Broderick Family, L.P. v. City of Waukee, Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-1131
Filed October 7, 2020

BRODERICK FAMILY, L.P.,
Plaintiff-Appellant,

vs.

CITY OF WAUKEE, IOWA,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Terry Rickers, Judge.

Broderick Family, L.P. appeals an order granting the City of Waukee’s

motion for summary judgment. AFFIRMED.

Daniel L. Manning, Sr. and Daniel M. Manning, Jr. of Lillis O’Malley Olson

Manning Pose Templeman LLP, Des Moines, for appellant.

James E. Nervig and Steven P. Brick of Brick Gentry P.C., West Des

Moines, for appellee.

Considered by Tabor, P.J., and May and Greer, JJ.
2

MAY, Judge.

Broderick Family L.P. (Broderick) sued the City of Waukee, Iowa (Waukee).

Broderick alleges Waukee’s actions created a servitude and uneconomical

remnant. But the district court concluded that, so far, Waukee’s acts have not

amounted to an unconstitutional taking. So the court granted summary judgment

in Waukee’s favor. Broderick now appeals. We affirm.

I. Factual Summary

Broderick owns a parcel of property—approximately 137 acres—within

Waukee’s city limits. Waukee owns land west of Broderick’s property. Waukee is

developing that land for a city park and public high school. Waukee wanted to

acquire a western portion—about five acres—of Broderick’s land. Waukee’s plan

is to use the land for infrastructure adjacent to the new high school. But the parties

could not reach an agreement for purchase of the land. So Waukee initiated

condemnation proceedings.1

In Iowa, the procedure for condemnation is set by Iowa Code chapter 6B.

Section 6B.3(1) prescribes the required contents of an application for

condemnation. Among other things, an application must include a “plat showing

the location of the . . . property sought to be condemned.” See Iowa Code

§ 6B.3(1)(b).

So, when Waukee submitted its condemnation application, it attached plats

showing the five or so acres it sought to acquire from Broderick. In addition to the

1 Condemnation is the process by which a government entity declares certain
property for public use in exchange for reasonable compensation to the property
owner. Condemnation, Black’s Law Dictionary (11th ed. 2019); see also Iowa
Code § 6A.1 (2018).
3

required information, though, the acquisition plats depicted a potential right-of-way

to extend Douglas Parkway across the entirety of Broderick’s property. But neither

the right-of-way nor the additional land it could require—approximately nine and

one-half additional acres—were otherwise addressed in Waukee’s condemnation

application. Rather, the application only sought to acquire the five acres (more or

less) needed for the school project.

Broderick then sued Waukee under a theory of inverse condemnation.

Broderick claims that Waukee’s drawings “earmarked” the additional nine and one-

half acres as “the location where” Waukee “intends to construct” an extension of

Douglas Parkway. Broderick alleges that despite this, Waukee “has no intention

of acquiring that right-of-way”—the nine and one-half acres—through

condemnation or otherwise. As a result, Broderick claims, Waukee has created a

servitude and uneconomical remnant.

Waukee moved for summary judgment. It pointed out that the additional

nine and one-half acres was only a “possible location of a future extension of

Douglas Parkway.” And Waukee has “made no final decision and taken no final

action either to extend or not to extend any portion of Douglas Parkway” across

the entirety of Broderick’s land. So, Waukee argued, there has been no taking.

The district court agreed. The court stated it could not find that Waukee

“irrevocably committed to constructing an extension of Douglas Parkway through

[Broderick’s] land.” And the court found “no evidence in the record to support

[Broderick’s] contention that a ‘taking’ has occurred.” So the court granted

Waukee’s motion. Broderick now appeals.
4

II. Standard of Review

“We review a district court’s summary judgment ruling ‘for correction of

errors at law.’” Bandstra v. Covenant Reformed Church, 913 N.W.2d 19, 36 (Iowa

2018) (quoting Walderbach v. Archdiocese of Dubuque, Inc., 730 N.W.2d 198, 199

(Iowa 2007)). Summary judgment is proper if the record shows “that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Iowa R. Civ. P. 1.981(3).

III. Analysis

Broderick raises two theories: inverse condemnation and uneconomical

remnant. We address each in turn.

