HOUSTON - Telling a court that there still appears to “be ample space” for parking after taking a chunk of a business’s parking lot is not enough to grant the city of Houston immunity from an inverse condemnation lawsuit, the 14th Court of Appeals has found.
Pawn TX owns a pawn shop at the corner of North Durham Drive and West 19th Street with eleven head-in parking spaces along Durham Drive, where the shop’s entrance is located, and eight head-in parking spaces along West 19th Street.
In 2022, the City of Houston started an improvement project along Shepherd and Durham Drives that included the creation of a bike lane, raised curbs, and the construction of sidewalks.
According to the First Court’s opinion, it is undisputed that the improvements would border the pawn shop’s property but would be in the city’s right-of-way.
“Because the installed curbing would be directly behind the eleven parking spaces along Durham Drive, it would make those spaces unusable,” the opinion states.
Pawn TX sued the city for inverse condemnation, alleging the property cannot function with the remaining eight parking spots, and that it will have to construct a new parking area on the east side of the building and reconfigure the store to move the entrance from its Durham frontage to face West 19th Street at an estimated cost of more than $500,000.
The pawn shop claimed the city’s actions resulted in the taking of its property without adequate compensation in violation of article I, section 17 of the Texas Constitution.
The city responded by filing a plea to the jurisdiction, which the trial court granted without holding a hearing.
On appeal, Pawn TX asserts that it pleaded a compensable taking of its property resulting from an intentional act by the city for public use.
“Before the City’s project, Pawn TX had adequate parking, which was vital to its business,” states Pawn TX’s appellate brief. “The change in access to Pawn TX’s property resulting from the City’s public project effectively eliminates this parking. This is the kind of special, particularized injury for which compensation is required.”
In support of its jurisdictional plea, the city attached an affidavit by its project engineer, who did not dispute that the curbing would render the pawn shop’s eleven head-in parking spaces unusable but stated that there “appears to be ample space” on Pawn TX’s remaining property to “relocate” parking spaces.
“Yet, ample space to relocate parking is not proof that those new spots would be enough for the pawn shop to function,” the opinion states. “Nothing in the City’s affidavit addresses the functionality of the pawn shop without the eleven parking spaces or the loss of ‘significantly higher traffic counts’ on Durham Drive than West 19th Street.
“The City may very well show with proper evidence on remand that Pawn TX is not entitled to damages because the remaining eight parking spots are not unreasonably deficient, but it has not made that showing at the plea to the jurisdiction stage.”
The First Court reversed the trial court’s order granting the city’s plea to the jurisdiction and remanded the case for further proceedings.
Appeals case No. 14-24-00869-CV
