Does a Commitment to Keep Your Business Open During Construction Change the Amount of Compensation You are Owed for a Temporary Construction Easement?

Some government agencies will pledge to do whatever it takes to make sure your business stays open while the government is using your property to construct its new public facility, like a road or utility lines. In some instances, the government may go so far as to create an alternate access plan or state in bold on its construction plans, “Access To Remain Open During Construction.”

These assurances do not change the legal rights to use your property that the government takes from you by condemning a temporary construction easement. In condemning an easement over your property, the government takes from you the legal right to use your property in the manner the easement states, and the government cannot lessen the amount of compensation you are owed by promising to use the easement a certain, limited way. In Arizona, this rule is stated in Phoenix Title & Trust Co. v. Arizona Public Serv. Co.:

When property is acquired by virtue of the power of eminent domain, the compensation of the owner is to be estimated by the actual legal rights acquired by the condemnor and not by the use that he may make of the right.
— Phoenix Title & Trust Co. v. Arizona Public Serv. Co., 445 P. 2d 169, 8 Ariz. App. 221, 226 (1968).

Property owners should use this to their advantage. The best way to resolve a legal dispute is by agreement, and often times businesses would rather have some say in how the government uses their property than a few more dollars in compensation. Using this principle as leverage could result in an agreement with the city or county to redesign its project and temporary construction easement to lessen the burden on your business.

Keeping your business open during construction is important, but it should not change the amount you are owed for the taking of a temporary construction easement.