Merritt v. State

• Decision Date: 15 October 1986
• Docket Number: No. 15945,15945
• Citation: 113 Idaho 142,742 P.2d 397
• Parties: Ellis MERRITT, Plaintiff-Respondent, v. The STATE of Idaho, John V. Evans, Governor; Carl C. Moore, Lloyd F. Barron, John M. Ohman, Idaho Transportation Board, and Darrell V Manning, Idaho Transportation Department, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 397

742 P.2d 397

113 Idaho 142

Ellis MERRITT, Plaintiff-Respondent, v. The STATE of Idaho, John V. Evans, Governor; Carl C. Moore, Lloyd F. Barron, John M. Ohman, Idaho Transportation Board, and Darrell V Manning, Idaho Transportation Department, Defendants-Appellants.

No. 15945.

Supreme Court of Idaho.

Oct. 15, 1986.

Rehearing Granted Feb. 2, 1987.

On Rehearing July 10, 1987.

Robert L. Trabert, Patrick Fanning, and Leonard G. Hill (argued), Boise, for defendants-appellants.

Wayne E. Davis, Caldwell, for plaintiff-respondent.

HUNTLEY, Justice.

Merritt owns an unimproved lot at the corner of North 10th Avenue and Interstate 84 in Caldwell, Idaho. Prior to the construction of an interchange at North 10th and I-84, Merritt had access directly to his property from North 10th via an eighteen foot wide curb cut and indirectly from North 10th via a similar curb cut to an alley bordering the 150 foot northeast edge of the property. Access to the alley from North 9th Avenue continues to be available. Two curb cuts allow access across the southwest edge of the property which borders East Freeport Street.

In January 1985, the state finished construction of the interchange. Because it was financed mainly with federal moneys, the interchange had to meet certain federal highway access control standards. One access standard bars access to North 10th within 300 feet of the I-84 on and off ramps where they meet North 10th. The purpose of the standard is to reduce traffic congestion and promote safety near interchanges. Traffic flow projections estimate 20,000 cars a day will pass the Merritt property on North 10th in 1985, with 37,300 cars passing each day within twenty years.

In this particular case, the limited access zone extends along North 10th only 235 feet, to the point where North 10th intersects East Freeport Street. This deviation had to be approved by the Federal Highway Administration and state design engineers. It was allowed because of the preexisting block length in Caldwell and because East Freeport may become a major arterial bringing traffic to North 10th Avenue.

As a result of the federal access standard, the state eliminated the eighteen foot curb cut, preventing access from North 10th Avenue to the Merritt property. A fence was also constructed (on public land) running along the entire edge of the Merritt property bordering North 10th Avenue. The fence crosses the alley, barring entrance to the alley from North 10th Avenue, and thereby indirectly restricting access to the Merritt property via one end of the alley. After construction of the North 10th interchange, there is access to the Merritt property via the two curb cuts along East Freeport and indirectly via the other end of the alley, where it connects with North 9th Avenue.

Merritt intended to build a gas station on the vacant lot. He claims the denial of access to the proposed station from North 10th will hamper the ability of large fuel trucks to make deliveries to the station and will increase congestion at the intersection of East Freeport and North 10th by requiring vehicles on North 10th to first turn onto East Freeport to reach the station, thereby defeating the purpose of the state in limiting access to North 10th.

Merritt's complaint alleges inverse condemnation, that is, that the limitation of access to his property was a taking of property entitling him to damages. The state moved for summary judgment on the ground that the limitation of access was not a taking, but merely a regulation for the public health, safety or welfare. The district court denied the state's motion for summary judgment without findings of fact or conclusions of law, but by its denial implicitly held a taking had occurred, there being no dispute as to the fact that the access to Merritt's land has been limited. The judge issued a Rule 54(b) Certificate certifying the order as final and the state appealed. This Court thereafter ruled that the order was not appealable as a matter of right, but it entered an order accepting the appeal as a permissive appeal from an interlocutory order under Rule 12 I.A.R.

The issue on appeal is whether the district court erred in denying the State's motion for summary judgment. The district court reasoned the State's limitation of access to the Merritt property was a compensable taking of property. There being no genuine issues of material fact, the district court's adoption of Merritt's legal analysis of the case in denying the State's motion for summary judgment amounted to a grant of summary judgment for Merritt, from which the State appeals. The State argues that because of the remaining access it did not take Merritt's property, but merely regulated the property through an exercise of its police power in furtherance of the public safety and welfare.

