Opinion
C.A. No. N16C-01-189 CEB
10-31-2016
SPEEDWAY LLC, Plaintiff, v. STATE OF DELAWARE DEPARTMENT OF TRANSPORTATION and JENNIFER COHAN, Defendants.
Michael C. Heyden, Esquire, LAW OFFICES OF MICHAEL C. HEYDEN, Wilmington, Delaware; Michael C. Heyden, Jr., Esquire and Robert L. Ciociola, Esquire, LITCHFIELD CAVO, LLP, Philadelphia, Pennsylvania. Attorneys for Plaintiff. Gregory B. Williams, Esquire and Kasey H. DeSantis, Esquire, FOX ROTHSCHILD, LLP, Wilmington, Delaware. Attorneys for Defendants State of Delaware Department of Transportation and Jennifer Cohan.
MEMORANDUM OPINION
Upon Defendants Motion to Dismiss.
DENIED. Michael C. Heyden, Esquire, LAW OFFICES OF MICHAEL C. HEYDEN, Wilmington, Delaware; Michael C. Heyden, Jr., Esquire and Robert L. Ciociola, Esquire, LITCHFIELD CAVO, LLP, Philadelphia, Pennsylvania. Attorneys for Plaintiff. Gregory B. Williams, Esquire and Kasey H. DeSantis, Esquire, FOX ROTHSCHILD, LLP, Wilmington, Delaware. Attorneys for Defendants State of Delaware Department of Transportation and Jennifer Cohan. BUTLER, J.
FACTUAL AND PROCEDURAL HISTORY
Before the Court is a motion to dismiss a complaint brought by the Defendants, the State of Delaware Department of Transportation and Jennifer Cohan (collectively "DELDOT"). The complaint was filed by Plaintiff Speedway, LLC ("Speedway"), the successor to a gas station and convenience store previously owned by the Hess Oil Company along Kirkwood Highway, State Route 2. This property immediately abuts the Kirkwood Highway. The Delaware Department of Transportation is doing some road improvements on the Kirkwood Highway in the immediate environs of the gas station.
In order to do its road improvement work, DELDOT filed a condemnation action over a small - .0084 acres to be exact - portion of the Speedway property, and a motion for an Order granting DELDOT a "temporary construction easement." After briefing and argument, the Court granted that motion. C.A. No. 15-07-208 CEB in August, 2015. The underlying condemnation action has not moved since then.
On the other hand, Speedway has filed its own "inverse condemnation" lawsuit against DELDOT. While quizzical minds might ponder why such a dispute would not present as simply a counterclaim to the underlying condemnation suit filed by DELDOT, the parties are less interested in that than they are in whether Speedway has stated a claim cognizable in any format.
At the heart of Speedway's new complaint is an allegation that when DELDOT redesigned the roads around the Speedway gas station, DELDOT effectively dried up access to the gas station, causing Speedway financial loss that is compensable by way of condemnation. DELDOT has responded by urging the Court that private property owners along public roadways have no property interest in the configuration of the roads so long as there is some access to the public road, and has asked the Court to dismiss Speedway's complaint outright.
So we all understand what happened here: the Speedway gas station is located across from "Delaware Park Drive," the entry road to Delaware Park. A three way, "T" intersection on Kirkwood Highway gives travelers access to the Delaware Park access road on one side or the Speedway gas station on the other side by way of a controlled light intersection. The highway improvements effectively will turn the "T" intersection into an "L." Although travelers to and from Delaware Park will continue to be able to turn onto Delaware Park Drive from either east or westbound Kirkwood Highway, the Speedway station will lose its turn for travelers eastbound on Kirkwood Highway. Westbound travelers will continue to have direct access to the station, but will be expected to continue traveling westbound after refueling. Eastbound traffic wishing to use the Speedway station would have to continue to the next controlled intersection and presumably make a U turn, etc.
Speedway alleges that this reconfiguration is going to cause it to lose some 40% of its business and the station will no longer be able to function. It further argues that the configuration is going to wreak havoc on its refueling trucks that will lose some turning radius and finally, it will have to unearth underground storage tanks in order to make the property marketable as something other than a gas station. Speedway says that all this "taking" without compensation cannot abide and it brings suit in inverse condemnation.
STANDARD OF REVIEW
A motion to dismiss pursuant to Superior Court Rule 12(b)(6) will not be granted if the plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint. All well-pled allegations in the complaint must be accepted as true, and every reasonable factual inference will be drawn in favor of the plaintiff. Dismissal is appropriate where the plaintiff failed to plead facts supporting an element of the claim, or under no reasonable interpretation of the facts alleged could the complaint state a claim for which relief might be granted.
Martin v. Widener Univ. Sch. of Law, 1992 WL 153540, at *2 (Del. Super. Ct. June 4, 1992) (citing Spence v. Funk, 396 A.2d 967, 968 (Del. 1978)).
Id. (citing American Ins. Co. v. Material Transit, Inc., 446 A.2d 1101, 1102 (Del. Super. Ct. March 31, 1982)).
Master Mech. Inc. v. Shoal Constr., Inc., 2009 WL 1515591, at *1 (Del. Super. Ct. May 29, 2009).
Hedenberg v. Raber, 2004 WL 2191164, at *1 (Del. Super. Ct. Aug. 20, 2004).
ANALYSIS
The Court well appreciates the issue the parties seek to litigate. DELDOT wants the Court to conclude that mere changes in traffic patterns are not compensable in condemnation. Speedway asks the Court to consider permanent damage to its profitability as a result of the changes as "property rights" that must be paid for when "taken" by the State.
