The bulk of the Indiana Court of Appeals' opinion in Grdinich v. Plan Comm'n for the Town of Hebron, No. 18A-PL-1050 (Feb. 28, 2019) is devoted to details of land use law, specifically exhaustion of administrative remedies. If that floats your boat, we'll let you read it.
What caught our eye was at the very last part of the opinion (page 16), where the court concluded that the property owner did not adequately plead an inverse condemnation claim, when his complaint alleged "that real estate owned by him is encumbered by a 150-foot underground storm water drainage pipeline that is owned and controlled by Hebron for public use without payment for just compensation." In other words, an uncompensated physical invasion taking.
The court held this did not state a claim as a matter of law because the allegedly offending pipeline was already in place at the time the plaintiff purchased the land:
Grdinich also alleged that the pipeline causes damages to him, including the diminution in value and the deprivation of beneficial use of a substantial portion of his property. We observe that the pipeline was present when Grdinich purchased the property. Whatever diminution in value, if any, or deprivation of beneficial use, if any, to the property resulting from the pipeline occurred prior to his purchase of the property. Nothing changed after he purchased the property, and thus he has not suffered any damages. Accordingly, we conclude Count 5 fails to state a claim upon which relief can be granted, and therefore the claim was properly dismissed.
Slip op. at 17 (emphasis original).
What about Palazzolo v. Rhode Island, 533 U.S. 606 (2001), you ask? Didn't the Supreme Court hold that it was not dispositive that an owner purchased the property claimed to be taken subject to the allegedly restrictive regulation? Shouldn't that apply with equal (or more) force in the case of a physical invasion?
No mention at all. Are we surprised? No, courts routinely ignore that case, even though they should not.
Grdinich v. Plan Comm'n for the Town of Hebron, No. 18A-PL-1050 (Ind. App. Feb. 28, 2019)
