Affirmed and Memorandum Opinion filed December 10, 2019.




                                       In The

                      Fourteenth Court of Appeals

                               NO. 14-18-00261-CV

                  STARBRIGHT CAR WASH LLC, Appellant

                                         V.

                      CITY OF BELTON, TEXAS, Appellee

                      On Appeal from the 169th District Court
                                Bell County, Texas
                         Trial Court Cause No. 268,926-C

                           MEMORANDUM OPINION

      Appellant Starbright Car Wash appeals the trial court’s summary judgment
rendered in favor of appellee, the City of Belton. In a single issue Starbright argues
the trial court erred in denying its motion for summary judgment and granting the
City’s motion for summary judgment because Starbright had a constitutionally-
protected property interest in the access allowed by the City’s 2005 ordinance.
Concluding that Starbright did not establish a constitutionally-protected property
interest we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND

      On May 24, 2005 the City of Belton passed City Ordinance No. 2005-26,
which approved a developer’s proposed change to a retail zoning district. The
ordinance approved a planned-retail zoning district for a car wash and lube center.
The ordinance contained the following paragraph:

      The temporary access point will be closed when the Sparta Road
      extension is constructed and the northern access point reconstructed as
      a right-in/right-out only drive. One access point to the Sparta Road
      extension, as shown on the “Preliminary Site Schematic”, will be
      allowed.
The “preliminary site schematic” is reproduced below:




                                        2
      The extension of Sparta Road contemplated by the ordinance would have
extended a public road (Sparta Road) through the two pieces of property to create
the “private access driveway” as described in the preliminary site schematic. Five
years later, on November 16, 2010, the City approved a revised plat that did not
include an extension of Sparta Road between the HEB property and the proposed
car wash site. The road between HEB and the proposed car wash site remained
private property owned by HEB. The private access driveway that could have
included access from the HEB parking lot directly to the car wash was eliminated
from the revised plat approved in November 2010. Starbright purchased the
proposed car wash site on December 30, 2010. On May 16, 2012, the plat was
recorded without the extension of Sparta Road and the additional access point to the
car wash site.

      Starbright filed an inverse condemnation suit against the City in which
Starbright alleged that its right of access from its property to Sparta Road under the
2005 ordinance was a vested constitutionally-protected property right under the
Texas Constitution. Starbright alleged that it relied on the City’s 2005 ordinance in
which the City planned to extend Sparta Road through the two pieces of property
with HEB on one side and the car wash site on the other side. Starbright further
argued that the extension of Sparta Road would allow customers to access the car
wash directly from the HEB parking lot. Starbright alleged that the City’s approval
of the revised plat constituted a taking of Starbright’s protected right in access to its
property from the HEB parking lot.

      The City filed a no-evidence motion for summary judgment in which it alleged
that Starbright could not prove that a constitutionally-protected right existed. Even
if Starbright could prove a constitutionally-protected right, the City argued, absent
evidence that all reasonable access was restricted, Starbright could not establish its

                                           3
inverse condemnation claim as a matter of law. Specifically, the City alleged that (1)
Starbright presented no evidence as to the existence of a vested right in lateral access
to an adjacent property owner’s private property; and (2) even if Starbright could
establish a vested right in access, “absent evidence that all reasonable access was
restricted” Starbright’s inverse condemnation claim could not be established as a
matter of law.

       Starbright filed a motion for partial summary judgment in which it alleged
that it had proved its vested property right as a matter of law. Starbright requested
partial summary judgment on liability leaving only the issue of damages to be
decided at trial.

       After a non-evidentiary hearing the trial court granted the City’s motion for
summary judgment. Starbright appeals the trial court’s judgment arguing the City’s
2005 ordinance created a constitutionally-protected property interest in access from
the extended Sparta Road.

                                            ANALYSIS1

I.     Standard of Review

       We review a no-evidence summary judgment under a legal sufficiency
standard. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003) (“A
no-evidence summary judgment is essentially a pretrial directed verdict, and we
apply the same legal sufficiency standard in reviewing a no-evidence summary


       1
         The Supreme Court of Texas ordered the Third Court of Appeals to transfer this case to
this court. See Tex. Gov’t Code § 73.001. Under the Texas Rules of Appellate Procedure, “the
court of appeals to which the case is transferred must decide the case in accordance with the
precedent of the transferor court under principles of stare decisis if the transferee court’s decision
otherwise would have been inconsistent with the precedent of the transferor court.” Tex. R. App.
P. 41.3. We are unaware of any conflict between Third Court of Appeals precedent and that of this
court on any relevant issue.

