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Joseph M. Jackovich Revocable Trust v. State, Dept. of Transportation (9/6/2002) sp-5625
Joseph M. Jackovich Revocable Trust v. State, Dept. of Transportation (9/6/2002) sp-5625
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JOSEPH M. JACKOVICH REVOCABLE )
TRUST, DOLORES M. JACKOVICH ) Supreme Court No. S-9686
REVOCABLE TRUST, GAVORA, INC., )
JOHN J. LOUNSBURY, GERALDINE ) Superior Court No.
S. LOUNSBURY, and HAMAN ) 4FA-97-2320 CI
FAMILY LIMITED PARTNERSHIP, )
) O P I N I O N
Appellants, )
) [No. 5625 - September 6,
2002]
v. )
)
STATE OF ALASKA, DEPARTMENT )
OF TRANSPORTATION, )
)
Appellee. )
_____________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: Edward R. Niewohner, Niewohner
& Associates, P.C., Fairbanks, for
Appellants. Mason Damrau, Assistant Attorney
General, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Owners of improved real properties asserted inverse
condemnation claims against the State of Alaska, complaining that
information the state published about its intentions to acquire
land needed for a projected road project deprived them of the
full use and enjoyment of their properties, reduced the value of
their properties, and constituted de facto takings. The superior
court dismissed their claims on summary judgment. We affirm.
Taking all permissible factual inferences in favor of the
landowners, we conclude that the state did not publicly announce
a concrete intention to use or condemn specific parcels of the
owners' properties or engage in activity that substantially
interfered with the use and enjoyment of their properties.
II. FACTS AND PROCEEDINGS
A. The Illinois Street Project
The Illinois Street project is a component of a major
highway construction project called the Geist Road Extension
Project, begun in Fairbanks in the mid-1970s. The Illinois
Street component, if it is to be built at all, will be the final
segment built in the Geist Road Extension Project. The
landowners involved in this appeal own parcels of improved
commercial property along Illinois Street in downtown Fairbanks.1
We sometimes refer to them collectively as the Jackovich
landowners.
In 1977 the Federal Highway Administration authorized
the Alaska Department of Transportation (DOT) to begin the
location phase of the Geist Road Extension Project. Initial
engineering and environmental impact studies were completed in
1983. Public hearings concerning the location of the project
were held in 1983. DOT received federal location approval by
1985. The project was undertaken in segments, several of which
were completed in the late 1980s and early 1990s. The design for
the Illinois Street portion of the project was revised several
times between 1985 and 2000. The plans have contemplated a range
of three-, four-, and six-lane highway designs. The initial
location approval contemplated that the Illinois Street connector
would be constructed as part of the Aurora Subdivision-to-Lementa
Subdivision segment; but this segment was completed in 1991
without the Illinois Street connector. Unforeseen design
complications caused DOT to abandon this plan and ultimately to
adopt the plan, known as the Illinois Street/Minnie Street
connector plan, that is involved in this dispute. No final
design had been approved as of February 1, 2000, when the
superior court heard argument on cross-motions for summary
judgment in this lawsuit.
Throughout the phases of the Geist Road and Illinois
Street projects, DOT made efforts to notify the landowners and
the public of the progress of the projects, as federal law
required. These efforts included issuing notices of public
hearings, workshops, and local government hearings and meetings,
and publishing the Statewide Transportation Improvement Program.
DOT also developed a mailing list which included individuals and
businesses who owned or occupied property near the highway
corridor. The landowners in this case were on this mailing list
and received several installments of DOT's "Illinois Street
Newsletter." For example, the January 1993 Newsletter stated:
Right-of-Way Begins Soon
The Federal funds are set aside and will be
obligated this year for the right-of-way
acquisition along Illinois Street. The right-
of-way phase should take approximately two
years to complete.
One of the landowners, John Lounsbury, wrote DOT in
April 1997 asking the state to execute an advance acquisition of
his property. DOT declined, even though in 1993 it had acquired
the Rose Building, which was located in the vicinity and was
projected to be within the scope of the Illinois Street right-of-
way.
