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Click here for the full text of this decision FACTS:A sliver of property was taken for an embankment to support the elevation of a frontage road above an occasional creekbed. The question presented is whether lost market value of the remainder property is compensable because it is now well below the frontage road. The trial court instructed jurors that, in determining the diminution in fair market value of the 3.5 acres, they could “consider damages, if any, resulting from unsafe access or diminished market perception of the remainder,” but could not consider “damages resulting from diminished visibility or diminished access to the remainder.” The jury returned a verdict for the landowner, John L. Santikos, for $400,000, and the trial court rendered judgment for that amount less $53,000 (the commissioners’ award) deposited by the county and already withdrawn by Santikos. The county appealed, and the court of appeals affirmed, holding that unsafe access and diminished market perception were appropriate grounds of recovery. HOLDING:Reversed and remanded. Impaired access to remainder property is a compensable special injury only if a material and substantial impairment of access exists as a matter of law. That a public project requires increased circuitry of travel is not enough to make damages compensable. Nothing in this court’s previous cases suggests that circuitry of travel within a particular property is any more compensable than circuitry of travel around it. The court also states that it is hard to find any effects on access here, as the tract has no businesses, homes, driveways or other improvements of any kind. It is immaterial that Santikos couches his claims not in terms of impaired access, but for “reduced physical adaptability.” This case might be quite different if driveways or other improvements were already in place, or if Santikos owned only the 3.5-acre tract and needed permission from his neighbors to access the Loop 1604 frontage road. But neither is the case. Assuming Santikos or future owners decide to develop the 3.5-acre tract separately from the rest, they may dedicate the necessary easements for access to it. The court holds that damages related to access are non-compensable here, as reasonable access to both the 3.5 acres and the remainder of the Santikos tract remains. The county also complains that the trial court improperly allowed Santikos to recover damages for “diminished market perception.” The term appears to have been introduced by this litigation; no Texas case has used it before. The court of appeals found diminished market perception compensable. Because all of the claims denominated as “diminished market perception” (diminished access, diminished visibility, loss of view, and loss of “curb appeal”) represented noncompensable damages, they cannot be transmuted to compensable ones by asserting them under a pseudonym. Even if these damages could be compensable in some other case, they would not be so here, as they arise from the use of adjoining property and are imposed on the community generally. The court holds that any damages resulting from leaving unimproved, raw land in its natural state while raising or lowering an adjacent roadbed in hilly terrain are community in nature. When compensable and noncompensable damages are combined in a condemnation judgment, the court reverses and remands for a new trial that will assess only the former. OPINION:: Brister, J., delivered the court’s opinion..

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