TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00575-CV
Richard Ferris, Appellant v.
City of Austin, Texas, Appellee
FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-21-006261, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
MEMORANDUM OPINION
Richard Ferris appeals the take-nothing summary judgment on his takings claim against the City of Austin. Ferris contends that the City’s traffic plan for special events at Zilker Park deprived him of the full use of his property as a parking lot, resulting in a permanent regulatory taking or a temporary, limited restriction that was illegally and negligently performed. We will affirm the judgment.
BACKGROUND
Ferris owns property just east of Zilker Park, the site of the Austin City Limits Festival (ACL Fest) and other events that generate demand for parking. His property is on Sterzing Street between Barton Springs Road (to the south) and Toomey Street (to the north). The City’s traffic plan for the 2019 ACL Fest below shows the key streets; Ferris’s lot is roughly halfway down the left or west side of Sterzing.
Ferris has used the property since 2002 for multiple purposes, though he said he hopes to develop the property as a hotel or condominiums or to sell it. During the relevant period, Ferris stored items like granite and cabinets in a building on the property and rented parking space to a snow-cone truck for $3,000 per month. Beginning in 2012, Ferris began receiving what he deems “significant income” from charging patrons of large events at Zilker Park a fee to park on his lot.
In 2017, the City instituted a traffic-management plan for ACL Fest. The plan restricted access to Sterzing from Barton Springs Road—the main thoroughfare leading west to Zilker Park. In 2017, traffic on Barton Springs Road could turn right onto Sterzing and leave the area eastbound on Toomey Street; beginning in 2018, traffic on Barton Springs Road was barred from Sterzing. The property was accessible from Toomey Street with drivers required to display
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a pass to proceed beyond the “ROAD CLOSED” sign and an officer limiting passage to “local traffic.”
Austin Police Department (APD) Special Events Unit officer Henry Aguilar said in his declaration that the City closed Barton Springs Road to vehicular traffic during ACL Fest because APD could not safely maintain the demands of the area otherwise. He estimated that in 2024, approximately 40,000 people would go to and from ACL Fest through the area around the intersection of Barton Springs Road and Sterzing. Before the closure, there were extended traffic delays at that intersection during ACL Fest and near collisions of vehicles, bikes, scooters, skateboards, pedicabs, and pedestrians. Aguilar said there were numerous complaints from residents of Toomey Street. Aguilar said that for another popular annual event at Zilker—Blues on the Green—traffic on Sterzing is not restricted; traffic on Barton Springs Road is restricted to eastbound only (out of the park) shortly before the concert ends to reduce and control vehicle traffic to minimize accidents, reduce traffic congestion, and protect pedestrians.
Ferris estimated in an exhibit that the closures and restrictions had cost him hundreds of thousands of dollars in income during a period that his property taxes rose. He testified at deposition that his property can hold at least 70 cars that in the unrestricted years turned over at least two to three times daily at $40 per car, $150 for trucks and SUVs. He calculated $214,400 in losses for 2017-20. The spreadsheet exhibit to his deposition lists $1200 losses per night for four nights of Blues on the Green, once monthly from May through August; $16,000 per weekend for two weekends of ACL in October; and $16,800 for the entirety of the
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Trail of Lights in December for a total of $53,600 of losses in a year. He lists identical losses for the appropriate dates in 2017-19. He then has a handwritten line that says “2020 Same.”1 Ferris said that, after requesting relief from the restrictions and offering to rent the property as a scooter drop-off site for $30,000, he agreed in 2021 to try to sell advance parking permits to his lot. Ferris said he spent $950 in advertising his lot and made a net profit of $2200 over both ACL festival weekends compared to the $32,000 he made in pre-closure years. He testified that, in 2022, he charged $100 and allowed a company to charge $132 and keep $32; he made about $4,200 through the company and $2,600 on his own. He said he rented spots to people who persuaded the officer at the Toomey barricade to let them through.
Ferris testified that the intersection of Sterzing and Barton Springs Road was closed during ACL between 10 a.m. and 11 p.m. He agreed that a temporary prevention of parking was not permanent, but said the restrictions were “permanent for three days.”
Ferris alleged that the City violated the Texas Constitution by confiscating the value of his property through street closures in several ways:
• The City confiscated most of his property’s rental value through frequent street closures during times of highest rental demand without compensating him.
• The street closures permanently deprived him of almost all of the property’s economic value.
