Alsop v. State, 3023

Decision Date24 November 1978
Docket NumberNo. 3023,3023
Citation586 P.2d 1236
PartiesDelbert ALSOP, Stan Borucki, Paul N. Johnson, Lloyd V. Morris, Daniel A. Thomas, Robert B. Windom, Edward J. Young, and all other persons similarly situated, Appellants, v. STATE of Alaska, Appellee.
CourtAlaska Supreme Court

Robert H. Reynolds and James Bendell, Robinson, McCaskey, Reynolds & Frankel, Anchorage, for appellants.

Richard P. Kerns, Asst. Atty. Gen., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.

CONNOR, Justice.

In August, 1974, appellants brought what purported to be a class action seeking a declaratory judgment. They sought reimbursement from the state for the decrease in access to their property which would result from what was then a proposed redesign of the New Seward Highway in Anchorage. The trial court ruled that none of the appellants would suffer any compensable damage by reason of the redesign. Appellants contend in this appeal that this ruling by the trial court was erroneous.

The appellants are owners of property located in the vicinity of 76th Avenue and the New Seward Highway in Anchorage. At least some of the appellants, or their predecessors in interest, had portions of their property condemned by the state during the late 1960's for construction of the New Seward Highway. 1 At the time of condemnation, appellants' property was not commercially developed.

The 1968 map (Appendix A), which the state's right-of-way agents used in acquiring land for the new highway and bordering frontage roads, provided for a controlled access facility with stop sign controlled intersections at points to be later designated. Even though the 1968 plan did not call for overpasses at the access points, but rather provided for cross-traffic intersections controlled only by stop signs, the testimony at trial clearly established that this was nevertheless a controlled access facility as that term is understood by highway designers. 2

The 1968 plan called for the acquisition of sufficient land so that the state could later upgrade the New Seward to a fully controlled access facility by building overpass intersections. The plan did not provide any firm indication of the exact points at which overpass intersections would be built if the upgrading did occur, but it did call for acquisition of sufficient property at 76th Avenue to construct an intersection of some sort. By the time the complaint in this case was filed, the New Seward had in fact been constructed with stop sign intersections at Dowling Road, at 76th Avenue and at Dimond Boulevard.

Appellants claim that during the proceedings condemning their property, they became concerned that access to their property would be limited by the new highway. Consequently, as part of his settlement negotiations with the highway department, appellant Alsop, as spokesperson for the group, attempted to convince the state to include an intersection at 76th Avenue. As a result of these negotiations, the state did add an intersection at 76th Avenue, which had not been part of the original plan. Alsop testified at trial that the agreement to build an intersection at 76th was crucial to settlement of his condemnation claim.

The original New Seward Highway was opened for travel in November, 1971. A full cross-traffic intersection had been built at 76th Avenue. A frontage road was a two-way street parallel to the highway. At least some of the appellants' property appears to have abutted on the frontage road after the original construction project was completed.

After the highway was opened, the Greater Anchorage Area Borough rezoned the properties to the east of the New Seward to business uses. In reliance on the 1971 design of the highway and on the rezoning, appellants began commercial development of their properties.

In 1974, the appellants learned that the state was considering upgrading the New Seward to a fully controlled access facility. The new plan (Appendix B) called for overpass intersections at Dowling and Dimond and for closure of the 76th Avenue intersection. Further, the plan provided for one-way frontage roads on each side of the New Seward between Dimond and Dowling to replace the existing two-way frontage road on the east side of the highway. 3 Uncontradicted evidence at trial indicated that the more circuitous access to the 76th Avenue property would appreciably reduce its commercial value.

Appellants attempted to influence the highway department to abandon or to revise its 1974 proposal. They even submitted an alternate proposal which they had had drawn up by independent designers. The state rejected appellants' plan, which called for an intersection at 76th, because the state felt that highway design principles dictated that diamond intersections at both 76th and Dimond, only a half mile away, would be unwise. The state did attempt to build two-way frontage roads, but found the one-way roads to be necessary because the right-of-way acquired by the state was not wide enough to accommodate two-way roads as well as diamond intersections. After the state notified appellants that it intended to proceed with its plan to close the 76th Avenue intersection, appellants commenced this action.

As noted above, the trial court ruled that the appellants had suffered no compensable damage by reason of the closure of the 76th Avenue intersection or by reason of the conversion of the frontage road on the east side of the highway from two-way traffic to one-way traffic. 4 Further, the trial court ruled that the modifications to the controlled access facility did not constitute a taking or damage to private property under the law of eminent domain. Judgment was entered accordingly, and this appeal followed.

