Strode v. City of Ashland

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/28/2016 09:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STRODE v. CITY OF ASHLAND
Cite as 295 Neb. 44
R andy Strode and Helen Strode, appellants, v.
City of Ashland, Nebraska, and Saunders
County, Nebraska, appellees.
___ N.W.2d ___
Filed October 28, 2016. No. S-15-956.
1. Judgments: Res Judicata: Collateral Estoppel: Appeal and Error.
The applicability of claim and issue preclusion is a question of law. On
a question of law, an appellate court reaches a conclusion independent
of the court below.
2. Limitations of Actions: Appeal and Error. The point at which a statute
of limitations begins to run must be determined from the facts of each
case, and the decision of the district court on the issue of the statute of
limitations normally will not be set aside by an appellate court unless
clearly wrong.
3. Summary Judgment. Summary judgment is proper when the pleadings
and evidence admitted at the hearing disclose no genuine issue regard-
ing any material fact or the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment as a matter
of law.
4. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment is granted and gives
such party the benefit of all reasonable inferences deducible from
the evidence.
5. Limitations of Actions: Pleadings: Proof. Where a complaint does
not disclose on its face that it is barred by the statute of limitations, a
defend­ant must plead the statute as an affirmative defense and, in that
event, the defendant has the burden to prove that defense.
6. Limitations of Actions: Damages. An action accrues and the statu-
tory time within which the action must be filed begins to run when the
injured party has the right to institute and maintain a lawsuit, although
the party may not know the nature and extent of the damages.
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STRODE v. CITY OF ASHLAND
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7. Limitations of Actions. An aggrieved party has the right to institute and
maintain a lawsuit upon the violation of a legal right.
8. Limitations of Actions: Eminent Domain. In the context of a physical
taking, the statutory period starts running only when a party exercises
dominion over or obtains an interest in the property.
9. Limitations of Actions: Municipal Corporations: Eminent Domain.
In the context of a regulatory taking, a cause of action for inverse con-
demnation begins to accrue when the injured party has the right to insti-
tute and maintain a lawsuit due to a city’s infringement, or an attempt at
infringement, of a landowner’s legal rights in the property.
10. Constitutional Law: Eminent Domain: Limitations of Actions.
Actions commenced under Neb. Const. art. I, § 21, are subject to a
10-year statute of limitations.
11. Constitutional Law: Eminent Domain: Damages. Neb. Const. art. I,
§ 21, provides that the property of no person shall be taken or damaged
for public use without just compensation therefor.
12. Constitutional Law: Eminent Domain. Federal constitutional case
law and Nebraska constitutional case law regarding regulatory takings
are coterminous.
13. Eminent Domain. The U.S. Supreme Court has identified two types
of regulatory actions that constitute categorical or per se takings: (1)
where the government requires an owner to suffer a permanent physi-
cal invasion of his property, however minor, and (2) where regulations
completely deprive an owner of all economically beneficial use of
his property.
14. ____. Regulatory takings challenges are analyzed using essentially ad
hoc, factual inquiries governed by factors which include the economic
impact of the regulation on the claimant, the extent to which the regu-
lation has interfered with distinct investment-backed expectations, and
the character of the governmental action.
15. ____. Land use regulations do not effect a taking merely because the
regulation caused a diminution in property value.
16. ____. A taking may more readily be found when the interference with
property can be characterized as a physical invasion by government,
in contrast to when the interference arises from some public program
adjusting the benefits and burdens of economic life to promote the com-
mon good.
17. Actions: Eminent Domain: Proximate Cause: Proof. For an inverse
condemnation claim to be actionable, the injured party has the burden of
proving that the other party’s action or inaction was the proximate cause
of the damages.
18. Negligence: Proximate Cause: Words and Phrases. The proximate
cause of an injury is that which, in a natural and continuous sequence,
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STRODE v. CITY OF ASHLAND
Cite as 295 Neb. 44
without any efficient intervening cause, produces the injury, and without
which the injury would not have occurred.
Appeal from the District Court for Saunders County: M ary
C. Gilbride, Judge. Affirmed.
Terry K. Barber, of Barber & Barber, P.C., L.L.O., for
appellants.
Mark A. Fahleson and Sheila A. Bentzen, of Rembolt Ludtke,
L.L.P., for appellee City of Ashland.
Duke Drouillard and Steven J. Twohig, Deputy Saunders
County Attorneys, for appellee Saunders County.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Heavican, C.J.
I. INTRODUCTION
Randy Strode and Helen Strode seek review of the district
court’s decision dismissing Randy’s zoning regulation inverse
condemnation claim, granting a motion for summary judgment
on Helen’s zoning regulation inverse condemnation claim, and
granting a motion for summary judgment on the Strodes’ tak-
ings claim based on the load limit posted on a bridge located
near their property. We affirm.
First, we hold that Randy is barred from bringing his inverse
condemnation claim, because the statute of limitations on his
claim for compensation began to accrue at the time the City of
Ashland (the City) notified Randy that the use of the property
was in violation of the ordinance. Next, we turn to Helen’s
claim. We similarly dispose of that claim based on the statute
of limitations, because, as a joint owner, she has the same
rights in the property as Randy. Finally, we hold that sum-
mary judgment was appropriate on the Strodes’ bridge takings
claim, because the load limit on the bridge does not amount to
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STRODE v. CITY OF ASHLAND
Cite as 295 Neb. 44
a regulatory taking of the property and there are no issues of
material fact.
