LIVINGSTON v. VIRGINIA DEPT. OF TRANSP.Record No. 101006.
726 S.E.2d 264 (2012)
284 Va. 140
Geoff LIVINGSTON, et al.
VIRGINIA DEPARTMENT OF TRANSPORTATION.
VIRGINIA DEPARTMENT OF TRANSPORTATION.
Supreme Court of Virginia.
June 7, 2012.
Robert J. Cynkar ( Christopher I. Kachouroff; Lake Ridge, Daniel C. Levin; Cuneo, Gilbert & LaDuca; Levin, Fishbein, Sedran & Berman; Dominion Law Center, on briefs), for appellants. E. Duncan Getchell, Jr., Solicitor General ( Kenneth T. Cuccinelli, II, Attorney General; Jo Anne P. Maxwell, Senior Assistant Attorney General; Nancy C. Auth, Senior Assistant Attorney General; Christopher D. Eib, Senior Assistant Attorney General; Jeffrey A. Huber; Scott D. Helsel; Walton & Adams, Reston, on brief), for appellee.
Present: All the Justices.
Opinion by Justice LEROY F. MILLETTE, JR.
Geoff Livingston and 134 other homeowners or renters (collectively Plaintiffs) in Fairfax County's (County) Huntington subdivision brought this inverse condemnation suit against the County and the Virginia Department of Transportation (VDOT) after their homes were flooded during a severe storm in the summer of 2006. The circuit court dismissed the suit on demurrer, holding in relevant part that a single occurrence of flooding cannot support an inverse condemnation claim under Article I, Section 11 of the Constitution of Virginia. We disagree and reverse.
Because this case arises from a demurrer, we recite the facts as they are alleged in the Plaintiffs' second amended complaint. Station # 2, LLC v. Lynch, 280 Va. 166, 169,
The floodwaters, blocked on the north by the concrete mass of the Capital Beltway, overwhelmed the southern bank of Cameron Run and engulfed much of Huntington. Floodwater backed up through storm and sanitary sewers and filled the basements of many of the Plaintiffs' homes with sewage-laced water. The flood damaged the Plaintiffs' homes and personal property.
The Plaintiffs allege that the June 2006 flood was caused by the acts or omissions of the County and VDOT. During its construction of the Beltway in the early 1960s, VDOT's predecessor, the Virginia Department of Highways, straightened a curved section of Cameron Run and relocated it
VDOT built the Beltway to the immediate north of the relocated Cameron Run. To create a base for the Beltway in what had been a marsh and wetlands, VDOT removed the natural "sponge" for floodwater by adding solid fill and draining the remaining water with vertical "sand wicks." The presence of the Beltway on the northern edge of the relocated Cameron Run also created a berm, which forced water south during flooding and "eliminat[ed] the conveyance potential beyond the north bank of the stream."
The Plaintiffs allege that their homes would not have flooded in 2006 had VDOT not, in the early 1960s, relocated Cameron Run, filled in portions of the watershed marshes to construct the Beltway, narrowed the channel's natural width, and built the Beltway in such a way as to serve as a concrete wall blocking any northern flow of water from the channel.
The Plaintiffs further allege that the flood damage was "amplified" by the County's and VDOT's acts or omissions after the relocation of Cameron Run and construction of the Beltway. They allege that most of their homes would not have flooded at all, and those few that did would have suffered only minor damage, if the elevation of the June 2006 flood had not been significantly raised by the accumulation of sediment in the relocated Cameron Run due to the County's and VDOT's failure to dredge or otherwise maintain the channel, VDOT's construction of the U.S. Route 1 Interchange in the Cameron Run Watershed, and the encroachment on the Cameron Run flood plain caused by commercial and other development approved by the County.
According to a 2007 report prepared by the Army Corps of Engineers, 5 to 6 feet of sediment accumulated in the relocated Cameron Run between 1965 and 1999. This sedimentation contributed to the severity of the June 2006 flood, decreasing the capacity of the channel to transport water to the Potomac River and away from Huntington. The Corps report concluded that without such sedimentation, flood elevations in Huntington would have been 1.2 to 2 feet lower. The County and VDOT were aware, by way of multiple reports and memoranda, of the sedimentation and the increased risk of flooding it posed, but did not undertake any dredging or maintenance of the relocated Cameron Run. As early as 1966, the County adopted an ordinance for a regulated 100-year floodplain for the channel. In 1970, VDOT's resident engineer circulated a memorandum in which he acknowledged the danger of sedimentation in the relocated Cameron Run but disavowed VDOT's responsibility for dredging it. In the wake of the June 2006 flood, VDOT continued to insist that it had no duty to maintain the channel. Rather, VDOT asserted, "each locality is responsible for the maintenance of the natural and relocated Cameron Run Channel within its jurisdictional limits, despite the fact that the subject reach of Cameron Run is within VDOT's [r]ight-of-way."
