Livingston v. Va. Dep't of Transp.

• Decision Date: 07 June 2012
• Docket Number: Record No. 101006.
• Citation: 726 S.E.2d 264
• Court: Virginia Supreme Court
• Parties: Geoff LIVINGSTON, et al. v. VIRGINIA DEPARTMENT OF TRANSPORTATION.

726 S.E.2d 264

Geoff LIVINGSTON, et al.

v.VIRGINIA DEPARTMENT OF TRANSPORTATION.

Record No. 101006.

Supreme Court of Virginia.

June 7, 2012.

Robert J. Cynkar (Christopher I. Kachouroff; Lake Ridge, Daniel C. Levin; Cuneo, Gilbert & LaDuca; Levin, Fishbein, Sedran & Berman; Dominion Law Center, on briefs), for appellants.

E. Duncan Getchell, Jr., Solicitor General (Kenneth T. Cuccinelli, II, Attorney General; Jo Anne P. Maxwell, Senior Assistant Attorney General; Nancy C. Auth, Senior Assistant Attorney General; Christopher D. Eib, Senior Assistant Attorney General; Jeffrey A. Huber; Scott D. Helsel; Walton & Adams, Reston, on brief), for appellee.

Present: All the Justices.

Opinion by Justice LEROY F. MILLETTE, JR.

Geoff Livingston and 134 other homeowners or renters (collectively Plaintiffs) in Fairfax County's (County) Huntington subdivision brought this inverse condemnation suit against the County and the Virginia Department of Transportation (VDOT) after their homes were flooded during a severe storm in the summer of 2006. The circuit court dismissed the suit on demurrer, holding in relevant part that a single occurrence of flooding cannot support an inverse condemnation claim under Article I, Section 11 of the Constitution of Virginia. We disagree and reverse.

I.

A.

Because this case arises from a demurrer, we recite the facts as they are alleged in the Plaintiffs' second amended complaint. Station # 2, LLC v. Lynch, 280 Va. 166, 169, 695 S.E.2d 537, 539 (2010). On June 25, 2006, the Plaintiffs were homeowners or renters in Huntington, which is located along the southern bank of Cameron Run, a tributary stream of the Potomac River, near the County's border with the City of Alexandria. That evening, a storm produced “long periods of precipitation with high intensity downpours,” causing significant flooding. In less than two hours, the flow depth of Cameron Run increased from just under 2 feet to almost 14 feet. The storm created the second-highest water flow in the channel since 1953.¹

The floodwaters, blocked on the north by the concrete mass of the Capital Beltway, overwhelmed the southern bank of Cameron Run and engulfed much of Huntington. Floodwater backed up through storm and sanitary sewers and filled the basements of many of the Plaintiffs' homes with sewage-laced water. The flood damaged the Plaintiffs' homes and personal property.

The Plaintiffs allege that the June 2006 flood was caused by the acts or omissions of the County and VDOT. During its construction of the Beltway in the early 1960s, VDOT's predecessor, the Virginia Department of Highways, straightened a curved section of Cameron Run and relocated it roughly 1,150 feet closer to Huntington.² The straightening and relocation reduced Cameron Run to 38% of its natural width.

VDOT built the Beltway to the immediate north of the relocated Cameron Run. To create a base for the Beltway in what had been a marsh and wetlands, VDOT removed the natural “sponge” for floodwater by adding solid fill and draining the remaining water with vertical “sand wicks.” The presence of the Beltway on the northern edge of the relocated Cameron Run also created a berm, which forced water south during flooding and “eliminat[ed] the conveyance potential beyond the north bank of the stream.”

The Plaintiffs allege that their homes would not have flooded in 2006 had VDOT not, in the early 1960s, relocated Cameron Run, filled in portions of the watershed marshes to construct the Beltway, narrowed the channel's natural width, and built the Beltway in such a way as to serve as a concrete wall blocking any northern flow of water from the channel.

The Plaintiffs further allege that the flood damage was “amplified” by the County's and VDOT's acts or omissions after the relocation of Cameron Run and construction of the Beltway. They allege that most of their homes would not have flooded at all, and those few that did would have suffered only minor damage, if the elevation of the June 2006 flood had not been significantly raised by the accumulation of sediment in the relocated Cameron Run due to the County's and VDOT's failure to dredge or otherwise maintain the channel, VDOT's construction of the U.S. Route 1 Interchange in the Cameron Run Watershed, and the encroachment on the Cameron Run flood plain caused by commercial and other development approved by the County.

