Tag: Takings

Doctrine of necessity can immunize local governments from takings claims, but maybe not in this case

hdankbar

by Hannah Dankbar

Irwin v. City of Minot
North Dakota Supreme Court, March 24, 2015

Robert and Donna Irwin own 8.12 acres in Ward County, North Dakota. In 2011 the Souris River was flooding part of Ward County, which resulted in the City of Minot deciding to construct emergency earthen dikes along municipal streets. The City hired a contractor to gather clay to build a dike from Darrell Sedevie, the Irwins’ neighbor. The City contracted with Sedevie for removal of the clay, and paid sixty-five cents per cubic yard for 20,000 cubic yards of clay. The contractors entered the Irwins’ land to access the Sedevie property, removed an undetermined amount of clay and topsoil from both the Sedevie and Irwin properties, and used the materials to construct the emergency dike. Damage to the Irwins’ property included destruction of a cement slab, barn, damage to a fence, and destruction of native prairie grassland. The City did not contract, obtain permission, or pay compensation to the Irwins for removal of the clay from their property.

The Irwins filed a complaint of inverse condemnation against the City, citing Article I Section 16 of the North Dakota Constitution (the state Constitution’s Takings Clause). The Irwins argued that the City took deliberate action to remove soil and damage the property, the clay was removed for public use, the removal of the clay was the proximate cause of the damage to their property, and any defense that the City was acting under its police power or is protected from suit through sovereign immunity is inapplicable. The City moved for summary judgment to dismiss the claim. The City argued that the contractor’s removal of the clay was an exercise of its police power to act in a sudden emergency and did not constitute a taking under eminent domain. The City also argued it was not authorized to compensate the Irwins as a matter of law in exercising its police powers, and is statutorily immune from liability for damages resulting from the contractor’s actions.  The District Court found that the City acted under its police power authority during an emergency and not under its eminent domain authority, and therefore was not responsible for compensating the Irwins.

In North Dakota, when the state takes or damages private property without first compensating the owner through eminent domain, the property owner has to take the initiative by raising a claim of inverse condemnation. To establish an inverse condemnation claim, a property owner must prove a public entity took or damaged the owner’s property for a public use and the public use was the proximate cause of the takings or damages.  Under common law, however, a public entity can exercise a taking without compensating the owner when acting under police powers.  The “doctrine of necessity” operates to protect states from liability “when there is an imminent danger and an actual emergency giving rise to actual necessity.” Under North Dakota legal doctrine, “[t]he State or the municipality may, in the exercise of police power, exact of property owners uncompensated submission of their property in the protection of public health, safety, or morals, but such use or injury of private property under the police power is uncompensated in this State only where such power is exercised to meet sudden emergencies.”

In this instance, the record included evidence that before the flood the City contracted with property owners for clay to construct the dikes, and also that clay was available at other locations around the city.  Reviewing the evidence in the light most favorable to the party opposing the motion, a question of fact exists as to whether the imminent danger facing the City gave rise to an actual necessity to take the Irwins’ property. In this case, the North Dakota Supreme Court determined that the district court erred in ordering summary judgment.

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Dust, noise from bridge project did not give rise to taking or public nuisance claims

hdankbar

by Hannah Dankbar and Gary Taylor

Sommer v Ohio Department of Transportation
Ohio Court of Appeals, Tenth District, December 23, 2014

In 2007 Nick Sommer and Alyssa Birge bought a home in the Tremont neighborhood in Cleveland. In 2010 the Ohio Department of Transportation (ODOT) started construction to replace the “Innerbelt Central Viaduct truss bridge.”

The first phase of the project was to realign the sewer system.  This phase of the project ran from September 2010 to July 2011. The construction was coordinated between ODOT and Northeast Ohio Regional Sewer District (NEORSD). This phase of construction took place around Sommer’s home and resulted in “construction noise” and the closure of traffic lanes around Sommer’s home. The driving of piles into bedrock for the westbound bridge “create[d] a loud banging sound.”  In June 2012 Sommer filed a complaint against ODOT complaining that the construction resulted in “extreme noise, pounding and vibrations *** separate and distinct from that experience by other affected properties,” and causing his home to be uninhabitable.  Sommer sought declaration of inverse condemnation, as well as a public and private nuisance.  The Court of Claims filed an entry granting ODOT’s motion for summary judgment.

