Utah Dept. of Transp. v. Ivers

• Decision Date: 08 December 2005
• Docket Number: No. 20050246-CA.,20050246-CA.
• Citation: 2005 UT App 519,128 P.3d 74
• Parties: UTAH DEPARTMENT OF TRANSPORTATION, Plaintiff and Appellee, v. James IVERS, Katherine G. Havas, P & F Food Services, and Zions Credit Corporation, Defendants and Appellants.
• Court: Utah Court of Appeals

128 P.3d 74

2005 UT App 519

UTAH DEPARTMENT OF TRANSPORTATION, Plaintiff and Appellee, v. James IVERS, Katherine G. Havas, P & F Food Services, and Zions Credit Corporation, Defendants and Appellants.

No. 20050246-CA.

Court of Appeals of Utah.

December 8, 2005.

John W. Holt and Donald J. Winder, Winder & Haslam, Salt Lake City, for Appellants.

Mark L. Shurtleff, Attorney General, Steven C. Ward and Randy S. Hunter, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges DAVIS, GREENWOOD, and THORNE.

OPINION

GREENWOOD, Judge:

¶1 This case involves a taking of private property by Plaintiff Utah Department of Transportation (UDOT) to construct a frontage road adjacent to U.S. Highway 89 (Highway 89) near Farmington, Utah. Defendants James Ivers, Katherine G. Havas, P & F Food Services, and Zions Credit Corp. (collectively, Arby's) appeal the trial court's ruling denying Arby's motion for partial summary judgment and granting UDOT's motion in limine precluding Arby's from presenting evidence of severance damages to a jury. In particular, Arby's argues that, as a result of UDOT's partial condemnation of its property, it is entitled to severance damages representing the diminished value of its commercial property resulting from (1) loss of reasonable access to its remaining property and (2) obstruction of view and visibility. We affirm.

BACKGROUND

¶2 Arby's commercial lot, which is used to operate an Arby's restaurant, is located on the northwest corner of what was the intersection of Shepard Lane and Highway 89, near Farmington, Utah. The total area of Arby's lot is 0.416 acre.

¶3 UDOT sought to condemn a 0.048-acre portion of Arby's lot in connection with its construction project to widen Highway 89. Pursuant to the project, the intersection of Shepard Lane and Highway 89 was to be eliminated and Highway 89 was to be elevated to create an underpass allowing traffic to travel east-west on Shepard Lane underneath the elevated highway.¹ The condemned portion of Arby's property was to be used to construct a one-way frontage road parallel to the newly elevated and widened Highway 89 and to connect with on-ramps and off-ramps to Highway 89.

¶4 UDOT brought suit to condemn the 0.048-acre parcel of Arby's property needed for the project. Thereafter, the parties entered into a stipulated agreement, in which Arby's agreed to grant UDOT immediate occupancy of the subject real property and UDOT agreed to pay Arby's $48,250 for the condemned property. UDOT proceeded with the construction project.

¶5 As a result of the project, direct access to Shepard Lane from Highway 89 was modified. However, access to Arby's from Shepard Lane remains unchanged. Arby's lot can also be accessed from the frontage road, which itself connects to Highway 89 one-half mile north and one-half mile south of Arby's property.² Additionally, the elevation of Highway 89 has obstructed the eastern view from Arby's property and the visibility of Arby's property by those traveling on Highway 89.

¶6 Arby's sought severance damages, claiming that the condemnation diminished the market value of the remaining, noncondemned portion of its property. Subsequently, UDOT filed a motion in limine and Arby's filed a motion for partial summary judgment regarding whether Arby's was entitled to severance damages for (1) loss of reasonable access to and from its property and (2) loss of view from and visibility of its property.³

¶7 The trial court ruled in favor of UDOT and against Arby's, concluding that under Utah Code section 78-34-10(2), see Utah Code Ann. § 78-34-10(2) (2002 & Supp.2005), and Utah case law, Arby's was not entitled to severance damages for diminished access or loss of view and visibility. The trial court reasoned that Arby's was not entitled to damages for loss of access because the damage Arby's will suffer is "a result of loss of the public's access to Arby's from Highway 89 and does not flow from either the taking of 0.048 acres of [Arby's] property or from the nature of the construction on that part of the property," and because reasonable access to Arby's still exists. Regarding loss of view and visibility,⁴ the trial court reasoned that while Arby's has a compensable property interest in its easement of view, because the loss of view here arose from construction on property not taken from Arby's, Arby's is "precluded from introducing evidence of a decline in the market value of their property caused by loss of visibility." Arby's appeals.

