      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00189-CV



                                  The City of Austin, Appellant

                                                 v.

                  GHI Investments, LLC f/k/a GHI Partners, LLC, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
       NO. D-1-GN-11-002658, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In this interlocutory appeal, the City of Austin challenges the trial court’s denial of

its plea to the jurisdiction as to the claims for inverse condemnation and nuisance of GHI

Investments, LLC f/k/a GHI Partners, LLC. GHI brought suit alleging that the City inversely

condemned its property when it approved drainage designs that did not comply with its Design

Criteria Manual (DCM) as part of two separate project site plans—a road widening and bike lane

project on Pleasant Valley Road (the PV Project) and an HEB grocery store project (the HEB

Project)—that resulted in flooding on GHI’s property, constituting a taking.1 In its plea to the

jurisdiction, the City argued that GHI’s pleadings did not support claims for inverse condemnation




       1
          GHI asserted other claims against the City and claims against other parties that are not at
issue in this appeal.
and nuisance and the City therefore retained its governmental immunity. For the reasons that follow,

we affirm the trial court’s order.


                                     FACTUAL BACKGROUND

                GHI owns property in the City of Austin on the west side of Pleasant Valley Road

adjacent to and downstream from an HEB grocery store. It appears to be undisputed that for some

time there had been drainage problems in the area, causing water to pool on a recurrent basis and

requiring street closures on nearby Elmont Drive, downstream from GHI’s property.                     In

approximately 2001, the City initiated the PV Project, a public works project for improvements to

Pleasant Valley Road adjacent to GHI’s property, including widening the road, adding a bike lane,

and modifying the drainage system. An engineer assigned to the PV Project, Mitchell Stein,

expressed concerns about the project, stating in emails that he may be “forced” to design

improvements that are “recognized as not being in complete compliance with City standards.” He

called the project a “‘band-aid’ solution” that was “chosen as a way to get collected water off the

roadway soon after a rainfall . . . which is in contrast to the existing situation in which water will

stand in Elmont for days after moderately heavy rainfall” but was “recognized by all involved as

being inadequate to solve the drainage problems in the area.” He warned that the plan “changes the

drainage pattern,” decreases the conveyance of water across Pleasant Valley Road, and “may even

make the ponding situation on the west side of Pleasant Valley worse,” and he suggested a modified

plan that would not make the situation worse.2


        2
         Stein initially explained that the plan called for replacing five existing 24 inch culverts that
crossed Elmont Drive with “a single 24" RCP and a 2' x 4' culvert crossing P[leasant] V[alley],”

                                                   2
                Stein observed that a “large natural area” on the east side of Pleasant Valley Road that

served as a “default detention area” would be eliminated by the drainage plan and “one of the intents

of the ‘band-aid solution’ was to provide a means for collected water to drain off the road . . . so the

hope was that, even if water is not allowed to flow to the ‘default detention area’ on the east side of

PV, at least it may be collected and drained quickly enough from the west side of PV so that the

adjacent property owners won’t be affected any more than they currently are affected during a rain

event.” (Ellipsis in original.) A little more than a year after Stein first expressed his concerns, he

emailed an “Update of Analysis of Drainage Needs at PV and Elmont,” questioning how he could

“demonstrate conveyance” of water for the PV Project in a system that could not even convey the

existing water. He noted that the existing system did not convey existing water, that he could not

demonstrate conveyance for the proposed system, and that “[s]uch a condition would arise on the

west side of PV, in the culverts under Elmont.”3 A separate internal City email exchange indicates


resulting in a reduction in conveyance across Pleasant Valley Road from 15.7 sf to 11.14 sf. He also
observed that “in most cases, an increase in conveyance is sought, and not the decrease shown by
these numbers” and stated that if the five culverts were not removed, the situation would not be made
worse. In subsequent emails, he further explained that grade restrictions and the presence of existing
culverts precluded the use of a 24 inch RCP to cross Pleasant Valley Road, as originally planned,
and that an 18 inch RCP would be used instead. These restrictions also required that the “laterals
from the two proposed inlets” that were to connect to a manhole from which the water then would
feed into the 18 inch RCP would have to be 15 inch instead of the “City desired minimum of 18",”
requiring a waiver from the City’s DCM. In another email, Stein addressed what appears to be a
second waiver for “declaration of no need for detention.” He explained that the PV Project is a
“bond funded rehabilitation project,” the type of project that is usually approved under a “General
Permit” instead of a “full permit,” but that a waiver may be necessary for the PV Project to go
forward under a “General Permit” because, in contrast to most rehabilitation projects that do not
add much impervious cover, the PV Project would add an additional 30,000 square feet of
impervious cover.
       3
         Stein explained that the “2 18" RCPs can only handle about 19 cfs before overtopping the
edge of the road. Yet [water] being sent to them, even under only [sic] existing conditions, is

