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Is county liable for inverse condemnation beyond retail value of land and wood under eminent domain for a road expansion?

Burke, VA |

The county declared eminent domain to complete a road expansion project. While reimbursement was made to the market value of the land and hardwood. A wall was erected as a sound barrier to reflect noise, vibrations, dust, etc. back onto the road and away the houses along the roadway. The wall is not effective and the noise reverberates over the wall and directly into the third story of a residence. What is the legal recourse for the diminished value and use of the property?

Attorney Answers 3


You might be able to prevail on a "takings" claim, but, as you might expect, suing a municipality or state is difficult. There is possibly a claim, but I'd imagine there would be some issues with proving damages in dollars and cents proof that there is actually some diminution in property values (by sales data, comparables, appraisals, etc.), there may be statutes of limitation, there may be special notice requirements or courts involved (choice of federal courts or courts where municipal claims are heard), that the impacts were not properly predicted or were understated in the pre-construction environmental review, that the sound levels although annoying to some, do not exceed scientifically based impact levels.

In other words, it's possible, but not a cakewalk. And unlike cases involving improper highway design that might involve personal injury to life or limb, it's doubtful that you will find an attorney or consulting experts who will take this case on a contingency basis, so it would be up to you or your neighbors who are affected to pay the freight and push the rock up the hill.

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This is definitely a tough one, for all the reasons as stated by Mr. Lebowitz. Other difficulties with bringing a case as you describe, could also involve notice or knowledge of the plan to build a sound barrier wall. If you were already compensated through the eminent domain process, the Commonwealth will most certainly try to argue you waived your rights to complain having known/or been noticed of the wall and future expectation of noise levels.

Proving this type of a case also usually involves hiring consultants who are experts in documenting and measuring noise levels and effects. This will be needed to back up your complaint that the new noise levels and effects far exceed anything you were warned about. There are consulting firms that do noise studies around airports for very similar legal issues. However, this is a cost you would have to pay for, because no one else will. Unfortunately, these types of studies are expensive. Pursuing this, definitely requires an attorney experienced in Eminent Domain/Inverse Condemnation/Property Rights.

Good luck.

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Jack Richard Lebowitz

Jack Richard Lebowitz


Agree with Mr. Flaggs description of noise impact analysis. It's not as cut and dried as you may think that you're annoyed by a louder highway than before. There's already a daytime and nightime background noise "floor" called "ambient noise" and in NYS, by regulation, the increase in noise must be more than 6 dB (each dB is a DOUBLING of sound energy) above the previous ambient for there to be regarded as a noise impact. Additionally they factor in whether the windows would normally be open, and since it's either cold or people have air conditioning, it's hard to prove indoor annoyance, like interference with sleep. The fact that you or your neighbors subjectively feel the new highway is "noisier" doesn't carry much weight.


Generally speaking, it is very difficult to recover damages for noise. However, if part of the eminent domain settlement included sound attenuation, you may be able to assert a claim for breach of the settlement agreement.
If there is excessive dust and fumes from the traffic you may also be able to assert a claim for nuisance.

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