Inverse Condemnation (CA)
What is inverse condemnation and what do you need to survive demurrer?
What is inverse condemnation?"An inverse condemnation cause of action derives from article I, section 19 of the California Constitution, which states in relevant part: "Private property may be taken or damaged for public use only when just compensation ... has first been paid to, or into court for, the owner." (Dina v. People ex rel. Dep't of Transp. (2007) 151 Cal.App.4th 1029, 1048.) "The California Constitution of 1879 added the phrase 'or damaged' to the just compensation provision...to clarify that application of the just compensation provision is not limited to physical invasions of property taken for 'public use' in eminent domain, but also encompasses special and direct damage to adjacent property resulting from the construction of public improvements." (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1233, citing, Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 376-380.)
What are the elements of inverse condemnation?"Property is 'taken or damaged' within the meaning of article I, section 19 of the California Constitution, so as to give rise to a claim for inverse condemnation, when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself." (Dina, supra, 151 Cal.App.4th at 1048, quoting, Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 530; see also, San Diego Gas and Electric Co., supra, 13 Cal.4th at 940.) By contrast, "a diminution in property value is not a 'taking or damaging' of the property, but an element of the measure of just compensation when such taking or damaging is otherwise proved." (San Diego Gas & Electric Co., supra, 13 Cal.4th at 942; see also, Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694, 713 [recovery of neighboring landowners in an inverse condemnation action requires more than a showing that the value of the property has diminished as a result of the project]; Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1042-1043.)
What is intangible intrusion?To recover for inverse condemnation under the theory of an "intangible intrusion," Plaintiff must be able to establish that her alleged loss resulted from an intangible intrusion onto their property which has "resulted in a burden on the property that is direct, substantial, and peculiar to the property itself." (See San Diego Gas & Electric Co., supra, 13 Cal.4th at 940; see also, Harding v. State of California ex rel. Dep't of Transportation (1984) 159 Cal.App.3d 359, 364-365.) The California Supreme Court has stated that a burden on neighboring property is sufficiently "direct and substantial" if the neighboring landowner can establish that the consequences of the intangible intrusion are "not far removed" from a direct physical intrusion. (See, Los Angeles County Metropolitan Transportation Authority, supra, 16 Cal.4th at 713; see also, Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 297.)
What is the case law on intangible intrusion?In Varjabedian, the Court held that an injury resulting to landowners from the gases emitted from a sewage treatment facility, which allegedly rendered their land "untenantable for residential purposes," was a sufficient "intangible intrusion" that was "not far removed from those core cases of direct physical invasion which indisputably require compensation" such that a claim for inverse condemnation could be stated. (Varjabedian, supra, 20 Cal.3d at 297.) Evidence was adduced that the odors "destroy[ed] the comfort and enjoyment of [plaintiff's] home and property" and caused such physical symptoms as the burning of eyes and nausea. (Id. at 293.) In reversing judgment on the pleadings dismissing plaintiffs' inverse condemnation cause of action, the Supreme Court ruled that plaintiffs should be granted the opportunity of demonstrating that the burden on their property from the noxious sewage fumes was "direct, substantial, and peculiar," such that it gave rise to an inverse condemnation claim. (Id. at 299.)
Similarly, in Harding, the Court of Appeal held that noise, dust, and debris from a nearby freeway, and the loss of light resulting from a 23-foot embankment (resulting in the loss of a vegetable garden), which made neighboring property "virtually untenable," was sufficiently analogous to a direct physical intrusion to maintain a claim of inverse condemnation in the face of a motion for summary judgment. (Harding, supra, 159 Cal.App.3d at 365-367.)