Freemason St. Area Ass'n v. City of Norfolk, Docket No.: CL18-7735
| Decision Date | 21 October 2019 |
| Docket Number | Docket No.: CL19-5034,Docket No.: CL18-7735,Docket No.: CL19-5035,Docket No.: CL19-5039,Docket No.: CL19-5037,Docket No.: CL19-5031,Docket No.: CL19-5041,Docket No.: CL19-5032,Docket No.: CL19-5038 |
| Court | Circuit Court of Virginia |
| Parties | 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
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.1 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"2), 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 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.
Grandy House was built in or about 1901 in the West Freemason Section of Norfolk, Virginia. The City of Norfolk established the West Freemason Historic District (the "Historic District") in 1977, and Grandy House contributed to the Historic District. 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.
On December 16, 2016, an arsonist set the house on fire, extensively damaging the porch structure and the building interior. Due to the damage, the City issued multiple citations to Sinesi, which required that he make certain repairs or improvements to Grandy House. 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. ( 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."4
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,5 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]hefirst 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.)
Based on the Report, the City Building Commissioner forwarded a memorandum to the City Zoning Administrator that same day. 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.'" 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.)
(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.
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 anysteps 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, 2019.6 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.
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...
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