Opinion
Civil Case No.: CL09-4055
07-10-2013
RE: James G. Close, Irene H. Close, Mary G. Houmis, and The Real Property Located at 227 York Street in the City of Norfolk, Virginia 23510; Tax Map Parcel No. 21176100 v. City of Norfolk
Joseph T. Waldo, Esq. Jeremy P. Hopkins, Esq. Stephen J. Clark, Esq. Waldo & Lyle, P.C. 301 W. Freemason Street Norfolk, VA 23510 Adam D. Melita, Esq. Norfolk City Attorney's Office 810 Union Street 900 City Hall Building Norfolk, VA 23510
COPY
KAREN J. BURRELL JUDGE Joseph T. Waldo, Esq.
Jeremy P. Hopkins, Esq.
Stephen J. Clark, Esq.
Waldo & Lyle, P.C.
301 W. Freemason Street
Norfolk, VA 23510 Adam D. Melita, Esq.
Norfolk City Attorney's Office
810 Union Street
900 City Hall Building
Norfolk, VA 23510 Dear Counsel:
This matter is before the Court for a final ruling on a petition for declaratory judgment. Upon consideration of the evidence and arguments presented at trial and applicable authority, the Court finds in favor of the City of Norfolk ("the City") and against James G. Close, Irene H. Close, and The Real Property Located at 227 York Street in the City of Norfolk, Virginia 23510 ("the Property") for the reasons that follow.
At the close of the petitioners' evidence, the Court granted the City's Motion to Strike as to plaintiff Mary G. Houmis for reasons stated on the record.
I. BACKGROUND AND PROCEDURAL HISTORY
At all times relevant, Mr. and Mrs. Close were and are owners of the Property. Mr. and Mrs. Close have owned and operated a business, the Monticello Antique Shop, Inc., in a building on the Property since 1982. The Property is located between Duke and Boush Streets, and the Property's sole frontage on a public right-of-way is its frontage on York Street. Public access to the building on the Property is available only via the building's two public entrances on the York Street frontage.
From October of 2007 through August of 2008, the City restricted access to York Street in connection with the start of construction of the Marriott Residence Inn, located at 227 West Brambleton Avenue. From July of 2008 through November of 2008, the City undertook an upgrade of the public sewage system. This upgrade required excavation beneath the surface of Duke Street and replacement of certain water and sewage pipes. To protect pedestrians and motorists, access to the site of the excavation was limited. Certain barriers were put in place, and the City closed the area to thru traffic.
The petitioners filed a Petition for Declaratory Judgment against the City on June 19, 2009. In their Petition, the petitioners moved for this Court to rule that the City's various restrictions on access to Duke and York Streets constituted an "unlawful taking and/or damaging of the Property without just compensation" and to subsequently impanel a jury for the purpose of determining and awarding just compensation for the alleged taking. (Pet. for Decl. J. at 5). The City demurred to the petition, and this Court sustained the demurrer in part and overruled it in part for the reasons stated in the Court's letter opinion of December 23, 2009. The petitioners filed an Amended Petition for Declaratory judgment on February 17, 2010. The City demurred to the amended petition, and this Court sustained the demurrer in part and overruled it in part for the reasons stated in the Court's letter opinion of April 12, 2011. The matter ultimately came before the Court for trial, and at the conclusion of the trial the Court took the matter under advisement. The Court now disposes of the matter as discussed in this letter opinion.
At trial, both parties revisited matters that the Court had already disposed of by means of its previous rulings and letter opinions in this case. As arguments related to such matters have been disregarded, they are not addressed in this letter opinion.
