Physical Takings

Rarely will a condemning authority fail to declare a taking and institute proper eminent domain procedures when taking physical property such as a portion of a property owner's front yard, or the parking lot of a business. However, occasionally a condemning authority will take away property rights, such as restricting or removing access without declaring a taking. The taking of property rights such as access is treated as a physical taking in eminent domain law and therefore requires the payment of just compensation. In this situation, a property owner has the right to file an inverse condemnation claim to initiate the eminent domain process.

As an example, we recently litigated a case involving a commercial property owner who had direct driveway access onto a major road that was sufficient for the company's commercial operation. It also had a small easement that provided narrow access onto a side road. When a condemning authority decided to convert this road into a restricted access highway, it was agreed that the property owners would still have access to the newly designed highway.

Years later, the condemning authority began closing off driveways of property owners, effectively eliminating their access to the highway. The Department of Transportation did not declare a taking and initiate the eminent domain process with the property owner noted above because they still had access through the small easement that led to a side road.

The loss of access is a physical taking. In this particular situation, the property owner still had access, but was it reasonable access? The property owner argued that the remaining access was not nearly wide enough to accommodate the commercial use for which the property was zoned. An inverse condemnation action was initiated and a judge ruled in favor of the property owner by declaring a taking and therefore allowing the property owner to pursue a claim for just compensation.