                                                   3
that the HEB area was “causing most of the runoff.” The email indicates that a planned increased

“time of concentration” on the HEB site was “expect[ed to] reduce the flows and thus stay within

the downstream channels,” but an assessment of the final impact was yet to be made. Apparently,

the City proceeded with the drainage plan without resolving Stein’s concerns and completed the PV

Project in 2006.

               At some time in approximately 2008, the City approved an extension of a

previously-approved site plan for redevelopment of an HEB grocery store, including construction

of “an approximately 112,750 square foot HEB discount superstore, 3,900 square foot Burger King

restaurant, HEB fuel station, and the associated demolition, landscape, drainage, utility, parking, and

driveway improvements.” The engineer’s letter requesting the extension stated that “the discharge

from the site at the northeast corner after redevelopment shall not exceed the existing runoff

discharged from the site under existing conditions.” The letter also indicated a “proposed detention

pond [that would] provide more detention volume.” According to GHI’s engineer, modifications

were made to the site plan, but there are no as-built drawings to reflect those changes. Although the

PV and HEB Projects were separate projects, conducted at different times, City emails dated late

2005 indicated that the scope of the PV Project had changed and that the portion of the widening of

Pleasant Valley Road in front of the HEB, which consisted of a center turn lane, was to be done as



approximately 91 cfs. So there is NO DEMONSTRATED CONVEYANCE of the increase in
[water] from the bike lanes. As I see it, what this means is that CONVEYANCE CAN NOT BE
DEMONSTRATED WITHOUT HAVING A SYSTEM THAT CONVEYS THE FULLY
DEVELOPED [WATER] ADEQUATELY.” (Emphasis in original.) He concluded that for the
facilities to handle the proposed water plus the existing water, the culverts under Elmont and the
culverts under the driveways on Elmont would have to be upgraded sufficiently to convey the water
and demonstrate conveyance.

                                                  4
part of the HEB Project instead of as part of the PV Project, as originally planned. The HEB Project

was completed in approximately 2009.


                               PROCEDURAL BACKGROUND

               In 2011, GHI filed suit claiming that its property has been repeatedly flooded and

rendered useless since January 2010 and asserting claims for inverse condemnation and nuisance.

GHI alleged that the City had approved an incorrect drainage analysis in connection with the HEB

Project, resulting in a deficient detention pond. GHI further alleged that the PV Project reduced

drainage capacity along Pleasant Valley Road, including the reduction of the drainage ditch. GHI

contended that these actions resulted in diversion of water onto GHI’s property, causing damage that

the City knew was substantially certain to result, thus constituting a taking without adequate

compensation and a nuisance. The City filed a plea to the jurisdiction challenging GHI’s pleadings

and contending that the allegations in the petition concerning the HEB Project “completely negat[ed]

that the City intended in any way for the Property to be flooded” and demonstrated, at most, that the

City negligently relied on an analysis provided to it. The City further argued that because the HEB

Project was not a public use, GHI had failed to allege that the taking was for public use. Thus, the

City argued, the trial court lacked jurisdiction to entertain GHI’s claims regarding the HEB Project.

Regarding the PV Project, the City challenged that there had been a taking, claiming that GHI had

not alleged that the City had taken action “directly to” GHI’s land, but had only complained

of actions around its land, nor had GHI alleged unreasonable interference such as blocking

access or denial of a permit. Therefore, the City contended, GHI had not properly pleaded an




