Utah Dep't of Transp. v. Target Corp. , 414 P.3d 1080 ( 2018 )

2018 UT App 24THE UTAH COURT OF APPEALS
UTAH DEPARTMENT OF TRANSPORTATION,
Appellant,
v.
TARGET CORPORATION AND
WEINGARTEN/MILLER/AMERICAN FORK LLC,
Appellees.
Opinion
No. 20160122-CA
Filed February 8, 2018
Fourth District Court, American Fork Department
The Honorable Thomas Low
No. 090102037
Sean D. Reyes, Barbara E. Ochoa, William H.
Christensen, and Stanford E. Purser, Attorneys for
Appellant
Kevin E. Anderson and Jason E. Wilkinson,
Attorneys for Appellee Target Corporation
Jeffrey W. Appel, Matthew N. Evans, and Robert P.
Harrington, Attorneys for Appellee
Weingarten/Miller/American Fork LLC
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
KATE A. TOOMEY and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 One extremely small portion of a massive freeway
interchange was built on land that the Utah Department of
Transportation (UDOT) took from claimants Target Corporation
(Target) and Weingarten/Miller/American Fork LLC (Miller)
(collectively, Claimants). The vast majority of the interchange
was constructed upon UDOT’s own land or upon land taken
from others. Claimants complain that the interchange prevents
UDOT v. Target Corporation
or impairs motorists from viewing their shopping center, and
they claim the right to recover severance damages from UDOT
related to this loss of visibility and related to the loss of a right-
out exit 1 from the shopping center’s parking lot. The trial court
allowed that claim to proceed to a jury trial, and a jury awarded
Claimants more than $2.3 million in severance damages.
¶2 UDOT now appeals, and asserts that the trial court erred
in even allowing Claimants’ suit for severance damages to reach
the jury. UDOT asserts that Claimants’ evidence was insufficient,
regarding both causation and damages, to support their claims.
For the reasons discussed below, we find UDOT’s arguments
unpersuasive, and therefore affirm.
BACKGROUND 2
¶3 In 2009, UDOT determined that two major highway
construction projects (the Projects) needed to be built in fast-
growing Utah County. One project involved widening and
reconstructing Interstate 15 through essentially the entire length
of Utah County, from Santaquin to the Salt Lake County line.
This project, in total, was more than twenty-two miles long. The
other project involved the construction of a new east-west
1. A “right-out exit” allows traffic to exit (but not necessarily
enter) a facility, but only by turning right.
2. Our recitation of the facts is presented in the light most
favorable to the jury’s verdict, and comes from the testimony
and evidence developed at trial. See Smith v. Fairfax Realty, Inc.,
2003 UT 41, ¶ 3, 82 P.3d 1064 (on review from the denial of a
motion for a directed verdict, an appellate court recites facts in
the light most favorable to the verdict). During the trial, the jury
heard testimony from several witnesses, including five
engineers, two expert appraisers, and a representative of Target
with experience in shopping center development.
20160122-CA 2 2018 UT App 24UDOT v. Target Corporation
arterial road from American Fork through Lehi to Saratoga
Springs. This project, in total, was seven miles long. The two
Projects intersect at a point in American Fork where Main Street
crosses I-15. Before the Projects, there was already a freeway
interchange at the site, allowing motorists to cross I-15 on Main
Street via an overpass, or get on or off I-15 at that same location.
The Projects called for the widening of both I-15 and American
Fork Main Street, and therefore UDOT found it necessary to
completely rebuild the existing freeway interchange (the
Interchange).
¶4 In order to facilitate construction of the new Interchange
at that location, UDOT condemned various properties, including
three relatively small portions 3 of the Alpine Valley Shopping
Center (the Shopping Center), a mall owned largely by
Claimants that is located on the northeast corner of the
Interchange. The Shopping Center is a large retail facility with
many stores and shops. It has one major “anchor” tenant—
Target—as well as other smaller retail stores, and includes a
large outdoor parking lot. Claimants’ witnesses testified at trial
that the Shopping Center is designed to draw customers from a
large regional area, and that customers are drawn there due to
“ease of access and convenience, and knowing how to get there
by visibility or good signage.” Target owns the land on which its
store is located, and Miller owns most of the Shopping Center’s
remaining land. Both Target and Miller share a parking lot, and
also share a cross-easement across the entirety of the Shopping
Center. The shared parking lot abuts Main Street, and prior to
completion of the Projects a driver could easily access
northbound I-15 by making a right-hand turn out of the south
side of the parking lot, driving briefly westbound along Main
3. Two of these three parcels were taken in fee simple, and the
third was taken in the form of a perpetual slope easement. The
two parcels taken in fee simple were very small (756 and 928
square feet, respectively). The slope easement is larger,
comprising 8,825 square feet.
20160122-CA 3 2018 UT App 24UDOT v. Target Corporation
Street, and then merging onto northbound I-15. The original
northbound I-15 on-ramp was “at grade”—on the same level—
with Main Street.
