Written by Bob Hunt on Monday, 03 November 2014 12:29 pm
In late November of 2011, extremely strong winds battered much of Southern California. In the city of Pasadena more than 5,500 city-owned trees were damaged. Over 2,200 were uprooted or destroyed. One of those trees fell on the house of Mr. James O’Halloran. It did considerable damage.
Mercury Casualty Insurance, Mr. O’Halloran’s insurer, paid $293,000 in benefits. Mercury then sued the city of Pasadena. But they didn’t just sue the city over a dangerous condition of public property; rather Mercury brought an action for inverse condemnation (and nuisance as well).
Inverse condemnation grows out of eminent domain law. Most of us have heard of eminent domain condemnation proceedings, where a government entity sues to take — with adjudicated compensation — private property for some public purpose. An inverse condemnation proceeding has the roles reversed. A private property owner sues the government for taking property — or depriving an owner of its use and value — through some government action and without just compensation.
In some states such a proceeding can be brought for damaging property, even though it isn’t taken.
Article I, section 19 of the California Constitution provides that “private property may be taken or damaged for a public use and only when just compensation… has first been paid to…. the owner.” An earlier court decision (Customer Co. v. City of Sacramento) elaborated on this: “The California Constitution of 1879 added the phrase ‘or damaged’ to the just compensation provision…to clarify that application of the just compensation provision is not limited to physical invasions of property taken for ‘public use’ in eminent domain, but also encompasses special and direct damage to adjacent property resulting from the construction of public improvements.”
At the trial level, the city sought summary adjudication — essentially dismissal — of this charge on the grounds that “the subject tree was not a work of public improvement such that the City may be held liable for inverse condemnation…” The trial court ruled against the city, and the city appealed. (City of Pasadena v. Superior Court of the State of California, County of Los Angeles, August 14, 2014)
As to this cause of action, (the nuisance issue was in play as well) the Appellate Court said, “The sole issue here is whether the City’s public tree, as part of the City’s forestry program, constitutes a public improvement such that it could provide the basis for an inverse condemnation claim. ‘The construction of a public improvement is a deliberate action of the state or its agency in furtherance of public purposes.'”
A declaration by the city’s arborist said “…that he managed the maintenance of 60,000 street trees including the subject tree, that the City catalogued these trees in a database, that he ‘headed an urban tree maintenance program,’ and that ‘the City strives to enhance the quality of life through the promotion, protection, and balanced management of…trees.'”
Thus, the Appellate Court concluded: “Since there was evidence demonstrating that the City’s forestry program, of which the subject tree is a part, is the result of (1) a deliberate governmental action (2) serving a public purpose, summary adjudication of the inverse condemnation cause of action was properly denied.”
The case should be headed back to trial, but wait!, there’s more.
The City of Pasadena has now appealed this case to the California Supreme Court. We don’t know yet if that Court will take it up. Stay tuned.
Bob Hunt is a director of the California Association of Realtors®. He is the author of Real Estate the Ethical Way.