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No Condemnation Claim for Flood Damage

A property owner cannot state a condemnation claim against the city of Norfolk based on damage to her property from flooding allegedly caused by the city’s failure to enforce conditions on a neighbor’s fill permit, and the Norfolk Circuit Court denies plaintiff’s motion to reconsider.

Plaintiff did not plead that she has been deprived of all economic use of her property. In fact, she states the flooding displaced her from her home on various occasions, but this implies that she is still primarily residing in the home. Using the property for residential purposes leaves a variable economic use for the property. Thus, plaintiff cannot state a claim for a taking.

However, plaintiff does allege that water and debris have negatively impacted the value or impaired the highest and best use for her property. This will suffice, if she sufficiently alleges the property is negatively affected due to a public use.

When the taking or damage of property occurred due to flooding, the flooding must be caused by the public use The key element to determine if it was caused by a public use is whether the government was in control of the instrumentality that was designed to deal with the source of the flooding, storm water.

In this case, plaintiff alleges the city took her property by issuing a fill permit to the adjoin property owners and not effectively enforcing the city code. After receiving the fill permit, the adjoining property owners did not install a retaining wall, which was a condition of the fill permit. The city sent several letters informing the adjoining property owners that they were in violation. Eventually, the adjoining property owners did install a berm and the city approved the berm. However, plaintiff claims this berm is inadequate, and this inadequacy has led to damage to her property.

Thus, the only actions/inactions alleged against the city concern the issuance of the fill permit, inspection of the property to force compliance, approval of the berm, and the failure to make the adjoining property owners comply sooner. Further, none of the reasons given for issuance of the permit constitute public uses pursuant to Va. Code § 1-219.1(A). In fact, the taking or damaging of property in order to grow the real estate tax base is expressly prohibited. The pleadings clearly show the city does not own the adjoining property, did not complete the construction or alteration to the adjoining property, and the adjoining property is being used for completely private purposes. Plaintiff also does not allege the city’s storm water disposal system contributed to the problem. The court denies plaintiff’s motion to reconsider count I as it does not state a claim.

The court also denies reconsideration of plaintiff’s claim under 42 U.S.C. § 1983 for unlawful taking of plaintiff’s property.  Plaintiff attempts to allege the actions of the employees were taken due to the city’s custom. However, there are no allegations that the city was actually or constructively aware of the constitutional violations of the individuals issuing and enforcing the permits.

Collett v. City of Norfolk (Fulton) No. CL 11-3510, Aug. 24, 2012; Norfolk Cir.Ct.; Kevin E. Martingayle for plaintiff; Adam D. Melita, City Att’y Office. VLW 012-8-161, 8 pp.

VLW 012-8-161

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