II. BACKGROUND
Randy and Helen are residents of Saunders County, Nebraska.
They are married.
1. Zoning Violation
Randy owns real property on Block 16, Lots 1, 2, and 3, and
Randy and Helen jointly own real property on Block 16, Lots
7 through 12, and Block 21, Lots 10 and 11, of Stambaugh’s
Addition, in Ashland, Saunders County, Nebraska. On April
29, 1999, Randy purchased Lots 1, 2, and 3 of Block 16
from Greenwood Farmers Cooperative. On November 2, 2000,
Randy and Helen purchased Lots 10, 11, and 12 of Block 16
from Donald D. Strode and Lucille D. Strode. On December
20, 2001, Randy and Helen purchased Lots 7, 8, and 9 of Block
16 from Donald and Lucille. On April 18, 2002, Randy and
Helen purchased Lots 10 and 11 of Block 21 from David L.
Hancock. The property was zoned Public (PUB) by ordinance
No. 808, passed and approved on March 5, 1998, prior to the
Strodes’ purchase of the property. The ordinance provides in
pertinent part:
ARTICLE 2: DEFINITIONS
....
Section 2.02 Definitions.
....
Non-conforming Use is an existing use of a structure
or land which does not comply in some respect with the
use regulations applicable to new uses in the zoning dis-
trict in which it is located.
....
Variance A variance is a relaxation of the terms of
the Zoning Ordinance where such variance will not be
contrary to the public interest and where, owing to con-
ditions peculiar to the property and not the result of the
actions of the applicant, a literal enforcement of the
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STRODE v. CITY OF ASHLAND
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Ordinance would result in unnecessary and undue hard-
ship. As used in this Ordinance, a variance is authorized
only for height, area, and size of structure or size of yards
and open spaces; establishment or expansion of a use
otherwise prohibited shall not be allowed by variance,
nor shall a variance be granted because of the presence
of non-conformities in the zoning district or uses in an
adjoining district.
....
ARTICLE 4: GENERAL PROVISIONS
....
Section 4.20 Nonconforming Uses.
1. Nonconforming Uses of Land: Where at the effective
date of adoption or amendment of this ordinance, law-
ful use of land exists that is made no longer permissible
under the terms of this ordinance as enacted or amended,
such use may be continued so long as it remains other-
wise lawful, subject to the following provisions:
a. No such conforming use shall be enlarged or
increased, nor extended to occupy a greater area of land
than was occupied at the effective date of adoption or
amendment [of] this ordinance;
b. No such nonconforming use shall be moved in
whole or in part to any other portion of the lot or parcel
occupied by such use at the effective date of adoption or
amendment of this ordinance.
c. If any such nonconforming use of land ceases for
any reason for a period of more than twelve (12) months,
any subsequent use of such land shall conform to the
regulations specified by this ordinance for the district in
which such land is located.
....
ARTICLE 5: ZONING DISTRICTS
....
Section 5.15 PUB Public and Semi-Public Districts
1. Intent. The Public and Semi-Public District desig-
nates those areas reserved for public use and recreation.
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STRODE v. CITY OF ASHLAND
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2. Permitted Uses
a. Recreational uses including the following: parks,
ball fields, swimming pools, soccer fields, trails, and
associated uses.
b. Other public uses including: cemeteries and
fairgrounds.
3. Permitted Special uses (reserved)
4. Accessory Uses
Since the time of purchase, the Strodes have operated a
business for the manufacture of agricultural fencing and the
storage of salvage on the property. Between November 2002
and June 10, 2003, the City zoning administrator repeatedly
notified Randy that his use of the property was in violation of
the City’s code and regulations and requested Randy to rem-
edy his violations. Initially, Helen contended that she did not
become aware of the zoning violation until Randy mentioned it
to her in June 2002, but later testified that she was unaware of
the violation notices until May or June of 2003.
2. City’s 2003 R equest for Injunction
The City filed for an injunction against Randy’s noncon-
forming use of the property on September 5, 2003. Randy
alleged in his amended answer that the zoning regulations
were ineffective and void because they amounted to a taking
of the property without just compensation. In his prayer for
relief, Randy asked only that the City’s complaint be dismissed
at the City’s costs. He did not set forth a counterclaim for
inverse condemnation.
The district court held that Randy’s use of the property to
store salvage was in violation of the zoning ordinance and
granted the City’s request for an injunction. The district court
also found that the manufacture of agricultural fencing on
Block 16, Lots 7 through 12, was permitted as a continuing,
nonconforming use.
Randy appealed from the award of the injunction. On
appeal, Randy argued that the regulations amounted to a
taking without just compensation. The Nebraska Court of
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STRODE v. CITY OF ASHLAND
Cite as 295 Neb. 44
Appeals affirmed the district court’s decision and found
Randy’s arguments concerning inverse condemnation to be
without merit. The Court of Appeals noted that its review was
“confined to questions which had been determined by the trial
court,” and thus it could not address the claim.1 However, the
Court of Appeals did observe that there was “nothing in the
record to show the [inverse condemnation] claim would be
ripe for review.”2
3. 2004 Bridge Load Limit Violation
The property may be reached by two access points: (1) a
railroad underpass and (2) a bridge located inside the corporate
limits of the City with a posted load limit of 14 tons.