II. DISCUSSION
"Article I, Section 11 of the Constitution of Virginia confers on a property owner a right to just compensation from the government when the government takes or damages the owner's property for public use." Richmeade, L.P. v. City of Richmond, 267 Va. 598, 601, 594 S.E.2d 606, 608 (2004) (citing Va. Const. Art. 1, § 11; State Hwy. & Transp. Comm'r v. Linsly, 223 Va. 437, 443, 290 S.E.2d 834, 838 (1982); C. & O. Ry. Co. v. Ricks, 146 Va. 10, 18, 135 S.E. 685, 688 (1926)). The Supreme Court of Virginia "has consistently held that when the government failed to condemn private land taken for public purposes, the landowner's recourse was to file an action for inverse condemnation based on the implied contract between the government and the landowner." Id. A cause of action for inverse condemnation
is a specific type of proceeding based on a constitutionally created right connected to the "taking" or "damaging" of property by the government. To take or damage property in the constitutional sense does not require that the sovereign actually invade or disturb the property. Taking or damaging property in the constitutional sense means that the governmental action adversely affects the landowner's ability to exercise a right
connected to the property. [Bd. of Supervisors of] Prince William County v. Omni Homes, 253 Va. 59, 72, 481 S.E.2d 460, 467 (1997)[, overruled on other grounds as stated in Bd. Of Supervisors of Culpeper County v. Greengael, L.L.C., 271 Va. 266, 287 n.12, 626 S.E.2d 357, 369 n.12 (2006)]; City of Lynchburg v. Peters, 156 Va. 40, 48-49, 157 S.E. 769, 772 (1931); Lambert v. City of Norfolk, 108 Va. 259, 265, 61 S.E. 776, 778 (1908). Thus, an action for inverse condemnation is an action seeking redress for the government's action in limiting property rights the landowner holds. In that regard, the act giving rise to the [claim] is not an act aimed at the property, but rather an act that limits the landowner's ability to exercise his property rights without paying the landowner for that limitation.Kitchen v. City of Newport News, 275 Va. 378, 386, 657 S.E.2d 132, 136-37 (2008). To prevail on a claim for inverse condemnation, then, a petitioner must establish that: "1.) She owns private property or has some private property right, 2.) The property or a right connected to that property has been taken or damaged by the government or a body with condemnation authority, 3.) The taking or damaging was for "public use," and 4.) The government or condemning authority failed to pay just compensation." Close v. City of Norfolk, 82 Va. Cir. 636, 640 (2009).
It was sufficiently shown at trial - and the City did not contest - that the public works-related action alleged to be a taking in this case was for a public use and that the City did not pay compensation for such action. Thus, only two of the four inverse condemnation elements are presently at issue: 1.) the nature of the Closes' private property rights, and 2.) whether any such rights were taken or damaged by the City.
1. The Nature of the Closes' Private Property Rights
As abutters of a public right of way, the Closes have a common law "right of ingress and egress, into and from [their] lot." Nusbaum, 151 Va. at 805. It is not possible to access the Property by motor vehicle from York Street - the only public right of way that the Property abuts; the only means of ingress and egress require passage across a sidewalk. Both the Virginia Code and the Code of the City of Norfolk forbid operation of motor vehicles on sidewalks, Va. Code § 46.2-903 (2002); Norfolk, Va., Code §§ 25-174 to -175 (1958), while pedestrians may not walk in the street when sidewalks are available. Va. Code § 46.2-928 (1989). Thus, the Closes' common law right to access the Property is properly expressed as a right to pass on foot from the York Street sidewalk onto the Property, or from the street itself onto the property in the event the sidewalk is not passable. See id.
During the course of trial, various parties claimed that the City's barriers and traffic restrictions made it difficult to access the Property by motor vehicle during the course of the City's public works project. In light of the nature of the Closes' common law right of access, however, any motor vehicle-related issues in this care are relevant only as factors in gauging the degree to which the City's public works project made it more difficult to approach the sidewalk in front of the Property. See id.; see also State Highway Comm'r v. Howard, 213 Va. 731, 732 (1973) ("[An] abutter has no property right in the continuance or maintenance of the flow of traffic past his property.").
Certain parties also testified at trial about the availability of access to the Cavalier Land parking lot, which is adjacent to the Property, but not owned by the Closes. Mr. Close testified that he and his employees had permission to park in this lot and to travel across it to access a private back entrance to the building located on the Property. The Closes failed to show, however, that this permission was anything more than a mere revocable license. As such, any rights the Closes had with respect to the Cavalier Land lot are not properly the subject of an eminent domain action. See Mulford v. Walnut Hill Farm Grp., LLC, 282 Va. 98, 112 (2011) ("It is well-established that the party who claims an easement bears the burden of proving the fact."); 7A M.J. Eminent Domain § 36 (2012) ("[S]ince a license is generally revocable at will, the owner of such a privilege has no remedy for an invasion of his rights."), citing Potomac Elec. Power Co. v. Fugate, 211 Va. 745 (1971) and United States v. 180.37 Acres of Land, 254 F. Supp. 209 (W.D. Va. 1966), rev'd on other grounds sub nom. United States v. Atomic Fuel Coal Co., 383 F.2d 1 (4th Cir. 1967).