The Corps report also found that the construction of the Route 1 Interchange, part of the Woodrow Wilson Bridge construction project, contributed up to 1 foot to the water level during the June 2006 flood and that commercial development within the Cameron Run floodplain contributed another 2.5 to 5 inches. Such development included the Huntington Metro Rail and Station, completed in 1983, and Jones Point, a 100-acre development located adjacent to Cameron Run containing residential apartment towers and several commercial buildings. A metal retaining wall was constructed along Cameron Run for Jones Point, with a large amount of fill brought in to elevate that development out of the floodplain.
To recover for the damage to their homes and personal property resulting from the June 2006 flood, the Plaintiffs sued the County and VDOT. In their second amended complaint, the Plaintiffs allege that the County
Both the County and VDOT demurred. VDOT's demurrer presented several grounds for dismissal: that the Plaintiffs lacked standing because they did not own or rent their homes when VDOT relocated Cameron Run and built the Beltway;
The circuit court sustained the County's and VDOT's demurrers. In its letter opinion, the circuit court framed the question presented—which it considered to be one of first impression—as follows: "[D]oes a single occurrence of temporary flooding state a cause of action for inverse condemnation?" To answer this question, the circuit court analyzed several of our cases involving multiple occurrences of flooding as well as several federal cases construing the Takings Clause of the Federal Constitution in a flooding context. It reasoned that
Concluding that the June 2006 flood was "an extraordinary event," the circuit court went on to hold that "a one[-]time episode of flooding does not state a cause of action for inverse condemnation" under Article I, Section 11.
We granted the Plaintiffs' petition for appeal as to VDOT but not as to the County. The Plaintiffs assign error as follows:
(Internal quotation marks omitted.)
We also granted VDOT's assignments of cross-error, which state:
(Some internal quotation marks omitted.)
We review de novo the circuit court's sustaining of VDOT's demurrer. Lee v. City of Norfolk,
Article I, Section 11 of the Constitution of Virginia confers upon a property owner a right to just compensation if the government takes or damages his property for public use. A property owner may enforce this constitutional right through an inverse condemnation suit. Kitchen v. City of Newport News,
The Plaintiffs assert that the circuit court erred by holding that a single occurrence of flooding cannot support an inverse condemnation claim. They contend that a taking and a damaging are distinct concepts under Article I, Section 11; and that, accordingly, "[p]roperty can be taken without being damaged, and property can be damaged without being taken." So, they argue, "while the injury caused by a one-time event is not compensable as a taking, it is compensable as a damaging."
VDOT does not dispute that a single occurrence of flooding could give rise to a compensable damaging under Article I, Section 11, but it has a different view of the circuit court's holding. According to VDOT, the circuit court did not hold that a single occurrence of flooding could never support an inverse condemnation claim; instead, it held that the June 2006 flood could not support the Plaintiffs' inverse condemnation claim because it was "an extraordinary event."
In support of its reading of the circuit court's holding, VDOT points to the court's reliance on our decision in American Locomotive Company v. Hoffman, 105 Va. 343, 54 S.E. 25 (1906). There we considered whether a railroad was liable for damages to a property owner for building two culverts that were allegedly inadequate to "carry off" the water from a nearby stream. Id. at 344-45, 54 S.E.2d at 25-26. The property owner claimed that the improper design and construction of the culverts led to multiple "overflows" onto his property. Id. In addressing the rights and obligations of riparian owners, we said:
Id. at 350, 54 S.E.2d at 27 (emphasis added) (internal quotation marks and citation omitted). The circuit court quoted this language in its letter opinion just before announcing its holding.
