By Jones Osborn II

The law gives the government the right to build roads across private property, so long as it pays for the land. This right to compensation is guaranteed by the U.S. and most state constitutions, including Arizona's.

The right to compensation isn't as broad as some might believe, however. There are some types of economic damage caused by the building and improvement of roads that do not require compensation to the property owner.

For example, if the city re-routes a heavy flow of traffic away from a commercial property to some other roadway, the city is not responsible for the loss of business or the diminished value of the property caused as a result. Conversely, if the city decides to re-route a heavy flow of traffic onto a residential street making the houses practically uninhabitable, the result is the same--no compensation. In addition, no compensation is payable where a property owner temporarily loses business due to reduced traffic while a street is under repair or renovation.

The courts have also held that the harm to a business caused by the construction of a raised median, which make it more difficult for customers to enter the property, does not create a claim for compensation. The same is true for other traffic control measures, such as the establishment of one-way streets or the installation of right-turn-only points of ingress and egress.

In most cases, the government is free to change the grade of a roadway abutting a property without compensating the owner for the damage caused as a result, such as difficulty in entering or leaving or reduced visibility.

The courts have also held that the loss of an existing freeway access was not compensable, as long as the property owner had other reasonable means of access to his property.

On the other hand, the property owner is entitled to compensation where the government takes away his only access, or where the access that is left is inconvenient, circuitous, or impractical. And clearly, the government is always liable where it actually takes title to a strip of land for roadway widening or for curbs, gutters, sidewalks, or other public purposes. This is true for the underground installation of a pipe, sewer or electrical line, even though the effect on the surface use is minimal or non-existent.

Conclusion. Whether a landowner is entitled to compensation for a road construction or improvement project often depends more on the legal nature of the "taking" than on the economic damage suffered by the landowner. Often times a very minor intrusion can result in significant compensation, while an economically devastating action can leave the owner entirely without remedy. If a change in a roadway causes you economic harm, the best bet is to review the action with your legal counsel to determine whether you might be entitled to compensation.