Dealing With Highway Takings: Landowner Tips and Useful Information

This Article is written by Owner’s Counsel of America for general informational purposes only.  It is intended to assist landowners in understanding some of the basic aspects of dealing with the taking of private property for highway purposes and highway projects. This Article is not to be viewed as providing legal advice or to be considered as a substitute for consulting with an experienced eminent domain lawyer on the matters covered herein.

Background

Highways in the United States are generally split into four types: Interstate Highways (federally funded but state-maintained), older U.S. Highways, state highways, and county highways. In order to continuously develop, improve and maintain this vast transportation network each year, large amounts of private property must be acquired, either through voluntary negotiations with property owners or by the exercise of the eminent domain power. As a result, the taking of property for highways generally exceeds the taking of property for all other public purposes.

Federal and State Laws

Given the number of highway takings across the country, specific regulations and procedures have been adopted by federal, state, and local jurisdictions to address such matters. While these laws may differ somewhat from state to state, they also share a degree of similarity. This is particularly true of takings for interstate highways. For instance, in 1970 the Uniform Relocation Assistance and Real Property Acquisition Act (1970) (“URA”) was passed by the U.S. federal government. URA is meant to ensure fair compensation and assistance for all owners being required to give up their property for federally-funded highways pursuant to the power of eminent domain. Since 1970, many states have made the URA state law by the adoption of state statutes. Importantly, states are incentivized to comply with the URA or risk losing federal funding for their highway projects.

Tips and Things to Know

Consulting With or Retaining an Eminent Domain Lawyer. Notice of a potential highway taking can raise many questions and concerns in the mind of the affected property owner. The best anecdote to that uncertainty is to gain the necessary knowledge that will foster an appropriate response to the taking. Even if an owner hopes to avoid a legal action by negotiating with the acquiring agency, in most instances an owner’s lack of knowledge about the overall process and what legal rights the owner may have can place that owner at a distinct disadvantage. That is why, even if settlement is contemplated, it is important for a property owner to consult with or seek the assistance of an experienced eminent domain lawyer.

Condemnor’s Negotiator and Appraiser. One example of how an uninformed property owner can be misled has to do with the right of way negotiator sent by the State to talk to the owner about a highway project or highway taking. Many property owners may assume that the negotiator has the owner’s best interests in mind. But that is not the case. In most instances, the negotiator’s primary task is to acquire property as cheaply and as quickly as possible. While they may be cordial and professional (as they are required to be), do not be fooled into thinking that the negotiator is  working for you. Right of way negotiators are employed and being paid by the government to acquire your property for a government project. The same is true of the State’s appraiser when he or she comes to visit with you to inspect and learn about your property. When dealing with persons employed by the very entity seeking to take your property, you should consult with an experienced attorney first and, even afterwards, be careful about what you say or the answers you give to any questions that are posed. 

Manual. In most instances the acquiring agency is required to provide you with a pamphlet or acquisition manual detailing the acquisition process and your general rights as a property owner. Read this document carefully and ask questions if you are unclear about anything. 

Construction Plans. Knowing exactly what type of highway construction is planned is absolutely critical when the government is only taking part of your property, leaving you with a remainder parcel that could be impacted by that construction. In such situations it is imperative that you learn as much as possible about the nature and scope of the project and construction taking place. Therefore, ask to be provided with a copy of the actual engineering drawings and construction plans so that you can study and ask questions about every relevant detail. Ask questions about anything you don’t understand and properly memorialize or document any responses that the State provides to you.   

Appraisals. If you are made an offer of compensation for your property, ask for a copy of the appraisal upon which the offer is based. In many jurisdictions, it is the law that you obtain a copy of the State’s appraisal so you can properly assess the integrity, accuracy and underlying support for the offer. Review the appraisal very carefully, particularly the information upon which the appraiser relies to value the property or ascertain any damages to the property.

Should you decide to get your own appraisal, you should employ someone qualified and knowledgeable about appraising property being taken by eminent domain. There are special rules and standards that must be complied with in order to perform a competent eminent domain appraisal. This is another reason to consult with an experienced eminent domain lawyer who can recommend an appropriate appraiser to work with you. In the vast majority of highway takings, a property owner’s ability to receive the full measure of just compensation that he or she is entitled to receive often rests on the strength of the owner’s appraisal. Having a strong and compelling appraisal can also often make the difference between the ability to settle a case and being forced to litigate it.

Highway Damages. There are many ways that a highway can negatively impact or damage private property. For instance, highways can be configured in such a way as to bisect property, creating separate parcels that may give rise to access, utility connections, and development issues. Additionally, some highways may be located or expanded in close proximity to residences or building improvements causing impacts from traffic, safety concerns, visibility, noise, and dust. Highway construction can also cause excessive run-off, flooding or other drainage problems on adjacent lands. And some highways can even impact the access to your property. When these or other troubling issues present themselves, it is important that they are throughly investigated by an experienced appraiser and other experts knowledgeable about such matters.

Solutions. While most highway takings are only about how much money should be paid, don’t be misled into thinking that other solutions can’t be raised and discussed. Depending on how early in the highway planning process a property owner learns of the plans for his/her property, there may be things that can be done to lessen the negative impact that the highway project will have on the property. Providing construction solutions to avoid damages is something a condemnor may be willing to address, particularly if the issue is raised early enough in the planning process.

Conveyance Documents. If you are being asked to convey a deed, easement, lease, license or any other interest in your property for highway purposes, make sure you are given a copy of the actual conveyance document that you will be executing, so you can review the precise language governing what property rights you are giving up. It is important to understand that when you convey property rights for a highway taking, it is the written document you execute that will control the nature of the rights being conveyed and any terms and conditions of that conveyance, and not what someone working for the State orally represents to you. 

Relocation Assistance. In many highway taking cases, a landowner is not only entitled to compensation for the taking, but relocation assistance as well, either under the URA or some other statutory provision. Furthermore, sometimes the relocation expenses that an owner is entitled to receive can exceed the compensation for the taking. To determine what relocation benefits you may be entitled to, it is important once again to consult with an experienced eminent domain lawyer or persons with special expertise in relocation benefits. Also, in most instances, you will be given written information regarding your relocation benefits and an opportunity to speak with a relocation specialist.