SPECIFICALLY SPEAKING | MUNICIPAL LAW
inverse understanding the impact of “Taking” Property
By g. Ray Lentz, Jr., Debbie S. Champion and Jakeva Sherman
Sovereign immunity gener- ally protects governments and governmental agen- cies from suit or liability. However, federal and state
constitutions present a waiver of that
immunity in instances where there is
a taking of property, damage to property or both. When a state entity proactively initiates such a taking, it generally does so through a condemnation action. There are numerous scenarios under which a de facto taking
may occur, and a claim can be filed
for damages against a public entity.
When these activities occur, either by
accident or intent of the public entity,
then a claim for inverse condemna-
tion may lie. Inverse condemnation is
a remedy available to a property owner
who is not fairly and justifiably com-
pensated for property taken or dam-
aged by the government for public pur-
poses without formal eminent domain
proceedings. In an inverse condemna-
tion action, the property owner, rather
than the condemner or government,
initiates the action.
What must be proved in an
inverse condemnation action?
In order for a plaintiff to recover on
the basis of inverse condemnation, he
or she must establish that:
u Plaintiff’s private property was taken or damaged
u Plaintaiff has an interest in the taken or damaged property
u The government planned, approved,
constructed or substantially participated in a project, development or
activity for public use
u The government’s activity was a
substantial cause of the taken or
u The government did so without just
Once these elements are proved, a
fact finder may determine the amount
of “just compensation,” if any, to be
awarded to the plaintiff.
What constitutes a taking?
A taking can be physical or regulatory.
A few examples of physical taking are:
seizure of land, retention of possession
of land after a lapse of lease period
and deprivation of access to land. The
Supreme Court in Ingle v. Chevron
U.S.A. Inc. found four types of regula-
(1) Government’s “physical” occu-
pation or invasion of an owner’s
WILL THIS ACTION DRAW A CLAIM FOR
K Does the regulation or action result in a permanent or temporary physical occupation of this property?
K Does the regulation or action deprive the owner of all economically viable uses
of the property?
K Does the regulation or action require property owner to dedicate a portion of
property or grant an easement?
K Does the regulation or action have a significant impact on the landowner’s economic interest?
K Does the regulation or action deny or substantially diminish a fundamental attribute of property owner?
(2) Government’s action that deprives
the owner of all economically
beneficial use of the property;
( 3) Government’s action that oth-
erwise economically burdens
the property owner, including
and the nature of the government
action effects a taking; and
( 4) “Land use exactions,” whereby the
government conditions a permit
or other approval on the owner’s
agreement to dedicate all or part
of its property to a public use.
This case found that whether a taking has occurred does not depend