¶5 UDOT chose to rebuild the Interchange using an
innovative “diverging diamond” design, which is “a very
unique cross-over type interchange” that involves cars
temporarily driving on the left side of the road. Significantly for
present purposes, a diverging diamond design requires a lot of
space, and in this case that design required that the bridge over
the freeway be built higher than other design options, and also
required much larger and higher on- and off-ramps. To take one
specific example, the northbound I-15 on-ramp was raised from
“at grade” (in the before condition) to a height of some twenty-
three feet (in the after condition). The new Interchange’s increase
in height affected Claimants’ property and the surrounding area
in several ways.
¶6 First, the heightened overpass and raised northbound I-15
on-ramp required UDOT to gradually raise the elevation of Main
Street as it approached the Interchange. Because Main Street
itself was being raised, UDOT determined that, “for safety
reasons,” it could no longer permit right-out access from the
south end of the Shopping Center onto the now-heightened
Main Street, although UDOT was able to preserve right-in access
from westbound Main Street into the parking lot. In connection
with closing this right-out exit, UDOT took from Claimants one
small rectangular parcel located on the south side of the shared
parking lot, along Main Street. UDOT did not build any portion
of the Interchange on this parcel. Prior to the taking, the right-
out exit was the most heavily used exit in the parking lot, due to
its proximity to the northbound I-15 on-ramp. After the taking,
the closure of the right-out exit required all traffic exiting the
parking lot to use an intersection located along the east side of
the Shopping Center, along Kawakami Drive.
¶7 Next, to facilitate construction of the heightened
northbound I-15 on-ramp, UDOT built a retaining wall along the
20160122-CA 4 2018 UT App 24UDOT v. Target Corporation
northbound on-ramp. In order to support the retaining wall,
UDOT found it necessary to construct an earthen slope alongside
the retaining wall. UDOT did not, however, have enough space
on its own property for the entire dirt support slope, so UDOT
took a perpetual “slope easement” across a long, narrow parcel
of Claimants’ land that runs alongside the northbound I-15 on-
ramp. UDOT then placed a large amount of dirt on the slope
easement, creating a slope that supported the retaining wall that,
in turn, supported the raised on-ramp onto northbound I-15.
While the retaining wall itself is not located on the slope
easement, the dirt slope supporting the retaining wall is at least
partially located on the slope easement. 4
¶8 At trial, Target’s representative testified that UDOT
informed him that “it was not feasible to maintain the right-out
[exit] due to the new construction, the design, specifically, of this
diverging diamond.” However, no other witness at trial testified
that the condemnation of Claimants’ specific parcels was
“essential to the completion of the project as a whole.” See Ivers
v. Utah Dep’t of Transp., 2007 UT 19, ¶ 21, 154 P.3d 802, overruled
in part on other grounds by Utah Dep’t of Transp. v. Admiral Beverage
Corp., 2011 UT 62, 275 P.3d 208 (holding that a claimant is
4. UDOT correctly points out that Claimants introduced no
exhibit or testimony demonstrating exactly where the
boundaries for the slope easement were located, or
demonstrating exactly how much of the dirt slope ended up
being located on the slope easement. But it is clear from the trial
testimony that at least some of the dirt slope supporting the
northbound I-15 on-ramp is located on the slope easement, and
therefore is located on property owned by Claimants. In
addition, during oral argument, UDOT’s counsel acknowledged
that UDOT placed the dirt slope at least partially on Claimants’
property. Moreover, one of the jury instructions proposed by
UDOT and submitted to the jury stated that UDOT acquired the
slope easement “for the purpose of constructing and maintaining
slopes on the property as part of the Project[s].”
20160122-CA 5 2018 UT App 24UDOT v. Target Corporation
entitled to severance damages related to a view-impairing
structure “built on property other than that which was
condemned” only “if the use of the condemned property is
essential to the completion of the project as a whole”).
¶9 Claimants also presented evidence that completion of the
Interchange affected the visibility—defined as the ability of
others to view into the property, see id. ¶ 12—of the Shopping
Center. Prior to the Projects, motorists moving in any direction
on I-15 or Main Street could easily see the Shopping Center as
they were driving. After the Projects, by contrast, visibility into
the Shopping Center decreased, chiefly because of the larger and
taller Interchange. Parts of the Interchange, including the taller
and wider bridge over the freeway, as well as new or taller
retaining walls and raised on- and off-ramps, now impair
motorists’ view of the Shopping Center. Claimants argued that
they were entitled to be compensated not just for the value of the
parcels that were taken, but also for “severance damages”
representing the full loss of the market value of the Shopping
Center caused by the taking, including diminution in value
caused by reduced visibility and access.
¶10 In support of this contention, Claimants presented
testimony from an expert appraiser (Appraiser). Appraiser
valued Claimants’ remaining property twice, once in the
“before” condition, as though the Interchange had never been
built, and once in the “after” condition, taking into account any
effect that the Interchange had on the property’s value.
Appraiser explained that the difference in these values
constituted the measure of Claimants’ severance damages.
Appraiser concluded that Claimants’ remaining property was
worth approximately 7.5% less in the “after” condition than in
the “before” condition, and he calculated Claimants’ severance
damages, based on that conclusion, as more than $2.3 million.
