Nicholas Litinas v. City of Houston

Reversed and Remanded and Majority and Concurring Opinions filed
December 5, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00746-CV

NICHOLAS LITINAS, Appellant

V.
CITY OF HOUSTON, Appellee

On Appeal from the Co Civil Ct at Law No 2
Harris County, Texas
Trial Court Cause No. 1192666

MAJORITY OPINION

In this inverse condemnation case arising from the City of Houston’s
development of the intersection at West 28th Street and North Durham Drive,
landowner and small business owner appeals the trial court’s final judgment
sustaining the City’s plea to the jurisdiction. Because we conclude the City is not
entitled to judgment as a matter of law, we reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND

Litinas owns and operates a flower shop at 736 West 28th Street and 2716
North Durham Drive, fronting on North Durham Drive and West 28th Street.1 From
both streets, his customers can park in head-in spaces that Litinas constructed as part
of the improvements to the property. Litinas brought this inverse condemnation
action against the City and a local redevelopment authority, based on road and
sidewalk modifications which he asserted would eliminate the head-in parking and
damage the value of his property.

Petition

The Petition alleges that in late 2021, the City of Houston and the Memorial-
Heights Redevelopment Authority (the “Authority”) initiated a capital improvement
program–the Shepherd, Durham, and Selected Cross Streets Reconstruction Project
(the “Reconstruction Project”). As part of the project, the intersection at North
Durham and West 28th is being reworked within the City’s right-of-way to
accommodate a bicycle lane and new sidewalk. The improvements also include
curbing to be installed along most of the areas Litinas currently uses as head-in
parking. In connection with the Authority’s project, the Petition alleges that on
March 18, 2022, the City sent Litinas a letter informing him that it would be reducing
his driveway from its current 160-foot width to just 17 feet. The letter further states
that the City is acting “in partnership with Tax Increment Reinvestment Zone (TIRZ)

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Appellant owns a 0.379-acre tract of land on the corner of West 28th Street and North
Durham Drive. Appellant’s property consists of eleven lots treated as four different addresses: 736
W. 28th Street; 2710 N. Durham Drive; 2716 N. Durham Drive; and 741 W. 27th Street. Lots
associated with two other addresses are used as additional parking for his customers, located across
an alleyway on the southern side of his business.
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5” and that the “driveway will be modified as part of the project.” Although the
City’s letter only references a reduction of the driveway on the North Durham Drive
side of the property, the project
schematic attached to the letter
illustrates that the property’s
driveway on the West 28th
Street side will be significantly
narrowed as well.

The improvements are
all within the City’s right-of-
way, but their configuration
will block most of the head-in
parking spaces for Litinas’s
store. Litinas asserted that the
Reconstruction Project was a “taking” of his property, eliminating his head-in
commercial parking, and permanently damaged the market value of his property.
Litinas generally sought monetary relief in excess of $500,000.

Proceedings on the City’s Plea to the Jurisdiction

The City filed its Answer followed by a Plea to the Jurisdiction. The
arguments set out in the Plea are substantially based on the City’s premise that “[t]he
parking spaces at issue in the lawsuit are NOT on Plaintiff’s actual property but in
the City of Houston’s right of way.” In a supplemental briefing, the City later
conceding this to be incorrect, but stated that the “location of the parking spaces is
irrelevant to the City’s contention that the construction wholly contained in the right-
of-way did not result in a taking of any property or property right belonging to the
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Plaintiff.” The City maintained that Litinas failed to plead or prove an actionable
vested property interest to pursue an inverse condemnation claim, including a claim
under a theory of impaired access.

Litinas filed a response to the Plea, supported by his affidavit and the affidavit
of a local certified architect, Scarlett McKenzie. In his affidavit Litinas states
“head-in parking is critical for my business, which consists of both repeat customers
and impulse buyers,” that the project “eliminates all parking for the store,” and forces
him “to either relocate or rebuild with a much smaller footprint and inferior parking.”

McKenzie’s affidavit, based on her background, experience, and review of the
project plans, states that the parking serving the flower shop would be eliminated.

