Brown v. City of Twin Falls, 19955

• Citation: 855 P.2d 876,124 Idaho 39
• Decision Date: 02 July 1993
• Docket Number: No. 19955,19955
• Parties: W. Roy BROWN and Evelyn J. Brown, husband and wife, Plaintiffs-Appellants, v. CITY OF TWIN FALLS, a municipal corporation and State of Idaho, Defendants-Respondents. Twin Falls, March 1993 Term
• Court: Idaho Supreme Court

Page 876

855 P.2d 876

124 Idaho 39

W. Roy BROWN and Evelyn J. Brown, husband and wife, Plaintiffs-Appellants, v. CITY OF TWIN FALLS, a municipal corporation and State of Idaho, Defendants-Respondents.

No. 19955.

Supreme Court of Idaho,

Twin Falls, March 1993 Term.

July 2, 1993.

Webb, Pedersen & Webb, Twin Falls, for appellants. Lloyd J. Webb argued.

Benoit, Alexander, Sinclair, Doerr, Harwood & High, Twin Falls, for respondent City of Twin Falls. Jacqueline S. Wakefield argued.

Larry EchoHawk, Atty. Gen. and George M. Parham, Deputy Atty. Gen., argued, Boise, for respondent State of Idaho.

McDEVITT, Chief Justice.

BACKGROUND

Roy and Evelyn Brown ("Browns") own property located at the intersection of Addison Avenue, Blue Lakes Boulevard, and Shoshone Street North, in Twin Falls, Idaho, also known as the "north five points" intersection. The Browns acquired the property in 1973, and developed it as a shopping center for rental to retail businesses including retail sales operations and fast food establishments.

Sometime after the Browns acquired their property, the City, together with the State, entered into a highway improvement project for the north five points intersection. The project included the placement of raised median barriers and striping along Blue Lakes Boulevard and Addison Avenue. The barriers prevented traffic traveling south on Blue Lakes Boulevard and west on Addison Avenue from accessing the Browns' property by making a left hand turn across oncoming traffic. The date the project was completed is disputed between the parties.

On September 13, 1989, the Browns filed a complaint against the City and the State for inverse condemnation. The Browns complaint alleged that the placement of the median barriers restricted the amount of business traffic flow to their property, thus amounting to a taking of their property without just compensation. In an answer filed on October 31, 1989, the City claimed that the Browns failed to comply with the notice requirements of the Idaho Tort Claims Act, that the City is immune from liability, that the Browns' claim is barred by the statute of limitations, and that the actions taken by the City were an exercise of police power, not a taking under the City's power of eminent domain. A similar answer was filed by the State on November 13, 1989.

Both the City and the State moved for summary judgment. In support of its motion, the City offered the affidavit of Gary Young, the Twin Falls City Engineer, who stated that the improvement project, including the placement of the median barriers, was completed in 1978. Young also opined that despite the existence of the median barriers, motorists traveling from the north and east can reach the Browns' property without any change in their driving pattern, and motorists traveling south and west can reach the Browns' property with "relatively minor inconvenience." Attached to Young's affidavit were several maps demonstrating the routes by which motorists could reach the Browns' property. The City also offered the affidavit of Sharon Bryan, the Twin Falls Deputy City Clerk, who stated that the Browns had never filed a notice of a tort claim against the City. The State offered a similar affidavit from Miren Artiach, the Deputy Secretary of State, who stated that the Browns had never filed a notice of a tort claim against the State.

In opposition to the motion for summary judgment, the Browns filed the affidavit of Roy Brown. Brown stated that there was a gradual extension of the barriers leading to a gradual restriction of business traffic flow which did not result in a substantial interference with access to his property until 1989, when he began to lose tenants and was unable to secure a lease on account of the traffic restrictions. Brown also asserted that the traffic patterns introduced by the Young affidavit were unreasonable and would not be used by prospective customers. The Browns also introduced the affidavit of Jerry Gasser, an operator at a gas station on the north five points intersection, who stated that he believed the median barriers were installed in 1985.

In response to the Gasser affidavit, the City filed the affidavit of Rod Mathis, the Twin Falls Assistant City Engineer, and the affidavit of Lee Wilson, an employee of the Idaho Transportation Department. Both the Mathis and Wilson affidavits provided photocopies of photos of the north five points intersection. The Wilson affidavit included photographs taken of the intersection in 1977 and 1983, showing the placement of the barriers at that time. The Mathis affidavit included photos of the intersection in 1991.