B. The Inverse Condemnation Suit
In November 1997 the landowners filed their inverse
condemnation complaint against the state, alleging de facto
takings of and damage to their properties.2 They moved for
partial summary judgment, arguing that no material facts were in
dispute as to their claim that DOT's pre-condemnation publicity
had reduced the economic value of their properties and required
just compensation. In support of their motion, the landowners
submitted evidence of lost property value, public announcements
of the Illinois Street project, and the state's acquisition of
the Rose Building. DOT opposed the motion and cross-moved for
summary judgment.
In support of DOT's opposition and motion, John Miller,
DOT's Chief Right-of-Way agent in Fairbanks at relevant times,
swore in an affidavit that "DOT has never announced an
unequivocal intention to acquire any of the particular real
properties along Illinois Street." DOT argued that the
landowners' claims failed because the landowners did not provide
evidence of DOT's intent to condemn their specific properties and
did not rebut Miller's statement.
At oral argument on the motions, the landowners
attempted to supplement their exhibits with copies of letters DOT
wrote the landowners addressing the future acquisition of their
specific properties. The state objected to introducing these
supplemental exhibits. The superior court ruled that it would
not consider the exhibits unless an appropriate motion were
filed. The landowners never filed a motion asking the court to
accept the exhibits.
In March 2000 the superior court denied the landowners'
motion for summary judgment and granted the state's cross-motion
for summary judgment. The court first reasoned that the
publicity complained of could not be considered a "de facto"
taking because it did not amount to either a physical invasion of
property or a direct legal restraint on its use. The court
further reasoned that the "condemnation blight" doctrine did not
apply because the property was never actually condemned.3
The superior court then ruled that the claim was
properly evaluated under precedents establishing an inverse
condemnation cause of action based solely on pre-condemnation
publicity.4 The court concluded that the Jackovich landowners
could not establish an essential element of this cause of action:
proof of a public statement of the state's "concrete" intention
to acquire specific property.5 The court determined that the
landowners' claims "contain no allegation of any public
expression of intent to use a specific piece of property." The
court concluded by reasoning that this requirement properly
accommodated the public interest in community planning while
protecting the landowners' constitutional right to just
compensation.
The landowners moved for reconsideration and attached
the disputed supplemental exhibits to their reconsideration
motion. The superior court denied their reconsideration motion.
It appears that as of April 4, 2000, when the superior court
entered final judgment, the state had commenced no condemnation
proceedings for any of these particular properties.
The landowners appeal.
III. DISCUSSION
The landowners advance alternative theories of
recovery. First, they argue that existing Alaska law requires
that property owners be compensated when government publication
of an "unequivocal intent" to appropriate their property damages
them, even when their property is not ultimately condemned. They
further argue that the publicity in this case satisfies this
intent standard. Second, they argue that they should recover
under the case-specific analysis we use to decide whether
government action that does not constitute a "per se" taking is
nonetheless a compensable taking.
As to the first issue, we conclude that the superior
court correctly determined that the publicity in this case does
not satisfy the "concrete intention" test. As to the second, we
conclude that the case-specific approach is inapplicable because
the existing pre-condemnation publicity cause of action
adequately addresses the problems at hand. We further conclude
that the case-specific approach is inapplicable where the
challenged government action does not directly limit the property
owner's use or exclusive control of her property.
A. Standard of Review
We review grants of summary judgment de novo.6 Summary
judgment should be affirmed if there are no genuine issues of
material fact and the moving party is entitled to judgment as a
matter of law.7 We read the record in the light most favorable
to the non-moving party and draw all reasonable factual
inferences in his or her favor.8 We review questions of
constitutional law, such as whether a taking has occurred, de
novo.9 We will adopt the rule of law that is most persuasive in
light of precedent, reason, and policy.10
Thus, in reviewing the superior court's conclusion that
the state had no concrete intention to condemn the landowners'
properties, we draw all reasonably permissible factual inferences
in favor of the landowners, the opponents of the state's cross-
motion for summary judgment.
