                                                132 Nevi, Advance Opinion    57
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                JOHN FRITZ; AND MELISSA FRITZ,                     No. 67660
                Appellants,
                vs.                                                          FILED
                WASHOE COUNTY,
                Respondent.                                                   AUG 0 4 2016
                                                                                  E K. LINDEMAN
                                                                        CL   MIc UV'tJVMM&cO LJIRT
                                                                        BY
                                                                             HIEF ID   TY CLERK

                            Appeal from a district court summary judgment in an-inverse
                condemnation action. Second Judicial District Court, Washoe County;
                Janet J. Berry, Judge.
                            Reversed and remanded.


                Luke A. Busby, Reno,
                for Appellants.

                Christopher J. Hicks, District Attorney, and Stephan J. Hollandsworth,
                Deputy District Attorney, Washoe County,
                for Respondent.




                BEFORE DOUGLAS, CHERRY and GIBBONS, JJ.


                                               OPINION
                By the Court, DOUGLAS, J.:
                            In this appeal, we are asked to consider whether, when a
                county approved subdivision maps, directed the flow of water, and
                accepted street dedications during the building process of two upstream



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                  developments, its actions constituted substantial involvement to support
                  inverse condemnation in the flooding of a downstream property. We
                  conclude that inverse condemnation is a viable theory of liability and
                  genuine issues of material fact remain as to the County's substantial
                  involvement in the development of the drainage system at issue. We
                  therefore reverse the district court's grant of summary judgment.
                                               BACKGROUND
                              In 2001, appellants John and Melissa Fritz purchased
                  property adjacent to Whites Creek. Before the Fritzes purchased their
                  property, Washoe County approved plat maps for the upstream
                  development Lancer Estates. After the Fritzes purchased their property,
                  Washoe County approved plat maps for another upstream development,
                  Monte Rosa. Washoe County subsequently accepted various street
                  dedications that were incorporated into the upstream developments'
                  drainage system, which diverts water to Whites Creek.' Since the
                  construction of the developments, the Fritzes' property floods during
                  heavy rainstorms.
                              In 2013, the Fritzes filed an inverse condemnation complaint
                  against Washoe County. The Fritzes alleged that Washoe County
                  approved plat maps, managed and directed development of the water
                  drainage system, approved final maps, and ultimately accepted dedication
                  of the water drainage system that increased the flow of water to Whites


                        "It is clear from the record that Washoe County accepted certain
                  street dedications. However, it is not clear whether Washoe County
                  accepted dedication of other improvements incorporated into the drainage
                  system, formally or informally.



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                                                           449F4-1,A:17—*W471:4).
                    Creek and caused flooding to their property. According to the Fritzes,
                    Washoe County's conduct constituted substantial involvement in activities
                    that caused the taking of their property.
                                Washoe County answered and then filed a motion for
                    summary judgment, arguing that the Fritzes did not have standing to
                    assert claims against it for plat maps it approved before the Fritzes owned
                    their property. As to the maps approved after the Fritzes came into
                    ownership, and its acceptance of dedications, Washoe County argued that
                    its conduct was not substantial and did not give rise to the Fritzes' inverse
                    condemnation claim.
                                The Fritzes opposed Washoe County's motion for summary
                    judgment and attached documents detailing Washoe County's involvement
                    in the developments' draining scheme. One such document was a 1996
                    letter from the Nevada Department of Transportation (NDOT) to Washoe
                    County. In the letter, NDOT refers to a previous agreement with Washoe
                    County wherein Washoe County would direct the developers to convey
                    water north through Lancer Estates. NDOT then requested that Washoe
                    County follow through with that agreement. In addition to the letter, the
                    Fritzes submitted the Lancer Estates Hydrology Report, wherein the
                    developers stated that they were in compliance with the NDOT and
                    Washoe County agreement to convey water north.
                                Ultimately, the district court granted summary judgment in
                    favor of Washoe County. The court reasoned that Washoe County's
                    approval of subdivision maps and acceptance of dedications did not
                    amount to substantial involvement sufficient to support a claim for
                    inverse condemnation. The Fritzes appealed.



