Opinion
Docket No.: CL18-7735 Docket No.: CL19-5031 Docket No.: CL19-5032 Docket No.: CL19-5034 Docket No.: CL19-5035 Docket No.: CL19-5037 Docket No.: CL19-5038 Docket No.: CL19-5039 Docket No.: CL19-5041
10-21-2019
Re: Freemason Street Area Ass'n, Inc., et al. v. City of Norfolk, et al.
Joseph V. Sherman, Esquire Joseph V. Sherman, PC 324 W. Freemason Street Norfolk, Virginia 23510 Adam D. Melita, Esquire Deputy City Attorney Norfolk City Attorney's Office 810 Union Street Norfolk, Virginia 23510
Joseph V. Sherman, Esquire
Joseph V. Sherman, PC
324 W. Freemason Street
Norfolk, Virginia 23510 Adam D. Melita, Esquire
Deputy City Attorney
Norfolk City Attorney's Office
810 Union Street
Norfolk, Virginia 23510 Dear Counsel:
Today, the Court rules on the "Demurrer to Amended Complaint" filed by the City of Norfolk ("City") based on the Amended Complaint filed by the Freemason Street Area Association, Inc. ("Freemason") and the separate "Demurrer to Complaint" filed by Defendants the City, Richard Former (the City Building Commissioner), and Bernard Pishko (the City Attorney) based on the Complaints filed by Nicholas M. Cordovana, III, and Jennifer Cordovana; Albert L. Roper; Thomas W. McNeilan and Sally Anne McNeilan; Barbara and C. Harlee Pate; William D. McKeever, Jr., and Joyce S. McKeever; 424 West Bute Street, LLC; Stephen E. Sigmon and Vanessa L. Sigmon; and the Charles S. Murray Revocable Trust. Plaintiffs assert in their complaints procedural due process, inverse condemnation, and 42 U.S.C. § 1983 counts that arise from their claim that they had a property interest in the structure formerly owned by Dr. Mark S. Sinesi and located at 355 W. Freemason Street ("Grandy House"), which was a contributing structure to the West Freemason Street Area Historical District until Sinesi demolished the structure pursuant to a City order. Plaintiffs also advance in the complaints an equal protection count based on alleged preferential treatment afforded to Sinesi by the City.
The Court consolidated all nine of these matters by agreement of the parties. (See July 2, 2019, Order.) Unless specified otherwise, the nine complaints are referred to herein as "the Complaint" and "Plaintiffs" refers to Freemason and the homeowners, collectively.
The building, which is a Georgian Revival-style house, apparently served as the home and office of Dr. Charles Rollins Grandy, a pathologist and leader in the fight against tuberculosis.
The Court finds that Plaintiffs have failed to allege facts necessary to demonstrate a property interest in Grandy House or to support an equal protection claim. The Court therefore SUSTAINS the City of Norfolk's demurrer to the Amended Complaint and SUSTAINS Defendants' demurrers to the eight separate Complaints filed by homeowners.
Background
Grandy House was built in or about 1901 in the West Freemason Section of Norfolk, Virginia. (Am. Compl. ¶ 1; Compl. ¶ 7.) The City of Norfolk established the West Freemason Historic District (the "Historic District") in 1977, and Grandy House contributed to the Historic District. (Am. Compl. ¶ 3; Compl. ¶ 8.) Sinesi purchased the house in October 2015 with the intent to renovate it and subsequently reside therein, and he apparently developed construction plans and expended significant funds in support of this effort. (Am. Compl. ¶ 4; Compl. ¶ 12.)
The complaints filed by Nicholas M. Cordovana, III, and Jennifer Cordovana; Albert L. Roper; Thomas W. McNeilan and Sally Anne McNeilan; Barbara and C. Harlee Pate; William D. McKeever, Jr., and Joyce S. McKeever; 424 West Bute Street, LLC; Stephen E. Sigmon and Vanessa L. Sigmon; and the Charles S. Murray Revocable Trust include nearly identical factual allegations. The Court therefore cites those eight complaints herein as if they were the same complaint ("Compl.") for ease of reference. The Court cites the Freemason's Amended Complaint herein separately ("Am. Compl.").
On December 16, 2016, an arsonist set the house on fire, extensively damaging the porch structure and the building interior. (Am. Compl. ¶ 8; Compl. ¶ 14.) Due to the damage, the City issued multiple citations to Sinesi, which required that he make certain repairs or improvements to Grandy House. (Am. Compl. ¶¶ 10-14; Compl. ¶¶ 16-20) It is undisputed that Sinesi failed to make the required repairs or improvements and that the City appeared in court for related enforcement actions on at least six occasions between November 2017 and September 2018. (Am. Compl. ¶¶ 11-12, 17, Ex. D; Compl. ¶¶ 16-17.) On June 18, 2018—in reliance on a structural engineer's February 7, 2018, letter and subsequent evaluation and recommendation "noting the damage to the framing of the building"—the City Building Commissioner deemed Grandy House "structurally unsafe" pursuant to the Virginia Uniform Statewide Building Code (the "USBC") and recommended "that the structure be immediately demolished." (Am. Compl. Ex. I.)
