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Damaging

  • Parker Johnson
  • Mar 24, 2021
  • 3 min read

Updated: Apr 30, 2021

What is considered damaging?



Damaging

One form of taking which the federal constitution does not specifically mention as a taking is called “damaging”. Damaging occurs when a public entity causes physical damage to private property as a result of a government activity or facility, this damage must be perceptible and must affect the property permanently or on a recurring basis. Federal courts have determined that damaging can be considered a taking that entitles the property owner to compensation on the basis that damaging is essentially a form of occupation of the property, which is a specified taking (State of Utah Office of the Property Rights Ombudsman, Takings, n.d.).

In order for damaging to be a taking in which a property owner is entitled to compensation, the government must cause damage to property on a continuous, permanent, or recurring basis. The damage caused by the government to the property must be definite and physical, it cannot be a result of natural conditions, and it must be detectable by the senses. The effect on the property’s market value must also be perceptible. The damage to the property must be special to the property in question, meaning that the damage cannot be shared by the general public. Other restrictions include that any damage created from temporary or emergency activities, even activities like construction, do not demand compensation (State of Utah Office of the Property Rights Ombudsman, Takings, n.d.).


Notes:

1. This article is part of a greater analysis, that analysis can be found in it's entirety here.

2. Disclaimer: Disclaimer: The author of this article is NOT an attorney. The information provided in this document is provided for educational purposes only and is NOT considered legal advice.


References

B.A.M. Development, LLC v. Salt Lake County (“BAM III”), 2012 UT 26, 282 P.3d 41. http://www.utcourts.gov/opinions/supopin/BAM1226050412.pdf


Cornish Town v. Koller, 817 P.2d 305 (Utah 1991). https://utahpropertyrights.files.wordpress.com/2014/02/cornish.pdf


Dolan v. City of Tigard, 512 U.S. 374 (1994). https://utahpropertyrights.files.wordpress.com/2012/12/dolannew13.pdf


First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987). https://utahpropertyrights.files.wordpress.com/2012/12/first-englishnew13.pdf


Johnson, D. R. J. (2007). Reflections on the Bundle of Rights. Vermont Law Review. https://lawreview.vermontlaw.edu/wp-content/uploads/2012/02/johnson2.pdf


Madison, J. M. (1792, March 27). For the National Gazette, 27 March 1792. Founders Online. https://founders.archives.gov/documents/Madison/01-14-02-0238


Municipal Land Use, Development, and Management Act, Utah Municipal Code § 10-9a (2005). https://le.utah.gov/xcode/Title10/Chapter9A/C10-9a_1800010118000101.pdf


Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141 (1987). https://utahpropertyrights.files.wordpress.com/2012/12/nollannew13.pdf


Pilon, R. P. (n.d.). Cato Handbook for Policymakers: 16. Property Rights and the Constitution. Cato Institute. Retrieved April 13, 2021, from https://www.cato.org/sites/cato.org/files/serials/files/cato-handbook-policymakers/2017/2/cato-handbook-for-policymakers-8th-edition-16_0.pdf?queryID=undefined


State of Utah Office of the Property Rights Ombudsman. (n.d.-a). About the Ombudsman. Retrieved April 13, 2021, from https://propertyrights.utah.gov/about/


State of Utah Office of the Property Rights Ombudsman. (n.d.-b). Application Review Fees. Retrieved April 13, 2021, from https://propertyrights.utah.gov/advisory-opinion-topics-explained/p-application-review-fees-2/


State of Utah Office of the Property Rights Ombudsman. (n.d.-c). Exactions. Retrieved April 13, 2021, from https://propertyrights.utah.gov/exactions/


State of Utah Office of the Property Rights Ombudsman. (n.d.-d). Impact Fees. Retrieved April 13, 2021, from https://propertyrights.utah.gov/impact-fees/


State of Utah Office of the Property Rights Ombudsman. (n.d.-e). Just Compensation. Retrieved April 13, 2021, from https://propertyrights.utah.gov/just-compensation/



State of Utah Office of the Property Rights Ombudsman. (n.d.-g). Takings and Eminent Domain. Retrieved April 13, 2021, from https://propertyrights.utah.gov/takings-and-eminent-domain/


State of Utah Office of the Property Rights Ombudsman. (n.d.-h). Temporary Land Use Regulation (Moratorium). Retrieved April 13, 2021, from https://propertyrights.utah.gov/temporary-zoning-ordinance-i-e-moratorium/


State of Utah Office of the Property Rights Ombudsman. (n.d.-i). The Constitutional Takings Issues Act. Retrieved April 13, 2021, from https://propertyrights.utah.gov/the-constitutional-takings-issues-act/


State of Utah Office of the Property Rights Ombudsman. (n.d.-j). The Land Use, Development, and Management Act (LUDMA). Retrieved April 13, 2021, from https://propertyrights.utah.gov/the-land-use-development-and-management-act-ludma/


State of Utah Office of the Property Rights Ombudsman. (n.d.-k). The Private Property Protection Act. Retrieved April 13, 2021, from https://propertyrights.utah.gov/the-private-property-protection-act/


State of Utah Office of the Property Rights Ombudsman. (n.d.-l). Vested Rights. Retrieved April 13, 2021, from https://propertyrights.utah.gov/vested-rights/


State of Utah Office of the Property Rights Ombudsman. (2018, February). Your Guide to Just Compensation. https://site.utah.gov/propertyrights/wp-content/uploads/sites/3/2018/02/Just-Comp-2018.pdf




Utah Judicial Code, Eminent Domain § 78B-6-501 (2020). https://le.utah.gov/xcode/Title78B/Chapter6/C78B-6-S501_2020051220200512.pdf

 
 
 

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