4. I have reviewed project plans as well as an overlay of these plans on
aerial photography of the subject property. As it impacts the property,
the City’s project calls for the construction of curbing along most of the
property’s N. Durham Drive frontage, leaving only a 17-footwide, exit-
only driveway from the property to the roadway, to be accessed through
the adjacent alley along the south side of the flower shop. Most of the
property’s West 28th Street frontage will also be curbed except for a
30-foot-wide, two-way driveway that dead-ends into the existing
parking field along West 28th Street.
5. As a result of this construction and these changes, virtually all of the
existing parking serving the flower shop is eliminated. The access and
parking remaining to the property owner after construction of the City’s
project are not suitable to its existing use and improvements."
The City replied and offered affidavits in response. Contradicting Litinas’s
assertion that the head-in spaces comprised of all parking available to his florist, the
City offered an affidavit attaching four photographs of parking associated with
Litinas’s florist, including the two below, one which depicts a sign posted at the
store’s entrance near the head-in parking indicating alternate available parking, one

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which depicts the parking on the adjacent property.

After an oral hearing, the trial court granted the City’s Plea and dismissed
Litinas’s claim for lack of jurisdiction.

II. ISSUES AND ANALYSIS

Litinas complains that the trial court erred in granting the City’s Plea to the
Jurisdiction because his loss of parking is a compensable taking under Article I § 17
of the Texas Constitution. In turn, the City argues that Litinas failed to plead the
theory of impaired access which the City contends the appeal is exclusively based,
and therefore cannot be raised on appeal. Alternatively, the City contends if Litinas
had pled the theory he failed to show “a material and substantial loss of access to his
property.”

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for
lack of subject matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex.
2004). Whether the plaintiff has met its burden to demonstrate the trial court’s
subject-matter jurisdiction is a question of law that we review de novo. Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the
pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent. Id. If the
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pleadings allege facts that neither demonstrate the trial court’s jurisdiction nor
affirmatively demonstrate incurable defects in jurisdiction, the issue is one of
pleading sufficiency and the plaintiff should be afforded the opportunity to amend.
Id. at 226–27. If a jurisdictional plea challenges the existence of jurisdictional facts,
we review the evidence relevant to the jurisdictional challenge to determine if a fact
issue exists. Id. at 227. We take as true all evidence favorable to the nonmovant, and
we indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. Id. at 228. If the relevant evidence creates a fact question regarding the
jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and
the fact finder will resolve the fact issue. Id. at 227-28. However, if the evidence
relevant to the jurisdictional issue is undisputed or fails to raise a fact question on
the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter
of law. Id. at 228.

The Texas Constitution provides a clear and unambiguous waiver of
immunity from suit for inverse condemnation claims under article I, section 17. Tex.
Const. art. I, § 17(a); City of Dallas v. Stewart, 361 S.W.3d 562, 568 (Tex. 2012).

Article I, section 17 of the Texas Constitution waives governmental immunity
in inverse condemnation cases and authorizes compensation for unconstitutional
takings. See Tex. Const. art. I § 17; Jim Olive Photography v. Univ. of Houston Sys.,
624 S.W.3d 764, 772 (Tex. 2021). “When the government takes private property
without first paying for it, the owner may recover damages for inverse
condemnation.” Tex. Dep’t of Transp. v. Self, 690 S.W.3d 12, 25–26 (Tex. 2024)
citing Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004).

To properly assert an inverse condemnation claim against a governmental
entity, a party must plead that (1) an entity with eminent domain power intentionally
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performed certain acts, (2) that resulted in taking, damaging, or destroying the
property for, or applying it to, (3) public use. See, e.g., Sw. Bell Tel., L.P. v. Harris
County Toll Rd. Auth., 282 S.W.3d 59, 61 (Tex. 2009); Gen. Servs. Comm’n v.
Little–Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). The parties do not
dispute the City’s action as intentional and for public use. They only disagree as to
whether the City’s Reconstruction Project is a compensable taking of Litinas’s
property. Specifically, Litinas contends that the Reconstruction project impairs
access to his property and thereby diminishes the value of his property.

A. Did Litinas waive his theory of impaired access by failing to plead it to the
trial court?
The City claims that because Litinas did not plead the theory of impaired
access in his petition, he cannot raise it on appeal. The City’s argument could be
construed as either one of issue preservation or one of pleading sufficiency. In the
case of preservation, Litinas raised the theory of impaired access to the trial court in
response to the City’s plea to the jurisdiction. Because Litinas timely made the court
aware of his argument, he has preserved the issue for appeal. Burbage v. Burbage,
447 S.W.3d 249, 256 (Tex. 2014).