Appraiser testified that there were two main factors that
contributed to the property’s diminution in value: loss of
visibility, largely because of the presence of the larger and taller
Interchange, and loss of the right-out exit onto Main Street.
20160122-CA 6 2018 UT App 24UDOT v. Target Corporation
However, Appraiser did not attempt to provide any specific
values for these individual components of loss—that is,
Appraiser did not provide the jury with any specific amounts for
damages related to loss of the right-out exit alone, or for
damages related to loss of visibility alone, or for damages related
to loss of visibility related to any specific component of the
Interchange. At the close of Claimants’ case, UDOT moved for a
partial directed verdict on the issue of severance damages,
arguing that Claimants should not be allowed to recover
severance damages at all. Specifically, UDOT argued that
Claimants failed to “elicit[] any testimony from any witness that
this property was essential to the project as a whole,” and
therefore their claim for severance damages was infirm under
the rubric set forth in Ivers, 2007 UT 19, ¶ 21. The trial court
denied UDOT’s motion, reasoning that although no witness
explicitly testified that UDOT’s takings were “essential to the
project as a whole,” the evidence was nonetheless sufficient to
potentially support a finding that the takings were “essential.”
¶11 After deliberation, the jury awarded Claimants a total of
$87,910 for the value of the property interests that UDOT
actually took (the two small parcels taken in fee simple plus the
perpetual slope easement). In addition, the jury awarded
Claimants a combined $2,381,294 in severance damages. UDOT
takes issue with the severance damages portion of the jury’s
verdict, and first expressed its displeasure with this award by
asking the trial court to enter a judgment notwithstanding the
verdict, again asserting that Claimants “failed to establish
through testimony of any fact or expert witness that the property
taken by [UDOT] was ‘essential to the completion of the project
as a whole.’” The trial court denied that motion.
ISSUES AND STANDARD OF REVIEW
¶12 UDOT now appeals the award of severance damages to
Claimants, and asserts that the trial court should have granted
its motions for partial directed verdict and/or for judgment
20160122-CA 7 2018 UT App 24UDOT v. Target Corporation
notwithstanding the verdict on that issue. We review a trial
court’s denial of a motion for directed verdict for correctness.
Proctor v. Costco Wholesale Corp., 2013 UT App 226, ¶ 6, 311 P.3d
564. Likewise, we review for correctness a trial court’s denial of a
motion for judgment notwithstanding the verdict. Neff v. Neff,
2011 UT 6, ¶ 49, 247 P.3d 380. On either a motion for directed
verdict or a motion for judgment notwithstanding the verdict,
we will reverse the trial court’s ruling “only if, viewing the
evidence in the light most favorable to the prevailing party, we
conclude that the evidence is insufficient to support the verdict.”
Lawrence v. MountainStar Healthcare, 2014 UT App 40, ¶ 18, 320
P.3d 1037 (citation and internal quotation marks omitted).
ANALYSIS
¶13 It is a bedrock principle of both the federal and state
constitutions that the government cannot take a citizen’s
property for public use without paying that citizen “just
compensation” for the value of the property taken. See U.S.
Const. amend. V; see also Utah Const. art. I, § 22. “The policy
behind Utah’s constitutional provision is to ensure that the
burden for damage done to private property is ‘distributed
among all the taxpayers’ rather than ‘upon those only who
sustained the injury.’” See Utah Dep’t of Transp. v. Admiral
Beverage Corp., 2011 UT 62, ¶ 21, 275 P.3d 208 (quoting Kimball v.
Salt Lake City, 90 P. 395, 397 (Utah 1907)). The constitutional
guarantee of “just compensation” “is triggered when there is any
substantial interference with private property which destroys or
materially lessens its value, or by which the owner’s right to its
use and enjoyment is in any substantial degree abridged or
destroyed.” Id. ¶ 22 (citation and internal quotation marks
omitted). There exist “two broad categories of takings”: physical
takings and regulatory takings. Alpine Homes, Inc. v. City of West
Jordan, 2017 UT 45, ¶ 18. This case involves a physical taking.
¶14 A physical taking is the most obvious kind of taking, and
occurs when the government physically appropriates a citizen’s
20160122-CA 8 2018 UT App 24UDOT v. Target Corporation
property. See View Condo. Owners Ass’n v. MSICO, LLC, 2005 UT
91, ¶ 31, 127 P.3d 697. Certainly, a landowner is entitled to
compensation when the government undertakes a “physical
invasion or permanent occupation of his or her property.”
America West Bank Members, LC v. State, 2014 UT 49, ¶ 32, 342
P.3d 224 (citation and internal quotation marks omitted). There
are several different types of physical takings, including, for
instance, an outright fee-simple taking as well as the taking of a
more limited property interest such as an easement. See Utah
Code Ann. § 78B-6-502 (LexisNexis 2012) (providing that “fee
simple” ownership and “easement[s]” are both “rights in lands
[that] are subject to being taken for public use”). In this case, the
jury determined that Claimants were entitled to $87,910 as “just
compensation” for UDOT’s three physical takings. No party has
appealed that portion of the jury’s decision.
