NJ appeals court finds business losses are compensable in temporary takings

A New Jersey appeals court recently ruled that business losses resulting from a temporary taking of commercial property for the repair of public infrastructure must be compensated. In it’s August 27, 2009 opinion, the appellate court upheald a trial court’s dismissal of the New Jersey Department of Transportation’s attempted taking of such a property where its offer of compensation failed to consider the business losses. The appellate court, in State v. Arifee, A-5633-07, adopted a U.S. Supreme Court ruling that “an exercise of the power of eminent domain which has the inevitable effect of depriving the owner of the going-concern value of his business is a compensable ‘taking’ of property.”

Because business losses are compensable in temporary takings and the NJDOT failed to consider those issues in making its offer of compensation, its offer was defective and the dismissal of the State’s complaint was upheld on appeal.
More details and case history are available at the New Jersey Condemnation Law Blog.

The property owners in this matter, Mohammed and Jawed Arifee and the Palace Car Wash, were represented by the law firm of McKirdy and Riskin, including OCA New Jersey Member Edward McKirdy with Anthony Della Pelle and Joseph Grather at trial and on appeal.

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