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                                               DISCUSSION
                              "This court reviews a district court's grant of summary
                  judgment de novo, without deference to the findings of the lower court."
                  Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005).
                  Summary judgment is proper if "the pleadings and other evidence on file
                  demonstrate that no genuine issue as to any material fact [remains] and
                  that the moving party is entitled to a judgment as a matter of law."   Id.
                  (alteration in original) (internal quotation omitted). When reviewing a
                  summary judgment motion, all evidence and reasonable inferences "must
                  be viewed in a light most favorable to the nonmoving party." Id.
                  Standing
                              On appeal, Washoe County contends that the Fritzes do not
                  have standing to assert their inverse condemnation claim because Washoe
                  County approved the majority of subdivision maps before the Fritzes
                  owned the land. Construing the facts in a light most favorable to the
                  Fritzes, we disagree.
                              Takings claims lie with the party who owned the property at
                  the time the taking occurred. Argier v. Nev. Power Co., 114 Nev. 137, 139,
                  952 P.2d 1390, 1391 (1998). The Fritzes alleged that their property was
                  taken by flooding as a result of heavy rainstorms occurring during the
                  course of their ownership. The district court made no findings with regard
                  to when the taking occurred. Thus, a genuine issue of material fact
                  remains as to the issue of standing, and we cannot uphold summary
                  judgment on this ground.
                  Substantial involvement
                              The district court found that Washoe County approved maps
                  and accepted certain dedications. The Fritzes presented evidence that

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                  Washoe County also directed the developer to divert water north from
                  Mount Rose Highway into Whites Creek. According to the Fritzes, these
                  actions constitute substantial government involvement in private
                  activities that led to an increased quantity and flow of water in Whites
                  Creek and flooding on their property. Washoe County contends that
                  approval of maps and acceptance of dedications are insufficient to
                  constitute substantial involvement giving rise to a claim for inverse
                  condemnation.
                              The Takings Clause of the United States Constitution
                  provides that private property shall not "be taken for public use, without
                  just compensation." U.S. Const. amend. V. Similarly, the Nevada
                  Constitution provides that "[plrivate property shall not be taken for public
                  use without just compensation having been first made." Nev. Const. art.
                  1, § 8(6). When a governmental entity takes property without just
                  compensation, or initiating an eminent domain action, an aggrieved party
                  may file a complaint for inverse condemnation. State, Dep't of Transp. v.
                  Cowan, 120 Nev. 851, 854, 103 P.3d 1, 3 (2004).
                              Nevada caselaw has not clearly and comprehensively set forth
                  the elements of inverse condemnation, but we do so now. As the
                  counterpart of eminent domain, inverse condemnation requires a party to
                  demonstrate the following: (1) a taking (2) of real or personal interest in
                  private property (3) for public use (4) without just compensation being
                  paid (5) that is proximately caused by a governmental entity (6) that has
                  not instituted formal proceedings. See Dickgieser v. State, 105 P.3d 26, 29
                  (Wash. 2005); see also ASAP Storage, Inc. v. City of Sparks, 123 Nev. 639,
                  645-47, 173 P.3d 734, 738-39 (2007) (providing that an interest in real or
                  personal property satisfies the private property requirement); Gutierrez v.

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                Cty. of San Bernardino, 130 Cal. Rptr. 3d 482, 485 (Ct. App. 2011)
                (providing that the taking must be proximately caused by a government
                entity).
                            A private party cannot recover in inverse condemnation for
                property taken by another private party. However, when a private party
                and a government entity act in concert, government responsibility for any
                resulting damage to other private property may be established by
                demonstrating that the government entity was substantially involved "in
                the development of private lands for public use which unreasonably
                injure[d] the property of others." Cty. of Clark v. Powers, 96 Nev. 497, 505,
                611 P.2d 1072, 1077 (1980); see Gutierrez, 130 Cal. Rptr. 3d at 485 ("To be
                a proximate cause, the design, construction, or maintenance of the
                improvement must be a substantial cause of the damages.").
                            The district court reached its conclusion that Washoe County
                was not substantially involved, in part, by distinguishing the government
                involvement here from the government involvement in Powers.               We
                affirmed a district court's judgment that held the County liable in inverse
                condemnation for acting in conjunction with various private parties to
                cause large amounts of water to be cast upon the property of the plaintiff
                landowners. 96 Nev. at 499-500, 611 P.2d at 1073-74. We held the
                County liable because it "participated actively in the development of these
                lands, both by its own planning, design, engineering, and construction
                activities and by its adoption of the similar activities of various private
                developers as part of the County's master plan for the drainage and flood
                control of the area." Id. at 500, 611 P.2d at 1074.