                                                 5
inverse condemnation or nuisance claim and had not established a waiver of the City’s

governmental immunity.4

                Before the hearing on the City’s plea to the jurisdiction, GHI filed a second amended

petition,5 in which it alleged that the City approved both projects contrary to its DCM; that the

approval of the HEB Project resulted in increased flows upstream from GHI’s property and increased

roadway impervious cover and runoff, imposing a water detention on GHI’s property for the benefit

of the downstream public and resulting in its property being repeatedly flooded and rendered useless

since January 2010; that the approval of the PV Project resulted in increased impervious cover and

runoff and diminished the carrying capacity of the west-side ditch on Pleasant Valley Road, resulting

in flooding GHI’s property, substantially interfering with GHI’s use of the property, and causing

damage; and that the City was aware or substantially certain that its actions would result in

downstream flooding, substantially interfere with GHI’s use of its property, and damage GHI’s

property. Concurrently with its second amended petition, GHI filed a response to the City’s plea to

the jurisdiction. Attached as evidence to GHI’s response were an engineer’s affidavit, internal

emails among City staff, HEB’s request for site plan extension, and emails between the City and

HEB representatives. GHI contended that the City emails warning of inadequate drainage on

Pleasant Valley Road and the impact increased flows would have on the west-side property owners

established that in approving and permitting the projects, the City acted with the knowledge of

       4
          As discussed more fully below, nuisance is an alternative ground of recovery under the
takings clause, and an exception to governmental immunity may apply if it is interrelated with a
takings claim. See Texas Dep’t of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 733 (Tex.
App.—Austin 1999, no pet.).
       5
           The appellate record does not contain a first amended petition.

                                                  6
obvious risk of flooding to GHI’s property. GHI also argued that the City took GHI’s property to

relieve downstream property from flooding, which is a public use. Finally, GHI argued that it was

not required to prove the merits of the alleged taking as long as it had properly asserted the elements

of a takings claim.

               At the hearing on the City’s plea to the jurisdiction, the City agreed to rely on its

“Plea to the Jurisdiction with Respect to Plaintiff’s First Amended Original Petition” even though

GHI filed its seconded amended petition after the City filed its plea to the jurisdiction. The trial

court found that GHI had already amended its petition in response to the City’s assertions of

immunity such that no further amendment was necessary, granted the City’s plea in part, and denied

the plea as to GHI’s takings and nuisance claims. This appeal followed.


                      STANDARD OF REVIEW AND APPLICABLE LAW


Standard of Review

               A plea to the jurisdiction challenges the court’s authority to decide a case. Heckman

v. Williamson Cnty., 369 S.W.3d 137, 149 (Tex. 2012). A plea questioning the trial court’s subject

matter jurisdiction raises a question of law that we review de novo. Westbrook v. Penley,

231 S.W.3d 389, 394 (Tex. 2007). “When reviewing a trial court’s ruling on a challenge to its

jurisdiction, we consider the plaintiff’s pleadings and factual assertions, as well as any evidence in

the record that is relevant to the jurisdictional issue.” City of Elsa v. Gonzales, 325 S.W.3d 622, 625

(Tex. 2010) (per curiam) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)).

When, as here, a plea to the jurisdiction challenges the pleadings, we must determine if the pleader



                                                  7
has alleged sufficient facts to affirmatively demonstrate the trial court’s jurisdiction to hear the cause.

City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009); Texas Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Creedmoor-Maha Water Supply Corp. v. Texas

Comm’n on Envtl. Quality, 307 S.W.3d 505, 512 (Tex. App.—Austin 2010, no pet.) (“The plaintiff

has the initial burden of alleging facts that demonstrate the trial court’s jurisdiction to hear

the cause.”).

                To make this determination, we look to the pleader’s intent, construe the pleadings

liberally in favor of jurisdiction, and accept the allegations in the pleadings as true. Westbrook,

231 S.W.3d at 405; Miranda, 133 S.W.3d at 226. If the pleadings affirmatively negate the existence

of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an

opportunity to amend. Miranda, 133 S.W.3d at 227. When the pleadings do not allege sufficient

facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate

an incurable jurisdictional defect, the issue is one of pleading sufficiency, and the plaintiff should

be given an opportunity to amend. Id. 133 S.W.3d at 226–27. In determining a plea to the

jurisdiction, the trial court may consider any evidence the parties have submitted and must do so

when necessary to resolve the jurisdictional inquiry. Bland Indep. Sch. Dist., 34 S.W.3d at 555. If

the relevant evidence is undisputed or fails to raise a fact question, the trial court should rule on the

plea as a matter of law. City of Elsa, 325 S.W.3d at 626; Miranda, 133 S.W.3d at 228.