After hearing oral argument on the appeal, we determined that the record was insufficient for us to rule upon the questions of law which were presented. Therefore, we remanded the case to the superior court to receive further evidence and to make findings which would assist us. 5 We also ordered additional briefs by the parties.

In light of the superior court's findings, it now appears that appellant Alsop conditioned the settlement of his condemnation case on the continuation of unrestricted access to the New Seward Highway at the 76th Avenue intersection. The findings do not reveal that any other owner relied upon the continuation of unrestricted access at 76th Avenue, although it is conceivable that some other owners could have such a claim, as will be developed below. 6

Article I, Section 18 of the Alaska Constitution provides that "(p)rivate property shall not be taken or damaged for public use without just compensation." In the past we have liberally construed this provision in favor of the private property owner. 7

Appellants contend that while some of them received compensation for the taking of their property for construction of the original New Seward Highway, a second taking occurred, separate from the first, when the state decided to redesign the highway in 1974. They maintain that the second taking, which consisted of a loss of access due to closure of the 76th Avenue intersection and due to the limitation of travel on the frontage road to one-way traffic, caused them to suffer substantial economic damage for which they are entitled to compensation. We agree that this can constitute a second taking if the settlement or the receipt of an award had been in reliance upon unrestricted access via 76th Avenue.

In Grant v. State, 560 P.2d 36, 39 (Alaska 1977), we held that while the state is not bound to abide by its construction plans, parties to condemnation proceedings are entitled to rely on the state's announced plans. Further, we held that when such plans are not implemented, any further economic interference with the condemnee's property which results constitutes a second taking for which the state must pay just compensation.

The state highway construction project in Grant deprived the property owner of water access to an adjacent channel. The state's plan originally had called for construction of a culvert under the new highway, thus preserving access to the property for at least small craft. When the culvert collapsed during construction of the highway, the state decided not to replace it.

Like the property owner in Grant, those of the appellants who had property taken for the original construction project in this case were entitled to assume that the 1968 plan for the New Seward Highway would be implemented. When the plan was implemented and then altered, appellants became entitled to just compensation for any further, resultant economic interference with their property. 8

We hold that in order to recover damages, each of the appellants must demonstrate that he or a predecessor in interest had a portion of his property taken for the original construction project, that he or his predecessor relied on construction of an intersection at 76th Avenue or the two-way frontage road, or both, in settling or receiving an award for their condemnation claims, 9 and that his remaining property has decreased in value as a result of the highway modifications.

Under our holding it is clear that appellant Alsop has a right to litigate his entitlement to damages, if any, suffered by the alteration of the 76th Avenue intersection. There may be others who fall within the category of persons subjected to a second taking, as defined in our holding above. They too must be permitted to assert their claims. 10

Appellants assert a broad right to compensation for "surrounding property owners" upon whom is imposed a more circuitous means of access. They would have us hold that owners of property not abutting upon the New Seward Highway project, who were not subjected to a taking of property for the project, should be compensated for an economic injury to their property because of the alteration of the 76th...

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3 cases
  • Hall v. State
    • United States
    • Supreme Court of South Dakota
    • October 26, 2011
    ...... See Alsop v. State, 586 P.2d 1236 (Alaska 1978); Johnson Bros. Grocery v. State, Dep't of Highways, 304 Minn. 75, 229 N.W.2d 504 (1975); Filler v. City of ......
  • Hall v. South Dakota
    • United States
    • Supreme Court of South Dakota
    • October 27, 2011
    ......ERICKSON and FUEL FOOD MART, INC., A SOUTH DAKOTA CORPORATION, Plaintiffs and Appellants, v. STATE OF SOUTH DAKOTA, by and through the SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION and the SOUTH DAKOTA ... See Alsop v. State , 586 P.2d 1236 (Alaska 1978); Johnson Bros. Grocery v. State, Dep't of Highways, 304 ......
  • De Alfy Properties v. Pima County
    • United States
    • Court of Appeals of Arizona
    • July 16, 1998
    ......Kay, a single man, Plaintiffs/Appellants,. v. PIMA COUNTY, a subdivision of the State of Arizona, Defendant/Appellee. No. -0050. Court of Appeals of Arizona, Division 2, Department A. ... condemnation action is also supported by the cases appellants cite from other jurisdictions, Alsop v. State, 586 P.2d 1236 (Alaska 1978); Mainer v. Canal Authority, 467 So.2d 989 (Fla.1985); State ......

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