All citations to the USBC in this letter opinion are to the Maintenance Code (Part III) of the USBC. See Va. Unif. Statewide Bldg. Code, Part III (2012).
On August 9, 2018, the structural engineer produced a new evaluation and report (the "Report"). (Id.) In the Report, as summarized by the City Building Commissioner, the engineer concluded that "[o]ver 60% of the roof is unsalvageable and requires complete demolition," "[o]ver 80% of the attic framing is unsalvageable and requires complete demolition," "[o]ver 80%) of the second floor framing is unsalvageable and requires complete demolition," and "[t]he first floor framing is in extremely poor condition." (Id.) According to the Building Commissioner, the Report also concluded that "[a]lthough the multi-wythe exterior [brick] walls show minor signs of damage and failure, they are extremely vulnerable due to the damage to and removal of portions of the supporting structural elements and are at risk of failure and/or collapse, especially at such time as an attempt is made to restore the structure by demolition of supporting structural framing." (Id.)
Although Freemason attached the Building Commissioner's August 9, 2018, memorandum as an exhibit to its Amended Complaint, it did not include as part of the exhibit a copy of the Report, which apparently was attached to the memorandum. (See Am. Compl. Ex. I.)
Based on the Report, the City Building Commissioner forwarded a memorandum to the City Zoning Administrator that same day. (Am. Compl. Ex. I.) In the memorandum, the Building Commissioner declared the structure "'[u]nsafe' and, in such condition that could reasonably be expected to cause death or serious physical harm to the public" based on "new information provided by the structural engineer and [the Building Commissioner's] professional experience." (Id.)
On August 13, 2018, the Zoning Administrator notified, inter alia, various City officials, the Architectural Review Board ("ARB") Chairman, and members of the ARB of "the required emergency demolition of the historic building located at 355 West Freemason Street," stating that "[t]he condition [of Grandy House] has deteriorated significantly since the fire, and the Building Commissioner has determined that the building, if left in its current condition, 'could reasonably be expected to cause death or serious physical harm.'" (Am. Compl. Ex. J.) The Zoning Administrator also informed them that the City Property Maintenance Official "has been notified to take all necessary action to promptly compel the demolition of the property to protect public safety." (Id.)
On August 14, 2018, the City issued Sinesi a "Notice of Violation" (the "Notice"), in which it reported its finding that Grandy House was "unsafe and uninhabitable." (Am. Compl. Ex. K.) The Notice ordered that, pursuant to the USBC, the structure "must be repaired or demolished and removed within 10 days of the date of this notice." (Id. (referencing Va. Unif. Statewide Bldg. Code § 105.1).) The Notice went on to state that, per the USBC,
should you fail to repair or demolish and remove the structure[,] the City of Norfolk . . . will cause the structure to be demolished and removed by contract or arrangement with a private demolition contractor[, and t]he cost of demolition and removal shall be charged against the real estate upon which the structure is located and a lien shall be placed upon the real estate.(Id.) The Notice further pointed out that, pursuant to Section 106.5 of the USBC, Sinesi had the right to appeal to the Local Board of Building Code Appeals ("LBBCA") within fourteen days of service of the Notice. (Id.) Sinesi subsequently commenced the process of obtaining a demolition company to raze and remove the structure. (See Am. Compl. Exs. F, M.)
Freemason filed a "Petition for Temporary Injunction" against Sinesi on August 30, 2018, asking the Court to enjoin Sinesi from taking any actions to demolish Grandy House. The Court initially granted a fourteen-day temporary injunction—enjoining Sinesi from taking any steps to demolish Grandy House—to maintain the status quo while the parties arranged for a court hearing during which they both could appear. After a subsequent hearing, the Court ultimately denied the petition for a temporary injunction. (Oct. 10, 2018, Order (incorporating Oct. 10, 2018, Letter Opinion (Freemason St. Area Ass'n, Inc. v. City of Norfolk, 100 Va. Cir. 172 (2018)))). Sinesi later demolished Grandy House.