After a hearing on the matter, the trial court issued its "Opinion RE: Motion for Summary Judgment" on March 20, 1992. The trial court found that there was no indication that an action for inverse condemnation falls under the Idaho Tort Claims Act because such an action is not based in tort. Therefore, it was not fatal that the Browns did not file a proper notice pursuant to I.C. § 6-906. However, the trial court did find that the actions taken by the City and the State were a reasonable exercise of police power, relying on State ex rel. Moore v. Bastian, 97 Idaho 444, 546 P.2d 399 (1976), and Merritt v. State, 113 Idaho 142, 742 P.2d 397 (1986). Accordingly, the trial court determined that there had been no taking of the Browns' property as a matter of law and granted summary judgment in favor of the City and the State on that basis. The trial court did not address the statute of limitations defense, finding the taking/police power issue to be dispositive of the case.

The Browns have appealed from the trial court's order granting summary judgment in favor of the City and the State. The sole issue raised by the Browns is whether the trial court erred in determining that the placement of the road median barriers was a reasonable exercise of police power as a matter of law. The City and the State have also presented issues on appeal, contending that if we disagree with the trial court on the exercise of police power issue, they are still entitled to summary judgment based on the fact that the Browns failed to file a proper notice under the Tort Claims Act, or because the Browns' claim is barred under the statute of limitations. However, because we agree with the trial court that the City's and the State's actions in this case do not amount to a taking as a matter of law, we need not address the notice and statute of limitations issues.

ANALYSIS

In an appeal from a motion for summary judgment, our standard of review is the same as the standard used by the trial court, which is to determine from all the pleadings, depositions, admissions and affidavits, whether there is a genuine issue as to any material fact and whether the moving party is entitled to a judgment as a matter of law. I.R.C.P. 56(c); Haessly v. Safeco Title Ins. Co., 121 Idaho 463, 825 P.2d 1119 (1992); Ray v. Nampa School Dist. No. 131, 120 Idaho 117, 814 P.2d 17 (1991). In making such a determination, this Court liberally construes the facts and existing record in favor of the nonmoving party. Ray, 120 Idaho at 119, 814 P.2d at 19. The moving party is entitled to summary judgment when the nonmoving party fails to make a sufficient showing establishing the existence of an element essential to that party's case on which that party will bear the burden of proof at trial. Badell v. Beeks, 115 Idaho 101, 765 P.2d 126 (1988).

The Browns base their inverse condemnation claim on the rule that access to a public way is a property right appurtenant to land which, if unreasonably limited by a municipality or the state, can result in a taking of property under Art. 1, § 14 of the Idaho Constitution. Johnston v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964); Farris v. City of Twin Falls, 81 Idaho 583, 347 P.2d 996 (1959); Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958). On appeal, the Browns argue that the trial court improperly granted the City's and the State's motions for summary judgment because the question of whether the City and the State have unreasonably limited the Browns' access in this case is necessarily a question of fact to either be determined by the trial court or a jury as the trier of fact. ¹ Although we agree with the Browns' statement that a right of access is a property right which can be the basis for an inverse condemnation claim, we disagree that the facts of this case involve such a property right.

In Powell v. McKelvey, 56 Idaho 291, 53 P.2d 626 (1935), the plaintiffs were the owners of property abutting Eleventh Avenue South in Nampa, Idaho. Originally, Eleventh Avenue South allowed traffic to pass by plaintiffs' property and vehicles were able to use the full width of the street. However, the Department of Public Works built a tunnel which allowed traffic to pass underneath railroad tracks which crossed Eleventh Avenue South. The entrance to the tunnel ran down the center of Eleventh Avenue South, leaving approximately eighteen and one-half feet of roadway on each side. Although vehicles could still reach the plaintiffs' property by means of Eleventh Avenue South from either side of the tunnel, there was now a diversion of traffic below the railroad track by means of the tunnel and traffic was prevented from using the full width of Eleventh Avenue South.

Plaintiffs brought an action against the Department of Public Works claiming in part that the building of the tunnel constituted a taking. The Department of Public Works filed its answer, maintaining that it was within its authority to restrict the use of Eleventh Avenue South without compensating the plaintiffs for any consequential change in the traffic flow. The trial court sustained pro forma the plaintiffs' demurrer to the department's answer. This Court reversed and remanded with instructions to overrule the plaintiffs' demurrer, stating:

If instead of the construction of the subway, the ...