Chapter § 15.11

• Jurisdiction: Oregon

§ 15.11 OTHER GOVERNMENTAL INTERFERENCE WITH USE OF PROPERTY

Governmental interference with an owner's use of property that does not fit into one of the previously described categories (physical takings, regulatory takings, exaction, or denial of access) may still amount to a taking. See § 15.11-1 (continuing nuisance), § 15.11-2 (condemnation blight).

§ 15.11-1 Continuing Nuisance

A continuing nuisance that results in a substantial interference with an owner's use and enjoyment of property can be a taking. See Thornburg v. Port of Portland, 233 Or 178, 192, 376 P2d 100 (1962). For example, in Thornburg, the plaintiffs sued the Port of Portland, alleging a claim of inverse condemnation based on noise from jet airplanes using the airport. The Oregon Supreme Court concluded that the continuing nuisance of noise from jets could constitute a taking and that the jury should decide whether the interference was sufficiently substantial. Thornburg, 233 Or at 193-95. In a later case, the court explained that "[t]he Thornburg case was significant because it expanded the rule of inverse condemnation from purely trespassory actions to actions based on nuisance." Lincoln Loan Co. v. State Highway Commission, 274 Or 49, 56, 545 P2d 105 (1976).

Thornburg has been interpreted narrowly. In Mark v. State Department of Fish & Wildlife, 158 Or App 355, 369, 974 P2d 716, rev den, 329 Or 479 (1999), the plaintiffs alleged that they were entitled to compensation under Article I, section 18, of the Oregon Constitution, because the state had allowed nudity in an adjacent wildlife area, which they alleged constituted a nuisance that substantially interfered with the use and enjoyment of their property. The court of appeals affirmed the dismissal of the complaint, holding that "nuisance that simply reduces the value of the property" does not constitute a taking. Mark, 158 Or App at 370. Instead, the court observed that case law "emphasize[s] that a taking requires the deprivation of all feasible private uses of the property or of some specific right in the property and that the Oregon constitution does not treat damage to property as a taking requiring just compensation." Mark, 158 Or App at 370. In Hall, 355 Or at 516, the supreme court emphasized the court's characterization in Thornburg of "the noisy overflights there as having imposed a 'servitude' or easement on the plaintiff's property."

§ 15.11-2 Condemnation Blight

"Condemnation blight," which can also be a taking, occurs...