FORESTS, PARKS AND RECREATION v. TOWN OF LUDLOW ZONING BOARD

• Decision Date: 20 October 2004
• Docket Number: No. 02-336.,02-336.
• Citation: 869 A.2d 603
• Parties: DEPARTMENT OF FORESTS, PARKS AND RECREATION v. TOWN OF LUDLOW ZONING BOARD and John, Christine, Wayne and Beverly Lysobey.
• Court: Vermont Supreme Court

869 A.2d 603

DEPARTMENT OF FORESTS, PARKS AND RECREATION v. TOWN OF LUDLOW ZONING BOARD and John, Christine, Wayne and Beverly Lysobey.

No. 02-336.

Supreme Court of Vermont.

October 20, 2004.

Motion for Reargument Denied January 7, 2005.

ENTRY ORDER

¶ 1. For the third time, we consider property owner John Lysobey's efforts to obtain year-round access to his property, which abuts a public road located on land leased by the Department of Forests, Parks and Recreation to Okemo Mountain, Inc. for use as a ski trail during the ski season. Following a jury verdict on remand from our second opinion in this case, Lysobey obtained a judgment in excess of $150,000, including interest and court costs, to compensate him for being deprived of year-round access to his property. We vacate the jury's verdict and the superior court's judgment based on our conclusion that Lysobey's lack of standing and the expiration of the applicable statutory limitations period preclude Lysobey from receiving compensation for the taking of access rights to the subject property in the 1960s, long before Lysobey owned the property or brought suit seeking redress for the loss of those rights.

¶ 2. Our two previous opinions concerning the subject property include a detailed factual and procedural history of this dispute and the ensuing litigation. See Okemo Mountain, Inc. v. Town of Ludlow, 164 Vt. 447, 671 A.2d 1263 (1995) [hereinafter Okemo I]; Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 762 A.2d 1219 (2000) [hereinafter Okemo II]. The following is a truncated version of those facts. In 1986, Lysobey purchased a thirty-four-acre parcel of land that abutted the upper part of Okemo Mountain Road above the base lodge of Okemo Mountain ski area, which had been using that portion of the road as a ski trail during the ski season since at least 1963. Two years later, Lysobey applied for and obtained a permit to build a residential home on his property. Following an appeal by the Department and Okemo Mountain, the superior court denied the permit based on its conclusion that the property had neither public road frontage nor access by easement to a public road. Lysobey appealed the court's ruling and went ahead with construction of his house. In Okemo I, we reversed and remanded the matter for the superior court to determine whether Lysobey held an easement appurtenant to his land and whether Okemo Mountain Road is a public road under applicable law. 164 Vt. at 452-55,671 A.2d at 1268-70. On remand, the court concluded that Lysobey had no easement, and that, although Okemo Mountain Road is a public road, Lysobey had no right to use the road to access his property during the ski season. Lysobey appealed again.

¶ 3. In Okemo II, we upheld the superior court's determinations that Lysobey had no easement and that Okemo Mountain Road is a public road, but we held that the Department had violated Lysobey's common-law right of access by closing the road in the winter. Okemo II, 171 Vt. at 206-10, 762 A.2d at 1223-26. We concluded that although Lysobey was not entitled to injunctive relief under the circumstances, he should be given an opportunity to seek damages through an inverse condemnation action in superior court. Id. at 211-13, 762 A.2d at 1227-28. Accordingly, we reversed the superior court's judgment and remanded the matter for further proceedings. On remand, Lysobey instituted his inverse condemnation claim, and the State moved for summary judgment, arguing that Lysobey was not entitled to compensation because, to the extent that there was a taking, it occurred no later than 1963, when Okemo Mountain Road was closed to winter vehicular use, and therefore the applicable six-year statute of limitations barred recovery. The State also argued that because Lysobey did not buy his property until 1986, long after the taking occurred, he lacked standing to claim compensation for a previous owner's loss of property rights. The superior court denied the State's motion and ultimately concluded that the takings date was April 25, 1989, when the litigation began. Following an evidentiary hearing, a jury determined that Lysobey was entitled to $54,000 in damages for loss of year-round access to his property. The superior court added $85,000 in prejudgment interest, dating back to 1989, as well as attorney's fees and various court-related expenses, making the total judgment just over $150,000.

