New Jersey approved a gas tax in 2016 to replenish the New Jersey Transportation Fund. The proceeds of the tax are to be used to make infrastructure improvements throughout New Jersey. In addition, the Trump administration recently announced a policy to support infrastructure projects on a national level.

The impact of infrastructure projects and related spending should benefit the majority of the residents of New Jersey. However, some property owners will be forced to contribute part or all of their property to infrastructure projects for the benefit of the public since the government can use the power of eminent domain when building or improving public projects. We anticipate on an increase in the filing of eminent domain actions as a result of the planned increase in infrastructure spending, and concurrent impact on private property.

When a bridge is repaired or a road widened, the government must generally make additional improvements associated with the project. For example, if a state highway is widened, the New Jersey Department of Transportation will often install new sidewalks. If a bridge is repaired, roads surrounding the bridge are often improved, with changes to access in addition to site improvements. Property owners should be aware of how an infrastructure project can impact their property.

From a big picture point of view, there are two issues that should concern property owners.

First, will the project require any type of modification to the access to and from their property? Under the New Jersey Highway Access Management Act and common law, the government is permitted to revoke, modify, or adjust access to property.

Second, in order to make road improvements, the government often needs to acquire a small strip of property along the frontage of many properties. For example, if the government is going to make a change to the access of your property or construct new curbing and a sidewalk, the government may need to acquire 5 to 10 feet along the front of your property. Although 5 or 10 feet along the front of your property may seem like a minor taking, the implications to the retained property can be significant.

When a property owner learns about a new infrastructure project near his or her property, it is prudent to start obtaining information to determine whether or not the project will have a direct impact on the property. Some of the preliminary questions to ask are:

  • Has any type of concept plan been prepared by the government?
  • Will the proposed plan have any impact on access to my property?
  • Will the project involve a taking of any portion of my property?
  • Will I have an opportunity to comment on the plan before it is approved in order to minimize damage to my property?

It is crucial to be proactive and obtain the necessary information before the government comes knocking on your door. Property owners should assemble a strong team of attorneys, appraisers, and engineers (i.e., traffic engineer) to properly analyze how the change in access – or taking – will impact the property.