FAITH MALPELI, Plaintiff and Appellant, v. STATE OF MONTANA, Defendant, Appellee, and Cross-Appellant.
No. DA 11-0593.
Supreme Court of Montana
Decided August 21, 2012.
Rehearing Denied September 18, 2012.
2012 MT 181 | 366 Mont. 69 | 285 P.3d 509
Submitted on Briefs June 6, 2012.
For Appellee: David Lee Ohler, Jolyn E. Eggart; Special Assistant Attorneys General, Montana Department of Transportation; Helena.
JUSTICE BAKER delivered the Opinion of the Court.
¶1 Faith Malpeli brought an inverse condemnation action against the Montana Department of Transportation (MDT), seeking compensation for the alleged taking of her property as a result of the reconstruction of Montana Highway 191 near Big Sky, Montana during a highway safety improvement project. A jury found that MDT had not taken a property right belonging to Malpeli, and therefore did not reach the question of compensation. Malpeli appeals, arguing that the District Court erred by (a) denying Malpeli‘s motions for judgment as a matter of law or a new trial; (b) excluding Malpeli‘s appraiser from testifying; and (c) allowing MDT to disclose to the jury an offer of compromise it had made to Malpeli before this action was filed. MDT cross-appeals, arguing that the District Court erred by denying its motion for partial summary judgment before trial. After careful consideration, we determine that the motion for summary judgment should have been granted, and therefore affirm the judgment in favor of MDT.
¶2 The issue that we address on appeal is the following:
¶3 Did the District Court err in denying MDT‘s motion for summary judgment regarding Malpeli‘s claim that MDT took from her the right of reasonable access to her property?
¶4 Because we conclude that the District Court erred in denying summary judgment on this issue, we do not address Malpeli‘s claims of trial error.
PROCEDURAL AND FACTUAL BACKGROUND
¶5 Malpeli owns residential property adjacent to Montana Highway 191. MDT is the state agency responsible for operating and maintaining public highway facilities, including rights-of-way, embankments, drainage structures, bridges, guardrails, and other protective structures, to ensure the safe, efficient use of the highways. See
¶6 In the summer and fall of 2008 and 2009, MDT reconstructed the portion of Highway 191 adjacent to Malpeli‘s residence as part of a highway safety improvement project. The MDT reconstruction of Highway 191 involved widening the highway to include a left-turn lane and adding eight-foot-wide
¶7 Malpeli‘s property includes a driveway from Highway 191 to her garage. Part of Malpeli‘s garage is located just one foot from the highway right-of-way. After the project was completed, the highway fog line and the edge of the pavement were as much as eight feet (the fog line) to nearly eighteen feet (the edge of the pavement) closer to part of Malpeli‘s garage than they had been before the project. In addition, Malpeli‘s approach from the highway to her property had been paved, the grade had been reduced, and a guardrail had been added on the south side of the approach.
¶8 On January 29, 2010, Malpeli filed this lawsuit, alleging that MDT, in carrying out the reconstruction project, had, among other claims, (a) “taken from plaintiff MALPELI reasonable and safe access to her residential property to and from Highway 191;” and (b) “violated its own MDT ‘approach standards’ in the reconstruction of the highway.”1 The crux of Malpeli‘s complaint about access to her property was described in later pleadings: “Before the widening of Highway 191, FAITH MALPELI could maneuver her vehicles to turn them around and face the approach to Highway 191. Since the widening, she cannot. She, her guests and delivery vehicles now must back out onto the highway or back out onto the paved shoulder ....”
¶9 Following discovery, MDT filed a motion for summary judgment, arguing that Malpeli did not have a property interest in use of the public right-of-way for maneuvering vehicles, and that using the public right-of-way in such a manner was unrelated to any right of access that a landowner might possess. Malpeli opposed the motion.
¶10 The District Court denied MDT‘s motion for summary judgment, concluding that Malpeli has a property interest in “reasonable ingress and egress” to and from her property, and that the question whether the reconstruction of Highway 191 constitutes a taking of this property interest is a question of fact.
