Dremonas, George

Steiner, David

English

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4/30/20091To Break or Not to BreakLegal Update: Compensation for Loss of Access95th Annual Purdue Road School George Dremonas, Managing Attorney, Indiana Department of TransportationDavid Steiner, Deputy Attorney General, Indiana Attorney GeneralMarch 11, 20091Access management is the controland regulation of spacing and design features of transportation systems.? Median Strips ? One way streets? Permit denial? Reduction of # access point? Change width of access point? Change location of access point? Re-route/divert traffic? Use/install traffic control devicesR t i t t? es r c  urns? Install guardrail/curb? Restrict size, weight, speed on street? Construction of elevated highway past a property? Replace access on highway with access on a local road ? Change of grade24/30/20092Benefits of Access Management? Roadway safety.“This court takes judicial notice of the ever increasing problems of traffic control with which a thriving metropolitan area is confronted. The creation of such facilities such as limited access highways, one-way streets, express thoroughfares, and other methods of construction such as that involved in the present case, is to be encouraged in the interest of traffic control and regulation to the end that the general welfare and safety of the public may best be served.”  State v. Cheris, 1972.? Economic  ? Environmental? System preservation? Traffic operations? Aesthetic? Others:  minimize project delay (take steps to minimize it) and opportunity to help educate the public--Don’t just say “Loss of access is not compensable.”  Tell them why:  “Society has made policy choices—safety/progress/development and minimize monetary burdens on governments.”What Happens If You Don’t Manage Access?4/30/20093Interested in Further Reading?? More information on access management     available at: http://www.in.gov/indot/5614.htmIndiana CasesAnalysis:  Is it a Taking of  Property Interest?Police Power v. Ingress/Egress? No--Police Power Theory:  Agencies win access management cases when the decision is based on police powers.  Exercise of police power to regulate traffic flow is not a taking.  The theory is that property owners are not entitled to free flow of traffic in front of their property.  Rationale:  Everyone suffers and DOT’s could never build highways.  ? Yes--Ingress/Egress:  Property owners may be owed compensation if agencies substantially or materially interfere with ingress/egress of their property.  Example:  Although most vehicles could still reach a business, compensation was due when supply trucks were effectively cut off from delivering goods.       64/30/20094Police PowersState v. Kimco (You don’t want to miss this!)? 3.2M judgment against the State in 2000.  Combination of 3 issues = liability:  (1) Median; (2) Reconfigured shopping center entrances; and (3) White line (acceleration lane) on the pavement.  ? Indiana Court of Appeals Upholds Trial Court in 2007        ? Indiana Supreme Rules in Favor of State Just Last Week7Kimco Aerial View84/30/20095KimcoNorth Entrance facing west  (Note break in median)9KimcoNorth Entrance facing Northeast   (Break in median.)104/30/20096KimcoNorth Entrance facing East  (Another view) 11Kimco No Left Turn Into Kimco’s  South Entrance from Green River Road124/30/20097KimcoSouth Entrance Facing South (Note White Divider Strip)13KimcoSouth Entrance facing North144/30/20098Police Powers? State v. Ensley (1960) ? Construction of median strip on Keystone Ave. south of 62nd Street blocked northbound Keystone traffic from turning directly into the recreation center business.  I t d thb d t h d t ti t 62nd Stns ea , nor oun  pa rons a  o con nue o ., make a left turn and drive west approximately ½ block and enter the business through another entrance. 15164/30/20099Police Powers cont.? Papp v. City of Hammond (1967).  Elements of an ingress/egress claim, but . . . .  ? General public interest in road improvement o t eighs tempo a incon enience to gasu w  r ry v    station (intermittent impassibility of road for over 1-year.)17184/30/200910Police Powers cont.St t Ch i (1972)? a e v. er s ? Construction of median strip required landowner to travel a circuitous route of 1 and ½ miles to reach property.  19204/30/200911Police Powers cont.? Jenkins v. Madison Co. (1998)? Loss of 17% of total road frontage was not a substantial and material interference      with ingress/egress.21224/30/200912Police Powers cont.? Bussing v. INDOT (2002)? Median eliminates left hand turns into apartment complex.  Apartments could be accessed by l i l di h h ba ternate routes, nc u ng t roug  a near y protected U turn and through circuitious route through city streets.23244/30/200913Police Powers cont.? Old Romney Development v. INDOT and Tippecanoe Co. (2004)? 231/300 South Intersection Closed. Landowner never       had direct access to 231.  Access became more circuitous via 3.2 mile path. 25264/30/20091427284/30/200915Police Powers cont.? State v. Dunn (2008)? Installation of median strip eliminated right-hand turns onto a service road      leading to a hotel was not  compensable.   29304/30/200916Police Powers?? Biddle v BAA Indianapolis (2007) .   ? Airplane noiseLoss of All Productive Use??     ? May not apply to road cases, generally.  But, what about construction at night?  31Ingress/EgressState May Owe $$? State v. Geiger (1964)? Compensation due where construction of an expressway cut off ingress/egress to      and from a highway abutting one side of the landowner’s property. 4/30/200917Ingress/Egress cont.? State v. Toliver (1965)Bridge load (Completely cut off steel?       -related business.)  33Ingress/Egress cont.? State v Hastings (1965) .  ? Landowner’s rights to ingress/egress completely  severed where State bulldozed entrances which had been constructed by landowners and erected a fence thereby      forcing landowner’s to construct a new access route to a business. 4/30/200918Ingress/Egress cont.? State v Diamond Lanes (1968) .   ? Primary access point for customers of bowling alley completely eliminated and customers compelled to travel circuitous     route to other entrances along limited access route.Other SituationsState May Owe $$Watch the farm implements!364/30/200919Other States? Cases are generally not useful because      decisions are based on state law.  ? But, our courts may look to other states for guidance, especially if Indiana has      never addressed a legal issue.Practical Tips? Think critically and creatively e.g., give a hard look at alternative designs (Kimco)? Put Yourself in Their Shoes? Ask questions e.g., If the plans call for taking a relatively small amount of property, carefully review designs for modifications to eliminate the taking.   ? Keenly observe surroundings.  (When walking the job site or affected area always be on your best game like a surgeon in the operating room, a batter waiting to receive the pitch etc.) (Farm implements)? Never assume? Always be professional? Develop a sense of curiosity? Be extra careful with public announcements.  (Don’t announce something unless you mean it!)? Anticipate issues and do your homework.  If you think a local road provides reasonable access, have you completely analyzed the situation? ? Are there any local, state restrictions? ? Can the suppliers/customers reach the property e.g. will the road support truck loads? (Toliver)? Meetings—think/watch invite list.  Someone who shouldn’t attend?  How do you throw them out?? Email—don’t want it to be Exhibit A in the lawsuit.  Not privileged.  Never put in email (or any other writing something you wouldn’t want to appear on the front page of paper.  Also, no forwarding attorney emails.    384/30/200920If Problems? Immediately contact your management   ? Work with the legal department, land acquisition and others? Present solutions, not create more problems? Consider building a model to support your case (mainly used in litigation)39Questions?40

To Break or Not to Break

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To Break or Not to Break

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