Governmental Immunity and the Takings Clause

                Governmental immunity deprives a trial court of subject matter jurisdiction in suits

against a political subdivision of the state, including cities when they are performing govenmental

                                                    8
functions, unless the political subdivision consents to suit, and therefore is properly asserted in a

plea to the jurisdiction. Rolling Plains Groundwater Conservation Dist. v. City of Aspermont,

353 S.W.3d 756, 759 n.4 (Tex. 2011) (per curiam); Miranda, 133 S.W.3d at 224, 225–26. There

is a clear and unambiguous limited waiver of immunity for valid claims under article I, section 17

of the Texas Constitution, the “takings clause,” which provides that “[n]o person’s property shall be

taken, damaged or destroyed for or applied to public use without adequate compensation being made

. . . .” Tex. Const. art. I, § 17; Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980); City of

Midlothian v. Black, 271 S.W.3d 791, 799 (Tex. App.—Waco 2008, no pet.). If the government

appropriates property without paying adequate compensation, the owner may bring an inverse

condemnation claim to recover the resulting damages. Westgate, Ltd. v. State, 843 S.W.2d 448, 452

(Tex. 1992).

                To plead a valid inverse condemnation claim and establish waiver of immunity under

the takings clause, a plaintiff must allege that the governmental agency (1) intentionally performed

certain acts in the exercise of its lawful authority (2) that resulted in taking, damaging, or destroying

the plaintiff’s property (3) for public use. General Servs. Comm’n v. Little–Tex Insulation Co.,

39 S.W.3d 591, 598 (Tex. 2001); Steele, 603 S.W.2d at 791. The intent element may be met by a

showing that the governmental entity “(1) knows that a specific act is causing identifiable harm; or

(2) knows that the specific property damage was substantially certain to result from an authorized

government action—that is, that the damage is ‘necessarily an incident to, or necessarily a

consequential result of’ the government’s action.” City of Dallas v. Jennings, 142 S.W.3d 310, 314

(Tex. 2004) (quoting Texas Hwy. Dep’t v. Weber, 219 S.W.2d 70, 71 (Tex. 1949)). “There is



                                                   9
no concrete rule for determining whether a use is a public use; each case is usually decided

upon the basis of its own facts and the surrounding circumstances.” Whittington v. City of Austin,

174 S.W.3d 889, 897 n.3 (Tex. App.—Austin 2005, pet. denied) (citing Coastal States Gas Prod.

Co. v. Pate, 309 S.W.2d 828, 833 (Tex. 1958)). Generally, judicial decisions have narrowed the

meaning of the term to situations in which the damages are incident to public works. Steele,

603 S.W.2d at 790. Texas courts have found public use when the public is “‘entitled to share

indiscriminately in the proposed use as a matter of right.’” Whittington, 174 S.W.3d at 897 n.3

(quoting Daniel B. Benbow, Public Use as a Limitation of the Power of Eminent Domain in Texas,

44 Tex. L. Rev. 1499, 1500 n.8 (1966)). Thus, public use occurs when “‘there results to the public

some definite right or use in the business or undertaking to which the property is devoted.’” Pate,

309 S.W.2d at 833; Dyer v. Texas Elec. Serv. Co., 680 S.W.2d 883, 885 (Tex. App.—El Paso 1984,

writ ref’d n.r.e.). Whether particular facts constitute a taking is a question of law. Little-Tex,

39 S.W.3d at 598 (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 936 (Tex. 1998)).

               A claim for nuisance is an alternative ground of recovery under article I, section 17

and is also an exception to sovereign immunity if it rises to the level of a constitutional taking.

Jennings, 142 S.W.3d at 311; City of Abilene v. Downs, 367 S.W.2d 153, 159 (Tex. 1963); Texas

Dep’t of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 733 (Tex. App.—Austin 1999, no pet.).

When, as here, a nuisance claim is interrelated with or in the nature of a takings claim, the elements

of the inverse condemnation and nuisance claims are the same, and a valid claim for inverse

condemnation under the takings clause also establishes a valid interrelated nuisance claim. See City

of Sunset Valley, 8 S.W.3d at 732–33 (waiver of immunity for inverse condemnation claim under



                                                 10
article I, section 17 also waived immunity for nuisance claim); cf. Jennings, 142 S.W.3d at 311, 316

(where plaintiff failed to establish requisite intent for waiver of sovereign immunity as to takings

claim and asserted no other basis for waiver of immunity as to nuisance claim, city was also immune

from nuisance claim); Foster v. Denton Indep. Sch. Dist., 73 S.W.3d 454, 460–61 (Tex. App.—Fort

Worth 2002, no pet.) (claim for simple nuisance not interrelated with takings claim did not fall

within exception to sovereign immunity).