B. It Was Not Error To Dismiss the Landowners' Inverse
Condemnation Claim on Summary Judgment.
1. Landowners' Ehrlander/Lange/Homeward Bound theory
The landowners' main argument on appeal is that under
existing Alaska law, the state is constitutionally required to
compensate them because, by publishing an "unequivocal" pre-
condemnation intent to appropriate their properties, it deprived
them of the economic advantages of ownership. They rely on two
Alaska cases - Ehrlander v. State, Department of Transportation,11
and Homeward Bound, Inc. v. Anchorage School District12 - as well
as a Washington case - Lange v. State13 - which we approvingly
discussed in Ehrlander.14
Before discussing the legal issues presented, we note
the factual posture of this case. It involves the state's pre-
condemnation publication of notices, information, plans, and
proposals pertaining to a road improvement project component
that, as of the time the parties sought summary judgment, might
or might not be built. This component of the overall project had
not became final, and its scope was uncertain. Its impact on the
landowners' parcels was consequently uncertain, and the
publications attributed to the state reflect this uncertainty.
Likewise, there was uncertainty about what specific parcels or
portions thereof might be acquired. We also note that these
properties were improved with commercial buildings and that there
is no evidence the state actively interfered with the beneficial
use of these properties by (1) limiting their development,
improvement, or occupancy; (2) denying the landowners any permits
needed to develop, improve, or use these properties; (3)
notifying tenants they would have to vacate or would be
compensated for vacating; or (4) informing the owners that in
event of condemnation, they would not be compensated for
maintaining or improving their properties. Instead, the common
thread in the landowners' superior court affidavits is that they
are unable to sell their properties and that they lost rental
income because pre-condemnation announcements discouraged buyers
and renters and made improvements infeasible or economically
imprudent.
The Alaska Constitution provides that "private property
shall not be taken or damaged for public use without just
compensation."15 "Private property is taken or damaged for
constitutional purposes if the government deprives the owner of
the economic advantages of ownership."16 "Once private property
is taken or damaged, the owner is entitled to be placed in the
same position as he would have occupied absent the governmental
interference."17
We have held that under some circumstances landowners
may be entitled to compensation from government entities whose
activities diminish the value of their properties even though the
government never actually condemns the properties. Thus, in
Homeward Bound, we stated:
[I]n cases such as this one where the alleged
taking is based on precondemnation decisions
concerning the subject property, the
objective manifestations of the government's
intention to take the property are critical
to the decision whether there was a taking.
This is because the government's indications
of its intention to condemn the property are
the source of the owner's claimed damages.[18]
Homeward Bound claimed that the municipality and the
school district had inversely condemned its unimproved property
by designating it as a potential school site, temporarily
diminishing its value.19 In discussing cases "where the alleged
taking is based on precondemnation decisions concerning the
subject property," we referred in Homeward Bound to California
law, originating in Klopping v. City of Whittier,20 that allows
landowners to recover for loss in the value of their properties
due to governmental pre-condemnation activity. The California
Supreme Court held in Klopping:
[A] condemnee must be provided with the
opportunity to demonstrate that (1) the
public authority acted improperly either by
unreasonably delaying eminent domain action
following an announcement of intent to
condemn or by other unreasonable conduct
prior to condemnation; and (2) as a result of
such action the property in question suffered
a diminution in market value.[21]
We then held in Homeward Bound that to recover for
damages caused by pre-condemnation governmental activities that
do not otherwise amount to a de facto taking, an Alaska plaintiff
must show a concrete indication that the state intended to
condemn the property.22 Approvingly citing one of Klopping's
early progeny, we explained:
Later, in Selby Realty, Co. v. City of San
Buenaventura, the [California Supreme Court]
held that the mere enactment of a general
plan showing proposed streets extending
through private property did not constitute a
taking because there was "no present concrete
indication that the county either intends to
use plaintiff's property for the proposed
streets or that it intends to acquire the
property by condemnation." The court
distinguished Klopping on the ground that
"the adoption of a general plan is several
leagues short of a firm declaration of an
intention to condemn property."[23]
In considering the claims of the Jackovich landowners,
the superior court characterized Alaska takings law as requiring
"a public statement of `concrete' intention to acquire specific
property before a Klopping claim will lie."24 Applying this rule,
the superior court dismissed the landowners' claim on summary
judgment. It concluded that "even Klopping - the most expansive
holding this court has been able to identify in terms of
affording compensation to disadvantaged property owners - does
not reach the facts of the present case, which contain no
allegation of any public expression of intent to use a specific
piece of property."
