Dept. of Forests, Parks and Recreation v. Town of Ludlow Zoning Board
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Dept. of Forests, Parks and Recreation v. Town of Ludlow Zoning Board
(2002-336); 177 Vt. 623; 869 A.2d 603
2004 VT 104
[Filed 20-Oct-2004]
[Motion for Reargument Denied 07-Jan-2005]
ENTRY ORDER
2004 VT 104
SUPREME COURT DOCKET NO. 2002-336
JUNE TERM, 2004
Department of Forests, Parks and } APPEALED FROM:
Recreation }
}
}
v. } Windsor Superior Court
}
Town of Ludlow Zoning Board and }
John, Christine, Wayne and }
Beverly Lysobey } DOCKET NO. 223-4-91 Wrcv
Trial Judge: Alan W. Cook
In the above-entitled cause, the Clerk will enter:
¶ 1. For the third time, we consider property owner John Lysobey's
efforts to obtain year-round access to his property, which abuts a public
road located on land leased by the Department of Forests, Parks, and
Recreation to Okemo Mountain, Inc. for use as a ski trail during the ski
season. Following a jury verdict on remand from our second opinion in this
case, Lysobey obtained a judgment in excess of $150,000, including interest
and court costs, to compensate him for being deprived of year-round access
to his property. We vacate the jury's verdict and the superior court's
judgment based on our conclusion that Lysobey's lack of standing and the
expiration of the applicable statutory limitations period preclude Lysobey
from receiving compensation for the taking of access rights to the subject
property in the 1960s, long before Lysobey owned the property or brought
suit seeking redress for the loss of those rights.
¶ 2. Our two previous opinions concerning the subject property
include a detailed factual and procedural history of this dispute and the
ensuing litigation. See Okemo Mountain, Inc. v. Town of Ludlow, 164 Vt.
447, 671 A.2d 1263 (1995) [hereinafter Okemo I]; Okemo Mountain, Inc. v.
Town of Ludlow, 171 Vt. 201, 762 A.2d 1219 (2000) [hereinafter Okemo II].
The following is a truncated version of those facts. In 1986, Lysobey
purchased a thirty-four-acre parcel of land that abutted the upper part of
Okemo Mountain Road above the base lodge of Okemo Mountain ski area, which
had been using that portion of the road as a ski trail during the ski
season since at least 1963. Two years later, Lysobey applied for and
obtained a permit to build a residential home on his property. Following
an appeal by the Department and Okemo Mountain, the superior court denied
the permit based on its conclusion that the property had neither public
road frontage nor access by easement to a public road. Lysobey appealed
the court's ruling and went ahead with construction of his house. In Okemo
I, we reversed and remanded the matter for the superior court to determine
whether Lysobey held an easement appurtenant to his land and whether Okemo
Mountain Road is a public road under applicable law. 164 Vt. at 452-55,
455, 671 A.2d at 1268-70. On remand, the court concluded that Lysobey had
no easement, and that, although Okemo Mountain Road is a public road,
Lysobey had no right to use the road to access his property during the ski
season. Lysobey appealed again.
¶ 3. In Okemo II, we upheld the superior court's determinations
that Lysobey had no easement and that Okemo Mountain Road is a public road,
but we held that the Department had violated Lysobey's common-law right of
access by closing the road in the winter. Okemo II, 171 Vt. at 206-10, 762 A.2d at 1223-26. We concluded that although Lysobey was not entitled to
injunctive relief under the circumstances, he should be given an
opportunity to seek damages through an inverse condemnation action in
superior court. Id. at 211-13, 762 A.2d at 1127-28. Accordingly, we
reversed the superior court's judgment and remanded the matter for further
proceedings. On remand, Lysobey instituted his inverse condemnation claim,
and the State moved for summary judgment, arguing that Lysobey was not
entitled to compensation because, to the extent that there was a taking, it
occurred no later than 1963, when Okemo Mountain Road was closed to winter
vehicular use, and therefore the applicable six-year statute of limitations
barred recovery. The State also argued that because Lysobey did not buy
his property until 1986, long after the taking occurred, he lacked standing
to claim compensation for a previous owner's loss of property rights. The
superior court denied the State's motion and ultimately concluded that the
takings date was April 25, 1989, when the litigation began. Following an
evidentiary hearing, a jury determined that Lysobey was entitled to $54,000
in damages for loss of year-round access to his property. The superior
court added $85,000 in prejudgment interest, dating back to 1989, as well
as attorney's fees and various court-related expenses, making the total
judgment just over $150,000.
