Opinion issued September 5, 2013.




                                    In The

                           Court of Appeals
                                    For The

                       First District of Texas
                        ————————————
                           NO. 01-12-00640-CV
                         ———————————
  AGNES A. AARON; JIMMY L. ALBERTE AND PATRICIA ALBERTE;
     ROBERT L. ANSELMI; MIKE ARGO AND DEDE ARGO; GARY
 ARRANT; ROGER ASHTON; PATRICIA AYERS; ADAM BARR; BILLY
   BOWEN; JAMES ALLEN BROWN; ROBERT BUNKER; MICHAEL
    BURGETT; GILBERT CADE AND PORTIA CADE; JOE WILLIAM
 CANAS; CRISTORAL CARLOS AND BRIDGETTE CARLOS; MARTHA
     JOYCE CASH; DUDLEY CHAMBERS AND LINDA CHAMBERS;
 CHARLES P. CHRISTENSEN; WILLIAM S. DAVIS; JUDY DIETRICH;
DAVID FAIN AND DANIEL FAIN; SCOTT FLEMING; MELANIE FRICK;
   AUDREY GAMBLE; ALBERT A. GARCIA, JR.; LEONEL GARCIA;
   JERRY GARNDER AND GRACE GARDNER; CAROLYN GLOYNA;
     ROBERT GOEBEL; PAUL HAMILTON AND TONI HAMILTON;
      DOUGLAS W. HEINTSCHEL AND JOEL HEINTSCHEL; TOM
HENDERSON AND SHELLEY HENDERSON; ROY JAMAIL AND MARY
    JAMAIL; TODD JOHNSON AND JENNIFER JOHNSON; DARRYL
KELLER; JOHNNIE LEGGIO, JR.; ROBERT LISTA AND LINDA LISTA;
   DOUGLAS AND CYNTHIA LONGRON; MARKLE LAND CO., LLC;
MICHAEL MATHIS; DANIEL KLING MCNEILL; JONATHAN MULLINS
 AND KIMBERLY MULLINS; ND&D INTERESTS, LTD; GARY NIXON;
    ALBERT PEREZ AND ELSA PEREZ; HANA PINARD; CURTIS
    PLAGENS; SUSAN PLAUMANN; JOHN D. RENTZ; RICHARD
 ROUNDER AND CLAIRE ROUNDER; ENRIQUE SANCHEZ, JR.; JOE
SANCHEZ; GARLAND SCHOEN; JAMES SCOTT AND CAROL SCOTT;
   BRAD SINGLETARY; GLENDA SPARKS; LLOYD SPEVACK AND
DENISE SPEVACK; JIMMY SRADER; SHARON STAFFORD AND O.K.
 STAFFORD; DAVID STAMPS AND CINDY STAMPS; JOHN J. STOUT;
    DON STRONG; STEVE SZABO; VIRGINIA TELLER; HAROLD
    THOMSON AND PATRICIA THOMSON; AMADOR TREVINO;
    BEVERLY VAN ZANDT; MICHAEL VAUGHTERS AND LINDA
VAUGHTERS; FREEMAN VICKERS AND EMILY VICKERS; ROBERT
   WRIGHT AND STEPHANIE WRIGHT; OSMOND J. YOUNG; AND
             RAMONA ZURSCHMIEDE, Appellants
                                         V.
THE PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, TEXAS,
                       Appellee



             On Appeal from the County Civil Court at Law No. 4
                           Harris County, Texas
                        Trial Court Case No. 977124



                          MEMORANDUM OPINION

      In this inverse-condemnation and intentional-nuisance case, we determine

whether more than ninety property owners have a right to compensation under

article I, section 17 of the Texas Constitution for damage to their property resulting

from noise, light, and air pollution associated with the Port of Houston Authority’s

operation of a container terminal along the Bayport Ship Channel. Because the



                                          2
property owners have not established constitutionally compensable damages, we

affirm the trial court’s judgment dismissing the case.

                                    Background

      The Port of Houston is a 25-mile-long complex of diversified public and

private marine terminals, industries, and facilities. The Port Authority, a political

subdivision of the State of Texas and a navigation district, 1 is charged with

owning, operating, and developing the Port of Houston’s public marine terminals,

including the Bayport Container Terminal. The Bayport Terminal supports the Port

Authority’s handling of containerized cargo in the Gulf of Mexico, which is the

Port Authority’s core business.