To the extent that the City argues that Litinas failed to plead a valid inverse
condemnation claim based on a theory of impaired access, we disagree. In essence,
the City contends that because the word “access” does not appear in Litinas’s
petition, he cannot argue impaired access here. Nevertheless, Litinas’s petition
made clear that his complaint was that the Reconstruction Project eliminated his
head-in parking, which is but another way of describing “access.” Litinas’s
argument in response to the City’s jurisdictional plea was even more specific:

The proposed configuration of these driveways is completely
incompatible with the current parking layout. None of the parking
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spaces can be accessed through the new driveways. The head-in
parking existed in its current configuration for over twenty years,
through multiple permitted remodels with this parking configuration.
The change in access and resulting loss of the head-in parking located
adjacent to the flower shop permanently damaged the market value of
Litinas’s property.
The trial court had before it and properly considered Litinas’s theory of impaired
access in determining whether it had jurisdiction. See State v. Fiesta Mart, Inc., 233
S.W.3d 50, 56 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (holding that
plaintiff could recover damages under a theory of impaired access because the
argument was presented in response to a jurisdictional plea, even when plaintiff did
not allege impaired access in the petition). Litinas timely presented his theory of
impaired access to the trial court, thus preserving the argument for appeal. However,
if the City’s plea was granted on the grounds that Litinas’s pleadings were
insufficient, he should have been given an opportunity to amend.

B. Did the trial court err in holding that it did not have jurisdiction over
Litinas’s inverse condemnation claim?
A direct physical invasion of property is not required under the Texas
Constitution to entitle an owner to compensation. State v. Northborough Ctr., Inc.,
987 S.W.2d 187, 190 (Tex. App.—Houston [14th Dist.] 1999, pet. denied); See
DuPuy v. City of Waco, 396 S.W.2d 103, 108 (Tex.1965). Texas provides
landowners a right to access their property:

[A]n abutting property owner possesses an easement of access which is
a property right; that this easement is not limited to a right of access to
the system of public roads; and that diminishment in the value of
property resulting from a loss of access constitutes damage.
DuPuy, 396 S.W.2d at 108. Diminished value resulting from impaired access is
compensable when access is materially and substantially impaired. State v. Dawmar

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Partners, Ltd., 267 S.W.3d 875, 878 (Tex. 2008) (citing City of Waco v. Texland
Corp., 446 S.W.2d 1, 2 (Tex. 1969)). Under a theory of impaired-access, a taking
results in diminution of market value by unreasonably limiting the owner’s ability
to access its property for its intended use. See, e.g., DuPuy, 396 S.W.2d at 110
(holding that plaintiff was deprived of reasonable access when his property was left
abutting a cul-de-sac); Texland, 446 S.W.2d at 4 (holding that there was a material
and substantial impairment of access where transport vehicles that owner’s property
was specifically intended to accommodate could not adequately access the property
after government action); City of Beaumont v. Marks, 443 S.W.2d 253, 256 (Tex.
1969) (holding that access was materially and substantially impaired when a railroad
grading separation project prevented large trucks from reaching the property).

The “materially and substantially impaired test” acknowledges situations in
which “normal access remained reasonably available, but access for which the
property was specifically intended was rendered unreasonably deficient.” State v.
Heal, 917 S.W.2d 6, 10 (Tex 1996); City of Houston v. Song, No. 14-11-00903-CV,
2013 WL 269036, at *3 (Tex. App.—Houston [14th Dist.] Jan. 24, 2013, pet.
denied). Access to property is not materially and substantially impaired merely
because the remaining access points are less convenient. Heal, 917 S.W.2d at 11;
State v. Schmidt, 867 S.W.2d 769, 780 (Tex. 1993); see also City of San Antonio v.
TPLP Office Park Props., 218 S.W.3d 60, 66–67 (Tex. 2007) (“Closing an access
point and merely causing diversion of traffic or circuity of travel does not result in a
compensable taking.”). If suitable access remains, a taking will only occur if the
property’s purpose for which it was specifically intended was rendered unreasonably
deficient. See Heal, 917 S.W.2d at 10.

Litinas’s Petition asserts jurisdiction by-passing the City’s governmental

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immunity based on its claim “brought under Article I, Section 17 of the Texas
Constitution” which if valid would constitute a waiver of governmental immunity.
The Petition asserts the City’s Reconstruction Project which called for “driveway
reduction” on the two side streets eliminated head-in parking. The Petition alleges
that he has retained this parking configuration for over twenty years and “the
property has gone through multiple permitted remodels with this parking
configuration,” and that the City had never previously required Litinas to reduce the
driveway. The Petition alleges the driveway reduction planned for the
Reconstruction Project would eliminate all nineteen head-in parking spaces adjacent
to his flower shop and this resulted in damages in excess of $500,000 from loss of
market value.

