Norton v. City of Hickman ( 2017 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
NORTON V. CITY OF HICKMAN
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
RICHARD A. NORTON, JR., AND CONNIE J. NORTON,
HUSBAND AND WIFE, APPELLANTS,
V.
CITY OF HICKMAN, NEBRASKA, APPELLEE.
Filed July 25, 2017. No. A-16-085.
Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Reversed
and remanded for further proceedings.
Donald J. Pepperl, P.C., L.L.O., for appellants.
Kelly R. Hoffschneider, of Mattson Ricketts Law Firm, for appellee.
MOORE, Chief Judge, and INBODY and RIEDMANN, Judges.
INBODY, Judge.
INTRODUCTION
Richard A. Norton, Jr., and Connie J. Norton (the Nortons) appeal the order of the
Lancaster County District Court granting summary judgment in favor of the City of Hickman and
dismissing the Nortons’ inverse condemnation action. For the reasons that follow, we reverse the
order granting the City’s motion for summary judgment and remand the cause for further
proceedings.
STATEMENT OF FACTS
Our statement of facts is taken from the statement of facts contained in the district court’s
order which provided as follows:
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On or about August 26, 2005, the Nortons took title to the real property that is the
subject matter of this lawsuit (“the Norton Property”) by virtue of a Warranty Deed
recorded as Instrument No. 2005050052 in the Office of the Register of Deeds of Lancaster
County. . . . The Norton Property consists of four tracts of land generally located west of
the intersection of Fifth Street and Cedar Street and south of Sixth Street Court in southwest
Hickman. . . . The Norton Property has been located in the 100-year floodplain as
determined by the Federal Emergency Management Agency (“FEMA”) at all times during
the Nortons’ ownership of the Norton Property. . . .
On September 20, 2005, after appropriate notice was published and posted, the City
of Hickman Planning Commission recommended approval for a Preliminary Plat for a
subdivision located adjacent to and north of the Norton Property known as the Villas at the
Village located on both sides of West Sixth Street Court. . . . After appropriate notice was
published and posted, the City of Hickman City Council on October 11, 2005, approved
the Preliminary Plat for the Villas at the Village subdivision. . . .
After appropriate notice was published and posted, the City of Hickman City
Council on December 13, 2005, approved Ordinance No. 2005-30 creating Street
Improvement District No. 2005-1 for the paving, grading, curbing and guttering, drainage
and storm sewer, and incidental work for Cedar Street from Hickman Road to Sixth Street
and Sixth Street Court from Cedar Street west approximately 450 feet to the end of Sixth
Street Court adjacent to the Villas at the Village subdivision. . . . After appropriate notice
was published and posted, the City of Hickman City Council on December 27, 2005,
adopted Ordinance No. 2005-31 and approved the Final Plat for the Villas at the Village
subdivision. . . . Grading and paving for the Villas at the Village subdivision was completed
in 2006. . . .
As part of the paving project for the Villas at the Village subdivision, an elevated
sidewalk was constructed just west of the Sixth Street Court cul-de-sac near the far
northwest corner of the Norton Property over a drainway or swale flowing northwesterly
through the Norton Property. The elevated sidewalk formed a dam and the City of Hickman
placed an 18-inch culvert at the bottom of the dam. . . . Additionally, as part of the Villas
at the Village paving project, the intersection at Sixth and Cedar Streets was reconstructed
to include a north to south cross-gutter that directed the flow of runoff from 0.51 acres on
the west side of Cedar Street south along Cedar Street with the water being discharged into
the unnamed drainage channel at the intersection of Fifth and Cedar Streets. . . . Prior to
this reconstruction, that flow would have continued in a westerly direction along Sixth
Street. . . . .
On December 8, 2009, after appropriate notice was published and posted, the City
of Hickman City Council approved Ordinance [No.] 2009-20, creating Street Improvement
Project No. 2009-2, which paved Fifth Street from Cedar Street to Maple Street and Cedar
Street from Fifth Street to Sixth Street; adjacent and to the east of the Norton Property. . . .
