Opinion
NO. 2015-CA-001447-MR
05-19-2017
SPEEDWAY, LLC APPELLANT v. COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET APPELLEE
BRIEF FOR APPELLANT: Steven C. Coffaro Thomas Melvin Tepe, Jr. Cincinnati, Ohio BRIEF FOR APPELLEE: Jeffrey C. Shipp David Alen Schulenberg Fort Mitchell, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 14-CI-00785 OPINION AFFIRMING AND ORDER DENYING MOTION
When final disposition of an appeal is made by an "Opinion and Order," as in this case, the party adversely affected may move for reconsideration as provided by Kentucky Rules of Civil Procedure (CR) 76.38(2) within ten days of entry, but a petition for rehearing is unauthorized. CR 76.32(1).
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BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES. COMBS, JUDGE: Speedway, LLC, appeals an order of the Kenton Circuit Court granting summary judgment to the Commonwealth of Kentucky, Transportation Cabinet (the Cabinet). At issue was whether the Cabinet's revocation of encroachment permits granted to Speedway's predecessor in interest constituted a compensable taking under the circumstances. Because we agree with the trial court that it did not, we affirm.
Speedway owns and operates a gas station and convenience store at the southwest corner of West 4th Street and Philadelphia Street in Covington. The property lies directly east of the on-ramps to northbound and southbound Interstate 71/75. Prior to May 2014, the property could be accessed by car both from West 4th Street (by way of two curb cuts) and from Philadelphia Street (by way of two additional curb cuts).
The Transportation Cabinet owns a right-of-way along the 4th Street corridor in Covington extending twenty-five feet on each side of the center line of the roadway. The driveways leading into Speedway along West 4th Street encroach upon the Cabinet's right-of-way. The driveways' curb cuts were authorized by encroachment permits granted to Speedway's predecessor in interest pursuant to KRS 177.106.
Kentucky Revised Statutes.
In December 2013, pursuant to the requirements of KRS 177.016 and in advance of an anticipated road improvement project, the Transportation Cabinet provided Speedway (and all other affected property owners along the corridor) with timely notice that it intended to revoke encroachment permits for West 4th Street. In April 2014, the Transportation Cabinet advised Speedway that the curb cuts along West 4th Street would be permanently closed. Speedway's curb cuts onto Philadelphia Street were unaffected by the widening of West 4th Street.
On May 19, 2014, prior to the closure of the driveways, Speedway filed a civil action against the Transportation Cabinet. Speedway alleged that the closure of the West 4th Street driveways denied it reasonable and safe access to the property and that it was entitled to damages under the theory of inverse condemnation. The Cabinet answered and denied the allegations. Subsequently, the Cabinet filed a motion for summary judgment.
In its motion for summary judgment, the Transportation Cabinet argued that the revocation of the encroachment permits did not constitute a constitutional "taking." In the alternative, the Cabinet argued that Speedway retained reasonable access to its property and that it had suffered no damages as a result of the revocation of the permits. Along with its motion, the Transportation Cabinet submitted the affidavit of Gerald Michael Bezold, District Design Engineer, who indicated that closure of the West 4th Street driveways was necessary to improve public safety. Bezold stated that "the access driveways created an unsafe condition for vehicular traffic after certain necessary modifications to the adjoining roadway." He explained further that a portion of West 4th Street approaching the Interstate 75/71 on-ramps had been converted from two lanes to three lanes during 2014 -- a modification undertaken to improve traffic flow and safety. Given the addition of the third lane of traffic and "the proximity of the access driveways to both the highway on-ramp and the intersection of 4th Street and Philadelphia Street, it was determined by the Cabinet that the access driveways resulted in unsafe merge conditions."
Speedway responded to the motion and filed a cross-motion for summary judgment. Speedway argued that the closure of its West 4th Street driveways had deprived it of reasonable access to the property and that it was entitled to compensation for the taking as a matter of law. It submitted three affidavits in support of its motion. Lon Lucas, a real estate broker, indicated that following closure of the disputed driveways, accessibility to the property had been "significantly reduced and the ability to get in and out of the lot quickly no longer exists." He observed that access to the property "is no longer convenient." Etta Reed, an engineer, opined that the closure of the access driveways "has resulted in increased safety risks for Speedway customers and those motorists traveling near the intersection of W. 4th Street and Philadelphia Street." Jack Nickerson, a real estate appraiser, indicated that the revocation of the access permits and closure of the curb cuts on West 4th Street substantially reduced the value of Speedway's property.
In an order entered August 24, 2015, the Kenton Circuit Court granted the motion of the Transportation Cabinet and entered summary judgment against Speedway. The court observed that access from Speedway's property to West 4th Street had been closed by the Cabinet in the interest of public safety. It concluded that Speedway had not been deprived of reasonable access to the public highway and that the revocation of the encroachment permits did not constitute a compensable taking. This timely appeal followed.
