage of impervious cover. The purpose: to raise money to repair/upgrade antiquated drainage systems taxed by overdevelopment and to encourage developers to leave more green space.
Close inspection of this site shows that the developer did leave leave one row of pet-friendly trees along the northern side.
Posted by Bob Rehak on 10/22/22
1880 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.