                                                  4
judgment as we apply in reviewing a directed verdict.”). A no-evidence summary
judgment will be sustained when: “(a) there is a complete absence of evidence of a
vital fact; (b) the court is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a
vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively
the opposite of a vital fact.” King Ranch, 118 S.W.3d at 751 (citing Merrell Dow
Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

      The trial court granted the City’s motion without stating the specific reasons
for doing so. When the trial court does not specify the basis for a no-evidence
summary judgment, the appealing party must show it is error to base it on any no-
evidence ground asserted in the summary-judgment motion. See Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Mangham v. YMCA of Austin, Texas-
Hays Communities, 408 S.W.3d 923, 926–27 (Tex. App.—Austin 2013, no pet.).

II.   Inverse Condemnation

      The elements of an inverse-condemnation claim against a governmental entity
under article I, section 17 of the Texas Constitution are (1) the governmental entity
intentionally performed an act in the exercise of its lawful authority, (2) that resulted
in the taking, damaging, or destruction of the claimant’s property, (3) for public use.
State v. Hearts Bluff Game Ranch, Inc., 313 S.W.3d 479, 486 (Tex. App.—Austin
2010), aff’d, 381 S.W.3d 468 (Tex. 2012).

      A restriction in the permissible uses of property or a diminution in its value,
resulting from regulatory action, may or may not be a compensable taking. Sheffield
Dev. Co., Inc. v. City of Glenn Heights, 140 S.W.3d 660, 670 (Tex. 2004). In
applying the Texas constitutional provision in this case, we look to federal
jurisprudence for guidance. Id. at 669.


                                           5
      The Supreme Court has identified, in its words, “at least two discrete
categories of regulatory action as compensable without case-specific inquiry.” Lucas
v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992). One is where regulation
“compel[s] the property owner to suffer a physical ‘invasion’ of his property.” Id.
Another is “where regulation denies all economically beneficial or productive use of
land.” Id. at 1015–16; see also Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933
(Tex. 1998). To deprive an owner of all economically beneficial use of land is
tantamount to depriving the owner of the land itself. Sheffield, 140 S.W.3d at 671.
Such a taking is limited to the extraordinary circumstance when no productive or
economically beneficial use of land is permitted and “the landowner is left with a
token interest.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,
535 U.S. 302, 330 (2002).

      The question of whether a governmental regulation is proper or whether it
constitutes a compensable taking is a question of law. Hallco Texas, Inc. v.
McMullen County, 221 S.W.3d 50, 56 (Tex. 2006). In analyzing whether the City
was entitled to summary judgment, “we take as true all evidence favorable to the
nonmovant and indulge every reasonable inference in the nonmovant’s favor.”
Provident Life & Acc. Ins. Co., 128 S.W.3d 211, 215–16 (Tex. 2003). In our analysis,
we examine Starbright’s factual allegations in light of the takings test and determine
whether, if proved at trial, they would amount to a taking as a matter of law. If we
determine that they would not, then summary judgment for the City was appropriate;
if, however, we determine that they would, then we must remand the case for a
determination of the disputed fact issues.

      The basic test for a regulatory taking is whether the regulation “goes too far”
in restricting the permissible uses of the property or in decreasing its value. Sheffield,
140 S.W.3d at 670. If the regulation denies the owner “all economically beneficial

                                             6
or productive use of [the] land,” leaving him with only “a token interest,” or if the
regulation results in a “physical invasion” of private property, then it may be
considered a per se taking. Id.; see also Lucas v. S.C. Coastal Council, 505 U.S.
1003, 1016 (1992).

      Our inquiry can be divided into two basic parts: first, whether the regulation
constitutes a taking and, if so, what economic impact results from that taking. City
of Austin v. Travis County Landfill Co., 73 S.W.3d 234, 241 (Tex. 2002). The court
cannot analyze the economic-impact prong without first answering the ultimate
question of whether the regulation has substantially interfered with the landowner’s
use and enjoyment of the property. Id. To establish this a landowner must put forth
specific evidence of a direct, immediate, and substantial impact that the regulation
has had on the land, making it unusable for its intended purposes. Id. at 240. The
landowner must “quantify the risks and the hazards or specifically describe how the
[regulation] interfered” with the use and enjoyment of the land; “nonspecific
allegations [that the regulation resulted in increased costs and risks on the land] are
not enough to establish a taking.” Id. at 243; see also Cummins v. Travis Cty. Water
Control & Improvement Dist. No. 17, 175 S.W.3d 34, 54–55 (Tex. App.—Austin
2005, pet. denied).

