City not liable for destroying driveway to construction site
Agbolade O. Odutayo and Bonita Odutayo v. City of Houston, 01-12-00217-CV (Tex. App. – Houston [1st Dist] April 16, 2013).
The First District Court of Appeals affirmed the granting of a plea to the jurisdiction in this inverse condemnation suit regarding a car dealership development. The Odutayos attempted to develop their property as a car dealership and were informed the property was in a watershed. Due to some “confusion” in correspondence, the Odutayos began providing fill to the land and connected a driveway to the adjacent roadway without a permit. They did not believe any permit was required if the fill was less than 1 foot height above natural grade. The City issued citations and the Odutayos filed suit alleging an inverse condemnation claim since they relied on the City’s letters in believing they could proceed and the City’s removal of the driveway was a denial of access.
The Fifth District Court of Appeals held that the removal of the driveway was not “material and substantial” and therefore not a taking. The only thing the Odutayos were trying to do with the property was develop it to be a car dealership. This one use was not impaired by the destruction of the entrance to the driveway. They were merely unable to begin construction, which they were not entitled to do until they had obtained the construction permits.
Finally, the court noted that since the pleadings and undisputed facts established no taking exists as a matter of law, there is no requirement to allow the Odutayos to replead. It’s interesting to note that the court did not comment on the fact they were given four opportunities to replead before the Plea to the Jurisdiction was ruled upon. The court affirmed the granting of the Plea in all respects.
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