                                           DISCUSSION

Intent

               In its first issue, the City argues that GHI has not met the intent element of its takings

claim.6 In its plea to the jurisdiction, the City argued that GHI had not stated a valid takings claim

because its pleadings showed negligence at most and negated intent on the part of the City. In its

second amended petition, GHI alleged that the City’s approval of the PV and HEB Projects caused

repeated flooding of GHI’s property, imposing a water detention for the benefit of the downstream

public and interfering with GHI’s use of the property, and that the City was aware or substantially

certain that its actions would cause these results. Construing the pleadings liberally in favor of

jurisdiction, looking to GHI’s intent, and accepting the allegations in the pleadings as true, see

Westbrook, 231 S.W.3d at 405; Miranda, 133 S.W.3d at 226, we conclude that GHI’s pleadings

do not complain of the City’s negligence or omissions but, instead, assert the essential intent




         6
          Because the parties agree that GHI’s nuisance claim is interrelated with its inverse
condemnation claim under article I, section 17, we address both claims as GHI’s takings claim, as
do the parties. See City of Sunset Valley, 8 S.W.3d at 733.

                                                  11
element necessary to state a facially valid takings claim. See Tarrant Reg’l Water Dist. v. Gragg,

151 S.W.3d 546, 555–56 (Tex. 2004) (evidence that damage from increased flooding was inevitable

result of district’s construction of reservoir and its operation as intended sufficient to support trial

court’s finding of taking even though plaintiff offered some evidence of careless operation by

district); Jennings, 142 S.W.3d at 314; Little-Tex, 39 S.W.3d at 598; cf. City of El Paso v. Ramirez,

349 S.W.3d 181, 187 (Tex. App.—El Paso 2011, no pet.) (pleadings alleging omissions by city did

not state claim for inverse condemnation because governmental entity’s failure to act cannot rise to

level of taking); City of Midlothian, 271 S.W.3d at 800 (petition containing no allegation that city

knew damage was substantially certain to occur failed to plead valid inverse condemnation claim);

Bell v. City of Dallas, 146 S.W.3d 819, 825 (Tex. App.—Dallas 2004, no pet.) (pleadings containing

only allegations that damage was caused by negligent omissions and no allegations that city

intentionally performed acts affirmatively negated takings claim); City of Del Rio v. Felton,

No. 04-06-00091-CV, 2007 Tex. App. LEXIS 660, at *25–26 (Tex. App.—San Antonio

Jan. 31, 2007, no pet.) (mem. op.) (allegation that city had notice of water damage to building on

opposite side of park from plaintiff’s property failed to state facially valid takings claim as to water

damage to plaintiff’s structure); Evatt v. Texas Dep’t of Transp., No. 11-05-00031-CV, 2006 Tex.

App. LEXIS 4268, at *12 (Tex. App.—Eastland May 18, 2006, pet. denied) (mem. op.)

(homeowners who did not allege department either knew or was substantially certain their homes

would flood as result of construction methods used by department did not sufficiently allege

takings claim).




                                                  12
                On appeal, the City, which did not present any jurisdictional evidence, contends that

GHI’s evidence, presented after the City filed its plea, is insufficient to establish the requisite intent.

The City asserts that the emails of Stein, a City engineer, do not demonstrate that the City knew with

substantial certainty that its actions would result in a taking of GHI’s property. The City contends

that the emails show, at most, a difference of opinion among city staff members on DCM standards

and “on the amount of impervious surface increase on the street without corresponding drainage

upgrades.” The City also argues that GHI negated its allegation of increased flooding by presenting

evidence of preexisting drainage problems in the area and failing to present evidence of preexisting

conditions on its property.7 In short, the City does not dispute GHI’s jurisdictional evidence; it

simply argues that the evidence negates, or is insufficient to raise a fact issue as to, the element of

intent. We find this argument unpersuasive.