With leave of the Court, Freemason filed an Amended Complaint on April 12, 2019. Other homeowners in the Historic District also filed complaints, each of which is virtually identical to the Amended Complaint. Each of the complaints alleges counts of (1) a procedural due process violation, (2) a declaratory judgment that the City took a property interest without paying just compensation, (3) a 42 U.S.C. § 1983 violation, and (4) an equal protection violation. The Court consolidated the various suits on July 2, 2019. The City subsequently filed the Demurrer to Amended Complaint, and Defendants subsequently filed demurrers to the homeowner complaints. The Court held a hearing on the demurrers on August 14, 2019 (the "Hearing") after the parties had fully briefed the issue. At the conclusion of the Hearing, the Court took the matter under advisement. The parties subsequently filed post-Hearing briefs with leave of the Court.
Although the homeowner complaints list the City Building Commissioner and the City Attorney as defendants, none of Plaintiffs' counts appear to implicate them, and the requested relief does not mention them.
Positions of the Parties
The City's Position
The City asserts that all of Plaintiffs' claims must fail because Plaintiffs have not sufficiently alleged that they have a property interest in Grandy House. (Defs.' Br. Supp. Dem. Am. Compl. 7.) Specifically, the City contends that Plaintiffs failed to allege facts necessary to demonstrate the existence of a protective covenant or negative easement because Plaintiffs have not identified a deed or other legal writing that creates such a property interest. (Id. at 4.)
The City argues that Plaintiffs failed to adequately allege a procedural due process claim for four reasons. First, the City asserts that Plaintiffs have no property right in Grandy House that implicates procedural due process protections. (Id. at 8-9.) Second, the City contends that its approval of the Grandy House demolition permit does not deprive Plaintiffs of a property right and that neither the actions of the City Building Commissioner, in authorizing the demolition of Grandy House, nor the actions of the City Attorney, in changing his mind regarding whether the City would allow an untimely appeal of the demolition authorization, creates liability for Defendants under the Due Process Clause. (Id. at 9-11.) Third, the City points out that it provided "both actual notice and the opportunity to be heard" before demolition of Grandy House. (Dem. Am. Compl. ¶¶ 4-5.) In particular, the City provided written notice to Sinesi on August 14, 2018, and Freemason received actual notice of the planned demolition of Grandy House two days later. (Defs.' Br. Supp. Dem. Am. Compl. 11-12.) Plaintiffs then received an opportunity to voice their concerns about the demolition of Grandy House before this Court on September 19, 2018. (Dem. Am. Compl. ¶¶ 4-5; Defs.' Br. Supp. Dem. Am. Compl. 12.) Fourth, the City argues that Plaintiffs cannot challenge the City's application of the USBC because Plaintiffs failed to file an appeal with the LBBCA within fourteen days of receiving notice of the proposed demolition. (Defs.' Br. Supp. Dem. Am. Compl. 12-14.)
The City challenges Plaintiffs' inverse condemnation claim on three grounds. First, the City claims that Plaintiffs have not identified the purported protective covenant or negative easement that gives them a property right in Grandy House. (Id. at 14-15.) Second, the City contends that Plaintiffs have not alleged that the City deprived them of their purported property right in Grandy House for a public use, as required to succeed on an inverse condemnation claim. (Id. at 15-16.) And third, the City asserts that its decision to grant Sinesi a demolition permit is not a taking under condemnation law. (Id. at 16-17.)
The City argues that the Court should dismiss Freemason's 42 U.S.C. § 1983 claim because Plaintiffs have not identified a substantive constitutional right that the City violated and for which section 1983 provides a remedy. (Id. at 18.)
Finally, the City maintains that Plaintiffs fail to allege a prima facie equal protection claim because they fail to allege that they are similarly situated to Sinesi or that the City intentionally or purposefully discriminated against them. (Id. at 18-19.)
Plaintiffs' Position
Plaintiffs claim that they "are third party beneficiaries to a protective covenant for historic preservation of the Grandy House." (Am. Compl. 1.) They argue that the protective covenant, or negative easement, derives from the City's zoning ordinance and allows them "to object to any [Certificate of Appropriateness ("COA")] application for any use that is re-development and not preservation of the Grandy House." (Mem. Opp'n City's Dem. Am. Compl. 5.) Plaintiffs assert that this Court recognized this right in October 2018 by finding that Freemason was "an aggrieved party." (Id. at 4-5.) Additionally, Plaintiffs claim to have a vested right in Grandy House pursuant to section 15.2-2307 of the Code of Virginia because they made a substantial investment in their own homes "in reliance on [the] City's designation [of the West Freemason Section of Norfolk, Virginia] as a historic district." (Id. at 13.) According to Plaintiffs, the City violated their property right in Grandy House by not providing them an ARB hearing or notice of the USBC appeal period before allowing Sinesi to demolish Grandy House. (Id. at 6-8.) Plaintiffs also claim that the City's failure "to provide general notice by publication [of the Notice] to all aggrieved parties" violated the U.S. and Virginia Constitutions' due process requirements. (Id. at 9-10.)
