The provisions of the 42 U.S.C. 4651(3) are outlined, and the enhancement and the depreciation in value due to public improvement are discussed. The great majority of the cases reviewed indicate that depreciation resulting from the improvement must be excluded in the determination of market value. The review of case law with respect to the provisions of 42 U.S.C. 4651(3) relating to exclusion of increase or decrease in value due to the effect of an improvement indicates the following: In those states that have adopted the probability inclusion test no legal problem will be presented in complying with the provisions of the Federal act. No problem of compliance with the Federal act should be presented in jurisdictions where case law appears to dictate that all enhancement proximately caused by an improvement shall be denied. In any jurisdiction that has adopted the view that the allowance of enhancement is the more equitable rule, difficulties of compliance with 42 U.S.C. 4651(3) may be encountered. In those states that have elected to adopt the rule announced in the Miller Case (condemnation of land required for the Shasta Dam, California), the question may be presented as to the operative effect of the "commitment" rule on highway projects. In the case of depreciation due to an improvement, although there is authority to the contrary, it would be more equitable that the condemnee should not be required to suffer diminution in value brought about by the threat or imminence of condemnation. Comment is made on the problem of reconciling the mandatory language of 42 U.S.C. 4651(3) with the provisions of 42 U.S.C. 4655(1).


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  • Accession Number: 00148918
  • Record Type: Publication
  • Files: TRIS, TRB
  • Created Date: Aug 28 1998 12:00AM