The Jackovich landowners do not ask us to adopt
Klopping, which they say may have adopted a requirement - that
the government have acted improperly - that is foreign to
established inverse condemnation law in Alaska.25 They instead
assert that in Ehrlander we adopted a broad doctrine of
compensability by relying on principles discussed by the
Washington Supreme Court in Lange v. State.26 Our Ehrlander
opinion approvingly discussed as follows the reasoning of the
Washington court in Lange:
In our view this reasoning should be
applicable not merely when a condemnation
action is formally begun, but whenever a
property owner is, by reason of an impending
condemnation, deprived of the economic
advantage of ownership. That was the
rationale of the Washington court in Lange:
Once the state manifested its
unequivocal intent to appropriate
the Lange property, appellants were
precluded from exercising their
business judgment and selling the
property before the market fell
further. Moreover, appellants were
precluded from taking any steps to
counteract the market decline by
making improvements on the land or
otherwise changing its use. Thus
appellants were deprived of the
most important incidents of
ownership, the rights to use and
alienate property.
547 P.2d at 288. We thus agree with Lange
and believe that its holding should be
applicable here. As the Lange test does not
require either extraordinary delay or a bad
faith motive to depress land prices, the
state's argument that the absence of these
factors means that Ehrlander has not made a
prima facie case of an imputed taking must
fail.[27]
Ehrlander, like Lange, asserted claims that the
government engaged in pre-condemnation activity that caused his
unimproved real property to decline in value before the state
began condemnation proceedings to acquire the land. Ehrlander
claimed that the state's unreasonable delay in bringing the
condemnation proceedings after it announced its intention to use
his property for a highway project resulted in an imputed taking.28
The superior court granted summary judgment to the state because
the state did not unreasonably delay or have a bad faith motive
to depress land prices. Holding that those were not requirements
for a claim under Lange, we reversed and remanded for
consideration of Ehrlander's imputed taking claim and for
application of the four-element test set out in Lange.29
Lange filed his inverse condemnation claim about one
year before the state filed an eminent domain action to acquire
land he had purchased to develop and sell.30 The Washington
Supreme Court applied a four-element test to decide in the formal
condemnation proceeding whether to advance the date of valuation.31
Lange is properly regarded, like Ehrlander, as an example of an
early valuation eminent domain case.
The four-element Lange test does not expressly apply to
or encompass the claims of the Jackovich landowners. Rather than
trying to advance the date of taking for valuation purposes where
it is undisputed that the state has taken the property, they are
trying to establish that there was a taking; it is the taking
that is disputed, not the date when it occurred. And the
Jackovich landowners do not hold unimproved property which they
had acquired to develop and sell; their property was income
producing and continued to produce at least some income at
pertinent times. If the state cancels the Illinois Street part
of the project without acquiring their properties, the prospect
of condemnation will no longer arguably affect the income their
properties generate. On its face, the Lange test does not appear
to apply to an inverse condemnation claim where the state never
aquires the property.32
Nonetheless, we recognized in Homeward Bound that pre-
condemnation governmental activity could in theory amount to a
temporary taking that would entitle an owner to compensation even
if the plan to condemn were abandoned.33 One can imagine that pre-
condemnation publicity could depress income actually realized
from improved commercial property, leading to a temporary taking
that requires compensation. But it is not so obvious what
standards should be applied to such a claim. How long must an
owner endure such publicity before it becomes a compensable
temporary taking? What decline in value is large enough to be
cognizable? Our decisions do not answer those questions.