To the extent that the circuit court held that a single occurrence of flooding cannot support an inverse condemnation claim, it erred. We find nothing in Article I, Section 11's text or history that limits a property owner's right to just compensation for a damaging to only multiple occurrences of flooding. Further, our case law holds that a single occurrence of flooding can support an inverse condemnation claim. In Hampton Roads Sanitation District v. McDonnell, 234 Va. 235,
The circuit court also erred insofar as it held that the June 2006 flood could not support the Plaintiffs' inverse condemnation claim because it was "an extraordinary event." We have said that "[w]hether an extraordinary flood is an `act of God' is a mixed question of law and fact" and that the defendant bears the burden of "prov[ing] the existence of circumstances permitting exemption from liability." Cooper v. Horn, 248 Va. 417, 425,
An "act of God" is defined in our precedents as "[a]ny accident due to natural causes directly and exclusively without human intervention, such as could not have been prevented by any amount of foresight and pains, and care reasonably to have been expected." City of Portsmouth v. Culpepper,
The storm that led to the June 2006 flood was no doubt severe, but it was not unprecedented—Hurricane Agnes in 1972 produced a greater water flow in the relocated Cameron Run. That the channel would at times be subjected to heavy water flows, then, was not unforeseeable. More importantly, however, the Plaintiffs allege that the June 2006 flood was the result not of natural causes but of human agency: Had VDOT not allowed several feet of sediment to accumulate in the relocated Cameron Run, they
In sum, no matter which way the circuit court's holding is read, it was in error. Our review, however, is not at an end, for VDOT urges us to affirm the circuit court's judgment on one or more alternative grounds. See Shilling v. Baker,
We begin with VDOT's claim that the Plaintiffs lack standing to maintain this inverse condemnation suit. VDOT argues that the Plaintiffs do not have standing to seek relief under Article I, Section 11 of the Constitution of Virginia for damages caused by the relocation of Cameron Run and construction of the Beltway, because they did not buy or rent their homes until many years after those public improvements were completed. The Plaintiffs, however, do not allege that their homes and personal property were damaged by VDOT's relocation of Cameron Run and construction of the Beltway. Rather, they allege that their homes and personal property were damaged by VDOT's operation of—and, in particular, its failure to maintain—the channel in the years following its relocation.
In general terms, we have explained the concept of standing as follows:
Westlake Props. v. Westlake Pointe Prop. Owners Ass'n, 273 Va. 107, 120,
When the Plaintiffs bought or rented their homes, they acquired a bundle of rights, including the rights to possession and enjoyment. See City of Virginia Beach v. Bell, 255 Va. 395, 400,
We now turn to VDOT's argument that the Plaintiffs' inverse condemnation claim must be dismissed because the Plaintiffs fail to identify or allege a specific appurtenant right connected to their homes that VDOT damaged when it constructed the Beltway. According to VDOT, the word "damaged" in Article I, Section 11 does not encompass physical damage to tangible property, but only damage to intangible property rights. Relying on our decisions in Board of Supervisors of Prince William County v. Omni Homes, Inc.,
We reject VDOT's limited view of the word "damaged" in Article I, Section 11. Our recognition in Omni Homes and Richmeade of the constitutional right to recover for damage to an appurtenant right to property does not exclude the right to recover for physical damage to property itself. City of Lynchburg v. Peters, 156 Va. 40, 49, 157 S.E. 769, 772 (1931) (noting that the word "damaged" was added to Article I, Section 11's predecessor to cover "cases where the corpus of the owner's property itself, or some appurtenant right or easement connected therewith, or by the law annexed thereto, is directly (that is, in general if not always, physically) affected, and is also specially affected (that is, in a manner not common to the property owner and to the public at large)" (citation omitted)); Lambert v. City of Norfolk, 108 Va. 259, 265, 61 S.E. 776, 778 (1908) ("The meaning of the word `damaged' was neither enlarged nor restricted by the Constitution. It must, therefore, have been used in the same sense and with the same meaning that it had at common law—not damage to the feelings, tastes or sentiments, but physical damage to the corpus or to some right of property appurtenant thereto."). We have therefore allowed recovery in cases in which only physical damage to property itself was alleged. E.g., Jenkins v. County of Shenandoah, 246 Va. 467, 469-70,
Neither Omni Homes nor Richmeade alters this well-established precedent. In Omni Homes, the property owner complained of interference with an alleged appurtenant right to property, not physical damage to property itself. 253 Va. at 63-65, 481 S.E.2d at 461-62. In particular, the property owner alleged that Prince William County's purchase of adjoining land affected the property owner's ability to secure higher zoning classification for planned development. Id. In that context, we observed that "Virginia law holds partial diminution in the value of property compensable only if it results from dislocation of a specific right contained in the property owner's bundle of property rights." Id. at 72, 481 S.E.2d at 467 (citing Lambert, 108 Va. at 268, 61 S.E. at 778-79).