The Strodes use the bridge for transporting commercial
goods with semitrailer trucks that exceed the load limit. On
June 23, 2004, the county highway superintendent mailed
notice to Randy that his use of the bridge violated the posted
weight limit.
4. 2013 Suit for Inverse Condemnation
On September 5, 2013, Randy and Helen filed suit against
the City, Saunders County (hereinafter the County), and the
Nebraska Department of Roads for inverse condemnation
based on the zoning ordinance and the load limit regulation
of the bridge. The cause of action against the Department of
Roads was dismissed, apparently because the bridge was not
under the jurisdiction of the State. The district court held that
Randy’s zoning takings claim was barred by claim preclusion
because it was a matter that was litigated in the 2003 case.
The district court did not dismiss Helen’s zoning takings
claim because the record did not contain sufficient informa-
tion from which the court could determine whether Helen’s
claim was precluded. The district court overruled the County’s
1
City of Ashland v. Strode, No. A-05-467, 2007 WL 1276944, *7 (Neb.
App. May 1, 2007) (not designated for permanent publication).
2
Id.
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motion to dismiss the Strodes’ takings claim in regard to the
bridge load limit.
The district court subsequently held that Helen’s zoning
takings claim was barred by the statute of limitations because
she was aware of the effect of the zoning ordinance after June
2003. The district court noted that the applicable statute of
limitations was 10 years. As such, Helen’s claim, which she
discovered in June 2003, was barred as of June 2013, prior
to her filing suit in September 2013. Finally, the district court
dismissed the Strodes’ bridge takings claim. The court held
that the restrictions on the bridge did not amount to a tak-
ing, because there was reasonable access to the property via
an underpass and the bridge—provided the restrictions are
observed. The Strodes appeal.
III. ASSIGNMENTS OF ERROR
On appeal, the Strodes assign, restated and consolidated,
that the district court erred in (1) granting the City’s motion
to dismiss by determining Randy’s claim was precluded by
earlier litigation, (2) determining that Helen’s regulatory tak-
ings claim was barred by the applicable statute of limitations,
(3) finding that the regulation of the bridge structure was not a
regulatory taking, and (4) granting the City’s and the County’s
motions for summary judgment.
IV. STANDARD OF REVIEW
[1] The applicability of claim and issue preclusion is a ques-
tion of law. On a question of law, we reach a conclusion inde-
pendent of the court below.3
[2] The point at which a statute of limitations begins to run
must be determined from the facts of each case, and the deci-
sion of the district court on the issue of the statute of limita-
tions normally will not be set aside by an appellate court unless
clearly wrong.4
3
Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812 (2014).
4
Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002).
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STRODE v. CITY OF ASHLAND
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[3,4] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
regarding any material fact or the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.5 In reviewing a summary judg-
ment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment is granted
and gives such party the benefit of all reasonable inferences
deducible from the evidence.6
V. ANALYSIS
1. R andy’s Takings Claim
In their first assignment of error, the Strodes argue that
Randy’s takings claim is not subject to claim preclusion because
the issue was not ripe until the district court’s decision in the
2003 case. The City argues that Randy’s takings claim was ripe
as early as the time Randy purchased the property and as late
as June 10, 2003, because the permissible uses of the property
were known to a reasonable degree of certainty. The district
court dismissed Randy’s takings claim because the issues were
litigated in the 2003 case. Before discussing ripeness, we must
determine whether Randy’s takings claim is barred by the stat-
ute of limitations.
[5] The general rule is that where a complaint does not
disclose on its face that it is barred by the statute of limita-
tions, a defendant must plead the statute as an affirmative
defense and, in that event, the defendant has the burden to
prove that defense.7 The Strodes’ complaint did not disclose
on its face that it was time barred by the statute of limita-
tions. However, the City pleaded the statute of limitations as
5
State ex rel. Wagner v. Gilbane Bldg. Co., 276 Neb. 686, 757 N.W.2d 194
(2008).
6
Id.
7
Lindner v. Kindig, 285 Neb. 386, 826 N.W.2d 868 (2013).
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an affirmative defense in its answer and argued at oral argu-
ment that the ­statute of limitations barred both of the Strodes’
claims. Therefore, the statute of limitations has been raised as
to both Randy’s and Helen’s takings claims.
[6,7] “The statute of limitations in an inverse condemna-
tion proceeding is 10 years.”8 When applying a statute of
limitations, we have held that “[a]n action accrues and the
statutory time within which the action must be filed begins to
run when the injured party has the right to institute and main-
tain a lawsuit, although the party may not know the nature
and extent of the damages.”9 An aggrieved party has the right
to institute and maintain a lawsuit “upon the violation of a
legal right.”10
We discussed the statute of limitations for an inverse
condemnation action in the context of physical takings in
Western Fertilizer v. City of Alliance.11 In that case, BRG,
Inc., purchased property from Western Fertilizer and Cordage
Company, Inc. (Western) in 1976, planning to develop the
land for residential use. BRG authorized the City of Alliance
to improve the property, so in April 1977, the city passed two
ordinances approving the plat of an addition that contained a
dedication of the streets, alleys, and public grounds therein
to the use and benefit of the public. In August, Western
signed a dedication for part of the property. In October, BRG
gave Western a promissory note secured by a mortgage on
the property. Between November 1978 and October 1981,
BRG signed more dedications and the city passed several
8
Western Fertilizer v. City of Alliance, 244 Neb. 95, 108, 504 N.W.2d 808,
817 (1993) (citing Neb. Rev. Stat. § 25-202 (Reissue 1989)).