1 Despite his spreadsheet calculation and claim of deprivation income of $53,600 per year due to street closures for Blues on the Green, ACL Fest, and Trail of Lights from 2017 through 2020, in response to requests for admissions Ferris (1) admitted that the City closed only westbound traffic access on Barton Springs Road two hours after Blues on the Green began to permit egress from the park in 2019, 2021, and 2022, (2) admitted that there was no ACL Fest or Blues on the Green in 2020, (3) denied that he was claiming that the City blocked vehicle access to his parking at 412 Sterzing at any time in 2020, and (4) admitted that the City did not close traffic access to Sterzing during the Trail of Lights in 2019–2022.
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• The City acted negligently in not allowing his customer traffic to flow down Toomey to his property while allowing other property owners to have such access.
• The denial of access to parking on his property was both unnecessary and unreasonable and therefore negligent.
• The City was negligent in allowing scooters and bikes to be dumped or dropped in the middle of Sterzing, blocking access to his office and property.
• The regulatory taking imposed by the City was of a permanent nature.
• The temporary, limited restriction of access to his lot was illegally and negligently performed, citing City of Austin v. Avenue Corp., 704 S.W.2d 11, 13 (Tex. 1986).
Ferris contended that the City’s actions were a regulatory taking of his real property for the benefit of the public without compensation to him and caused the loss of the property’s fair market value.
The City moved for summary judgment on grounds that its restrictions on street access were not a compensable taking. It is largely a traditional summary-judgment motion with assertions of no evidence regarding (1) physical damage, destruction, or imposition of public use; (2) the City dumping or dropping abandoned scooters or bikes on his property and preventing customers from parking there; or (3) loss in value for the Sterzing property. The City urged that ACL-related traffic-control measures did not affect the value of his property, that the restrictions did not materially and substantially impair access to his property, and that the barricades did not cause his damages. The City also asserted that the property was not put to a public use.
The trial court granted the motion for summary judgment without specifying a basis.
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STANDARD OF REVIEW
We review the trial court’s ruling on a motion for summary judgment de novo.
Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We view the evidence in the light most favorable to the nonmovant, crediting evidence favorable to that party if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). To prevail on a traditional summary-judgment motion, the movant must show that no genuine issue of material fact exists and that the trial court should grant judgment as a matter of law. Tex R. Civ. P. 166a(a), (c); Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). If the movant meets its summary-judgment burden, the burden shifts to the nonmovant, who bears the burden to raise a genuine issue of material fact precluding summary judgment. Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999). A “no-evidence motion shifts the burden to the nonmovant to present evidence raising a genuine issue of material fact supporting each element contested in the motion.” Wal-Mart Stores, Inc. v. Xerox State & Local Sols., Inc., 663 S.W.3d 569, 576 (Tex. 2023) (explaining that summary judgment is improper if nonmovant presents “more than a scintilla of probative evidence to raise a genuine issue of material fact”); see also Tex. R. Civ. P. 166a(i) (establishing that movant may obtain no-evidence summary judgment when “there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial”).
If a trial court grants summary judgment without specifying the grounds for granting the motion, we uphold the trial court’s judgment if any of the grounds are meritorious. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
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TAKINGS LAW
Whether a compensable taking has occurred is a question of law for the courts to decide, although a factfinder may need to resolve factual disputes before the court can decide the ultimate legal question. Commons of Lake Houston, Ltd. v. City of Houston, 711 S.W.3d 666, 676 (Tex. 2025). If no viable takings claim is alleged, the governmental entity is immune and the claim must be dismissed. See City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex. 2014).
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 . . . .” See Tex. Const. art. I, § 17; Commons, 711 S.W.3d at 675. The Texas Supreme Court wrote:
An owner who believes the government has taken its property may bring an “inverse” condemnation claim to recover adequate compensation. To prevail on an inverse-condemnation claim, the owner must plead and prove that (1) the government engaged in affirmative conduct (2) that proximately caused (3) the taking, damaging, destroying, or applying (4) of specific private property (5) for a public use (6) without paying the owner adequate compensation (7) and did so intentionally or with knowledge that the result was substantially certain to occur.
Commons, 711 S.W.3d at 675 (citations omitted). Takings can be physical or regulatory. Id.; Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). A physical taking occurs when the government authorizes an unwarranted physical occupation of an individual’s property. Id. A regulatory taking is one in which “the plaintiff complains that the government through regulation so burdened his property as to deny him its economic value or unreasonably interfere with its use and enjoyment.” Harris Cnty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 800–01 (Tex. 2016).
