Court of Appeals rules for METRO in suit brought by owner of land and business adversely affected by construction of light rail line, holding that impairment of access to his store was not sufficiently severe to merit compensation.
Burris and Wheelchair & Scooter Express, LLC v. Metro of Harris County (Tex.App.- Houston [1st Dist.] Aug. 14, 2008)(Keyes) (inverse condemnation case, taking, ingress easement, no material and substantial impairment of access)
O P I N I O N [excerpt]
In this inverse condemnation suit, appellants, James R. Burris and Wheelchair & Scooter Express, L.L.C., ("WSE") appeal the trial court's order that granted summary judgment in favor of appellee, Metropolitan Transit Authority of Harris County, Texas ("METRO"). In four issues on appeal, appellants argue that the trial court erred in (1) granting METRO's motions for summary judgment on appellants' claim that access to the property is materially and substantially impaired by a METRO project; (2) granting METRO's motions for summary judgment on plaintiffs' permanent taking claims associated with METRO's taking of appellants' ingress easement appurtenant; (3) denying appellants' motion for partial summary judgment claiming that there has been a compensable taking by METRO of the ingress easement appurtenant and that access to their property has been materially and substantially impaired; (4) granting METRO's motions for summary judgment on the claims asserted by WSE because WSE is not an independent third party lessee, but rather is Burris's wholly owned business which has an ownership interest that has been damaged by METRO's actions; and (5) granting METRO's objections to summary judgment evidence.
* * *
Because appellants still retain full access to the Property from San Jacinto via Wichita, as well as egress onto San Jacinto, we conclude that closure of appellants' entrance off of San Jacinto did not amount to a material and substantial impairment. See City of San Antonio, 218 S.W.3d at 66-67 ("Closing an access point and merely causing diversion of traffic or circuity of travel does not result in a compensable taking."); Heal, 917 S.W.2d at 11 (holding that plaintiff failed to show material and substantial impairment). Accordingly, we conclude that appellants' claims are not compensable. See City of San Antonio, 218 S.W.3d at 67; Wood Oil, 751 S.W.2d at 865; Jordan v. Landry's Seafood Restaurant, Inc., 89 S.W.3d 737, 743 (Tex. App.--Houston [1st Dist.] 2002, pet. denied) (holding no taking when "overall plan provides ample parking and easy access to the property, and the restricting of traffic does not materially and substantially impair [plaintiff] from entering the property").
Because we conclude, as a matter of law, that the impairment of access at issue here does not rise to the level of material and substantial and therefore appellants' claims are not compensable, we need not address appellants' fourth issue, which contends that the trial court erred in granting METRO's motions for summary judgment on the claims asserted by WSE because WSE is not an independent third party lessee, but rather is Burris's wholly owned business which has an ownership interest that has been damaged by METRO's actions.
We overrule appellants' first, second, and third issues.
Disposition: AFFIRM TRIAL COURT'S SUMMARY JUDGMENT IN FAVOR OF METRO
Opinion by Justice Evelyn Keyes
Panel: Before Justices Taft, Keyes and Alcala
Appellate cause no.: No. 01-06-00981-CV
Full case style: James R. Burris and Wheelchair & Scooter Express, L.L.C. v. Metropolitan Transit Authority (aka METRO) of Harris County
Appeal from County Civil Court at Law No 1 of Harris County, TX
Trial Court Judge: Hon. R. Jack Cagle