Rehearing Denied Jan. 8, 2010.
Steven S. Tervooren, Hughes Pfiffner Gorski Seedorf & Odsen, LLC, Anchorage, for Appellant.
Gregory Miller, Birch, Horton, Bittner & Cherot, Anchorage, for Appellee.
Before : FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN, Justices.
A landowner challenged a municipality's delay in replatting and providing an accurate legal description of the land it took using its power of eminent domain, alleging that it
unnecessarily interfered with his remainder property rights. As a remedy the landowner requested that the superior court dismiss the previously approved taking without prejudice or, alternatively, change the valuation date for determining just compensation. The superior court denied this motion. Because the superior court did not err in denying the landowner's motion, we affirm its decision.
II. FACTS AND PROCEEDINGS
In December 2002, as a part of its plan to construct certain roads, railroad crossings, a sports complex, and an expansion of the Wasilla Airport, the City of Wasilla commenced a taking of nine parcels of land belonging to Gary Lundgren. In January 2003 the City gave notice that it intended to dismiss three of the parcels from its declaration of taking and from its eminent domain complaint.
In March 2003 the superior court concluded that the City had established both the required authority and necessity to effect a taking of the remaining six parcels. The superior court ordered that title and possession to the six parcels be vested in the City; Lundgren did not appeal from this final judgment. The court retained jurisdiction to adjudicate the amount of just compensation for both the six parcels taken and the three parcels temporarily taken. In October 2006 the superior court appointed a special master to determine the compensation due Lundgren.
In December 2006 Lundgren filed a motion seeking alternative relief: a dismissal of the taking without prejudice or a ruling that valuation should be based not on the date of taking but rather on a later date. Lundgren argued that the City had violated AS 09.55.275 by " leaving him with an otherwise unlawful, un-platted remainder" -noting that after filing the declaration of taking the City did not receive preliminary replat approval for seven months or record a final replat for three years. The superior court denied the motion in June 2007.
Also in June 2007 the special master's report was issued, identifying both the December 2002 date for the permanent taking, and an initial temporary taking of the three parcels from that same date through February 2, 2004 (when the court formally approved the removal of the three parcels from the taking). The special master also noted " a secondary temporary taking" for two of the three parcels lasting from February 2, 2004, through May 1, 2007. The special master explained his finding of a second temporary taking by emphasizing that the City had failed to provide " a proper plat of survey" reflecting these parcels, such that it was " impossible for ...