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A regulatory taking may occur when a law or ordinance (1) requires an owner to suffer a permanent physical loss or invasion of its property (sometimes called a Loretto taking2) (2) completely deprives an owner of all economically beneficial use of its property (sometimes called a Lucas taking 3), or (3) unreasonably interferes with the owner’s right to use and enjoy its property (often called a Penn Central taking 4). Commons, 711 S.W.3d at 677. Loretto takings and Lucas takings are “per se” takings. Id. A Lucas taking occurs in the “extraordinary circumstance” when a regulation permits “no productive or economically beneficial use of land,” leaving the owner with no more than a mere “token interest.” Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 671 (Tex. 2004); see Mayhew, 964 S.W.2d at 936 (explaining that a Lucas taking occurs when the regulatory action “totally destroy[s] the property’s value”); see also Commons, 711 S.W.3d at 677 n.28.
DISCUSSION
Ferris contends that the trial court erred in granting summary judgment because he is owed reasonable compensation for a regulatory taking. 5 He asserts both a permanent regulatory taking and a temporary, limited restriction that was illegally and negligently
2 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982) (holding that state law requiring landlords to permit cable companies to install cable facilities in apartment buildings caused a per se regulatory taking).
3 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019, 1024 (1992) (holding that regulations that completely deprive an owner of all economically beneficial use of her property are “categorical” takings).
4 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).
5 The City also sought and obtained summary judgment on Ferris’s request for a declaratory judgment regarding the application of the City’s special-events ordinance to him. Ferris does not assert on appeal that the court erred by granting summary judgment on his request for declaratory judgment, so we will not detail the arguments on that request.
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performed. He contends that genuine issues of material fact exist because his income from the property has been substantially reduced. The City’s response focuses on the disconnect between Ferris’s complaints and the grounds available for recovery. His complaints most nearly resembles a Penn Central-style takings claim.
The record shows that Ferris’s claim is not a per se taking as it is neither a physical taking nor a permanent taking. The only evidence is that Ferris owns, occupies, and uses the property and that the City erected and removed temporary barricades at nearby intersections, not that it physically occupied or damaged his property. In response to the City’s Requests for Admission, Ferris admitted that the City’s actions “constitute[d] a partial restriction of access to [my] property for a temporary period of time.” This admission is conclusive. See Tex. R. Civ. P. 198.3 (“A matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission.”) The complained-of restrictions were in place for ACL Fest days—six days of the year—and they never excluded Ferris. While we will assume the local-access restriction dissuaded some would-be parkers, the evidence is that persons intending to park in Ferris’s lot were allowed past the barricade. The only evidence is that the property retains value—Ferris testified in deposition that he pays increasing taxes 6 and had refused to sell it for $5 million in 2016-17. 7 It is undisputed that he uses the property to store items in the building, rent space to a
6 Ferris testified that taxes were “low” in 2012 but that he paid about $32,000 in property taxes in 2021.
7 Ferris testified that, since the 2016-17 offer, he had been offered $7 million verbally.
He believed that the owner across the street from him was offering to sell at $800 per square foot which, multiplied by the Sterzing property’s 31,500 square feet, totals $25.2 million.
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snow-cone truck, and charge some people to park on the lot even under the most restrictive traffic plans. This is neither a Loretto nor a Lucas taking. See Commons, 711 S.W.3d at 677.
We next examine whether there is a genuine issue of material fact regarding whether the City’s temporary traffic restrictions unreasonably interfered with Ferris’s right to use and enjoy his property; analyzing a Penn Central taking requires the court to engage in an “ad hoc” and “situation-specific” factual inquiry, weighing multiple factors including (1) the regulation’s economic impact on the owner, (2) the extent to which the regulation interferes with the owner’s reasonable investment-backed expectations, and (3) the character of the government action. Commons, 711 S.W.3d at 677–78; see also Penn Cent., 438 U.S. at 130–31; City of Grapevine v. Muns, 651 S.W.3d 317, 339 (Tex. App.—Fort Worth 2021, pet. denied). Lost profits are a consideration under the first factor, as the economic-impact inquiry “compares the value that has been taken from the property with the value that remains in the property” and “may involve consideration of the owner’s investment profits or losses.” Commons, 711 S.W.3d at 677 n.30 (Tex. 2025). Diminishment in the value of the property resulting from a loss of access constitutes damage. Id. at 679.
