Opinion issued April 16, 2013




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00217-CV
                          ———————————
    AGBOLADE O. ODUTAYO AND BONITA ODUTAYO, Appellants
                                      V.
                       CITY OF HOUSTON, Appellee



              On Appeal from County Civil Court at Law No. 4
                           Harris County, Texas
                      Trial Court Case No. 983641



                         MEMORANDUM OPINION

      Agbolade O. Odutayo and Bonita Odutayo appeal the trial court’s grant of

the City of Houston’s plea to the jurisdiction on the Odutayo’s inverse

condemnation claim. On appeal, the Odutayos argue in three issues that the trial
court erred by granting the plea to the jurisdiction and, alternatively, that they

should have been allowed the opportunity to replead.

      We affirm.

                                   Background

      At some point before January 27, 2009, the Odutayos acquired an

undeveloped two-acre piece of land located on Almeda Road in Houston, Texas.

Almeda Road is a state-owned roadway. The area of Almeda Road where the

Odutayos’ property is located has drainage ditches running along the side of the

road. These ditches are also owned by the State of Texas.

      The Odutayos intended to develop the property to be a car dealership. To

that end, on January 27, 2009, the Odutayos applied to the City of Houston Public

Works and Engineering Department for “storm drainage, sewer, and waste water

availability.”   The Public Works and Engineering Department responded on

February 2, 2009 acknowledging the application.         The letter stated that the

property was located in the Sims Bayou watershed and that approval by the Harris

County Flood Control District was required. It also stated that a copy of the letter

was required to be attached to their construction plans when applying for a

building permit.

      In a one-sentence paragraph, the letter also stated, “Please note, fill

exceeding one (1) foot in height above natural grade requires a grading permit in


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compliance with appendix E, 2000 International Building Code, unless exempted

by Section E103.2.” The Odutayos interpreted this sentence to mean that they

could immediately start adding earth—or “fill”—to the property without obtaining

any permits as long as the property was not raised more than one foot above

natural grade. Accordingly, the Odutayos extended a pre-existing driveway along

the drainage ditch by about six feet and began bringing truckloads of dirt onto the

property.

      When it became aware of this activity, the City of Houston began issuing

citations to the Odutayos for improperly adding fill to the property and for having a

driveway connecting their property to Almeda Road when no permits had been

issued for construction of the driveway. Specifically, as it relates to the existence

of the driveway, the City of Houston issued citations to the Odutayos’ project

manager on April 2, 2009, for “causing to be constructed a driveway connecting

private property with a public street.” The City of Houston again issued citations

to the project manager on April 13, 2009, for “1) failure as agent of owner to

comply with the order of the planning official, to wit: remove culvert; and 2) cause

to be constructed, a driveway connecting private property with a public street.”

      Despite receiving numerous citations, the Odutayos refused to stop adding

fill to their property and refused to remove the driveway over the drainage ditch or




                                         3
to take any other steps to obtain approval for the driveway. Around May 14, 2009,

the City of Houston removed the portion of the driveway along the drainage ditch.

      Around this time, the Odutayos hired Depak Shah, a civil engineer, to help

them obtain the necessary permits to develop the car dealership. Shah obtained

permits for the Odutayos to rebuild the driveway across the drainage ditch. He and

the Odutayos, however, allowed the permits to expire without building the

driveway. Shah explained in his deposition the reason for letting the permits

expire:

      Q.    And the new driveway has not been installed?

      A.    No.

      Q.    Do you know why it has not been installed?

      A.    Because we were trying to clear all the permits for the building
            and everything.

      Q.    Well, shouldn’t the driveway be the first permit to be cleared?

      A.    No. But once we get all th[ese] permit[s], then we can install
            the driveway.

      The Odutayos filed suit against the City of Houston on January 26, 2011,

asserting a claim of inverse condemnation. The City of Houston answered and

filed special exceptions, arguing that the Odutayos had failed to properly assert an

inverse condemnation claim. A week later, the Odutayos filed their first amended

petition. The City of Houston filed amended special exceptions, again arguing that

the Odutayos had failed to properly assert an inverse condemnation claim. The
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trial court agreed, ordering the Odutayos to state their elements for their inverse

condemnation claim.       The Odutayos subsequently filed their third amended

petition, which is their live pleading.1

      The third amended petition asserted a “Claim for Taking in Violation of

Texas Constitution Article 1, Section 17.” They alleged that they, “in reliance on

the letter received from the City of Houston, made improvements to the

property. . . . Defendant then reversed its actions and destroyed the driveway from

Almeda Genoa to Plaintiffs’ property without compensation to the Plaintiffs and

totally eliminated ingress and egress to the property.”        The Odutayos further

alleged that the City of Houston’s actions resulted in a taking of property for public

use. “The actions of the City, the restriction on egress and ingress from the

property and the refusal to issue a building permit in a timely fashion destroyed the

economical[ly] viable use of the property.”