Sommer claimed that the Court of Claims was wrong by (1) not examining their inverse condemnation (takings) claim under the proper legal standard, and (2) granting summary judgment in favor of ODOT on their takings claim.

Sommer argued that the proper analysis for the takings claim was the three-part test set forth by the US Supreme Court in 1978 in Penn Central Transportation Co. v New York:

[w]here a regulation places limitations on land that falls short of elimination all economically beneficial use, a taking nonetheless may have occurred, depending on a complex list of factors including (1) the regulation’s economic effect on the landowner, (2) the extent to which the regulation interferes with reasonable investment-backed expectations, and (3) the character of the government action.”

ODOT countered that because Sommer waited until the appeal to raise this claim, it should not stand.  The Court of Appeals agreed, noting that Sommer’s response to ODOT’s summary judgment motion contained no citation to either Penn Central, or to its three-part test.  It also noted that the lower court did analyze Sommer’s claim under Ohio state caselaw, specifically a 1966 case that recognized a taking as “any direct encroachment upon land, which subjects it to a public use that excludes or restricts the dominion and control of the owner over it.”  The Court of Appeals found no error by the lower court.

The next claim on appeal is that the Court of Claims was wrong to interpret the Ohio law that requires a physical invasion of property or a complete denial of access and that issues of material fact still remain as to whether ODOT substantially interfered with appellants’ use and enjoyment of their property in such a degree as to amount to inverse condemnation. While Sommer complained about how the construction “prohibits you from relaxing completely,” he was never denied access to his property and did not claim any physical damage to his property, prerequisites to an inverse condemnation claim per Ohio caselaw.  “An increase in vibration and dust caused by a highway improvement, both from the construction and from the increase in traffic from the expanded highway, is not compensable as a taking.”  It is assumed that once the construction is complete Sommer will be able to enjoy his property as he did before the construction.

Finally, among Sommer’s other claims he alleged that “a genuine issue of material fact exists regarding whether the harm suffered by appellants was different in kind than suffered by property owners.”  Ohio defines a public nuisance as “an unreasonable interference with a right common to the public.” A private individual does not have standing to claim a public nuisance unless the individual can show that they suffered an injury or damage that was not incurred by the general public. The Court of Appeals reviewed the uncontroverted evidence that the inconveniences experienced by Sommer were also experienced by others in the neighborhood, and concluded that since Sommer failed to show how the harm done to his is different than the harm to others in the neighborhood his claim cannot stand.

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Elimination of median cut not a taking

Gary Taylor

by Gary Taylor

Buck’s, Inc. v. City of Omaha
(Nebraska Court of Appeals, November 25, 2014)

Buck’s, Inc. owns and operates a gas station on the northwest corner of the intersection of 144th Street and Stony Brook Boulevard in Omaha. In August 2009, the City eliminated a cut in the median on Stony Brook Boulevard that gave eastbound traffic access to the gas station. No access points to the gas station were eliminated. The city engineer testified that the decision to eliminate the median cut was made to address safety concerns associated with the anticipated increased traffic generated by a new grocery store in the area. The city’s right-of-way manager testified that the City did not acquire any property or property interest from Buck’s for this project, and affirmed that Buck’s had three entrances to its property prior to the project, and continued to have three entrances after project completion.

Buck’s nevertheless brought an inverse condemnation action against the City. A board of appraisers was appointed, and Buck’s was awarded $30,000. Both parties appealed to the district court, which entered summary judgment for the City. Buck’s appealed.