In its Plea to the Jurisdiction, the City argued that the roadwork “has not
materially impaired direct access to Litinas’ property” and presented evidence that
Litinas retained alternative parking on his other nearby properties to service the
florist. The City did not affirmatively dispute Litinas’s assertion that the
Reconstruction Project eliminated all head-in parking on the lot where his flower
shop stood and did not dispute that Litinas has permissibly operated his business in
its current configuration since at least November 2006.

In Litinas’s response to the Plea he asserted that having remodeled over the
years obtaining building permits consistent with the parking configuration, he
suffered loss in value to the improvements on the property. In his affidavit he
contends “[t]he change in access to my driveways eliminates all parking for the store,
forcing me to either relocate or rebuild with a much smaller footprint and inferior
parking.” Litinas’s response did not address the City’s evidence of his existing use
and continuing availability of parking on other lots he owns nearby.

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In determining whether diminished value due to impaired access is
compensable, we look to whether other access points remain after the taking and
whether those access points are reasonable. State v. Dawmar Partners, Ltd., 267
S.W.3d 875, 878 (Tex. 2008). Remaining access is analyzed in light of the actual or
intended uses of remaining property as reflected by existing uses and improvements
and applicable zoning. See, e.g., Texland, 446 S.W.2d at 4 (holding that access was
impaired, even though normal access remained reasonably available, because access
for which the property was specifically intended was rendered unreasonably
deficient). Although the Reconstruction Plan’s design eliminates direct, head-in,
access to multiple spaces along the side of each street, access points remain: an
entrance drive on Durham, an access point on West 28th Street, and one through a
City Alley on Durham between West 27th and West 28th Street. However, as
Litinas complains, the access points are incompatible with the parking design on this
lot. Despite the Plan’s provision of driveways as means for vehicles to enter the
area currently used for parking, the record fairly supports Litinas’s unchallenged
evidence that the overall impact of the curbing and other improvements effectively
eliminates virtually all store-front head-in parking spots on the lot with the flower
shop. Neither party presents any evidence with respect to applicable zoning, but
appellant’s historical use of the property as a flower shop with convenient front-end
parking is unchallenged.

The spillover lot 2 illustrates that some of the remaining access points can still
accommodate parking, but only parking on the adjacent property, which necessarily

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Litinas did not contest his ownership in the alternative lot or the evidence illustrating the
alternative parking is accessible through the City Alley between W 28th and 27th street or a driveway on 27th
Street. On appeal he admits his ownership in the lot separated from the flower shop property by a City
alley which he concedes on appeal “used for spillover parking (on dirt) or seasonal inventory.”
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requires that customers walk across the City’s alley to the property. Proof of the
existence of the spillover lot, however, does not address Litinas’s affidavit testimony
explaining the relationship of the primary head-in parking to the character of his
business—that the head-in parking was critical to his type of business, a florist,
dependent on impulse buyers. The access point at 28th Street would be
insufficient and the access on Durham cannot accommodate the pre-existing head-
in parking. The only access to parking the Plan accounts for is to the spillover lot
on the other side of the City’s alley. Although the spillover lot may be considered
as evidence relevant to the value of the property in assessing damages, the City did
not provide evidence conclusively showing that the access points to service that lot
were not unreasonably deficient as to the lot on which the flower shop is situated,
and in light of the purpose of the commercial use.

We consider this case comparable to the Texland case, where the record
showed that transport vehicles essential to property’s industrial use were not shown
unable to access and park on the property, parking was “not impossible,” but rather
“most difficult” such that the access had been restricted in a way that the vehicles
could not reasonably park, back up, or maneuver within the property on a regular
basis. 446 S.W.2d at 4. The court held that the difficulty and impracticality to the
transport vehicles constituted a substantial and material impairment of access to the
property, and the property was damaged as a result. Id. In this case, Litinas’s
property required a convenience critical to servicing “repeat customers and impulse
buyers,” and the Reconstruction Plan’s elimination of head-in parking rendered the
property unreasonably deficient for this fast-service retail purpose of selling flowers.
As in Texland, the City’s Project left Litinas with some remaining access points,
which did not render it impossible to enter the property. However, for the purposes

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specific to the property, in this case, the fast-service retail of flowers, customers
could no longer park directly in front of the flower shop on the same lot as the flower
shop.

We conclude the City failed to negate as a matter of law that the
Reconstruction Plan constituted a substantial and material impairment to access
Litinas’s property.

III. CONCLUSION

We reverse the trial court’s final order and remand the case to the trial court
for further proceedings consistent with this opinion.

/s/ Randy Wilson
Justice

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson
(Christopher, C.J., concurring).

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