PIERRE, S.D. (KELO) — Owners of undeveloped property along a highway in Rapid City can’t be compensated for a taking after the state Department of Transportation installed a median that limited access, according to the South Dakota Supreme Court.
The high court publicly released the opinion on Thursday. Justice Mark Salter of Sioux Falls wrote for the majority, upholding a decision from Circuit Judge Stacy Vinberg Wickre that found for the department and against Legacy Land Company, owner of the 26.3 acres along the north side of Catron Boulevard.
Justice Janine Kern of Rapid City disagreed with the court’s four other justices. She filed a dissent that said the dispute should be sent back for further action because material issues of fact remained unresolved about whether the median substantially impaired access to the Legacy property along the route, also known as US16B.
Catron Boulevard previously was a two-lane highway that permitted traffic from either direction to turn onto the Legacy property and traffic could leave in either direction. The median installed by the department no longer allowed eastbound traffic to turn left into the Legacy property, and traffic leaving the Legacy property could only turn right.
According to an affidavit filed in the case, Legacy requested that the department install a break in the median in front of the property, but the department didn’t. Normally the department installs median breaks at half-mile increments along expressways such as Catron Boulevard. In this instance, that would have placed a break at the western edge of the Legacy property, a half-mile from the junction of Catron Boulevard and SD79.
The department however placed a break instead at a spot 610 feet east of the Legacy property to accommodate various state government facilities such as a weigh station, a South Dakota Highway Patrol building and a South Dakota National Guard installation.
In an affidavit, a department official said that eastbound traffic could still reach the Legacy property by going past it to the median break and making a U-turn. Vehicles leaving the Legacy property could turn right, and if they wanted to go east, they could proceed 1,136 feet west to a median break and make a U-turn.
Legacy argued that larger commercial vehicles such as semi-tractor-trailer trucks couldn’t make U-turns in the median breaks and would need to find other ways to reach the property. The department didn’t dispute this, suggesting instead that those larger vehicles could make U-turns at the weigh station or re-route at Fifth Street and use existing streets.
Justice Salter in the majority opinion noted that the Legacy property was undeveloped. He concluded, “The construction of the median for Catron Boulevard undoubtedly affected the ease with which vehicles traveling east can access Legacy’s property. However, the undisputed material facts do not support Legacy’s claim that the median substantially impaired its right of access.”
Justice Kern in her dissent disputed the undeveloped status. “Prior to the installation of the median, Legacy met with Walmart developers about a possible sale of the property. These discussions ended after the median reduced access. Legacy has also previously submitted commercial development plans to the City,” she wrote.
“Legacy clearly envisioned commercial development of the property and took affirmative steps in this direction. The effects of the median should be judged against this intended use,” Justice Kern added. “According to the facts proffered by Legacy, the median renders regular commercial traffic to the property likely impossible. Since Legacy, on this record, is unable to put the property to regular commercial use because of the median, it is difficult to imagine what more would be needed for substantial impairment.”