Governments are traditionally allowed to take certain actions that limit the use of your property. Typically, when the government intends to take your property for a public purpose, they institute a condemnation action using the power of eminent domain. The much more sinister “acquisition” is the governmental action that fails to result in a physical taking, but nonetheless indirectly and significantly impacts the landowner’s property. In these cases, an Ohio landowner may bring an action in inverse condemnation to hold the government responsible for the limitations it has placed on your property.

EXAMPLES OF INVERSE CONDEMNATION?

Inverse condemnation is traditionally an indirect interference with real or personal property by a public entity. For example, inverse condemnation actions have been successfully brought in the following situations:

  • Where government construction caused flooding on a property.
  • Where government construction caused sewage to escape onto a property.
  • Where government construction caused an interference with land stability.
  • Where government construction caused a significant impairment of access, or noise from overflying aircraft.

ZONING AND THE TAKING OF LANDOWNER PROPERTY

An often-ignored effect of government action is how zoning ordinances impact a person’s property. In certain instances, a change in a zoning ordinance may create a situation where the government has effectively “taken” the property without using the traditional condemnation process.

A landowner can seek compensation in an eminent domain context where a zoning ordinance substantially interferes with the use of private property. In cases where the landowner alleges that the ordinance so interferes with the use of the property that it, in effect, constitutes a taking of the property, the landowner may prevail by proving that the ordinance has denied the landowner the economically viable use of his or her land. Goldberg Companies, Inc. v. Council of City of Richmond Heights, 81 Ohio St.3d 207 (Ohio 1998). If the landowner is able to prove the standard above, then he or she will be entitled to damages for the taking.

A good example of this type of taking can be seen in the context of setbacks. Setbacks are zoning requirements that state how far away from a road a building must be. If a condemning authority takes part of a person’s property and it causes the building to violate the mandated setback standards, then there has been a compensable taking. The property value has been significantly diminished because the owner of the property no longer has the ability to make any additions or structural alterations to the building due to its nonconforming nature.

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.