Bridge reconstruction which prevented property owner from turning is trailer into property was not a material or substantial impairment to access says First Court of Appeals
Darrell Church v. City of Alvin, Texas 01-13-00865-CV (Tex. App. – Houston [1st Dist.] June 25, 2015)
In this inverse condemnation involving decrease access to a driveway entrance the Houston First District Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.
A bridge runs partly in front of Church’s property. Abutting the bridge is a government-maintained open bar ditch that runs alongside the paved road. Driveway access to Church’s property is via an entrance across that ditch. The bridge in front of Church’s property was determined obsolete by the City and the Texas Department of Transportation (“TxDOT”) and was set for replacement. Church told the City project manager that he uses a 40-foot horse trailer for business and recreation and that the bridge replacement would interfere with his ability to turn the trailer into his property. And while the record seems to indicate the project manager and Church worked out a handwritten drawing for dimension adjustments, the City Council never approved that agreement. Church testified that the new bridge extends approximately 20 feet beyond where the previous bridge ended, which narrowed the available turning radius when entering or exiting his property in the near lane. Church sued the City over the impact to his property. He also sued for alleged increased flooding. The City filed a plea to the jurisdiction which was granted.
The court first addressed a matter of whether the plea was granted as to Church’s second or third amended petition, which is only important because the court held Church had the ability to replead to cure any defects and still failed. Next, the court determined that diminished value resulting from impaired access is compensable only when access is materially and substantially impaired. Church did not lose any of his own land to the extension and the narrowing was purely within the right-of-way, which the City was authorized to utilize. Church retains access to the property and roadway. It therefore is not a material or substantial impairment. The alleged increase in flooding does not amount to an intentional taking as there was no evidence the City knew that increased flooding would occur. And since no City employees utilized motor driven equipment (only TxDOT employees), the City’s immunity was not waived under the Texas Tort Claims Act. The plea was properly granted.
If you would like to read this opinion click here. Panel: Justice Higley and Justice Bland. Memorandum Opinion by Justice Bland. The attorneys listed for the City are Patricia L. Hayden, John H. Hightower and Bobbi J. Kacz. The attorney listed for Church is Iain G. Simpson.