STANDARD OF REVIEW
¶11 We review de novo a district court‘s decision on a motion for summary judgment, using the same criteria applied by the district court under
¶12 In order to defeat a motion for summary judgment properly made and supported, the opposing party must set out specific facts showing a genuine issue for trial by affidavits or as otherwise provided by
DISCUSSION
¶13 Did the District Court err in denying MDT‘s motion for summary judgment regarding Malpeli‘s claim that MDT took from her the right of reasonable access to her property?
¶14 Malpeli‘s inverse condemnation claim is based on
¶15 Property interests are defined by rules or understandings that stem from an independent source such as state law. Kafka, ¶ 33 (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001, 104 S. Ct. 2862, 2872 (1984)). The determination whether a citizen has a protected property interest focuses on the citizen‘s relationship to the alleged property, such as whether the citizen had the rights to exclude, use, transfer, or dispose of the property. Kafka, ¶ 33 (quoting Members of the Peanut Quota Holders Assn. Inc. v. United States, 421 F.3d 1323, 1330 (Fed. Cir. 2005)).
¶16 The undisputed facts of this case show that Malpeli could still enter and exit her property after the Highway 191 project was completed, but that it was more difficult for her to turn a vehicle around, because MDT had used much of the highway right-of-way where she previously had turned around to widen the highway and add shoulders. At Malpeli‘s deposition, which was among the discovery materials filed in connection with the summary judgment motion, she explained that her “right of access” claim involved only the “danger” of “pulling in and out” of her driveway, specifically her concern that she could only back onto the highway or paved shoulder. The real question presented by the motion for summary judgment, therefore, was whether Malpeli had a compensable property interest in the use of the public‘s right-of-way to turn her vehicles around.
¶17 In denying MDT‘s motion for summary judgment, the District Court relied on this Court‘s holding in State by State Highway Comm‘n v. Keneally, 142 Mont. 256, 384 P.2d 770 (1963). The parties in Keneally recognized that an abutting landowner has a right to ”reasonable ingress and egress from the abutting highway.” Keneally, 142 Mont. at 265, 384 P.2d at 775 (emphasis in original); see Wynia v. City of Great Falls, 183 Mont. 458, 472, 600 P.2d 802, 810 (1979) (quoting Bacich v. Board of Control, 144 P.2d 818, 834 (Cal. 1943) (Traynor, J., dissenting)) (“the right of ingress and egress is limited to adequate and reasonable access to the property from the street“).
¶18 The Keneally Court stated: ” ‘No hard and fast rule can be stated as to whether an abutting property owner has been denied access that is reasonable .... In most instances the question is one of fact, not of law, and its determination depends largely upon the evidence in the particular case.’ ” Keneally, 142 Mont. at 265, 384 P.2d at 775 (emphasis added) (quoting Iowa State Highway Comm‘n v. Smith, 82 N.W.2d 755, 760 (Iowa 1957)). This statement was made in a far different context from that presented by Malpeli‘s case, however, and for the reasons that follow we conclude it is not applicable here.
¶19 Keneally was a condemnation action in which the State had taken a portion of the private property on which a service station was located in order to build a new, wider highway. Keneally, 142 Mont. at 258-59, 384 P.2d at 771-72. There was no question, therefore, that the State had taken a compensable property interest, and the only issue at trial was the amount of compensation to be awarded the service station owner. Keneally, 142 Mont. at 259-60, 384 P.2d at 772. The facts were that prior to the highway project, patrons could enter the property at any point along the 300-foot frontage, but after the project, entry was limited to one specially constructed approach along the highway, and a new median divider prevented direct left-hand turns into the service station from the highway. Keneally, 142 Mont. at 259, 384 P.2d at 772. The facts of Keneally did not involve use of the highway right-of-way to turn vehicles around.
¶21 We look to rules or understandings stemming from state law to determine the extent of Malpeli‘s property interests as an abutting landowner. Kafka, ¶ 33. MDT has adopted regulations that govern access to highways.
