Property owners may not be able to prevent a government entity from seizing their real estate for public use, but a New Jersey case demonstrates how commercial landlords across the country could be fully compensated for damages after land is taken through the power of eminent domain.

The New Jersey jury awarded $1.6 million to landlord Marlton Plaza Associates, a Delaware-based partnership, which is losing one of three driveways at the Marlton Crossing shopping center in Mount Holly, N.J. to make way for an overpass along Route 73. The New Jersey Department of Transportation had offered $194,000 for the narrow strip of property when it exercised its eminent domain authority to take the highway frontage in 2007.

The New Jersey case shows that an owner may be able to successfully argue for a higher price. The Sept. 16 ruling also demonstrates that landlords who lose even partial access to their property through eminent domain may be entitled to damages in addition to the value of the land.

The jury found that even with two remaining access points, the loss of a key driveway created a traffic circulation problem in Marlton Crossing’s parking lot, compromising ease of customer access and reducing the property’s overall value, according to attorney David Snyder, who represented the property owner in the case.

“Change of access is a huge issue because it happens fairly regularly,” says Snyder, who is a partner at the Philadelphia office of law firm Fox Rothschild LLP.

Landlords throughout the United States could soon be fighting their own battles for just compensation when a government entity takes their land. Snyder says federal stimulus dollars have fueled a nationwide deluge of street expansions, and those projects frequently use eminent domain powers to obtain right of way from private property owners.

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