¶ 4. Both parties appeal. The State argues that (1) the effective
date of the taking should be sometime in 1963, long before Lysobey owned
the property, thereby precluding him from any recovery because of his lack
of standing and the expiration of the applicable limitations period; (2)
this Court should overrule Okemo II and conclude that no taking occurred
because three-season access to Lysobey's property is reasonable; (3) the
superior court erroneously awarded attorney's fees, litigation expenses,
and costs to Lysobey; and (4) the superior court's award of prejudgment
interest should be reduced, assuming its judgment is upheld. Lysobey
cross-appeals, arguing that because the Department had no authority to
restrict access to his property by giving a private ski area control over a
public road, he is entitled to injunctive relief. He asks this Court to
rule that no taking has occurred and to require the Department to allow
year-round access to his property through the upper portion of Okemo
Mountain Road subject to his agreement to exchange that right for
alternative access through other land and lifetime ski passes for family
members. We agree with the State's first argument. (FN1)
¶ 5. The State contends that the superior court erred by
establishing the "takings date" as April 25, 1989 rather than sometime in
1963, after which Okemo Mountain Road was closed to vehicular traffic
during the ski season. According to the State, because the taking occurred
many years before Lysobey purchased his property and more than six years
before he sought redress for being denied winter vehicular access to the
property, he is foreclosed from obtaining damages for the alleged
deprivation by both his lack of standing and the expiration of the
applicable limitations period. We agree. At the bifurcated hearing to
consider the appropriate takings date, the State presented unchallenged
evidence that (1) the 1963 lease between the Department and Okemo Mountain
gave the ski area the sole and exclusive right to bar vehicular traffic on
the upper portion of Okemo Mountain Road so that the area could be used for
skiing; and (2) ever since 1963 Okemo Mountain had closed the road during
the ski season pursuant to its right under that lease and later renewal
leases. The State also submitted letters written by Department officials
in the late 1960s concerning the installation of a gate to close Okemo
Mountain Road and the placement of signs indicating that the road would be
open only from June 15 to October 15 each year. In short, the evidence
unequivocally established that pursuant to its lease with the State, Okemo
Mountain had the right to close the upper portion of Okemo Mountain Road to
all vehicular traffic during the ski season and had done so since at least
1963.
¶ 6. Establishing the takings date "is a question of law, not
fact." United States v. 14.54 Acres of Land, 599 F. Supp. 123, 125
(S.D.N.Y. 1984) (citing United States v. Dow, 357 U.S. 17 (1958)). The
takings date in an inverse condemnation action involving loss of access to
property is the date on which the government physically interferes with the
access. See De Alfy Properties v. Pima County, 985 P.2d 522, 524 (Ariz.
Ct. App. 1998) (inverse condemnation claim for taking of property owner's
right of access accrued when government cut off or substantially impaired
access); see also Kirby Forest Indus. v. United States, 467 U.S. 1, 5
(1984) (landowner "has a right to bring an 'inverse condemnation' suit to
recover the value of the land on the date of the intrusion by the
Government"). This is consistent with the general rule that when the
government takes possession of property before it acquires title to that
property, the former event constitutes the act of taking the property. See
Dow, 357 U.S. at 21-22. Thus, it is the interference with the property
right that creates a right to commence inverse condemnation proceedings,
"not the realization of the extent of damages." Beer v. Minn. Power &
Light Co., 400 N.W.2d 732, 735 (Minn. 1987). Further, long-established law
holds that inverse compensation actions may be barred by the lapse of time.
