What Are Causes of Action For Inverse Condemnation and Nuisance?

In the recent second appellate district decision in Today's IV, Inc. v. Los Angeles County Metropolita Transportatioin Authority, Appellant Today’s IV filed a civil complaint against respondents Los Angeles County Metropolitan Transportation Authority and Regional Connector Constructors for their “unreasonable” construction of an underground subway line in downtown Los Angeles, which affected the Westin Bonaventure Hotel and Suites (the Bonaventure), owned by Today’s IV.

A portion of the construction runs under Flower Street, between 4th and 5th Streets, where the Bonaventure is located.

Today’s IV alleged claims for nuisance and inverse condemnation due to

 1) respondents’ use of the cut-and-cover construction method instead of the tunnel boring machine method;

2) construction work during nights and weekends, which was particularly harmful to the Bonaventure’s operation as a hotel;

3) violation of certain noise limits; and

4) interference with access to the Bonaventure.

Today’s IV alleged lost contracts, including a $3.3 million airline contract, and loss of business. It requested compensatory and punitive damages from respondents.

The trial court found no liability and entered judgment in favor of respondents.

Today’s IV appealed the judgment, and the appellate court affirmed the judgment.

Today’s IV filed the operative fourth amended complaint (4AC) alleging the following causes of action:

1) declaratory relief against Metro and RCC for CEQA violations;

2) equal protection violations against Metro;

3) nuisance against Metro and RCC;

4) trespass against RCC; and

5) inverse condemnation against Metro.

An inverse condemnation cause of action derives from article I, section 19 of the California Constitution, which provides private property may not be “taken or damaged for a public use” without just compensation. (Cal. Const., art. I, § 19, subd. (a).)

In an inverse condemnation action, the property owner must first clear the hurdle of establishing that the public entity has, in fact, taken or damaged his or her property before he or she can reach the issue of “just compensation".

Property is "taken or damaged" within the meaning of article I, section 19 of the California Constitution, so as to give rise to a claim for inverse condemnation, when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself.

The property owner has the burden of establishing that the public entity has, in fact, taken or damaged his or her property.

When the conduct of a public entity results in an intangible intrusion onto the plaintiff's property that does not physically damage the property, the question whether there has been a "taking or damaging" of the property sufficient to support a cause of action for inverse condemnation is more difficult.

In these circumstances the plaintiff must allege that the intrusion has resulted in a burden on the property that is direct, substantial, and peculiar to the property itself.

Intangible intrusions have been recognized as sufficient to constitute a taking or damaging of property in limited circumstances, such as the intrusion into the plaintiffs’ home of nauseous gases and/or strong, offensive odors emanating from an adjacent, upwind sewage treatment facility rendering the plaintiffs’ home uninhabitable and causing the plaintiffs nausea and burning eyes.

Noise, dust, and debris from a freeway expansion that included a 23-foot embankment directly in front of the plaintiff’s home, causing physical damage and respiratory problems, was also considered a taking.

Noise from commercial jet aircraft landing and taking off that substantially interfered with the use and enjoyment of neighboring residential property may constitute a taking.

To prevail on an inverse condemnation claim, there must be an invasion or an appropriation of some valuable property right which the landowner possesses and the invasion or appropriation must directly and specially affect the landowner to his injury.

The landowner’s property must be singled out for singular and unique treatment in contrast to other landowners who could be affected by the proposed public work.

Traffic detours and delays cannot be characterized as burdens that are direct and substantial such that it is not far removed from a direct physical intrusion.

The 4AC does not sufficiently plead the intrusion suffered by the Bonaventure was “unique, special or peculiar” in comparison with other stakeholders in the area.

Noise and dirt can support an inverse condemnation claim so long as it was unreasonable or unusual, given the size and scope of the construction project.

Here, the 4AC has not alleged the levels of noise and dirt were unreasonable given the “size and scope” of the Project. Noise and dust are expected byproducts of a massive public transit project that involves construction and tunneling. Such loss of peace and quiet is a fact of urban life which must be endured by all who live in the vicinity of freeways, highways, and city streets.

The 4AC attempted to state a cause of action for private nuisance, i.e., a nontrespassory interference with the private use and enjoyment of land. (See Civ. Code, §§ 3479–3481.)

The Supreme Court set out the elements of an action for private nuisance. First, the plaintiff must prove an interference with his use and enjoyment of its property.

Second, the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage.

Third, the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.

Substantial damage and unreasonableness are to be judged by an objective standard.

With respect to the substantial damage element, the degree of harm is to be measured by the effect the invasion would have on persons of normal health and sensibilities living in the same community.

If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncrasies of the particular plaintiff may make it unendurable to him.

With respect to the unreasonableness element, the primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendant’s conduct, taking a number of factors into account.

Again the standard is objective: the question is not whether the particular plaintiff found the invasion unreasonable, but whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.

The statute necessarily authorizes the accompanying noise and impaired access that major public construction projects typically create. “Although the relevant statutes do not expressly authorize the City to operate its streets in a manner which generates traffic, noise, fumes, litter, and headlight glare, . . . such loss of peace and quiet is a fact of urban life which must be endured by all who live in the vicinity of freeways, highways, and city streets.” (

LESSONS:

1.         An inverse condemnation cause of action derives from article I, section 19 of the California Constitution, which provides private property may not be “taken or damaged for a public use” without just compensation.

2.         Property is "taken or damaged" within the meaning of article I, section 19 of the California Constitution, so as to give rise to a claim for inverse condemnation, when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself.

3.         Intangible intrusions have been recognized as sufficient to constitute a taking or damaging of property in limited circumstances, such as the intrusion into the plaintiffs’ home of nauseous gases and/or strong, offensive odors emanating from an adjacent, upwind sewage treatment facility rendering the plaintiffs’ home uninhabitable and causing the plaintiffs nausea and burning eyes.

4.         The elements of an action for private nuisance are (1) the plaintiff must prove an interference with his use and enjoyment of its property, (2) the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage, and the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.