¶15 When the land that is condemned constitutes only a
portion of a larger parcel, a landowner may be entitled to more
than merely the market value of the portion of the land that is
actually taken. Specifically, the landowner may be entitled to
“severance damages” for any diminution in the value of the
remaining portion of the landowner’s property, as long as the
landowner can demonstrate that the diminution in value was
caused by the taking. See id. § 78B-6-511(2) (LexisNexis 2012)
(stating that, “if the property sought to be condemned
constitutes only a part of a larger parcel,” a landowner may
recover “the damage[] which will accrue to the portion not
sought to be condemned by reason of its severance from the
portion sought to be condemned”); see also Severance Damages,
Black’s Law Dictionary (10th ed. 2014) (defining “severance
damages” as “compensation awarded to a landowner for the loss
in value of the tract that remains after a partial taking of the
land”).
¶16 The “cardinal and well-recognized rule” regarding the
measure of severance damages is that a landowner is entitled to
recover “the difference in market value of the property before
and after the taking.” See Admiral Beverage, 2011 UT 62, ¶ 30
20160122-CA 9 2018 UT App 24UDOT v. Target Corporation
(citation and internal quotation marks omitted); see also id. ¶ 31(stating that a court, “in order to correctly evaluate . . . severance
damages,” must view those damages “in the composite as it will
be after the taking and after the improvement has been
constructed”). After a four-year detour to the contrary, our
supreme court has now determined that severance damages may
include damages resulting from the property’s reduced visibility.
See id. ¶¶ 15–19 (overruling Ivers, 2007 UT 19, ¶¶ 11–15, and
stating that “when a landowner suffers the physical taking of a
portion of his land, he is entitled to severance damages
amounting to the full loss of market value in his remaining
property caused by the taking,” including damages for loss of
visibility). A landowner bears the burden of proving an
entitlement to a specific amount of severance damages. State ex
rel. Road Comm’n v. Williams, 452 P.2d 548, 549–50 (Utah 1969).
¶17 An entitlement to severance damages exists, however,
only if landowners can show a causal link between the taking of
a portion of their land and the diminution in the value of the
remainder. See Ivers, 2007 UT 19, ¶ 18 (stating that “[w]hether
severance damages are awardable hinges on whether the
severance of the condemned property, and the use of that
property, caused damage to the remaining property”); see also
Utah Dep’t of Transp. v. D’Ambrosio, 743 P.2d 1220, 1222 (Utah
1987) (stating that a landowner is entitled to recover severance
damages “caused by the taking of a portion of the parcel of
property where the taking or the construction of the
improvement on that part causes injury to that portion of the
parcel not taken”); Utah Code Ann. § 78B-6-511(2) (providing
that recoverable severance damages consist of those damages
incurred “by reason of [the remaining parcel’s] severance from
the portion sought to be condemned”).
¶18 In this case, Claimants assert entitlement to two types of
severance damages. First, Claimants maintain that their
remaining property has diminished in value due to loss of
visibility that they claim has resulted from the construction of
the new Interchange. Second, Claimants assert that their
20160122-CA 10 2018 UT App 24UDOT v. Target Corporation
remaining property has diminished in value because of the loss
of the right-out exit onto American Fork Main Street. For its part,
UDOT asserts that Claimants have not presented sufficient
evidence to support their claim to either type of severance
damages, but for different reasons.
A. Severance Damages for Loss of Visibility
¶19 With regard to Claimants’ assertion that they are entitled
to severance damages for loss of visibility, UDOT maintains that
Claimants have not presented sufficient evidence of the
necessary causal link between the taking of their property and
their claimed severance damages.
¶20 There are two methods by which a landowner can
demonstrate the requisite causal link. First, if the visibility issues
stem from a “structure” that is built upon the part of the
property that was taken, causation is presumed. See Ivers, 2007
UT 19, ¶ 20 (stating that “when the state condemns a portion of
land and builds a view-impairing structure directly on that land,
the damage to the remaining property is recoverable . . . because
when the condemned land is used for the construction of the
view-impairing structure, the damage to the remaining property
is clearly caused by the severance”). Second, if the visibility
issues stem from a “structure” that was not built on the part of
the property that was taken, causation is not presumed, and the
property owner is entitled to severance damages only if it can
demonstrate that “the use of the condemned property is
essential to the completion of the project as a whole.” Id. ¶ 21.
¶21 The main thrust of UDOT’s arguments, both before the
trial court and on appeal, is that Claimants have not established,
through competent evidence, that their parcels were “essential”
to the Projects as a whole, and therefore cannot avail themselves
of the second method of proving severance damages. As noted
above, none of Claimants’ witnesses directly testified that the
taken parcels were “essential” to the Projects as a whole.
20160122-CA 11 2018 UT App 24UDOT v. Target Corporation
¶22 Claimants, however, maintain that they can demonstrate
causation through the first method, and that they therefore need
not prove that the taken parcels were “essential to the Projects as
a whole.” Specifically, Claimants assert that the view-impairing
structure is the entire Interchange, and they argue from that
premise that, because part of the Interchange (the dirt slope
supporting the retaining wall on the northbound I-15 on-ramp)
was built on their property, causation for severance damages
should be presumed. UDOT disagrees, and posits that the view-
impairing “structure” is not the entire Interchange but, instead,
the specific component parts of the Interchange (such as the
raised freeway overpass, or new retaining walls on the southern
end of the Interchange), only one of which (the northbound I-15
on-ramp) was even partially built on Claimants’ taken property.
