A "Taking" Without Damages? Recent Washington Case Demonstrates Challenges in Bringing Inverse Condemnation Claim

A recent Washington case shows that establishing a “taking” is just the beginning of an inverse condemnation claim. Like many jurisdictions, Washington allows landowners to bring an inverse condemnation claim—similar to a 5th Amendment eminent domain claim that the government can bring—when they can show that a governmental entity harmed their property interests. However, there are several hurdles to making a recovery in these cases.

The case, Keene Valley Ventures, Inc. v. City of Richland, arose after landowner KVV experienced significant water flowing onto an undeveloped 20 acre plot of land located in a valley near Richland, Washington. Earlier, as part of a road project, the City of Richland installed culverts to divert water into a series of ditches adjacent to the KVV property. Although the City had planned additional water flow measures such as installing pipes and building a retention pond, this work was never funded. As the area above and around the KVV property was developed, the ditches overflowed and additional water began to migrate onto the KVV land.

 

KVV brought suit against the City, alleging that the water flowing onto its land was a trespass, nuisance, and rose to the level of a taking (inverse condemnation claim). The trial court agreed with KVV, but ruled that he could only establish the problem was “temporary,” since the City could divert the water flow in the future. It awarded KVV nominal damages of $1. KVV appealed, and the Washington Court of Appeals issued its decision in March 2013. The Court agreed that while KVV may have established its inverse condemnation claim, that it had not adequately proved its damages. KVV had submitted estimates for the amount of fill dirt that would be required to remedy the water problem, but the Court held that this evidence was insufficient. It concluded, “we hold that the plaintiff in an inverse condemnation action bears the burden of proof in establishing the diminution of value of its property.”  Since KVV had not shown how the value of its land was harmed, the Court affirmed that it could only recover the $1 awarded at trial.

 

This case offers a reminder that while inverse condemnation is alive and well in Washington, there are several challenges to pursuing the government in a “taking” claim. 

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