State v. Legacy Land Co.

998 N.W.2d 94

The STATE of South Dakota, Acting BY AND THROUGH the DEPARTMENT OF TRANSPORTATION and the South Dakota Transportation Commission, Plaintiff and Appellee,

v.LEGACY LAND CO., Defendant and Appellant.

#29859

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS OCTOBER 3, 2022

OPINION FILED November 15, 2023

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT, PENNINGTON COUNTY, SOUTH DAKOTA, THE HONORABLE STACY VINBERG WICKRE, Judge

JEFFREY G. HURD, EMILY M. SMORAGIEWICZ of Bangs, McCullen, Butler, Foye & Simmons, LLP, Rapid City, South Dakota, Attorneys for defendant and appellant.

MARTY J. JACKLEY, Attorney General, SHANE M. PULLMAN, Special Assistant Attorney General, South Dakota Department of Transportation Pierre, South Dakota, Attorneys for plaintiffs and appellees.

SALTER, Justice

[¶1.] As part of a highway improvement project, the South Dakota Department of Transportation (DOT) constructed a median in the highway abutting property owned by Legacy Land Company (Legacy). The median did not eliminate access to the Legacy property, but it changed it. Vehicles could no longer make a left turn directly into the Legacy property, and those leaving the Legacy property could only turn right onto the highway. Legacy argued that the median effected a taking and sought compensation, but the circuit court disagreed and granted the DOT’s motion for summary judgment, which Legacy now appeals. We affirm.

Factual and Procedural History

[¶2.] Legacy owns approximately 26.3 acres of undeveloped land on the north side of Catron Boulevard¹ in Rapid City. Prior to 2010, Catron Boulevard was a two-lane highway that permitted traffic coming from either direction to turn into the Legacy property. Vehicles leaving the property could also turn left or right onto the highway.

[¶3.] In 2010, the DOT began a project to upgrade the highway by creating two lanes of traffic going each direction separated by a median. Prior to the highway expansion project, the DOT named Legacy in a petition seeking to condemn a small portion of Legacy’s land for drainage in addition to obtaining a temporary easement during construction, neither of which are directly related to construction of the median.

[¶4.] Once the median was completed, Legacy’s three shareholders noted the impact it had upon access to their property. The median does not allow eastbound traffic to immediately access the Legacy property by simply turning left. Instead, motorists must change directions by turning around at median breaks located along the divided highway. Those leaving the Legacy property are also impacted by the presence of the median and may only turn right into the westbound lane of travel.

[¶5.] The case generated little record activity for several years before 2016 when Legacy filed a motion seeking declaratory relief in which it alleged the DOT "had caused compensable damages" and sought a declaration that the DOT’s construction of the median constituted a taking under Article VI of the South Dakota Constitution. The DOT disagreed and sought to resolve the issue by filing the first of two motions for summary judgment. The circuit court denied this initial summary judgment motion at a September 2016 hearing after concluding there were disputed issues of material fact relating to the intended uses of the land. The court did not address the motion for declaratory relief, and Legacy advised the court that it did not intend to pursue the request for formal declaratory relief, given the fact that the takings issue was being substantively litigated as part of the original condemnation action.

[¶6.] After the parties engaged in pretrial discovery, the DOT renewed its request for summary judgment through a

second motion in 2021. Citing the legal standard set out in our cases, the DOT argued that the Catron Boulevard median did not substantially impair Legacy’s right of access to its property. Along with its motion, the DOT filed a statement of undisputed material facts to which Legacy responded.

[¶7.] In an affidavit, Legacy shareholder Scott Nash stated that at the time of construction, Legacy asked the DOT to install a median break in front of its property, but the request was denied. Pursuant to access management guidelines contained in administrative rules promulgated by the DOT, median breaks on an expressway, such as Catron Boulevard, should be placed at half-mile increments. ARSD 70:09:02, App. A. Under ordinary circumstances, the DOT would have applied this rule and installed a median break corresponding roughly to the western edge of the Legacy property, half a mile from the junction of Catron Boulevard and Highway 79. However, in this instance, the DOT used its authority under the administrative rules to vary from the standard access plan and install a median break 610 feet east of the access approach to the Legacy property. In this location, the median break provides direct access to both lanes of traffic for a number of state facilities located on the south side of the highway, including a weigh station, a South Dakota Highway Patrol building, and a South Dakota National Guard installation.

