Posted by: Patricia Salkin | November 29, 2016

NE Supreme Court Holds Load Limit on Bridge to Property Did Not Constitute a Regulatory Taking

Randy Strode and Helen Strode sought 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’ takings claim based on the load limit posted on a bridge located near their property. The District Court, Saunders County, dismissed husband’s inverse condemnation claims as time barred, and granted summary judgment for city and county.

In their first assignment of error, the Strodes argued that Randy’s takings claim was not subject to claim preclusion because the issue was not ripe until the district court’s decision in the 2003 case. The court first noted that, in the context of a regulatory taking, 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. Here, the City acted to implement the ordinance on the property when the City zoning administrator repeatedly notified the Strodes of their nonconforming use of the property between November 2002 and June 10, 2003, and also on June 10, 2003, when the City zoning administrator mailed Randy notice of his nonconforming 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. Since the City’s actions had an adverse economic impact on the Strodes’ right to use the property in the commercial manner that they wished, they gave rise to the Strodes’ right to institute and maintain a lawsuit against the City for its implementation of the ordinance upon the property. Accordingly, the City’s June 10, 2003 letter to Randy stating its intent to institute legal proceedings against him began the running of the statute of limitations on the Strodes’ claims. Because, Randy filed his inverse condemnation claim on September 5, 2013, the 10–year statute of limitations for inverse condemnation claims was exceeded. Accordingly, Randy’s inverse condemnation claim was barred by the statute of limitations.

As to Helen Strodes’ separate claim for inverse condemnation, the regulation at issue prevented the Strodes from transporting their goods across the bridge in semitrailer trucks that exceed 14 tons; however, the Strodes could use the railroad underpass for semitrailer trucks that exceed the 14–ton weight limit. Randy contended that this was 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. While the court noted this was a “more roundabout way” to perform his business, in which he would incur some damages, it did not constitute an injury different in kind than the general public, but only different in terms of degree. Additionally, the Strodes failed to present any evidence that the weight limit of the bridge decreases the economic value of the property. Even though Randy testified that it cost two to three times more to transport steel in smaller loads rather than in bulk, he did not conduct any analyses to either substantiate this claim or determine how the property had diminished in value by the weight limits on the bridge. Moreover, the court found that the Strodes failed to prove that the load limit interfered with any of their investment-backed expectations, as the load limit was posted on the bridge at least as early at 1990,prior to the Strodes’ purchase of the land.

Accordingly, the court held that the district court did not err in finding in favor of the City and the County, and affirmed.

Strode v City of Ashland, 295 Neb. 44 (NE 10/28/2016)


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