Chapter §15.11 OTHER GOVERNMENTAL INTERFERENCE WITH USE OF PROPERTY

• 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.

"The proper test to determine whether there has been a compensable invasion of the individual's property rights . . . is whether the interference with use and enjoyment is sufficiently direct, sufficiently peculiar, and of sufficient magnitude to support a conclusion that the interference has reduced the fair market value of the plaintiff's land by a sum certain in money."

Lincoln Loan Co. v. State, By & Through State Highway Comm'n, 274 Or 49, 56, 545 P2d 105 (1976) (quoting Thornburg v. Port of Portland, 244 Or 69, 73, 415 P2d 750 (1966)).

§15.11-1 Continuing Nuisance

A continuing nuisance that results in a substantial interference with 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. The court later 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, By & Through State Highway Comm'n, 274 Or 49, 56, 545 P2d 105 (1976).

The Oregon Court of Appeals has interpreted Thornburg narrowly. In Mark v. State Dep't of Fish & Wildlife, 158 Or App 355, 369, 974 P2d 716 (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...