Close v. City of Norfolk's Demurrer

• Decision Date: 23 December 2009
• Docket Number: Civil Docket No.: CL09-4055
• Court: Circuit Court of Virginia
• Parties: 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: City of Norfolk's Demurrer

RE: James G. Close, Irene H. Close, Mary G. Houmis, and The Real PropertyLocated at 227 York Street in the City of Norfolk, Virginia 23510; Tax Map Parcel No. 21176100 v. City of Norfolk: City of Norfolk's Demurrer

Civil Docket No.: CL09-4055

FOURTH JUDICIAL CIRCUIT OF VIRGINIA CIRCUIT COURT OF THE CITY OF NORFOLK

December 23, 2009

KAREN J. BURRELL JUDGE

Adam D. Melita, Esq.

Norfolk City Attorney's Office

810 Union Street

900 City Hall Building

Norfolk, VA 23510

Joseph T. Waldo, Esq.

Joshua E. Baker, Esq.

Waldo & Lyle, P.C.

301 W. Freemason Street

Norfolk, VA 23510

Dear Counsel:

This matter came before the Court on October 5, 2009 on the City of Norfolk's ("Respondent's") Demurrer to the Petition for Declaratory Judgment filed on behalf of Mr. James G. Close, Ms. Irene H. Close, Ms. Mary G. Houmis, and the real property located at 227 W. York St. in the City of Norfolk, Virginia 23510, Tax Map Parcel No. 21176100 ("Petitioners"). Having considered the parties' pleadings, oral and written arguments, the transcript, and the official record, the Court finds that Respondent's Demurrer should be sustained in part and overruled in part.

The primary question presented to the Court is whether Petitioners state a valid claim for inverse condemnation in their Petition for Declaratory Judgment. This question breaks down into three disputed issues: 1.) Whether Petitioners properly alleged ownership of private property for the purpose of an inverse condemnation claim, 2.) Whether Petitioners allege a taking or damaging of their property, and 3.) Whether Petitioners allege that Respondent's taking or damaging was done for public uses. As explained below, while Petitioners successfully allege sufficient facts to meet the "ownership of private property" and "taken or damaged" requirements of a claim for inverse condemnation, they fail to allege that the taking or damaging on York Street was for public uses. Therefore, Petitioners do not state an actionable inverse condemnation claim with respect to Respondent's actions on York Street, and this Court sustains Respondent's Demurrer with respect to the claims regarding the restrictions on York Street.

Conversely, Petitioners do state a valid claim for inverse condemnation to the extent that Respondent's closure of Duke Street damaged Petitioners' easement for ingress and egress to Petitioners' property on York Street. 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. Precedent also holds that a pleader need not descend into details of proof in order to withstand a demurrer. At this stage of the proceedings, Petitioners have alleged that Respondent's closure of Duke Street prevented reasonable access to their property on York Street. In this allegation, Petitioners essentially claim that Respondent's actions were unreasonable and not an exercise of police power, and that their property was "taken or damaged." Since Petitioners need not descend into details of proof in their initial pleading, the allegation satisfies the "taken or damaged" requirement of an inverse condemnation claim for the purpose of withstanding a demurrer. Petitioners also claim that the closure of Duke Street, and hence, the damaging of their easement, was for a public use, road maintenance, and therefore Petitioners do state a valid claim for inverse condemnation with respect to the Duke Street closure. As a result, this Court overrules Respondent's Demurrer with respect to Petitioners' claim that Respondent inversely condemned Petitioners' property through its restrictions of Duke Street.

I. STANDARD OF REVIEW FOR A DEMURRER

In considering a demurrer, a court does not "evaluate and decide the merits of a claim; [a demurrer] only tests the sufficiency of factual allegations to determine whether the motion for judgment states a cause of action." Fun v. VMI, 245 Va. 249, 252, 427 S.E.2d 181, 183 (1993). A demurrer "admits the truth of all material facts that are properly pleaded, facts which are impliedly alleged, and facts which may be fairly and justly inferred from alleged facts." Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 129, 523 S.E.2d 826, 829 (2000) (quoting Cox Cable Hampton Roads. Inc. v. Norfolk, 242 Va. 394, 397, 410 S.E.2d 652, 653 (1991)). A demurrer does not, however, "admit the correctness of the pleader's conclusions of law." Fox v. Custis, 236 Va. 69, 71, 372 S.E.2d 373, 374 (1988) (citation omitted). A court considering a demurrer may rely on "substantive allegations of the pleading attacked [and] any accompanying exhibit mentioned in the pleadings," Flippo v. F & L Land Co., 241 Va. 15, 17, 400 S.E.2d 156, 156 (1991) (citing Va. Sup. Ct. Rule 1:4(i)), and it "may ignore a party's factual allegations contradicted by the terms of authentic, unambiguous documents that properly are a part of the pleadings." Ward's Equipment, Inc. v. New Holland North America, Inc., 254 Va. 379, 382-83, 493 S.E.2d 516, 518 (1997) (citing Fun, 245 Va. at 253, 427 S.E.2d at 183).