Similarly, in Richmeade, the property owner claimed that the City of Richmond denied a request to vacate streets, thereby hindering the property owner's ability to develop two parcels as a single development. 267 Va. at 600, 594 S.E.2d at 607. Relying on Omni Homes, we explained that "[t]o take or damage property in the constitutional sense does not require that the sovereign actually invade or disturb the property. Taking or damaging property in the constitutional sense means that the governmental action adversely
In both Omni Homes and Richmeade, it is clear that we addressed only whether an alleged appurtenant right to property had been damaged within the meaning of Article I, Section 11. And in doing so, we did not contemplate recovery for physical damage to property itself or limit a property owner's longstanding right to recover for such damage in an inverse condemnation suit.
VDOT also contends that the Plaintiffs' inverse condemnation claim must be dismissed because VDOT was not responsible for the dramatic urbanization of the Cameron Run Watershed that occurred after the Beltway was completed or the construction of the Huntington Metro and Jones Point. We agree with VDOT that it cannot be held liable for the damage to the Plaintiffs' homes caused by these later developments; its liability is limited to the damage caused by its operation of (including its failure to maintain) the relocated Cameron Run. But it is for a jury—not us—to determine the cause of the damage to the Plaintiffs' homes. Heldt, 196 Va. at 483-84, 84 S.E.2d at 515 (concluding that it was for the jury to determine from the evidence whether flood damage to the plaintiff's buildings was attributable to the defendant's "construction of the tunnel [or] to other causes," such as the plaintiff's failure to install "gutters and downspouts [on the buildings] as required by the city ordinance").
VDOT further argues that the Plaintiffs' inverse condemnation claim must be dismissed because they do not allege that their homes were damaged for public use. According to VDOT, the government's obligation under Article I, Section 11 to pay just compensation for a damaging is only triggered when the government "engage[s] in an affirmative and purposeful act that devotes private property or a related property right to public use." The Plaintiffs, VDOT argues, "d[o] not allege that [it] relocated Cameron Run onto [their] properties or [that it] intentionally pumped water on their properties." "Rather," VDOT maintains, "all that [the Plaintiffs] allege is that the June 2006 Flood was caused by the public use of the Beltway, and that VDOT should be required to pay just compensation because the public benefits from the Beltway."
We reject VDOT's narrow reading of Article I, Section 11. There is nothing in that section's text or history that limits the government's constitutional obligation to pay just compensation to only damages caused by its "affirmative and purposeful" acts. Moreover, we have recognized that the government's failure to act can give rise to a compensable damaging under Article I, Section 11. Jenkins, 246 Va. at 471, 436 S.E.2d at 610.
In Jenkins, the owners of two residential subdivision lots filed an inverse condemnation suit against Shenandoah County and others, alleging that their lots had been damaged by spillover from a stormwater drainage channel. Id. at 468-69, 436 S.E.2d at 608-09. The owners claimed that the subject drainage easement constituted a public use and presented evidence at trial that Shenandoah County's drainage channel was part of a water discharge system that served to divert water onto their lots. Id. at 470, 436 S.E.2d at 609. They also presented evidence that the spillover occurred because the drainage channel was not constructed in accordance with the original subdivision plans that had been submitted to Shenandoah County for approval and that had been approved by VDOT. Id. at 469, 436 S.E.2d at 609. Shenandoah County argued that, although it owned the drainage easement, it had no duty to maintain the easement and that the owners' suit was barred by the doctrine of sovereign immunity. Id. at 468, 436 S.E.2d at 608. The circuit court agreed and ruled that Shenandoah County was shielded by sovereign
We reversed. First, we held that Shenandoah County was not entitled to sovereign immunity because an action brought under Article I, Section 11 is not a tort but a contract action, and thus not barred by sovereign immunity. Id. at 470, 436 S.E.2d at 609. Then we considered whether the owners had made out a prima facie claim for a damaging. Id. Shenandoah County argued that they had not because it "took no steps with respect to the maintenance, construction or supervision or operation of the drainage easements." Id. We disagreed, holding that Shenandoah County's drainage easement was a public use under our precedents and that the County's failure to maintain it did not "absolve the County of liability" under Article I, Section 11. Id. at 470-71, 436 S.E.2d at 609-10. When Shenandoah County "accepted the dedication of the easement," we explained, "the County also accepted the burden of maintaining it in the manner necessary to protect the servient estates." Id. at 471, 436 S.E.2d at 610.