9
Steuben v. City of Lincoln, 249 Neb. 270, 272-73, 543 N.W.2d 161, 163
(1996).
10
Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 452, 590 N.W.2d 380, 389
(1999).
11
Western Fertilizer v. City of Alliance, supra note 8.
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ordinances approving plats and establishing sewer, water, and
street improvement districts in the property. In 1985, Western
initiated foreclosure proceedings because BRG defaulted on
the mortgage. In 1988, Western purchased the land at a sher-
iff’s sale. In 1990, Western instituted an inverse condemnation
action against the city.
[8] The city argued that the statute of limitations barred
Western’s action. According to the city, Western’s cause of
action accrued when the dedications were made and the ordi-
nances were passed. We stated that Western received notice
of the city’s claim when the plats were recorded, but that
the record did not reflect when that occurred. We cautioned,
“[T]he fact that the [c]ity claimed an interest in the property
may not be sufficient to start the statutory period running if
the [c]ity did not put the property to public use.”12 We then
determined that “the statutory period would have started run-
ning only when the [c]ity exercised dominion over or obtained
an interest in the property.”13 But because the record was silent
as to when the city began construction of the improvements
pursuant to the ordinances or when the construction was com-
pleted, we could not determine when the city exercised physi-
cal control over the property. Ultimately, we concluded that
the date of any taking was a factual question that needed to be
determined by the trial court.
In Steuben v. City of Lincoln,14 this court also addressed
when the statutory period starts running for an inverse con-
demnation action in a physical taking. In 1986, Charles and
Rebecca Steuben acquired property that was located on a
plat adjacent to a railroad fill. The embankment for the rail-
road fill was “substantially higher than the Steubens’ prop-
erty, [and] block[ed] the natural drainage flowing northerly
12
Id. at 111, 504 N.W.2d at 819.
13
Id. at 112, 504 N.W.2d at 819.
14
Steuben v. City of Lincoln, supra note 9.
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behind the property.”15 Within the embankment were cul-
verts through which surface water draining could pass. In
1990, rainfall caused the embankment to overflow into the
Steubens’ house due to a clogged culvert. The Steubens con-
tended that the flooding of their house constituted a physical
taking, and they filed an inverse condemnation claim against
the city. While this court did not specify when the Steubens’
inverse condemnation claim accrued, it set forth guidance for
when an inverse condemnation claim for a physical taking
generally accrues. This court stated that “[a]n action accrues
and the statutory time within which the action must be filed
begins to run when the injured party has the right to institute
and maintain a lawsuit, although the party may not know
the nature and extent of the damages.”16 Accordingly, “[t]he
Steubens filed their claim well within 10 years of any event
which would have given them the right to institute and main-
tain a lawsuit.”17
This court has not specifically addressed when the statu-
tory period starts running in an inverse condemnation action
in the context of regulatory takings, but we find guidance
in Western Fertilizer. There, we discussed a decision from
the Iowa Supreme Court involving an inverse condemnation
action brought following the enactment of restrictive zon-
ing regulations.18 We observed that the Iowa Supreme Court,
in considering whether the statute of limitations barred the
action, stated that “‘the passage of the permanent ordinance
had immediate adverse economic consequences for plaintiffs.
The regulation’s impact on the development potential and
market value of the property was immediate, and constituted
15
Id. at 271-72, 543 N.W.2d at 162.
16
Id. at 272-73, 543 N.W.2d at 163.
17
Id. at 273, 543 N.W.2d at 163.
18
See Western Fertilizer v. City of Alliance, supra note 8.
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a single injury.’”19 We noted that under the facts of Western
Fertilizer, “BRG’s dedications and passage of the city ordi-
nances had an immediate impact on Western’s interest in
the property.”20
In Lindner v. Kindig,21 this court considered a constitutional
challenge to an ordinance establishing an off-street parking
district and specifying funding mechanisms. Arguably, at least
one funding mechanism was not challenged, and our principal
difficulty in that case was determining, from the face of the
complaint, “when appellees made the decision choosing the
specific funding mechanism to be used or implemented that
decision.”22 But Lindner was not an inverse condemnation
case, and it addressed a different statute of limitations than the
one which applies in this case.
We also look to other jurisdictions for guidance. Some
jurisdictions have held that the statute of limitations on a
regulatory takings claim begins to run when the petitioner has
actual notice of the regulatory taking.23 Other jurisdictions
have determined that the statute of limitations begins to run
when the petitioner has record notice.24 Still other jurisdictions
19
Id. at 110, 504 N.W.2d at 818 (quoting Scott v. City of Sioux City, 432
N.W.2d 144 (Iowa 1988)).
20
Id. at 110, 504 N.W.2d at 818.
21
Lindner v. Kindig, supra note 7.
22
Id. at 393, 826 N.W.2d at 873 (emphasis in original).
23
See, e.g., Scott v. City of Sioux City, supra note 19 (statute of limitations
began to run no later than when plaintiffs filed action seeking recovery
for inverse condemnation because it indicates they believed they had
sustained injury at that time).