The Nebraska Court of Appeals noted that the right of an owner of property that abuts a street or highway to have ingress and egress by way of the street is a property right in the nature of an easement, and the owner cannot be deprived of such right without due process of law and compensation for loss. The court also noted, however, that “as to damages claimed by reason of a change in the flow of traffic by placing medians in the center of a street, [the damages] result from the exercise of the police power and are noncompensable as being incidental to the doing of a lawful act.” After the median cut was closed, Buck’s still had access to Stony Brook Boulevard. “The fact that left-hand turns are now restricted is but an inconvenience shared with the general public.” The Court of Appeals affirmed the district court.

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“Auto graveyard” fails to exhaust state administrative remedies

by Kaitlin Heinen

Joseph P. Stanislaw v. Thetford Township
(Federal 6th Circuit Court of Appeals, February 20, 2013)

In July 1983, Joseph and Lorraine Stanislaw submitted a “vehicle dealer supplemental location license application” to sell used cars in Thetford Township, Michigan.  The township’s zoning ordinance required that automobile sales be conducted inside an enclosure, so the planning commission ordered the Stanislaws to construct such an enclosure in 30 days. In April 1984, a neighbor, Daniel Case, complained about the Stanislaws’ property. So Joseph Stanislaw appeared before the Planning Commission in May 1984 and August 1984 and received approval of a a plan that included an enclosing fence.  Thetford Township approved a new zoning ordinance in 1989, and the Stanislaws’ business was grandfathered in as a previously approved non-conforming use.

In September 2005, Case complained to the Township that the Stanislaws’ property was a junk yard. In 2004, Michigan passed an act that required car dealers to obtain “written verification from the appropriate governing or zoning authority that the established place of business meets all applicable municipal and zoning requirements” prior to any license renewal. So in December 2005, Lorraine Stanislaw submitted the necessary form to  renew the car dealership’s license. The Thetford Township Building Inspector, Mark Angus, inspected the property before signing. He refused to sign the Stanislaws’ forms concluding that the fence was in poor condition and that the property was “an auto graveyard.”

The Stanislaws submitted the license-renewal form to Michigan anyway. The state ordered the Stanislaws to fix their incomplete application by January 31, 2006. On January 24, 2006, the Stanislaws met with Angus, the Township Supervisor (Luther Hatchett) and the Police Chief (Thomas Kulcher). Lorraine Stanislaw testified that the Township said that they would revisit their application if the fence was restored and the cars were moved out of view. So Angus wrote a letter to the state asking for an extension to allow the Stanislaws more time to comply with the zoning ordinances. Joseph Stanislaw made the repairs to the fence. Hatchett sent Chief Kulcher to inspect the property.  Kulcher refused to sign the form because he found that vehicles were still sitting out front on the property.

In February 2006, the Planning Commission passed a motion, requiring the Stanislaws to construct a 6-foot-tall fence on the property.  The Stanislaws wanted to appeal this motion to the Zoning Board of Appeals, but Chief Kulcher supposedly told them that they could not. Kulcher denied saying this, testifying that he did not know anything about zoning appeals procedures. The Stanislaws instead filed this action in federal district court; however, the district court determined that it lacked subject-matter jurisdiction to consider the Stanislaws’ claim that the Thetford Township’s decision constituted a taking. This is because the Stanislaws did not give the state court the opportunity to adjudicate the issue of whether or not the State failed to provide just compensation.

The Stanislaws never appealed in state court Angus’ denial or the ZBA’s acceptance of Angus’ denial and order to construct a fence. The Stanislaws partly claim that they failed to the December 2005 ZBA vote because Chief Kulcher had told them that they could not. According to the federal district court, the Stanislaws provided no legal support that this would have excused them from their failure to appeal the ZBA’s decision. “Chief Kulcher is not familiar with appellate zoning procedures; however, the Stanislaws are quite familiar having dealt with the local zoning regulations on their property over the past two decades.”

