The Material Impairment of Direct Access Standard, Texas Property Code, Section 21.042, establishes a new access standard for determining whether a property owner is entitled to damages for impairment to access resulting from the acquisition of property for a highway improvement project.

The statute provides that:

“(d) In estimating injury or benefits under Subsection (c), the special commissioners shall consider an injury or benefit that is peculiar to the property owner and that relates to the property owner's ownership, use, or enjoyment of the particular parcel of real property,

including a material impairment of direct access on or off the remaining property that affects the market value of the remaining property, but they may not consider

an injury or benefit the property owner experiences in common with the general community, including

circuity of travel and diversion of traffic

.” In this subsection, 'direct access' means ingress and egress on or off a public road, street, or highway at a location where the remaining property adjoins that road, street, or highway.

Meaning of "Material Impairment":

Although the courts have clearly defined the prior standard of "material and substantial impairment of access”, there is very little in the way of legal authority to assist with a definition of "material impairment of direct access”. The prior standard focused on access to the entire remainder and asked whether there was still "reasonable access" to the remainder after the state's restriction of access. The new standard, however, focuses on direct access to the property from the state highway. The operative factors are whether the impairment to "direct access" (ingress and egress on and off the remaining property) is "material", and if so whether it "affects the market value of the remaining property."

a. A "material impairment" is one that is significant or important in the context of how the property is or may be used. Although the change must be significant or important, it no longer must be "substantial" (meaning considerable or large).

b. The appraiser should look at both the physical changes to ingress and egress on and off the remaining property and the anticipated impact on the use of the property to determine if the restriction is significant. Some of the factors to consider in the before and after scenario are:

the number, location, and width of the existing, permissible, or permitted driveways;
extent of difficulty for large trucks or other unique vehicles to enter the property (if that is the normal use of the property at the time of impairment);
the manner in which the access impairment affects the functionality of existing improvements;
whether the remaining property has access to another public road(s) (This is now just one factor; it does not automatically prevent a finding of material impairment of ingress and egress on and off the remaining property from the state highway); and
whether it changes the highest and best use of the remainder (Again, this is not determinative of “materiality”, but is just one factor to be considered in making that determination.)

c. “Circuity of travel” and “diversion of traffic” are specifically excluded from the concept of material impairment of ingress and egress on and off the remaining property.