      Construction of the Bayport Terminal began in 2004; presently, the Bayport

Terminal consists of at least 3320 feet of container dock and a 160-acre container

yard. Eventually, it will have the capacity to accommodate up to seven container

ships at one time with 7000 feet of container dock and 375 acres of container yard.

      As explained by the Port Authority’s Vice President of Strategic Planning,

      [t]he movement of containers into the Bayport Terminal begins when
      a vessel docks at the Bayport Terminal. The steamship line contracts
      with an independent stevedoring company, which rents wharf cranes
      from the Port Authority to offload the containers from the vessel. The

1
      See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(B) (West 2011) (defining
      “governmental unit” to mean “a political subdivision of this state, including any
      . . . navigation district”); City of Seabrook v. Port of Houston Auth., 199 S.W.3d
      403, 404−05 (Tex. App.—Houston [1st Dist.] 2006, pet. dism’d) (explaining
      constitutional authority pursuant to which Legislature created Port Authority).
                                          3
      wharf cranes are operated by employees of the stevedore company, as
      are yard trucks that move containers from the dock to the container
      stacks. Once at the stacks, containers are picked up by rubber-tire
      gentry cranes (“RTGs”) and placed in line for delivery. The RTGs are
      operated by Port Authority employees who are members of the
      longshoreman’s union. Over-the-road semi-tractors (18-wheelers),
      operated by independent trucking companies, arrive at Bayport
      Terminal, pick up the containers, depart the terminal, and deliver them
      to their final destinations. The exporting process works the same way,
      but in reverse order.

      More than ninety property owners in a community north of the Bayport

Terminal filed a lawsuit against the Port Authority, alleging that its construction

and operation of the Bayport Terminal generates noise, light, and air pollution that

“substantially interferes with the use, enjoyment, and benefits of the surrounding

residential property” and thereby constitutes a taking of their property for which

compensation is required. 2 According to the property owners, the Port Authority’s

operations violate a local noise-control ordinance, resulting in numerous citations

(including nine criminal citations) in the past couple of years.

      All of the property owners allege the same harm. Specifically, they allege

that they are “unable to sleep in the homes during operations [of the Bayport

Terminal], unable to enjoy their yards due to the noise, light and pollution, and

unable to maintain normal and routine lifestyles due to the invasion by the Port

2
      The property owners also filed a second lawsuit in a different trial court against
      the Port Authority, alleging that its operation of the Bayport Terminal constitutes
      negligence under the Texas Tort Claims Act. That second lawsuit is also before
      this Court on appeal of a ruling on a jurisdictional plea. Today, this Court issues
      its opinions in both appeals.
                                           4
[Authority] with its noise, lights, and pollution.” The property owners further claim

that the value of their properties have been reduced as a result of their proximity to

the Bayport Terminal. Their petition asserts that the lawsuit can be properly

maintained as a class action because common legal and factual questions

predominated and the losses claimed are “almost identical.”

      The Port Authority answered the lawsuit and filed two pleas to the trial

court’s jurisdiction. One plea argued that the Port Authority retained its

governmental immunity from suit because the property owners failed to plead a

valid inverse-condemnation or intentional-nuisance claim by alleging only non-

compensable community damages. The other plea disputed whether the property

owners established that their properties were uninhabitable and no longer suitable

for residential purposes. After a hearing, the trial court granted both of the Port

Authority’s pleas and dismissed the property owners’ claims with prejudice. This

appeal followed.

