A very short one from the Oregon Court of Appeals.
In Walton v. Neskowin Reg. Sanitary Auth., No. A168358 (Sep. 1, 2021), the court concluded that the trespass statute of limitations of six years applied to a physical takings (inverse condemnation) claim. The Sanitary Authority installed a main sewer line on the plaintiffs' property in 1995. When the plaintiffs' septic system failed in 2014, the Authority required them to connect to the sewer system. The plaintiffs asserted that they were entitled to a "no fee" connection, in accordance with an agreement with the Authority to allow the 1995 installation in exchange for a no fee connection. The Authority denied the existence of any agreement.
So in 2017 the plaintiffs sued for inverse condemnation. The Authority argued the statute of limitations on such a claim had expired. The statute began running when the invasion took place, and not when the Authority denied compensation as the plaintiffs argued.
The court of appeals affirmed, rejecting both of the property owners' arguments.
First, even though the just compensation requirements of the Oregon and U.S. Constitutions are self-executing, it is ok for a statute of limitations to put a time limit on that right. The court of appeals didn't really say why, other than it felt bound by an earlier decision by the Oregon Supreme Court that so held. Got it.
Second, the court held that rejected the property owners' argument that the SOL is triggered not by the physical invasion, but by the government's refusal to compensate. Like the first argument, the court held that "that argument is foreclosed" by an earlier court of appeals case that held that the statute "began to run when that physical occupation began." Slip op. at 4.
A couple of thoughts while we await the owners' petition asking the Oregon Supreme Court for review. First, it isn't such an out there argument to suggest that inverse condemnation actions be subject to the same statutes of limitation as their direct condemnation counterparts (generally none). And, there's something that doesn't quite sit right with the notion that unconstitutional government conduct can become ok simply by the passage of time, or that the right to compensation can expire. Isn't each day that the government's sewer line remains on the property of the plaintiffs without compensation a new and different violation?
Second, the owners have a point that the wrong that an inverse condemnation claim seeks to remedy is not necessarily the invasion itself, but the uncompensated invasion. Thus, the court of appeals' conclusion here that the statute is triggered by the invasion isn't quite on the mark, because the invasion doesn't become bad until such time as the Authority declined to provide compensation. Or are we reading Lingle wrong on that one? The practical problem with the court of appeals' holding is that it fails to recognized that the Authority's rejection of compensation is an essential element of the property owners' takings claim. We made that point in a brief we contributed to a short time ago.
Now we wait.
Walton v. Neskowin Regional Sanitary Authority, No. A168358 (Or. App. Sep. 1, 2021)
