South Dakota Takings Trilogy, Part III: Landowners' Claim That Nearby Highway Project Impaired Access Was, Like, Their Opinion, Man
Schliem v. South Dakota, No. 27557 (Dec. 7, 2016) is the third in a series of condemnation cases issued earlier this month by the South Dakota Supreme Court. The first, South Dakota v. Miller, involved impairment of access resulting from a highway project suffered by an owner whose property was taken for the project. The second considered the effect of a quick take.
Schliem came after the jury's verdict in Miller, the first case. The difference here was that the property owners did not have any part of their land taken by the DOT for the project, yet their parcels (13 and 14 above), had, they claimed, lost access from Cliff Avenue. They filed an inverse condemnation claim for the alleged decrease in value of approximately $300,000 due to the changed access. The trial court granted the State summary judgment, concluding that the owners still had alternative access, and that diminished access, standing alone, was not enough as a matter of law to state an inverse claim. In short, the owners lacked a property interest they alleged was taken.
The Supreme Court agreed. It first concluded that the owners' counter to the State's factual allegations -- that the alternatives provided reasonable access to the lots -- did not really challenge the facts. The owners asserted that no "alternative built by the State provides a reasonable replacement access." This, in the court's view, was not enough to raise a factual dispute, but was an opinion about the ultimate question. The court concluded that "reasonable" and "substantial impairment" are questions of law [Barista's note: Really? We thought questions of what is reasonable in the circumstances, or counts as substantial are matters for juries, not judges.]
After blowing by the predicate summary judgment question, the court concluded that the owners didn't possess a property right. They may have been damaged by the loss of access, but they hadn't had any property taken. Nor did the owners suffer loss of assemblage rights, since they didn't have any property actually taken. Assemblage is a valuation concept, and doesn't factor into the question of whether property was taken. Finally, the court rejected the argument that the owner had a right of unimpaired access. Yes, the route was now more circuitous but it was still reasonable:
In this case, the physical characteristics of Schliem’s access routes before and after the Intersection’s closure are nearly identical. Schliem’s property does not abut the Intersection, and the Intersection’s closure did not affect his ability to access 63rd Street in any way. Before the closure, he had to travel approximately 748 feet on 63rd Street—all of which was unimproved, gravel road—before connecting to the general system of public highways. After the closure, he must travel approximately 834 feet on 63rd Street—of which only 534 feet is unimproved, gravel road—to reach the general system of public highways. An increase in circuity of only 86 feet (or about 0.0163 mile) is substantially less than increased circuity held to be noncompensable in other cases.
Slip op. at 16-17.
A single Justice dissented, arguing that there were factual disputes. He would have remanded to apply the access test which the court had articulated that same day in Miller(impairment of access claims are not subject to per se rules, but governed by the unique circumstances of each case).
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