We do not need to explore those issues here, nor others
that may arise from permitting an inverse condemnation claim
based on pre-condemnation publicity where no eminent domain
condemnation has yet occurred and may never occur. We think that
at a minimum in such a case, the government must have publicly
announced a present intention to condemn specific properties,34
and it must have done something that substantially interferes
with the landowners' use and enjoyment of their properties.35
These minimal requirements present two insurmountable obstacles
to the claims of the Jackovich landowners in this case as it is
presented to us.
a. DOT has not expressed a present concrete intention to
acquire any specific property.
First, the public announcements attributable to the
state, even taking all permissible factual inferences in the
landowners' favor, fall short of permitting a finding that DOT
expressed a present concrete intention to condemn specific
property. The landowners argue that the superior court erred in
reaching this conclusion. They point to maps and newsletters
identifying their properties as land to be condemned under the
Illinois Street project. They refer to the January 1993 DOT
Newsletter passage we quoted above in Part II.A. The landowners
also point to correspondence, contained in supplemental exhibits,
discussing the possibility of condemnation. The supplemental
exhibits included letters from DOT to the landowners addressing
future acquisition of their specific properties. One letter
stated that "a portion of your property will be required for
additional right-of-way for the referenced highway project," and
another purported to announce "our current schedule and
expectations for this project - specifically the acquisition of
your property at 224 to 226 Illinois Street." As previously
mentioned, the superior court refused to consider these letters
at oral argument on the cross-motions for summary judgment
pending an appropriate motion, and no such motion was ever
brought.
Read in the light most favorable to the landowners, the
evidence (including the rejected supplemental exhibits) does not
reasonably permit an inference that DOT had expressed a present
concrete intention to condemn specific portions of the
landowners' properties in the near future.
First, the maps, newsletters, and any other general
publicity produced by DOT indicating that the Illinois Street
Extension would pass through certain private properties are
insufficient to constitute the requisite "present concrete
intention" to acquire specific property. In Selby Realty, the
California Supreme Court held that "adoption of a general plan is
several leagues short of a firm declaration of an intention to
condemn property."36 The court explained that imposing liability
on the basis of such publicity would either cause the process of
community planning "to grind to a halt," or else reduce such
planning to "vacuous generalizations regarding the future use of
land."37 This reasoning applies to all of the general publicity
at issue in this case. DOT should be encouraged to provide
meaningful notice to the public of major projects that will
affect private development; imposing liability on the basis of
such publicity would have exactly the opposite effect.
Second, the specific letters from DOT to the landowners
concerning future acquisition of their properties are likewise
insufficient. Read in the light most favorable to the
landowners, a fact-finder could reasonably conclude that DOT
intended to acquire their property at some unspecified future
time. But our intent test requires a present concrete intention
to acquire property, and the letters cannot be fairly read to
satisfy this test. None of the letters expresses an intent to
initiate acquisition proceedings immediately. Indeed, the three
letters that most clearly express DOT's intent to acquire
specific properties all indicate that hazardous substances
investigations must be performed before fair market valuations
for the properties can be determined. One of the letters
indicates that the "right of way acquisition process for this
project" would not even begin for a full year from the date of
the letter, and another letter advised the property owner to
undertake planned improvements despite DOT's intention to acquire
the property in the future due to anticipated complications with
site contamination and obtaining approval to acquire the property
via the "advanced acquisition" process.
The Jackovich landowners have not pointed to any case
supporting their claim that the letters in this case are
sufficiently definite to satisfy the "present concrete intention"
requirement, and we are aware of none. In Klopping, the
California Supreme Court held that the city demonstrated a
sufficiently specific intent to condemn property when it
initiated condemnation proceedings, dismissed the action, but
declared its intention to take the property in the future.38 But
in this case the state had not initiated condemnation actions
regarding any of the properties at the time the superior court
entered its final order.