Pursuant to our decision in Jenkins, then, the government cannot evade liability for a damaging under Article I, Section 11 by simply choosing not to act when it has a duty to do so. Accordingly, the Plaintiffs' inverse condemnation claim against VDOT does not fail just because it arises from VDOT's subsequent operation of, and failure to maintain, the relocated Cameron Run, rather than from VDOT's relocation of the channel and construction of the Beltway.
We further reject VDOT's contention that the Plaintiffs' inverse condemnation claim must be dismissed because, in its view, the relocated Cameron Run is not a public use. According to VDOT, the Beltway is the public use, not the channel. Such a narrow view of the Beltway vis-á-vis the relocated Cameron Run, in our opinion, ignores the relationship of the two public improvements and their respective functions. The channel is necessary to the continued operation of the roadway. Without the relocated Cameron Run to drain water from nearby urbanized lands, the Beltway would undoubtedly be even more susceptible to flooding and, consequently, more frequent closures. That VDOT refused to maintain the relocated Cameron Run and instead chose to "tolerat[e] temporary inundation" of the Beltway does not diminish the importance of the channel to the continued operation of the roadway.
Despite the concerns raised by local officials about the accumulation of sediment in the relocated Cameron Run and the resulting increase in the risk of flooding to neighboring residential developments such as Huntington, VDOT declined to maintain the channel. VDOT made this decision (at least in part) because it was willing to accept temporary flooding of the Beltway. In essence, then, VDOT elected to use the Beltway and nearby residential developments as makeshift storage sites for excess stormwater instead of allocating its resources to maintain the relocated Cameron Run.
So viewed, VDOT's choice not to maintain the relocated Cameron Run is no different from Hampton Roads' decision in McDonnell, 234 Va. at 238-39, 360 S.E.2d at 843, to use private property as a storage site for excess discharge from its sewage system or the Tunnel District's decision in Heldt, 196 Va. at 480, 84 S.E.2d at 513-14, to allow water pumped from a construction site to flow unabated onto private property. Like Hampton Roads and the Tunnel District, VDOT has asked private property owners (the Plaintiffs) to bear the cost of a public improvement (the Beltway). This is the type of mischief that Article I, Section 11 was adopted more than 100 years ago to remedy. See 1 Report of the Proceedings and Debates of the Constitutional Convention 699 (J.H. Lindsay ed., Hermitage Press, Inc.1906) ("[I]t is the inherent right and justice of the contention that the rights of the private individual. . . ought not to be sacrificed to the public welfare, and that it is the function of bodies of this sort, in the public interest, to impose such restrictions upon legislative power that will insure the rights of the private citizen."). Cf. City Council of Montgomery v. Maddox, 89 Ala. 181, 7 So. 433, 436 (1889) (noting that the "injured" clause in the Alabama Constitution was adopted "to require the public to bear the burden of
We thus conclude that the Plaintiffs have sufficiently alleged that their homes were damaged for public use under Article I, Section 11 to withstand demurrer.
Finally, VDOT contends that at the very least the Plaintiffs' inverse condemnation claim as to their personal property must be dismissed. While VDOT acknowledges that "the sovereign prerogative of eminent domain extends to personal property," it contends that "the General Assembly has not extended that power to the [Transportation] Commissioner." As a result, VDOT submits, the Plaintiffs cannot recover under Article I, Section 11 for damage to their personal property.
To make this argument, VDOT relies solely on Burns, in which we explained that "[t]he owner whose property is taken or damaged for public use has a right to waive all other remedies and to sue upon an implied contract that he will be paid therefor such amount as would have been awarded if the property had been condemned under the eminent domain statute." 218 Va. at 627, 238 S.E.2d at 825. The General Assembly, as VDOT points out, has only authorized the Commissioner to acquire "lands, structures. . . and . . . interest[s] in lands that are necessary to construct, maintain, or repair the public highways." Code § 33.1-89(A).