¶ 4. Both parties appeal. The State argues that (1) the effective date of the taking should be sometime in 1963, long before Lysobey owned the property, thereby precluding him from any recovery because of his lack of standing and the expiration of the applicable limitations period; (2) this Court should overrule Okemo II and conclude that no taking occurred because three-season access to Lysobey's property is reasonable; (3) the superior court erroneously awarded attorney's fees, litigation expenses, and costs to Lysobey; and (4) the superior court's award of prejudgment interest should be reduced, assuming its judgment is upheld. Lysobey cross-appeals, arguing that because the Department had no authority to restrict access to his property by giving a private ski area control over a public road, he is entitled to injunctive relief. He asks this Court to rule that no taking has occurred and to require the Department to allow year-round access to his property through the upper portion of Okemo Mountain Road subject to his agreement to exchange that right for alternative access through other land and lifetime ski passes for family members. We agree with the State's first argument.¹

¶ 5. The State contends that the superior court erred by establishing the "takings date" as April 25, 1989 rather than sometime in 1963, after which Okemo Mountain Road was closed to vehicular traffic during the ski season. According to the State, because the taking occurred many years before Lysobey purchased his property and more than six years before he sought redress for being denied winter vehicular access to the property, he is foreclosed from obtaining damages for the alleged deprivation by both his lack of standing and the expiration of the applicable limitations period. We agree. At the bifurcated hearing to consider the appropriate takings date, the State presented unchallenged evidence that (1) the 1963 lease between the Department and Okemo Mountain gave the ski area the sole and exclusive right to bar vehicular traffic on the upper portion of Okemo Mountain Road so that the area could be used for skiing; and (2) ever since 1963 Okemo Mountain had closed the road during the ski season pursuant to its right under that lease and later renewal leases. The State also submitted letters written by Department officials in the late 1960s concerning the installation of a gate to close Okemo Mountain Road and the placement of signs indicating that the road would be open only from June 15 to October 15 each year. In short, the evidence unequivocally established that pursuant to its lease with the State, Okemo Mountain had the right to close the upper portion of Okemo Mountain Road to all vehicular traffic during the ski season and had done so since at least 1963.

¶ 6. Establishing the takings date "is a question of law, not fact." United States v. 14.54 Acres of Land, 599 F.Supp. 123, 125 (S.D.N.Y.1984) (citing United States v. Dow, 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958)). The takings date in an inverse condemnation action involving loss of access to property is the date on which the government physically interferes with the access. See De Alfy Properties v. Pima County, 195 Ariz. 37, 985 P.2d 522, 524 (Ariz.Ct.App.1998) (inverse condemnation claim for taking of property owner's right of access accrued when government cut off or substantially impaired access); see also Kirby Forest Indus. v. United States, 467 U.S. 1, 5, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984) (landowner "has a right to bring an `inverse condemnation' suit to recover the value of the land on the date of the intrusion by the Government"). This is consistent with the general rule that when the government takes possession of property before it acquires title to that property, the former event constitutes the act of taking the property. See Dow, 357 U.S. at 21-22,78 S.Ct. 1039. Thus, it is the interference with the property right that creates a right to commence inverse condemnation proceedings, "not the realization of the extent of damages." Beer v. Minn. Power & Light Co., 400 N.W.2d 732, 735 (Minn.1987). Further, long-established law holds that inverse condemnation actions may be barred by the lapse of time. Id. at 736. Indeed, states often enact a much shorter limitations period for eminent domain and inverse condemnation proceedings than for ordinary civil actions, but when there is no special statute of limitations for such proceedings, the general civil statute of limitations normally applies. Id. In Vermont, the general statute of limitations for civil actions is six years. 12 V.S.A. § 511 (civil actions shall be commenced within six years after cause accrues).

¶ 7. Apart from the limitations period, it is well-settled law that the right to recover damages in condemnation proceedings "belongs solely to the person owning or having an interest in the land at the time of the `taking' and it does not run with the land." 11A E. McQuillin, The Law of Municipal Corporations § 32.132, at 269 (3d ed.2000); see 2 J. Sackman, Nichols on Eminent Domain § 5.01[5][d], at 5-37 (rev.3d ed.2003) ("if the parcel of land from which the taking is made changes hands after the taking has occurred but before compensation has been paid, the right to receive the compensation does not run with the land"); see also Canney v. City of St. Petersburg, 466 So.2d 1193, 1195 (Fla.Dist.Ct.App.1985) ("Damages to compensate for the taking of land or for injury to land not taken belong to the one who owns the land at the time of the...