## Facts

- Paul April, M.D., and Paul A. April, M.D., Inc. (collectively, April) purchased 40 acres of undeveloped agricultural land in the City of Broken Arrow, Oklahoma, for investment and used it as pasture.
- The tract lay within the existing 100-year flood plain of Haikey Creek and its tributaries, a natural drainage system; three preexisting wet-weather creeks crossed the property and converged in the flood plain.
- Because of these natural conditions, the property was subject to flooding after heavy rainfall.
- In 1975, April requested single-family zoning for the property. The City approved the zoning, which could have allowed approximately 120 homes, but required that house pads be built at least one foot above the creek flood line.
- Over time, April sought rezoning to permit higher-density residential development, but the City denied those later rezoning requests.
- In 1978, the City enacted (1) the Flood Damage Protection Ordinance, regulating development within the flood plain, and (2) the Earth Change Resolution Ordinance, regulating excavation and earth modifications within the municipality.
- April filed an inverse-condemnation (reverse-condemnation) action, claiming that the ordinances and their implementation limited his land to flood-tolerant uses and effectively appropriated the tract for public use as a detention pond within the City’s stormwater drainage system.
- The City did not physically enter or occupy April’s land, did not divert additional water into the Haikey drainage system, and did not build upstream facilities or approve upstream changes that altered the natural flow affecting April’s property.
- A jury returned a verdict for April and awarded permanent damages for diminution in value. The trial court also awarded attorney fees, appraiser fees, engineering/planning fees, and costs against the City.
- The City appealed to the Oklahoma Supreme Court.

## Issues

1. Whether the City’s flood-plain and earth-change ordinances, on their face and as applied to April’s naturally flood-prone property, substantially interfered with use and enjoyment so as to constitute a compensable taking or damaging under the United States and Oklahoma Constitutions.
2. Whether an inverse-condemnation claim presented a justiciable issue where the City neither physically invaded nor occupied the land and the claimed injury was a regulatory limitation on development within a natural flood plain.

## Decision

- The Oklahoma Supreme Court reversed the judgment for April.
- The court remanded with directions to dismiss for lack of a justiciable inverse-condemnation issue.
- The court held that the ordinances were valid exercises of municipal police power and did not constitute a compensable taking or damaging on this record.
- Because the inverse-condemnation claim failed, the awards of damages, attorney fees, expert/appraiser fees, and costs could not stand.

## Legal Principles

- A land-use regulation may amount to a taking only if it (a) does not substantially advance legitimate governmental interests or (b) denies the owner economically viable use of the land.
- Flood-plain management and regulation of earth changes to reduce flood hazards and protect public safety are legitimate governmental objectives within municipal police power.
- Mere reduction in development potential or market value, without denial of economically viable use, does not establish a compensable taking.
- Where flooding and drainage conditions arise from natural topography and waterways—and the government has not physically invaded, occupied, diverted water, or constructed works causing additional flooding—regulation of development in the flood plain is generally treated as noncompensable land-use control rather than a physical appropriation.
- Oklahoma’s constitutional protection against property being “taken or damaged” for public use requires more than disappointment of investment expectations; an inverse-condemnation remedy is not available absent facts showing a compensable taking/damaging.
- Oklahoma’s inverse-condemnation statute (66 O.S. § 57) addressing land “taken and occupied” is not satisfied when the government has not entered upon or occupied the property.

## Conclusion

April v. City of Broken Arrow held that municipal flood-plain and earth-change ordinances restricting development on naturally flood-prone land did not create a compensable taking or damaging where the City did not physically invade or alter drainage conditions and the regulations served legitimate public-safety and flood-control purposes; the inverse-condemnation judgment and related fee and cost awards were therefore reversed and the case was ordered dismissed.


April v. City of Broken Arrow, 775 P.2d 1347 (1989)