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Regulatory Taking and Inverse Condemnation

October 30, 2013

Regulatory Taking and Inverse Condemnation

CaseMack Phillips, Et Al. v. Montgomery County, Tennessee, Et Al.

Facts:  Property owners submitted a subdivision plan for approval.  The planning commission denied the plan because the property lies in the path of a planned highway extension.  The property owners alleged the denial constitutes a regulatory taking in violation of the Tennessee Constitution, and inverse condemnation that is compensable pursuant to TCA § 29-16-123.  The trial court denied the county’s motion to dismiss.

Appellate Decision:  The intermediate court affirmed the dismissal with respect to the Taking Clause of the TN Constitution, noting that our supreme court has not recognized an action for regulatory takings under our Constitution.  The intermediate court reversed the dismissal as to inverse condemnation, holding that the property owners had alleged sufficient facts to claim that their property had been taken despite the absence of condemnation proceedings.

Issue:  Is the denial of a subdivision plan due to a planned highway extension a regulatory taking in violation of the state Constitution, and/or grounds for an inverse condemnation proceeding?

Review Granted:  October 16, 2013.

Prediction:  Ben thinks the supreme court will reverse and rethink regulatory takings under the state constitution.  Since there had not yet been a physical occupation or nuisance upon the land, inverse condemnation does not seem like the best remedy for the denial of the subdivision plan.  An action under the takings clause seems like a better vehicle since the owners have already been denied full use of their land.