Conversely, in Homeward Bound we held there was no
"concrete indication" to acquire specific land despite the fact
that the Anchorage municipal assembly had passed two resolutions
designating the owner's property as a school site, because the
school district, which had final authority to approve the site,
had not done so.39 DOT's intention to acquire the Jackovich
landowners' properties is at least as indefinite. The Illinois
Street Project has gone through numerous changes, and there was
no finalized plan at the time the superior court entered judgment
in this case.
b. DOT has not substantially interfered with the Jackovich
landowners' property rights.
There is no indication the state did anything more than
make announcements, prepare and publish plans, and provide
publicity concerning the project. As noted above, there is no
evidence that the state actively interfered with the landowners'
beneficial use of their properties, such as by prohibiting them
from using their properties beneficially or denying needed
permits.40
c. Ehrlander and Lange are
inapplicable because the Jackovich
landowners' properties have not been
condemned.
The Jackovich landowners seem to imply that they have
stated a legally sufficient claim under the rule of Lange,41 which
we applied in Ehrlander.42 But in those cases the state
ultimately condemned the claimant's property.43 Lange and
Ehrlander are therefore properly regarded as early valuation
eminent domain cases; they do not establish the appropriate
standard for reviewing the state's pre-condemnation conduct where
condemnation proceedings are either abandoned or never initiated.
2. Landowners' case-specific Sandberg theory
The landowners briefly advance an alternative inverse
condemnation theory. They assert that we should consider their
claim under the case-specific analysis we apply in deciding
whether government action has effected a compensable taking even
though it does not fall into the two recognized classes of per se
takings. Apparently in support of this alternative theory, their
reply brief argues that the evidence demonstrates that the state
engaged in "unreasonable and negligent conduct."
The state neither physically invaded these properties
nor by regulation denied the owners all economically feasible use
of their properties. The state's alleged acts here consequently
do not fall within either recognized class of per se takings.44
But that does not mean, as the Jackovich landowners may assume,
that we must consider the state's alleged acts in light of the
case-specific analysis we apply to non-per se, or ad hoc, alleged
takings.
We have never applied the case-specific analysis to a
case involving pre-condemnation governmental activity.45 We have
applied it to date only to cases in which the government has, in
its governmental capacity, allegedly restricted landowners from
using their property or deprived them of the exclusive use of
their property.46
We are reluctant to apply this doctrine to a pre-
condemnation case. Doing so would seem to needlessly parallel or
muddy the remedy discussed in Part III.B.1 above. The
landowners' relatively terse arguments provide no compelling
reason to do so in this case.
Moreover, it is not clear how the case-specific factors
we have identified might apply in such a case.47 The fourth
factor - the legitimacy of the interest advanced by "the
regulation or land-use decision" - implicitly recognizes that an
ad hoc takings claim turns on an action having the purpose of
affecting the landowner's property rights. But there is no
indication here the actions attributed to the state had any
purpose of affecting or limiting the owners' rights or use of the
affected properties. The complained-of actions were taken to
give the owners and the community notice of the project's
potential scope and progress.
Likewise, the state correctly argues that the
landowners' opening brief does not substantively discuss any
factor other than economic impact, and observes that the state's
actions were federally required. The landowners simply argue in
their reply that the legitimacy of the state's interest is lost
when the state's conduct "becomes negligent and unreasonable."
Not only did they not discuss this factor in their opening brief,
they do not support this assertion with authority. If we were to
accept this proposition, it would seem to require an inquiry
about the reasonableness of the government's actions in every
case involving a proposed public works project in which no de
jure acquisition occurs. At first glance, this would seem to
demote takings law from the realm of constitutional protection to
the land of ordinary negligence.
We consequently decline to decide whether to apply the
case-specific analysis in this case.
IV. CONCLUSION
For these reasons, we AFFIRM the grant of summary
judgment to the state.
_______________________________
1 The landowners are the Joseph M. Jackovich Revocable Trust,
the Dolores M. Jackovich Revocable Trust, Gavora, Inc., John J.
Lounsbury, Geraldine S. Lounsbury, and the Haman Family Limited
Partnership. The Jackovich trusts own two parcels containing
four lots; Gavora, Inc. owns three parcels containing three lots;
the Haman partnership owns five lots; and the Lounsberrys own two
lots.
