Kitchen v. City of Newport News

• Decision Date: 29 February 2008
• Docket Number: Record No. 070322.
• Citation: 657 S.E.2d 132,275 Va. 378
• Parties: Robert KITCHEN, et al. v. CITY OF NEWPORT NEWS.
• Court: Virginia Supreme Court

657 S.E.2d 132

275 Va. 378

Robert KITCHEN, et al. v. CITY OF NEWPORT NEWS.

Record No. 070322.

Supreme Court of Virginia.

February 29, 2008.

Andrew M. Sacks (Stanley E. Sacks; Sacks & Sacks, on briefs), Norfolk, for appellants.

Allen L. Jackson, Chief Deputy City Attorney, for appellee.

Present: All the Justices.

OPINION BY Justice G. STEVEN AGEE.

Robert Kitchen¹ appeals from the judgment of the Circuit Court of the City of Newport News which sustained the demurrer of the City of Newport News (the City) to Kitchen's first amended motion for judgment (motion for judgment), which pled a claim for inverse condemnation.² The circuit court ruled that the motion for judgment "fails to state facts upon which the relief demanded can be granted," but also made "additional rulings in the event of an appeal."³ For the reasons set forth below, we will reverse the judgment of the circuit court.

I. Factual Background and Material Proceedings Below

On January 30, 2004, Kitchen filed the motion for judgment alleging the following as facts. On September 15-16, 1999, the City received heavy rains during Hurricane Floyd, resulting in flooding of the Brookside Subdivision, the Woodbridge Crossing Subdivision, and the Heatherwood Subdivision (collectively the "Subdivisions") within the City. In addition to the 1999 flooding from Hurricane Floyd, Kitchen alleged the Subdivisions "had been subjected to a series of frequent and regularly recurring flooding, inundations, and/or overflows of water as a direct result of prior governmental action." Kitchen also averred that the City "caused such frequent and regularly recurring flooding of and overflow onto [the Subdivisions]; culminated in the catastrophic flooding on September 15-16, 1999; and [has] continued to cause regularly recurring flooding of and overflows in and about the aforesaid lands and premises on occasions since and after September 15-16, 1999." (Emphasis in original.)

Kitchen further alleged that the sloping topography and elevation above the Subdivisions caused water to converge into a creek identified as Jones Run. This watercourse runs through and adjacent to the Subdivisions and carries watershed runoff flowing through them. Jones Run is connected to Jones Pond, a body of water in the vicinity of and downstream from the Subdivisions, via a 60-inch pipe. Water from Jones Pond ultimately flows into the Warwick River. Kitchen contended that the City knew that Jones Run was the "sole conduit" for conveying storm water to Jones Pond and that the existing 60-inch pipe was "wholly undersized to adequately and sufficiently drain the watershed which empties into and through [We Subdivisions] under normal and ordinary conditions and circumstances."

Kitchen alleged the "City-permitted development" of land above the Subdivisions "substantially, dramatically, and critically increased the amount of water flowing down from the watershed through Jones Run behind [the Subdivisions] and into the Jones Pond 60-inch pipe conveyance system." Continuing, Kitchen also alleged that "the City intentionally and/or with reckless disregard for and with deliberate indifference to, the rights of the citizens, including Plaintiffs, ignored their protests and developed the land upstream from [the Subdivisions], without an adequate drainage system." Kitchen further pled that the City had actual notice that when it permitted development of the land above the Subdivisions, that development would cause an increase in the down-stream flow of water through Jones Run and ultimately into the Subdivisions.

The motion for judgment stated that during the two days of rain from Hurricane Floyd on September 15-16, 1999, the Subdivisions "received, sustained, and were otherwise subject to substantial and inundating flooding, which flooding was far more profound and egregious than any other flooding caused by Hurricane Floyd in the City and in similarly situated [s]ub[d]ivisions." Kitchen alleged the "catastrophic overflowing and flooding of Jones Run" was the cause of "extensive, substantial, and devastating damage to and loss of ... lawfully owned real and personal property."