Id. at 736. Indeed, states often enact a much shorter limitations period
for eminent domain and inverse condemnation proceedings than for ordinary
civil actions, but when there is no special statute of limitations for such
proceedings, the general civil statute of limitations normally applies.
Id. In Vermont, the general statute of limitations for civil actions is
six years. 12 V.S.A. § 511 (civil actions shall be commenced within six
years after cause accrues).
¶ 7. Apart from the limitations period, it is well-settled law
that the right to recover damages in condemnation proceedings "belongs
solely to the person owning or having an interest in the land at the time
of the 'taking' and it does not run with the land." 11A E. McQuillin, The
Law of Municipal Corporations § 32.132, at 269 (3d ed. 2000); see 2 J.
Sackman, Nichols on Eminent Domain § 5.01[5][d], at 5-37 (rev. 3d ed. 2003)
("if the parcel of land from which the taking is made changes hands after
the taking has occurred but before compensation has been paid, the right to
receive the compensation does not run with the land"); see also Canney v.
City of St. Petersburg, 466 So. 2d 1193, 1195 (Fla. Dist. Ct. App. 1985)
("Damages to compensate for the taking of land or for injury to land not
taken belong to the one who owns the land at the time of the taking or
injury."); Crede v. City of Oak Grove, 979 S.W.2d 529, 534 (Mo. Ct. App.
1998) (damage claim based on inverse condemnation does not pass to
subsequent grantees of land); Riddock v. City of Helena, 687 P.2d 1386,
1388 (Mont. 1984) ("The only person entitled to recover damages for
condemnation is the owner of the land at the time of the taking."); Hoover
v. Pierce County, 903 P.2d 464, 469 (Wash. Ct. App. 1995) ("Because the
right to damages for an injury to property is a personal right belonging to
the property owner, the right does not pass to a subsequent purchaser
unless expressly conveyed."). The rationale behind this rule has been
expressed as follows:
When the government interferes with a person's right to possession
and enjoyment of his property to such an extent so as to create a
"taking" in the constitutional sense, a right to compensation
vests in the person owning the property at the time of such
interference. This right has the status of property, is personal
to the owner, and does not run with the land if he should
subsequently transfer it without an assignment of such right. The
theory is that where the government interferes with a person's
property to such a substantial extent, the owner has lost a part
of his interest in the real property. Substituted for the
property loss is the right to compensation. When the original
owner conveys what remains of the realty, he does not transfer the
right to compensation for the portion he has lost without a
separate assignment of such right. If the rule were otherwise,
the original owner of damaged property would suffer a loss and the
purchaser of that property would receive a windfall. Presumably,
the purchaser will pay the seller only for the real property
interest that the seller possesses at the time of the sale and can
transfer.
Brooks Inv. Co. v. City of Bloomington, 232 N.W.2d 911, 918 (Minn. 1975).
¶ 8. Here, the State is entitled to judgment based on both
Lysobey's lack of standing and the running of the applicable limitations
period. At the time the taking occurred, no later than 1963, Lysobey did
not own the subject property. Indeed, he did not purchase the property
until 1986, more than twenty years after the taking had occurred.
Moreover, the six-year statute of limitations had run long before Lysobey
purchased the property. The superior court appeared to give short shrift
to the State's standing and limitations arguments because it believed that
this Court had held in Okemo II that Lysobey was entitled to damages for
the State's taking of his common-law right of access. Upon being presented
with the State's arguments, the superior court commented that this Court
had granted Lysobey the right to bring an inverse condemnation action to
seek damages, and therefore the statute of limitations would not apply.
According to the court, we had already ruled that Lysobey was entitled to
damages for the taking regardless of the procedural history of the case.
