We are pleased to bring some good news. The Utah Supreme Court has just backed down from an earlier bizarre rule of law it had laid down in Ivers v. Utah D.O.T., 154 P.3d 802, in which it held that severance damages caused by a loss of visibility effected by a partial taking, are payable only when the subject property is essential to the public project. Which was not a very bright rule because the diminution in value of the remainder is what it is regardless of the degree of necessisty of its taking. Which is to say that a taking that may not be essential to the project causes just as much harm as one that is when it blocks visibility. It is the blockage of visibility, not the degree of necessity for the taking that causes the economic harm.
Now, the court has retreated from the deficient Ivers ruling in Utah D.O.T. v. Admiral Beverage Corp., 2011 UT 62, opinion filed October 18, 2011, and has concluded:
“Ivers contravenes our constitutional requirement to provide just compensation to those citizens whose property is taken by the state. We therefore conclude that Ivers was wrongly decided. . .”