Appellate decisions reversing a grant of summary judgment because there are disputed factual questions are not 100% satisfying. Yes, if you are the plaintiff/appellant, you live to fight another day instead of facing the exit door. But you haven’t won yet either, and the hard part — proving that you should win, and not merely that you shouldn’t lose — is still to come.
But that’s not the reason why we don’t quite get the Washington Court of Appeals’ opinion in a takings case, TT Properties, LLC v. City of Tacoma, No. 46803-4-II (Jan. 12, 2016). It reversed in part a grant of summary judgment to the city, so we can’t dislike the ruling. Yet at the same time, we can’t understand why the court reached this result.
A project by the regional transit authority on a city-owned right-of-way ended up impacting two separate parcels owned by TT. On one, the Pacific Avenue property, the work blocked TT’s access to an adjacent street, even though it continued to be able to access the property via another adjacent street. On the second, the C Street property, the transit authority erected a utility bungalow on the city’s right-of-way which made it impossible for trucks to use an alley to make turns to reach TT’s parcel. TT sued the City for a taking. The trial court granted summary judgment to the city on both parcels.
The court of appeals first concluded that there was no total taking of access to the Pacific Street parcel because TT still had the ability to access the land via a different adjacent street. There’s no property right to access “a particular street,” and as long as you have reasonable access to your parcel via other streets, there hasn’t been a total loss of access. Slip op. at 7 (emphasis original). TT merely suffered “added inconvenience.” Id. at 8.
But even though TT did not totally lose its right to access, the court concluded that if this inconvenience added up to a “substantial impairment” of access, then there still might be a taking. On this latter question, there remained a factual dispute about whether the transit project substantially impaired access, at least as to the Pacific Street property, because TT had submitted a declaration that the loss of partial access had “a significant negative impact on value.” Slip op. at 11. The C Street parcel, however, was a different story, because even viewed in the light most favorable to TT, the evidence that trucks couldn’t make a turn using the alley which the transit project blocked didn’t add up to a substantial impairment.
We don’t quite get the court’s apparent distinction between what it called a “per se taking” and what it called an “inverse condemnation,” and despite several readings of the opinion, we still can’t totally wrap our heads around the court’s reasoning, or figure out why having some access to the Pacific Street property might still be a taking, but being deprived of access to the C Street parcel was not a taking as a matter of law.
If you can figure it out, please clue us in.
TT Properties, LLC v. City of Tacoma, No. 46803-4-II (Wash. App. Jan. 12, 2016)