Broderick Family, L.P. v. City of Waukee, Iowa

IN THE COURT OF APPEALS OF IOWA
No. 19-1131
Filed October 7, 2020
BRODERICK FAMILY, L.P.,
Plaintiff-Appellant,
vs.
CITY OF WAUKEE, IOWA,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Terry Rickers, Judge.
Broderick Family, L.P. appeals an order granting the City of Waukee’s
motion for summary judgment. AFFIRMED.
Daniel L. Manning, Sr. and Daniel M. Manning, Jr. of Lillis O’Malley Olson
Manning Pose Templeman LLP, Des Moines, for appellant.
James E. Nervig and Steven P. Brick of Brick Gentry P.C., West Des
Moines, for appellee.
Considered by Tabor, P.J., and May and Greer, JJ.
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MAY, Judge.
Broderick Family L.P. (Broderick) sued the City of Waukee, Iowa (Waukee).
Broderick alleges Waukee’s actions created a servitude and uneconomical
remnant. But the district court concluded that, so far, Waukee’s acts have not
amounted to an unconstitutional taking. So the court granted summary judgment
in Waukee’s favor. Broderick now appeals. We affirm.
I. Factual Summary
Broderick owns a parcel of property—approximately 137 acres—within
Waukee’s city limits. Waukee owns land west of Broderick’s property. Waukee is
developing that land for a city park and public high school. Waukee wanted to
acquire a western portion—about five acres—of Broderick’s land. Waukee’s plan
is to use the land for infrastructure adjacent to the new high school. But the parties
could not reach an agreement for purchase of the land. So Waukee initiated
condemnation proceedings.1
In Iowa, the procedure for condemnation is set by Iowa Code chapter 6B.
Section 6B.3(1) prescribes the required contents of an application for
condemnation. Among other things, an application must include a “plat showing
the location of the . . . property sought to be condemned.” See Iowa Code
§ 6B.3(1)(b).
So, when Waukee submitted its condemnation application, it attached plats
showing the five or so acres it sought to acquire from Broderick. In addition to the
1 Condemnation is the process by which a government entity declares certain
property for public use in exchange for reasonable compensation to the property
owner. Condemnation, Black’s Law Dictionary (11th ed. 2019); see also Iowa
Code § 6A.1 (2018).
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required information, though, the acquisition plats depicted a potential right-of-way
to extend Douglas Parkway across the entirety of Broderick’s property. But neither
the right-of-way nor the additional land it could require—approximately nine and
one-half additional acres—were otherwise addressed in Waukee’s condemnation
application. Rather, the application only sought to acquire the five acres (more or
less) needed for the school project.
Broderick then sued Waukee under a theory of inverse condemnation.
Broderick claims that Waukee’s drawings “earmarked” the additional nine and one-
half acres as “the location where” Waukee “intends to construct” an extension of
Douglas Parkway. Broderick alleges that despite this, Waukee “has no intention
of acquiring that right-of-way”—the nine and one-half acres—through
condemnation or otherwise. As a result, Broderick claims, Waukee has created a
servitude and uneconomical remnant.
Waukee moved for summary judgment. It pointed out that the additional
nine and one-half acres was only a “possible location of a future extension of
Douglas Parkway.” And Waukee has “made no final decision and taken no final
action either to extend or not to extend any portion of Douglas Parkway” across
the entirety of Broderick’s land. So, Waukee argued, there has been no taking.
The district court agreed. The court stated it could not find that Waukee
“irrevocably committed to constructing an extension of Douglas Parkway through
[Broderick’s] land.” And the court found “no evidence in the record to support
[Broderick’s] contention that a ‘taking’ has occurred.” So the court granted
Waukee’s motion. Broderick now appeals.
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II. Standard of Review
“We review a district court’s summary judgment ruling ‘for correction of
errors at law.’” Bandstra v. Covenant Reformed Church, 913 N.W.2d 19, 36 (Iowa
2018) (quoting Walderbach v. Archdiocese of Dubuque, Inc., 730 N.W.2d 198, 199
(Iowa 2007)). Summary judgment is proper if the record shows “that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Iowa R. Civ. P. 1.981(3).
III. Analysis
Broderick raises two theories: inverse condemnation and uneconomical
remnant. We address each in turn.