In order to address these arguments, we must confront three
questions.
1.
¶23 First, we must determine whether, as a legal matter, a
view-impairing structure that is only partially constructed upon
the taken parcel is presumed to have caused severance damages
to the remaining parcel or, instead, whether the view-impairing
structure must be constructed entirely upon the taken parcel to
qualify for a presumption of causation. We conclude that, in
order to be presumed to have caused severance damages to the
remaining parcel, a view-impairing structure need not be
entirely constructed within the taken parcel.
¶24 We draw support for this conclusion from Utah State Road
Commission v. Miya, 526 P.2d 926 (Utah 1974). In that case, the
state condemned, for a road construction project, one small part
(comprising less than one acre) of a forty-four-acre parcel owned
by the claimant. Id. at 927. As part of that project, the state then
constructed a “viaduct” over some adjacent railroad tracks. Id. at
928. While it is not entirely clear from the opinion, it appears that
20160122-CA 12 2018 UT App 24UDOT v. Target Corporation
the viaduct was at least partially constructed upon the land
taken from the claimant. 5 Id. The claimant asserted a right to
recover severance damages related to the loss of view on its
remaining acreage caused by the construction of the viaduct. Id.
at 929. The trial court awarded claimant $8,000 in severance
damages, and our supreme court affirmed, holding that “the loss
of view occasioned by a proposed public structure to be erected,
in part at least upon a parcel of property taken by condemnation
from a unit of property” could be compensated with an award of
severance damages. Id. (emphasis added) (citations omitted).
¶25 Indeed, we cited this portion of Miya when we considered
the Ivers case. See Utah Dep’t of Transp. v. Ivers, 2005 UT App 519,
¶ 23 & n.6, 128 P.3d 74, rev’d in part on other grounds, 2007 UT 19,
154 P.3d 802. In so doing, we noted that the rule set forth in
Miya—“requiring the view-obstructing improvement to be
constructed, at least partially, upon the land severed from the
condemnee”—is in keeping “with the principles recognized in
both earlier and later Utah cases.” Id. (emphasis added). While
our supreme court has not directly addressed this issue since
Miya, that court’s opinions in Ivers and Admiral Beverage contain
language indicating continued support of the rule set forth in
Miya. See Admiral Beverage, 2011 UT 62, ¶ 2 (noting that “[n]o part
of the I-15 freeway itself is located on or touches Admiral’s
5. This court has read Miya in this manner once before. In this
court’s decision in Utah Department of Transportation v. Ivers, 2005
UT App 519, 128 P.3d 74, rev’d in part on other grounds, 2007 UT
19, 154 P.3d 802, we noted some uncertainty about whether the
viaduct in the Miya case was partially constructed on the taken
property, but concluded that Miya could not plausibly be read
any other way. Id. ¶ 23 & n.6 (stating that, “[i]n Miya, the viaduct
was constructed, in part, on the land taken from the
landowners,” and noting in a footnote that the court’s “reliance
on” a particular quotation “indicates that the viaduct was built,
at least in part, upon a parcel of property taken from the
landowners”).
20160122-CA 13 2018 UT App 24UDOT v. Target Corporation
property” (emphasis added)); Ivers, 2007 UT 19, ¶ 3 (noting in
support of its rejection of claimant’s severance damages claim
that “[n]o portion of the raised highway, its footings, or its
foundation was constructed on the condemned land” (emphasis
added)).
¶26 Further support for our conclusion can be found in case
law from other jurisdictions that, like ours, allow recovery of
severance damages for loss of visibility. 6 At least some of those
courts have held that such damages are recoverable even where
the view-impairing structure is built only partially on the taken
property. See, e.g., State v. Strom, 493 N.W.2d 554, 561 (Minn.
1992) (holding that where “property taken by the state from the
abutting owner was used” to build a view-obstructing structure,
the landowner may recover severance damages for loss of
visibility); id. at 564 (Simonett, J., concurring) (noting specifically
that “the embankment [that obstructs visibility] is partially on
land taken” from the landowner (emphasis added)).
¶27 We also note that UDOT appeared to concede this point at
oral argument. In response to questioning from the court, UDOT
conceded that Claimants would, at least theoretically, be entitled
to severance damages for loss of visibility caused solely by the
northbound I-15 on-ramp, because UDOT conceded that the on-
ramp (although not necessarily the Interchange) was at least
partially constructed on property taken from Claimants. 7 As
6. Some jurisdictions (including our own from 2007 to 2011, see
Ivers, 2007 UT 19, ¶¶ 11–15) do not allow any recovery of
severance damages for loss of visibility. See, e.g., Department of
Transp. v. Marilyn Hickey Ministries, 159 P.3d 111, 116 (Colo.
2007); see also 7A Nichols on Eminent Domain, § G9A.04[4][c][iii]
(Matthew Bender, 3rd ed.).
