Utilizing the Before and After Valuation

Utilizing the Before and After Valuation

In our blog series related to eminent domain damages, we’ve discussed the rules of highest and best use and the before and after rule. As a quick review, the before and after analysis is used to determine the amount of damages or just compensation owed to a property owner when the government is acquiring a portion of their property through eminent domain, also known as a partial taking.  The before an after analysis considers the value of the property before the taking (utilizing highest and best use) and then determines the value of the remainder parcel after the taking.  The difference is the amount of compensation owed to a property owner.

I would be re-missed if I didn’t bring to your attention a situation that can ruin your chances of receiving just compensation in eminent domain law.  This situation doesn’t frequently arise and is often taken for granted.  Let’s pretend that your property fronts a highway and the state department of transportation is planning two future projects.  The first project to be constructed is a new road that will intersect the existing highway and will effectively be constructed on a portion of your land.  The second project is a future overpass constructed on the new highway over the existing highway.  Although the only immediate project is the construction of the new road, the department of transportation is acquiring property not only for the new highway, but also for the future overpass. Ultimately the state DOT knows that the traffic level is going to increase to a level that warrants construction of an overpass.

Because both projects are planned and approved by the DOT, they will be acquiring property for both projects at one time.  When they make you an offer for the portion of your land being taken for the new road and the portion of your land being taken for the future overpass, you need to consider the impact that the future overpass will have on your remaining parcel.  For example, will the new overpass limit the use of your remaining land, or will it limit access to a portion of your remaining land?  If so, under the rules of eminent domain law, you are entitled to receive compensation for these damages.

If the impact of the future overpass on your remaining parcel is not taken into consideration at the time that your claim is made, you may be forever barred from making a claim for the loss in value to your remaining parcel.  The reason being is when the state DOT constructs the overpass in the future, there won’t be or may not be an additional taking of your land which would prompt the right to file another claim.  Therefore, if these issues were not addressed during the initial eminent domain proceeding when the takings occurred, then all damages that you are entitled to receive because of that overpass would forever be lost and waived.

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