[¶8.] An aerial image on which the Legacy property is listed as "SITE" provides a helpful illustration:

998 N.W.2d 98.bmp

[¶9.] Mark Leiferman, Chief Road Design Engineer for the DOT, explained in an affidavit that eastbound traffic could get to the Legacy property by proceeding past it and making a U-turn at the median break 610 feet to the east. Vehicles leaving the Legacy property wanting to travel east must first turn right and proceed west before making a U-turn in the first median break 1,136 feet from the Legacy property. Legacy acknowledges that these routes allow access for passenger vehicles, but it claims these options are not reasonable for larger commercial vehicles.²

[¶10.] Neither party disputed that these U-turns would not be possible for semi tractor-trailers and other large commercial vehicles. For these, the DOT contended that large eastbound commercial vehicles seeking access to Legacy’s property could turn into the weigh station area and loop back through the median break for a total additional distance of less than half a mile. For a large commercial vehicle leaving the Legacy property wishing to go east, the DOT cited a report by Legacy’s expert, who stated that a semi tractor-trailer could reroute to the east by turning at 5th Street and using existing streets.

[¶11.] Legacy’s expert was a professional engineer named Brian Horan, who stated that the construction of the median did "not provide reasonable access" consistent with the zoned uses which allow for commercial and medium density residential development. Horan also confirmed that the U-turn at the medians to the east and west would be possible for passenger vehicles but not for larger commercial vehicles. For larger vehicles moving eastbound, Horan noted they could "travel to E. Minnesota St. to circulate off of Elk Vale Rd and back to the site approximately 1.3 miles to the east." Horan did not provide an exact additional distance that larger vehicles would be required to travel when leaving the Legacy property in order to head east, but he stated that it could be accessed by "circulating through the grid of streets" likely through neighborhoods to the north.

[¶12.] Horan also referenced plans for a future frontage road which he sourced to a "Comprehensive Plan" that provided transportation recommendations and was published by the City of Rapid City in 2014. Horan opined that "once constructed, [the frontage road] would provide convenient opportunities to access the site from either direction." But Horan’s letter added, "[c]urrently no plans or funding are available to construct these roadways and will likely be built coincident with site development." The location of the proposed frontage road is illustrated in the following map:

998 N.W.2d 99.bmp

[¶13.] The circuit court granted the DOT’s motion for summary judgment in a written decision, concluding the construction of the median did not result in a compensable taking. In the court’s view, the Catron Boulevard median did not substantially impair access to the Legacy property even for large commercial vehicles because there were other ways for these vehicles to access Legacy’s property without having to make U-turns at the median breaks. Focusing principally on aerial photographs, the court described an access route to the east of Legacy’s property that was essentially the option described by the DOT.

[¶14.] To the west, the circuit court noted, as Legacy’s expert had, that future development plans contemplate an extension of a road, known as Stumer Road, which would then serve as a frontage road for convenient access for future commercial development on Legacy’s property.

[¶15.] Legacy moved for reconsideration, arguing the circuit court determined disputed facts when it concluded that the restrictions on access created by the Catron Boulevard median were reasonable and did not substantially impair Legacy’s right of access. In particular, Legacy claimed there was "no undisputed evidence" in the record regarding: 1) the specific alternate routes to Legacy’s property; and 2) "what conditions surround[] any alternative access routes [that] make them potentially reasonable or unreasonable." The court denied Legacy’s motion to reconsider.

[¶16.] Legacy has appealed, arguing the court erred when it determined that the DOT’s installation of the median did not substantially impair access to its property and cause a compensable taking.

Analysis and Decision

[1–4] [¶17.] Our review of a circuit court’s determination of a summary judgment motion is well established.

A grant or denial of summary judgment is reviewed de novo. When conducting a de novo review, we give no deference to the circuit court’s decision to grant summary judgment. When reviewing a circuit court’s grant of summary judgment, this Court only decides whether

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