J. JONES, Justice.
This appeal arises from a condemnation action brought by the State of Idaho, Idaho Transportation Board (ITD) against HI Boise, LLC to acquire a strip of land as part of a project to improve the I-84/Vista Avenue Interchange in Boise. ITD offered HI Boise the condemned property's appraised value of $38,177, but HI Boise filed a counterclaim for inverse condemnation, claiming damages of $7.5 million for additional lost rights of access and visibility. HI Boise now appeals from the district court's summary dismissal of those claims. Because we find that neither claim involves a compensable taking, we affirm.
This dispute was sparked by an ITD project known as the "Interstate 84/Vista Interchange Project." In response to increased traffic demands at the intersection of I-84 and Vista Avenue in Boise, ITD initiated the $30 million project to replace the existing interchange, add lanes to I-84, widen and lengthen on- and off-ramps to and from the Interstate, and widen and improve the Vista Avenue overpass extending across I-84. The interchange was replaced with a Single Point Urban Interchange (SPUI) with a single traffic light at the center controlling north-south traffic and converging on- and off-ramp traffic via protected left-hand turns in each direction. The project was completed in the fall of 2010.
HI Boise owns a 9.15-acre piece of real property located at the northeast corner of the I-84/Vista Avenue intersection, where it owned and operated a Holiday Inn during the proceeding below.
In order to widen and raise a section of Vista Avenue to meet the new overpass, ITD condemned a narrow strip along the west edge of the HI Boise property, on which it constructed a new bike lane and sidewalk. The strip of condemned property is approximately 7 feet wide and 133 feet long, totaling approximately 960 square feet.
The Vista access was granted by ITD's predecessor in interest to HI Boise's predecessors in interest by two 1967 deeds, each
It is undisputed that the alterations to the stretch of Vista Avenue bordering HI Boise's property did not involve adding lanes, medians, restrictive signals or signage, restrictive striping, or other traffic control measure. Before and after the project, Vista Avenue consisted of five lanes — two northbound, two southbound, and one center turn lane. In addition, it is undisputed that none of the driveways to the HI Boise property have been physically closed or affirmatively restricted by the project alterations, as all remain full-movement driveways. Following the project, the entirety of the Vista driveway remains northeasterly of Station 24 + 53.01, as provided in the 1967 deeds.
To complete the project, ITD also acquired two temporary construction easements on HI Boise's property — one 2,483-square-foot easement for reconstruction of the Vista driveway and one 3,136-square-foot easement for construction of a 20-foot sound wall. The sound wall was constructed entirely on ITD's right-of-way — not on HI Boise's property. HI Boise points to this and other aspects of the project that allegedly limit its property's visibility to passing motorists. In addition to the sound wall — which apparently blocks visibility of the hotel's billboard from the freeway — the project involved (1) reconfiguring the exit point for westbound traffic approximately 260 feet further east, thereby preventing motorists from seeing the hotel in time to exit at Vista Avenue; and (2) increasing the height of the overpass by as much as approximately 14 feet
An MAI-certified appraiser determined the fair market value of the property taken and impacts on the remaining property to be $38,177, and ITD initially offered that amount to HI Boise. When negotiations were unsuccessful, ITD initiated this action on February 19, 2009, seeking condemnation. HI Boise counterclaimed for inverse condemnation and submitted a business damages claim under I.C. § 7-711(2), estimating losses between $7.1 and $7.5 million. HI Boise alleged that in addition to the 960-square-foot strip of land, ITD also effectively condemned (1) its primary access to the property from Vista Avenue and (2) its ability to be seen by passing motorists. It also claimed damages for increased noise resulting from the project but later abandoned that claim. HI Boise's access claims were threefold. First, it argued that the movement of the Vista driveway from its original location constituted a taking of the access right reserved in the 1967 deeds. Second, it argued that the new driveway exceeded minimum grade standards, making it unsafe to accommodate busses, trucks, and emergency vehicles. Third, it argued that aspects of the overall project would produce backed-up traffic at the Vista driveway,
The district court denied summary judgment on the first two questions, finding genuine issues of fact whether HI Boise had somehow established a right to the driveway's location and whether the new driveway met safety requirements. However, the court granted summary judgment on the circuity claim, citing State ex rel. Moore v. Bastian, 97 Idaho 444, 546 P.2d 399 (1976), for the proposition that damages due to mere changes in traffic flow to property — such as those caused by traffic control devices — are non-compensable. The court also granted summary judgment to ITD on HI Boise's visibility claim, finding no right to continued visibility of the property under Idaho law.