We did not make such a ruling. In Okemo II, we stated that Lysobey should
be given only "an opportunity to seek [a damages] remedy in the trial
court." 171 Vt. at 213, 762 A.2d at 1228. We concluded "that Lysobey's
remedy, if any, is to recover damages for the inverse condemnation that
took part of his access right." Id. at 212, 762 A.2d at 1228 (emphasis
added). We remanded the matter for the trial court to determine in the
first instance "the amount of damages, if any, that will compensate Lysobey
for the taking of his winter access right." Id. at 213, 762 A.2d at 1228
(emphasis added). Thus, on remand, the superior court should have
considered the validity of the State's standing and limitations arguments.
See DeVere v. State, 827 A.2d 997, 999 (N.H. 2003) (general rule is that
challenge to party's standing may be raised at any point in proceedings;
remand did not preclude State from pursuing its argument that plaintiff
lacked standing).
¶ 9. The superior court established the takings date in 1989,
concluding that it would be unfair to set the date at a time when the
relative rights of the parties were in limbo. We find no legal basis for
this reasoning. Indeed, the parties' rights have been in legal limbo
throughout these proceedings. The fact remains, however, that the State
prevented winter vehicular access to the subject property since at least
1963 through its lease agreement with Okemo Mountain. From that time until
the present, Okemo Mountain has asserted its rights under the lease to bar
access to the upper portion of Okemo Mountain Road during the ski season so
that the road can be used as a ski trail. At the time he purchased the
property in 1986, Lysobey knew or should have known that the road was being
used as a ski trail. We find unavailing Lysobey's arguments that the snow,
not Okemo Mountain, prevented vehicular use of the road during the winter,
and that he had no reason to drive to his property during the winter before
he constructed a residence there in the late 1980's. Regardless of whether
Lysobey or other persons were dissuaded from attempting to drive up Okemo
Mountain Road during the winter because of snow conditions or had no reason
to do so, the State's lease of the land to Okemo Mountain and the ski
area's subsequent use of the road as a ski trail pursuant to the lease
precluded that possibility since at least 1963. Our holding in Okemo I
that Okemo Mountain had failed to establish entitlement to the subject
property by adverse possession is not determinative of when the State
denied winter access to the property. Nor do we find significant that in
1970 and 1987 the Attorney General's office indicated that prior deeds
appeared to give property owners whose land abutted Okemo Mountain Road
easements over the road to access their property. Ultimately, the superior
court and this Court in Okemo II held to the contrary, see 171 Vt. at
205-06, 762 A.2d at 1223-24, and, in any event, Lysobey knew when he
purchased his property that the upper portion of Okemo Mountain Road was
being used as a ski trail during the winter.
¶ 10. The procedural posture of this phase of the litigation has
been greatly influenced by Lysobey's position that Okemo II was wrong in
failing to provide him an injunctive remedy, and that any further
litigation must be aimed at overturning that decision. As a result of that
position, Lysobey presented little opposition to the State's standing and
limitations arguments because he was more focused on his position that the
Department had no authority to restrict access to his property. Lysobey
has repeatedly stated that he does not want any money damages, and that the
only reason he sought inverse condemnation following Okemo II was to obtain
access to his house. In Okemo II, we concluded that injunctive relief was
inappropriate under the circumstances because of the longstanding use of
the road as a ski trail and the Legislature's implied authorization to
allow takings in situations such as this, where the Department is properly
exercising its regulatory power. 171 Vt. at 211-12, 762 A.2d at 1227-28.
None of the arguments raised by Lysobey or the amicus curiae (FN2) convince
us that we should reconsider Okemo II or that no taking is possible because
the Department is without authority under 10 V.S.A. § 2603(c) to regulate
use of roads on land under its jurisdiction.
¶ 11. In any event, the manner in which a taking transpires is
irrelevant. "As long as the state acts through one of its arms in such a
way as to deprive an individual of his property for public use, it is
irrelevant whether the state arm doing the actual taking has eminent domain
power." Fountain v. Metro. Atlanta Rapid Transit Auth., 678 F.2d 1038,
1043-44 (11th Cir. 1982); see Baker v. Burbank-Glendale-Pasadena Airport
Auth., 705 P.2d 866, 868 (Cal. 1985) (liability in inverse condemnation
action does not depend on showing that defendant has statutory authority to
exert eminent domain power). Here, the Department, acting as an arm of the
State, restricted access rights to the subject property through its lease
with Okemo Mountain. The professed aim of the lease was "to promote winter
sports . . . and winter recreational facilities . . . for the public good."
