Excellent question, difficult answer. Let’s think this through.
What Is Inverse Condemnation In California?
Here’s a post I wrote about inverse condemnation.
California Constitution article I, section 19, says “[p]rivate property may be taken or damaged for a public use and only when just compensation…has first been paid to…the owner.”
Inverse condemnation is a constitutional right that lets property owners seek “just compensation” when the government damages your property.
You need to prove 1) that the California government damaged your property; and 2) that there was some element of “public use” behind what the government did or didn’t do. If you prove that, you can get “just compensation” from the government. Every part of that proof, however, is difficult.
What Is Flooding In The Context Of Inverse Condemnation?
Flooding is outside water coming into your home. It almost always travels on the ground and is understood as an overflow of water onto land that is normally dry.
Is a California government responsible in inverse condemnation when your home is damaged by flood? We need to think through “substantial participation.”
“Substantial participation” means a government planned, approved, constructed, operated, or otherwise was significantly involved in a public project or activity for “public use.” There’s no set definition, you just need government activity for a public project or use.
California governments are involved in flood control projects. Dams, reservoirs, levees, and channel modifications are all flood control projects.
The Unreasonableness Standard
Let’s say a California city manages a flood control project. And let’s say that project fails and damages your property. Is the city liable in inverse condemnation?
It depends on whether the city acted reasonably. This comes out of several important decisions in California: Belair, Locklin, Bunch I and Bunch II.
The reasonableness standard is known as the Belair rule. Whether or not a government acted reasonably depends on analyzing the Locklin factors. The Bunch cases conclude there is inverse condemnation if there’s both substantial participation and unreasonableness.
This gets very complicated, and the law is unsettled.
The Arreola Case
This is an important case because of its similarity to the recent flooding in Southcrest.
Here are the brief facts of that case. The Army Corp of Engineers built a levee and California government entities agreed to operate it. The entities began clearing vegetation from the channels but then stopped. Vegetation built up and blocked water flow. Plaintiffs’ property flooded.
The Court found that the entities acted unreasonably because they were aware of the flooding risk but didn’t act.
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