By John Wayne Ferguson
More than five years after their homes and businesses were flooded, residents above the Addicks and Barker dams are learning how much money the federal government owes them for damage from Houston’s overflowing reservoirs.
A federal judge last week ruled that the owners of six upstream properties flooded during Hurricane Harvey should collectively receive nearly $550,000. The six were chosen — jointly by Justice Department lawyers and attorneys for hundreds of property owners — as test cases in a massive case initiated just moths after the historic deluge.
The decision could open the door to thousands more judgments for property owners and could result in the government paying out tens of millions more dollars, attorneys for the flooded residents said Wednesday.
The case falls under a special jurisdiction that oversees so called “takings” cases, involving allegations the government temporarily took control of private land for a legitimate purpose. If the court’s ruling survives anticipated appeals by the Justice Department, it could become the largest government takings case in U.S. history, according to attorneys representing property owners.
A ruling is still pending for separate group of residents and business owners whose properties flooded when the U.S. Army Corps of Engineers opened the Addicks and Barker floodgates. The downstream property owners saw their claims dismissed in 2020, but in June a federal appeals court reversed the dismissal and remanded it to the lower court for further proceedings.
Starting Aug. 28, 2017, and lasting four days, Hurricane Harvey unleashed historic amounts of rain over the Houston area. The decades-old flood reservoirs on either side of Interstate 10 became dangerously full. The floodwater they retained caused widespread flooding of homes and businesses on the far-west outreaches of the Houston region.
After the storm, more than 1,600 businesses and homeowners sued the Army Corps in the specialized U.S. Court of Federal Claims in Washington, D.C., contending the government intentionally planned for the reservoirs to flood their land. In 2019, U.S. Judge Charles F. Lettow ruled government officials had knowingly and intentionally used private property to store rising floodwaters.
Then, in separate hearings, Lettow set about assessing how much money these property owners were owed. On Oct. 28, Lettow ruled on damages, laying out explicitly how much some property owners were owed for decreases in their property values, the damage or destruction of their personal property and the costs of being displaced by the floods.
“The plaintiffs are entitled to just compensation for the permanent flowage easement the government took through its construction, maintenance, and operation of the Addicks and Barker Dams,” Lettow wrote.
The six property owners included homeowners and owners of rental properties. The decision in these test cases will trigger a process for Lettow to assess how much compensation property owners might be owed in thousands of other complaints. If Lettow’s standard is applied to all the upstream homes and businesses believed to be flooded, the total compensation would top $1 billion, according to Daniel Charest, a lead attorney for the upstream plaintiffs.
Charest said he expected the Department of Justice to file an appeal within the next 60 days and will likely challenge property owners’ rights to damages.
For the six test properties in Katy and Houston, Lettow gave out vastly differing sums: one family, he said, should be awarded $195,000 because of the damage to their home. Another plaintiff was awarded $1,401, according to court records.
The property owners who received the largest award saw their home on Kelliwood Manor Lane in Katy flooded by more than a foot of water for four days. The person with the smallest award experienced no flooding in her Katy home, but she had damage to her garage, according to court documents.
Vuk Vujasinovic, an attorney with the law firm VB Attorneys and a lead counsel in the lawsuit, said attorneys and their clients were still working to process what Lettow’s decision would mean in their individual situations. Vujasinovic said there was a “wide variance” in the awards for the plaintiffs in the test case, and that Lettow had “split the baby” in his decision.
“Every case is going to be individual, based on what happened in their house, but as a general matter, we’re going to study the methods by which the judge awarded these monies and apply it to all our our clients across the board,” Vujasinovic said.
The difference in the damages was largely based on structural flooding, attorneys said. Properties that had significant flooding got more money and places with less damage got less, he said. Renters also appear to be in line to receive less compensation for their losses.
“By and large, a majority of the claimants should be happy with the result,” said Charest, one of the lead counsels.
On average, the six plaintiffs received compensation of about $130 per square foot of flooded interior, according to a press release from his law firm, Burns Charest LLP.
“I am grateful that we have achieved this result after so much effort,” said Charest. “These awards will be a huge help for our clients. I hope this result can help achieve as good or better results for the other upstream flood victims going forward.”
Lawyers for flood victims have estimated that between 10,000 and 12,000 properties upstream of the reservoirs were damaged during Harvey.
Being on the witness stand in a case was an emotional experience for the test case plaintiffs.
“I felt like I represented thousands, and I could feel the weight of that as I testified,” said Elizabeth Burnham, a test case plaintiff who was flooded in Bear Creek. “I wanted to do well for myself, but it was definitely nerve-wracking, because I knew there were many more people that depended on me doing a good job.”
Burnham sold her home to an investor after the storm and moved, but she said she still feels scared of flooding because of what happened during Harvey.
“I can’t sleep at night in a heavy rainstorm, because I have to check the road to make sure it’s not going to flood our new house,” Burnham said.
Burnham declined to comment about the size of the judgment because of possible future appeals.
Attorneys representing the federal government didn’t respond to requests for comment.
Charest and other law firms are encouraging property owners upstream of the dams to file claims before the statute of limitations passes next year on the sixth anniversary of Hurricane Harvey.
“The six-year anniversary of Harvey is August 2023,” Charest said. “I’m telling everyone that will listen to me to please get the word out that they need to get a claim on file. They can do it themselves, they can hire a lawyer, I don’t care. What I don’t want to see is the government take this property interest and do this harm and not be held accountable.”
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Photo: Mark Mulligan, Houston Chronicle