A. Inverse Condemnation

Governments may not take private property without paying just

compensation. This right is guaranteed by the Iowa Constitution, which provides

that “[p]rivate property shall not be taken for public use without just compensation

first being made.” Iowa Const. art. I, § 18. Similarly, the Fifth Amendment to the

Constitution of the United States provides, “private property [shall not] be taken for

public use, without just compensation.”2

A property owner can pursue a claim of “inverse condemnation” when a

government body—such as a city—takes all or part of the owner’s property without

starting formal condemnation proceedings. See K & W Elec., Inc. v. State, 712

N.W.2d 107, 115 (Iowa 2006); Molo Oil Co. v. City Of Dubuque, 692 N.W.2d 686,

2 “Because of this similarity regarding takings, we consider federal cases
interpreting the federal provision persuasive in our interpretation of the state
provision.” Kingsway Cathedral v. Iowa Dep’t of Transp., 711 N.W.2d 6, 9 (Iowa
2006).
5

692 (Iowa 2005). We use a three-part framework to evaluate claims of inverse

condemnation: “(1) Is there a constitutionally protected private property interest at

stake?[;] (2) Has this private property interest been ‘taken’ by the government for

public use?[;] and (3) If the protected property interest has been taken, has just

compensation been paid to the owner?” Kingsway Cathedral, 711 N.W.2d at 9

(citation omitted).

There is no dispute as to elements one and three. Because Broderick owns

the nine and one-half acres at issue, Broderick clearly has a constitutionally

protected private property interest in the land. See id. Likewise, it is undisputed

Waukee has not compensated Broderick for the nine and one-half acres.

So the critical question is element two, whether Broderick’s property interest

in the nine and one-half acres has been “taken.” See id. A taking “may be anything

which substantially deprives one of the use and enjoyment of [the] property or a

portion thereof.” Phelps v. Bd. of Supervisors of Muscatine Cnty., 211 N.W.2d

274, 276 (Iowa 1973). A servitude—“a right to the limited use of a piece of land .

. . without the possession of it,” such as a right-of-way—can amount to a taking.

Servitude, Black’s Law Dictionary (“Servitudes include easements . . . .”);

Easement, Black’s Law Dictionary (recognizing a right-of-way is a type of

easement). It depends on the “continuance or permanency of the government

action” at issue. Kingsway Cathedral, 711 N.W.2d at 10.

Broderick claims Waukee has created a servitude—and has committed a

taking—by “attempt[ing] to reserve nearly [ten] acres of Broderick’s private

property for [a] public right-of-way without paying for it.” Broderick relies on three

pieces of evidence. First, Broderick points to the already-mentioned acquisition
6

plats,3 which label a strip of land as “150’ Proposed ROW” and “NE Douglas

Parkway.” Broderick says these “made it clear to Broderick and to all prospective

buyers that a specific portion of Broderick’s private property has been designated

and will be used for a public purpose—Douglas Parkway right-of-way.”

Broderick also points to Waukee’s other construction on and around the

property. For example, Broderick points out that Waukee previously extended

trunk sanitary sewer lines across Broderick’s property—aligning them with the

planned Douglas Parkway right-of-way. And Waukee intends to grade a portion

Broderick’s land to extend Douglas Parkway to the west. Since Douglas Parkway

now ends to the east of Broderick’s land, the result would be a gap in the

roadway—right where Broderick’s land is located.

Finally, Broderick points to a letter from Hubbell Land Development

(Hubbell). The letter identifies “Douglas Parkway” as a factor “that limit[s] the

amount of developable acres and ultimately the price a developer could pay” for

Broderick’s property. The letter states:

Although we have very limited information currently regarding the
Douglas Parkway expansion, it is typical for the developer to pay for
road expansions through their development. There may be [c]ity
dollars put into this road, but at this time it is an unknown, so we have
to assume worst case scenario and that the developer would be
responsible for this cost.

