Commentary & ArticlesInverse
Condemnation: No Such Thing As A Free Lunch
by Mark Wasser, September, 2011
If a city builds a bridge and its contractor parks construction
equipment and stores construction supplies for the bridge project in
the private parking lot of a commercial building next to the bridge
does the land owner have any recourse?
Does the city get a free lunch at the land owner’s expense?
We think not. The Constitution guarantees just
compensation to any owner whose property is taken by the government
for a public purpose. If a city stores equipment and supplies
for a bridge construction project on private property, the owner
deserves to be compensated for the use.
Inverse condemnation” is where the government takes property
without paying for it and the land owner has to sue the government
to get compensated. This is the reverse of traditional
condemnation (also known as “eminent domain”) where the government
sues the land owner to take property the government needs. In
eminent domain, the government pays first and takes the property
later. In inverse condemnation, the government takes the
property first and pays later.
There are three situations where the courts frequently find
inverse condemnation. One of the more common is where the
government imposes regulations that so restrict an owner’s ability
to use his or her property that the property becomes
worthless. This is known as a “regulatory taking.”
A second situation involves flooding and similar
disasters. If a government flood-control project fails and
land owners get flooded, it is possible the courts will find it to
be an inverse condemnation, depending on several factors.
Floods and disasters present competing policy issues and inverse
condemnation cases involving disasters are often complicated.
The third area is known as “physical invasion takings.” If
the government physically occupies private property, it is a
taking. Courts say the physical occupancy of private property
by the government is a per se, or automatic, taking.
When equipment and supplies for a city bridge project are stored
on private property it is a “physical invasion” taking because the
government is using private property without paying for it.
The Constitution does not give government a free lunch at the
expense of the private landowner.
We have handled inverse condemnation cases in all three areas
and have represented the government and private landowners.
Email Your Comment