Restaurant’s inverse condemnation claim for temporary and permanent decreased access permitted to go forward

Jose Gerardo Padilla, et al v. Metropolitan Transit Authority of Harris County 14-14-00938-CV (Tex. App.- Houston, May 24th 2016)

This is an inverse condemnation case where the 14th Court of Appeals reversed the dismissal and remanded for trial.

Padilla’s restaurant was located on the southeast corner of an intersection. Metro contracted with HRT for construction of a five-mile extension of an existing light rail line, referred to as the North Line. The Contract admonished HRT not to use private property in the construction of the North Line or to engage in acts of negligence that would harm property owners along the route. According to Padilla, construction prevented customers from accessing the restaurant property and blocked all of the entrances and exits for months at a time. Additionally, the new configuration resulted in permanent restrictions on traffic movements in the area. Eventually, the restaurant closed. Pedilla filed an inverse condemnation suit. Metro filed a plea to the jurisdiction which the trial court granted.

The court held not all damage caused by government construction projects is compensable. Property owners may not recover for injuries sustained in common with the community such as damage from noise, dust, increased traffic, etc. However, damages peculiar to a property owner, such as impaired access, are not barred by the concept of community injury. To be successful the plaintiff must show there has been: (1) a total but temporary restriction of access; (2) a partial but permanent restriction of access; or (3) a temporary limited restriction of access brought about by an illegal activity or one that is negligently performed or unduly delayed. According to Metro, although the construction caused occasional disruptions along the route, HRT always made alternative arrangements so customers could access the restaurant. Therefore, this was nothing more than the type of non-compensable inconveniences associated with all government transportation projects. However, Padilla testified access was blocked entirely for months at a time. The court held Padilla’s affidavit was not conclusory and was competent evidence because he provided background facts to explain the basis of his statements. It created a fact issue. Additionally, to avoid the element of Metro’s intent to harm property, Metro asserted the acts were carried out by a contractor. Therefore, Metro lacked intent under a takings analysis. The court held a governmental entity cannot avoid its constitutional obligation to compensate private property owners simply by proving that the project was carried out by contractors. As a result, the trial court erred when it granted the plea. The case is reversed and remanded.

To read the opinion click here Panel consists of Justices Boyce, Busby and Brown. Justice Busby issued the opinion. Attorney for Jose Gerardo Padilla, Giovanna Padilla and Houston Best Foods & Services, LLC d/b/a Doneraki Fulton is Frederick D. Junkin. Attorney for Metropolitan Transit Authority of Harris County is Michael Sydow, Sr.