                GHI presented evidence showing the City was aware that inadequate conveyance of

the increase in water from the PV Project on the west side of Pleasant Valley Road, where GHI’s

property was located, “would arise” from the approved projects. Stein, who was assigned to the

project, initially warned that the PV Project altered the drainage pattern, would decrease conveyance

of water across Pleasant Valley Road, and “may even make the ponding situation on the west side

of Pleasant Valley worse” and observed that the City’s “hope” was that west-side property owners

would not be affected any more than they already were. More than a year later, after changes were

made to the drainage plan that reduced some culverts to a size below the City’s desired minimum,


        7
          The City also contends that GHI’s “real complaint” is that the City did not fix the
preexisting drainage problems, which cannot form the basis of a takings claim. As stated previously,
we do not construe GHI’s pleadings to allege negligent acts or omissions on the part of the City.

                                                    13
he predicted that a “condition would arise” on the west side of Pleasant Valley Road in which the

culverts under Elmont could not handle the conveyance of increased water from the proposed

additional impervious cover because they could not handle the conveyance of the existing water.

There is no evidence that the plan was revised to upgrade the culverts on Elmont and under the

driveways on Elmont, as Stein concluded was necessary to adequately convey water from the

proposed impervious cover being added to the existing water.

               Stein’s comments, read together, do not merely show that the City did not plan to

correct the drainage problems in the area, as the City contends, but also show the City’s awareness

that approval of the PV Project would increase impervious cover, decrease water conveyance in an

area where conveyance was already inadequate, and likely result in “ponding” on the west side

of Pleasant Valley Road where GHI’s property is located. See City of Borger v. Garcia,

290 S.W.3d 325, 330 (Tex. App.—Amarillo 2009, pet. denied) (citing Norman v. Schaen, Inc. v. City

of Dallas, 536 S.W.2d 428, 429–30 (Tex. Civ. App.—Dallas 1976, no writ)) (only duty imposed on

city in constructing drainage system is not to increase flow of surface water across appellees’

property). Despite the City’s assertion that there was a difference of opinion among city staff, the

City did not present evidence that the City disagreed with Stein regarding his predictions of

inadequate water conveyance and west-side ponding. Further, although there is evidence that steps

were being taken during the PV Project to “reduce the flow and thus stay within the downstream

channels” as to that “30+ acres” composing the HEB site, from which “most of the runoff” in the

area came, there is no evidence of the final impact of the planned corrective steps. Moreover, the

City subsequently approved the addition of a turn lane in connection with the HEB project, which



                                                14
was not part of the original HEB site plan, and there is no evidence that any corresponding steps

were taken to reduce and contain the flow for that portion of the HEB Project, which added even

more impervious cover to Pleasant Valley Road and additional water to an already inadequate

system, while further reducing the capacity of the west-side drainage ditch. See id. In fact,

according to GHI’s engineer, both projects were completed without a provision for detention systems

of increased capacity to west-side downstream conveyance.

                Nor is it dispositive that GHI presented evidence of existing flooding in the area and

did not offer evidence establishing conditions on its property prior to the projects. In its response

to the City’s plea to the jurisdiction, GHI asserted that it was undisputed that its property had

experienced increased flooding since the completion of the projects. The supreme court has held that

changes in the “character” of preexisting flooding—whether, for example, the water “‘arrived

sooner, flowed faster, and [was] more forceful, deeper, and longer-lasting’”—may form the basis of

a takings claim. See Gragg, 151 S.W.3d at 555 (quoting trial court’s findings) (brackets in original).

We believe that GHI is not required to establish the full extent of and nature and degree of any

alleged increased flooding to invoke the court’s jurisdiction. See Bland Indep. Sch. Dist., 34 S.W.3d

at 554 (plaintiffs not required to “put on their case simply to establish jurisdiction”); City of El Paso

v. Mazie’s, L.P., No. 08-11-00233-CV, 2012 Tex. App. LEXIS 10540, at *31 (Tex. App.—El Paso

Dec. 19, 2012, pet. filed) (mem. op.) (pleading of recurrence of flooding, which goes to proof of

takings claim, not required to establish jurisdiction in takings claim) (citing Doss v. City of Victoria,

No. 13-07-00306-CV, 2007 Tex. App. LEXIS 9872, at *11 (Tex. App.—Corpus Christi

Dec. 20, 2007, no pet.) (mem. op.)). We express no opinion on the merits of GHI’s claims but



                                                   15
conclude that GHI has sufficiently pleaded the intent element of a takings claim and that its evidence

raises a fact issue with regard to the City’s intent. See City of Elsa, 325 S.W.3d at 626; Jennings,

142 S.W.3d at 314; Miranda, 133 S.W.3d at 227–28. We overrule the City’s first issue.8


Public Use

                In its second issue, the City argues that GHI has insufficiently pleaded that the alleged

taking of its property was for a public use. The City contends that the HEB is not a public use and,

in the alternative, that to the extent the center turn lane portion of the HEB Project is a public use,

only that portion of the alleged flooding attributable to the turn lane could form the basis of a takings

claim. Regarding the PV Project, which the City does not dispute is a public use, the City argues that

GHI has not shown that the alleged flooding was caused by the PV Project, as opposed to the HEB

Project or preexisting conditions. We address these arguments in turn.

