Washington Supreme Court limits inverse condemnation defenses

September 30, 2010 | By PACIFIC LEGAL FOUNDATION

Author: Brian T. Hodges 

Earlier this month, Washington’s Supreme Court issued its long-awaited inverse condemnation decision in Fitzpatrick v. Okanogan County.  The case arose from a joint state/local project to protect a state highway from flood damage by diking the Methow River.  The diking project, however, blocked the river’s natural overflow channels and, over time, caused the river to redirect during a storm and flood the Fitzpatricks’ home. 

The Fitzpatricks sued for compensation under the Takings Clause of the Washington State Constitution.   Legally speaking, their claim seemed run of the mill.  For nearly a century, our Supreme Court has regularly recognized that government is liable for inverse condemnation where the natural consequences of a public project result in damage to private property.  But the state and county took this case as an opportunity to try to put new limits on the Constitution’s protections.

The Court rejected the governments’ arguments, deciding three important legal issues: (1) statutes providing government with immunity from tort liability do not apply where a property owner seeks damages under the Takings Clause; (2) the common enemy doctrine (which holds that a landowner may divert water from his or her property without becoming liable for damages to neighboring property) provides no defense where the government’s actions altered the course of a waterway; and (3) a confiscatory intent is not an element of an inverse condemnation claim –  a party need only show that the damage was necessarily incident to the government action.

The Court’s discussion of “confiscatory intent” is significant. Over the years, our Supreme Court has noted that what constitutes a tort and what constitutes a taking “is not always clear,” and developed a rather murky test.  In the 1960s, the Court held that an inverse condemnation claim was actually a tort (and therefore subject to a shorter statute of limitations and statutory immunity) because the damage to private property “was neither contemplated by the plan of the work, nor was it necessarily incident” to the project.  Through the ensuing decades, the “contemplated by” language was largely ignored . 

In Fitzpatrick, the government tried to resuscitate the “contemplated by” language, arguing that the landowners were required to prove that, at the time that the government constructed the dikes, the government could have justifiably condemned the Fitzpatricks’ property as part of the project.  PLF filed an amicus brief explaining how the issue of government intent has been treated by state and federal courts, refuting the government’s argument.

The Court agreed with PLF, stating that intent is not an element of inverse condemnation and excising the “contemplated by” language from the tort/takings test.  According to the Court, an inverse condemnation plaintiff must only demonstrate that the property damage was  a consequence of the public act to distinguish his or her claim from a tort.

Our friends at Schwabe, Williamson & Wyatt commented on this case here.

Learn more about this case at PLF’s website.