7. UDOT’s concession here was limited because, as discussed
below, UDOT points out that Claimants presented to the jury
only a total composite figure comprising all of its claimed
(continued…)
20160122-CA 14 2018 UT App 24UDOT v. Target Corporation
noted elsewhere herein, the only part of the northbound on-
ramp (for that matter, the only part of the entire Interchange)
that was constructed on Claimants’ property is part of the slope
supporting the on-ramp’s retaining wall. By conceding a
theoretical entitlement to severance damages for loss of visibility
caused by the northbound on-ramp, UDOT was necessarily
conceding the point that a structure, in order to be considered to
have presumptively caused severance damages, does not have to
be entirely constructed on land taken from the claimant.
2.
¶28 Second, we must determine what the “structure” is for
purposes of the causation analysis. There are three possibilities.
First, “structure” could be defined extremely broadly, to mean
the entirety of the freeway Projects in question. Neither party
advocates for this position, and we conclude that this position is
foreclosed by applicable case law. Second, the “structure” in
question could be the Interchange, in its entirety. Claimants
advocate for this position. Third, the “structure” in question
could be the individual component parts of the Interchange that
are alleged to have affected Claimants’ visibility. UDOT
advocates for this position. We find Claimants’ position most
persuasive.
¶29 The “structure” in question cannot be the entirety of the
Projects. This possibility has already been rejected by our
(…continued)
severance damages, and did not endeavor to itemize or
individually value each part of their claimed severance damages
(such as, for instance, loss of visibility solely due to the presence
of the northbound on-ramp). UDOT therefore takes the position
that, even though Claimants would be theoretically entitled to
recover severance damages for loss of visibility caused by the
northbound I-15 on-ramp, Claimants’ specific evidence for this
item of severance damages was insufficient.
20160122-CA 15 2018 UT App 24UDOT v. Target Corporation
supreme court. In State v. Harvey Real Estate, 2002 UT 107, 57 P.3d
1088, the court stated that severance damages were available for
“damages caused by the construction of the improvement made
on the severed property,” and emphasized that severance
damages cannot include “damages caused by other facets of the
construction project.” Id. ¶ 10; see also id. (noting that the court
would not allow a landowner to “present evidence of all
damages conceivably stemming from” a “multi-mile-length road
construction project,” and certainly not “those damages
attributable to construction occurring miles away”). Likewise, in
Ivers, the court refused to allow an award of severance damages
caused by the loss of view resulting from the construction of a
raised highway, when the land taken from the claimant was
used only for construction of a small portion of a frontage road
that, while inarguably part of the same overall construction
project, was itself separate from the raised highway. See Ivers,
2007 UT 19, ¶¶ 1, 17 (stating that the claimant’s land “was
condemned as part of a single project to build a structure that
would impair the view from the remaining property, but in
which that structure was not built on the severed land”). Thus,
the “structure” in question must be defined more narrowly than
by reference to the entire multi-mile Projects constructed here.
¶30 While reference to the entirety of the two multi-mile
Projects is far too broad, we perceive UDOT’s position as too
narrow. UDOT asserts that the “structure” in question is not the
Interchange in its entirety but, rather, its specific individual
components—for instance, the raised overpass, the raised
northbound on-ramp, new retaining walls and sound walls—
that Claimants assert impair the Shopping Center’s visibility.
UDOT concedes that at least a portion of the northbound on-
ramp was built on Claimants’ property, and therefore makes at
least a theoretical concession that Claimants would be entitled to
severance damages resulting from loss of visibility caused
directly by the presence of the new northbound on-ramp. But
UDOT maintains that it should not have to pay severance
damages for loss of visibility caused by any other component
20160122-CA 16 2018 UT App 24UDOT v. Target Corporation
part of the Interchange, because none of the other parts of the
Interchange were even partially constructed on Claimants’ land.
¶31 We disagree, because we view the Interchange as one
interconnected structure. Each part of the Interchange has some
effect on the others, all stemming from UDOT’s choice of a
“diverging diamond” design. That design choice required a
raised and widened freeway overpass, as well as raised on- and
off-ramps. The raised on- and off-ramps, in turn, required new
and higher retaining walls and slope supports. It seems to us
unduly artificial to require a condemnation claimant to break a
freeway interchange into component parts for the purpose of
proving a claim to severance damages. 8 We also wonder
whether we could, on any principled basis, halt the sub-dividing
process once it begins. 9
8. If the structure in question were a building instead of a
freeway interchange, the analysis would be clearer. It would
make little sense to say that a claimant could recover severance
damages for loss of visibility occasioned by a single part or
feature of a building (say, a wing of the building, or an awning,
column, or steeple) but could not recover severance damages for
loss of visibility occasioned by other parts of that same building.
While we concede that a building is perhaps more clearly one
contiguous “thing” than a freeway interchange is, we cannot
conceive of any principled basis upon which to distinguish the
two scenarios.