The district court denied HI Boise's motion for reconsideration on the circuity claim and, although it had reserved questions for trial, approved — and we granted — HI Boise's motion for permissive appeal of the circuity and visibility claims under I.R.C.P. 12 and issued judgments on those claims. HI Boise timely appealed.
This Court reviews a grant of summary judgment pursuant to the same standards as the district court. Mackay v. Four Rivers Packing Co., 145 Idaho 408, 410, 179 P.3d 1064, 1066 (2008). Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." I.R.C.P. 56(c). This Court reviews questions of law de novo. Martin v. Camas County ex rel. Bd. of Comm'rs, 150 Idaho 508, 511, 248 P.3d 1243, 1246 (2011). The issues of the nature of the property interest alleged to have been taken and whether a taking has occurred are questions of law. Moon v. North Idaho Farmers Ass'n, 140 Idaho 536, 542, 96 P.3d 637, 643 (2004).
HI Boise's circuity claim below was based on the allegation that the overall project
Although the district court expressly reserved for trial the question of whether the physical reconstruction of the Vista driveway constituted a compensable taking, it held: "Based on Bastian, HI Boise's argument that the traffic flow on Vista which may make it difficult to turn left into or out of HI Boise is a compensable taking fails. The Court finds that HI Boise has reasonable access on Vista Avenue and on Sunrise Rim Road." On appeal, however, HI Boise still seems to focus on the driveway reconstruction, attempting to link its circuity claim to that "physical taking" as well as the taking of its 960-square-foot strip of land. HI Boise then asserts that Bastian is limited to "regulatory takings" cases, whereas this case of "physical taking" is governed by State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60 (1958), which defines severance damages as "all inconveniences resulting to the owner's remaining land" from a partial taking. ITD points out that HI Boise misplaces its focus on appeal, that Bastian squarely applies to bar the circuity claim, and that the language cited in Fonburg is merely dicta that does not support HI Boise's case.
The Idaho Constitution provides: "Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor." Idaho Const. art. I, § 14. In a partial taking case, in addition to the value of the property right sought to be condemned, a court is also tasked with determining "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." I.C. § 7-711(2)(a). We have long held that access to an adjacent public way — even in the absence of an expressly deeded right — is one of the incidents of land ownership, the taking of which may require compensation. Johnston v. Boise City, 87 Idaho 44, 51, 390 P.2d 291, 294 (1964). However, "This right of access ... may be regulated, for it is subservient to the primary rights of the public to the free use of the streets for travel and incidental purposes." Id. Accordingly, not all government impairments of an access right are compensable. State ex rel. Moore v. Bastian, 97 Idaho 444, 447, 546 P.2d 399, 402 (1976). Specifically, no compensable taking occurs where the right is not destroyed or substantially impaired and the remaining access is reasonable. Id.; Merritt v. State, 113 Idaho 142, 145, 742 P.2d 397, 400 (1987). Further, we have held as a matter of law that a right of access "does not encompass a right to any particular pattern of traffic flow." Brown v. City of Twin Falls, 124 Idaho 39, 43, 855 P.2d 876, 880 (1993). Thus, state action that merely results in a change in traffic flow requiring traffic to reach property by a more circuitous route does not amount to a taking
Here, HI Boise first argues that the district court applied the wrong standard to its circuity claim by analyzing it as a "regulatory taking" under Bastian rather than a "physical taking" under Fonburg. As indicated above, it bases its characterization of the taking as "physical" on the fact that ITD also took a strip of HI Boise's land for the project, as well as its argument that the driveway reconstruction constituted a physical taking. However, even assuming that the driveway reconstruction constitutes a physical taking — a question not before this Court — the district court was correct that Bastian squarely precludes compensation for changes in traffic patterns caused by other aspects of the project.
