Inverse Condemnation: Altering Existing Right of Way

Inverse Condemnation Defined

We all know what condemnation is; when the government shows up to “take” your land and use it for some public purpose, as a roadway. It’s pretty obvious when it happens, and it usually begins with a formal written notice from the government.

Well, there is another type of condemnation, known as “inverse condemnation.” This is easier to identify than define, kind of an “I know it when I see it” type of condemnation. George and Patricia Delany found out what it meant, to the whopping tune of $497,637.80 coming their way (courtesy of your state tax dollars).

When the government alters the use of an existing right of way (as in a roadway ceases to exist), and as a result, there is a “material and substantial impairment of access” to a tract of land, the owners of that tract have just felt the brunt of “inverse condemnation.” Nearly $500,000 for “taking” some value from some land? When not even one inch of land was actually physically taken? I had to read it to believe it myself.

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State of Texas v. Delany

George and Patricia Delany lived in Galveston County near I-45. Also nearby was Johnny Palmer Road. And there was this little connector road that connected the northbound frontage road of I-45 to Johnny Palmer Road.

The Delanys would apparently travel across their land, into the right-of-way easement area of the connector road (which, coincidentally, the State condemned years in the past), and then onto the pavement of the connector road itself. The Delanys’s property did not join the I-45 right of way or its frontage road.

As you may have guessed by now, the State decided to redesign the exit ramps within the existing right of way for the northbound frontage road. As part of this project, the little connector road was “removed” and in its place, the State planted grass and stored construction materials.

This left the Delanys with no access from their land to any road, street, or highway of any sort. “No problem,” said the State, “we’ll build you a driveway to one.” But the Delanys were less than impressed with that plan, a plan they considered unreasonable, ridiculous, and dangerous. This left the Delanys with really only one option, and that was to sue for “inverse condemnation.”

The first issue was whether there was an unconstitutional “taking” of property without just compensation. Texas law holds that direct physical invasion of property is not required. An access easement–even one that is created by law, as opposed to being a formal, written easement–may be “taken” the same as dirt. So ingress and egress rights may be taken.

Next, in access rights cases, courts look to see whether there has been a “material and substantial impairment of access.” If so, it’s a taking. Here, the entire right of access to the only roadway, that little connection road, was completely obliterated.

“Complete” is definitely “material and substantial impairment.” In fact, in this case, the Court concluded that the State abandoned the connection road’s right of way when it converted the road from an actual roadway to a construction service supply yard.

So now we have a Texas case that directly holds the State liable for damages to property when it materially and substantially impairs the access rights to that property by simply altering the use of an existing right of way. Them’s some pretty strong property rights.

And so we move on to the damages. Five Hundred K. How? Well, in this case, they measured damages to the property as being the difference between the fair market value of Delany’s property as determined before the “taking,” and after. Subtract “after” from “before” and there you have it.

But here’s where it gets a little tricky. Remember the State wanted to construct that driveway, which would have given the Delanys access to a roadway. They rejected it because they didn’t like the idea.

At trial, Delany’s expert said, basically, that no reasonable person would “accept tremendous liability in building a driveway anywhere from 240 to 590 feet in length to this roadway…No reasonable, prudent person would consider using this property with the liability inherent in such a fashion.” And the trial judge agreed.

This one issue, more than anything, is what stuck in the State’s throat. They just couldn’t get to this conclusion on their own. Without the driveway concept, we have here a piece of land with no access to any roadway.

That’s a pretty worthless piece of land. What would you pay for a piece of land you couldn’t get in to nor out of, assuming we’re not talking about hunting? Exactly, say the Delanys.

But wait. The land wasn’t worth $500,000. It seems that number includes an award of money to the Delanys as a sanction upon the State’s lawyers. The Delanys took the depositions of Frances Willison and Marty Kobs.

Kobs was a lawyer, but he wasn’t acting as counsel in this case. He was deposed because he was the program manager, assistant administrative director, and/or supervisor of the litigation support section.

In any event, all through his deposition the State’s lawyer objected and instructed Kobs not to answer various questions asked by the Delanys’ lawyer. This was a bozo move. The State’s lawyers wouldn’t even let Kobs testify about the existence or non-existence of a road in front of the Delany’s property! Bozo does a handstand.

But wait. It gets worse. In Frances’ deposition, which ran only some 76 pages, the State’s lawyer made 95 objections to the form of the question asked. That’s 1.25 objections per page average, which the Court obviously thought was quite a bit too much. “Frivolous” was the Court’s term.

And so our tax dollars went to pay a lawyer (who not only lost the case but also got the State a sanction) to defend the State against one of our own, necessitated by their need to connect with the world outside their plot of land. But at least we have a written opinion giving us yet another example of inverse condemnation.

How A Lawyer Can Help

If you think you’ve been bitten by the inverse condemnation bug, you should perhaps start with figuring out your damages. Work backward from there. What caused the damages? How much value has your property lost?

Talk to a real estate agent/broker. Just because you can’t “touch” the damage doesn’t mean it’s not there. Talk to your lawyer. It’s up to you to protect your property. In other words, don’t expect a letter from the State stating they are going to perform an “inverse condemnation” on your land.

State of Texas v. Delany, Case No. 14-03-00052-CV (Tex. App.-Houston [14th Dist.], decided March 16, 2004).

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