Section 5.2 What Constitutes a Taking in the Context of an Inverse Eminent Domain Action?

• Library: Eminent Domain 3rd Edition 2013

A taking is the permanent taking or diminishing of any of the rights which one has by reason of and appurtenant to his ownership of the property, as well as the deprivation of title to the physical object. A taking includes any substantial interference with the rights over a physical object which destroys or lessens its value, or by which the use or enjoyment thereof is, in any substantial degree, abridged or destroyed.

In re Forsstrom, 44 Ariz. 472, 38 P.2d 878 (1934) (overruled on other grounds in County of Mohave v. Chamberlin, 78 Ariz. 422, 281 P.2d 128 (1955) and State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988 (1960)) (change in grade of a street results in a taking of owner’s right of ingress and egress to property)

A taking of any kind or an infringement of the use of property which would diminish its value in whole or in part is a loss for which the owner should be compensated. The fact that the owner still has the land is no satisfaction for the damages.

Maricopa County Mun. W.C.D. No. 1 v. Warford, 69 Ariz. 1, 206 P.2d 1168 (1949) (repeated flooding of property by the irrigation district was a taking of an easement which required compensation)

It is the character of the invasion, not the extent of damage resulting from it (so long as the damage is substantial), which determines whether a taking occurs.

State ex rel. Herman v. Southern Pac. Co., 8 Ariz. App. 238, 445 P.2d 186 (1968) (taking occurred when railroad right-of-way lost its access to a parallel highway for distance of 6.3 miles)

A physical invasion of property, no matter how minor, is a per se taking.

Loretto v. Teleprompter Manhattan CATV Corp.,458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982)

The loss of the right to exclude others, such as by creating a public easement over private property, may be such a substantial deprivation of property rights as to constitute a taking.

Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332 (1979)

However, where the alleged taking is of a property use that would have constituted a nuisance, the government can rely on the “nuisance exception” as a complete defense to a takings claim. Whether the nuisance exception is applicable is a threshold question, which should be addressed before the determination of whether a taking has occurred.

Lucas v. S.C. Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992)

Mutschler v. City of Phoenix, 212 Ariz. 160, 129 P.3d 71 (App. 2006)

A similar defense lies where the inverse condemnation plaintiff alleges the “taking” of a property right that the plaintiff does not own.

South West Sand & Gravel, Inc. v. Central Ariz. Water Conservation Dist., 221 Ariz. 309, 212 P.3d 1 (App. 2008) (no taking where land was subject to pre-existing water rights limitation)

State v. Mabery Ranch, Co., LLC, 216 Ariz. 233, 165 P.3d 211 (App. 2007) (filing of declaratory judgment lawsuit does not constitute a taking)

Government regulations or restrictions may also effect a taking of property.

Penn. Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922)

Dos Picos Land LP v. Pima County, 225 Ariz. 458, 240 P.3d 853 (App. 2010) (distinguishing between physical and regulatory takings)

There is no set formula for determining at what point a regulation effects a taking. The U.S. Supreme Court has set out three criteria for defining when a regulation results in a taking: (1) the economic impact on the claimant; (2) the extent to which the regulation interferes with the claimant’s distinct investment-backed expectations; and (3) the character of the governmental action.

Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978)

Because the Penn Central test is a fact-intensive analysis, regulatory takings claims are rarely dismissed for failure to state a claim in the pleadings.

Berst v. Snohomish County, 57 P.3d 273 (Wash. App. 2002)

The Penn Central test also applies to temporary regulatory takings.

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (2002)

The remedy for temporary regulatory takings is not just invalidation of the government action, but just compensation for the period of time during which the regulation was in effect.

First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987)

Corrigan v. City of Scottsdale, 149 Ariz. 538, 720 P.2d 513 (1986)

However, some delays in government actions (even where they are the result of a legally erroneous position taken by the government) may not be compensable as temporary takings even though they result in the same kind of damage.

Landgate, Inc. v. Cal. Coastal Comm’n, 953 P.2d 1188 (Cal. 1998), cert. denied, 525 U.S. 876, 119 S. Ct. 179, 142 L. Ed. 2d 146 (1998)

After Penn Central, the U.S. Supreme Court held that conditioning the grant of development permits on the dedication of property could constitute a taking if it does not meeting the following: (1) the regulation must have an essential nexus with the government purpose furthered by the regulation (Nollan “essential nexus” test) and (2) the government must make an individualized determination that the required dedication is related both in nature and extent to the proposed development’s impact (Dolan “rough proportionality” test)

Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994)

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987)

The Arizona Legislature adopted the Nollan and Dolan standards statutorily. See A.R.S. §§ 9-500.12, 9-500.13 (cities and towns) and A.R.S. § 11-832 (counties).

In the cases listed below, state courts interpreted and applied the standards enunciated in Nollan and Dolan in various circumstances:

Dos Picos Land LP v. Pima County, 225 Ariz. 458, 240 P.3d 853 (App. 2010) (Nollan is inapplicable without a government mandate that the landowner open its property to public access or use)

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