Street Improvement District No. 2005-1 and Street Improvement Project No. 2009-2 are
hereinafter collectively referred to as “the Projects.” Based upon the City of Hickman
Project Engineer’s records, completion of Street Improvement Project No. 2009-2 was in
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October of 2010. . . . As part of Street Improvement Project No. 2009-2, a concrete flume
was placed in Fifth Street west of Cedar Street in the public right-of-way, and both Cedar
and Fifth Streets were paved with concrete curbs and no storm gutters. . . .
Prior to the City of Hickman’s Street Improvement Project No. 2009-2, Cedar and
Fifth Streets were asphalt and gravel with grader ditches and culverts on each side. . . . The
Nortons previously had two culverts with drives accessing their lots north of Fifth Street
and abutting Cedar Street. As a result of Street Improvement Project No. 2009-2, these two
culverts and drives were removed and replaced with a concrete curb. . . .The Nortons also
had two culverts with drives accessing their lots north of Fifth Street and west of Cedar
Street. As part of Street Improvement Project No. 2009-2, these two culverts and drives
were removed and replaced with the concrete flume and a drainway flowing west. . . . Also,
as a part of the Street Improvement Project No. 2009-2, the culvert abutting Cedar Street
south of Fifth Street was removed and replaced with a concrete curb. . . .
On or about June 26, 2012, the Nortons were sent via certified mail a Notice of
Hearing on Special Assessments for Street Improvement Project No. 2009-2 along with a
list of assessed values and a map of Street Improvement Project No. 2009-2. Richard
Norton accepted the certified mail on July 2, 2012. . . .
The Projects were all located within the FEMA designated 100-year floodplain. . . .
The Projects and the Norton Property all have a Base Flood Elevation (“BFE”) of 1,244
feet, which is the elevation associated with a 100-year flood or a flood with a one percent
chance of occurrence in any given year. . . . During a 100-year storm event for the Hickman
Branch of Salt Creek, the Norton Property and the area located in the Projects will be
inundated below the BFE of 1,244 feet. . . . Any development of property located in the
FEMA designated 100-year floodplain (including the Norton Property) requires fill of the
property to elevate the ground around any proposed structure to the Hickman Branch BFE.
Any structures must be constructed with the lowest finished floor elevation at least one
foot above the Hickman Branch Base Flood Elevation in order to comply with local
floodplain regulations. . . .
On November 9, 2012, the Nortons first commenced their inverse condemnation
action against the City of Hickman through the filing of their Petition for Appointment of
Appraisers before the County Court of Lancaster County, Nebraska. . . . On December 12,
2012, the Appraisers appointed by the County Court of Lancaster County, Nebraska met
as required by Nebraska law. . . . On December 12, 2012, the Appraisers carefully inspected
and viewed the real estate alleged to be damaged as described in the Petition for
Appointment of Appraisers, and heard all parties interested therein to the amount of
damages while inspecting and viewing the Norton Property. . . . On December 12, 2012,
the Appraisers found and assessed $0.00 in damages suffered by the Nortons by reason of
the actions of the City of Hickman. . . . On January 15, 2013, the Nortons filed their Petition
on Appeal with [the district] court.
On September 25, 2014, Thomas W. Kubert and Jason L. Pickerel of Great Plains
Appraisal, Inc. inspected the Norton Property on behalf of the City of Hickman and
subsequently prepared an Appraisal to determine the value of the Norton Property before
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commencement of the Projects and after completion of the Projects using an effective date
of appraisal of October 1, 2010. . . . The appraisal from Great Plains Appraisal, Inc.
confirmed that the Projects did increase backwater levels and drainage time of the pooling
of water on the Norton Property. . . . The appraisal went on to find that additional flooding
or pooling of the Norton Property only affects the interim use of the Norton Property and
not the highest and best use of the Norton Property as a single family residence
development. . . . It is undisputed that the Base Flood Elevation did not change as a result
of the Projects, nor did the amount of potential fill dirt required for the Norton Property
change as a result of the Projects. . . . It is also undisputed that the Projects did not further
restrict or inhibit potential development within the Projects beyond the legal restrictions
related to the 100-year FEMA floodplain. . . .