According to a 2007 report prepared by the Army Corps of Engineers, 5 to 6 feet of sediment accumulated in the relocated Cameron Run between 1965 and 1999. This sedimentation contributed to the severity of the June 2006 flood, decreasing the capacity of the channel to transport water to the Potomac River and away from Huntington. The Corps report concluded that without such sedimentation, flood elevations in Huntington would have been 1.2 to 2 feet lower. The County and VDOT were aware, by way of multiple reports and memoranda, of the sedimentation and the increased risk of flooding it posed, but did not undertake any dredging or maintenance of the relocated Cameron Run. As early as 1966, the County adopted an ordinance for a regulated 100–year floodplain for the channel. In 1970, VDOT's resident engineer circulated a memorandum in which he acknowledged the danger of sedimentation in the relocated Cameron Run but disavowed VDOT's responsibility for dredging it. In the wake of the June 2006 flood, VDOT continued to insist that it had no duty to maintain the channel. Rather, VDOT asserted, “each locality is responsible for the maintenance of the natural and relocated Cameron Run Channel within its jurisdictional limits, despite the fact that the subject reach of Cameron Run is within VDOT's [r]ight-of-way.”

The Corps report also found that the construction of the Route 1 Interchange, part of the Woodrow Wilson Bridge construction project, contributed up to 1 foot to the water level during the June 2006 flood and that commercial development within the Cameron Run floodplain contributed another 2.5 to 5 inches. Such development included the Huntington Metro Rail and Station, completed in 1983, and Jones Point, a 100–acre development located adjacent to Cameron Run containing residential apartment towers and several commercial buildings. A metal retaining wall was constructed along Cameron Run for Jones Point, with a large amount of fill brought in to elevate that development out of the floodplain.

B.

To recover for the damage to their homes and personal property resulting from the June 2006 flood, the Plaintiffs sued the County and VDOT. In their second amended complaint, the Plaintiffs allege that the County and VDOT damaged their homes and personal property for public use without just compensation, in violation of Article I, Section 11 of the Constitution of Virginia. That section, in relevant part, guarantees “that the General Assembly shall not pass any law ... whereby private property shall be taken or damaged for public uses, without just compensation.” Va. Const. Art. I, § 11.

Both the County and VDOT demurred. VDOT's demurrer presented several grounds for dismissal: that the Plaintiffs lacked standing because they did not own or rent their homes when VDOT relocated Cameron Run and built the Beltway; ³ that the Plaintiffs failed to identify or allege a specific appurtenant right connected to their homes that VDOT damaged when it constructed the Beltway; that VDOT was not responsible for commercial development in the Cameron Run Watershed, including the construction of the Huntington Metro and Jones Point; that the Plaintiffs' homes were not damaged for public use; and that the Plaintiffs could not recover for damage to their personal property.

The circuit court sustained the County's and VDOT's demurrers. In its letter opinion, the circuit court framed the question presented—which it considered to be one of first impression—as follows: “[D]oes a single occurrence of temporary flooding state a cause of action for inverse condemnation?” To answer this question, the circuit court analyzed several of our cases involving multiple occurrences of flooding as well as several federal cases construing the Takings Clause of the Federal Constitution in a flooding context. It reasoned that

the distinction between taking and damaging is [not] dispositive. As I understand the law, the distinction that is dispositive is the episodic nature of the event—not the legal terminology that describes the result of the event. An allegation of a one[-]time event that results in a taking is no more compensable than a one[-]time event that results only in damage.

Concluding that the June 2006 flood was “an extraordinary event,” the circuit court went on to hold that “a one[-]time episode of flooding does not state a cause of action for inverse condemnation” under Article I, Section 11. ⁴ It accordingly dismissed the Plaintiffs' second amended complaint with prejudice.

C.

We granted the Plaintiffs' petition for appeal as to VDOT but not as to the County. The Plaintiffs assign error as follows:

The trial court erred in sustaining [VDOT's] demurrer[ ] when it concluded that a single occurrence of flooding cannot state a cause of action for damaging under Article I, [Section] 11 of the Constitution of Virginia.

(Internal quotation marks omitted.)

We also granted VDOT's assignments of cross-error, which state:

1. The trial court erred in not sustaining VDOT's Demurrer on the alternative grounds that [the Plaintiffs] lacked standing to seek compensation under Article I, Section 11 of the Virginia Constitution because they did not own or rent the subject properties when the Beltway was constructed.

2. The trial court erred in not sustaining VDOT's Demurrer on the alternative grounds that [VDOT] was not responsible for the dramatic urbanization of the Cameron Run Watershed after the Beltway was completed more than 50 years ago.

3. The trial court erred in not sustaining VDOT's Demurrer on the alternative grounds [that the...