      The City of Houston subsequently filed a plea to the jurisdiction and motion

for summary judgment. It argued that the Odutayos had failed to properly plead an

inverse condemnation claim and, accordingly, its immunity from suit remained

intact. In their response, the Odutayos argued that they had pleaded “a valid




1
      If the Odutayos filed a second amended petition, it is not a part of the record on
      appeal.
                                           5
‘denial of access’ takings claim” and that the destruction of the driveway

constituted a physical taking.2

      At the hearing, the Odutayos explained that they were asserting only a claim

for a physical taking, not a regulatory taking. Specifically, their attorney told the

trial court, “[I]t is clear in my third amended petition that I am not talking about a

regulatory taking. I’m talking about a physical taking where they come in without

permission from the State of Texas and remove the driveway.”

      The trial court granted the plea to the jurisdiction, dismissing the Odutayos’

claim with prejudice. This appeal followed.

                              Plea to the Jurisdiction

      The Odutayos argue in their first issue that the trial court erred by granting

the plea to the jurisdiction. They argue in their second and third issues that they

should have been given the opportunity to replead.

A.    Standard of Review & Applicable Law

      A plea to the jurisdiction challenges the trial court’s subject-matter

jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26

(Tex. 2004). Because subject-matter jurisdiction is a question of law, we review




2
      The Odutayos also alleged in one sentence of their response that they had a valid
      inverse condemnation claim because the City of Houston had denied them permits
      for development of the property. They did not otherwise develop this argument.
                                          6
de novo a trial court’s ruling on a plea to the jurisdiction. State v. Holland, 221

S.W.3d 639, 642 (Tex. 2007).

      The plaintiff bears the initial burden of alleging facts that affirmatively

demonstrate that the trial court has subject-matter jurisdiction over a case. Tex.

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When a

plea to the jurisdiction challenges the sufficiency of plaintiff’s pleadings to confer

jurisdiction, we determine whether the pleader has alleged facts that affirmatively

demonstrate the court’s jurisdiction to hear the cause. See Miranda, 133 S.W.3d at

226. We construe the pleadings liberally in favor of the plaintiff and look to the

pleader’s intent.     Id.   If the pleadings affirmatively negate the existence of

jurisdiction, then a plea to the jurisdiction may be granted without allowing the

plaintiff an opportunity to amend its petition.        Id. at 227.    Otherwise, if the

pleadings do not affirmatively demonstrate the trial court’s jurisdiction, the

plaintiff should be afforded the opportunity to amend its petition. Id. at 226–27.

      When a plea to the jurisdiction challenges the existence of jurisdictional

facts, the trial court is required to consider relevant evidence submitted by the

parties. Id. at 227. If the evidence creates a fact issue regarding jurisdiction, the

trial court does not rule but, instead, submits the issue to the fact finder in a trial on

the merits. Id. at 227–28. Otherwise, the trial court rules on the motion as a matter

of law. Id. at 228.

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      The Texas Constitution provides, “No person’s property shall be taken,

damaged or destroyed for or applied to public use without adequate compensation

being made . . . .” TEX. CONST. art I, § 17. When a governmental entity takes,

damages, or destroys property without compensation, the damaged party can bring

a claim for inverse condemnation. City of Dallas v. Stewart, 361 S.W.3d 562, 567

(Tex. 2012). To prevail on an inverse condemnation claim, the plaintiffs must

prove “(1) the State intentionally performed certain acts, (2) that resulted in a

‘taking’ of property, (3) for public use.”        Gen. Servs. Comm’n v. Little-Tex

Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex. 2001). Immunity from suit is

waived for validly asserted inverse condemnation claims. See City of Dallas v.

Blanton, 200 S.W.3d 266, 272 (Tex. App.—Dallas 2006, no pet.) (holding when

inverse condemnation claim is not validly alleged, governmental immunity applies

and trial court should grant plea to jurisdiction).

      Generally, there are two methods by which a governmental entity can

commit a taking: physical or regulatory. Mayhew v. Town of Sunnyvale, 964

S.W.2d 922, 933 (Tex. 1998). A physical taking is an unwarranted physical

occupation or damage to the property. Id. “[A] regulatory taking occurs when

governmental regulations deprive the owner of all economically viable use of the

property or totally destroy the property’s value” or when “the regulation has a




                                           8
severe enough economic impact and the regulation interferes with distinct

investment-backed expectations.” Id. at 936–37.

      For a physical taking, a direct invasion of property is not required. State v.

Northborough Ctr., Inc., 987 S.W.2d 187, 190 (Tex. App.—Houston [1st Dist.]

