Eberth v. Carlson, 79,994

• Decision Date: 29 January 1999
• Docket Number: No. 79,994,79,994
• Citation: 266 Kan. 726,971 P.2d 1182
• Parties: Charles B. EBERTH, et al., Appellants, v. E. Dean CARLSON, Secretary of the Kansas Department of Transportation, and City of Lansing, Kansas, Appellees.
• Court: Kansas Supreme Court

Page 1182

971 P.2d 1182

266 Kan. 726

Charles B. EBERTH, et al., Appellants, v. E. Dean CARLSON, Secretary of the Kansas Department of Transportation and City of Lansing, Kansas, Appellees.

No. 79,994.

Supreme Court of Kansas.

Jan. 29, 1999.

Syllabus by the Court

1. The standard of review in an inverse condemnation case (an action initiated by a property owner to obtain compensation for the taking of or placing restrictions on private property by a governmental entity) is whether there has been a compensable taking of property, which is a question of law over which our review is unlimited.

2. It is uniformly acknowledged that the placement of a median, median strip, or medial area is a proper exercise of the police power and does not constitute a compensable taking under the power of eminent domain.

3. The State may validly exercise its police power for traffic control and public safety for which there is no compensation even if it affects the landowner's method of ingress and egress.

4. "Right of access" is defined as a landowner's right to reasonable, but not unlimited, access from the landowner's land to abutting public highways.

5. "Regulation of traffic flow" is a limitation or restriction on a landowners' right of access to and from abutting public roads or highways.

6. A governmental unit has the right to regulate and restrict the use of public roads through its police power to the extent necessary to provide for and promote the safety, peace, health, morals and general welfare of the public.

7. Under the facts of this case, altering the location of a crossover and establishing a median strip on a public highway for reasons of traffic control and public safety is not a compensable taking.

Robert E. James, of Payne & Jones, Chartered, of Overland Park, argued the cause, and Keith Martin, of the same firm, was with him on the briefs for appellants.

Timothy P. Orrick, of Parkinson, Foth, & Orrick, L.L.P., of Lenexa, argued the cause, Mike Rees, chief counsel of the Kansas Department of Transportation, of Topeka, and Terry Lober, of Davis, Beall, McGuire & Thompson, of Leavenworth, were with him on the brief for appellees.

LARSON, J.

This inverse condemnation case requires us to consider the application of Garrett v. City of Topeka, 259 Kan. 896, 916 P.2d 21 (1996), to the elimination of an existing highway crossover. This action is clearly not a compensable taking under our recent decisions in Pringle v. City of Wichita, 22 Kan.App.2d 297, 917 P.2d 1351 (1996), and Hales v. City of Kansas City, 248 Kan. 181, 804 P.2d 347 (1991).

The question of whether a compensable taking occurred requires us to set forth the largely uncontroverted facts, show how the correct result is preordained by existing Kansas decisions, and then consider if additional evidence or findings or a different result is required by the Garrett decision.

Facts

Members of the Eberth family (Ed and his wife, Theresa; Charles and his wife Susan; and Robert) own approximately 82 acres in Leavenworth County located adjacent to and east of Highway K-7 and south of Gilman Road. The City of Lansing (City) owns a tract of approximately 15 acres at the immediate southeast corner of K-7 and Gilman Road. The Eberth tracts are not within the Lansing city limits, but a real estate development known as the Rock Creek Addition located immediately west of the Eberth tracts and K-7 is within the city limits of Lansing.

The Eberths' property is divided approximately in thirds, with Ed and Theresa Eberth owning the north tract, Robert Eberth the central tract, and Charles and Susan Eberth the most southerly tract. The Ed Eberth tract has access to Gilman Road but not to K-7 because of the City tract. The Robert Eberth tract has K-7 frontage, but no access because of Rock Creek, a deep, wide ditch that runs between this tract and K-7. The Charles Eberth tract has K-7 frontage and a road allowing direct northbound access to K-7. A crossover existed that allowed direct access to K-7 southbound lanes.

Although no formal easement exists, members of the Eberth family have access to K-7 by a series of gravel roads within their property. The Eberth crossover has been in existence since K-7 was expanded into a four-lane highway divided by a grass median.