9. As noted, UDOT conceded that Claimants have at least a
theoretical entitlement to severance damages caused by loss of
visibility related to the northbound on-ramp. But absent that
concession, UDOT could potentially have argued that only the
dirt slope support was actually constructed on Claimants’
property, while the actual retaining wall and the rest of the on-
ramp were not. If we permit UDOT to subdivide the Interchange
down into its component parts (e.g., bridges and on-ramps), we
(continued…)
20160122-CA 17 2018 UT App 24UDOT v. Target Corporation
¶32 We are also guided by our supreme court’s language in
Ivers and Admiral Beverage. In those cases, it appears that the
court thought of the “structure” in broader terms than UDOT
now advocates. For instance, in Ivers and Admiral Beverage, the
court referred to the structure in question as simply “the raised
highway” or “the I-15 freeway,” rather than to individual on-
ramps or retaining walls. See Ivers, 2007 UT 19, ¶¶ 1, 3; Admiral
Beverage, 2011 UT 62, ¶ 2.
¶33 Moreover, in Admiral Beverage, the supreme court
overruled its own previous holding, outlined in Ivers, that loss of
visibility damages were not recoverable as part of severance
damages. See Admiral Beverage, 2011 UT 62, ¶¶ 17–19. The court
did so, in part, because it deemed the Ivers rule “unworkable in
practice” because of the difficulty encountered by appraisers
who were asked, under the Ivers rule, to “assign specific values”
to loss of visibility damages as part of an overall severance
damages analysis. Id. ¶ 39; see also id. ¶ 41 (noting that the Ivers
rule required appraisers to “resort to rank speculation when
attempting to exclude the loss of visibility from fair market
value”). The court applied a holistic approach to severance
damages, determining that such damages are computed by
simply “comparing the market value of the portion of property
not taken with its market value before the taking.” Id. ¶ 30; see
also City of Hildale v. Cooke, 2001 UT 56, ¶ 20, 28 P.3d 697 (noting
the “cardinal and well-recognized rule” that severance damages
consist of “the difference in market value of the property before
and after the taking” (citation and internal quotation marks
omitted)). It would be inconsistent with this overall approach to
require Claimants’ appraisers to engage in a similarly
speculative effort to isolate the severance damages caused by
(…continued)
are aware of no principle that would prevent condemnors from
subdividing each component part into its own respective sub-
parts (e.g., retaining walls, slope supports).
20160122-CA 18 2018 UT App 24UDOT v. Target Corporation
one component part of a freeway interchange separate from
those severance damages caused by another.
¶34 Accordingly, we view the “structure” in question as the
Interchange, rather than as the Projects or as the Interchange’s
individual component parts.
3.
¶35 Finally, after answering the first two questions, we must
determine whether, as a factual matter, the structure (as we have
defined it) was at least partially constructed upon the taken
parcel. It should be evident by now that it was.
¶36 As described above, one extremely small part (the slope
supporting a retaining wall that is part of the northbound I-15
on-ramp) of the Interchange was built on land taken from
Claimants. Under these circumstances, Claimants are entitled to
recover severance damages caused by loss of visibility resulting
from construction of the entire Interchange. 10 The structure in
10. We are aware that, in some cases, it may be difficult to
determine where an “interchange” begins and ends. In this case,
however, as far as we are aware, all of the items that were
described as part of the cause of Claimants’ severance damages
for loss of visibility (e.g., the raised freeway overpass, the
northbound I-15 on-ramp, the new retaining walls) are
unquestionably part of the Interchange. However, we note that,
at oral argument and at one point in its reply brief, UDOT made
some mention of “sound walls” that it claimed were quite a
distance away from the Shopping Center. This argument was not
well-developed in UDOT’s briefing, and as a result we are not
certain exactly which “sound walls” UDOT is referring to or
where they are located, or whether UDOT is even attempting to
argue that the sound walls in question are not part of the
Interchange. We note simply that we consider any such claim on
UDOT’s part—that some of the items included as causes of
(continued…)
20160122-CA 19 2018 UT App 24UDOT v. Target Corporation
question—the Interchange—was at least partially built on land
taken from Claimants, and these facts entitle Claimants to take
advantage of the presumption that the severance damages they
suffered as a result of the construction of the Interchange were
incurred “by reason of the severance.” See Utah Code Ann.
§ 78B-6-511(2) (providing that recoverable severance damages
consist of those damages incurred “by reason of [the remaining
parcel’s] severance from the portion sought to be condemned”);
see also Ivers, 2007 UT 19, ¶ 20 (stating that “when the
condemned land is used for the construction of the view-
impairing structure, the damage to the remaining property is
clearly caused by the severance”).
¶37 Thus, with regard to their claims for severance damages
for loss of visibility, Claimants are able to demonstrate the
requisite causal link through the first method—by showing that
the view-impairing structure (the Interchange) was at least
partially constructed on their former land. With regard to those
damages claims, it is not necessary for Claimants to prove that
the taken parcels were “essential” to the Projects as a whole. The
trial court therefore did not err by allowing Claimants’ suit for
severance damages for loss of visibility to proceed to a jury trial.