The 6th Circuit Court agreed with the district court that the Stanislaws’ failed to exhaust their state administrative remedies.   “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” The Stanislaws argued that their claim was to be left alone to continue to do what they have been doing to earn a living for decades – not a taking of real estate, but rather their business interests.  The court held that the Stanislaws’ claim encompassed “some sort of ill-defined Fifth Amendment takings claim.” The Court disagreed with the assertion that the Stanislaws did not raise a takings claim; and agreed with the district court that the  claim was not ripe for federal review.

The Stanislaws’ other claims, according to the Court, were “somewhat jumbled and poorly explained” and “abstractly involved” procedural due process, substantive due process, and equal protection. They did not cite any case law that suggested a hearing would have been required for a decision to sign or not sign the license-approval form. Rather, the Stanislaws “had numerous hearings and opportunities over the course of two decades to remedy their non-conforming use of the property.” If a decision had been made without appropriate process, the correct recourse still would have been first to the state courts, not the federal courts. As for the equal protection claim,  The Stanislaws “failed to identify any similarly situated businesses who were actually treated differently,”  Thus the 6th Circuit Court affirmed the district court’s judgment.

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SCOTUSblog recaps this week’s Supreme Court arguments

Gary Taylor

SCOTUSblog provided good previews of this week’s oral arguments, discussed in this blog on Tuesday, and a post-argument recap of the St. Johns Water Management takings case.

Koontz v. St. Johns Water Management preview
Koontz v. St. Johns Water Management recap of arguments

City of Arlington v. FCC preview

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This week at the U.S. Supreme Court

Gary Taylor 1 Comment

This is an important week for land use at the U.S. Supreme Court.  On Wednesday the Court will hear arguments in the case of City of Arlington, TX v. Federal Communications Commission, a Federal Telecommunications Act case that was discussed previously in this blog. For the Oyez Project summary of the case go here.

Another case with potentially much broader implications is being argued today.  That case is Koontz v. St. Johns River Water Management Authority.  The Oyez Project summary is here.  An article from the Orlando Sentinel can be found here.  As a University of Florida law professor aptly stated in the Orlando Sentinel article, the case “doesn’t really reduce itself very well for a newspaper article.”  The essential facts:  The landowner sought permits to prepare his land for development by filling in wetlands. He was told by the St. Johns River Water Management District that he could build on about 3 acres of the parcel if he left the rest of the property alone and paid around $10,000 to restore some wetlands in a state-owned wildlife preserve nearby.  He rejected the second part of that offer and sued St. Johns when it denied his requests for a development permit, arguing that the it had stripped his land of much of its value as a result of the denial. He won in state court and won again when the district took the case to an appeals court. Then, last year, the Florida Supreme Court sided with the water district. (For the lawyers, and non-lawyer land use law fanatics among you, the Florida Supreme Court case can be accessed here).

The U.S. Supreme Court certified the following legal questions:

1. Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan u. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and
2. Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

Potentially at stake is the practice of requesting developers to pay for off-site improvements as a condition of development approval.  Also raised is the question of whether decisions made during the pre-permit negotiation phase can give rise to takings claims.

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US Supreme Court says no bright-line exception to the Takings Clause for temporary flooding caused by Corps action

Gary Taylor

by Gary Taylor

Arkansas Game and Fish Commission v. United States
(U.S. Supreme Court, December 4, 2012)

The Arkansas Game and Fish Commission owns a wildlife management area along the Black River that that is forested with multiple hardwood oak species and serves as a venue for recreation and hunting. In 1948, the U. S. Army Corps of Engineers constructed the Clearwater Dam upstream from the management area and adopted the Water Control Manual, which sets seasonally varying rates for the release of water from the dam. Periodically from 1993 until 2000, the Corps, at the request of farmers, authorized deviations from the Manual that extended flooding into the management area’s peak timber growing season. The Commission objected to the deviations on the ground that they adversely impacted the management area, and opposed the Corps’ proposal to make the temporary deviations part of the manual’s permanent water-release plan. After evaluating the effect of the deviations, the Corps abandoned the proposed Manual revision and ceased its temporary deviations.

