South Carolina Department of Transportation v. Powell, 424 S.C. 206, 818 S.E.2d 433 (2018)

Case Type: Direct Taking

Brief Summary / Main Issue:

Powell owned an undeveloped 2.5-acre commercially zoned property in Myrtle Beach with easy access to U.S. Highway 17 Bypass.  The South Carolina Department of Transportation converted the Bypass into controlled access and closed the closest intersection to Powell’s property (within several hundred feet of the property, though not abutting).  After closing the intersection, travelers would have to exit the Bypass before reaching the Powell property and travel between 1.0-2.25 miles to reach the property depending on the direction of travel.  The SCDOT was also taking 0.183 acres of Powell’s property for the project.

The question in the case was whether Powell could be compensated for the negative impact of the lost indirect access to the Bypass as a result of SCDOT closing the intersection nearest to his property.  The general rule is that changes to traffic flow or a lane closure standing alone are not compensable damages.  Here, however, the Supreme Court noted that in a direct condemnation action, where land is physically taken by the government, the Eminent Domain Act entitles a landowner to compensation for any diminution in property value, S.C. Code §28-2-370, including diminution resulting from indirect impacts of a project.

Landowner Takeaway:

• When evaluating the impact of a taking on your property, consider how access to the property will change as a result of the entire project.
• How do customers or clients currently access your property?  Will this change as a result of the project?   Provide this information to your attorney.

Attorney Takeaway:

• Access impacts are compensable in direct condemnations.
• Where there is no direct taking, compensation for project impacts may require an additional showing of impacts unique to your client.