2 The landowners filed their First Amended Complaint in
November 1999.
3 The court explained that the condemnation blight doctrine is
effectively a rule of evidence for setting the proper valuation
date in the just compensation phase of an eminent domain
proceeding. See 8A Nichols on Eminent Domain 18.04[3] (3d ed.
1998).
4 Under this theory, the fact that the property is never
actually condemned does not bar the conclusion that a taking has
occurred.
5 Homeward Bound, Inc. v. Anchorage Sch. Dist., 791 P.2d 610,
614 (Alaska 1990).
6 Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254
(Alaska 2000).
7 Id.
8 Id.
9 Anchorage v. Sandberg, 861 P.2d 554, 557 (Alaska 1993);
Triangle, Inc. v. State, 632 P.2d 965, 968 (Alaska 1981) ("It is
only when a trial court concludes that the landowner has
presented a valid claim that the case is submitted to the jury
for a determination of the extent of the taking and the amount of
compensation that must be paid by the state.") (citations
omitted).
10 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
11 797 P.2d 629 (Alaska 1990).
12 791 P.2d 610 (Alaska 1990).
13 547 P.2d 282 (Wash. 1976).
14 797 P.2d at 633-35.
15 Alaska Const. art. I, 18. "The requirement that the
condemner pay just compensation when property is damaged provides
broader protection for private property rights than the fifth
amendment to the United States Constitution." Homeward Bound,
791 P.2d at 614 (citations omitted).
16 Homeward Bound, 791 P.2d at 614 (citations omitted).
17 Id. (citations omitted).
18 Id.
19 Id. at 613-14.
20 500 P.2d 1345 (Cal. 1972).
21 Id. at 1355.
22 Homeward Bound, 791 P.2d at 614.
23 Id. (citation omitted).
24 E.g., City of Kenai v. Burnett, 860 P.2d 1233, 1240 (Alaska
1993) (holding that city did not demonstrate "unequivocal
intention" to take easement); Homeward Bound, 791 P.2d at 614
(holding that no taking occurred because municipality's "mere
designation" of property as school site was not a "concrete
indication" that municipality intended to condemn property).
25 As we will see, this case does not turn on application of
the Klopping requirements. The superior court appears to have
relied on the case only to demonstrate that under the "most
expansive" doctrine, i.e., the doctrine most favorable to the
landowners, the state was still entitled to summary judgment. We
have not expressly adopted Klopping as a statement of law
governing an inverse condemnation claim for a government's
precondemnation activities. Because the landowners do not urge
us to apply Klopping in this case, it is not necessary to decide
here whether Alaska would recognize a Klopping claim.
26 547 P.2d 282 (Wash. 1976).
27 Ehrlander, 797 P.2d at 635.
28 Id. at 633.
29 Id. at 635.
30 Lange, 547 P.2d at 283.
31 Id. at 288.
32 Id. at 283, 288 (characterizing issue as whether valuation
date in condemnation trial should be advanced due to pre-
condemnation conduct and concluding that it should). The
Washington appellate courts have not addressed the question
whether the Lange test would apply to a case in which the
property in question was not ultimately condemned, but it is
highly doubtful that Lange would be applied in such a case. The
Washington Supreme Court's discussion of Lange in subsequent
cases suggests that the Lange rule is only applicable to cases in
which property is actually condemned. E.g., State v. McDonald,
656 P.2d 1043, 1050 (Wash. 1983) (stating that Lange merely
modifies time of valuation in certain cases where doing so is
necessary to award just compensation); Brazil v. City of Auburn,
610 P.2d 909, 916 (Wash. 1980) (citing Lange for the proposition
that "[t]he measure of damages is the fair market value of the
property at the date of trial, unless fairness to the owner
requires the value to be set as of some other date").
33 Homeward Bound, 791 P.2d at 613-15 (considering whether
temporary designation of property as school site constitutes
taking); see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l
Planning Agency, 122 S. Ct. 1465, 1470 (2002) (considering
whether imposing "temporary" moratoria on development constitutes
per se taking).