Plaintiffs also opine that leases and implied contracts can create property rights but offer no explanation as to how those methods create a property right in Grandy House.
In addition to their procedural due process claim, Plaintiffs allege that the City "took and damaged" their "protective covenant, or negative easement, over the Grandy House" without just compensation, giving rise to an inverse condemnation claim. (Am. Compl. ¶¶ 98-101.)
Plaintiffs also maintain that they have a cognizable claim under 42 U.S.C. § 1983 because they are "beneficiaries of the protective covenant" (id. at 102-09), although they do not articulate the constitutional right they seek to vindicate under that statute (see Mem. Opp'n City's Dem. Am. Compl. 11-12).
Finally, Plaintiffs assert an equal protection claim, alleging that the City afforded Sinesi preferential treatment unavailable to other Historic District property owners or other Norfolk citizens. (Am. Compl. ¶¶ 110-12.)
Analysis
Legal Standard
A demurrer tests the legal sufficiency of the claims stated in the pleading challenged. Dray v. New Mkt. Poultry Prods., Inc., 258 Va. 187, 189, 518 S.E.2d 312, 312 (1999). On demurrer, the court must admit "the truth of all material facts properly pleaded, facts which are impliedly alleged, and facts which may be fairly and justly inferred from the alleged facts." Cox Cable Hampton Rds., Inc. v. City of Norfolk, 242 Va. 394, 397, 410 S.E.2d 652, 653 (1991). A demurrer does not admit the correctness of any conclusions of law, however. Ward's Equip., Inc. v. New Holland N. Am., Inc., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997).
Even if imperfect, a complaint drafted such that a defendant cannot mistake the true nature of the claim should withstand demurrer. CaterCorp, Inc., v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993). The court will not consider any factual assertions not included in the pleading being attacked, or its accompanying exhibits, for purposes of a demurrer. See id. at 24, 431 S.E.2d at 279. If a court sustains a demurrer, the court has discretion to allow leave to amend the complaint, and such leave "shall be liberally granted in furtherance of the ends of justice." Va. Sup. Ct. R. 1:8. It is within a court's discretion to deny a motion for leave to amend, however, when, for example, "the proffered amendments are legally futile." AGCS Marine Ins. Co. v. Arlington Cty., 293 Va. 469, 487, 800 S.E.2d 159, 169 (2017).
The City's zoning ordinance provides procedures to obtain a certificate of appropriateness for any development proposed within a historic district to ensure compatibility with the historic character of the district. Norfolk, Va., Zoning Ordinance § 2.4.10. The ordinance provides several conditions that are exempt from the COA requirements, including emergency demolition:
The emergency demolition of any structure or any portion of a structure which is in such a dangerous, hazardous or unsafe condition that it has been ordered demolished by the Building Commissioner or the Fire Marshal when they have
determined that such condition could reasonably be expected to cause death or serious physical harm. The Building Commissioner or Fire Marshal, as appropriate, shall notify the [Zoning Administrator] about the demolition of the structure and the [Zoning Administrator] shall notify the chairperson of the [ARB] and any other interested person as soon as practicable after such a determination has been made by the Building Commissioner or Fire Marshal.Id. § 2.4.10.B.(2)(c).
Section 105 of the USBC provides as follows:
This section shall apply to existing structures which are classified as unsafe or unfit for human occupancy. All conditions causing such structures to be classified as unsafe or unfit for human occupancy shall be remedied or as an alternative to correcting such conditions, the structure may be vacated and secured against public entry or razed and removed. . . . Notwithstanding the above, when the code official determines that an unsafe structure or a structure unfit for human occupancy constitutes such a hazard that it should be razed or removed, then the code official shall be permitted to order the demolition of such structures in accordance with applicable requirements of this code.Va. Unif. Statewide Bldg. Code § 105.1 (2012); see also Norfolk City Code § 11.1-1.1 (adopting the Va. Unif. Statewide Bldg. Code). Regarding required notice, the USBC provides, in pertinent part, as follows:
When a structure is determined to be unsafe or unfit for human occupancy by the code official, a written notice of unsafe structure or structure unfit for human occupancy shall be issued by personal service to the owner, the owner's agent or the person in control of such structure. The notice shall specify the corrections necessary to comply with this code, or if the structure is required to be demolished, the notice shall specify the time period within which the demolition must occur.Id. § 105.4.