24
See, e.g., Klumpp v. Borough of Avalon, 202 N.J. 390, 409-10, 997
A.2d 967, 978 (2010) (“[u]nder either principle for accomplishing the
taking—physical or regulatory—following the governmental seizure of the
property, the cause of action for inverse condemnation begins to accrue
on ‘the date the landowner becomes aware or, through the exercise of
reasonable diligence, should have become aware, that he or she had been
deprived of all reasonably beneficial use’”).
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have held that the statute of limitations begins to run when the
land use regulation is passed, because that provides sufficient
notice to landowners.25
[9] We now hold that in the context of a regulatory tak-
ing, a cause of action for inverse condemnation begins to
accrue when the injured party has the right to institute and
maintain a lawsuit due to a city’s infringement, or an attempt
at infringement, of a landowner’s legal rights in the property.
This is consistent with our holding in Western Fertilizer in
regard to inverse condemnation actions in the context of
physical takings requiring more than a city’s claiming an
interest in the property; the city must exercise dominion over
or obtain an interest in the property for the statutory period to
start running.
In determining when a cause of action for inverse con-
demnation accrued in this case, the relevant inquiry is when
the Strodes had the right to institute and maintain a lawsuit
against the City for the infringement or attempt at infringe-
ment of the legal right to use the property as they wished,
because the City exercised dominion over or obtained an
interest in the property. The City passed the ordinance in
1998. As in Western Fertilizer, the passage of the ordinance
indicated that the City claimed an interest in the property, but
it was not sufficient to toll the statute of limitations. The City
acted to implement the ordinance on the property (1) when the
City zoning administrator repeatedly notified the Strodes of
25
See, e.g., Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir.
1993) (“cause of action under section 1983 accrued upon the passage
of the ordinance”); Fredrick v. Northern Palm Beach Cty. Imp., 971 So.
2d 974 (Fla. App. 2008) (statute of limitations began to accrue either
from date assessments were created or from date city approved them, as
this provided property owners with adequate notice); Lowenberg v. City
of Dallas, 168 S.W.3d 800, 802 (Tex. 2005) (“[g]enerally, a cause of
action accrues when a wrong produces an injury[, and in] a regulatory
taking, it is passage of the ordinance that injures a property’s value or
usefulness”).
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their nonconforming use of the property between November
2002 and June 10, 2003, and (2) on June 10, 2003, when the
City zoning administrator mailed Randy notice of his noncon-
forming use and the City’s intention to institute legal action if
the Strodes did not conform their use to the PUB designation
of the property. At both of these times, the City’s actions had
an adverse economic impact on the Strodes’ right to use the
property in the commercial manner that they wished. This
gave rise to the Strodes’ right to institute and maintain a law-
suit against the City for its implementation of the ordinance
upon the property. Therefore, at the latest, the City’s June 10
letter to Randy stating its intent to institute legal proceedings
against him began the running of the statute of limitations on
the Strodes’ claims. Randy filed his inverse condemnation
claim on September 5, 2013. This exceeds the 10-year statute
of limitations for inverse condemnation claims. Therefore,
Randy’s inverse condemnation claim is barred by the statute
of limitations.
We note that the district court, in response to the City’s
motion to dismiss, relied on ripeness and claim preclusion
in dismissing Randy’s inverse condemnation claim. We reach
the same ultimate conclusion, but we rely upon the applicable
statute of limitations defense. We further note that the district
court also concluded that Helen’s takings claim was time
barred. Because Randy received notice from the City of its
implementation of the zoning ordinance upon the property at
the same time, or earlier, than did Helen, Randy’s claim would
necessarily also be barred by the statute of limitations under
the district court’s analysis.
The Strodes’ first assignment of error is without merit.
2. Helen’s Takings Claim
We turn next to Helen’s zoning takings claim. The Strodes
argue that the statute of limitations on Helen’s separate
claim for inverse condemnation did not begin to run until
the completion of the 2003 litigation. In the alternative, the
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Strodes argue that the time at which Helen received notice
of the inverse condemnation claim is a disputed issue of
material fact. The City contends that the statute of limita-
tions began to run when the Strodes purchased the property
in April 1999, because it was zoned as PUB at that time.
Alternatively, the City argues that Helen’s inverse condemna-
tion claim is barred by claim preclusion, because she is in
privity with Randy.
In dismissing Helen’s claim, the district court held that
Helen’s claim relating to the zoning ordinance was barred by
the statute of limitations, because (1) her interests in the prop-
erty were acquired after the zoning ordinance was in place in
1998 and (2) she was aware of the effect of the zoning ordi-
nance on the property since June 2003. We hold that Helen first
had the right to institute and maintain a lawsuit in June 2003 at
the latest, when the City sent written notification to Randy of
the Strodes’ nonconforming use of the property and its intent to
institute legal proceedings.
[10] “Actions commenced under article I, § 21, are sub-
ject to a 10-year statute of limitations.”26 As we mentioned
above, when applying a statute of limitations, we have held
that “[a]n action accrues and the statutory time within which
the action must be filed begins to run when the injured party
has the right to institute and maintain a lawsuit, although the
party may not know the nature and extent of the damages.”27
An aggrieved party has the right to institute and maintain a
lawsuit “upon the violation of a legal right.”28
As coowner with Randy of Block 16, Lots 7 through 12,
and Block 21, Lots 10 and 11, of the property, Helen essen-
tially has the same rights in those lots as Randy. The statute
26
Steuben v. City of Lincoln, supra note 9, 249 Neb. at 272, 543 N.W.2d at
163 (citing § 25-202).