1999, no pet.). “Property,” as it applies to takings law, does not only mean the real

estate, but every right which accompanies its ownership. See DuPuy v. City of

Waco, 396 S.W.2d 103, 108 (Tex. 1965). One of those rights is the right to an

easement for right of access to public roads. Id. Such claims in an inverse

condemnation action are known as “impaired access” or “denial of access” claims.

“[I]mpaired access is compensable only when access is materially and substantially

impaired.” State v. Dawmar Partners, Ltd., 267 S.W.3d 875, 878 (Tex. 2008).

Whether access has been materially and substantially impaired is determined as a

matter of law. Id.

B.    Analysis

      The Odutayos argue in their first issue that the trial court erred by granting

the plea to the jurisdiction. They assert that they were not violating any ordinances

by adding fill or by having a driveway constructed without permits and that, even

if they were violating ordinances, the City of Houston could not deny them the

right to access by removing the portion of the driveway along the State of Texas’s

drainage ditch as a response. The City of Houston argues that it has not committed


                                         9
a taking by removing the unpermitted driveway along the drainage ditch because it

was exercising a valid police power. We do not need to resolve these disputes of

the Odutayos’ violations or the City of Houston’s authority because we hold that

any impairment was not “material and substantial” as a matter of law.

      Whether any impaired access is material and substantial is a threshold issue

that is resolved as a matter of law. Id. Impaired access is analyzed “in light of the

actual or intended uses of remainder property as reflected by existing uses and

improvements and applicable zoning.”            Id. at 879.     Impairment cannot be

established by speculative or hypothetical uses of the property. Id. To this end,

impairment of access to unimproved land is more difficult. See Cnty. of Bexar v.

Santikos, 144 S.W.3d 455, 460 (Tex. 2004) (holding it is difficult to find effects of

access to tract that has no improvements); see also State v. Delany, 197 S.W.3d

297, 300 (Tex. 2006) (holding “remaining property on which there are no

improvements and to which reasonable access remains is not damaged simply

because hypothetical development plans may have to be modified”).

      In this case, the portion of driveway that was removed was along the State of

Texas’s drainage ditch. Accordingly, no physical land had been taken from the

Odutayos. 3 Additionally, the easement for right of access to public roads still


3
      The Odutayos did not assert in their live pleading, in their response to the plea to
      the jurisdiction, or at the hearing that they had suffered a loss in the value of the
      physical components of the driveway that were removed. That is, they did not
                                           10
exists at all points along the Odutayos’ property boundary with Almeda Road. The

only possible grounds for a taking, then, is for diminished access to the property by

the act of removing the unpermitted driveway from the time of its removal to the

time that the Odutayos obtained all the necessary permits to rebuild the driveway.

Assuming without deciding that such a claim is generally recoverable, the evidence

established that any impairment was not material and substantial in this case.

      The record establishes that, at the time of suit, the property was specifically

intended for development into a car dealership. The record also establishes that, at

that time, such development was not possible due to the fact that the Odutayos had

not yet received the required permits. When they received the necessary permits to

rebuild the driveway itself, the Odutayos let those permits expire because they felt

there was no need to rebuild the driveway until all of the construction permits had

been issued.

      This evidence establishes, then, that for the period during which the

Odutayos could claim a temporary taking, there was no material and substantial

impairment to their right of access. The only thing they were trying to do with the

property was develop it to be a car dealership. This one use was not impaired by

the destruction of the entrance to the driveway. Instead, they were unable to begin


      assert that they were deprived of any gravel, cement, or drainage pipe used in the
      construction of the driveway. Accordingly, any such loss is not a matter before us
      in this appeal.
                                          11
construction at that time because the Odutayos had yet to complete the process for

obtaining permits.   Because the Odutayos allowed the subsequently approved

permits to rebuild the driveway access to expire and acknowledged that nothing

could be done with the property until all permits necessary to begin construction

had been received, we hold that the evidence establishes as a matter of law that the

impairment to their right of access was not material and substantial.

      We overrule the Odutayos’ first issue.

      In their second and third issues, the Odutayos argue that they should have

been given the opportunity to replead. We disagree. Repleading is permitted when

the only problem is that the pleadings do not sufficiently plead facts establishing

jurisdiction. See Miranda, 133 S.W.3d at 226–27. When a plea to the jurisdiction

challenges the existence of jurisdictional facts and the relevant facts are not in

dispute, then the trial court rules on the plea as a matter of law. Id. at 228.

Similarly, whether any impaired access is material and substantial is resolved as a

matter of law. Dawmar Partners, 267 S.W.3d at 878. The evidence established as

a matter of law that the Odutayos’ impaired access was not material and

substantial. This is not a matter of a gap in their pleading jurisdictional facts.

Repleading would not be able to change the jurisdictional facts.

      We overrule the Odutayos’ second and third issues.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.




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