Even if this license could be the subject of a takings claim, the Court finds that the Closes never lost access to the parking lot altogether, only that access was sometimes limited by movable barriers on Duke Street, or that the curb cuts into the lot were temporarily blocked by third party equipment or closed for repaving. In any event, the Court further finds that the Closes and their employee could have, and did, park elsewhere in the area when necessary and walk short distances to the Property on foot. Also, the public York Street parking garage, which is located a short distance from the Property, was open and even free to public use during the pendency of the City's project.
2. Impact on the Closes' Private Property Rights
The foregoing analysis narrows the question at hand to the following: did the Closes show that the City's action unreasonably limited the Closes' ability to access the Property from the York Street sidewalk? The Court concludes that the Closes did not make such a showing.
A stated previously, an "abutter has the right to use the street as one of the public, and he as such has the private right of ingress and egress, into and from his lot." Nusbaum v. City of Norfolk, 151 Va. 801, 805 (1928). "The right to access one's property" by means of such implied "easement[s] of ingress and egress, is a fundamental (not consequential) property right." Close v. City of Norfolk, 2011 Va. Cir. LEXIS 101, at *22 (2011). The right is private, "and any infringement thereon may be the subject of suits in the courts." Nusbaum, 151 Va. at 805.
Note that the recent amendment to Article I, Section 11 of Virginia's constitution does not apply in this case. "A constitutional provision cannot be given a retroactive operation unless that is the unmistakable intention of the words used, or the obvious design of the authors." Arey v. Lindsey, 103 Va. 250, 252 (1904), cited in Culpeper v. Virginia Elec. & Power Co., 215 Va. 189, 196 (1974); see Va. Code § 1-4 (1971). Amendments may also be given retroactive effect at the option of the party to be adversely affected by the amendment. Taylor v. Virginia, 44 Va. App. 179, 188 (2004). In the instant case, nothing in the plain language of the amendment nor the amendment's legislative history manifests an intent that the amendment be given retroactive effect. See House and Senate Comm.'s on Privileges & Elections, Explanation for Proposed Constitutional Amendment to be Voted on at the November 6, 2012 Election (April 18, 2012), available at: http://www.sbe.virginia.gov/FiIes/Cast%20Your%20Ballot/Candidate%20List/201211ConstitutionalAmendmentBillofRights.pdf; see also Va. Code § 1-4; see S. Res. 240, 2012 Sess. (Va. 2012). Nor has the City indicated that it is willing to have the amendment apply. As such, the amendment is of no moment in the instant case. Va. Code § 1-4; Arey, 103 Va. at 253-54.
Not every infringement constitutes a compensable taking, however. "A landowner is only entitled to reasonable access to his property." Close, 82 Va. Cir. at 645 (collecting cases). "An abutting landowner's right of access to a public road is subordinate to the police power of the state reasonably to control the use of streets so as to promote the public health, safety, and welfare." State Highway Comm'r v. Easley, 215 Va. 197, 203 (1974). "[T]he owner of property abutting a public road has no right to compensation when the state, in the exercise of its police powers, reasonably regulates the flow of traffic on the highway." Id. As such, "a partial reduction or limitation of a direct access easement in the interest of public safety is a non-compensable exercise of a legislature's police power," while unreasonable reduction or limitation of an access easement is a compensable taking or damaging. Close, 82 Va. Cir. at 646, citing State Highway & Trans. Comm'r v. Lanier Farm, Inc., 233 Va. 506, 510 (1987). "Judicial precedent in Virginia holds that in an action for inverse condemnation, the challenger of an action of a body with condemnation power has the burden of proving that the action taken was unreasonable and therefore a taking or damaging." Id. at *637. In the instant case, the Closes have not carried their burden of proving that the City took any unreasonable action with regard to the Property or any right associated therewith.
The Court finds that the City did not interfere unreasonably with the Closes' right to access the Property from the York Street sidewalk. As confirmed by Norfolk right-of-way administrator Freda Burns, the City neither mandated nor tolerated closure of the sidewalk in front of the Property. David Colonna, a longtime employee of the Closes', was able to access the Property on foot at all times while the City's public works project was ongoing, as could the mail carrier who serviced the property. Tammy Gilliken, the city right-of-way employee responsible for the project site, Donald Ewell, the civil engineer in charge of the excavation, and Howard Condree, project superintendent for the Clancey & Theys hotel construction, all found the sidewalk in front of the Property to be clear and passable during the course of the project - and all regularly used this sidewalk to visit the on-site office of Clancy & Theys, which was located next door to the Property. Ewell and his assistant also used the sidewalk to visit the Closes themselves on a weekly basis. Furthermore, the Closes produced no documentary evidence showing the sidewalk's being blocked as a result of action by the City. Condree confirmed that in the one photographic exhibit showing partial blockage of the sidewalk, the offending section of chain-link fencing belonged to Clancy & Theys, should not have been where it was, and must have been placed in error. (Pl.'s Ex. 11).
