Inverse Condemnation: When Eminent Domain Procedures Are Not Used for a Physical Taking

Dan Biersdorf
March 15, 2013 — 1,990 views  
Become a Bronze Member for monthly eNewsletter, articles, and white papers.

In eminent domain cases, sometimes the condemning authority does not follow the proper steps as required by eminent domain law. For example, the condemning authority might take a portion of your property or property rights without formally declaring a taking and paying you just compensation. When this occurs, the property owner has the right to inverse condemnation. This means they can go to court, explain that the actions of the condemning authority amount to a taking of property, and move on to the damages phase of their case.

Inverse condemnation can occur in several categories: physical takings, regulatory takings and unreasonable development restrictions. With physical takings, a land owner has not been given the opportunity to make a just compensation claim for a physical taking that has occurred at their property by a condemning authority.

Rarely will the condemning authority fail to complete an obvious taking of property -for example, physically taking your property or seizing part of your front yard - without instituting proper eminent domain procedures. The vast majority of physical takings are more subtle.

In a case that we recently litigated and won, a commercial property owner had direct driveway access of 30-35 feet wide onto a major road, sufficient for the company's commercial operation. It also had narrow access of approx. 12-15 feet wide onto a side road. When a condemning authority decided to convert this road into a restricted access highway, it was agreed that the property owners would still have access to the newly designed highway.

A few years later, as the project progressed, the condemning authority began closing off the driveways of land owners, cutting off direct highway access. Our client noted above was told by the condemning authority that they did not institute condemnation proceedings because he still had access through the small easement that led to a side road.

The loss of access is a physical taking. You are losing something that you once had. In this particular situation, the property owner still had access, but was it reasonable access?

Our client argued that the remaining access was only 12-15 feet, not nearly wide enough to accommodate the commercial use for which the property was zoned. We initiated an inverse condemnation action, and the case went to trial. The trial judge concluded that because the remaining easement was so narrow and also was obstructed by holding tanks, the restricted access amounted to a physical taking. Under this ruling, our client was owed just compensation for this loss. This property owner was also reimbursed for all his costs and attorney's fees by the condemning authority because he resides in a state that mandates this when a property owner is successful in pursuing an inverse condemnation case.

Article Source:


Dan Biersdorf

Biersdorf & Associates

Dan Biersdorf, principal attorney at the law firm of Biersdorf & Associates, has been a trial lawyer since 1977 and frequently lecturers on property valuation matters, lobbies for property owner rights, and has achieved the enactment of important new eminent domain legislation in various states. Biersdorf & Associates has presented eminent domain cases in appellate and state supreme courts across the country, and has attorneys licensed in fifteen states. If you'd like to learn more about the eminent domain laws in your state, check out our website: eminent domain law firm or call us at 866.339.7242.