Eminent Domain – Inverse Condemnation

The U.S. Constitution also grants governments the right to take private property for public use, which is better known as eminent domain. Property owners have, under the Constitution, the right to just compensation for their land. If this right is not granted, you have a right to file for inverse condemnation.

You worked hard for your land. We’ll fight to help you receive the fair and just compensation that you deserve.

We’ll:

• Review the facts of your case
• Determine if your property was taken from you without following the eminent domain process
• Go to Court on your behalf to explain the facts

If the Court finds that the property was taken without declaration or by following the proper process, we can then pursue a claim for the compensation that you deserve.

Contact us for a free consultation and discuss your next steps.

What is Inverse Condemnation?

Indiana Code, § 32-24-1-8, governs eminent domain in the State of Indiana. Governments, or a quasi-government, can be involved in eminent domain. A great example of this is the case of Bellwether Properties, LLC v. Duke Energy Indiana, LLC.

In the case, Bellwether alleged that Duke Energy took his land and was seeking inverse condemnation, but the Court dismissed the claim due to the statute of limitations passing.

The Court of Appeals determined that once Bellwether was aware of Duke Energy expanding its rights to his land, he acted within the limitations.

The Supreme Court ultimately remanded the matter back to the County Court.

In this case, a few facts show how eminent domain may not be followed:

• In 1957, Bellwether Properties granted Duke Energy a utility easement that was 10 feet wide.
• In 2002, law changes led to an imposed 23-foot easement, which is 13 feet more than what was agreed to in 1957.

Bellwether’s property was taken for public use, so damages were sought for the payment of just compensation. The land could not be used or enjoyed in the same manner as it once was because of the easement.

Government agencies can also act in this manner, such as the Department of Transportation (DOT). If a commercial agency has an exit onto a direct highway, DOT may decide to close access due to safety reasons.

If an easement exists, albeit being too small for a commercial vehicle to maneuver, it may prevent the commercial entity from operating effectively from the location. The DOT could argue an easement exists, but it would still greatly impact the business’s property value.

Property can also be used for public benefit, such as to help with drainage issues, and if it were to cause the property to flood and the access road to wash away, this may also fall under inverse condemnation.

Physical Takings

A physical taking occurs when a condemning authority takes away a property owner’s rights without declaring a taking. For example, they may restrict or remove access without making a declaration.

Although rare, cases of physical takings can and do arise.

In eminent domain law, failure to declare a taking is treated as a physical taking and requires just compensation. Affected property owners have the right to seek an inverse condemnation claim and begin the eminent domain process.

Police Damage Actions

Police damage actions are a type of physical takings. They occur when law enforcement damages innocent citizens’ property in the pursuit of an accused criminal.

Although no taking is declared, the damage is done. An inverse condemnation claim may allow you to recover compensation.

Cases involving police damage actions are complex and require the knowledge and experience of an eminent domain lawyer.

Regulatory Takings

Many inverse condemnation claims involve regulatory takings, or zoning. These arise when government entities pass regulations that restrict a property owner’s ability to use their property.

Zoning ordinances can impose restrictions on property owners and change the way they use their properties.

When zoning ordinances are so restrictive that they effectively take the property away from the owner, the owner may be able to pursue an inverse condemnation claim to start the eminent domain process.

Standard Tests

The U.S. Supreme Court has established standards tests to determine whether regulations are a taking. These include:

• Loretto: The government authorizes a permanent occupation of real property.
• Lucas: The regulation results in the loss of all economically beneficial or productive uses of the land – unless the regulation is justified by background principles of property law.
• Penn Central: This test looks at three factors: whether the government’s actions were physical or a regulatory action, the extent of the regulation’s interference with the owner’s reasonable expectations for the parcel, and the economic impact of the regulation on the property owner.

Regulatory takings are a highly complex area of eminent domain law. A qualified lawyer can help you understand your rights and how to proceed with your claim.

Unreasonable Development Restrictions

Unreasonable development restrictions, like regulatory takings, arise when a government authority imposes restrictions on property owners who are trying to develop their properties. Regulations are imposed when attempting to facilitate zoning changes or obtain a zoning permit.

Property owners are unable to develop their property to its highest and best use, effectively lowering its value.

In cases like these, property owners can pursue a court order to reverse the decision and pursue an inverse condemnation claim.

How CohenMalad, LLP Can Help

Inverse condemnation is a highly complex area of eminent domain that requires a deep understanding of the intricacies of the law. The lawyers at CohenMalad, LLP, have extensive experience handling cases involving regulatory takings, physical takings and other types of inverse condemnation.

Contact our attorneys today to schedule a consultation and discuss the details of your case.