This case is complicated by the fact that at certain times, the construction firm of Clancy & Theys erected their own barriers and arranged for their own closures of Duke and York Streets in connection with the Marriot Residence Inn construction project. Other contractors working on projects related to construction of Norfolk's light rail system were also active in the area and put still other barriers in place.
Charles Bashara - a repeat customer of the Closes - Mr. Close, and Colonna testified that passage along York Street sidewalk was sometimes made difficult by the presence of barriers or debris. The Closes, however, failed to persuade the Court that any such impediments were put in place by the City, as opposed to Clancy & Theys or some other third-party contractor working at a nearby site. On multiple occasions Clancy & Theys had to be asked to move wayward signs, vehicles, and debris. High winds and third-party members of the public passing through the excavation site after hours also regularly rearranged barricades, blocking access to areas that should have been kept open. There was no credible evidence adduced to show that whatever blockages Bashara, Mr. Close and Colonna encountered were put in place by the City as opposed to natural forces or by third parties. In light of the foregoing, the Closes have not shown that the City unreasonably limited the Closes' ability to access the Property from the York Street sidewalk.
Mr. Close also testified that his daughter, Zoe, was denied vehicular access to the area surrounding the excavation on certain occasions, but did not state whether Zoe subsequently attempted to access the Property on foot. --------
The Court further finds that the City did not interfere unreasonably with the Closes' ability to access the Property from the street if and when the sidewalk in front of the Property was blocked. While Mr. Close testified that the City placed low, interlocking barriers between the York Street sidewalk and York Street itself, the evidence did not show and the Court does not find that the sidewalk was ever blocked at the same time the City barriers were in place (as opposed to barriers placed in the same location by Clancey & Theys), that the barriers ran the full distance of the Property's frontage on York Street, that the barriers would not have been moved to accommodate the Closes had such movement been requested, that placement of the barriers between the street and sidewalk was unreasonable in light of the excavation work being done in connection with the City's public works project, or that there were no other means of accessing the property requiring minimal circumnavigation. In fact, far from revealing unreasonable interference by the City, the evidence showed that parties were able to reach the Property at all times during the course of the City's project, and that city employees attempted to accommodate the Closes as much as possible, e.g. by visiting with them and assisting the them and their clients when items needed to be brought into or out of the Closes' store or loaded onto clients' vehicles.
Finally, the Court finds that the City's limitations on vehicular access to the area near the Property did not interfere unreasonably with the Closes' right to access the Property. Rather, the evidence clearly showed a need for traffic limitations in light of the major excavations and construction taking place near the Property, and suggested that the limitations ultimately put in place were eminently reasonable in light of the nature and magnitude of the City's project. Testimony given by Mr. Close, Colonna, and Bashara showed merely that those wishing to drive or park near the Property sometimes had to negotiate barriers or speak to city employees beforehand. While such action may have been inconvenient, the City's limitation on access was not unreasonable in light of the hazardous nature of the excavation and pipe installation taking place on Duke Street. Further, it was shown that those wishing to access the Property could park for free at the York Street Parking Lot or elsewhere in the vicinity and walk the short distance to the building on the Property housing the Closes' business. Again, such action may have been less convenient than simply pulling up and parking in front of the Property, but requirement of the more circuitous route certainly was not unreasonable in light of the importance of the City's public works project and the danger of the open excavations.
Any inconvenience the Closes suffered in this case, then, is ultimately attributable either to action taken by third parties or to the City's reasonable restrictions on access to the project site. Neither kind of inconvenience is compensable in an action for inverse condemnation. Action by unauthorized non-government actors, of course, cannot be the subject of an inverse condemnation action, see 2A-7 Nichols on Eminent Domain § 7.05 (2012), nor can reasonable restrictions on traffic in the interest of public safety. State Highway Comm'r v. Easley, 215 Va. at 203.