In Bastian's familiar set of facts, the State condemned a portion of the defendant's physical property along two of its bordering streets as part of a project to widen and add lanes to the streets. 97 Idaho at 446, 546 P.2d at 401. In addition, the State constructed a raised center median on one of the streets, prohibiting motorists from turning left into and out of the defendants' former access point. Id. The median forced some motorists to drive "one-half to two blocks around the property" to access the property. Id. The trial court allowed the defendants to present evidence of damages caused by the median, but we reversed, holding:
Id. at 447, 546 P.2d at 402. We also explained that the contemporaneous physical taking did not affect our analysis, stating:
Id. (emphasis added).
We reaffirmed the Bastian rule in Brown, another case in which property owners sought compensation for newly constructed medians restricting their property's access point to right-in/right-out turns. Brown, 124 Idaho at 42-43, 855 P.2d at 879-80. Unlike Bastian, Brown did not involve a contemporaneous condemnation of physical property, but we still found it "indistinguishable" from Bastian, holding that the property owners did "not have a property right in the way traffic flows on the streets abutting their property." Id. at 43, 855 P.2d at 880. In deciding Brown, we also relied on Merritt, a case illustrating that this Court applies a similar rule whether the alleged taking of an access right appears to be physical or regulatory in nature. 113 Idaho at 145, 742 P.2d at 400. In Merritt, the alleged taking involved actual elimination of a curb cut, preventing access to the subject property at that point, as well as construction of a fence across an alley — another prior access point. Id. However, because the property owner still had direct access to his property via two other curb cuts and indirect access via the other entrance of the alley, the Court found:
Id.
Indeed, it is only where a previously existing access right is destroyed or at least substantially impaired, leaving no reasonable alternative, that we have recognized a compensable taking of access. See Fonburg, 80 Idaho at 280, 328 P.2d at 65-66; State ex rel. Symms v. Nelson Sand & Gravel, Inc., 93 Idaho 574, 583, 468 P.2d 306, 315 (1970). In Fonburg, the State condemned 12.76 acres of Fonburg's land for construction of a new highway running from east to west and spanning the entire width of his land. Id. at 274, 328 P.2d at 61-62. The State also closed the old highway running along the west edge of Fonburg's property, where he had formerly enjoyed direct access, and denied him access to the new highway from his land. Id. This also prevented direct access to the railroad line running east to west through Fonburg's property just north of the new highway. Id. Although it is unclear from the opinion precisely what alternative access remained — and the Court mentions one "circuitous" route remaining to the railroad — it is clear that all access to the highway and reasonable access to the railroad were destroyed. Id. at 274-75, 328 P.2d at 61-62. Indeed, the district court in that case found, "There is also condemned and taken herein all rights of access to and from all properties abutting upon the above described parcel ... and such rights of access, if any, existing heretofore are extinguished and the usage of any such access is hereby prohibited." Id. Based on this, we held that Fonburg was entitled to present evidence to the jury of damages arising from severance of those rights. Id. at 280, 328 P.2d at 65-66.
Contrary to HI Boise's claim in the present case, the distinguishing factor in Fonburg was not merely that a contemporaneous physical taking occurred, but that the taking also involved a near complete destruction of Fonburg's access rights. Further, the physical taking in that case directly caused the destruction of access rather than incidentally occurring alongside it. And finally, the Fonburg language on which HI Boise heavily relies — that severance damages include damages for "all inconveniences" — is simply a loose and somewhat misleading translation of I.C. § 7-711(2)(a). Id. at 278, 328 P.2d at 64.
Further, as in Bastian, although there was at least one physical property right — possession of the strip of land — contemporaneously taken in this case, the alleged circuity damages do not flow from that taking. Indeed, HI Boise does not even attempt to establish that causal connection. HI Boise merely argues on appeal that the reconstruction and slight movement of the driveway constituted a physical taking, but understandably does not argue that that slight movement itself somehow inhibited traffic flow. This fact, too, places the present case far from Fonburg and Nelson Sand & Gravel, where the physical takings themselves caused the limitation of access. Accordingly, even if it is ultimately determined that the reconstruction constitutes a taking, HI Boise's damages for that taking may not include the limitation of access to that driveway caused by changes in Vista traffic flow. The district court was correct in dismissing HI Boise's circuity claim as a matter of law.
HI Boise also sought severance damages for loss of visibility of its property by motorists on I-84, arguing that various aspects of the project — such as the sound wall, alterations to I-84 exits, and the widening and raising of the Vista overpass — have effectively left its property in a "hole." On summary judgment, the district court held:
The court also looked to other jurisdictions and was persuaded by significant case law rejecting such claims.