                                Standard of Review

      The trial court must have subject-matter jurisdiction before it may hear the

property owners’ case. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 443 (Tex. 1993). The property owners bore the initial burden of alleging facts

that affirmatively demonstrated the trial court’s jurisdiction. Id. at 446. The Port

Authority properly challenged the trial court’s subject-matter jurisdiction in its

                                          5
pleas to the jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554

(Tex. 2000). The purpose of a plea to the jurisdiction is to “defeat a cause of action

without regard to whether the claims asserted have merit.” Id. It does not involve

delving into the substance of the property owners’ claims, but rather, examination

of whether the claims’ merits should be reached. Id. Accordingly, in reviewing the

trial court’s ruling on the Port Authority’s pleas to the jurisdiction, we construe the

pleadings liberally in the property owners’ favor and determine if the property

owners alleged facts that affirmatively demonstrate the trial court’s jurisdiction to

hear their cause. Villarreal v. Harris Cnty., 226 S.W.3d 537, 541 (Tex. App.—

Houston [1st Dist.] 2006, no pet.). If the pleadings lack sufficient facts to

affirmatively demonstrate the trial court’s jurisdiction but do not reveal incurable

defects in jurisdiction, the issue is one of pleading sufficiency, and the property

owners should be afforded an opportunity to amend or to await further

development of the case on the merits. Tex. Dept. of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226–27 (Tex. 2004). Conversely, if the pleadings affirmatively

negate the existence of jurisdiction, the property owners should not be afforded an

opportunity to amend. Id. at 227.

               Governmental Immunity and Article I, Section 17

      The property owners contend that the trial court has subject-matter

jurisdiction because the noise, light, and air pollution generated by the Bayport


                                          6
Terminal substantially interfere with the use and enjoyment of their properties and

thereby constitute a taking for which compensation is required under article I,

section 17 of the Texas Constitution.

      Generally, “[g]overnmental immunity protects subdivisions of the State . . .

from lawsuits and liability, which would otherwise ‘hamper governmental

functions by requiring tax resources to be used for defending lawsuits and paying

judgments rather than using those resources for their intended purpose.’” City of

Houston v. Esparza, 369 S.W.3d 238, 243−44 (Tex. App.—Houston [1st Dist.]

2011, pet. filed) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d

653, 655−56 (Tex. 2008)). However, article I, section 17 of the Texas Constitution

waives governmental immunity from suit and liability for inverse-condemnation

claims. TEX. CONST. art. I, § 17; Burris v. Metro. Transit Auth. of Harris Cnty., 266

S.W.3d 16, 19−20 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Immunity is

also waived for intentional-nuisance claims that rise to the level of a constitutional

taking under article I, section 17. City of Dallas v. Jennings, 142 S.W.3d 310, 311

(Tex. 2004). Thus, to determine whether the trial court erred in dismissing the

property owners’ claims on the Port Authority’s plea, we must decide whether the

property owners have alleged facts that establish their property was damaged in a

constitutional sense. Whether property has been “damaged” in a constitutional




                                          7
sense is a question of law. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922,

932−33 (Tex. 1998).

A.    Article I, section 17 does not require compensation for every injury to
      property

      Although article I, section 17 provides that adequate compensation shall be

paid to those whose property is “taken, damaged or destroyed for or applied to

public use,” not all injury to property is a compensable damage. See TEX. CONST.

art. I, § 17; State v. Schmidt, 867 S.W.2d 769, 778 (Tex. 1993). For more than one

hundred years, “courts have construed Article I, Section 17 to allow recovery only

if the injury is not one suffered by the community in general.” Felts v. Harris

Cnty., 915 S.W.2d 482, 484 (Tex. 1996) (citing Gulf, Colo. & Santa Fe Ry. Co. v.

Fuller, 63 Tex. 467, 470−71 (1885)). In other words, compensation is required

only for those injuries “peculiar to a given property.” Fuller, 63 Tex. at 470. As the

Texas Supreme Court explained:

             In the construction of legally authorized public works, it is
      inevitable that benefits will accrue to the property of some persons
      and injury will result to that of others. If the injury that thus results
      from the improvement be only of such nature as is suffered from that
      cause in common with other property in the same community or
      section, the damages thus accruing are deemed merely consequential,
      and no right of action exists. In such cases, it is not considered that the
      property is “damaged” within the contemplation of the constitutional
      provision, and the right to compensation is denied. . . .

           The question in all such cases is resolved by determining
      whether the injury is peculiar to the property in question, or is only
      such as is suffered from the same cause in common with other
                                          8
      property in the same section or community; that is, whether the
      property is “damaged” in the true sense of the constitutional
      provision.