The Commission sued the United States, alleging that the temporary deviations constituted a taking of property that entitled the Commission to compensation. The Commission maintained that the deviations caused sustained flooding during tree-growing season, and that the cumulative impact of the flooding caused the destruction of timber in the Area and a substantial change in the character of the terrain, necessitating costly reclamation measures. The Court of Federal Claims’ entered a $5.8 million judgment in favor of the Commission; however, this judgment was reversed by the Court of Appeals. The Court of Appeals acknowledged that temporary government action may give rise to a takings claim if permanent action of the same character would constitute a taking. It held, however, that government-induced flooding can give rise to a taking claim only if the flooding is “permanent or inevitably recurring.”

The U.S. Supreme Court disagreed.  Citing back to Penn Central the Court noted that takings claims most frequently turn on situation-specific factual inquiries, as opposed to bright-line legal tests. The Court cited its own cases that affirmed that government-induced flooding, and seasonally recurring flooding, can constitute takings. The Court has also ruled that takings temporary in duration can be compensable. None of the Court’s previous decisions authorizes a blanket temporary-flooding exception to the Court’s Takings Clause jurisprudence.  The Court interpreted The Corp’s primary argument as being that reversing the Court of Appeal’s decision risks disrupting public works dedicated to flood control. While the public interests in this case are important, the Court did not consider them to be categorically different from the interests at stake in the many other Takings Clause cases in which the Court has rejected similar arguments.  The Court declined to address the Corps alternative argument that damage to property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore is not compensable under the Takings Clause because it was first tendered at oral argument and not aired in the courts below.

Because the Federal Circuit rested its decision entirely on the temporary duration of the flooding it did not address other factors relevant to the takings inquiry, such as the degree to which the invasion is intended or is the foreseeable result of authorized government action. the character of the land at issue, the owner’s “reasonable investment-backed expectations” regarding the land’s use, and the severity of the interference. Thus, remand to address these issues was warranted.

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Overflights from airport should not be examined using regulatory takings standards

by Kaitlin Heinen

Robert E. Brenner v. City of New Richmond
(Wisconsin Supreme Court, July 17, 2012)

The New Richmond Regional Airport is owned and operated by the City of New Richmond. In September 2006, the Airport began a construction project to extend its main runway by 1500 feet, which was completed in June 2007.  To make the runway extension possible, the City had acquired, by direct condemnation, 62 acres of land from the Wickenhausers, whose land bordered the north end of the Airport. Also acquired by the City was a 3.813-acre avigation easement over parts of the remaining 80 acres of the Wickenhausers’ property. (An avigation easement is an “easement permitting unimpeded aircraft flight over the servient estate.”) This 3.813-acre avigation easement covered the airspace above the Wickenhausers’ personal residence and dairy barn.  The Wickenhausers asked the City to condemn the entire 142.5 acres of their property—which the city declined to do. In addition, Robert E. Brenner’s house is 816 feet from the extended runway, and Allan and Susan Seidlings’ home is 1503 feet from the extended runway. Like the Wickenhausers, Brenner and the Seidlings asked the City to condemn their land after learning of the extension—their requests were also declined. As result of their denied condemnation requests, all three parties alleged inverse condemnation under Wis. Stat. §32.10.

Collectively, the landowners’ testimonies complained of noise, dust, dirt, flashing lights, disruptions of sleep, diminished enjoyment of the property, safety concerns, direct over-flights, and decreases in property value. Brenner, the Seidlings, and the Wickenhausers argued that the Airport’s runway extension amounted to a compensable taking of an easement, since they have suffered adverse effects as a result of increased aircraft over-flights. In opposition, the City testified that the Airport had installed a blast pad to control dust and erosion. Additionally, the circuit court found that the medical helicopter and a jet that formerly used the Airport are no longer hangared there. However, the circuit court also found conflicting information that aircraft usage had increased by two-thirds since the runway’s extension. Brenner, who is a licensed pilot himself, testified that some pilots did not follow standard traffic patterns and submitted video evidence of this. The City objected, claiming that they cannot be held responsible for what pilots do illegally. (However, the Wisconsin Supreme Court reasoned that because the Airport is owned by the City, the City is liable for aircraft using the Airport–the City is in a far superior position to enforce FAA flight standards as opposed to neighboring landowners.)