The USBC further provides the following:
[W]henever an owner of an unsafe structure or structure unfit for human habitation fails to comply with a notice to demolish issued under Section 105.4 in the time period stipulated, the code official shall be permitted to cause the structure to be demolished. In accordance with . . . the Code of Virginia, the legal counsel of the locality may be requested to institute appropriate action against the property owner to recover the costs associated with any such emergency repairs or demolition and every such charge that remains unpaid shall constitute a lien against the property on which the emergency repairs or demolition were made . . . .Id. § 105.9. The Code section has a note that states, in pertinent part, that "historic building demolition may be prevented by authority granted to local historic review boards in accordance with . . . the Code of Virginia unless determined necessary by the code official." Id.
The USBC defines an "unsafe structure" as
[a]n existing structure (i) determined by the code official to be dangerous to the health, safety and welfare of the occupants of the structure or the public, (ii) that contains unsafe equipment, or (iii) that is so damaged, decayed, dilapidated, structurally unsafe or of such faulty construction or unstable foundation that partial or complete collapse is likely. A vacant existing structure unsecured or open shall be deemed to be an unsafe structure.Id. § 202. It defines a "structure unfit for human occupancy" as
[a]n existing structure determined by the code official to be dangerous to the health, safety and welfare of the occupants of the structure or the public because (i) of the degree to which the structure is in disrepair or lacks maintenance, ventilation, illumination, sanitary or heating facilities or other essential equipment, or (ii) the required plumbing and sanitary facilities are inoperable.Id.
Regarding rights of appeal, Section 106.5 of the USBC states the following:
Any person aggrieved by the local enforcing agency's application of this code or the refusal to grant a modification to the provisions of this code may appeal to the LBBCA. The applicant shall submit a written request for appeal to the LBBCA within 14 calendar days of the receipt of the decision being appealed. . . . The application shall be marked by the LBBCA to indicate the date received. Failure to submit an application for appeal within the time limit established by this section shall constitute acceptance of a code official's decision.Id. § 106.5.
"No State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. The Virginia Constitution similarly provides that "no person shall be deprived of his life, liberty, or property without due process of law." Va. Const. art. I, § 11.
A party may recover under an inverse condemnation theory when a government entity takes private property for public use. See, e.g., AGCS Marine Ins. Co. v. Arlington Cty., 293 Va. 469, 477, 800 S.E.2d 159, 163 (2017).
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law." 42 U.S.C. § 1983.
The Fourteenth Amendment guarantees that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.
Discussion
The Court has considered the pleadings, evidence and oral argument presented at the Hearing, and applicable authorities. The Court now rules as follows.
A. Plaintiffs Have Not Adequately Alleged that They Have a Protective Covenant or Negative Easement in Grandy House.
An easement gives the owner of one property a right "in or over the [property] of another person; by reason whereof the latter is obliged to suffer, or refrain from doing something on his own [property] for the advantage of the former." Amstutz v. Everett Jones Lumber Corp., 268 Va. 551, 559, 604 S.E.2d 437, 441 (2004) (quoting Stevenson v. Wallace, 68 Va. (27 Gratt.) 77, 87 (1876)). Affirmative easements "convey privileges on the part of one person or owner of land (the 'dominant tract') to use the land of another (the 'servient tract') in a particular manner or for a particular purpose." United States v. Blackman, 270 Va. 68, 76, 613 S.E.2d 442, 445 (2005). Negative easements, by contrast, "convey rights to demand that the owner of the servient tract refrain from certain otherwise permissible uses of his own land." Id. at 76, 613 S.E.2d at 445-46. "Negative easements . . . do not bestow upon the owner of the dominant tract the right to travel physically upon the servient tract." Id. at 76, 613 S.E.2d at 446. Rather, negative easements give "only the legal right to object to a use of the servient tract by its owner inconsistent with the terms of the easement." Id. As a result, "negative easements have been described as consisting solely of 'a veto power.'" Id. (quoting Prospect Dev. Co. v. Bershader, 258 Va. 75, 89, 515 S.E.2d 291, 299 (1999)).
Courts have classified both negative and affirmative easements "as either 'appurtenant' or 'in gross.'" Id. at 77. An easement appurtenant "has both a dominant and a servient tract and is capable of being transferred or inherited." Id. Easements appurtenant run with the land, such that "the benefit conveyed by or the duty owed under the easement passes with the ownership of the land to which it is appurtenant." Id. An easement in gross, on the other hand, "is not appurtenant to any estate in land" but rather has a benefit that runs to an individual. Id. (quoting Lester Coal Corp. v. Lester, 203 Va. 93, 97, 122 S.E.2d 901, 904 (2005)). Common law strongly disfavored easements in gross because "they were viewed as interfering with the free use of land." Id. Hence, "an easement is 'never presumed to be in gross when it [can] fairly be construed to be appurtenant to land.'" Id. at 77 (quoting French v. Williams, 82 Va. 462, 468, 4 S.E. 591, 594 (1886)). "For an easement to be treated as being in gross, the deed or other instrument granting the easement must plainly manifest that the parties so intended." Id. In other words, the court will not treat any easement as an easement in gross without a "deed or other instrument" that clearly conveys such an easement to an individual.