The Texas Supreme Court has held that “property has been damaged for a public use within the meaning of the Constitution when access is materially and substantially impaired even though there has not been a deprivation of all reasonable access; as before, this is a question of law for the Court.” City of Waco v. Texland Corp., 446 S.W.2d 1, 2 (Tex. 1969)). To show a material and substantial interference with access to one’s property sufficient to amount to a constitutional violation, the claimant must show that there has been: (1) a total but temporary restriction of access; (2) a partial but permanent restriction of access; or (3) a temporary, limited restriction of access brought about by an illegal activity or one that is negligently performed or
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unduly delayed. Avenue, 704 S.W.2d at 13. The test asks whether the regulation has gone “too far” so as to constitute an unreasonable interference with the landowner’s rights. Sheffield Dev., 140 S.W.3d at 670.
Ferris’s evidence defeats the first two options. He admitted that there was not a total restriction of access because he “was permitted some access to his property” and that “[i]ndividuals possessing permits were permitted some access to the street and to his property.” Nor was there a permanent restriction of access; the only restriction of access to Sterzing in the record occurred during ACL Fest—six days out of the year. Blues on the Green (four days) and the Trail of Lights (twenty-three days) were also of limited duration.
The issue reduces to whether a genuine issue of material fact exists regarding whether the City’s temporary, limited restriction of access to the Sterzing property was brought about by an illegal activity or one that is negligently performed or unduly delayed. See Avenue, 704 S.W.2d at 13. Ferris contends that the City’s traffic-control plan restricted access to his property and that its failure to prevent abandonment of scooters and bikes on the streets further impaired access. He focuses on lost income from fewer parking customers and the consequent loss of productive value of his property for the benefit of the public without compensation.8 Comparison to key cases show that Ferris’s claim fails as a matter of law. In Avenue, the Texas Supreme Court held as a matter of law that a city’s partial, temporary restriction of access to a restaurant during a construction project did not entitle the property owner to an inverse-condemnation claim for lost profits; the court reversed a jury verdict and
8 Ferris argues in his appellate brief that “[t]he city is intentionally requiring a property owner adjacent to city owned property to pay for the protection of that city owned property, resulting in a taking, damaging, or destruction of the Appellant’s property based solely on its location.” Regardless of the legal merits or factual basis of that argument, it is unavailing because he did not plead it in his live petition below.
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rendered a take-nothing judgment. 704 S.W.2d at 13. In that case, the City reconstructed the street and sidewalk in front of the Avenue’s restaurant, partially restricting access to the restaurant for approximately nine months. Id. at 12. It was undisputed that the construction was necessary and legally performed in a non-negligent manner. Id. In State v. Schmidt, the Texas Supreme Court held that owners whose property was partly taken by eminent domain to convert a road to a controlled-access highway were not entitled to compensation for the diminution in their property value when the conversion created inconvenience during construction and permanently diverted traffic, increased the circuity of travel to their property, and lessened its visibility. 867 S.W.2d at 774–75. In this case, the City’s restriction of access to Ferris’s property was shorter—a few days—and less restrictive—access was permitted and fully restored when the events ended.
Ferris’s complaints about the dumping of scooters and bicycles such that they restricted access fail because they do not allege action by the City. The City asserted in its amended motion that there was no evidence that “the City ‘dumped or dropped’ abandoned scooters, bikes (or anything else) on Plaintiff’s lot such that customers were prevented from parking there.” Ferris responded that the City had “allowed” people to dump or drop their transportation items and thereby negligently allow them to block access to his lot. In City of Tyler v. Likes, a homeowner sued the city when floodwaters damaged her home; she claimed that Tyler negligently constructed and maintained culverts such that they diverted water onto her property and unconstitutionally took her property for public use without compensation. 962 S.W.2d 489, 494 (Tex. 1997). The Texas Supreme Court held that negligence of the government that eventually contributes to the destruction of property is not a taking. Id. at 494, 505. Ferris did not controvert the City’s assertion that there is no evidence of physical damage,
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destruction, or imposition of public use on his property or of the City dumping or dropping abandoned scooters or bikes on his property and preventing customers from parking there. Because allegedly negligently diverted floodwaters that swamped a person’s house were not considered a taking in Likes, we conclude that any negligence by the City here in “allowing” people to drop scooters and bikes on the road such that they impeded access to Ferris’s property did not rise to the level of an unconstitutional taking of Ferris’s property.
Because Ferris has not shown that the trial court erred in rendering summary judgment against his takings claim, we overrule his sole issue on appeal.
CONCLUSION
We affirm the trial court’s judgment.
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Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Kelly and Ellis Affirmed Filed: August 26, 2026