Case Study: Expert Witness for Eminent Domain

By Vern Swing, PE

In Minnesota, transportation improvement projects frequently require acquisition of right of way.  The process used is referred to as eminent domain, and in general the government takes the property and is required to compensate the property owner a fair market value.  The source of conflict of course is what is a fair market value for the taken property.  Fortunately, traffic engineers defer the property valuation to expert appraisers.

The valuation of property should be based on the highest and best use of the property in question.  The determination of the highest and best use is dependent of zoning which dictates what is allowed on the property today, and is also based on the city’s comprehensive plan as what the land is guide for in the future.  To determine the value, the amount of development that could have occurred in the before condition (before the land taking) is compared with the amount that could have occurred in the after condition (after the land taking).  Occasionally this is as simple as in the before condition a larger development could occur when compared to the after.  However, on other occasions the public project may have changed the ability to access the property thus changing the highest and best use.

As traffic engineers, our role in assisting the appraisers is to determine if the before condition roadway system could accommodate the highest and best use development of the property in question, and if not, what mitigation would allow for the development to occur.  We also need to assign a value for the mitigation to be used in calculating the loss of development revenue by the appraiser.

Case Study: Farm Land to Highway Commercial Use

In a recent case in the state of Minnesota, I represented a property owner who had property adjoining a county road, which was bisected by a state highway.  The property was being farmed and was zoned as agricultural, but was planned for future highway commercial.  The county road intersected the state highway at an at-grade intersection controlled by a traffic signal.  The property owner held property on both sides of the intersection.  The traffic operation on the state highway and on the county road was poor due to insufficient roadway capacity which was exacerbated by the delay caused by the traffic signal.  The Minnesota Department of Transportation (MnDOT) considered several modifications to their facility including adding additional through lanes, or creating a grade separated interchange.  The County also considered adding more lanes through the intersection to provide additional capacity.  Ultimately, MnDOT and the County selected the grade separated interchange option with additional through lanes on the County system.

The interchange selected was a folded diamond and resulted in taking all my client’s property on the east side of the interchange and 60% of the property on the west.  A landscape architect put together a reasonable site plan of what could have been developed on the property in the before condition. Trip generation was estimated for the projected development plan, and I tested the adjoining County roadway capacity by adding the estimated trips to the existing counts to determine if development of the intensity suggested by the land use plan could be accommodated.  It was determined that with the addition of turn lanes for the both the east and west properties and the addition of a signal for the west property, development was feasible.  In fact, the addition of the signal on the west side would have metered the traffic approaching the state highway, causing a slight improvement in operations for the intersection now being upgraded to an interchange.

When the case was presented to the Transportation Commissioners, I was questioned about the process, including the trip generation and plan to accommodate the traffic. Ultimately, the Commissioners agreed that development could have occurred.  They awarded the property owner the full appraised value of the land development plan.

Although usually opposite of a public agency in cases like these, the role of the traffic engineer should not be adversarial.  The process is similar to a Traffic Impact Study to review the site’s traffic and what would need to occur for the roadway to accommodate the expected traffic.  Then we can step aside and let the appraisers argue over the appropriate value.

 

Vernon Swing Bio

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