27
Id. at 272-73, 543 N.W.2d at 163.
28
Reinke Mfg. Co. v. Hayes, supra note 10, 256 Neb. at 452, 590 N.W.2d at
389.
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of limitations began to run on Helen’s takings claim “upon
the violation of a legal right.” Since Helen’s rights in the lots
are essentially the same rights as Randy’s, the same act by the
City to implement the ordinance that infringed or attempted
to infringe upon Randy’s rights in the property applies to
Helen’s claim.
Therefore, the statute of limitations began to run on Helen’s
takings claim at the same time as Randy’s inverse condemna-
tion claim. As reasoned above, the statute of limitations began
to run on Randy’s inverse condemnation claim when the City
infringed upon the Strodes’ right to use the property as they
wished by exercising dominion over or obtaining an inter-
est in the property and gave rise to their right to institute and
maintain a lawsuit. As we held above, the statute of limitations
began to run at the latest on June 10, 2003, when the City
zoning administrator mailed Randy notice of his nonconform-
ing use and the City’s intention to institute legal action if the
Strodes did not conform their use to the PUB designation of
the property. Helen filed her action on September 5, 2013. This
exceeds the 10-year statute of limitations for a takings claim.
Accordingly, we hold that Helen’s zoning takings claim is
barred by the statute of limitations.
The Strodes contend that the time at which Helen received
actual notice of the ordinance is an issue of material fact,
making summary judgment inappropriate. Helen initially tes-
tified that she did not become aware of the ordinance until
Randy mentioned it to her in June 2002; she later altered her
testimony to say that it was not until May or June 2003. This
coincides with the time that Randy received the letter from
the City zoning administrator on June 10, 2003. While Helen
stated in her testimony that she could not remember if she
discovered the City’s ordinance on the property because of
the City’s letter to Randy, the timing suggests that the letter
was a reason why Helen learned of the ordinance. However,
it was not necessary for Helen to know the “nature and extent
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of the damages”29 ultimately provided by the 2003 district
court decision. The relevant inquiry is when the City infringed
or attempted to infringe upon Helen’s right to use the prop-
erty as she wished and gave rise to her right to institute and
maintain a lawsuit, not when Helen received actual notice of
the ordinance affecting the property. Therefore, it is not an
issue of material fact as to when Helen contends she received
actual notice.
The district court reasoned that the statute of limita-
tions had run on Helen’s zoning takings claim, because she
acquired the property after the zoning ordinance was in place
and she was aware of the effect of the zoning ordinance on
the property since June 2003. We reach the same conclusion
as the district court, but we disagree with the district court’s
reasoning that actual notice is required for the statute of limi-
tations to run.
Because we hold that Helen’s claim is barred by the stat-
ute of limitations, we will not discuss whether Helen’s claim
is also barred due to the doctrine of claim preclusion. The
Strodes’ second assignment of error is without merit.
3. Bridge Takings Claim
In their third assignment of error, the Strodes argue that
summary judgment was not appropriate because there is a gen-
uine issue of material fact whether the load limit on the bridge
allows reasonable access to the property. The City argues sum-
mary judgment was appropriate because the Strodes failed to
show they were denied reasonable access to the property. The
district court held the record was undisputed that there was
reasonable access to the property via an underpass and via the
bridge, provided the restrictions were observed. At issue is
whether there is a dispute of material fact that the load limit
on the bridge amounts to a taking.
29
See Steuben v. City of Lincoln, supra note 9, 249 Neb. at 272, 543 N.W.2d
at 163.
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[11,12] Neb. Const. art. I, § 21, provides that the “prop-
erty of no person shall be taken or damaged for public use
without just compensation therefor.” As we explained in
Scofield v. State,30 the U.S. Supreme Court has clarified the
law surrounding regulatory takings claims and provided a
framework under which such claims are to be addressed. This
court has held that federal constitutional case law and our
state constitutional case law regarding regulatory takings are
“coterminous.”31
[13] The U.S. Supreme Court has identified two types of
regulatory actions that constitute categorical or per se tak-
ings: (1) where the government requires an owner to suffer a
permanent physical invasion of his property, however minor,
and (2) where regulations completely deprive an owner of
all economically beneficial use of his property.32 Neither
applies here.
[14] Outside these two relatively narrow categories, regula-
tory takings challenges are analyzed using “essentially ad hoc,
factual inquiries” governed by the factors set forth in Penn
Central Transp. Co. v. New York City.33 These include the
economic impact of the regulation on the claimant, the extent
to which the regulation has interfered with distinct investment-
backed expectations, and the character of the governmen-
tal action.34
We have held that “‘“[t]he right to full and free use and
enjoyment of one’s property in a manner and for such purposes
30
Scofield v. State, 276 Neb. 215, 753 N.W.2d 345 (2008).
31
Id. at 231, 753 N.W.2d at 358.
32
Scofield v. State, supra note 30.
33
Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.
Ct. 2646, 57 L. Ed. 2d 631 (1978). See, MacDonald, Sommer & Frates
v. Yolo County, 477 U.S. 340, 106 S. Ct. 2561, 91 L. Ed. 2d 285 (1986);
Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, 287 Neb. 779, 844
N.W.2d 755 (2014).