Parties may create an easement "by express grant or reservation, by implication, by estoppel or by prescription." Bunn v. Offutt, 216 Va. 681, 684, 222 S.E.2d 522, 525 (1976). To create an easement via express grant or reservation, the grantor must have a manifest intent to grant an easement to the grantee on the face of some legal instrument. See Corbett v. Ruben, 223 Va. 468, 471, 290 S.E.2d 847, 849 (1982) (citing Albert v. Holt, 137 Va. 5, 10, 119 S.E. 120, 122 (1923)). An implied easement exists "[w]hen a landowner conveys a portion of his land, [and] he impliedly conveys an easement for any use that is continuous, apparent, reasonably necessary for the enjoyment of the property conveyed, and in existence at the time of the conveyance." Stoney Creek Resort, Inc. v. Newman, 240 Va. 461, 466, 397 S.E.2d 878, 881 (1990) (quoting Brown v. Haley, 233 Va. 210, 218-19, 355 S.E.2d 563, 569 (1987)). An easement by estoppel arises when, for example, a land vendor makes actual or constructive representations "as to the existence of an easement appurtenant to the land sold to be enjoyed in land which the vendor has not sold." Walters v. Smith, 186 Va. 159, 172, 41 S.E.2d 617, 623 (1945). To establish a prescriptive easement over property owned by another, "the claimant must prove that his use of the [land] was adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owners of the land over which it passes, and that the use has continued for a period of at least 20 years." Pettus v. Keeling, 232 Va. 483, 485, 352 S.E.2d 321, 323 (1987). Because negative easements do not involve the use of another's land, see Blackman, 270 Va. at 76, 613 S.E.2d at 446, an individual cannot obtain a negative easement by prescription.
Restrictive covenants, like negative easements, "restrict the free use of land." See Sloan v. Johnson, 254 Va. 271, 274-75, 491 S.E.2d 725, 727 (1997). An enforceable restrictive covenant exists "upon proof of four distinct elements":
Plaintiffs assert that they "are third-party beneficiaries to a protective covenant for historic preservation of the Grandy House." They claim that the alleged protective covenant gives them the right "to object to any [Certificate of Appropriateness ("COA")] application for any use that is re-development and not preservation of the Grandy House." Like a restrictive covenant, the alleged protective covenant "restrict[s] the free use of land." The Court therefore uses the two terms interchangeably.
(1) an intent evidenced by the original covenanting parties in the document that the burdens and benefits of the covenant will run with the land;Beeren & Barry Investments, LLC v. AHC, Inc., 277 Va. 32, 37-38, 671 S.E.2d 147, 150 (2009). Additionally, the restrictive covenant must be memorialized in writing. Id. at 38, 671 S.E.2d at 151.
(2) privity between original parties to the covenant, commonly referred to as horizontal privity;
(3) privity between the original parties to the covenant and their successors in interests, commonly described as vertical privity; and
(4) the covenant must "touch and concern" the land.
Plaintiffs claim to own either a protective covenant or a negative easement over Grandy House that permits them to object to any use of the property other than historic preservation. They fail to adequately allege facts to support this claim, however. Plaintiffs do not allege that a written instrument grants them an easement by grant or reservation. They do not allege that they received an implied easement from a landowner who conveyed to them a portion of his or her land and, at that time, implied that Plaintiffs had the right to object to certain uses of Grandy House as "reasonably necessary for the enjoyment of the property conveyed." Plaintiffs do not allege that they have an easement by estoppel by virtue of representations made to them by a land vendor "as to the existence of an easement appurtenant to the land to be sold to be enjoyed in land which the vendor has not sold." And, for the reasons stated above, Plaintiffs cannot obtain a negative easement by prescription. Plaintiffs also do not adequately allege that they have a protective covenant in Grandy House because they do not allege that a written document grants them one.
Plaintiffs instead offer novel theories to argue they acquired a negative easement, protective covenant, or some other cognizable property right in Grandy House. None of these theories ultimately substantiate their conclusion.
Plaintiffs claim to have a vested right in Grandy House because they made a substantial investment—presumably by purchasing their houses—in reliance on the City's designation of the neighborhood as a historic district. The Supreme Court of Virginia has made it clear, however, that "mere reliance on a particular zoning classification, whether created by ordinance or variance, creates no vested right in the property owner." Hale v. Bd. of Zoning Appeals for the Town of Blacksburg, 277 Va. 250, 272, 673 S.E.2d 170, 181 (2009) (quoting City of Suffolk v. Bd. of Zoning Appeals for City of Suffolk, 266 Va. 137, 145, 580 S.E.2d 796, 799 (2003)).
