We think you should pay attention to the South Carolina Supreme Court's opinion in South Carolina DOT v. Powell, No. 2016-000594 (Aug. 8, 2018). Indeed, it is a short opinion, and worth a read in its entirety. The reason why we think it is important is that it analyzes an issue that confuses many: the partial loss of access as the result of a condemnation.
Quick facts: DOT's highway project resulted in the taking of a part of Powell's commercially-zoned, undeveloped property. The parcel has "easy access" to the adjacent US Highway 17 via an intersection. DOT's appraiser thrice valued the 0.183 acres that DOT was taking from Powell between $68k and $71k.
But right before trial, DOT amended its plans, which resulted in a loss of easy access, even though the roads which directly abut Powell's property were not altered or closed. "Travelers on the Bypass could reach Powell's property via the Farrow Parkway exit sought of the property and travel north for about one mile, or they could exit one mile north of Powell's property and travel south, a distance of 2.24 miles for northbound travelers and 1.25 miles for southbound travelers." In short, a severe, but not total, loss of access, and no direct taking of the road abutting Powell's parcel.
DOT's appraiser revisited his report, concluding that this loss of access resulted in additional loss of fair market value of $445k (plus the original $72k for the land actually taken). DOT, however, instructed the appraiser to remove any compensation attributable to the loss of access to the Bypass. DOT said this wasn't part of the taking of Powell's property, but was unrelated. He did so, revising his conclusion to $72k. The trial court treated DOT's motion in limine to exclude his earlier report as a motion for summary judgment, which it granted. The S.C. Court of Appeal affirmed, because DOT's modification of the Bypass was not a taking of Powell's property, and thus the loss of indirect access was not compensable as a matter of law.
The S.C. Supreme Court reversed. DOT argued that its taking of Powell's 0.183 acres of land was separate from the taking (if any) of Powell's resulting loss of access as a result of its "police powers" to modify the Bypass. In doing so, it conflated the general rule that in order to be compensated for loss of access some portion of an owner's property must have been condemned, with the rule that loss of access resulting from exercises of police power are not compensable:
SCDOT, on the other hand, urges a more restrictive interpretation of the just compensation statute whereby only damages resulting from the actual taking of the 0.183 acres are recoverable. To support its reading of section 28-2-370, SCDOT points to this Court's construction of a prior statute governing compensation for takings. S.C. State Highway Dep't v. Bolt, 242 S.C. 411, 417, 131 S.E.2d 264, 267 (1963) ("[Damages to the remainder] which are the direct and proximate consequence of the acquisition of the right of way [are compensable]. In other words, as a general rule, special damages include all injuries or damages which cause a diminution in the value of the remaining property."). Essentially, SCDOT contends the analysis of whether a taking has occurred must be conducted with respect to each action that produces a diminution of value in the remaining property. Under SCDOT's theory, there are two distinct actions here: (1) the physical appropriation of 0.183 acres, and (2) the closure of the Intersection and the creation of the cul-de-sac. According to SCDOT, while the first act constitutes a taking, the second does not, and therefore, the statute governing compensation applies only to the first action.
Slip op. at 5 (footnote omitted).
The court rejected the argument, concluding that "a taking indisputably occurred," because DOT was taking a part of Powell's property, and the rerouting of the frontage road was "integrally connected" to the affirmative taking. Thus, DOT could be on the hook for any damages resulting from that taking:
Here, there is no question that a taking has occurred—SCDOT acquired 0.183 acres of Powell's property as part of its overall road improvement project. Accordingly, rather than the jurisprudence governing whether a change in roadway access constitutes a taking, section 28-2-370 controls, and the lone question is the amount of compensation which may be awarded to Powell. That statute explicitly authorizes compensation for "any diminution in value to the remaining property," and we see no reason why a jury should not decide the extent of Powell's damages.
Slip op. a 6. Summary judgment reversed, sent back for the jury.
Two justices dissented, concluding that the majority "has fundamentally altered the law of eminent domain in South Carolina[.]" Slip op. at 10 (James, J., dissenting). The dissent took issue with the majority's conclusion that the rerouting (and resulting loss of access) was connected to the taking of Powell's 0.183 acres.
South Carolina DOT v. Powell, No. 2016-000594 (S.C. Aug. 8, 2018)