Several cases support the State's position. In Johnston v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964), this Court held the closing of a curb cut was not a taking of property. The facts of Johnston are as follows: The city closed a curb cut providing access to an auto dealership. Double doors opposite the curb cut were used only by pedestrians and had not been used by vehicles for twelve years. Furthermore, there was a parking meter in the middle of the curb cut where vehicles had been parking for many years, and would continue to park. Vehicles entering the building used a curb cut on another street adjacent to the building, which was situated on corner property. Additional access to the building was available from an alley.

The city noted several problems with the curb cuts in general. They required additional efforts in street cleaning. The incline, when slippery, was hazardous to those alighting from cars. The accumulation of ice and water at the curb cuts burdened maintenance of city streets, and those cuts in active use burdened the city's regulation of traffic and parking. The court held that the closing of the curb cut bore a reasonable relationship to the public health, safety, or general welfare and, therefore, the landowner was not entitled to damages for any resulting injury. The court reasoned the alternate curb cut made the city's closing of one curb cut reasonable. The property in Johnston remained accessible to vehicles on two of four sides after the curb cut on the third side was closed, the latter curb cut having been unused by vehicles for twelve years.

A few Idaho cases have ruled the state regulation of private access onto a public road is a taking. In each case, vehicular access to the property was destroyed. Each case ruled the property owner had a right to regain access to the public road or to be compensated for the taking of access. Weaver v. Village of Bancroft, 92 Idaho 189, 193, 439 P.2d 697, 701 (1968); Hughes v. State, 80 Idaho 286, 295-96, 328 P.2d 397, 402 (1958); Cf. Village of Sandpoint v. Doyle, 14 Idaho 749, 758-60, 95 P. 945, 947-48 (1908).

In Hughes, business property was located on a corner of an intersection. The government raised the level of one street, making the intersection impassable to vehicles, causing the intersection to be closed and vacated. Business property had two points of access for business purposes; one on each of the intersecting streets prior to the time one of the streets was raised. The property owners appealed the district court's grant of the government's motion to strike the property owner's allegation that the fill and approach raising the level of one street deprived them of their right of vehicular access to their property. This Court reversed, holding that if the property owners proved vehicular access to their business property had been "destroyed" then such destruction of access would be a taking. Hughes, 80 Idaho at 295-96, 328 P.2d at 402. The court did not discuss the merits of whether the loss of access to one of two adjacent streets and the vacating of the adjacent intersection did or did not "destroy" vehicular access to the parcel in issue.

In Sandpoint, this Court held a private property owner has a property right in vehicular access to a public bridge, where the bridge is the only means of vehicular access to the property. Sandpoint, 14 Idaho at 759, 95 P. at 948.

In Mabe v. State, 86 Idaho 254, 385 P.2d 401 (1963) this Court had under consideration a situation where no property was taken and no access to the abutting highway was interfered with, but the landowner claimed damage because access was provided to the new interstate highway only by traveling several miles in either direction along the existing "old" highway. This Court held that the resulting diversion of traffic was not compensable.

Oregon Investment Co. v. Schrunk, 242 Or. 63, 408 P.2d 89 (1965), involved a downtown Portland parking lot which was bounded by streets on three of four sides. The city permitted access from two, but not from the third street. The lot owners-lessees challenged the city's refusal to authorize access onto the third street as a compensable taking under the Oregon Constitution. The curb lane of the third street was a twenty-four hour bus loading zone. Id. at 90.

The permit for access to the street was denied because of concentrated pedestrian traffic, the many people waiting for buses in the area of the proposed curb cut, as well as the need to promote the safe and orderly movement of traffic. Schrunk, 408 P.2d at 92-93. Since two points of access remained to the parking lot, the city's action was held not unreasonable or arbitrary, and was therefore not a taking. Any resulting lost property value or business profits did not constitute a legal injury for which compensation was due. Schrunk, 408 P.2d at 93.

Thus, in Schrunk the court ruled that where access to private property along four routes from public ways exists, two are blocked, and the remaining access is reasonable, then such is a reasonable exercise of the police power to provide for the public safety and welfare and is not a...