1st Court of Appeals sets forth test to be applied to determine whether property owner is entitled to compensation when access to his building is impaired by road construction (or rather -- in the case at issue - by the establishment of the Metro light rail line in Downtown Houston)
A governmental unit exercises its power of eminent domain through the process referred to as condemnation. See City of Houston v. Boyle, 148 S.W.3d 171, 178 (Tex. App.--Houston [1st Dist.] 2004, no pet.). Condemnation is the procedure by which the sovereign exercises its right to take property of a private owner for public use, without consent, upon the payment of just compensation. Id.; A.C. Aukerman Co. v. State, 902 S.W.2d 576, 578 (Tex. App.--Houston [1st Dist.] 1995, writ denied). "Inverse condemnation occurs when (1) a property owner seeks (2) compensation for (3) property taken for public use (4) without process or a proper condemnation proceeding." Boyle, 148 S.W.3d at 178; A.C. Aukerman Co., 902 S.W.2d at 577.
A landowner whose property has been taken, damaged, destroyed for, or applied to public use without adequate compensation may bring an inverse condemnation claim pursuant to article I, section 17 of the Texas Constitution. Boyle, 148 S.W.3d at 177. The constitution provides in part, "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person. . . ." Tex. Const. art. I, § 17; Boyle, 148 S.W.3d at 177; see also Tex. Parks & Wildlife Dep't v. Callaway, 971 S.W.2d 145, 148 (Tex. App.--Austin 1998, no pet.) ("An 'inverse condemnation' proceeding is the avenue of relief available when property has been taken or damaged for public use without compensation or a proper condemnation proceeding, and the property owner wishes to recover compensation for his loss."). The Texas Constitution therefore waives governmental immunity from suit and liability "for the taking, damaging or destruction of property for public use." Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980); Boyle, 148 S.W.3d at 177. "To demonstrate that a constitutional inverse condemnation has occurred, the landowner must show that (1) the State intentionally performed certain acts in the exercise of its lawful authority (2) that resulted in a 'taking' of property (3) for public use." Boyle, 148 S.W.3d at 177; see also Steele, 603 S.W.2d at 791-92; City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 308 (Tex. App.--Houston [1st Dist.] 2001, pet. denied).
To be compensated for impairment of access, a landowner must prove he suffered a material and substantial impairment of access to his land. State v. Heal, 917 S.W.2d 6, 10 (Tex. 1996); see also City of Waco v. Texland, 446 S.W.2d 1, 2 (Tex. 1969). In order to show material and substantial impairment, the property owner must establish (1) a total temporary restriction of access, (2) a partial permanent restriction of access, or (3) a partial temporary restriction of access due to illegal or negligent activity. State v. Schmidt, 867 S.W.2d 769, 775 (Tex. 1993); City of Austin v. Avenue Corp., 704 S.W.2d 11, 13 (Tex. 1986). The "material and substantial test" acknowledges situations in which the access for which the property was specifically intended is rendered unreasonably deficient even though normal access remains reasonably available. Heal, 917 S.W.2d at 10.
It is a question of law whether there is a "material and substantial impairment" to the remainder as a direct result of a taking. Schmidt, 867 S.W.2d at 777; Precast Structures, Inc. v. City of Houston, 942 S.W.2d 632, 636 (Tex. App.--Houston [14th Dist.] 1996, no writ). We review questions of law de novo and without deference to the lower court's conclusion. Heal, 917 S.W.2d at 9; Precast Structures, 942 S.W.2d at 636. Before trial, the court must determine whether access rights have been materially and substantially impaired and control the admission of trial evidence accordingly. Heal, 917 S.W.2d at 9.
Source: Burris and Wheelchair & Scooter Express, LLC v. Metro of Harris County (Tex.App.- Houston [1st Dist.] Aug. 14, 2008)(Keyes) (inverse condemnation case, taking, ingress easement, no material and substantial impairment of access to store)