Speedway contends that the trial court erred by granting the Cabinet's motion for summary judgment. Speedway argues that the revocation of the encroachment permits authorizing curb cuts from West 4th Street onto its property constitutes a taking. It also contends that the Cabinet's failure to counter the evidence established by Speedway through its affidavits entitles Speedway to judgment as a matter of law. We disagree.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, stipulations, and admission 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." CR 56.03. In undertaking our review of a grant of summary judgment, we must decide whether the trial court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. CR 56; Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476 (Ky. 1991).
Kentucky Rules of Civil Procedure. --------
Speedway's action is based upon a theory of inverse condemnation. An action alleging inverse condemnation is viable where the government has appropriated a piece of property without having first instituted proceedings in eminent domain. See Commonwealth, Natural Resources and Environmental Protection Cabinet v. Stearns Coal and Lumber Co., 678 S.W.2d 378 (Ky. 1984). The government's activity amounts to a "taking" of property in the constitutional sense where it enters upon private property and devotes it to public use so as to deprive the owner of all beneficial enjoyment. Id. Because private property cannot be taken without the payment of just compensation, an inverse condemnation action is a proceeding aimed at recovering from the government the fair market value of property which has been appropriated. Id.
Encroachment permits are revocable pursuant to the provisions of KRS 177.106. However, a landowner along a public road has a right to reasonable access to the highway system. Commonwealth of Kentucky, Department of Highways v. Carlisle, 363 S.W.2d 104 (Ky. 1962). That right of access remains subject to strict limitation under the state's police powers and must yield to the demands of public safety. Id.
Speedway contends that it is entitled to just compensation because the Cabinet's decision to revoke the encroachment permits deprived it of direct access to the interstate by way of the West 4th Street curb cuts. It argues that without direct access, "cars are now required to cross traffic and attempt two immediate left-hand turns before getting to the Interstate on-ramps." However, as the circuit court correctly determined, Speedway's loss of "direct access to the interstate" does not amount to a taking for which it must be compensated.
Our courts have observed that:
the benefit that an abutting owner may derive from the location of a highway and the direction of traffic thereon
is not a matter of right; neither does such benefit come within the category of access rights.Commonwealth, Department of Highways v. Denny, 385 S.W.2d 776 (Ky. 1964); DeRoussette v. Jefferson County, 288 Ky. 407, 156 S.W.2d 165 (1941). Additionally, the predecessor of our Supreme Court held:
[T]he enhancement in value of land attributable to the mere convenience of the routes of travel which it enjoys (whether such convenience is from the extent to which the surface of the road is improved or from the geographical location) is something which does not inure to the landowner as property.Commonwealth, Department of Highways v. Hess, 420 S.W.2d 660, 665 (Ky. 1967).
Under the circumstances of this case, Speedway did not have a vested property right to maintain the curb cuts from West 4th Street. Its right of access to the highway system was not unqualified. The Cabinet's decision to limit access to Speedway's property with respect to West 4th Street does not qualify as a direct taking by eminent domain or indirectly by inverse condemnation. See Carlisle, supra. Instead, it constitutes a proper exercise of the state's police power -- especially where Speedway continued to enjoy reasonable access to the roadway system. Id.
The question of whether Speedway's remaining means of access from its property to the public roadway is a reasonably posed question of law for the court to decide. Commonwealth, Department of Highways v. Rowland, 414 S.W.2d 880 (Ky. 1967). The court had the benefit of three affidavits in analyzing that question.
The evidence submitted by Speedway by way of affidavits tended to indicate: that it was less convenient for motorists to access the interstate from Speedway's premises; that opinions could differ with respect to the effect that the driveway closures could have upon public safety; and that the value of Speedway's business had been inversely impacted by the revocation of the encroachment permits. Given the evidence before it, we conclude that the trial court did not err by determining that Speedway retained reasonable access to the roadway even after the curb cuts were closed. The decision of the Transportation Cabinet to discontinue curb cuts from West 4th Street was a valid exercise of the state's police powers. Consequently, the trial court did not err by granting summary judgment to the Transportation Cabinet.
The motion of the Transportation Cabinet to strike Speedway's appellate brief was passed to this merits panel on July 11, 2016. Having carefully reviewed the material provided by both parties, we are not persuaded that striking the brief is necessary. As a result, we deny the motion.
The judgment of the Kenton Circuit Court is affirmed.
ORDER
We hereby deny the motion of the Transportation Cabinet to strike Speedway's brief.
ALL CONCUR. ENTERED: MAY 19, 2017
/s/ Sara W. Combs
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Steven C. Coffaro
Thomas Melvin Tepe, Jr.
Cincinnati, Ohio BRIEF FOR APPELLEE: Jeffrey C. Shipp
David Alen Schulenberg
Fort Mitchell, Kentucky