As Waukee points out, though, it “has made no final decision and taken no

final action either to extend or not to extend any portion of Douglas Parkway onto

Broderick’s tract” and “has not approved any permanent or continuing regulations

3These plats were recorded with the Dallas County Recorder, pursuant to Iowa
Code section 6B.35(1).
7

or restrictions relating to a future extension of Douglas Parkway that restrict

Broderick’s use of its tract.” Its acquisition plats and placement of trunk sanitary

sewer lines show only a “possible location of a future extension of Douglas

Parkway for reference purposes in drawings” related to the city park and public

high school being developed to the west. And, ultimately, there may “never be a

future extension of Douglas Parkway onto Broderick’s tract,” argues Waukee.

On this record, we agree with Waukee. Broderick has shown no

“permanen[t] . . . government action” by Waukee that definitively establishes the

future placement of Douglas Parkway. See id. Moreover, despite whatever plans

Waukee may have, Douglas Parkway may never be expanded.

And, ultimately, Broderick has only shown evidence of city planning. But

city planning alone does not constitute a taking. Allen Fam. Corp. v. City of Kansas

City, 525 F. Supp. 38, 41 (W.D. Mo. 1981) (“To impose liability upon a city for mere

planning activities would undoubtedly inhibit important and necessary

governmental functions.”); Dock St. Seafood, Inc. v. City of Wildwood, 47 A.3d

785, 793 (N.J. Super. Ct. Law Div. 2011) (“Just because a government plans to

take a property, its plans alone ordinarily do not constitute such a taking.”); NBH

Land Co. v. United States, 576 F.2d 317, 319 (Ct. Cl. 1978) (“[A] threat of

condemnation is not a taking.” (citation omitted)).

We also note that, so far as the record shows, Waukee’s acts have not yet

actually affected Broderick’s use of the property. See Kingsway Cathedral, 711

N.W.2d at 10 (citation omitted) (“[S]ome acts done by government agencies . . .

which affected but did not destroy or prevent all use of the affected property have

been held to be takings . . . .”). As the letter from Hubbell shows, it is possible
8

Waukee’s actions will impact Broderick’s future efforts to develop or sell the

property. However, our record does not show that Broderick has submitted a plan

to Waukee for approval of any development. Nor does the record show that

Waukee denied Broderick the right to develop its land in any way. See Agins v.

City of Tiburon, 447 U.S. 255, 260 (1980) (holding that a challenge to the

application of a zoning ordinance was not ripe for review when the property owners

had not yet submitted a plan for development of their property), abrogated on other

grounds by Lingle v. Cheveron U.S.A. Inc., 544 U.S. 528, 531 (2005); see also

Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S.

172, 186 (1985) (“[A] claim that the application of government regulations effects

a taking of a property interest is not ripe until the government entity charged with

implementing the regulations has reached a final decision regarding the application

of the regulations to the property at issue.”), overruled on other grounds by Knick

v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162, 2168 (2019).

In short: Broderick has not shown that Waukee’s acts give it even a limited

right to use the land. Cf. Servitude, Black’s Law Dictionary. Nor has Broderick

shown that—so far—Waukee has inhibited Broderick’s use of the land in any

continual or permanent way. See Kingsway Cathedral, 711 N.W.2d at 10. So, like

the district court, we find “[t]he record fails to sustain any present cause of action

related to any servitude.” And so the present record does not support a takings

claim.

B. Uneconomical Remnant

Broderick also asserts that Waukee “has created an uneconomical remnant

and established a servitude upon the property thereby establishing that there has
9

been a taking.” But Broderick does not provide authorities to support a separate

“uneconomical remnant” theory. So we decline to treat it as an adequate ground

for reversal. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in

support of an issue may be deemed waiver of that issue.”).

In any event, we believe the district court resolved this issue properly. “[A]n

‘uneconomical remnant’ is a parcel of real property in which the owner is left with

an interest after the partial acquisition of the owner’s property, where the acquiring

agency determines that the parcel has little or no value or utility to the owner.”

Iowa Code § 6B.54(8). Like the district court, we find “[i]n the absence of a present

‘taking’ by [Waukee], it is impossible for [Broderick] to prove that an ‘uneconomical

remnant’ has been created.” See Johnson Propane, Heating & Cooling, Inc. v.

Iowa Dep’t of Transp., 891 N.W.2d 220, 224 (Iowa 2017).

IV. Conclusion

Broderick has not shown the district court erred by granting summary

judgment to Waukee. We affirm.

AFFIRMED.