Mitigating Damages—Condemning Replacement or Substitute Property

Right of Way

Brad Kuhn and Aleene Madikians composed the article, “Mitigating Damages—Condemning Replacement or Substitute Property” for the May/June 2024 issue of the International Right of Way Association (IRWA) newsletter, Right of Way.

The article’s initial paragraph begins, “A public agency’s acquisition of private property can sometimes trigger significant severance damages due to eliminating access, cutting off utility service or taking a substantial portion of a property’s parking. Severance damages often arise in ‘partial takings’ where a public agency is taking a portion of an owner’s property, leaving the owner with a ‘remainder’ parcel that may suffer a diminution in value as a result of the remainder’s being ‘severed’ from the part taken. As agencies look to get more creative in minimizing exposure to large damages claims, they will sometimes offer up mitigation alternatives, such as providing an alternative access, or new utility service, or replacement parking, with such rights being granted from an adjacent or neighboring property. These mitigation solutions, generally referred to as substitute condemnation, are often a win-win for property owners and public agencies, as a landowner is made whole, and an agency avoids a large damages claim. But can the government force another nearby property owner to give up their property rights for such mitigation solutions?”

IRWA is a global, member-led organization of dedicated professionals within the right of way industry. Established in 1934 as a not-for-profit association, IRWA's purpose has always been to improve people's quality of life through infrastructure development. IRWA provides invaluable connections through its network of over 7,500 members across 15 countries. The Association actively promotes career growth through leadership development, education and credentialing opportunities. Recognized as a leading education provider in the industry, IRWA elevates right of way professionals to make a powerful difference in their communities.

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