A. Inverse Condemnation
Governments may not take private property without paying just
compensation. This right is guaranteed by the Iowa Constitution, which provides
that “[p]rivate property shall not be taken for public use without just compensation
first being made.” Iowa Const. art. I, § 18. Similarly, the Fifth Amendment to the
Constitution of the United States provides, “private property [shall not] be taken for
public use, without just compensation.”2
A property owner can pursue a claim of “inverse condemnation” when a
government body—such as a city—takes all or part of the owner’s property without
starting formal condemnation proceedings. See K & W Elec., Inc. v. State, 712
N.W.2d 107, 115 (Iowa 2006); Molo Oil Co. v. City Of Dubuque, 692 N.W.2d 686,
2 “Because of this similarity regarding takings, we consider federal cases
interpreting the federal provision persuasive in our interpretation of the state
provision.” Kingsway Cathedral v. Iowa Dep’t of Transp., 711 N.W.2d 6, 9 (Iowa
2006).
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692 (Iowa 2005). We use a three-part framework to evaluate claims of inverse
condemnation: “(1) Is there a constitutionally protected private property interest at
stake?[;] (2) Has this private property interest been ‘taken’ by the government for
public use?[;] and (3) If the protected property interest has been taken, has just
compensation been paid to the owner?” Kingsway Cathedral, 711 N.W.2d at 9
(citation omitted).
There is no dispute as to elements one and three. Because Broderick owns
the nine and one-half acres at issue, Broderick clearly has a constitutionally
protected private property interest in the land. See id. Likewise, it is undisputed
Waukee has not compensated Broderick for the nine and one-half acres.
So the critical question is element two, whether Broderick’s property interest
in the nine and one-half acres has been “taken.” See id. A taking “may be anything
which substantially deprives one of the use and enjoyment of [the] property or a
portion thereof.” Phelps v. Bd. of Supervisors of Muscatine Cnty., 211 N.W.2d
274, 276 (Iowa 1973). A servitude—“a right to the limited use of a piece of land .
. . without the possession of it,” such as a right-of-way—can amount to a taking.
Servitude, Black’s Law Dictionary (“Servitudes include easements . . . .”);
Easement, Black’s Law Dictionary (recognizing a right-of-way is a type of
easement). It depends on the “continuance or permanency of the government
action” at issue. Kingsway Cathedral, 711 N.W.2d at 10.
Broderick claims Waukee has created a servitude—and has committed a
taking—by “attempt[ing] to reserve nearly [ten] acres of Broderick’s private
property for [a] public right-of-way without paying for it.” Broderick relies on three
pieces of evidence. First, Broderick points to the already-mentioned acquisition
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plats,3 which label a strip of land as “150’ Proposed ROW” and “NE Douglas
Parkway.” Broderick says these “made it clear to Broderick and to all prospective
buyers that a specific portion of Broderick’s private property has been designated
and will be used for a public purpose—Douglas Parkway right-of-way.”
Broderick also points to Waukee’s other construction on and around the
property. For example, Broderick points out that Waukee previously extended
trunk sanitary sewer lines across Broderick’s property—aligning them with the
planned Douglas Parkway right-of-way. And Waukee intends to grade a portion
Broderick’s land to extend Douglas Parkway to the west. Since Douglas Parkway
now ends to the east of Broderick’s land, the result would be a gap in the
roadway—right where Broderick’s land is located.
Finally, Broderick points to a letter from Hubbell Land Development
(Hubbell). The letter identifies “Douglas Parkway” as a factor “that limit[s] the
amount of developable acres and ultimately the price a developer could pay” for
Broderick’s property. The letter states:
Although we have very limited information currently regarding the
Douglas Parkway expansion, it is typical for the developer to pay for
road expansions through their development. There may be [c]ity
dollars put into this road, but at this time it is an unknown, so we have
to assume worst case scenario and that the developer would be
responsible for this cost.
As Waukee points out, though, it “has made no final decision and taken no
final action either to extend or not to extend any portion of Douglas Parkway onto
Broderick’s tract” and “has not approved any permanent or continuing regulations
3These plats were recorded with the Dallas County Recorder, pursuant to Iowa
Code section 6B.35(1).
