Inverse Condemnation and Regulatory Takings
Inverse Condemnation
Inverse condemnation cases arise when the government takes or damages property without filing a condemnation action. This typically occurs in three different situations: (1) where government regulation of property rises to the level of a taking, as described above; (2) where the government causes accidental property damage to a property, such as in a flooding or landslide situation; or (3) where the government abandons plans to condemn property before filing the lawsuit, but only after the government's precondemnation conduct has already resulted in a compensable taking.
Nossaman attorneys have expertise in all three types of inverse condemnation claims. Nossaman attorneys have litigated (1) dedication and fee cases, including a multi-million dollar case involving park in lieu fees, (2) a major landslide case that involved two, three-month jury trials and three appellate court proceedings, and (3) an inverse condemnation case on behalf of a lumber company damaged when it relocated in anticipation of the government's condemnation of the property it leased, only to learn after relocating that the government had decided not to acquire the property and, therefore, not to offer the company any compensation for its losses.
Regulatory Takings
Not all takings involve condemnation. Sometimes, the government imposes restrictions on an owner's use of property that so limit its utility that the owner claims that the regulation amounts to a compensable taking of the owner's property. A key difference between condemnation and regulatory takings cases is that the latter do not start from the presumption that the government has taken something for which it must pay just compensation. In regulatory takings cases, the focus often is on whether the regulations leave the owner with an economically viable use of property and, where the regulation or fee is triggered by the owner's plans to develop the property, whether the regulation or fee is roughly proportional to the burden the owner's planned use will have on the relevant infrastructure.
Nossaman also has expertise in evaluating whether a proposed regulation rises to the level of a regulatory taking, and it has advised the government seeking to impose the regulation on ways to ensure that the regulation, if implemented, will survive any regulatory takings challenge. On the property owner side, Nossaman advises owners impacted by the proposed regulation through the administrative proceedings leading up to the regulation's enactment in an effort to effect changes in the regulation that will avoid or minimize harm to the owner. Where the government proceeds with a regulation that rises to the level of a taking, Nossaman has experience challenging such regulations. And, where a regulatory taking is shown, the case begins to resemble a condemnation case, where Nossaman's valuation expertise allows us to achieve strong results for our clients.
Dedication Requirements and Fees
Nossaman has litigated myriad cases involving the legitimacy of dedication requirements for roads, flood control, and parks, among others. Nossaman also litigated a case in Huntington Beach involving tens of millions of dollars in park in lieu fees (fees the developer pays in lieu of dedicating parkland).