The City proposed to the Kansas Department of Transportation (KDOT) that a crossover was necessary to service the Rock Creek subdivision. The justification for the new crossover was that traffic exiting the subdivision and intending to travel north on K-7 had to travel south approximately 400 feet to the Eberth crossover. Given the speed of K-7 traffic and the safety danger this maneuver created, particularly for school buses, the City contended the Rock Creek crossover was necessary. The intended Rock Creek crossover would provide access to both north and southbound K-7 lanes.

KDOT undertook a traffic study of the proposed project. The study concluded that in order to safely install a crossover at the exit of the Rock Creek subdivision, a deceleration lane was necessary for northbound traffic, which would run beyond the existing Eberth crossover and require its elimination.

In response to this plan, the Eberths sought an injunction to stop the construction, contending the removal of their crossover eliminated direct access to and from the K-7 southbound lanes. KDOT moved to dismiss the plaintiffs' requested injunction, and the trial court granted the motion. The trial court did hold that the Eberths had presented an inverse condemnation claim and that an evidentiary hearing was necessary.

At the evidentiary hearing, the following evidence was presented:

1. Prior to the construction project, a median break existed on K-7 directly west of the driveway from the Charles Eberth property. This allowed the Eberths and their guests to enter and exit both the K-7 north and southbound lanes.

2. At K-7 and Gilman Road, an open intersection exists which allows free turning movements for all directions of travel on both K-7 and Gilman Road. Gilman Road is less than 1/2 mile from the Eberth crossover, and the Eberth properties may access Gilman Road via gravel roads running across and through the three tracts.

3. The Rock Creek crossover is 385 feet north of the Eberth crossover, directly west of K-7 and the Robert Eberth tract. Moving the existing Eberth driveway north to connect with the Rock Creek crossover would cost approximately $221,000 to construct a bridge because of the deep gully separating the Robert Eberth tract from K-7.

4. KDOT's expert testified the highest and best use of the Eberth property is for residential development. Plaintiff's expert testified the highest and best use changed from residential to agricultural with the elimination of the Eberth crossover.

5. Plaintiff's expert testified the diminution in value of the entire 82 acres of Eberth property is $70,000 due to the elimination of the Eberth crossover and the ensuing lack of direct access to K-7.

6. KDOT's expert testified that there was no diminution in value to the Eberth property caused by the elimination of the Eberth crossover.

7. Evidence was presented as to the enhancement of safety and the servicing of a larger amount of vehicular traffic from the Rock Creek subdivision by the change in the crossover.

8. After the construction of the Rock Creek crossover, vehicles entering K-7 from the Eberth access road would be able to traverse in a northerly direction without change but southbound traffic would be required to drive 385 feet north before making a U-turn and entering the southbound lane of K-7. Prior to the change they were able to travel southbound on K-7 by making a left turn at the Eberth crossover.

Throughout the hearing, the trial court heard arguments as to whether the Garrett balancing test was required when a city's actions regulate the traffic flow. KDOT and the City vigorously argued that the hearing was unnecessary and that prior case law controlled because no access had been taken as a matter of law. The Eberths argued the change in the highway denied them their direct access rights to the K-7 southbound lanes and, thus, application of the Garrett balancing test was required.

The trial court ruled the case involved a regulation of traffic flow and not a denial of access. The trial court recognized that prior to Garrett, KDOT's actions of removing this crossover would have been viewed as a noncompensable regulation of traffic, but noted that Garrett appeared to have changed the traditional rules and is applicable to this set of facts. The trial court surmised:

"Perhaps what the Garrett decision does is cast these not as a question of access versus traffic flow regulation cases, it's looking at this whole area in terms of--in a more general picture, something that's not just tied to regulation of highways and roads but to the regulatory power of the governmental bodies that affects the use of private property. And that's the analysis that seems to appear in this case that hasn't appeared in prior cases that have been applied to these kinds of questions.

"And that applying that economic regulatory analysis ... to this type of case has created some uncertainty in my mind about whether in every instance where you have some regulation of traffic, whether the Supreme Court is saying you have to have some kind of an inquiry [and] balancing [test] approach, there's certain language in the opinion that leads me to that conclusion, but I'm not sure that that's what they intended."

The trial court cited as particularly troubling that portion of the Garrett opinion that stated:

"Where the government's exercise of its police power has an economic impact on private property, a balancing test is applied to determine if the regulation of private land is too unfair or goes too far." Garrett, 259 Kan. at 910, 916 P.2d 21.

In interpreting this language of Garrett, the trial court stated:

"Now, that...