We reject VDOT's contention. First, Burns cannot bear the weight that VDOT ascribes to it. There the property owners did not seek relief for damage to personal property, so we said nothing on the issue. That case, moreover, did not involve a sudden flood of the magnitude of the one that gave rise to this inverse condemnation suit.
Second, in City of Richmond v. Williams, 114 Va. 698, 77 S.E. 492 (1913), we held that a statute "in obedience to" Article I, Section 11's predecessor required compensation for the costs of moving lumber piled upon the property as a result of a partial condemnation. Id. at 701-03, 77 S.E. at 493-94. "[J]ust compensation," we said, "must be awarded for the land or other property taken, and damages must be awarded resulting to adjacent or other property of the owner, or to the property of any other person." Id. at 702-03, 77 S.E. at 494. And more recently, in Potomac Electric Power Co. v. Fugate, 211 Va. 745,
In accordance with Williams and Potomac Electric Power, we conclude that the Plaintiffs have sufficiently alleged an inverse condemnation claim under Article I, Section 11 for damage to their personal property to survive demurrer. We stress, however, that the Plaintiffs can only recover for damage to personal property that was appurtenant to their homes; for Article I, Section 11's primary focus is the taking and damaging of real property.
When the government constructs a public improvement, it does not thereby become an insurer in perpetuity against flood damage to neighboring property. And nothing in today's opinion should be read as imposing such an obligation on VDOT. But under our precedents, a property owner may be entitled to compensation under Article I, Section 11 of the Constitution of Virginia if the government's operation of a public improvement damages his property.
Reversed and remanded.
Justice McCLANAHAN, with whom Justice GOODWYN joins, dissenting.
Today the Court sanctions what can only be deemed a "constitutional tort," based on a theory of causation, not the principles of condemnation. Noticeably absent from the allegations in this case is a contention, or even facts purporting to show, that VDOT exercised its power of eminent domain in damaging Plaintiffs' properties. This deficiency is fatal to the Plaintiffs' claim since there is no cause of action for inverse condemnation without the exercise of such power.
When a property owner brings an action under Article I, Section 11 of the Constitution of Virginia, for the damaging of his property for a public use, he is entitled to be paid "such amount as would have been awarded if the property had been condemned under the eminent domain statute." Burns v. Board of Supervisors, 218 Va. 625, 627,
Plaintiffs do not allege that VDOT damaged their properties in the exercise of its power of eminent domain because they do not allege that the use of their properties was "necessary for the construction, reconstruction, alteration, maintenance [or] repair of the public highways of the Commonwealth" or for "purposes incidental thereto." Code § 33.1-89(A). Rather, Plaintiffs allege that their properties sustained flood damage caused by VDOT's failure to dredge or otherwise maintain Cameron Run. The only highway at issue is the Capital Beltway, and Plaintiffs do not contend the damaging of their properties was necessary, or even useful, for the maintenance of the Beltway.
In holding that Plaintiffs have stated a cause of action for a constitutional damaging, the majority has replaced the plain language of the Constitution requiring that the claimed damages be for public uses with a simple causation requirement. The majority describes the constitutional damaging provision as entitling a property owner to compensation "if the government's operation of a public improvement damages his property." Yet, the Constitution actually states that a property owner is entitled to compensation if the property is damaged "for" a public use. The generally accepted definitions of "for" include "having as [a] goal or object," "in order to be, become, or serve as," "in order to bring about or further," "to supply the need of," or "with the purpose or object of." Webster's Third New International Dictionary 886 (1993). Under any of these definitions, it is clear that Plaintiffs do not allege that VDOT flooded their lands "for" a public use. In other words, Plaintiffs do not claim that VDOT damaged their lands with the goal of, in order to, or to further the maintenance of the Beltway. By re-wording the Constitution to entitle property owners to compensation for damage "caused by" a public improvement, the majority has eliminated the requirement that the damages be "for" a public use, thereby altering the purpose and scope of Article I, Section 11, and enlarging the breadth of the power of eminent domain.
I would hold that Plaintiffs have not alleged sufficient facts to state a claim for constitutional damaging under Article I, Section 11.
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