Inverse condemnation

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There’s one citation notably missing from the opinion of the Texas Court of Appeals in Anderton v. City of Cedar Hill, No. 05-12-00969-CV (Aug. 22, 2014): Williamson County.  

This was case where in response to the city’s petition that the Anderdons’ use of their property was illegal, they counterclaimed that they had nonconforming use rights, that the city’s petition violated their vested rights, and resulted in a taking of their property. The trial court granted the city summary judgment on the counterclaim, holding that the owners did not present evidence of their nonconforming use status, and that their inverse condemnation claim was not ripe because they had not pursued available administrative remedies under the zoning code.

The court of appeals reversed. It concluded that the owners did submit enough evidence to get past a summary judgment motion that their use was nonconforming. Most interestingly for our purposes…

Continue Reading Williamson County Wonderfully MIA In Texas Court’s Ripeness Analysis

Pennington v. Gwinnett County, No. A14A0999 (Oct. 9, 2014) was review of a grant of summary judgment, so the facts, viewed in light most favorable to the Penningtons, sure make it look like the county engaged in some sharp practices. 

The Penningtons had an agreement with T-Mobile, which gave it the option to lease the Pennington property for a tower. Shortly thereafter, T-Mobile filed its application to build the tower with the county’s planning department. After a series of delays requested by T-Mobile, during which the county amended its policy which prohibited cell towers on county property, the county denied the application. And then T-Mobile and the county entered into an agreement to put the tower on county land.

The Penningtons sued for inverse condemation, asserting “that the county’s interference scuttled their deal with T-Mobile South.” Slip op. at 1.  

The court of appeals concluded that an option contract…

Continue Reading Georgia App: County Busting Your Deal Isn’t A Taking

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In State of Oregon v. Alderwoods (Oregon), Inc., No. A146317 (Sep. 17, 2014), an en banc equally-divided Oregon Court of Appeals affirmed the trial court’s determination that while the property owner possessed a property right in access to a public highway, that common law right was worth … pretty much nothing. 

Being an affirmance by an equally-divided court, there’s no majority opinion only a per curiam statement that’s exactly 6 words long (“Affirmed by an equally divided court.”). The real back-and-forth takes place in the concurring and dissenting opinions. 

Under Oregon common law, owners of properties abutting a state highway or county road have a right of access to the highway. And while the concurring judges in Alderwoods paid lip service to that right, they concluded that since that right may be regulated, there was no need for the state to pay just compensation when it took that …

Continue Reading Oregon App: Your “Common Law” Right To Access A Street Can Be Regulated Away, So You’re Owed Nothing If It’s Taken

We all know that in straight condemnation actions, the condemnor must usually name all parties with an interest in the land as defendants. Indiana law is no different, although the Indiana Supreme Court has ruled that nonjoinder is not a jurisdictional defect. In Snyder v. Town of Yorktown, No. 18A02-1405-CT-332 (Oct. 10, 2014), the Indiana Court of Appeals considered an argument that the same holds true in inverse cases.

While upgrading its sewer system, the town needed access to Snyder’s property. She said no to an easement. The town’s contractors entered anyway, excavated a trench, and installed a storm pipe. This resulted in her filing an inverse condemnation action. 

The town asserted that her claim was missing a needed party, a mortgagee. It argued that in an eminent domain action, all those with an interest in the property would need to have been named, and the same holds true…

Continue Reading Must An Inverse Condemnation Plaintiff Name All Parties With An Interest In The Property?

In Admasu v. Port of Seattle, No. 70220-3-1 (Dec. 18, 2014), the Washington Court of Appeals held:

  • No class certification for owners who claimed that overflights and noise from Sea-Tac airport inversely condemned their property. The common questions did not predominate, because inverse condemnation and the extent of the diminution of value is a property-specific exercise. 
  • Some of the properties were burdened by an avigation easement, and the court held those owners had already bargained away any rights regarding overflights. Thus, no property was taken from them.
  • The claims of owners who asserted noise damage were precluded by the federal Aviation Safety Noise Abatement Act of 1979.  
  • But claims for damage from vibration, toxic discharges, and fumes, were not precluded. For these claims, the court of appeals concluded the Port had not adequately supported its summary judgment motion in the trial court, and reversed and sent the case

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Continue Reading Wash App: No Class Action For Airport Inverse Cases

St. Charles Land Co. II, LLC v. City of New Orleans, No. 14-CA-101 (Dec. 23, 2014), involved the amount of compensation in an inverse case over 8.08 acres of New Orleans land used for the extension of an airport runway. The trial court determined just compensation at $30,740.

