Ivers v. Utah Dept. of Transp.

• Decision Date: 06 February 2007
• Docket Number: No. 20060061.,20060061.
• Citation: 2007 UT 19,154 P.3d 802
• Parties: James IVERS; Katherine G. Havas; and P and F Food Services, Plaintiffs and Petitioners, v. UTAH DEPARTMENT OF TRANSPORTATION, Defendant and Respondent.
• Court: Utah Supreme Court

154 P.3d 802

2007 UT 19

James IVERS; Katherine G. Havas; and P and F Food Services, Plaintiffs and Petitioners, v. UTAH DEPARTMENT OF TRANSPORTATION, Defendant and Respondent.

No. 20060061.

Supreme Court of Utah.

February 6, 2007.

Donald J. Winder, John W. Holt, Salt Lake City, for petitioners.

Mark L. Shurtleff, Att'y Gen., Brent A. Burnett, Randy S. Hunter, Asst. Att'ys Gen., Salt Lake City, for respondent.

On Certiorari to the Utah Court of Appeals

WILKINS, Associate Chief Justice:

¶ 1 The Utah Department of Transportation ("UDOT") condemned a portion of private property for the construction of a frontage road adjacent to U.S. Highway 89 in Farmington, Utah. The construction of the frontage road was part of a larger project to widen and elevate Highway 89. Petitioners James Ivers, Katherine G. Havas, and P & F Food Services (collectively, "Arby's") sought severance damages for loss of view and visibility. The trial court granted UDOT's motion in limine, precluding Arby's from presenting evidence of severance damages to a jury. Arby's appealed, and the court of appeals affirmed. We granted certiorari to determine whether article I, section 22 of the Utah Constitution permits claims for compensation and whether Utah Code section 78-34-10 permits presentation of evidence of damages arising from an alleged easement for view or visibility, where the damages to the alleged easement are caused by construction beyond the boundaries of the landowner's property. We conclude that since the raised highway was not built on the condemned land, unless the use of the condemned land was essential to the construction of the raised highway, Arby's is not entitled to damages for loss of view or visibility. We therefore remand for the necessary factual determination.

BACKGROUND

¶ 2 Arby's land is located on the northwest corner of what was the intersection of Shephard Lane and Highway 89 in Farmington, Utah. In order to decrease the number of accidents, UDOT planned to eliminate the intersection by elevating Highway 89 over Shephard Lane. In furtherance of this goal, the State condemned a 0.048-acre portion of Arby's 0.416-acre lot in order to build a one-way frontage road parallel to, and connecting with, the newly widened and elevated highway. UDOT agreed to pay Arby's $48,250 for the condemned property.¹

¶ 3 The condemned portion of Arby's property is located on the south and east edges of the property, which abut Shephard Lane and Highway 89 respectively. No portion of the raised highway, its footings, or its foundation was constructed on the condemned land; rather, the condemned land was used for the creation of the frontage road and for improvements to Shephard Lane.

¶ 4 Although Arby's property is adjacent to Highway 89, access to the property has historically been available only by means of Shephard Lane, which had intersected directly with the highway. After the project, Shepard Lane no longer connected directly to Highway 89; rather, the highway is accessed by frontage roads one-half mile north and one-half mile south of Shephard Lane. The elevation of the highway has obstructed both the view to the east from Arby's land and the visibility of Arby's property from the highway.

¶ 5 Arby's sought severance damages, claiming that the condemnation, and the pursuant loss of view and visibility, diminished the market value of their remaining land.² UDOT filed a motion in limine. The trial court granted the motion, concluding that Arby's was precluded from introducing evidence of damages because the loss of view and visibility arose from construction on property not actually taken from them.

¶ 6 Arby's appealed the trial court's decision to the court of appeals. The court of appeals affirmed, holding that because the loss of view and visibility was not caused by the severance or by the construction of an improvement on the land severed, Arby's was not entitled to severance damages. We then granted Arby's petition for a writ of certiorari.

ANALYSIS

¶ 7 On certiorari, we review the decision of the court of appeals and not that of the trial court. State v. Brake, 2004 UT 95, ¶ 11, 103 P.3d 699. Because the issue before this court is a question of law related to constitutional and statutory interpretation, we review the court of appeals' ruling for correctness. Longley v. Leucadia Fin. Corp., 2000 UT 69, ¶ 13, 9 P.3d 762. We have jurisdiction pursuant to Utah Code section 78-2-2(3)(a).

