The
SD Supreme Court handed down one decision this morning, holding inter alia:
- Landowner Must Endure diminution in “right to
access”
S.D.
DEP’T OF TRANSPORTATION v. LEGACY LAND CO., 2023 S.D. 58: South Dakota Department of Transportation
(DOT) constructed a median on a roadway adjoining Plaintiff’s property in Rapid
City. The result of the construction
impacted access to the property as follows, “Vehicles could no longer
make a left turn directly into the [Plaintiff’s] property,
and those leaving the [Plaintiff’s] property could only turn right onto
the highway.”
(from ¶1). Plaintiff filed suit,
asserting that there had been a “taking” and requested just
compensation. DOT argued that because
Plaintiff still had “access” to
the property, the “right to access” had not been “substantially impaired.” (the “substantially
impaired” requirement
has been established by existing case law in SD). The trial court granted summary judgment to
the DOT. The SD Supreme Court affirmed,
in a 4-1 ruling. The majority opinion is
authored by Justice Salter. Justice Kern
dissented, stating:
[¶57.] Other nearby properties are located next to median
breaks that allow traffic to enter and exit in both directions. [Plaintiff] is uniquely affected because of its
intended commercial use of the property. Although drivers of eastbound small
cars may be able to reach the property through a U-turn, the record, viewed
most favorably to [Plaintiff], demonstrates that regular access by large
vehicles is likely not possible. [Plaintiff] thus experiences a unique injury
to its property.
This
decision may be accessed at