34
Penn Central Transp. Co. v. New York City, supra note 33; Strom v. City of
Oakland, 255 Neb. 210, 583 N.W.2d 311 (1998).
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as the owner may choose, so long as it is not for the mainte-
nance of a nuisance or injurious to others, is a privilege pro-
tected by law.”’”35 This court recognizes that
a property owner suffers a compensable damage on account
of the construction or vacation of a public road when
egress and ingress to his property are cut off or interfered
with and he has no other reasonable means of access.
The right of access under such circumstances is property
which cannot be taken from him without compensation.36
And in their complaint, the Strodes allege the City’s and
the County’s actions through “limiting access to their property
have substantially diminished the values of [their] land and
business enterprises without compensation.” Consequently, the
Strodes prayed for an order requiring the City and the County
“to properly repair and maintain the bridge structure” and
“[m]onetary damages for the loss of value and harm, tem-
porary and/or permanent, to [their] real property and busi-
ness operations.”
[15] However, the U.S. Supreme Court clarified the extent of
the economic impact of a regulation required to receive com-
pensation. The Court recognized that in “instances in which
a state tribunal reasonably concluded that ‘the health, safety,
morals, or general welfare’ would be promoted by prohibiting
particular contemplated uses of land, this Court has upheld
land-use regulations that destroyed or adversely affected rec-
ognized real property interests.”37 Thus, land use regulations
“do not effect a taking merely because the regulation caused a
diminution in property value alone.”38 For example, this court
35
Scofield v. State, supra note 30, 276 Neb. at 234, 753 N.W.2d at 360
(quoting State v. Champoux, 252 Neb. 769, 566 N.W.2d 763 (1997)).
36
Fougeron v. County of Seward, 174 Neb. 753, 759, 119 N.W.2d 298, 303
(1963).
37
Penn Central Transp. Co. v. New York City, supra note 33, 438 U.S. at
125.
38
Strom v. City of Oakland, supra note 34, 255 Neb. at 220, 583 N.W.2d at
318.
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has held that “one-third diminution in fair market value alone,
if true, would be insufficient to establish a regulatory taking or
damages.”39 And even if the landowner loses “50 percent of the
value of the property, that level of diminution in value gener-
ally does not equate to a regulatory taking under U.S. Supreme
Court precedents.”40 These cases concern land use regulations,
but they are helpful in analyzing the economic impact of load
limit regulations.
This court has held that diminution of property value due
to regulation of streets that do not abut the property requires
a greater showing of damages. In Kraft & Sons, Inc. v. City of
Lincoln,41 we held that a person may only recover for vacation
of a street that does not abut his property if he has “sustained
an injury different in kind, and not merely in degree, from that
suffered by the public at large” and it is insufficient to show
he must go “a more roundabout way.”
In Fougeron v. County of Seward,42 we held that a landowner
could not enjoin a city from barricading one of two streets
leading to his property when he could claim “only such incon-
venience or injury as is suffered by the public generally, even
though his inconvenience may be greater in degree.” Therefore,
mere inconvenience is not enough to claim damages.
The Federal Circuit explained that recovery for injury to
investment-backed expectations is limited to those “‘owners
who can demonstrate that they bought their property in reli-
ance on the non-existence of the challenged regulation.’”43
39
Id. at 221, 583 N.W.2d at 319.
40
Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, supra note 33, 287
Neb. at 798, 844 N.W.2d at 770.
41
Kraft & Sons, Inc. v. City of Lincoln, 182 Neb. 187, 190, 153 N.W.2d 725,
727 (1967).
42
Fougeron v. County of Seward, supra note 36, 174 Neb. at 760, 119
N.W.2d at 304.
43
Good v. U.S., 189 F.3d 1355, 1360 (Fed. Cir. 1999) (quoting Creppel v.
U.S., 41 F.3d 627 (Fed. Cir. 1994)).
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These expectations must be reasonable.44 This court has held
that “a property owner is presumed to know the law affecting
his property.”45
[16] In regard to the character of government action, the
U.S. Supreme Court held that a “‘taking’ may more readily be
found when the interference with property can be character-
ized as a physical invasion by government.”46 In contrast to
“when interference arises from some public program adjust-
ing the benefits and burdens of economic life to promote the
common good.”47
The regulation prevents the Strodes from transporting their
goods across the bridge in semitrailer trucks that exceed 14
tons. But the Strodes can use the railroad underpass for semi-
trailer trucks that exceed the 14-ton weight limit. Randy con-
tends that this is not an adequate alternative, because the
height of the railroad underpass is 11 feet 3 inches, and when
he transports bulk amounts from his business, the semitrailer
trucks usually reach 13 feet 6 inches. Randy testified that when
he transports his fencing in smaller loads, he can use smaller
trucks. The load limit on the bridge restricts Randy to using
either semitrailer trucks that weigh less for access across the
bridge or trucks of a limited height for access through the
railroad underpass. This may be a “more roundabout way” to
perform his business, in which he incurs some damages, but it
does not constitute an injury different in kind than the general
public, only different in terms of degree.48
44
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S. Ct. 2862, 81 L. Ed. 2d
815 (1984).
45
Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, supra note 33, 287
Neb. at 798, 844 N.W.2d at 770.