Plaintiffs also claim that Norfolk's zoning ordinance gives them the right to object to any COA application for any redevelopment use—as opposed to preservation—of Grandy House. However, the zoning ordinance only provides Plaintiffs the right to appeal "[a] decision by the ARB on an application for a COA . . . by filing the appeal within 14 days after the final decision is rendered by the ARB." Norfolk, Va., Zoning Ordinance § 2.4.10(E). Nothing in the ordinance suggests that Plaintiffs somehow obtained a property right in Grandy House based on their ability to appeal an ARB decision.
Plaintiffs further claim that their status as aggrieved parties gives them a property interest in Grandy House. Although the Court previously found that Freemason was a "person aggrieved" under the USBC, that finding stemmed from the property interest the association members had in their own homes, not in Grandy House. (Oct. 10, 2018, Letter Op. 10.) Further, carried to its natural conclusion, Plaintiffs' argument would have the City identify all potentially aggrieved entities and send each of them a copy of the Notice. The Court declines to impose such a duty, which arguably could require omniscience, on the City.
This assumes, of course, that the City could determine the mailing address for each of these non-participating entities.
None of Plaintiffs' innovative theories creates the property right in Grandy House they claim to have. Plaintiffs therefore have failed to adequately allege that they have a protective covenant, a negative easement, or any other property right in Grandy House.
B. Plaintiffs Have Not Adequately Alleged a Due Process Violation.
The Fourteenth Amendment to the United States Constitution provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. The Virginia Constitution similarly provides that "no person shall be deprived of his life, liberty, or property without due process of law." Va. Const. art. I, § 11. "In procedural due process claims, the deprivation by state action of a constitutionally protected interest in 'life, liberty, or property' is not in itself, unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon v. Burch, 494 U.S. 113, 125 (1990).
A plaintiff asserting a procedural due process violation must satisfy three elements to recover. Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (2013). "First, he must demonstrate that he had a constitutionally cognizable life, liberty, or property interest. Second, he must show that the deprivation of that interest was caused by 'some form of state action.'" Id. (internal citations omitted). Third, he "must prove 'that the procedures employed were constitutionally inadequate.'" Id. (citing Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 145 (4th Cir. 2009)).
Plaintiffs have failed to adequately allege a due process violation by the City. As explained above, Plaintiffs have not adequately alleged that they have a property interest in Grandy House. Even if Plaintiffs possessed such a property interest, arguendo, the Court finds that the City employed constitutionally adequate procedures. Additionally, Plaintiffs had actual notice and the opportunity to be heard before Grandy House was demolished, and Plaintiffs failed to timely appeal the City's application of the USBC.
There is no allegation of a cognizable life or liberty interest. --------
C. Plaintiffs Have Not Adequately Alleged a Claim for Inverse Condemnation.
A party may recover under an inverse condemnation theory when a government entity takes private property for public use. See, e.g., AGCS Marine Ins. Co. v. Arlington Cty., 293 Va. 469, 477, 800 S.E.2d 159, 163 (2017). This for-public-use requirement serves as a "limitation on inverse condemnation claims." Id. at 480, 800 S.E.2d at 165. The Supreme Court of Virginia has made it clear that, in order to survive a demurrer on an inverse condemnation claim, a plaintiff's allegations must "satisf[y] the constitutional for-public-use prerequisite." Id. at 484-85, 800 S.E.2d at 168. It upheld a circuit court's decision sustaining a demurrer where the plaintiff's complaint did not "expressly allege[] or reasonably impl[y]" that a government entity damaged its property "for a public use." Id. at 485, 800 S.E.2d at 168. Simply put, to succeed on an inverse condemnation claim, a plaintiff must allege that the government took or damaged his private property for a public use.
Here, Plaintiffs' inverse condemnation claim fails for several reasons. First, as stated above, Plaintiffs have not adequately alleged that they have a property right in Grandy House. Second, even if they had cleared that hurdle, Plaintiffs fail to allege that the City took or damaged that property right for a public use. And third, the City's approval of a demolition permit is not normally a taking under condemnation law. See French v. Va. Marine Res. Comm'n, 64 Va. App. 226, 234, 767 S.E.2d 245, 250 (2015). Plaintiffs therefore have not adequately alleged a claim for inverse condemnation.
D. Plaintiffs Have Not Adequately Alleged a Claim Under 42 U.S.C. § 1983.
"Section 1983 'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To succeed on a § 1983 claim, the plaintiff therefore must first "identify the specific constitutional right allegedly infringed." Id.