Fort Worth Improvement Dist. No. 1 v. City of Fort Worth, 158 S.W. 164, 168−69

(Tex. 1913); see also Fuller, 63 Tex. at 470 (explaining that “[e]very government

has the power to construct or to cause to be constructed public works, and in so far

as such construction works an injury to the public, it can give no one a right to a

private action.”).3

      Similar damage experienced by all or most of the properties in a given

“community or section is the quintessential notion of community damage” and will

not support individual property owner’s damage claims. Felts, 915 S.W.2d. at 485.

The property owners urge us not to limit our definition of the community in this

case to the named property owners; according to them, the Bayport Terminal’s

operation affects a greater number of properties than are presently the subject of

this lawsuit or part of the proposed class of approximately 500 property owners.


3
      The Legislature has codified the community-damage rule for condemnation
      proceedings. TEX. PROP. CODE ANN. § 21.042(d) (West 2011). In estimating the
      injury or benefit to the property owner when a portion of his or her real property is
      condemned, “the special commissioners shall consider an injury or benefit that is
      peculiar to the property owner and that relates to the property owner’s ownership,
      use, or enjoyment of the particular parcel of real property, . . . but they may not
      consider an injury or benefit that the property owner experiences in common with
      the general community . . . .” Id. Courts apply the same rules in condemnation and
      inverse-condemnation proceedings. State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996).

                                            9
They suggest that the community extends to the entire City of LaPorte, where their

properties are located, and certain other areas of Harris, Galveston, and Chambers

counties. They further argue that even if we limit the community to the properties

adjoining the Bayport Terminal, the damages suffered are not the same―for

example, the properties to the South and West of the Bayport Terminal do not

suffer the same loss of use and enjoyment because they either are undeveloped or

industrial properties or are buffered by an “extensive levy or bank.”

      The property owners place too much weight on the location of their

properties. “The concept of community [damage] is not primarily geographical.”

State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996). “‘Community’ in this context means

not only where, but, more importantly, what kind. It is the nature of the injury

rather than its location that is critical in determining whether it is community.”

Schmidt, 867 S.W.2d at 781. Accordingly, the result in this case turns on whether

the noise, light, and air pollution claimed by the property owners is suffered by the

community as a whole or by the property owners in some special or unique way

and thus is compensable in a constitutional sense.

B.    The property owners’ damages are non-compensable community
      damages

      The property owners seek damages for the loss of use and enjoyment of their

property due to the protracted invasion of their homes by noise, light, and chemical

pollutants generated by the Bayport Terminal. Specifically, the property owners
                                         10
allege that the Port Authority’s “ongoing expansion of the Bayport [Terminal] . . .

increasingly expose[s the property owners] to bright lights in the middle of the

night, loud banging noises . . . and pollutants from the machinery and ships.”

      More than one Texas court, including this Court, has concluded that the

noise, light, and air pollution generated by a public work is suffered by the

community surrounding the public work as a whole. See, e.g., Tex. Dep’t of

Transp. v. City of Sunset Valley, 146 S.W.3d 637, 647−48 (Tex. 2004) (holding

that bright lights from highway were not compensable under constitution because

impact from public works “are compensable only to the extent they are not

common to the community”); Felts, 915 S.W.2d at 485−86 (“noise emanating from

a roadway has a similar impact on the community as a whole” and thus was non-

compensable, “quintessential” community damage); Cernosek Enters., Inc. v. City

of Mont Belvieu, 338 S.W.3d 655, 666 (Tex. App.—Houston [1st Dist.] 2011, no

pet.) (plaintiff alleging drilling of wells destroyed “peace and general welfare of

the nearby community” and “decrease[d] the property values” failed to

demonstrate that “injury affects it in some special or unique way that is different

from the injury suffered by the community at large”); Wilkinson v.

Dallas/FortWorth Int’l Airport Bd., 54 S.W.3d 1, 17 (Tex. App.—Dallas 2001, pet.

denied) (concluding that combined impact from noise, pollution, and disruption of




                                         11
daily activities attributable to governmental activities―use of a new airport

runway―was community damage).