On October 18, 2014, the Nortons filed an Amended Petition. On January 6, 2015,
the City filed its Motion for Summary Judgment. On May 1, 2015, the Nortons filed a Third
Amended Petition on Appeal. Hearing was held on the City of Hickman’s Motion for
Summary Judgment on July 28, 2015. Subsequently on August 25, 2015, the City of
Hickman filed its Answer to the Third Amended Petition.
In support of its motion of summary judgment, the City of Hickman provided the affidavit
of Thomas Kubert, a certified general appraiser. Kubert inspected and completed a retrospective
appraisal of the Norton Property. Based on his review, Kubert stated the Norton Property is 100
percent in the FEMA established floodplain and, during a 100-year storm event, the Norton
Property would be inundated below the base flood elevation of 1,244 feet.
Kubert stated that in preparing his appraisal, he considered access to the Norton Property
before and after the two street improvement projects. Kubert also stated that adequate access exists
for the parcel’s present interim use as a green space for the North, West, and East tracts; and that
the paved concrete roads improved access for the East tracts with general benefits to the West and
South tracts. However, regarding the West and South tracts of land, Kubert opined that access
could be provided through an easement or an agreement with an adjacent tract, but noted that such
easement or agreements are speculative. The North tract was limited before and after the
improvement projects because of a sewer and pedestrian easement. The West tract has limited
access and visibility because of the right-of-way street which is not paved with concrete or gravel
paving, but the installation of the concrete flume did not influence Kubert’s street analysis, as the
City could provide access if the parcel is developed. The East tract has always had access and curb
cuts could be provided by the City if the parcel is developed. The South tract access was limited
prior to the street improvement projects. Kubert also noted that as Fifth Street “continues to be a
legal [80] foot public platted street which can be used for access upon development of the parcel,
the installation of the concrete flume has no significance to the analysis of the before and after
value of the parcel.”
In Kubert’s appraisal, before and after the alleged taking of the Norton Property, the value
of the Norton Property remained at $39,710 with $0 as a final estimated amount of damages.
Kubert determined that additional flooding or pooling of the Norton Property only affects the
interim use of the property, but not the highest and best use of the Norton Property as a single
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family residence development. Kubert also found that the base flood elevation of the Norton
Property did not change as a result of the street improvement projects, and that the potential fill
dirt required for the Norton Property did not change as a result of the street improvement projects,
meaning that there were no restrictions to potential development for the Norton Property.
The City also provided the affidavit of Carter Hubbard, a licensed professional engineer,
in support of its motion for summary judgment. Hubbard conducted a hydraulic and hydrologic
analysis near the Norton Property to determine the effect of the street improvement projects.
Hubbard stated that the 2010 project improved drainage as it directed roadside ditches surface
runoff to roadside curbs and caused surface runoff to be directed to the concrete flume, reducing
ponding of the paved road. Hubbard also said that the flow patterns along Cedar Street and Fifth
and Sixth Streets did not change substantially as a result of the street improvement projects.
Additionally, Hubbard stated that as a result of the Norton property being in the FEMA 100-year
flood plain area, any development of the Norton Property requires property fill to elevate the
ground around any proposed structure, with the lowest furnished floor elevation at least one foot
above the base flood elevation to comply with local floodplain regulations. Hubbard opined that
the City did not intentionally cause damage to the Norton property and could not have foreseen
any damage to occur.
The project engineer for the 2010 street improvement project, Brian Chaffin, also provided
an affidavit in support of the City’s motion for summary judgment. Chaffin indicated that the
project was designed using customary engineering standards and that any change in the drainage
as a result of the project was negligible and did not have any effect on the Norton Property.
Richard Norton, in an affidavit, claimed that following the 2006 project, he saw a
substantial increase in the water runoff on his property, and following his review of the plans for
the second improvement project, he expressed his concerns that the project would create severe
flooding and access problems for his property. Richard also claimed the second project removed
multiple access drives to his property. Moreover, Richard contended that he needed to construct a
bridge over the drainway to access two of his lots and that he requested the City grant him an
access and maintenance easement, but the City has refused to do so. In a second affidavit, Richard
stated that the highest and best use of the Norton Property is residential development. Richard also
opined that if the street improvement projects had not taken place, the Norton Property would have
been valued at $145,000, but that as a result of the projects, the fair market value of the Norton
Property was $0.