Both sides find support in the case of State ex rel. State Highway Dept. v. 14.69 Acres of Land, More or Less, in Brandywine Hundred, New Castle Cty., so a closer look at that case is instructive.
State ex rel. State Highway Dept. v. 14.69 Acres of Land, More or Less, in Brandywine Hundred, New Castle Cty., 226 A.2d 828 (Del. 1967).
Northern Delawareans are quite familiar with the Harvey Road exit on I-95 northbound. The state's "Highway Department" condemned land for the project and the landowner complained that the Department took more than it needed or would need in the "foreseeable future." The Supreme Court reversed summary judgment for the landowner, ruling that the future foreseeable use of the property was a decision that could only be made on a full record at trial. The Court also noted, however, that "Most, if not all, authorities concur in the general statement that an owner has a right of access to a public road or street which abuts his land...Deprivation of that right is held to be a taking which requires payment of compensation."
Id. at 831.
This is not, however, a case in which all access is being eliminated to Speedway's gas station. Access is being limited to some extent, but westbound traffic will have full access and eastbound traffic will have it, albeit with difficulty. So the question becomes: is the limitation (not the deprivation) of access caused by a reconfiguration of the public roadway a "taking" of private property rights that are compensable via condemnation? The 14.67 acres of land case can at best be described as a starting point for our inquiry.
We are directed to the Supreme Court decision in 489.137 Square Feet of Land v. State ex rel Price. That case involved the widening of Route 113 in Sussex County. The resultant curbing limited a car dealer's access to the roads, but did not eliminate access in any direction. The Court ruled that the owner was entitled to compensation only for land actually taken and was not entitled to damages in consideration of the limitation of access caused by the new curbing. The Court cited the Supreme Court of Iowa's decision in Iowa State Highway Commission v. Smith, with approval. The Smith case, in turn, dealt with highway improvements that limited access to a gas station from turning traffic. The Iowa Court ruled that a limitation on traffic turning across the highway in order to access the gas station was not a compensable injury to the property owner. Reasonable access remained to traffic traveling on the "gas station side" of the highway and traffic in the other direction could u turn to get access. From this, we might happily be on our way, assured that changes in traffic patterns that do not eliminate access are simply not compensable in condemnation. Were it all so simple.
489.137 Square Feet of Land v. State ex rel. Price, 259 A.2d 378 (Del. 1969).
Iowa St. Highway Comm. v. Smith, 82 N.W.2d 755 (Iowa 1957).
In Brandywine Transmission Services, Inc. v. Justice, the Superior Court granted DELDOT summary judgment in an inverse condemnation case in which Brandywine Transmission argued that when DELDOT built the I-495 interchange at the Governor Printz Boulevard, it negated the shop's previous direct access to the Boulevard. DELDOT had, however, built a new access road from the boulevard to the shop in order to give the shop continued access to commercial traffic. Superior Court rejected the transmission shop's claim, noting that "the undisputed facts presented here show that plaintiff has never been completely deprived of access to its property." While there had been a change of access, the shop continued to have "ample and reasonable access" and there was therefore no "taking" under the condemnation clause.
Brandywine Transmission Services, Inc. v. Justice, 1989 WL 89603 (Del. Super. Ct. June 21, 1989).
Id. at *3.
The Brandywine Transmission case above cites an oral opinion by the esteemed Judge Balick in Smythe v. State Highway Department and Greggo and Ferrara. Smythe involved a change in traffic patterns that reduced, but did not eliminate access. Judge Balick sided with the Highway Department that the change was not compensable, but said he "might envision cases where there was something short of a complete denial of access when compensation might be in order."
Id. (citing Smythe v. State Highway Department and Greggo & Ferrara, Del. Super. Ct., C.A. No. 1029, 1975, oral opinion, Balick, J. (March 21, 1978)).
Id.
Alas, the Delaware Supreme Court eliminated any bright line rule with respect to limitations of access due to traffic pattern changes. Despite the trial court's opinion that there was really no dispute as to any material fact, the Supreme Court reversed summary judgment in Brandywine Transmission, saying that the shop had introduced evidence of the impact of the road changes on its business and that there was therefore "sufficient dispute" as to the facts to have denied summary judgment.
The Supreme Court said "Highway construction that drastically alters the accessibility of a business establishment may impair business to such an extent as to require compensation. Nevertheless, tangential impairments of a business' profitability, such as those that might arise from a mere change of traffic patterns, may not rise to the level of a taking." Where the proverbial line gets drawn between "drastic alteration" in accessibility and "tangential impairment" of profitability is "closely tied to the factual circumstances giving rise to the claim."
Brandywine Transmission Service, Inc. v. Justice, 1990 WL 72591, at*1 (Del. 1990).
Id.
The Court is dubious that Speedway has a claim here. The alteration in traffic patterns did not eliminate its access to highway traffic, but did limit it in some respects. Speedway makes further claims about accessibility by its delivery trucks and overall profitability of its continuing enterprise, but those claims are not well developed at this stage of the proceedings. The Court's concern here and now is the limited scope of review on a motion to dismiss: dismissal should be granted only when there is no conceivable set of circumstances plaintiff could develop that would entitle plaintiff to relief. The Court has no difficulty revisiting DELDOT's arguments when the record has been fleshed out through discovery, but given our task at this stage of the pleadings, the Court is unwilling to close the courthouse door on Speedway without access to discovery.
Spence, 396 A.2d at 968. See also Diamond State Tel. Co. v. University of Del., 259 A.2d 52, 58 (Del. 1970). --------
For the reasons stated, DELDOT's motion to dismiss is DENIED.
/s/_________
Judge Charles E. Butler