E K. LINDEMAN 

CL MIc UV'tJVMM&cO LJIRT 

BY 

HIEF ID TY CLERK 

132 Nevi, Advance Opinion 57 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

JOHN FRITZ; AND MELISSA FRITZ, 

Appellants, 

vs. 

WASHOE COUNTY, 

Respondent. 

No. 67660 

FILED 

AUG 0 4 2016 

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 

3Washoe 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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