The Nortons also provided the affidavit of Richard Danek, a licensed real estate appraiser.
Danek stated that the street improvement projects damaged the Norton Property as it increased
flooding, and that the damages occur “irrespective of whether the increased flooding occurs
outside the 100[-]year floodplain elevation[.]” Danek claims that it was foreseeable that the street
improvement projects would create access and flooding problems and that vacant lots, or green
space, have economic value and are damaged by flooding. In his appraisal, Danek indicated that
the highest and best use of the property prior to the City’s projects was residential development
with a fair market value of $105,000; but that the lots now have $0 value as a result of the projects.
In a similar affidavit, Lyle Loth, a professional engineer, opined the foreseeability that the
street improvement projects would create access and flooding problems. Loth estimated that
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velocity at Cedar Street’s upper end would increase from two feet per second to five feet per second
and Cedar Street’s lower end would increase from one feet per second to three feet per second.
Specifically, Loth stated that the end results of the projects has caused “the flow of nearly 800
gallons per minute [to be] redirected from its original flow path”, that it “could cause temporary
flooding west of the [Fifth] and Cedar Street intersection”, and that the “periodic flooding and the
development of an eroded channel west of the flume has created challenges for the Nortons to
access their property.”
The Nortons also provided the affidavit of Jane Summers, a real estate agent, who claimed
that the Norton Property was extensively damaged as a result of the street improvement projects
because they “speed the drainage, dam the drain way, and obstruct or eliminate access, [and] as a
minimum, extensively damage the Nortons’ property.”
In the affidavit of Colleen Norton, she claims that in May 2015, the Norton Property was
“inundated in floodwaters” and that “the floodwaters had crossed over the walkway that connects
the cul-de-sac on Sixth Street and the bike path to the West.”
The district court determined that the Nortons failed to present evidence showing the
existence of a genuine issue of material fact that the damage to the Norton Property was a
foreseeable result of the street improvement projects to constitute inverse condemnation. The
district court determined that the evidence established that there was no damage to the Norton
Property as a result of the City of Hickman’s projects. The district court determined that the
evidence presented showed that the Norton Property has been used as a vacant green space since
completing the street improvement projects and that the City has not denied the Nortons access to
the property by paving the abutting streets, installing concrete curbs, or installing a concrete flume
in a public right of way. Consequently, the district court determined that any claim that they were
denied access was not ripe because the Nortons have not yet sought to develop the property. The
district court also referenced the award of zero damages by the county court appraisers.
It is from that order that the Nortons have timely appealed to this court.
ASSIGNMENTS OF ERROR
The Nortons’ assignments of error, consolidated and restated, are that the district court
erred (1) in determining the street improvement projects did not cause an intentional or foreseeable
impairment of their right of access to the Norton Property and an increase in flooding and (2) in
considering as evidence the award of zero damages by the county court appraisers.
STANDARD OF REVIEW
An appellate court will affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any material facts or as to the
ultimate inferences that may be drawn from those facts and that the moving party is entitled to
judgment as a matter of law. Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d 878 (2016). In
reviewing a summary judgment, an appellate court views the evidence in the light most favorable
to the party against whom the judgment was granted and gives that party the benefit of all
reasonable inferences deducible from the evidence. Id.
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ANALYSIS
INVERSE CONDEMNATION
The Nortons contend that the district court erred in determining the street improvement
projects did not proximately cause material impairment of their access rights to the Norton
Property. The Nortons claim it was foreseeable to contemplate loss of access damages because the
street improvement project designs planned for the removal of culverts and drives to access the
Norton Property. The Nortons additionally contend the district court erred in finding that the street
improvement projects did not proximately cause an impermissible increase in flooding that was
intentional or foreseeable because the street improvement projects altered, diverted, increased, and
sped up storm water flow. The Nortons claim that the street improvement projects resulted in
increased flooding as a result of the surface water runoffs direction flow being altered, increasing
the flow along the paved streets with concrete curbs to the concrete flume abutting the Norton
Property, and increasing the surface water runoff because of the placement of an inadequate culvert
downstream.