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                                      We agree with the district court that             Powers    is
                        distinguishable. The government conduct in Powers can be described as
                        physical involvement directly attributable to the government entity. Here,
                        however, the Fritzes did not provide any evidence that Washoe County
                        participated in the engineering and construction of the developments.
                        Thus, the district court correctly concluded that the significance of Washoe
                        County's involvement here is distinguishable from that in Powers.
                                      However, drawing this distinction is not dispositive of the
                        issues raised in this appeal.     Powers indicates that an act, such as
                        construction, which by any measure reaches the height of substantial
                        involvement, is sufficient to establish a claim. We have not limited the
                        range of actions that constitute substantial involvement to physical
                        engagement in private activities. We have, nonetheless, provided that
                        claims based on mere planning are outside the scope of substantial
                        involvement. Sproul Homes of Nev. v. State, Dep't of Highways,      96 Nev.
                        441, 443, 611 P.2d 620, 621 (1980) ("It is well-established that the mere
                        planning of a project is insufficient to constitute a taking for which an
                        inverse condemnation action will lie."). Hence, this case presents a novel
                        question: whether government activities short of physical labor, but with
                        more engagement than mere planning, can constitute substantial
                        involvement in a private development sufficient to constitute public use in
                        support of inverse condemnation. While we have not previously addressed
                        this question, the California courts have addressed similar factual
                        situations.
                                      The district court relied in part on Ullery v. Contra Costa
                        County to reach its determination that the Fritzes' inverse condemnation
                        claim was not actionable. 248 Cal. Rptr. 727 (Ct. App. 1988). In Ullery,

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                the developer of property located at the bottom of a hill made an offer of
                dedication of a water drainage easement in a natural stream running
                parallel to the bottom of the hillside, but the County expressly rejected the
                dedication.    Id. at 728-29. Thereafter, neither the County nor City
                performed maintenance on the drainage easement. Id. at 729. A landslide
                later injured two hillside neighboring properties, and the landowners
                brought suit against the County, City, and Sanitary District, arguing that
                the County's approval of tentative and final subdivision maps resulted in
                an "environment conducive to landslide damage" caused by erosion from
                water drainage. Id. at 731 (internal quotation omitted).
                              In this case, apparently analogizing it to Ullery, 2 the district
                court concluded that Washoe County's approval of subdivision maps and
                acceptance of dedications was insufficient to support the Fritzes' inverse
                condemnation claim. However, the district court misapplied Ullery. The
                Ullery court recognized that a public use or improvement cannot be
                demonstrated by mere subdivision map approval, finding that, without the
                County's acceptance of the dedication, its "sole participation in the
                development process was approval of the tentative and final subdivision
                maps. This alone [was] not enough to give rise to establish inverse
                condemnation liability." Id. at 731-32. Thus, Ullery draws a distinction
                between merely approving subdivision maps and taking other actions,
                including accepting dedications. The former, on its own, does not convert


                      2Although the district court's order does not directly state that the
                instant case is analogous to Ullery, this conclusion can be drawn from its
                use of the case to reach its conclusion that approving subdivision maps
                and dedications is insufficient to constitute inverse condemnation liability.



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                the private development into a public use that gives rise to inverse
                condemnation liability. We adopt this rule from Ullery.
                            However, the case at bar is distinguishable from Ullery. The
                Fritzes alleged that Washoe County did more than approve subdivision
                maps. The Fritzes provided evidence that, among other activities, Washoe
                County formally accepted dedications of the streets in the developments
                and entered into an agreement with NDOT to direct water from the
                developments north into Whites Creek, rather than to allow the water to
                follow its natural path down Mount Rose Highway. Therefore, unlike the
                county in Ullery, Washoe County has taken actions beyond merely
                approving the subdivision maps, and the Fritzes' inverse condemnation
                claim here is actionable.
                            After applying Ullery, we conclude that genuine issues of
                material fact exist as to whether Washoe County's actions constituted
                substantial involvement in the drainage system sufficient to deem it a
                public use. In particular, when resolving a summary judgment motion,
                the district court has the obligation to "set forth the undisputed material
                facts and legal determinations on which the court granted summary
                judgment." NRCP 56(c). In this case, however, the district court's order
                summarized the basic facts, but ignored certain evidence provided by the
                parties and did not explicitly state which facts were undisputed. On
                appeal, while the parties periodically alleged in their briefs that the facts
                are undisputed, they differ as to the import and effect of these facts on the
                substantial involvement considerations.




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                             Therefore, because genuine issues of material fact remain, we
                reverse the district court's grant of summary judgment and remand this
                matter to the district court for proceedings consistent with this opinion. 3




                                                                   )(1
                                                     Douglas


                We concur:




                                                J.
                Gibbons




                      3 Washoe  County also contends that the injuries caused by flooding
                were not substantial. However, the district court did not make findings on
                this issue sufficient for this court to review. Therefore, we decline to
                consider this question.



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