B. Severance Damages for Loss of the Right-Out Exit
¶38 This does not end our analysis, however, because there is
another component of severance damages to which Claimants
assert entitlement: severance damages associated with loss of the
right-out exit onto Main Street. At oral argument, UDOT
conceded that Claimants were theoretically entitled to recovery
of this component of severance damages, but maintained that
Claimants had not presented sufficient evidence of damages
with regard to that claim. We find UDOT’s arguments
(…continued)
Claimants’ loss of visibility damages may not be part of the
Interchange—to be inadequately briefed and developed.
20160122-CA 20 2018 UT App 24UDOT v. Target Corporation
unpersuasive, and agree with Claimants that they presented
sufficient evidence of their claimed severance damages.
¶39 “[T]he proper measurement of severance damages is
determined by comparing the market value of the portion of
property not taken with its market value before the taking.” See
Admiral Beverage, 2011 UT 62, ¶ 30. Prior to Admiral Beverage,
under the rule set out in Ivers under which claimants could
recover for loss of view but not for loss of visibility, see Ivers,
2007 UT 19, ¶¶ 11–15, appraisers could not simply state their
conclusions in such straightforward before-and-after terms.
Instead, they had to attempt to “assign specific values to [some]
of the numerous factors affecting market value, including any
decrease in value due to loss of visibility.” See Admiral Beverage,
2011 UT 62, ¶ 39. Our supreme court noted that this task was
“extreme[ly] difficult[], if not impossibl[e],” for appraisers to
accomplish without resorting to “rank speculation.” Id. ¶ 41.
Partially for this reason, our supreme court overruled its holding
in Ivers that condemnation claimants could not recover
severance damages for loss of visibility. Ever since Admiral
Beverage, condemnation claimants have been able to assert claims
to a full complement of severance damages, measured using a
simple before-and-after metric, and limited only by general
notions of causation and evidentiary proof.
¶40 Thus, there is no requirement, in Admiral Beverage or in
any other case of which we are aware, that Claimants must
present their severance damages on a line-item basis, including a
discrete value for, specifically, damages suffered by virtue of the
loss of the right-out exit. 11 Claimants are free to present their
11. There is a statutory mandate that, in condemnation cases, “as
far as practicable compensation shall be assessed for each source
of damages separately.” See Utah Code Ann. § 78B-6-511
(LexisNexis 2012). UDOT makes passing mention of this statute
in its brief, but makes no argument that this statute should be
(continued…)
20160122-CA 21 2018 UT App 24UDOT v. Target Corporation
severance damages evidence in a more general way, by
presenting to the factfinder evidence of what the property was
worth prior to the taking, and what it is worth after the taking. 12
¶41 In this case, Claimants did just that, and we find no legal
infirmity in their efforts. Appraiser concluded that Claimants’
remaining property was worth approximately $2.3 million less
after the Interchange was built than it was before construction
began. Appraiser testified that there were two main factors that
contributed to the property’s diminution in value—loss of
(…continued)
read in a manner that would put it at odds with our supreme
court’s analysis in Admiral Beverage.
12. Despite the difficulty of the endeavor, as described in Admiral
Beverage, 2011 UT 62, ¶¶ 38–39, it may be true that, in some cases
and under some factual circumstances, appraisers would be able
to itemize and individually value the various factors that
comprise the total diminution in value. Where this is possible,
and where appraisers are comfortable making the attempt,
claimants may wish to consider presenting such evidence, since
stating diminution in value only in general terms carries some
risk. For instance, if we had reached the opposite result in this
case with regard to Claimants’ entitlement to severance damages
for loss of visibility for the entire Interchange, and concluded
instead that Claimants were entitled to severance damages only
for those two items conceded by UDOT (namely, (a) loss of the
right-out exit and (b) loss of visibility related to the northbound
I-15 on-ramp), we would have had to confront the question of
whether to dismiss those claims for lack of proof, since no
witness at trial offered any actual damages figure for the jury to
consider on either of these two specific items, or whether to
remand the case for a new trial on damages. Claimants dodged
that bullet here, however, due to our conclusion that Claimants
are entitled to recovery of all of the categories of severance
damages for which they sought compensation at trial.
20160122-CA 22 2018 UT App 24UDOT v. Target Corporation
visibility and loss of the right-out exit. Appraiser’s failure to
provide specific values for these individual components of loss,
in particular for loss in value caused by the loss of the right-out
exit alone, does not render his testimony infirm or inadmissible,
at least not in this case.
CONCLUSION
¶42 Even though only a small portion of the enormous
Interchange was actually built on the land UDOT took from
Claimants, that small portion enables Claimants to take
advantage of a much easier pathway to prove a causal link
between the taking and their claimed damages. Because the
Interchange was at least partially built on the taken property, a
causal link between the taking and Claimants’ severance
damages for loss of visibility is presumed. Claimants do not
need to prove that the taking of their parcels was “essential” to
the Projects as a whole.
¶43 Claimants are likewise entitled to recover severance
damages for loss of the right-out exit onto Main Street. UDOT
concedes that Claimants are theoretically entitled to these
damages. Because we conclude that Claimants are entitled to
recover each of the categories of severance damages at issue in
this appeal, it necessarily follows that their damages evidence,
presented merely in a before-and-after manner, was sufficient on
the facts of this case.
¶44 Affirmed.
20160122-CA 23 2018 UT App 24