In re South Burlington/Shelburne Highway
| Decision Date | 15 May 2008 |
| Docket Number | No. 07-091.,No. 07-123.,07-091.,07-123. |
| Citation | 2008 VT 68,956 A.2d 1121 |
| Parties | In re SOUTH BURLINGTON/SHELBURNE HIGHWAY. |
| Court | Vermont Supreme Court |
Present: REIBER, C.J., JOHNSON, SKOGLUND, BURGESS, JJ., and GREARSON, District Judge, Specially Assigned.
¶ 1. These consolidated appeals arise out of the expansion of Route 7 in Shelburne. Landowners, Ondovchik Family Limited Partnership and Gabriel Handy, as trustee of the DDH-GSH Trust, appealed compensation awards made by the Vermont Transportation Board for property adjacent to the highway that was taken to widen the road. Landowners sought additional compensation for alleged damage to their property caused by highway and sidewalk snow removal. The superior court declined to allow landowners to present evidence regarding such damages. We affirm.
¶ 2. Landowner Ondovchik Family Limited Partnership owns a parcel of land located on the west side of Route 7 in Shelburne. The parcel includes a building that once housed the Harbor Hideaway Restaurant, but has been idle since 1987. Landowner MMD, LLC, the successor-in-interest to Gabriel Handy, owns a parcel of land located on the west side of Route 7 in Shelburne on which an Econolodge motel is located. Pursuant to an order of necessity that we affirmed in In re South Burlington-Shelburne Highway Project, 174 Vt. 604, 817 A.2d 49 (2002) (mem.), the State acquired by eminent domain a portion of each landowner's property immediately adjacent to Route 7 to facilitate the expansion of the highway. To compensate for the takings, the Transportation Board awarded Ondovchik $43,400 for .13 acres in fee simple interest and Handy $213,200 for .18 acres in fee simple interest. The takings, which were recorded with the town on April 7, 2003, and August 23, 2002, respectively, included rights, title, and interests of each landowner to pre-existing rights-of-way over Route 7 and related temporary and permanent easements. Each landowner then separately appealed the Board's award to Chittenden Superior Court. See 19 V.S.A. § 513 ().
¶ 3. During the discovery phase in the Ondovchik appeal, Ondovchik indicated that it intended to introduce evidence regarding the effect of snow thrown by plows clearing reconstructed Route 7 and the adjoining municipal sidewalks. Ondovchik sought to use the evidence to show that the Board had not considered plausible and substantial threats, including those caused by the leaching of contaminated water, to the utility and integrity of the buildings remaining on the properties in determining the compensation awards. In response, the State filed a motion in limine to exclude all evidence relating to the potential effects of snow thrown on the property. The State asserted that the damages were too speculative and were not the direct and proximate result of the taking and therefore were not compensable under 19 V.S.A. § 501(2). On December 19, 2006, the superior court granted the State's motion, reasoning that there was no legal precedent for Ondovchik's "snow throw" damages claim. On February 20, 2007, the superior court denied Ondovchik's motion for interlocutory appeal, noting the need for a final judgment on the "snow throw" issue and thereafter entering a stipulation for dismissal and entry of final judgment between the parties on February 27, 2007.
¶ 4. Following the superior court's decision on the motion in limine in the Ondovchik appeal, and in response to a similar intention by landowner Handy to present evidence of damages caused by snow thrown onto his property, the State filed a motion in limine and motion to dismiss in the Handy appeal on January 9, 2007. The State's motion incorporated by reference its earlier reasoning from the Ondovchik case and also asserted that Handy lacked standing to allege compensable harm from the snow and contaminated water that affect all properties along highways. The superior court relied on its ruling in Ondovchik in granting the State's motion on February 12, 2007. To facilitate an appeal, the superior court then entered a final judgment with the agreement of the parties. Because these appeals present the same legal question and involve similar facts, we consolidated the cases for decision.
¶ 5. Landowners assert that the superior court erred as a matter of law in granting the State's motions in limine. Specifically, landowners contend that the plowing of snow onto their lands is the direct and proximate result of the takings and that they are entitled to present evidence of severance damages because the operation of the project on Route 7 will deprive the properties of their highest and best use and require removal or replacement of the remaining buildings on the land. Because the resolution of this appeal involves the construction and application of statutory language, our review of the trial court's decision is nondeferential and plenary. In re T.C., 2007 VT 115, ¶ 12, ___ Vt. ___, 940 A.2d 706. Landowners are correct that 19 V.S.A. § 501(2) requires that property owners be compensated for both the value of land taken through eminent domain and the direct and proximate decrease in value of the remaining land. Pinewood Manor, Inc. v. Agency of Transp., 164 Vt. 312, 319, 668 A.2d 653, 658 (1995) (); see also Crawford v. State Highway Bd., 130 Vt. 18, 24, 285 A.2d 760, 764 (1971) (). We agree with the State, however, that damages resulting from alleged future harm to landowners' property do not directly and proximately result from the taking of plaintiffs' property and are not compensable. We thus affirm the superior court's decision with respect to both claims.
¶ 6. In our recent decision in Ehrhart v. Agency of Transportation, we recognized that 19 V.S.A. § 501 governs the determination of just compensation for takings that result from highway construction. 2006 VT 68, ¶ 7, 180 Vt. 125, 904 A.2d 1200. The statute provides:
Damages resulting from the taking or use of property under the provisions of this chapter shall be the value for the most reasonable use of the property or right in the property, and of the business on the property, and the direct and proximate decrease in the value of the remaining property or right in the property and the business on the property.
19 V.S.A. § 501(2) (emphasis added). The statutory provision is broad in that it allows compensation for losses, including business losses, above and beyond the actual value of the land. See In re 89-2 Realty, 152 Vt. 426, 429, 566 A.2d 979, 980 (1989) (). We have noted, however, that "Vermont's statutory scheme significantly limits [a landowner's] recovery by compensating for only those losses directly and proximately caused by the physical loss of property." Ehrhart, 2006 VT 68, ¶ 7, 180 Vt. 125, 904 A.2d 1200.
¶ 7. In the present case, landowners do not challenge the compensation awards for the physical taking of their properties but instead assert that they should receive additional compensation for damages that will allegedly arise when snow and debris are plowed onto their property. They contend that the damages will be the "direct and proximate" result of the newly expanded Route 7. To bolster their position that such future damages are compensable, landowners rely on decisions from other jurisdictions that have permitted recovery of...
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Ondovchik Family Ltd. P'ship v. Agency Of Transp.
...harm to landowners' property do not directly and proximately result from the taking of plaintiffs' property and are not compensable.” 2008 VT 68, ¶ 5, 184 Vt. 553, 956 A.2d 1121. ¶ 4. In the current dispute, the highway expansion has occurred, and landowner now makes additional allegations,......