The Court has sympathy for the Closes. Indisputably, the Closes and their customers were inconvenienced as a result of the City's public works project and the other construction projects taking place in the vicinity of the Property. This Court is bound, however, by the Supreme Court of Virginia's holding in Wood v. City of Richmond:
[A]n abutter has an easement in the public road which amounts to a property right but . . . the exercise of this right is subordinate to the right of the municipality, derived by legislative authority, to control the use of the streets as to promote the safety, comfort, health, and general welfare of the public. . . . [E]very property owner is bound to so use and enjoy his own as not to interfere with the general welfare of the community in which he lives. It is the enforcement of this duty which pertains to the police power of the State, so far as the exercise of that power affects private property. Whatever restraints the legislature imposes upon the use and enjoyment of property within the reason and principle of this duty, the owner must submit to, and for any inconvenience or loss which he sustains thereby he is without remedy. It is a regulation and not a taking, an exercise of police power, not of eminent domain.148 Va. 400, 407 (1927), quoted in Close v. City of Norfolk, 82 Va. Cir. 636, 643 (2009) (internal citations and quotation marks omitted). The City's excavation and subsequent limitation of access to the area around the excavation site came within the purview City's police power. Norfolk Charter § 2(11) (2010) (granting the City the power to construct and maintain sewer systems); Concerned Residents of Gloucester County v. Gloucester County Board of Supervisors, 248 Va. 488, 493 (1994) (stating that upkeep of a sewer system is within the police powers of a locality); Tidewater Ass'n of Homebuilders, Inc., et al. v. City of Virginia Beach, 241 Va. 114, 118 (1991) (identifying maintenance of a locality's water system as a proper exercise of the police power); Weber City Sanitation Commission v. Craft, 196 Va. 1140, 1149 (1955) (same); Town of Clifton Forge v. Alleghany Bank, 92 Va. 283, 286 (1895) (same). Because the City did nothing illegal or unreasonable during the course of the project, any incidental damages suffered by those in the vicinity of the project are damnum absque injuria. Id.; see Meyer v. Richmond, 172 U.S. 82, 95 (1896) (holding that while a property owner may suffer inconvenience as a result of lawful state action, that inconvenience does not always constitute a compensable injury); State Highway & Trans. Comm'r v. Lanier Farm, Inc., 233 Va. 506, 510 (1987) ("A mere partial reduction or limitation of an abutting landowner's rights of direct access, imposed by governmental authority in the interest of traffic control and public safety, constitutes a valid exercise of the police power and is not compensable in condemnation proceedings."); State Highway Comm'r v. Howard, 213 Va. 731, 732 (1973) ("Circuity of route imposed upon the abutter, resulting from the exercise of police power in the regulation of traffic is an incidental result of a lawful act. It is not the taking or damaging of a property right."). As many courts have recognized:
The highway is continually being dug up for . . . sewers, gas mains, repairs and the like. The inconvenience and damage which a property owner suffers from these temporary obstructions are incident to city life and must be endured. The law gives him no right to relief, recognizing that he recoups his damage in the benefit which he shares with the general public in the ultimate improvement which is being made.Meyers v. District of Columbia, 17 F.R.D. 216, 219 (D.D.C. 1955), quoting Farrell v. Rose, 253 N.Y. 73, 76 (1930); see Michael A. DiSabatino, Annotation, Damages Resulting from Temporary Conditions Incident to Public Improvements or Repairs as Compensable Taking, 23 A.L.R. 4th 674 § 7 (2009) (collecting cases denying recovery to parties complaining of "lack of access to their property during sewer or water facility installation"); see also 2-5 Nichols on Eminent Domain § 5.07(2)(c)(i) (2012), quoting Weir v. Palm Beach Cnty., 85 So. 2d 865, 869 (Fla. 1956) ("[O]ne who acquires property abutting a public way acquires it subject and subordinate to the right of the public to have the way improved to meet the public need.").
III. CONCLUSION
The evidence adduced at trial shows no unreasonable action on the part of the City, nor an unreasonable interference with the Closes' right to access the Property. To the contrary, the Court is persuaded that the City's limitation of access to the Property was eminently reasonable both in scope and duration. As such, the Court finds in favor of the City and dismisses the petition at bar.
The Court thanks counsel for their patience in awaiting receipt of this ruling. Counsel for the City is directed to prepare and circulate an order consistent with this opinion and submit it to the Court for entry.
Sincerely,
/s/
Karen J. Burrell
Circuit Court Judge KJB/dyl