C. Elements Defined
1. Affirmative Conduct
Prior to Byrd v. City of Hartsville,20 the first element was usually stated as "an affirmative, positive, aggressive act on the part of the government agency."21 Byrd described the element as: "affirmative conduct of a government entity." It is not clear that the Byrd court intended to change the first element and eliminate the words "positive" and "aggressive," or that if those words have been eliminated, that any substantive change has occurred. Be that as it may, the use of the word "aggressive" in the first element did not imply malice. Malice has not been required to prove an action in inverse condemnation,22 and neither has negligence23 or intent.24 Omissions have not been considered to constitute "affirmative, positive, aggressive acts."25 A mere mistake will generally not rise to the level of an affirmative, aggressive, and positive act that is sufficient to constitute inverse condemnation.26 Damages resulting from ordinary malfunctions in public works facilities — burst water pipes,27 backed up sewer lines28 — are also insufficient to support an action for inverse condemnation.29 Overt, positive actions must be alleged.30 When the government has initially engaged in affirmative conduct, the property owner is not required to request that it cease that conduct before bringing an action at law for a taking.31
For example, in Newsome v. Town of Surfside Beach,32 a town rebuilt a street. As a result, the street was higher than the plaintiff's house, causing water to congregated there. The court decided that from the evidence the jury could easily have concluded that building up the street satisfied the requirement of an overt or positive action. Similarly, during an urban redevelopment project a city removed a public sidewalk and support and failed to backfill the excavation, causing flood waters to enter a basement. The city's behavior constituted an affirmative, positive, aggressive act.33 In Kline v. City of Columbia,34 the city excavated a street to change the location of a fire hydrant as part of a street-widening. A gas line running from the street to the plaintiffs' building was alleged to have been negligently pulled loose while the street was excavated. The result was an explosion and fire allegedly caused by leaking gas. The court found a cause of action for inverse condemnation because it appeared the city was "involved in an affirmative, aggressive and positive act of improving and widening a public street for public use."35
In Kiriakides v. Sch. Dist.,36 the parties engaged in extensive negotiations about the potential voluntary sale of the appellant's property to the appellee school district. When the negotiations failed, the district followed the statutory procedures for an eminent domain action and served a notice of condemnation on the appellant. The appellant challenged the right of the district to condemn after being served with the district's notice by filing a separate action alleging inverse condemnation. The action stayed the condemnation proceedings. The school district subsequently notified the appellant that it had abandoned its efforts to condemn the property and, indeed ultimately purchased a different piece of property located nearby. The court found no merit in the appellant's arguments that the mere threat of a condemnation suit stigmatized his property and that the district's alleged delay in bringing the condemnation action entitled him to damages for an inverse condemnation. Institution of condemnation proceedings, said the court, is a legitimate exercise of the government's authority and does not constitute a taking. No public action stigmatized the property because no public communication of the district's interest in the property was made until it sought a court order to allow an appraiser to enter the property after the appellant denied access. The court concluded that the nine-month period between the time the district served notice of condemnation and the date on which it notified the appellant in writing that it was abandoning the condemnation proceeding because of the appellant's opposition and the need to proceed with the project also did not establish a taking.
2. A Taking
A taking may result from physical intrusion — e.g., flooding37 — or regulation — i.e., zoning ordinances, exactions or other regulations.38 That the defendant lacks eminent domain power — and, therefore may not have had authority to the commit acts complained of — is not relevant to the question of whether there has been a taking, nor does it render affirmative, positive, aggressive acts any less a taking.39
To prevail, the plaintiff must have a property interest at stake, not a mere hope or expectation.40 Proper analysis of an inverse condemnation claim premised on an alleged physical taking begins with a determination of the scope of the property rights at issue.41
The South Carolina Supreme Court has outlined the variables.42 There are two circumstances in which there is a "per se" taking. First, if there is a permanent physical occupation of property, a taking occurs regardless of the public interest it may serve or the minimal economic impact to the landowner. Secondly, a regulation that deprives property of all economic value is also a taking.43 If, however, there is not a total economic deprivation, a balancing test is applied to determine whether there has been a taking, unless a regulation imposes a "physical exaction"— a dedication of property to public use — as a condition of an approval or permit, in which case a more stringent review is employed.44 The balancing test derives from the United States Supreme Court decision in Penn Central Transportation Co. v. New York City.45 Three factors are weighed to decide whether the public benefit of a regulation transcends the private harm to the landowner: (1) the character of the government action; (2) the economic impact of the regulation on the plaintiff; and (3) the degree to which the regulation interferes with distinct "investment-backed expectations."46 Where the public benefit outweighs the harm to the landowner, there is no taking.47 The general principles do not change when there is a temporary regulatory taking.48
The South Carolina Supreme Court has recognized that temporary takings may occur,49 and has said there may be a taking even if the property owner has suffered only a temporary loss of part of the economically viable use of his or her property.50 The concept was limited by the United States Supreme Court when it refused to recognize a category of "total but temporary takings" where a government agency imposed two moratoria totaling 32 months in length while it formulated a comprehensive land use plan. "Fairness and justice," said the court would best be served by relying on the "familiar" Penn Central approach when deciding temporary takings cases.51
The South Carolina Supreme Court has consistently held that "deprivation of the ordinary beneficial use and enjoyment of one's property is equivalent to the taking of it, and is as much a taking as though the property were actually appropriated to the public use [and] ... that within the purview of [the State Constitutional provision] there is no distinction between taking and damaging and that the least damage to property constitutes a taking within the purview of the Constitution."52 The court previously opined that the constitutional prohibition against taking protects all "essential elements" of ownership that make property valuable, including the unrestricted right of use, enjoyment, and disposal.53 Obstructions that materially injure or deprive abutting property owners of ingress or egress to and from their property may, therefore, be compensable takings.54
Many cases have considered whether a taking occurs when roadway access is impacted by construction.55 The South Carolina Supreme Court addressed this issue with specificity in Hardin v. S.C. DOT.56 The court noted that closing a street inherently produces a diversion of traffic and loss of frontage, but these are not compensable elements of damage. A restriction of ingress or egress to and from property is the right that must be compensated if infringed when a highway is closed by condemnation. Landowners have no property right, said the court, in continuation or maintenance of the flow of traffic past their property; their property right is in an easement for access. Thus, the court overruled the "special injury" analysis of previous case law57 — although it did not abrogate the "material injury" test58 — and specified that the focus is on how any road re-configuration affects a property owner's easements. An easement, announced the court, is either taken or not. Subsequently, the court rejected the proposition that Hardin should only be applied prospectively.59 In S.C. DOT v. Powell,60 the Department of Transportation closed an intersection and created a cul-de-sac. To accomplish that, it condemned a small portion of the plaintiff's land. However, its actions restricted access to the remaining property and substantially diminished its value. The South Carolina Supreme Court said there was no question that a taking occurred when SCDOT acquired the plaintiff's property and therefore, S.C. Code § 28-2-370 governed. Under that statute, any diminution in the value of a landowner's property remaining after condemnation is to be considered in determining just compensation. Therefore, said the Court, the only question was the amount of compensation to be awarded. A dissent said that redesigning the highway and redirecting the traffic were valid exercises of police power and any diminution in value to the plaintiff's property was a result of that exercise of police power, not a taking. The dissenter said the majority had "dramatically expanded the scope of compensability, and added an inverse condemnation flavor to section 28-2-370 that our case law — until now — has...