Summary judgment is proper if the pleadings and admissible evidence offered at the
hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences
that may be drawn from those facts and that the moving party is entitled to judgment as a matter
of law. Harris v. O’Connor, 287 Neb. 182, 842 N.W.2d 50 (2014). Summary judgment
proceedings do not resolve factual issues, but, instead, determine whether there is a material issue
of fact in dispute. Peterson v. Homesite Indemnity Co., 287 Neb. 48, 840 N.W.2d 885 (2013). If a
genuine issue of fact exists, summary judgment may not properly be entered. Id.
The party moving for summary judgment has the burden to show that no genuine issue of
material fact exists and must produce sufficient evidence to demonstrate that the moving party is
entitled to judgment as a matter of law. Id. After the movant for summary judgment makes a prima
facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if
the evidence was uncontroverted at trial, the burden to produce evidence showing the existence of
a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the
motion. Id. In the summary judgment context, a fact is material only if it would affect the outcome
of the case. Id.
“The property of no person shall be taken or damaged for public use without just
compensation therefor.” Neb. Const. art. I, § 21. The initial question in an inverse condemnation
action is whether the government entity’s actions constituted a taking or damage of property for
public use. Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 (2013). “In order to
meet the initial threshold in an inverse condemnation case that the property has been taken or
damages ‘for public use,’ it must be shown that there was an invasion of property rights that was
intended or was the foreseeable result of authorized government action.” Id. at 493, 827 N.W.2d
at 495. “All damages immediate and prospective which result from the taking of property by the
exercise of the power of eminent domain must be compensated in the original condemnation
proceeding.” State v. Cheyenne County, 157 Neb. 533, 539, 60 N.W.2d 593, 597 (1953).
“The right of an owner of property which abuts on a street . . . to have ingress to and egress
from his premises by way of the street is a property right in the nature of an easement in the street,
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and the owner cannot be deprived of such right without due process of law and compensation for
loss.” Buck’s, Inc. v. City of Omaha, 22 Neb. Ct. App. 541, 546, 857 N.W.2d 580, 585 (2014).
However, the access right of an abutting property owner to a public road is not unlimited. Id.
Rather, the abutting property owner is entitled to reasonable access to abutting property if
reasonable access remains. Id. “The measure of the right of the owner of property abutting a street
to access to and from the property by way of the street is reasonable ingress and egress under all
the circumstances.” Craig v. State, 19 Neb. Ct. App. 78, 81-82, 805 N.W.2d 663, 666 (2011).
“Whether the right of access . . . has been destroyed or materially impaired is a question of fact
which must be determined upon the particular facts in each case.” W. E. W. Truck Lines, Inc. v.
State, 178 Neb. 218, 225, 132 N.W.2d 782, 787 (1965).
“Surface water is a common enemy and the proprietor may by embankment or dike or
otherwise defend himself against its encroachments and will not be liable in damages which may
result from the deflection and repulsion defended against, provided that the proprietor in making
defense on his own land himself exercised ordinary care, and provided he so uses his own property
as not to unnecessarily and negligently injure another.” Robinson v. Central Nebraska Public
Power & Irr. Dist., 146 Neb. 534, 542, 20 N.W.2d 509, 513 (1945). “[W]ater flowing in a natural
drainageway may not lawfully be diverted and cast upon the land of an adjoining landowner to his
damage where it was not wont to run in a state of nature. Nor may surface waters be collected and
discharged through an artificial channel in unusual quantities upon land of another, except into a
natural drain.” Wells v. Miller, 173 Neb. 780, 784-85, 115 N.W.2d 137, 140 (1962).
The district court, in its granting of the City’s motion for summary judgment, determined
that the flooding issue was whether the increased flooding was substantially certain to result from
the street improvement projects. The district court determined that the increased flooding was not
a foreseeable result of the City’s street improvement projects because of the evidence that the
Norton Property “had always been subject to flooding and pooling of backwater due to its location
in the 100-year FEMA floodplain.” District Court Order at 12. However, the district court
acknowledged that the Nortons presented evidence of value loss of the Norton Property due to the
increased flooding, that the projects increased the amount of surface water abutting the Norton
Property, and that flooding on the Norton Property increased after the projects.
