The Constitutions of the United States and California both offer protections against the unlawful taking of private property by the government. The government, no matter at what level, cannot take land from a property owner or cause damage to property without paying just compensation.
If government action or a public project causes damage to property without just compensation, a suit for recovery under a claim of inverse condemnation might be possible. Although the theory is similar to eminent domain, the procedure varies in several ways, especially because the property owner becomes a claimant and must establish liability.
The challenge of 'ripeness'
The U.S justice system operates on two tiers. There are state-level courts and then there are the federal courts. Very often, the law requires cases to work their way through state courts. Questions of constitutional violation can be raised and appeals might be possible on up through the federal level.
What prompts this post is the so-called "ripeness rule." Under this requirement, federal courts have stated that they will not entertain reviews of a taking case until a plaintiff exhausts all possible remedies at the state level.
The problem as one legal analyst observes is that the legal area of property taking is the only one in which this is required.
What this has led to are cases such as Santa Fe Village Venture v. City of Albuquerque. In this matter, a property owner's first claim of illegal taking wound up rejected by a federal court because it had not been heard at the state level. However, when he went to state court with a second inverse condemnation claim, the court said it had no standing to hear it. The man returned to federal court and suffered rejection again. This time, the court dismissed the matter because his federal claims had not been raised in state court.
The courts effectively turned the matter into a legal shell game and the plaintiff never received his day in court on the merits of the case.
When it comes to the taking of property, it might seem that government holds all the cards. But by working with attorneys skilled and experienced in complex real estate issues, rights can be protected.