Posted by: Patricia Salkin | March 29, 2017

KS Supreme Court Finds Prevention of Using Property Pursuant to Restrictive Covenant Constituted a Taking

In 1999, State of Kansas and the Kansas Department of Transportation (collectively KDOT) purchased property from Christ Evangelical Lutheran Church, which included lots 55 through 75 in Grande Oaks. In 2005, KDOT placed trailers on these lots and, in subsequent years, used the lots for various construction activities. Eventually, KDOT constructed permanent bridges and pavements on a number of the lots. In March 2012, Plaintiffs, who all owned real property in Grande Oaks, initiated this lawsuit claiming inverse condemnation by Defendants. Defendants filed a motion for summary judgment, arguing that violation of the restrictive covenant in this case was not a compensable taking under Kansas law. Defendants sought compensation from the KDOT for violation of restrictive covenants burdening subdivision property. KDOT obtained summary judgment in the district court, but the Court of Appeals reversed.

As pertinent to this case, the Kansas Eminent Domain Procedure Act (EDPA) set forth procedures for condemnation of interests in real property. The court noted that the EDPA is narrower than the plain language of the federal Takings Clause, which extends to all “private property”, except for the fact that the EDPA makes not only takings, but also damage to real estate or an interest in it compensable. Here, while there was no physical taking, the court found KDOT’s nonconforming use of its subdivision parcels extinguished plaintiffs’ restrictive covenant as to those parcels, as plaintiffs’ interests in real property were destroyed and would continue to do so at least as long as KDOT continued to own the parcels. Accordingly, the court found a taking had occurred, and compensated plaintiffs for any qualifying damage caused to their parcels by the nonconforming use, as well as for the taking of their rights to control the use of KDOT’s parcels under the restrictive covenant.

Creegan v State, 2017 WL 1101774 (KS 3/24/2017)


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