In this instance, summary judgment was not properly entered as there are genuine issues
of material facts regarding whether it was a foreseeable result of the projects that there would be
increased flooding and a loss of access to the Norton Property. The Nortons’ witnesses provided
multiple declarations regarding how the projects altered and sped up drainage, dammed drainways,
obstructed and eliminated access, increased velocity of storm and floodwaters, redirected water
movement, and required the need for the construction of private access drives, bridges, or culverts.
Moreover, multiple affidavits expressed that it was foreseeable that the projects would increase
foreseeable flooding and access problems, causing a substantial loss of fair market value of the
Norton Property a result of the projects. Because there are genuine issues of material facts as to
whether the damage or destruction to the lots as a result of increased flooding and loss of access
was an intentional or foreseeable result of the projects, it was inappropriate for the district court to
grant the motion for summary judgment.
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COUNTY COURT APPRAISERS
The Nortons argue that the award of the county court appraisers should not have been
considered by the district court in its factual determination of damages because county court
condemnation proceedings are administrative rather than judicial and there are no procedural or
evidentiary safeguards.
In its order granting the motion for summary judgment, the district court, in a footnote,
indicated that the Nortons claimed that the county court appraisers’ award was inadmissible in the
district court. Relying on Nebraska Supreme Court case Langdon v. Loup River Public Power
Dist., 142 Neb. 859, 9 N.W.2d 201 (1943), the district court noted that evidence regarding the
appraisers’ award was inadmissible evidence for a jury. The district court also noted that the county
court appraisers’ award amount is contained in the pleadings and that the court may properly
consider it with the evidence presented.
The City claims that “[t]he Norton’s Third Amended Petition references the transcription
of the County Court proceedings in Paragraph 9[,] and in Paragraph 10 makes references to the
Assessment of Damages conducted by the Appraisers appointed by the County Judge of Lancaster
County[.]” Brief for appellee at 25.
Paragraph 9 of the Norton’s third amended petition indicates that the Nortons state and
allege:
That the plaintiff/condemnees instituted inverse condemnation proceedings before the
County Judge of Lancaster County, Nebraska for the purposes of determining the
plaintiff/condemnees’ damages; that the taking of the defendant/condemner is described in
the Petition for Appointment of Appraisers which is found in the transcript on appeal in
this matter and incorporated herein by reference as is fully set forth herein[.]
(Emphasis added.)
Additionally, paragraph 10 of the third amended petition states and alleges:
That on the 12th day of December 2012, the appraisers appointed by the County Judge of
Lancaster, Nebraska assessed the damages caused by the actions of the
defendant/condemner; that said report of appraisers purports to include all damages to
which the plaintiffs/condemnees might be entitled by reason of the acquisition of the
defendant/condemner; that the damages allowed by the appraisers appointed by the County
Judge of Lancaster County, Nebraska, are wholly inadequate and fail to justly compensate
the plaintiffs/condemnees for the damages they have suffered by reason of the
defendant/condemner’s actions.
(Emphasis added.)
It appears that paragraph 9 of the third amended petition does reference the transcription
of the county court’s proceedings and that paragraph 10 of the third amended petition does make
reference to the assessment of damages conducted by the appraisers. However, it does not appear
that paragraph 10 specifically references that the appraisers came back with $0 in damages.
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Additionally, it does not appear that the appraisers’ award of $0 damages was ever admitted into
evidence or was part of the pleadings.
As the appraisers’ award of $0 damages was not included as evidence or as part of the
pleadings, it was inappropriate for the district court to consider the appraiser’s award in its
determination.
CONCLUSION
As there are genuine issues of material facts existing whether there was a foreseeable result
of the projects that there would be increased flooding and a loss of access to the Norton Property,
we reverse the district court’s order granting summary judgment to the City of Hickman. The
district court further erred in considering the county court appraisers’ award in its determination.
We reverse the order granting summary judgment to the City and remand the cause for further
proceedings.
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
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