Highway and Road Projects: What Property Owners Face

Highway projects produce more condemnation cases than any other public use. Most involve a partial taking: a strip along the frontage, a corner for a turn lane, a slope or drainage easement, or a temporary construction easement. The strip itself may be small. What it does to the rest of the property is usually the real dispute.

Who is taking the land

Highway takings are almost always brought by a state department of transportation, a county, a city, or a toll or turnpike authority, each acting under state eminent domain statutes. Federal money often pays part of the cost, but the acquiring agency and the court are ordinarily state.

Which rules apply

Where title 23 grant funding is used, 23 CFR Part 710 governs the acquisition, management, and disposal of real property, and its stated purpose is to ensure prudent use of federal funds. States administer the federal aid highway program through their state departments of transportation, and the state department of transportation has overall responsibility for acquisition on federal aid projects, including projects carried out by its subgrantees or contractors.

The acquisition itself must also satisfy the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and 49 CFR Part 24. That means the property is appraised before negotiations begin, you may accompany the appraiser during the inspection, the agency must set an amount it believes is just compensation that is not less than its approved appraisal, and the written offer must come with a written summary of the basis for it.

Why a narrow strip can cost a lot

Appraisals in partial takings normally value the whole property before the taking and the remainder after, and the difference plus the value of the part acquired sets the measure. A ten foot strip that pushes a building inside a setback, removes required parking, eliminates a septic field, or leaves an unbuildable sliver can cause damage far larger than the land area suggests.

Access, frontage, and driveways

Widenings frequently change how traffic reaches the property. A driveway may be relocated, a median may make the entrance right in and right out only, or a frontage road may replace direct access. Whether a change in access is compensable, and how it is measured, varies significantly by state, and this issue decides many highway cases. Document the existing access with photographs and traffic counts before construction begins.

Severance damages and the remainder

Severance damages compensate for the loss in value to the property you keep. In United States v. Miller the Supreme Court held that where a tract is used and treated as a single entity it is considered as such in assessing compensation, so a partial taking accounts for the relation of the part taken to the whole. Typical causes in highway cases include loss of access, irregular remainder shape, proximity to the new roadway, noise and lights, drainage changes, and loss of the highest and best use of the remainder. See our just compensation guide.

Relocation and business displacement

If the project forces you or a tenant to move, relocation assistance under the Uniform Relocation Assistance Act provides advisory services, moving expense payments, and replacement housing payments in addition to the price of the property. A lawful occupant must receive at least 90 days advance written notice of the earliest date by which the move may be required. Businesses should also review our page on business condemnation for fixtures, leaseholds, and business damages, which depend heavily on state law.

What to do when the DOT contacts you

Ask for the project plan sheets and the right of way plans showing the take lines, the appraisal, and the summary statement of the basis for the offer. Ask whether the project uses federal aid funds. Attend the appraisal inspection. Photograph access, parking, drainage, signage, and improvements before anything changes. Do not sign a right of entry or a purchase agreement until you understand what it releases. Our first steps guide walks through the early paperwork.

Frequently asked questions

Can a state DOT take part of my property for a road widening?

Yes. State departments of transportation hold eminent domain authority under state law and use it routinely for widenings, interchanges, frontage roads, and drainage. The question in most cases is not whether the agency may take the land but how much it must pay.

Who sets the rules when federal highway money is involved?

When title 23 grant funding is used, the acquisition follows 23 CFR Part 710 and the Uniform Relocation Assistance Act as implemented by 49 CFR Part 24. The state department of transportation has overall responsibility for acquisition on its federal aid projects, including work done by subgrantees and contractors.

Do I get paid for losing my driveway or access?

Loss or impairment of access is a common source of damages to the remainder in a partial taking, but state law differs on when a change in access is compensable and when it is treated as a noncompensable exercise of the police power. This is one of the most contested issues in highway cases.

What are severance damages in a highway taking?

Severance damages compensate for the loss in value to the property you keep when only part of the parcel is acquired. They are paid in addition to the value of the strip taken and often exceed it.

Does the offer include my moving costs?

No. Relocation assistance under the Uniform Relocation Assistance Act is separate from and additional to the price paid for the real estate.

Sources

• 23 CFR Part 710, Right of Way and Real Estate (eCFR)
• 23 CFR Part 710 Subpart B, Program Administration (eCFR)
• 49 CFR 24.102, Basic acquisition policies (eCFR)
• 49 CFR 24.203, Relocation notices (eCFR)
• 42 U.S.C. 4651, Uniform policy on real property acquisition practices (Office of the Law Revision Counsel)
• 42 U.S.C. Chapter 61, Uniform Relocation Assistance and Real Property Acquisition Policies (Office of the Law Revision Counsel)
• United States v. Miller, 317 U.S. 369 (1943)