Land for the "taking": When the government wants your property.

• Author: Spendlove, Gretta
• Position: Of Counsel - Brief Article - Statistical Data Included

A legal war is currently being waged over the sound wall lining Wasatch Boulevard between 3300 South and 3900 South in Salt Lake City. During the summer of 2000, 17 landowners east of Wasatch Boulevard initiated arbitration against the Utah Department of Transportation, claiming that UDOT's construction of the sound wall constituted an illegal "taking" of the landowners' property without compensation. The landowners claimed that their implied easements for light, air and view were blocked by the sound wall. UDOT responded that none of the landowners' rights were taken.

The arbitration decision, issued by former Utah Supreme Court Justice Michael Zimmerman, recognized an implied easement for light, air and view as to the properties that abutted Wasatch Boulevard, provided that the sound wall blocking those properties was located within the UDOT right-of-way. The decision is being appealed to district court.

Both the Utah and federal constitutions forbid government to condemn, or take, private property without due process. However, many lawsuits are brought over what constitutes a "taking," what procedures the government must follow before it can take property and how much the government has to pay.

Direct Takings from I-15 to the Legacy Highway

"Usually, when roads are widened or freeways are built, the government takes some private property to make it happen," explains Paul Durham, a Salt Lake attorney who handles many land-use issues. "Condemnation can also be used in many other situations, such as construction of government buildings or construction of pipelines by utility companies."

Although damages must be paid to landowners in condemnations, there are frequent legal skirmishes over the types and amount of damages. The measure of damages is the fair market value of the property. However, if one part of a landowner's property is taken but the rest is left, the landowner and government may disagree on the amount of damage to the remaining property as a result of the land losing its frontage or being too small to effectively conduct business.

"If a guy is running a junkyard in Utah County, and it gets condemned," says Clark Sessions, another attorney specializing in takings issues, "it maybe difficult or impossible for him to relocate that business to another area, such as Salt Lake County, and get all the licenses and government approvals which he needs to stay in business. Yet, in a condemnation action, he cannot recover the costs of...