                Assuming without deciding that the portion of the HEB Project other than the turn

lane is not a public use, we conclude that the turn lane serves a public use. As part of a roadway

project, the turn lane is in the nature of a public work. See Brantley v. Texas Youth Comm’n,

365 S.W.3d 89, 106 (Tex. App.—Austin 2011, no pet.) (“The Constitution limits compensation to

damages for or applied to a public use, and judicial restraints have narrowed that phrase to damages

which arise out of or as an incident to some kind of public works.”) (quoting Steele, 603 S.W.2d at

789) (Internal quotations omitted.) The public may “share indiscriminately” in the use of the turn




        8
         Because we find that Stein’s emails are sufficient to raise a fact issue as to intent, we do
not reach the remainder of the City’s arguments challenging GHI’s evidence. See Tex. R. App.
P. 47.1.

                                                   16
lane “as a matter of right,” see Whittington, 174 S.W.3d at 897, and thus has “some definite right or

use in” the turn lane, see Pate, 309 S.W.2d at 833; Dyer, 680 S.W.2d at 885. Members of the public

shopping at the HEB Project site will enjoy the benefits of the safety and convenience provided by

a center turn lane. See Dyer, 680 S.W.2d at 885 (power line to serve single customer, Gulf, would

arguably benefit public by increasing oil production of Gulf). Further, it is the character of the use

that determines public use, not the extent of the use. See id. at 885 (citing Housing Auth. of City of

Dallas v. Higginbotham, 143 S.W.2d 79, 84 (Tex. 1940)). “‘It is immaterial if the use is limited to

the citizens of a local neighborhood, or that the number of citizens likely to avail themselves of it

is inconsiderable, so long as it is open to all who choose to avail themselves of it. The mere fact that

the advantage of the use inures to a particular individual or enterprise, or group thereof, will not

deprive it of its public character.’” Higginbotham, 143 S.W.2d at 84 (quoting West v. Whitehead,

238 S.W. 976, 978 (Tex. Civ. App.—San Antonio 1922, writ ref’d)). While we agree with the City

that only that portion of the HEB project attributable to a public use may form the basis of a takings

claim, we believe the degree of the flooding resulting from the turn lane is a matter of proof and need

not be shown for GHI’s pleadings to establish jurisdiction. See Bland Indep. Sch. Dist., 34 S.W.3d

at 554; Mazie’s, 2012 Tex. App. LEXIS 10540, at *31.

                Regarding the PV Project, the parties agree it is a public work project that serves a

public use and can form the basis of a takings claim. See Steele, 603 S.W.2d at 789; Brantley,

365 S.W.3d at 106. The City argues, however, that GHI has not demonstrated that the alleged

flooding is the result of the PV Project rather than the HEB Project. The City contends that since

the PV Project was completed in 2006, it is “unlikely” that the flooding GHI alleges has rendered



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its property useless “since January 2010” is attributable to the PV Project. The only evidence on

causation is the affidavit of GHI’s engineer, who stated that both projects resulted in flooding on

GHI’s property. Morever, as with the City’s argument concerning the HEB Project, the questions

of causation and what portion, if any, of the flooding is attributable to the PV Project and the turn

lane, as opposed to any non-public use portion of the HEB Project, are matters of proof for GHI to

establish in its case on the merits and are not facts that must be proven to establish jurisdiction. See

Bland Indep. Sch. Dist., 34 S.W.3d at 554; Mazie’s, 2012 Tex. App. LEXIS 10540, at *31. We

therefore conclude that GHI has sufficiently pleaded the public use element of a takings claim and

overrule the City’s second issue.


                                          CONCLUSION

               Having overruled the City’s issue, we affirm the trial court’s order.



                                               __________________________________________

                                               Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: April 30, 2013




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