¶22 The regulations provide instructions for an abutting landowner to obtain a permit to construct or reconstruct an approach to a public highway (
¶23 Among the design requirements are the following: ”Sufficient storage area off the highway right-of-way shall be provided by the landowner to prevent the servicing, stopping and storing of vehicles on the approach and to prevent a vehicle from backing out of an approach onto the traveled way.”
¶24 As noted above, determining whether a “property interest” exists for Takings Clause purposes requires analysis of “the group of rights inhering in the citizen‘s relation to the physical thing, as the right to possess, use and dispose of it.” Kafka, ¶ 168 (Nelson, J., dissenting) (quoting PruneYard Shopping Center v. Robins, 447 U.S. 74, 82 n. 6, 100 S. Ct. 2035, 2041 n. 6 (1980)). This Court and others have held, based on the facts presented, that government-issued permits or licenses to use property in a certain manner are not compensable property interests. See e.g. Kafka, ¶ 41 (noting that “[c]ourts ... have taken a dim view of the notion that government-issued licenses are compensable property interests,” and citing cases involving grazing permits, fishing licenses, and licenses to operate lottery machines); Kafka, ¶ 54 (alternative game farm licenses are not compensable property interests). Malpeli‘s case for a compensable property interest is even weaker than that of a licensee or permit-holder, as she did not have government license to use the highway right-of-way as she did; she did not even have an approach permit for her driveway. Although she had—and still does have—a right to access her property across the right-of-way, Malpeli had no ownership interest in the right-of-way, no right to exclusive use of the right-of-way, no ability to exclude others from the right-of-way, and no right to transfer or dispose of any interest in the right-of-way.
¶25 The uncontested facts presented to the District Court in connection with the motion for summary judgment were that part of Malpeli‘s garage was located just one foot from the right-of-way, and that the area that Malpeli previously had used for maneuvering her vehicles was located on the right-of-way. As a matter of law, she cannot claim that MDT denied her access to her property, because she had no property interest in the use of the public right-of-way to turn her vehicles around.
¶26 Malpeli emphasizes in her brief that she is entitled not just to access, but to “safe and reasonable access.” She claims that she is entitled to compensation because the widening of the highway rendered her access “unsafe and inconvenient, in that she must now back out on the highway.” Malpeli has cited no authority for her argument. A similar claim was rejected in the case of In re Condemnation by the DOT, 827 A.2d 544 (Pa. Commw. 2003). There, the Pennsylvania Commonwealth Court denied the claim of an abutting landowner who sought compensation on the grounds that a road expansion entirely within the public right-of-way had eliminated a gravel shoulder that he previously had used to back trailers into his garage and look around his building to check for oncoming traffic. Distinguishing a case in which a family‘s access to their residence had been physically restricted when the Pennsylvania Department of Transportation dumped stone onto their driveway, the court held:
That Landowner previously made special use of the shoulder in the public right-of-way to overcome dimensional and sight distance limitations on his property does not raise an enforceable expectation that this bare license will continue.... Simply put, Landowner did not prove a basis to be compensated for loss of special use of PennDOT property.
827 A.2d at 548 (citation omitted).
¶27 In Malpeli‘s case, she previously had made special use of the unpaved shoulder in the public right-of-way to overcome the problems caused by the location of her garage and her failure to provide ”[s]ufficient storage area off the highway right-of-way ... to prevent a vehicle from backing out of an approach onto the traveled way.”
¶28 For the same reasons, we determine that the District Court correctly denied Malpeli‘s motions for judgment as a matter of law or for a new trial under
CONCLUSION
¶29 Because MDT was entitled to summary judgment as a matter of law, we will not address Malpeli‘s claims of trial error in the admission of evidence.
¶30 The judgment in favor of MDT is affirmed.
CHIEF JUSTICE MCGRATH, JUSTICES RICE, WHEAT and MORRIS concur.