46
Penn Central Transp. Co. v. New York City, supra note 33, 438 U.S. at
124.
47
Id.
48
See Kraft & Sons, Inc. v. City of Lincoln, supra note 41, 182 Neb. at 190,
153 N.W.2d at 727.
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The Strodes have failed to present any evidence that the
weight limit of the bridge decreases the economic value of the
property. Randy testified that it cost two to three times more
to transport steel in smaller loads rather than in bulk, but he
did not conduct any analyses to either substantiate this claim
or determine how the property has diminished in value by the
weight limits on the bridge.
Nor have the Strodes proved that the load limit interfered
with any of their investment-backed expectations. The load
limit was posted on the bridge at least as early at 1990, prior
to the Strodes’ purchase of the land. Any investment-backed
expectations in the property based on the use of the bridge
were not reasonable.
The character of the governmental intrusion also weighs in
favor of the conclusion that there was no taking. The charac-
ter of the governmental action was not a physical invasion of
the land, but, rather, a regulation in place prior to the Strodes’
purchase of the adjacent property. Based on the Penn Central
Transp. Co. factors, the regulation of the bridge does not con-
stitute a regulatory taking.
We conclude that the district court did not err in finding that
summary judgment as to the Strodes’ bridge takings claim was
appropriate. There is no dispute of material fact that the load
limit does not amount to a regulatory taking. The Strodes’ third
assignment of error is without merit.
4. R emaining Issues of M aterial Fact
Finally, the Strodes assign that summary judgment was
inappropriate because issues of material fact exist. The Strodes
argue that issues of material fact exist concerning whether
either the City or the County has authority over the bridge and
whether the County has authority over the PUB zoning clas-
sification of the property. They further argue that neither the
City nor the County has met its prima facie burden with regard
to the issues of causation and damages. The district court held
that there were no issues of material fact.
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Summary judgment is proper only when the pleadings,
depositions, admissions, stipulations, and affidavits in the
record disclose that there is no genuine issue as to any mate-
rial fact 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.49 In the summary judgment con-
text, a fact is material only if it would affect the outcome of
the case.50
(a) Authority Over Bridge
The Strodes argue that summary judgment is inappropriate
because government authority over the bridge is unsettled. As
we established above, the load limit of the bridge does not
amount to a regulatory taking. Whether the City or the County
has authority over the bridge does not affect the outcome of
the case. Therefore, any dispute of fact concerning authority
over the bridge is not a disputed material fact.
(b) Authority Over PUB
Zoning Classification
The Strodes contend that summary judgment is inappro-
priate because the County failed to provide evidence of its
authority over the zoning ordinance. The County asserted in
its answer that it does not have statutory authority to regulate
or restrict the Strodes’ use of the property in a way that could
result in a taking, nor did it perform any act to regulate or
restrict the Strodes’ use of the property that could result in
a taking. As we have already established, the passage of the
ordinance does not amount to a taking of the property. The
City passed and approved the ordinance. Only the City, not
the County, has sought to enforce the ordinance against the
Strodes. The disputed fact as to whether the County also had
statutory authority to enforce the ordinance does not affect the
outcome of the case.
49
Darrah v. Bryan Memorial Hosp., 253 Neb. 710, 571 N.W.2d 783 (1998).
50
Brock v. Dunning, 288 Neb. 909, 854 N.W.2d 275 (2014).
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(c) Issues of Causation
and Damages
[17,18] The Strodes argue that the City and the County
have failed to produce evidence of causation. For an inverse
condemnation claim to be actionable, the injured party has
the burden of proving that the City’s action or inaction was
the proximate cause of the damages.51 The proximate cause of
an injury is that which, in a natural and continuous sequence,
without any efficient intervening cause, produces the injury,
and without which the injury would not have occurred.52 It
must also be shown that the invasion of property rights was
intended or was the foreseeable result of authorized govern-
mental action.53
The Strodes had the burden of proving that the City’s action
or inaction was the proximate cause of the claimed decreased
economic value of their land due to the bridge’s load limit. As
stated above, the Strodes have failed to present any evidence
that the weight limit of the bridge decreases the economic
value of the property. They neither established that they sus-
tained an injury different in kind from the general public nor
that their injury was proximately caused by the City or the
County. Furthermore, the Strodes have not asserted sufficient
facts to establish the City and the County knew or could fore-
see that a load limit on the bridge would result in the taking
or damaging of private property. Therefore, the Strodes have
not established causation.
The Strodes wrongly contend that the City and the County
have not met the prima facie burden with regard to damages.
We have held that the initial question is whether the govern-
mental entity’s actions constituted the taking or damaging of
property for public use.54 Only after it has been established
51
Steuben v. City of Lincoln, supra note 9.
52
Id.; Moore v. State, 245 Neb. 735, 515 N.W.2d 423 (1994).
53
Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 (2013).
54
Id.
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that a compensable taking or damage has occurred should con-
sideration be given to what damages were proximately caused
by the taking or damaging for public use.55 The Strodes have
not established that the City’s or the County’s actions consti-
tuted a compensable taking, and thus damages do not need to
be addressed. The Strodes’ final assignment of error is with-
out merit.
VI. CONCLUSION
The district court did not err in finding in favor of the City
and the County. The decision of the district court is affirmed.
A ffirmed.
55
Id.