Daily Development for
Thursday October 24, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

CONSTITUTIONAL LAW; TAKINGS; REGULATORY TAKINGS; ACCESS: Restriction of right to access to property for commercial purposes can constitute a taking by the governmental body in question even though access for residential purposes remains.

Garrett v. City of Topeka, 916 P.2d 21 (Kan. 1996).

Landowner brought an inverse condemnation action claiming that a resolution passed by the city placed limits on the right of commercial access from the landowner's property to the street and therefore constituted a taking of the property. The landowner argued that the city resolution had denied her all or substantially all economically viable use of the subject property, as the highest and best use on the property was commercial. The city, while admitting that the value of the property had decreased as a result of the resolution, argued that no taking had occurred since the resolution only restricted commercial access to the property and that the right of residential access had not been restricted.

The Kansas Supreme Court noted that an owner of property abutting a street has a private right to use the land and to access the street which cannot be taken or interfered with without just compensation, but that these rights are subject to reasonable restrictions in order to provide safe passage for the public.

The court decided in this case that the facts indicated an economic regulatory taking had taken place. The test for such a taking is whether the economic impact on the landowner outweighs the public purpose of the regulation or restriction. A balancing test is used to see if the regulation is unfair or is overreaching. All access to an existing street from the property may not be taken away from the landowner. The landowner, however, is only entitled to reasonable access to the street, and not unlimited access. The government's exercise of the police power in restricting access must be reasonable. But in this case the impact of the regulation was substantial enough to constitute a taking.

EMINENT DOMAIN; DAMAGES; VALUE: Although fair market value may generate an adequate measure of damages in most condemnation cases, it does not replace the requirement of just compensation.

City of Phoenix v. Mangum, 912 P.2d 35 (Ariz. App. 1996).

Despite several assurances from City to plaintiffs that plaintiffs' home would not be affected by anticipated highway construction, pursuant to which assurances plaintiffs engaged in a substantial upgrade of their homes and incurred substantial improvement costs, City ultimately took plaintiff's home by eminent domain. In this appeal, City argued that plaintiffs were not entitled to receive any more than fair market value for their house, which fair market value assigned a very limited value to improvements undertaken on the basis of City's assurances. The Arizona Court of Appeals held that just compensation requires the payment of the full monetary equivalent of damages caused by the governmental taking, and that while fair market value may often be the best measure of damages, it is not dispositive as to the issue of measurement of damages.

Comment: Every eminent domain specialist wants the language of this case for his or her "bag of tricks." It's not likely to be effective very often, but certainly states a far more owner-favorable rule than is the norm.

ZONING AND PLANNING; PROCEDURE; TAKINGS CLAIMS; STATUTE OF LIMITATIONS: Statute of limitations on temporary taking claim starts to run at moment impact of invalid regulation affects landowner's property, even though the regulation is not declared invalid until some time later.

McCuskey v. Canyon County Commissioners, 912 P.2d 100 (Idaho 1996)

In this case, the County prohibited plaintiffs from constructing a convenience store based on a zoning law that was later invalidated. The Idaho Supreme Court held plaintiff's action was for a temporary taking, as the permanent taking was not applicable when the regulation was later invalidated.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233 or LaPricaMims@staff.abanet.org

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