The circuit court relied on the real estate appraiser’s determination that the extended runway reduced the Wickenhausers’ property value, at most, by 20%. Then citing the United States Supreme Court’s decision in United States v. Causby, the circuit court ruled that for a taking to have happened, the property owner must have been deprived of all or practically all beneficial use of the property.  The Wisconsin Court of Appeals reversed, holding that this case is a physical occupation case, and the standard used by the circuit court involves regulatory takings, which does not apply. The case was remanded back to the circuit court, and the Wisconsin Supreme Court accepted the Airport’s petition for review.

The Wisconsin Supreme Court addressed the two conflicting standards at issue here: “(1) whether the over-flights are low enough and frequent enough to have a direct and immediate effect on the use and enjoyment of the property, or (2) whether the over-flights deprive the property owner of all of substantially all beneficial use of property?”

The United States Supreme Court’s previous decisions in Causby and Griggs are the controlling law with respect to takings of private property by aircraft over-flights. Causby involved frequent, regular aircraft over-flights over a personal residence. The aircraft in this case flew so low (even though the altitudes were approved at that time in 1923) that they barely missed the tops of the trees and killed the landowner’s 150 chickens who fatally flew into the walls of their enclosures from fright. The Supreme Court recognized that Congress placed navigable airspace into the public domain; however, The Court also acknowledged that property owners must be allowed to have control of the immediate reaches of enveloping atmosphere above their property, which includes the super-adjacent airspace below the altitude that is set as navigable. The Court thus established a test to determine whether or not a taking had occurred: over-flights by government aircraft do not constitute a taking unless they are so low and so frequent as to be a direct interference in the enjoyment and use of the property. This is the standard that should be applied wherever Causby is cited as the controlling law in a case. The Wisconsin Supreme Court concluded that the Causby standard is the appropriate standard that must be applied in this case. The determination of whether or not the aircraft over-flights have been low enough and frequent enough to have a direct effect on the use and enjoyment of the land should govern fact-findings and rulings of the circuit court. If this standard is satisfied, the government has taken an easement without paying just compensation. The Wisconsin Supreme Court declared that the circuit court had erred in applying a regulatory taking standard, and that the case must be remanded to them to apply this correct Causby standard.

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Conditional use permit requirement did not constitute a taking

Gary Taylor

by Victoria Heldt

Peter J. Butzen, D/B/A Falls Metals, Inc. v. City of Sheboygan Falls
(Wisconsin Court of Appeals, February 29, 2012)

Peter J. Butzen owns a piece of property within the City of Sheboygan Falls that is zoned C2 commercial.  He operated a scrap metal recycling business on the land during the 1990s which grew in size to the point that it appeared to be a junkyard.  In January 2000 the City decided the use of the land exceeded the scope of what was permitted in the C2 district.  It advised Butzen to clean up and make some modifications and apply for a conditional use permit, which Butzen did in February.  In April 2000 (before it considered Butzen’s application) the City amended the ordinance under which Butzen applied with Ordinance 11.  This ordinance eliminated all permitted uses in C2 zoning districts unless the owner received a conditional use permit.  The City advised Butzen that if he performed the specified cleanup actions, the committee would recommend his permit application be granted.  Butzen was given several deadlines through 2001 to complete the cleanup, but never completed the actions.

In November 2007 Butzen filed for a conditional use permit but was denied since the application was incomplete.  In July 2008 the Supreme Court decided Town of Rhine v. Bizzell in which it concluded that a zoning provision such as Sheboygan Falls’ Ordinance No. 11 is unconstitutional on its face if it precludes any use as of right in a zoning district and if the limitation bears no substantial relation to the public health, safety, morals or general welfare.  In response, the Sheboygan Falls passed a moratorium on development in its C1, C2, and C3 zoning districts to prevent any further development until it decided how to move forward after the Town of Rhine ruling.

