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An Inverse Condemnation Claim Arising From A Public Project’s General Construction Activities Requires A Unique, Peculiar, And Substantial Impact To Property – Real Estate


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When public projects are being constructed, surrounding property
owners typically experience construction impacts, such as noise,
dust, fumes, vibration, and road detours. Typically, absent a
physical taking of property, those construction impacts are not
compensable under an inverse condemnation claim unless the property
owner experiences a direct, substantial, and peculiar impact. While
this has generally been the law in California for quite some time,
a recent published California Court of Appeal decision, Today’s IV, Inc. v. Los Angeles County
Metropolitan Transportation Authority
, No. B306197 (2022
Cal.App. LEXIS 840), highlights the uphill battle a property owner
faces just to survive the pleading stage of alleging an inverse
condemnation cause of action.


Los Angeles County Metropolitan Transportation Authority (Metro)
was constructing the Regional Connector Transit Project, an
underground subway, which would directly link the tracks of three
Metro rail lines. A portion of the project runs along and under
Flower Street, including between 4th and 5th Streets. The Westin
Bonaventure Hotel and Suites (Bonaventure) is located between
Flower and Figueroa Streets and is bounded on the north and south
by 4th Street and 5th Street. The Bonaventure’s only access to
its parking garage and loading dock are via Flower Street. Further,
the Bonaventure’s primary guest/invitee drop-off and pick-up
point is located on Flower Street as well. Neighboring properties
are primarily office buildings.

Most of the project was to be constructed via an underground
tunnel boring machine, which is far less disruptive to surface
traffic and adjacent land uses than the alternative method – cut
and cover. However, the portion of the project along Flower Street
was to be constructed via cut and cover because (1) the soil was
unsuitable and unstable, with a high subsidence risk, (2) the
shallowness of the tunnel at that point, and (3) the presence of
hundreds of underground tiebacks along the tunnel route.

The property owner and the Bonaventure claimed to suffer impacts
from the construction. The property owner brought an inverse
condemnation claim against Metro because it believed that there was
unnecessary and substantial damage that directly and specially
affected the hotel, and that the damage was far disproportionate to
and excessive when compared to the harm suffered by any other
property in the area.

Trial Court

Focusing only on the inverse condemnation claims, the property
owner argued the claims were based on (1) the use of a
cut-and-cover construction method, instead of a tunnel boring
machine, (2) construction work during nights and weekends (which
was particularly harmful to the hotel), (3) violation of certain
noise limits, and (4) interference with access to the hotel. Metro
filed a demurrer and argued the property owner failed to state
facts sufficient to constitute a cause of action for inverse
condemnation. The trial court found no liability for inverse
condemnation and sustained the demurrer.

Court of Appeal

The Court of Appeal affirmed the demurrer and the finding of no
liability for inverse condemnation. The inverse condemnation cause
of action failed because the construction did not significantly
impair access and did not cause excessive noise and dust. In order
for there to be a claim for inverse condemnation in this situation,
the property owner would have had to show that the property
suffered from an intangible intrusion burdening the property in a
way that is direct, substantial, and peculiar to the property
itself. In the present case, the property owner argued that the
impairment of access and excessive noise and dust constituted these
types of intrusions. The court determined that the inconvenience to
hotel guests due to construction detours and work was not enough to
be a compensable deprivation of access; such work was reasonable
and temporary, and the property owner did not plead sufficient
facts (length of time, frequently of detours, difficulty, etc.) to
survive a demurrer. As for noise and dust, the property owner did
not sufficiently plead that the intrusion suffered by the hotel was
unique, special, or peculiar in comparison with other property
owners in the area. Further, the fact that the property owner
operated a hotel in an area primarily occupied with office
buildings does not mean that the hotel suffered peculiar intrusions
that other neighboring properties did not. As a result, the
demurrer was sustained.


In order for a claim of inverse condemnation to survive a
demurrer, a plaintiff must sufficiently plead allegations that
demonstrate the property suffered a “taking or damaging.”
Where the claim is based on an intangible intrusion, the damage
suffered must be unique, special, or peculiar. This case highlights
that simply operating a different use on the property with
particular sensitivity to construction (e.g., hotel use versus
office use) is not, in and of itself, sufficient to demonstrate a
unique or peculiar substantial impact.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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