A road-widening project can do more than change traffic patterns. It can alter access to a house or place of business, restrict the land that can be used, and redraw property lines. The legal idea that comes up with these issues is the right of way. This is the government’s authority to use land for public roads and the land or easement where the roads exist.
A right of way doesn’t automatically mean the property underneath is owned by the government. In some instances the land is held in fee simple by the governmental agency. In others it has an easement, which means the agency has legal defined rights to build, operate and maintain the road, while the owner holds title. Whether it is one or the other is determined by state law, historic highway records, subdivision plats and deeds.
How Boundaries Are Changed by Expansion
Usually when a highway or street expands, the transportation agency produces a right-of-way plan showing the extra land needed. This area could be a temporary construction easement, a corner for a turning lane, or a small strip along the frontage.
The owner and the agency may engage in negotiations. In the event that negotiations are unsuccessful, the government may often use eminent domain to obtain private land for public purpose.
Compensation is generally based on the fair market value of the property. If a parcel is only partially purchased, an appraisal may also consider severance damages, the loss in value of the remaining property due to the project. Examples include a smaller parking space, poor visibility, altered drainage, or no direct access. States have very different regulations. Some types of business loss or annoyance may not be covered.
Without acquiring a new strip of land, a project may also have an impact on existing property. A driveway connection might be eliminated with a rebuilt median. A temporary easement may be imposed by construction. Development may be restricted by new grades or drainage infrastructure. The project plans and current access rights must be carefully examined in light of these effects.
“How much land is being taken?” is not the only important question. What rights, access, and worth are left over after construction?