Court: Businesses can be hidden
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No Comments [ Add Comment ]By Jesse Fruhwirth
Standard-Examiner Davis Bureau
F
ARMINGTON -- The Utah Supreme Court on Tuesday soundly rejected the idea that businesses have a right to be seen by their customers.
The decision addressed a lawsuit brought by P&F Food Services, a company that operates Arby's on the corner of U.S. Highway 89 and Shepard Lane in Farmington.
In its decision, the state said if a new road causes motorists to drive blindly over the top of a business -- where they used to drive right by it -- it can't help.
The court upheld, however, a land owner's right to compensation if their view from the property is obstructed. That distinction might yet save a nearly four-year-old lawsuit brought against the Utah Department of Transportation.
The attorney general's office called the decision a "victory for taxpayers" who pay for highway upgrades. But a lawyer representing Arby's said business owners must be compensated when the state diminishes the value of their property.
Also discussed in the lawsuit is 0.048 acres of land owned by the company which was condemned through eminent domain for the building of a frontage road abutting the overpass.
UDOT paid $48,250 for the parcel.
In the suit filed in 2002 the company asked UDOT to further compensate them for loss of land value for the 0.368 acres where the Arby's is still located.
No Utah laws protect a landowner's right to visibility, the Supreme Court found. However, the case will be sent back to Judge Michael G. Allphin in 2nd District Court to assess Arby's loss of its view.
"It's not a big back door," said Assistant Attorney General Randy S. Hunter. "It's a tiny doggy door."
Hunter said he's confident that the court will find that the Arby's did not suffer property value loss because its view is obstructed.
"Is there a value to a fast food restaurant to have a beautiful view of the mountains?" Hunter said. "Maybe if this were a five-star dining establishment I would say yes."
Hunter said the court can only consider the company's potential loss if the portion of its land that was condemned was necessary to the obstructing project and if that structure is on the condemned land. The Court of Appeals turned down the company's claim in 2005, saying the 0.048 acres was condemned for the frontage road, not the overpass, which is actually blocking the view.
P&F's attorney Donald J. Winder said the frontage road and the overpass are parts of the same overall project.
"When someone builds a 30-foot structure in front of your fast food restaurant, I think there's some diminished value to your property," Winder said. "When the state condemns property, they're under a particular standard to show that the taking is necessary to the project. That's important evidence in this case."
Hunter said the condemnation wasn't necessary, but merely allowed for wider turns.
Winder balked at the idea that the state would condemn property it didn't need.
"Why would you take property if you didn't need to take property to develop the project?" he said.
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