      Although the property owners argue that the noise, light, and air pollution

they suffer is peculiar to their properties given their proximity to the Bayport

Terminal, we perceive no meaningful distinction between the property owners’

damage allegations and those damages courts have already held to be non-

compensable in the construction and operation of other public works. The property

owners rely on Interstate Northborough Partnership v. Texas, a condemnation case

in which the Texas Supreme Court concluded that the community-damage rule did

not bar recovery of “increased-proximity damages.” 66 S.W.3d 213, 223 (Tex.

2001). There, a commercial property owner sought compensation for the increased

proximity of its building to a roadway following condemnation of a part of the

commercial property. Id. at 217. The Court concluded that the commercial

property was injured in a different way, not just to a different degree, than other

neighboring properties subject to condemnation for use of the roadway. The

commercial property owner had demonstrated that the building’s special design

made its increased-proximity damages special, not community, through allegations

and proof that the building was the most marketable building in the area, its “park-

like” setting due to its position away from the road contributed to the building’s

appeal and provided a pleasant work environment, and the increased proximity to

                                        12
the roadway gave an appearance that the building was not safe. Id. at 222−23. The

property owners’ petition does not allege facts akin to those in Interstate

Northborough Partnership. The petition contains no allegations that the Bayport

Terminal affects the property owners’ individual properties in some special or

unique way different from the community as a whole; rather, the petition focuses

on injuries the property owners allege are suffered in a nearly identical way by the

entire neighborhood.

      We also are not persuaded by the property owners’ assertion that they have

suffered damages like those suffered by owners of property fronting railroad

tracks.   In the historic railroad cases, most occurring before 1900, the Texas

Supreme Court held that damages from noise, cinders, vibrations, and other

attendant annoyances provided a basis for compensation. See Gainesville, H. & W.

R. Co. v. Hall, 14 S.W. 259, 259 (Tex. 1890); Texarkana & N.W.R. Co. v.

Goldberg, 5 S.W. 824, 826 (Tex. 887); Fuller, 63 Tex. at 472; Gulf, Colo. & Santa

Fe R.R. Co. v. Eddins, 60 Tex. 656, 660 (1884). The special damages in these

railroad cases arose from the close proximity of the railroad tracks to the properties

at issue in the lawsuits. Felts, 915 S.W.2d at 486 (distinguishing early railroad

cases that “correctly concluded that damages affecting all landowners adjacent to

railroad tracks were special” based on “increased exposure to fire” from claims

asserting unreasonable interference from impacts shared by community as a

                                         13
whole). As the Port Authority points out, the railroad tracks in the historical cases

were placed immediately adjacent to homes, created fire hazards, and destroyed

access to property. Of the properties that are the subject of this lawsuit, the nearest

property is almost 1000 feet from the Bayport Terminal.

      As pleaded, the property owners have experienced noise, light, and air

pollution that their neighbors also have experienced as a result of the construction

and operation of the Bayport Terminal. We conclude that the injuries of which the

property owners complain are, by their nature, a consequence of the Bayport

Terminal’s operation and are shared by the surrounding area. While some of the

property owners inevitably are impacted more severely based on the location of the

properties, the difference is one of degree and not of kind. We thus agree with the

Port Authority that the damages claimed by the property owners are not

compensable. The property owners’ class action allegations of injuries shared

identically among all of the 500 purported class members in the community

indicates that the deficiencies in their pleadings would not be cured by an

opportunity to amend. Consequently, we hold that the trial court did not err in

granting the Port Authority’s plea to the jurisdiction and dismissing the property

owners’ case.4


4
      We do not address the property owners’ other contentions on appeal―namely,
      whether the trial court erred in (1) granting the Port Authority’s other
      jurisdictional plea on the issue of habitability and (2) dismissing their request for
                                           14
                                     Conclusion

      We affirm the trial court’s judgment.




                                               Harvey Brown
                                               Justice

Panel consists of Justices Jennings, Brown, and Huddle.




      injunctive relief. Our conclusion that the community damage rule precludes the
      property owners’ inverse-condemnation and intentional-nuisance claims makes it
      unnecessary for us to decide whether the property owners established that their
      properties are uninhabitable. And we do not consider whether the trial court erred
      in dismissing their request for injunctive relief because they did not plead such a
      claim.
                                          15