See Gen. Bldg. Contractors, L.L.C. v. Bd. of Shawnee County, 66 P.3d 873,
883 (Kan. 2003) (development of recreation facilities in partnership with
private enterprise is considered legitimate public purpose for exercise of
eminent domain power); see also 2 Sackman, supra, § 7.01[1], at 7-16
(definition of public use has expanded to become coterminous with scope of
sovereign's police power). Irrespective of the Department's eminent domain
power, Lysobey was entitled to bring an inverse condemnation action against
the Department to obtain compensation for the loss of the right to access
his property, but he was not guaranteed relief. In Okemo II, we concluded
that giving Lysobey winter vehicular access over a ski trail that has been
in operation for over fifty years was not an appropriate remedy. 171 Vt.
at 211-12, 762 A.2d at 1227-28. We now determine that he is not entitled
to monetary damages either, given that the takings date occurred, and the
applicable limitations period expired, before Lysobey purchased the
property or sought redress for the lack of year-round vehicular access to
the property.
¶ 12. Lysobey asks this Court to compel the Department to give him
year-round access over Okemo Mountain Road, subject to his agreement to
accept an alternate right-of-way through other lands owned or formerly
owned by Okemo Mountain. No evidence at trial demonstrated that any
alternative access to the subject property exists. To the extent that
Lysobey is arguing that Okemo Mountain could have or should have provided
him with alternative access, he is asking this Court to grant him relief at
the expense of Okemo Mountain, which is no longer a party to these
proceedings. In effect, Lysobey is presenting us with a nonjusticiable
offer of compromise regarding an alternative access on land that apparently
is no longer even owned by Okemo Mountain. For obvious reasons, we cannot
entertain Lysobey's request for relief. Finally, we reject Lysobey's claim
that allowing the Department to regulate Okemo Mountain Road to his
detriment entitles him to relief under 42 U.S.C. § 1983. Lysobey fails to
explain how he is entitled to relief under § 1983 in this inverse
condemnation action. In any event, assuming that his claim is properly
preserved, it cannot lie against the Department, which is not a "person"
within the meaning of the statute. See Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1989) (state is not "person" under § 1983).
The July 19, 2002 judgment entered in favor of John Lysobey in this
inverse condemnation action is vacated, and judgment is entered in favor of
the Vermont Department of Forests, Parks, and Recreation.
------------------------------------------------------------------------------
Concurring
¶ 13. ALLEN, C.J. (Ret.), specially assigned, concurring. I concur
in the disposition of Lysobey's claims on appeal in this case, but, for the
reasons stated in my dissent in Okemo II, I would reconsider our previous
holding that the closing of Okemo Mountain Road in the winter constituted a
taking of Lysobey's property. I am authorized to say that Justice Reiber
joins in this concurrence.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Paul L. Reiber, Associate Justice
_______________________________________
Kathleen Manley, Superior Judge,
Specially Assigned
_______________________________________
Frederic W. Allen, Chief Justice (Ret.),
Specially Assigned
_______________________________________
Ernest W. Gibson III, Associate Justice
(Ret.), Specially Assigned
------------------------------------------------------------------------------
Footnotes
FN1. We do not reach the State's remaining arguments, particularly those
concerning the extent of damages awarded. Nevertheless, we reject the
State's arguments that we should reconsider Okemo II. Specifically, we
decline to reconsider our decision that the State restricted Lysobey's
reasonable and convenient access to his property. The State's argument
that Lysobey has foot and snowmobile access to his property during the ski
season is not supported by the record. Further, we decline to reconsider
our decision that three-season access to his property is sufficient.
FN2. We grant amicus curiae's motion to file a reply brief in addition to
his original brief. For the most part, his arguments mirror those made by
Lysobey. To the extent that they are distinct, we do not find them
persuasive.
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