The Compensation Conundrum in Partial Takings Cases and the Consequences of Borough of Harvey Cedars

Brittany Harrison, Benjamin N. Cardozo School of Law

Student Note


This Note suggests that the goals the Harvey Cedars court sought to achieve—including reduced windfalls and greater certainty in the law—would best be achieved by applying the market value rule as adopted in California, which follows a value plus damages approach and requires payment for the part taken. Part I of this Note introduces the Harvey Cedars case. Part II provides a historical background to partial takings cases and a discussion of the special benefits doctrine, a type of compensation method that emerged as a compromise position to compensation to better protect condemnees. Part III surveys the various compensation methods used by several state courts. Part IV discusses the advantages and disadvantages of these approaches and proposes that New Jersey courts apply the market value rule under the value plus damages calculation—even in cases where the remainder’s value increases to a greater extent than net damages incurred—in order to avoid the negative consequences associated with zero compensation under the before and after rule.