FEATURE ARTICLE, APRIL 2007

EFFECTS OF ROAD WIDENINGS
Why a small taking can amount to large damages in road widening cases.
Timothy P. Duggan, Esq.

Road widenings, like the expansion of the New Jersey Turnpike, require property to be acquired in order to widen the roadway. If the property cannot be acquired through negotiations, the government can acquire the property by use of the power of eminent domain. Most often, the government only needs a portion of the property and will undertake a “partial taking” of the property. When confronted with a partial taking, a property owner must seek assistance from qualified experts to determine the extent of the damage to the property being retained. This article will highlight some of the issues that must be addressed in a partial taking case.

As a general rule, when only a portion of a parcel of property is taken, the property owner is entitled to be paid for the value of the property taken and the damage to the property that is retained. The property retained is often referred to as the “remainder” and damages are called “severance damages.” Partial taking cases are complicated because the damage to the remainder can be significant even when a small strip of property is taken. For example, a road widening that takes a strip of property in front of a building may not only take several parking spaces, but may impact future development. If the taking changes the size and configuration of the remainder, the property owner may be forced to seek a variance or waiver relief from site design or zoning requirements for future development. A good land planner is necessary to review the impact of the taking on future development of the property.

There are legions of cases addressing which types of damages are compensable and which are not, including cases on the following issues:

• Access to roadway: If a property owner’s access to a roadway is limited or changed as a result of a partial taking, damages are not generally allowed if there is reasonable access by another means. Courts generally view the elimination of access to be an exercise of the police power, not a taking by eminent domain.

• Changes to size and shape of remainder: The size and shape of a particular property often impacts the potential use of the property and is generally compensable.

• Noise and fumes: Damage arising from noise and fumes are very hard to prove and often not allowed as being too speculative.

• Drainage: If flooding is caused to be the remainder by the partial taking, it is compensable.

• Business loss: Generally not compensable.

Two other issues that sometimes appear in partial taking cases are (1) damages to properties that are not being taken, but are used in conjunction with the property being taken (i.e. an adjacent or contiguous parcel), and (2) whether a property owner has a duty to mitigate damages to the remainder (i.e. take affirmative steps to reduce the impact on the remainder). In regards to the first issue, the general rule is you need unity of ownership and use to receive compensation, and the properties must be contiguous (although the contiguous requirement has been lessened over the years). For example, if a road widening causes damage to a parking lot or warehouse that is used in conjunction with a manufacturing plant, the property owner may have severance damages on the combined lots. It is very important to look at the big picture if an owner has multiple properties necessary for a larger business operation.

In regards to mitigation, if a property owner alleges damage to the remainder, there is a duty to mitigate damages. The issue is sometimes litigated when the condemning authority offers expert testimony on ways the property owner can remedy damages in order to minimize the impact of the partial taking (i.e. finding other suitable property, making changes to a parking lot, etc.).

Partial takings are too complicated to cover in a short article. The issues presented are important and may impact the amount of money a property owner receives as just compensation and damages. Retaining qualified experts to assist in the evaluation of the damage to a remainder is crucial. Indeed, a small road-widening project can have a significant impact on a parcel of property. Although potentially expensive, the prudent property owner will look at the potential damages from all angles to make certain he or she is made whole at the end of the day.

Timothy P. Duggan is chair of Stark & Stark’s Condemnation group in Princeton, New Jersey.


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