In Count I of the motion for judgment, Kitchen contended that the City's actions that resulted in the flooding effected a taking of private property without just compensation in violation of the Fifth Amendment of the United States Constitution, and sought damages under 42 U.S.C. § 1983. In Count II, Kitchen alleged a taking of property by the City without just compensation and sought "monetary compensation from the City under Article I, § 11 [of the Virginia Constitution] `upon an implied contract' that the City will pay Plaintiffs `such amount as would have been awarded if the property had been condemned under the eminent domain statute.'" (quoting from Burns v. Board of Supervisors, 218 Va. 625, 627, 238 S.E.2d 823, 825 (1977)). In Count III, Kitchen sought a declaratory judgment and requested damages for the alleged taking pursuant to Code § 8.01-187. Kitchen sought $20,000,000 in compensatory damages, including prejudgment and post-judgment interest.

The City responded by demurrer contending that the motion for judgment "fails to state a claim upon which relief can be granted." The City argued Count I should be dismissed because the federal takings claim was not ripe for consideration and because Kitchen failed to allege the deprivation of a federal right which was the result of a policy of the City. The City averred that Counts II and III should be dismissed because "an act of negligence committed by a government official may not form the basis for an action of inverse condemnation under state law." The City also argued Counts II and III should be dismissed because the alleged injuries for inverse condemnation "did not occur during the construction or operation of a public improvement" and that the exclusive remedy for inverse condemnation under state law is the procedure under Code § 8.01-187.

The circuit court considered the demurrer and other motions at a hearing on December 29, 2005, but did not rule at that time. Apparently another hearing was held on April 25, 2006, in which the court announced its ruling from the bench sustaining the demurrer and Kitchen moved for leave to amend his motion for judgment.⁴ The circuit court later denied that motion in its final order "in light of the length of time this matter has been pending and the number of opportunities already afforded to the Plaintiffs to plead and re-plead their claims."

On November 7, 2006, the court entered the final order in which the City's demurrer was sustained and the motion for judgment was dismissed with prejudice. The final order stated with respect to Counts I, II and III:

[A]s a matter of law, a single occurrence of temporary flooding fails to state a cause of action, and ... while the First Amended Motion for Judgment contains allegations of regularly recurring flooding, it fails to allege how frequently such flooding occurred; whether such flooding occurred in the same place and to the same extent as the flooding that occurred in September, 1999; whether all or only some of the same parcels of real estate were affected by the 'alleged previous flooding as were affected by the flooding that occurred in September, 1999; or whether the flooding which allegedly previously occurred was caused by the same mechanism as allegedly caused the flooding that occurred in September, 1999.

Accordingly, the Court further FINDS that the First Amended Motion for Judgment fails to state facts upon which the relief demanded can be granted.

The circuit court then made "additional rulings in the event of an appeal to and review by the Virginia Supreme Court." First, the court held with respect to Count I, that "a claim under the Fifth Amendment is not ripe for consideration."⁵ Second, the court ruled with respect to Count II, that "a claim for inverse condemnation ... under Article I, Section 11, of the Virginia Constitution ... fails to state a cause of action because [Code § 8.01-187] constitutes an inverse condemnation claimant's exclusive remedy against a municipal corporation." We awarded Kitchen this appeal.

II. Standard of Review

We have often stated the standard of review for a circuit court's judgment sustaining a demurrer:

Because appellate review of the sustaining of a demurrer involves a matter of law, we review the trial court's judgment de novo. In doing so, we are required to address the same issue that the trial court addressed, namely whether the ... motion for judgment alleged sufficient facts to constitute a foundation in law for the judgment sought, and not merely conclusions of law. To survive a challenge by demurrer, a pleading must be made with sufficient definiteness to enable the court to find the existence of a legal basis for its judgment. In other words, despite the liberality of presentation which the court will indulge, the motion must state a cause of action.

Hubbard v. Dresser, Inc., 271 Va. 117, 122-23, 624 S.E.2d 1, 4 (2006) (internal quotation marks and citations omitted). We have also explained:

A demurrer tests the legal sufficiency of a pleading and can be sustained if the pleading, considered in the light most favorable to the plaintiff, fails to state a valid cause of action. We consider as admitted the facts expressly alleged and those which fairly can be viewed as impliedly alleged or reasonably inferred from the facts alleged.

Welding, Inc. v. Bland County Serv. Auth., 261 Va. 218, 226, 541 S.E.2d 909, 914 (2001) (citation omitted). We apply these standards to our review of the circuit court's final order in the case at bar.

III. ANALYSIS

On appeal, Kitchen makes four assignments of error. First, he argues the circuit court erred in sustaining the demurrer because Counts I, II and III of the motion for judgment did state a cause of action for inverse condemnation. Separately, Kitchen contends the circuit...