      Property owners do not have a constitutionally-protected vested right to use
real property in any certain way, without restriction. See City of Univ. Park v.
Benners, 485 S.W.2d 773, 778 (Tex. 1972) (holding “that property owners do not
acquire a constitutionally-protected vested right in property uses once commenced
or in zoning classifications once made”). A right is “vested” when it “has some
definitive, rather than merely potential existence.” Vill. of Tiki Island v. Ronquille,
463 S.W.3d 562, 586 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (quoting Tex.
S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d 893, 903 (Tex. App.—Houston

                                          7
[1st Dist.] 2007, pet. denied)). A property owner has no vested right to use its
property for a particular purpose. Mr. W. Fireworks, Inc. v. Comal Cty., No. 03-06-
00638-CV, 2010 WL 1253931, at *8 (Tex. App.—Austin Mar. 31, 2010, no pet.)
(mem. op.).

      Although a property owner may suffer a loss in the form of a diminished
property value due to an adjacent road closure, such an injury does not amount to a
compensable taking when the property owner retains reasonable access to a
remaining adjacent road. Archenhold Auto Supply Co. v. City of Waco, 396 S.W.2d
111, 114 (Tex. 1965). Even when an entire access point is closed, access to a
business is not materially and substantially impaired if another access point on a
public street remains unaffected. City of San Antonio v. TPLP Office Park Props.,
218 S.W.3d 60, 66 (Tex. 2007). Diminution in the value of property due to diversion
of traffic, diminished exposure to traffic, or altered accessibility to the roadway does
not amount to a material and substantial impairment of access. State v. Petropoulos,
346 S.W.3d 525, 532 (Tex. 2011).

      In this case it is undisputed that Starbright’s property had access from Main
Street after the revised plat was filed. The City’s decision to not expand a public
street to provide additional access to the property was not an unconstitutional taking.
See State v. Momin Props., Inc., 409 S.W.3d 1, 9 (Tex. App.—Houston [1st Dist.]
2013, pet. denied) (short of precluding access to property, diminished access is not
a compensable taking).

      Starbright argues that it purchased the subject property for development plans
consistent with an HEB pad site. Starbright further argues that it took actions to
consummate those plans, such as marketing the property, negotiating prospective
sale and lease agreements, and communicating with the City in an attempt to confirm
the necessary Sparta Road access.

                                           8
      As stated above, property owners do not acquire a constitutionally-protected
vested right in zoning classifications once made. Benners, 486 S.W.2d at 778. The
City retains its legislative authority to re-zone at any time as public necessity
demands. City of Pharr v. Tippitt, 616 S.W.2d 173, 176 (Tex. 1981). Here, Starbright
did not purchase the property until after the City decided not to extend Sparta Road.
The existing and permitted uses of the property constitute the “primary expectation”
of the landowner that is affected by regulation. Mayhew, 964 S.W.2d at 936;
Comunidad Balboa, LLC v. City of Nassau Bay, 402 S.W.3d 479, 485 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied). At the time Starbright obtained the property
the City had already approved the plat that did not extend Sparta Road. Starbright
has not established that, for purposes of this analysis, we should treat its reliance on
the City’s original plan to extend Sparta Road differently from any property owner’s
reliance on more conventional zoning classifications. Keeping this in mind, we
conclude that the ordinances at issue here caused minimal interference with
Starbright’s use of the property.

      The filing of the revised plat in this case did not constitute a taking. Starbright
failed to establish a constitutionally-protected property right or an unconstitutional
taking as a matter of law. Because an unconstitutional taking is an essential element
of Starbright’s inverse condemnation claim, the trial court did not err in granting the
City’s motion for summary judgment. See Mangham, 408 S.W.3d at 927.

                                     CONCLUSION

      Because Starbright could not establish a taking as a matter of law, summary
judgment for the City was appropriate. We overrule Starbright’s issue on appeal and
affirm the trial court’s judgment.




                                           9
                                     /s/    Jerry Zimmerer
                                            Justice



Panel consists of Justices Wise, Zimmerer, and Spain.




                                       10