ISSUES AND STANDARD OF REVIEW

¶8 Arby's claims that it is entitled to severance damages based upon the condemnation of a portion of its commercial property, which has resulted in the (1) loss of reasonable access to and from its remaining property and (2) loss of view from and visibility of its remaining property.

¶9 This case comes to this court following the trial court's denial of Arby's motion for partial summary judgment and grant of UDOT's motion in limine on the same issues. Arby's does not challenge the trial court's factual findings in this ruling, but only its legal conclusion that Arby's was not entitled to severance damages. Accordingly, the issues present questions of law, which we review for correctness. See Woodbury Amsource, Inc. v. Salt Lake County, 2003 UT 28,¶ 4, 73 P.3d 362 ("We review the district court's summary judgment ruling for correctness, granting no deference to its legal conclusions."); see also Ford v. American Express Fin. Advisors, Inc., 2004 UT 70,¶ 33, 98 P.3d 15 (reviewing the trial court's legal conclusions in a motion in limine for correctness).

ANALYSIS

I. Loss of Reasonable Access

¶10 Arby's first argues it is entitled to severance damages for the loss of access to its property caused by UDOT's severance of a 0.048-acre portion of its property for a construction project involving Highway 89. We disagree.

¶11 "Severance damages are those 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 to that portion of the parcel not taken." Utah Dep't of Transp. v. D'Ambrosio, 743 P.2d 1220, 1222 (Utah 1987). This rule is codified in Utah Code section 78-34-10(2), which provides, in relevant part:

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 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(2). Arby's claims the loss of access to its property is compensable under this section.

¶12 The Utah Supreme Court recently rejected a similar argument, also premised on section 78-34-10(2), in State v. Harvey Real Estate, 2002 UT 107, 57 P.3d 1088. In Harvey, UDOT closed an intersection at Highway 89 and Old Mountain Road in order to decrease the number of accidents on Highway 89. See id. at ¶ 5. UDOT also sought to build a frontage road approximately one-half mile from the closed intersection. See id. Accordingly, UDOT brought a condemnation action to acquire approximately 1.36 acres of property from Harvey Real Estate (Harvey) to construct the frontage road. See id. at ¶ 6. The frontage road eliminated direct access to the Harvey property from Highway 89. See id. at ¶ 5.

¶13 During the condemnation action, "UDOT filed a motion in limine seeking to preclude Harvey from presenting expert testimony at trial that the closure of the Old Mountain Road/Highway 89 intersection will substantially decrease the value of the remaining Harvey property." Id. at ¶ 7. The trial court granted UDOT's motion, concluding "that evidence of alleged damages from the intersection closure was not admissible because any damages sustained by Harvey were not the result of the loss of land to be used in building the frontage road and thus did not qualify as severance damages." Id.

¶14 The supreme court affirmed on appeal, observing that "[s]ection 78-34-10 gives a landowner the right to present evidence of damages caused by the construction of the improvement made on the severed property." Id. at ¶ 10 (emphasis added). This "accords with the well-established common law principle that severance damages `may be made for any diminution in the value of [an owner's non-condemned land], as long as those damages were directly caused by the taking itself and by the condemnor's use of the land taken.'" Id. at ¶ 11 (alteration in original) (quoting 26 Am.Jur.2d Eminent Domain § 368 (1996)).

¶15 Applying this reasoning, the supreme court determined Harvey was not entitled to severance damages because Harvey failed to show "that any damage sustained by the closure of the intersection has been caused by the severance of its land." Id. at ¶ 12. Instead, Harvey sought damages for devaluation of its property as a result of loss of access to Highway 89, attempting "to establish a causal connection between its alleged damages and the taking by arguing that the closure of . . . the intersection was made possible only by the taking of Harvey's property, the inference being that the taking caused the closure." Id. However, "UDOT could have chosen to close the intersection independent of the taking." Id. As such, "[t]he taking may be somewhat related to the closure, but it did not cause the closure, nor did it cause the damages that Harvey claims as a result of the closure." Id.

¶16 Harvey is dispositive of the present issue. Arby's claim for damages is based on its reduced access to Highway 89, specifically the closing of the Highway 89/Shepard Lane intersection and the elevation of Highway 89. However, no portion of Arby's land was condemned to accomplish these endeavors. Instead, as in Harvey, Arby's...