Butzen continued to use his property and filed a complaint seeking a judicial determination regarding the constitutionality of Ordinance 11 and questioning the validity of the City’s moratorium.  The circuit court, following the lead of the Supreme Court in the Town of Rhine case, declared Ordinance 11 to be unconstitutional.  It did, however, uphold the validity of the moratorium.  Butzen filed an inverse condemnation complaint asserting that the City’s actions amounted to a taking of his property.  He also raised a substantive due process claim under 42 U.S.C. §1983 that the City’s efforts to enforce the ordinance violations were arbitrary and capricious.  The circuit court found that he did not sufficiently establish either of the claims and that they were barred by a statute of limitations.  This appeal followed.

On appeal, Butzen focused only on the “takings” claim.  He asserted that “because of the Town of Rhine ruling, Ordinance No. 11 unconstitutionally eliminated all use of his C2-zoned property without a conditional use permit, resulting in a regulatory taking.”  According to statute, a regulatory taking occurs when a regulation denies a landowner all or substantially all practical uses of his or her property.  The Court noted that Butzen overlooked two key findings within the circuit court’s rulings.  First, the denial of Butzen’s permit was based on the ordinance in effect prior to Ordinance 11, so the determination of Ordinance 11 as unconstitutional was not relevant to his claimed injury.  Second, the fact that Butzen needed a conditional use permit to run the scrap metal shop did not deprive him of “substantially all” beneficial uses of the property since he could still conduct other business there.  The Court concluded Butzen did not sufficiently show that a regulatory taking occurred and affirmed the circuit court’s decision.

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Statute of limitation runs on claims resulting from stormwater discharge

Gary Taylor

by Victoria Heldt

Charles Tsamardinos and Suzanne Tsamardinos v. Town of Burlington
(Wisconsin Court of Appeals, December 7, 2011)

Charles and Suzanne Tsamardinos own a residential property in Burlington.  They brought a claim for inverse condemnation against the Town of Burlington, arguing that the increased presence of draining water on their property after the development of Villa Heights Subdivision constitutes “physical occupation” by the Town, and results in a taking.  Storm water from Cedar Drive and from Villa Heights Subdivision flows through a culvert, across their property, and into Brown Lake, and that by this action the Town “has incorporated part of their property into its storm water management system.”  They provided two expert witnesses, the first being Hey and Associates, Inc.  The company reported that the problem was indeed due to water flowing through the culvert under Cedar Drive and that the Town was responsible for the drainage system.  Jendusa Design, the second expert witness, similarly described the source of the problem and reported that the flooding had been occurring over the past eight years. The district court denied the claim, finding that a legal taking did not occur, and further finding that the claim was barred by the statute of limitations.

On appeal, the Court of Appeals ruled against the Tsamardinos on the grounds that the statutes of limitations had expired regarding the issue. First,  Wis Stat. §88.87(2)(c) states that a property owner has three years to file a complaint if a government agency has damaged property due to negligent construction a highway or railroad grade (this would include the culvert).  Since the culvert was constructed 24 years prior, and flooding problems had been occurring for at least 8 years according to the expert witnesses, the Tsamardinos filed the complaint too late.  In response to the alternative claim that the water run-off is due to the development of the Villa Heights subdivision, the Court found that claim to be barred as well.  The governing statue requires a complaint to be filed within ten years of completion of the improvement on the property.  Since Villa Heights was recorded in 1948 and graded in the mid-1960’s, the ten year period had expired.  The Tsamardonoses argued that they should be permitted to file a complaint outside the ten year required period since the time limit does not apply to those affected by negligence in maintenance.  The Court concluded that their problem was not the result of negligent maintenance, but of the development of the subdivision, they were subject to the ten year limit.

The Court affirmed the lower court’s decision in favor of the Town of Burlington.

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