A quick one from the Oregon Court of Appeals. In Courter v. City of Portland, No. A158840 (June 7, 2017), the court concluded that the property owners' inverse condemnation claim -- which alleged that the City had not buried its pipes deep enough -- was ripe for judicial review.
The case started after the City condemned a utility easement on the property and then didn't bury the pipes deep enough. Doing so exceeded the scope of the condemned easement and interfered with the owners' right to develop their property in the future because they'd have to either rezone the property or have the pipes buried deeper in order to develop. The City argued that the case wasn't ripe because the damages which the owners complained of had not yet occurred. "[B]ecause a court could not adjudicate whether they were harmed by the placement of the pipes until plaintiffs successfully rezoned their property and obtained approval for a development plan that required them to move the pipes." Slip op. at 44. The trial court agreed.
The court of appeals rejected the argument, concluding that "whenever the government permanently physically occupies the property of a citizen, that physical occupation is a taking." Slip op. at 47. An allegation of permanent physical occupation is ripe from the time the property is occupied. "No future events need to occur before a court can adjudicate whether there has been a taking. Instead, plaintiffs’ inverse condemnation claim is based on present, nonhypothetical facts: The pipes are already in the ground. Thus, the only question is whether the city’s actions constitute a taking—i.e., whether the city has actually exceeded the scope of its easement." Slip op. at 47-48. The court held that the possibility that the damages would be remote wasn't a question of justiciability, but rather was for the jury to determine when it determines the amount of damages, if any, which resulted from the present invasion.
Finally, the court held that the case was appropriate for a declaratory judgment under the Oregon statute, and not an attempt to collaterally attack the earlier condemnation award. That part of the opinion is very Oregon and statute-specific, so we'll leave that to you, if interested.
Courter v. City of Portland, No. A157740 (Ore. App. June 7, 2017)