On appeal, HI Boise relies on out-of-state case law purportedly recognizing a right to continued visibility, as well as I.C. § 7-711(2) itself. At oral argument, HI Boise conceded that it could not base its visibility claim on the construction of the sound wall because that improvement was unrelated to the physical taking of its property. Still, it maintained its entitlement to damages for the changes to the Vista overpass and I-84 exits, arguing that the taking of its 960-square-foot strip of property was essential to completion of those improvements and the project as a whole. ITD responds that the Idaho case law on circuity supports a corresponding
Indeed, as ITD argues, neither the Legislature nor this Court has previously recognized a right to continued visibility of property, and HI Boise offers no convincing argument that it should do so now. First, ITD is correct that the circuity case law discussed above is persuasive in this regard. If, as the Bastian line of cases dictates, a property owner does not have a property right in traffic flow around his property, it directly follows that he cannot assert a property right in that same traffic's ability to see his property. See, e.g., Bastian, 97 Idaho at 447, 546 P.2d at 402. As ITD points out, "Based on these principles, ITD could re-route Interstate 84 entirely so that no traffic went past the HI Boise property at all." This would certainly be permissible — assuming no access rights were unconstitutionally usurped in the process — and have the same effect on visibility as erecting the obstructions on which HI Boise now bases its claim.
There is significant support for this proposition in out-of-state case law. E.g. Dep't of Transp. v. Marilyn Hickey Ministries, 159 P.3d 111, 113 (Colo.2007) ("We hold that because a landowner has no continued right to traffic passing its property, the landowner likewise has no right in the continued motorist visibility of its property."); State v. Schmidt, 867 S.W.2d 769, 774 (Tex.1993) ("Just as a landowner has no vested interest in the volume or route of passersby, he has no right to insist that his premises be visible to them."); State ex rel. Missouri Hwy. & Transp. Comm'n v. Dooley, 738 S.W.2d 457, 468-69 (Mo.App.1987) (holding, in a partial takings case, that "any claim as to damages for `public view' or visibility is `inextricably related' to a property right in the traffic, [and] the decisions have consistently refused to `accord to property owners any right in the continuation of traffic"). See also 4A Nichols on Eminent Domain § 14A.03[4] (Sackman & Van Brunt eds., 3d ed. Rev. 1997) ("Generally, this right is denied, principally upon the theory that one has no control over his neighbor's property and therefore could not prevent his neighbor, under most principles of real property law, from erecting barriers to prevent his right to be seen. Therefore a taking by a public authority takes nothing from him.")
While a few courts have approved severance damages for lost visibility, almost all refuse to do so when none of the alleged obstructions are actually constructed on the owner's condemned property. E.g. State v. Weiswasser, 149 N.J. 320, 693 A.2d 864, 873 (1997) ("[L]oss of visibility as an element of severance damages may be related to a loss of access and the basis for the compensability for such damages would be whether the loss is attributable to the taking of the property itself or off-site conditions."); People v. Wasserman, 240 Cal.App.2d 716, 50 Cal.Rptr. 95, 105 (1966) (Wasserman could not recover for alleged loss of visibility "since the improvement causing such loss of view[, t]he freeway itself, was not located on the property taken from these defendants."). These cases turn on the fact that the lost visibility was a direct result of the severance of a legally cognizable property right — the physical property itself — rather than a severance of some stand-alone right to visibility. Idaho Code § 7-711(2)(a) provides a similar rule, allowing only "damages which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned."
Here, it is undisputed that none of the improvements alleged to obstruct visibility of the HI Boise property are located on its severed strip of land or on its allegedly condemned Vista driveway. Although at oral argument HI Boise attempted to link the alterations of the Vista overpass and exits to the taking of the 960-square-foot strip, any such link is too tenuous to satisfy Idaho Code § 7-711(2). Indeed, in conceding that it could not base its claim on the construction of the sound wall, HI Boise seems to recognize the statute's rule that the damage asserted must arise from the taking itself rather than other aspects of the project. Here, it does not. Because we do not recognize visibility
In sum, the district court was correct that HI Boise's circuity and visibility claims do not involve compensable takings. Therefore, we affirm the district court's holdings. Costs to ITD.
Chief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON concur.
240 Ind. 472, 164 N.E.2d 342, 349 (1960).
Id.