Here’s the heart of the opinion:

Upon review of the record in its entirety, we find the trial court committed manifest error in valuing the property at issue as unimproved wetlands and canal bottom outside the levee protection system, or “wet.” The first step in valuing appropriated land is to determine the highest and best use of the property. As discussed above, the current use of the property is presumed to be the highest and best use. However, the landowner may overcome this presumption by proving a different highest and best use based on a potential future use. See Exxon Pipeline…

Continue Reading La App: Wetlands Should Have Been Valued As “High And Dry”

The DOT took some of the Garretsons’ land, and the construction of the bypass highway which necessitated the taking ended up flooding the Garretsons’ remaining land, so they sued, alleging the damage was caused by the DOTS’s “gross negligence in the constructon and change of drainage.” The trial court dismissed, because the DOT is statutorily immune if its negilgent design of a highway improvement results in damage.

Although the Garretsons argued on appeal that their complaint included a takings claim (which as a constitutional claim, is not subject to government immunity), the Mississippi Court of Appeals in Garretson v. Mississippi DOT, No. 2013-CA-01511 (Nov 20, 2014) held that their complaint was framed in terms of the DOT’s negligence, and nowhere used the word “taking” or similar. Even under liberal pleading rules, the complaint wasn’t pleaded with enough specificity to put the DOT on notice. Slip op. at 11.

The argument…

Continue Reading Mississippi App: If You Allege A Taking, Your Complaint Should Mention “Taking”

Ohio-sommers

Major interstate highway bridge construction nearby resulted in homeowners suing ODOT for inverse condemnation because “extreme noise, pounding and vibrations” caused their home (red arrow) to be uninhabitable. The Ohio Court of Claims granted ODOT summary judgment, and the property owners appealed.

The homeowners argued that the trial court applied the wrong standard, and should have analyzed the undisputed facts under the Penn Central test for a regulatory taking. Problem was, they hadn’t referred to Penn Central in the Court of Claims, arguing only that ODOT had “‘substantially and materially’ interfered with their use of their property,” and had physically trespassed. 

In Sommer v. Ohio Dep’t of Transportation, No. 13AP-848 (Dec. 23, 2014), the Ohio Court of Appeals rejected the homeowners’ argument, concluding that the Court of Claims properly analyzed the facts under the correct standard: “‘As ordinarily understood, the term, ‘taking,’ as used in the Constitution, comprehends…

Continue Reading Ohio App: “Inconveniences” Caused By Highway Construction Not A Taking

You regulatory takings mavens know the “denominator” issue. It first came into our collective consciousness in the Penn Central case, where the Supreme Court concluded, among other things, that the property to be analyzed for regulatory takings purposes was not just Penn Central’s air rights, or even the parcel which it wanted to develop. Instead, the Court concluded that the property against which the development ban was to be measured was the entirety of Penn Central’s property in the area. (For more on the case, see Professor Kanner’s article, “Making Laws and Sausages: A Quarter-Century Retrospective of Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill of Rights J. 679 (2005)). 

From that inasuspicious beginning, there’s been an entire body of jurisprudence that has built up around what the “relevant parcel” is when a court is determining a regulatory taking, also known as…

Continue Reading Wisconsin App: Two Parcels Can Be Treated As One For Regulatory Takings Purposes, If They Are Contiguous

In Finch v. Carroll Cnty., No. CV-14-251 (Oct. 22, 2014), the local county judge asked the property owners to donate gravel. That’s gravel, not “gavel,” for those of you, like us, who were wondering. (We have no idea why, or whether this is common. But there it is.)

But in removing the “several hundred truck loads of gravel,” the county left behind debris, which several weeks later ended up damming the creek, and coupled with a lot of rain, flooded the owners’ property, damaging “their cattle, chickens, trees, and the chicken structures that were near the creek.” Slip op. at 1. They sued the county and the judge for negligence and inverse condemnation.

The court of appeals upheld the trial court’s grant of summary judgment for the defendants. on both claims. A county is immune from tort liability for its negligence under Arkansas law (and pretty much the…

Continue Reading Arkansas App: One Flood Not Enough For Inverse Condemnation Liability (But What About Arkansas Game & Fish?)