INVERSE CONDEMNATION

The obvious government acquisition is the State, through its agents, knocking on your door and issuing you a notice of condemnation with a corresponding offer of just compensation. The more insidious acquisition is the State, through its agents, rendering your property worthless or significantly damaged without so much as a letter. When an authority’s decision, such as a zoning change or implementation of a floodplain, does not physically alter your property but significantly affects your property’s value, there is recourse available. In these instances, an Illinois landowner may bring an inverse condemnation suit to hold the government accountable for the limitations they have created on your property.

EXAMPLES OF INVERSE CONDEMNATION?

Inverse condemnation can be a direct, physical taking or it can be a significant interference with real or personal property. Landowners have successfully brought inverse condemnation actions for the following:

• Flooding on property resulting from government construction.
• Sewage on property resulting from government construction.
• Land stability has been decreased because of government construction.
• A significant impairment of access to property or noise from overflying aircraft from government decision making.

ZONING AND THE TAKING OF LANDOWNER PROPERTY

One overlooked consequence of government action is the effect zoning ordinances have on property owners. In some situations, a zoning ordinance change may create a situation where the government has effectively “taken” the property by eminent domain.

A landowner can seek compensation in an eminent domain context where a zoning ordinance or other state action creates a substantial interference with private property and destroys or impairs a person or entity’s right to freely use and enjoy the property, along with the rights and interest in the property. An eminent domain appropriation that causes a property to be in violation of applicable zoning ordinances is compensable.

If an eminent domain taking places a property owner’s building in violation of applicable zoning ordinances, a taking may have occurred and the property owner may deserve compensation. For example, if the State condemned a strip of land in order to widen a highway, and the widening of the highway caused a building on a property owner’s land to be situated closer to the highway than allowed by zoning ordinances, the owner should be compensated because the landowner is not permitted to commence any new construction. Therefore, the property owner is no longer able to enjoy his or her right to freely use and enjoy the property.

In summary, when an eminent domain taking causes a property or buildings on a property to be in violation of applicable zoning ordinances, the fair market value of the entire building or property is included in the damage computation in the Court’s determination of compensation for the take.