Commentary & Articles

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.  

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