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or restrictions relating to a future extension of Douglas Parkway that restrict
Broderick’s use of its tract.” Its acquisition plats and placement of trunk sanitary
sewer lines show only a “possible location of a future extension of Douglas
Parkway for reference purposes in drawings” related to the city park and public
high school being developed to the west. And, ultimately, there may “never be a
future extension of Douglas Parkway onto Broderick’s tract,” argues Waukee.
On this record, we agree with Waukee. Broderick has shown no
“permanen[t] . . . government action” by Waukee that definitively establishes the
future placement of Douglas Parkway. See id. Moreover, despite whatever plans
Waukee may have, Douglas Parkway may never be expanded.
And, ultimately, Broderick has only shown evidence of city planning. But
city planning alone does not constitute a taking. Allen Fam. Corp. v. City of Kansas
City, 525 F. Supp. 38, 41 (W.D. Mo. 1981) (“To impose liability upon a city for mere
planning activities would undoubtedly inhibit important and necessary
governmental functions.”); Dock St. Seafood, Inc. v. City of Wildwood, 47 A.3d
785, 793 (N.J. Super. Ct. Law Div. 2011) (“Just because a government plans to
take a property, its plans alone ordinarily do not constitute such a taking.”); NBH
Land Co. v. United States, 576 F.2d 317, 319 (Ct. Cl. 1978) (“[A] threat of
condemnation is not a taking.” (citation omitted)).
We also note that, so far as the record shows, Waukee’s acts have not yet
actually affected Broderick’s use of the property. See Kingsway Cathedral, 711
N.W.2d at 10 (citation omitted) (“[S]ome acts done by government agencies . . .
which affected but did not destroy or prevent all use of the affected property have
been held to be takings . . . .”). As the letter from Hubbell shows, it is possible
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Waukee’s actions will impact Broderick’s future efforts to develop or sell the
property. However, our record does not show that Broderick has submitted a plan
to Waukee for approval of any development. Nor does the record show that
Waukee denied Broderick the right to develop its land in any way. See Agins v.
City of Tiburon, 447 U.S. 255, 260 (1980) (holding that a challenge to the
application of a zoning ordinance was not ripe for review when the property owners
had not yet submitted a plan for development of their property), abrogated on other
grounds by Lingle v. Cheveron U.S.A. Inc., 544 U.S. 528, 531 (2005); see also
Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S.
172, 186 (1985) (“[A] claim that the application of government regulations effects
a taking of a property interest is not ripe until the government entity charged with
implementing the regulations has reached a final decision regarding the application
of the regulations to the property at issue.”), overruled on other grounds by Knick
v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162, 2168 (2019).
In short: Broderick has not shown that Waukee’s acts give it even a limited
right to use the land. Cf. Servitude, Black’s Law Dictionary. Nor has Broderick
shown that—so far—Waukee has inhibited Broderick’s use of the land in any
continual or permanent way. See Kingsway Cathedral, 711 N.W.2d at 10. So, like
the district court, we find “[t]he record fails to sustain any present cause of action
related to any servitude.” And so the present record does not support a takings
claim.
B. Uneconomical Remnant
Broderick also asserts that Waukee “has created an uneconomical remnant
and established a servitude upon the property thereby establishing that there has
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been a taking.” But Broderick does not provide authorities to support a separate
“uneconomical remnant” theory. So we decline to treat it as an adequate ground
for reversal. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in
support of an issue may be deemed waiver of that issue.”).
In any event, we believe the district court resolved this issue properly. “[A]n
‘uneconomical remnant’ is a parcel of real property in which the owner is left with
an interest after the partial acquisition of the owner’s property, where the acquiring
agency determines that the parcel has little or no value or utility to the owner.”
Iowa Code § 6B.54(8). Like the district court, we find “[i]n the absence of a present
‘taking’ by [Waukee], it is impossible for [Broderick] to prove that an ‘uneconomical
remnant’ has been created.” See Johnson Propane, Heating & Cooling, Inc. v.
Iowa Dep’t of Transp., 891 N.W.2d 220, 224 (Iowa 2017).
IV. Conclusion
Broderick has not shown the district court erred by granting summary
judgment to Waukee. We affirm.
AFFIRMED.