34 Selby Realty Co. v. City of San Buenaventura, 514 P.2d 111,
116 (Cal. 1973) (holding that no actual controversy existed
between property owner and county where general plan showed
streets running through owner's property because plan could not
be read to constitute "present concrete indication that the
county either intends to use [the owner's] property for the
proposed streets or that it intends to acquire the property by
condemnation").
35 E.g., Barthelemy v. Orange County Flood Control Dist., 76
Cal. Rptr. 2d 575, 582 (Cal. App. 1998) (collecting cases
regarding required level of state interference to make out
Klopping inverse condemnation claim and holding that public
entity's conduct must have significantly invaded or appropriated
use or enjoyment of claimant's property).
36 514 P.2d at 117.
37 Id.
38 500 P.2d at 1348.
39 791 P.2d at 614.
40 The court in Selby Realty stated:
The county has not placed any obstacles
in the path of plaintiff in the use of its
land. Plaintiff has not been refused
permission by the county to build on or
subdivide its county land, and its posture is
no different than that of any other landowner
along the streets identified in the plan.
Furthermore, the plan is subject to
alteration, modification or ultimate
abandonment, so that there is no assurance
that any public use will eventually be made
of plaintiff's property.
514 P.2d at 119. See also Jones v. City of Los Angeles, 152 Cal.
Rptr. 256, 261 (Cal. App. 1979) ("[A] showing that the
[entity's] conduct went beyond mere general planning may not in
itself be sufficient to state a cause of action. The claimant
must show that obstacles were placed in plaintiffs' path in the
use of this land.").
41 547 P.2d at 288.
42 797 P.2d at 634.
43 Id. at 632; Lange, 547 P.2d at 283.
44 R & Y, Inc. v. Municipality of Anchorage, 34 P.2d 289, 293
(Alaska 2001) (stating that per se taking can result through
physical invasion of land or application of regulation that
deprives landowner of all economically valuable use of land);
Beluga Mining Co. v. State, Dep't of Natural Res., 973 P.2d 570,
575 (Alaska 1999); Anchorage v. Sandberg, 861 P.2d 554, 557
(Alaska 1993); see generally Palazzolo v. Rhode Island, 553 U.S.
606 (2001) (affirming state court rejection of Lucas takings
claim where state regulated wetlands but did not deprive owner of
all economic use of property, and remanding for consideration of
owner's claims under Penn Central analysis); Lucas v. South
Carolina Coastal Council, 505 U.S. 1003 (1992).
45 The case-specific takings clause analysis originates in the
Supreme Court's decisions. See, e.g., PruneYard Shopping Ctr. v.
Robins, 447 U.S. 74, 83 (1980) (identifying several factors to
determine whether governmental action has gone beyond mere
regulation, including "the character of the governmental action,
its economic impact, and its interference with reasonable
investment-backed expectations") (citation omitted); see also
Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124
(1978) (explaining that courts must "engag[e] in . . .
essentially ad hoc, factual inquiries" to determine when "justice
and fairness" require public as whole rather than small number of
disproportionately burdened landowners bear costs of regulation).
46 E.g., R & Y, Inc., 34 P.3d 289 (Alaska 2001) (where
municipality imposed improvement setback restriction in wetland
area); Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska
2000) (where junkyard was no longer permissible use following
rezoning); Cannone v. Noey, 867 P.2d 797 (Alaska 1994) (where
state imposed restrictions on subdivision); Anchorage v.
Sandberg, 861 P.2d 554 (Alaska 1993) (where muncipality's
decisions in opposing improvement district prevented landowner
from creating improvement district); State, Dep't of Natural Res.
v. Arctic Slope Reg'l Corp., 834 P.2d 134 (Alaska 1992) (where
state law required well operators to disclose their drilling
results to state, thus denying them exclusive use of their data).
47 The factors are: "(1) the character of the governmental
action; (2) its economic impact; (3) its interference with
reasonable investment-backed expectations; and (4) the legitimacy
of the interest advanced by the regulation or land-use decision."
R & Y, 34 P.2d at 293.
