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Admiral Beverage Part 3: Petition for Reconsideration and Response

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The last blog post reviewed the holding of the Utah Supreme Court’s Admiral Beverage case and informed that UDOT had filed a narrow Petition for Reconsideration.  The Supreme Court denied the Petition.  

UDOT’s Petition for Reconsideration raises two issues for consideration by the Utah Supreme Court.  First, the Petition inquires whether Admiral Beverage overruled prior decisions that excluded certain types of consequential damages from being considered in evaluating severance damages.  For example, the Petition asserts that prior decisions of the Court excluded certain consequential damages such as highway construction damages, lost profits, etc., even though under Admiral Beverage, evidence of such damages would be admissible.  Second, UDOT requests that the Court specifically consider whether Admiral Beverage overrules the Court’s prior decisions that loss of traffic flow is not compensable.

Admiral was requested by the Court to file a Response to the Petition for Reconsideration.  That response was filed on January 26, 2012.  With respect to the first issue raised by UDOT, Admiral responded that the cases cited by UDOT were inapposite and distinguishable.  In Admiral Beverage the Utah Supreme Court concluded there was an undisputed taking that was necessary for the completion of the project as a whole, unlike several cases cited by UDOT.  Other cases cited by UDOT involved traffic flow cases, and were inapposite, because that was not an issue in Admiral Beverage.  Admiral pointed out that Ivers was only partially overturned.  The Utah Supreme Court in Admiral Beverage stated:  “[W]e reaffirm our prior rule that when a landowner alleges “damages” not connected to an actual physical taking, the landowner may recover only for damage to protectable property rights.”  Admiral Beverage at ¶19.  Admiral concluded:

As a result, UDOT’s request that the Court explain here its position with respect to these unrelated cases is improper.  The Court should stand by its constitutionally sound decision that severance damages are determined “based on the  fair market value of [the] property before and after the taking.’” 

Admiral Beverage at ¶43.

In response to UDOT’s second issue, concerning traffic flow, Admiral responded that was not an issue for which damages were sought in the Admiral Beverage case. Moreover, the Utah Supreme Court specifically addressed the traffic flow issue, stating:

UDOT argues that these [traffic flow] cases foreclose Admiral’s claim for severance damages for lost severance damages for loss of visibility.  but UDOT’s argument suffers from a fundamental flaw: In this case, it i undisputed that Admiral did suffer a taking when UDOT took a portion of Admiral’s real property.  The above cases are inapposite because each concerned the threshold question of whether a landowner could state a takings claim at all — not the amount of compensation due a landowner who has indisputably suffered a physical taking of at least a portion of his property.  At issue here, as in Ivers, is the question of how to determine the just compensation to which Admiral is entitled.”        

Although not quoted in either the Petition or the Response, the Utah Supreme Court in Admiral Beverage did conclude that “[w]e have repeatedly held that a landowner does not have a protectable property interest in a particular flow of traffic past the landowner’ business.” Id., at ¶25.  But the Court concluded that such an interests is not required when it is undisputed a taking occurred.  Id., at ¶26, quoted above.  Further, when a constitutional taking occurs “the requirement of ‘just compensation’ is triggered” and the landowner is entitled to compensation “to the extent of the damages suffered.” Id., at ¶28.

The Utah Supreme Court subsequently refused to consider the Petition.

The post Admiral Beverage Part 3: Petition for Reconsideration and Response appeared first on Eminent Domain Review.


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