Although Plaintiffs allege that they are beneficiaries of a protective covenant related to Grandy House, their section 1983 claim fails to identify the specific constitutional right that the City allegedly infringed. Standing alone, this count fails to sufficiently allege a claim under 42 U.S.C. § 1983. Although Plaintiffs allege that the City violated their rights to procedural due process and equal protection as part of other claims, they fail to adequately allege a constitutional violation on either of those grounds. Plaintiffs therefore have not adequately alleged a claim under 42 U.S.C. § 1983.
E. Plaintiffs Have Not Adequately Alleged an Equal Protection Violation.
The Fourteenth Amendment guarantees that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Equal protection prevents "governmental decisionmakers from treating differently persons who are in all relevant respects alike." Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). To succeed on an equal protection claim, a plaintiff "must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Veney v. Wyche, 293 F.3d 726, 730-31 (4th Cir. 2002) (quoting Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)). Once a plaintiff satisfies that requirement, "the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny." Morrison, 239 F.3d at 654. To succeed on an equal protection claim, a plaintiff must allege sufficient facts to satisfy both requirements. Veney, 293 F.3d at 731.
Plaintiffs allege that the City gave Sinesi preferential treatment that it denied to both other Historic District property owners and other Norfolk citizens. Plaintiffs make no factual allegations to support these conclusions of law, however. Instead, the Complaint contains only legal conclusions, and a demurrer does not admit the correctness of any legal conclusions. Ward's Equip., Inc. v. New Holland N. Am., Inc., 254 Va. 379, 382, 493 S.E.2d 516, 518. Even if the Court were to admit the correctness of Plaintiffs' legal conclusions, arguendo, Plaintiffs do not state a viable equal protection claim because they fail to allege that Sinesi's allegedly preferential treatment stemmed from intentional or purposeful discrimination. Plaintiffs therefore fail to adequately allege an equal protection claim because they have not alleged any facts to support such a claim.
Conclusion
Based on the foregoing reasons, the Court finds that Plaintiffs have failed to allege facts necessary to demonstrate a property interest in Grandy House or to support an equal protection claim. The Court therefore SUSTAINS the City of Norfolk's demurrer to the Amended Complaint and SUSTAINS Defendants' demurrers to the Complaints filed by Nicholas M. Cordovana, III, and Jennifer Cordovana; Albert L. Roper; Thomas W. McNeilan and Sally Anne McNeilan; Barbara and C. Harlee Pate; William D. McKeever, Jr., and Joyce S. McKeever; 424 West Bute Street, LLC; Stephen E. Sigmon and Vanessa L. Sigmon; and the Charles S. Murray Revocable Trust.
The Court notes that it previously granted Freemason leave to amend its complaint, and the Court believes that—under the circumstances—further amendment likely will prove futile. Nevertheless, the Court recognizes that leave to amend "shall be liberally granted in furtherance of the ends of justice." Va. Sup. Ct. R. 1:8. The Court grants Plaintiffs leave to amend their complaints within fourteen days.
Attached is an Order consistent with the ruling in this letter opinion.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/mrs
Enclosure VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK FREEMASON STREET AREA ASSOCIATION, INC., et al., Petitioner, v. CITY OF NORFOLK, et al., Respondent. Civil Docket Nos.: CL18-7735; CL19-5031/5032/5034/5035/5037/5038/5039/5041 ORDER
On August 14, 2019, the Court held a hearing on the "Demurrer to Amended Complaint" filed by the City of Norfolk based on the Amended Complaint filed by the Freemason Street Area Association, Inc. and the separate "Demurrer to Complaint" filed by Defendants the City, Richard Former, and Bernard Pishko based on the Complaints filed by Nicholas M. Cordovana, III, and Jennifer Cordovana; Albert L. Roper; Thomas W. McNeilan and Sally Anne McNeilan; Barbara and C. Harlee Pate; William D. McKeever, Jr., and Joyce S. McKeever; 424 West Bute Street, LLC; Stephen E. Sigmon and Vanessa L. Sigmon; and the Charles S. Murray Revocable Trust.
For the reasons stated in its October 21, 2019, Letter Opinion, the Court SUSTAINS the City of Norfolk's demurrer to the Amended Complaint and SUSTAINS Defendants' demurrers to the Complaints filed by the individual homeowners. The Court grants Plaintiffs leave to amend their complaints within fourteen days.
Endorsements are waived pursuant to Rule 1:13 of the Rules of the Supreme Court of Virginia. Any objections to this Order shall be filed within fourteen days. IT IS SO ORDERED this 21st day of October, 2019.
/s/_________
David W. Lannetti
Judge