SUCCESSFUL NEGOTIATION OF SIDEWALK EASEMENT

Substantial revisions were made to a sidewalk easement to address the business concerns of a large, well-known retailer on a major street, plus added just compensation was paid.

It is more exciting to write about hotly contested legal battles that result in large increases in just compensation. But that is only one tool in the arsenal used to accomplish clients’ goals.  Sometimes, when confronted with a condemning authority sincerely interested in addressing a property owner’s concern, deals can be negotiated to minimize the impacts of a taking, reduce just compensation claims as a result, and prevent litigation. I recently concluded an example.

I represented a well-known retailer on a major street. The client was very concerned about maintaining the curb appeal of the business and reducing impacts to access. I was able to negotiate a revised easement addressing these issues.  

For example, the easement confirmed that access would always be available through one of the two entries. Access closures would be minimized as much as possible by doing work outside normal business hours, if possible. The area encumbered by the easement can only be used for work on my client’s property, not for storage of dirt or equipment while work is done on neighboring properties. 

As to curb appeal issues, the easement requires the municipality to temporarily water all vegetation, repair and reconfigure the sprinkler system, install a retaining wall to protect a display area, replace trees, and addressed some of the aesthetic aspects of the construction.

It also provided relief from any future zoning issues attributable to acquisition of the sidewalk.

The township also agreed to pay additional just compensation based upon comments that I made about the appraisal it commissioned for purposes of issuing a good faith offer. 

The client’s goal was not to maximize just compensation while enduring operational problems both during and after the construction. Rather, it desired to solve the problems that could lead to just compensation claims by negotiating revisions to the language of the easement. The township acted reasonably to minimize the impacts. As a result, both parties preserved a positive working relationship and avoided the distraction of litigation.

It is always important to understand a client’s goals and tailor an approach to a taking that accomplishes their objections. A flexible approach is necessary to do that.