SC Lawyer, May 2007, #2. Recent Inverse Condemnation Cases.

• Author: By Richard Davis Bybee

South Carolina Lawyer

2007.

SC Lawyer, May 2007, #2.

Recent Inverse Condemnation Cases

South Carolina Lawyer May 2007 Recent Inverse Condemnation Cases By Richard Davis Bybee Narrowed elements of inverse condemnation

In Byrd v. City of Hartsville, 365 S.C. 650, 620 S.E2d 76 (2005), the Supreme Court narrowed the elements of an inverse condemnation claim in a regulatory takings case to (1) affirmative conduct and (2) a taking. The Court also adopted the U.S. Supreme Court's analysis from Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), for determining whether a taking through regulatory conduct has occurred and held that a temporary loss of all economically viable use was not constitutionally mandated. In so holding, the Court overturned several recent zoning related regulatory taking cases, although it noted that some of them were correctly decided. Byrd, 620 S.E.2d at 81.

The issue in Byrd was whether a delay in the zoning petition process by the City of Hartsville amounted to a temporary taking of property. The S.C. Supreme Court held that the zoning process was affirmative conduct within the meaning of South Carolina precedent on the elements of an inverse condemnation. However, when it addressed the temporary takings issue and applied the Penn Central "all relevant circumstances" standard, it determined that the economic impact on Byrd was not sufficient to amount to even a temporary taking because Byrd was still able to farm his property during the process and was not entitled to compensation merely because he had to obtain a zoning change to develop his property.

Right to a jury trial

The Supreme Court also recently affirmed the practice of providing a jury trial on the issue of just compensation to a landowner alleging an inverse condemnation. In Cobb v. S.C. Department of Transportation, 365 S.C. 360, 618 S.E.2d 299 (2005), the Court held that, while the right to a jury trial in a condemnation case is not constitutionally required, it is statutorily mandated. The Court relied upon the S.C. Eminent Domain Procedure Act, S.C. Code Ann. §§ 28-2-10 to 510 (2007), which sets out procedures for direct condemnations and concluded that the right to a jury trial provided in the Act also applied to inverse condemnation. The Court found that the historical treatment of an inverse condemnation action indicated that it was the equivalent of an eminent domain case on the compensation issue and concluded that the statutory right to a jury trial applied to inverse actions.

In Cobb, the Supreme Court also dealt with the DOT contention that the taking and compensation issues should be separately decided to allow the DOT the right to choose whether to pay compensation or "undo" the taking by restoring the landowner's property to its previous condition. The Court determined that this "bifurcation" issue was not an immediately appealable "mode of trial" issue. It then stated, "Accordingly, in an inverse condemnation case, the trial judge will determine whether a claim has been established; the issue of compensation may then be submitted to a jury at either party's request." Cobb, 618 S.E.2d at 301.

Nothing in case or statutory law gives the government the right to illegally take a property right and then avoid paying compensation by "undoing" its action. The approval of such a procedure would encourage the government to test the limits of its power without concern for the ramifications of its actions and require a landowner to file suit for compensation, the payment of which can be avoided in the event of an adverse taking ruling and one unilateral abandonment action by the government. S.C. Code Ann. § 28-11-30(3) (2007) provides...