New Hope for Eminent Domain Cases?

Easy, convenient access is the lifeblood of a convenience store. Without it, a store can go from thriving to out of business. It is no wonder then that convenience store operators become anxious when government authorities propose "upgrades" to the road system, as a recent survey found that upgrades consisting of median installations reduced daily customers by 17.6 percent.

Unfortunately in many states, restrictions to access do not generate compensation to affected convenience store owners. To address this problem, the state of Virginia recently amended its constitution to specifically include lost access as part of the compensation to be paid to an affected owner. Virginia is part of the small vanguard of states seeking to expand compensation for lost access.

Loss of access causing damages to convenience store owners usually arises from one of the following changes to access:

• Construction of medians limiting traffic flow;
   
• Removal of an existing driveway or potential driveway access;
   
• Loss of access to arterial roads resulting in a more circuitous travel route.

Prior to the amendment, Virginia law denied compensation to a convenience store operator who suffered a loss in value due to a change in access where the operator was still left with "reasonable access" after the change. Now, after the amendment, any loss of access can be considered in determining compensation to a convenience store owner irrespective of whether reasonable access remains for the store, i.e. remaining reasonable access is a non-issue.

The new amendment directed the enactment of enabling legislation, which raises questions and reveals limitations for the amendment. It provides that compensation will be limited to situations where an actual “taking” occurs. In other words, the installation of a median or the creation of a more circuitous route from the main traffic flow will not be compensable unless land is also taken from the property. Since road projects impacting c-store owners frequently create these situations, those owners will not enjoy relief under the new amendment. Only the loss or change of access points to a property itself will give rise to compensation without any further showing of a taking.

The foregoing statutory limitation, which is a view shared by condemning authority officials, may be subject to court challenge. According to the statutory language, loss of access is merely a feature that is incorporated in determining "damages to the residue." The constitutional amendment, however, creates a new category of damages (loss profits) and references loss of access with this new damage category rather than the damages to the residue. There is a legitimate question whether the statutory limitation correctly reflects the broader intent of the constitutional amendment. If it does not, the statute could be struck down.

The Virginia initiative is a welcome enlightenment toward the plight of convenience store owners who are confronted with lost access from an eminent domain taking. While it still has shortcomings relative to the full panoply of access issues facing c-store owners, it may form the starting point for constitutional and statutory changes in other states.

Dan Biersdorf is the principal attorney for Biersdorf & Associates, a nationally recognized eminent domain law firm. He has successfully handled eminent domain cases in appellate and state supreme courts across the country, and frequently lectures on property valuation matters. Biersdorf & Associates handles eminent domain cases of all types and sizes, and has 16 eminent domain trial attorneys located throughout the country.

Editor’s note: The opinions expressed in this column are the author’s and do not necessarily reflect the views of Convenience Store News.