Additionally, "[w]hen a . . . complaint contains sufficient allegations of material facts to inform a defendant of the nature and character of the claim, it is unnecessary for the pleader to descend into statements giving details of proof in order to withstand demurrer." CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993) (citation omitted). The Supreme Court of Virginia stated further that "even though a . . . complaint may be imperfect, when it is drafted so that defendant cannot mistake the true nature of the claim, the trial court should overrule the demurrer. Id. (citation omitted).

Therefore, in considering Respondent's Demurrer, the Court accepts as true the material facts properly pleaded in, impliedly alleged in, and fairly and justly inferred from Petitioners' Petition for Declaratory Judgment, as set forth below in Part II.

II. BACKGROUND

At all times relevant, Petitioner Mary G. Houmis owned and owns the real property ("the Property") located at 227 York St., Norfolk, VA 23510, and Petitioners James G. Close and Irene H. Close ("the Closes") "were and are the long-term tenants of the Property." (Pet. for Decl. J. ¶¶ 1, 2 [hereinafter "Pet."].) The Close Petitioners have owned and operated a business, the Monticello Antique Shop, Inc., in a building on the Property since 1982. (Id. at ¶ 6.)

The Property is located between Duke and Boush Streets, and it has frontage on York Street. (Id.) Public access to the Property is available only through York St., and public access to the Monticello Antique Shop, Inc. is available only through the store's two entrances on the York Street frontage. (Id. at ¶ 7.) The Property "possesses an easement for ingress and egress to York Street" because its frontage on York Street is the Property's sole frontage on a public right-of-way. (Id. at ¶¶ 17, 18.)

Beginning in October of 2007, Respondent started to restrict access to York Street in order "to accommodate the construction of the Marriott Residence Inn, located at 227 West Brambleton Avenue. (Id. at ¶ 8.) Respondent "fenced off one lane of York Street between the exit of the York Street Parking Garage and the intersection with Duke Street, including the section of York Street on which the Property has frontage." (Id.) Increasingly, Respondent "closed York Street to all vehicular traffic on an intermittent basis," and Respondent's actions also eliminated the parking spaces on York Street that were in front of the Property. (Id. at ¶ 9.) These conditions lasted from October 2007 through August 2008, a period of about ten (10) months, during which Respondent "intermittently closed, re-opened, and closed [York Street] to vehicular traffic, such that reasonable public access was not afforded to the Property." (Id. at ¶ 10. ) In other words, Respondent "denied all reasonable access to the Property" during this time. (Id. at ¶ 19.)

Beginning in August of 2008 and lasting through May of 2009, a period of nine (9) months, Respondent "closed York Street between the York Street parking garage and Duke Street to all public vehicular traffic, such that no access was afforded to the property." (Id. at ¶ 11. ) Respondent also built "a construction barrier along the sidewalk in front of the Property" during this time, and this further denied "reasonable access to the property." (Id. at ¶ 12.) These actions "prevented all public access to the Property" (id. at ¶ 16), and "all access to the Property" (id. at ¶ 19).

Beginning in July of 2008, Respondent "closed Duke Street to all vehicular traffic at its intersection with Bute Street and York Street, west and south of the Property." (Id. at ¶ 13.) This prevented reasonable access to the Property, and this condition lasted until November of 2008, a period of four (4) months. (Id. at ¶¶ 13, 15.) Respondent closed Duke Street "for the purpose of the construction and/or reparation of public utilities." (Id. at ¶ 14.)

III. 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 Highway & Tramp. Comm'r v. Linsly, 223 Va. 437, 443, 290 S.E.2d 834, 838 (1982); Chesapeake & Ohio 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

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