¶ 8 Article I, section 22 of the Utah Constitution provides, "Private property shall not be taken or damaged for public use without just compensation." Utah Code section 78-34-10 gives a landowner the right to present certain evidence of damages, including severance damages, to a jury for a determination of compensation. Section 78-34-10 provides in part the following:

The court, jury or referee must hear such legal evidence as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess:

. . . .

(2) if the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned and the construction of the improvement in the manner proposed by the plaintiff. . . .

Utah Code Ann. § 78-34-10 (2002).

¶ 9 We have held that loss of view is, in certain situations, an appropriate factor for a jury to consider in awarding severance damages. In Utah State Road Commission v. Miya, we held that the "rights of access, light, and air are easements appurtenant to the land of an abutting owner on a street," and that those rights "may not be taken away or impaired without just compensation." 526 P.2d 926, 928-29 (Utah 1974). We further concluded that an owner of land abutting a street possesses an "easement of view" that may not be taken without just compensation. Id. at 929. On the other hand, we have never decided whether a loss of visibility of property from an abutting road qualifies for severance damages.

¶ 10 The question we are now faced with is when, if ever, an impairment of view or visibility is compensable where the impairment is caused by a structure that is built beyond the borders of the severed land. In answering this question, we will address separately Arby's claims for loss of view from their property and the loss of visibility of their property.

I. LOSS OF VISIBILITY

¶ 11 We have not previously addressed whether a landowner has a protectable property interest in the visibility of his land. For a point of reference, we look to other jurisdictions' decisions on the matter. Where government action impairs visibility but there is no physical taking of land, "the virtually unanimous rule provides that there is no freestanding right to be seen, and that the government need not pay compensation for lessened visibility." Regency Outdoor Adver., Inc. v. City of Los Angeles, 39 Cal.4th 507, 517-18, 46 Cal.Rptr.3d 742, 139 P.3d 119 (2006). However, when the impairment of visibility is coupled with a partial taking of land, as is the case here, there seems to be little consensus from state to state. While some states recognize an easement of visibility where an obstruction is built on the condemned land,³ other states have concluded that visibility, by itself, is simply not a compensable property right.⁴ On this issue, we can find no generally accepted rule. We next turn to the statutory and case law of our state.

¶ 12 Neither the legislature nor this court has recognized a protected property right in visibility of one's property from the roadway. As a result, the court of appeals concluded that Arby's was not entitled to present evidence of claimed damage to their property caused by a loss of visibility of the property. We agree. In Utah, landowners do not have a protected interest in the visibility of their property from an abutting road, even if part of their land has been taken in the process.

¶ 13 In Utah State Road Commission v. Miya, we concluded that the "rights of access, light, and air are easements appurtenant to the land of an abutting owner on a street." 526 P.2d 926, 928 (Utah 1974). We also concluded in Miya that "[a] property owner has no property right to a free and unrestricted flow of traffic past his premises, and any impairment or interference with this flow does not entitle the owner to compensation." Id. Similarly, a property owner has no recognized property right to free and unrestricted visibility of his property by passing traffic, and an impairment of that visibility does not mandate compensation.

¶ 14 The speculative nature of the damages sought in a claim for loss of visibility further supports this conclusion. As the court of appeals correctly noted, a claim for loss of visibility is essentially a claim for compensation for lost business profits. Article I, section 22 of the Utah Constitution simply does not create a protectable property interest in the mere hope of future sales from passing traffic.⁵

¶ 15 Because property owners have no protectable property interest in visibility, the trial court was correct in granting the motion in limine on this issue, and the court of appeals was correct in affirming.

II. LOSS OF VIEW

¶ 16 Unlike visibility, existing Utah law does recognize an easement of view from one's property as a protectable property right. Utah Code Ann. § 72-6-117(5) (2001); Utah State Rd. Comm'n v. Miya, 526 P.2d 926, 928-29 (Utah 1974). Severance damages are clearly awardable when the state condemns a portion of land and builds a structure directly on that condemned land, impairing the view from, and thereby causing damage to, the non-condemned portion of land. In Utah Department of Transportation v. D'Ambrosio, we held that severance damages include "those [damages] caused by the taking of a portion of the parcel of property where the taking or the construction of the improvement on that part causes injury...