-----Original Message----- From: UMKC Dirt On Behalf Of Patrick Randolph (UMKC Dirt) Sent: Friday, February 13, 2004 10:53 AM To: UMKC Dirt Subject: DD 2/15/04 Rare Case - Restriction of Access IS a compensable taking Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA. Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues. ABOUT DIRT: DIRT is an internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 15 messages per work day. Daily Developments are posted every work day. To subscribe, send the message subscribe Dirt [your name] to EMINENT DOMAIN; INVERSE CONDEMNATION; ACCESS: A compensable de facto taking occurs when a government entity narrows the access ramp to the road on which a property owner owns a business. The de facto taking was evidenced by the decline and closure of the owner's business, a gas station and market, because tour busses and tractor-trailers could no longer access the property due to the government's construction. Sienkiewicz v. PennDOT, 2003 WL 22841693 (Pa.Com.Pl. 5/2/03). The landowner, operator of a service station/convenience store adjacent to an interestate highway, in fact made two complaints. First, it argued that the reconfiguration of the roadway required that traffic that previously came off the interstate and right past his business now would have to make a 650 foot detour directly past the premises of his competitor. Second, landowner argued that the narrowing of the access ramp completely trucks and busses that earlier had easy access to the premises. The court noted the general notion that, although landowners are entitled to some reasonable access to their property, they are not entitled to any specific access. It cited Pennsylvania cases holding that reasonable access should be measured with the use of the property in mind, and that if alternative access exists, "it must enable the property to be used for the purpose for which it previously had been employed in order to be considered a reasonably means of entry." Landowner argued that the long backtrack, leading traffic past a competitor's premises, effectively eliminated his customer base and forced him to shut down. The court, however, concluded that even if this was true, this situation did not amount to a constitutionally compensable taking. "[A] detour might be so long and circuitous as to represent an unreasonable permanent interference with access, [but] our cases are legion that, where the result of a condemnor's action s to compel the allegedly affected property owner to travel a short distance farther to reach the system of streets going in a specific direction, this slight inconvenience is not compensable." The court noted a number of cases in which the extended route of access was measured in miles - as many as 7.8 miles, rather than in a few hundred feet, and more circuitous routes have been found not compensable as well. Although the landowner argued that the particular impact on his business demanded that a different standard be used than in the precedent cases, since the conditions that the government changes created diverted away his customers, the court responded that there is no constitutional guarantee of a given traffic pattern. Assuming that landowner could directly trace the traffic diversion as the source of the ruination of his business, this was "damnum absque injuria." But landowner had considerably better luck with his argument that the narrowing of the access roads actually prevented critical customers - the big rigs and the busses, from reaching his premises. Although the leading case supporting landowner's claim was deemed to be inapplicable, since it preceded the current Eminent Domain Code, the court pointed out that post-Code cases had adopted a similar rationale. The court indicated that there is a difference between the "barrier and circuity" cases and the situation where no practical access is available at all as a consequence of government action. Comment 1: This is a "rare bird." The vast majority of cases involving claims of inverse condemnation through taking or access fall the government's way. Here the special circumstance was that curbing and lane narrowing had actually constricted the ability of landowner's critical customers to get to his premises safely at all. Clearly this is a very tough case to make. Comment 2: Note that landowner may have shot itself in the foot with the argument that the circuitous rerouting also contributed to the demise of its business. If that is the case, then the argument for compensation from the constricted accessways is less compelling. The case is remanded, but the court does appear to be sympathetic to the claim that the narrowed accessways alone were enough to wreck the business. ----- To be removed from this mailing list, send an email message to listserv@listserv.umkc.edu with the text SIGNOFF DIRT. Please email manager@listserv.umkc.edu if you run into any problems. See for more information.