County must defend shop’s claim over sinkhole

A lube shop’s lawsuit against a Virginia county over an obstructive sinkhole is going forward, even though the county claimed the business lacks the standing to sue. The suit arises from a large ground collapse that blocked the main entrance to a Loudoun County shopping center for most of a year.

The owner of the Valvoline Instant Oil Change shop says most of its customers had to drive a mile-and-a-half out of the way to get their cars serviced because of the sinkhole that blocked access in January 2015.

The sinkhole repairs were not finished until the end of that year, according to the lawsuit.

The county “moved at the slowest possible pace,” the shop complained, calculating its lost profits at $258,404.21.

Loudoun County Circuit Judge Jeanette A. Irby overruled the county’s demurrer and denied its plea in bar in a Dec. 18 decision. Her opinion is PM Lube LLC v. County of Loudoun (VLW 018-8-111).

Long delayed repairs

The sinkhole turned into a major issue for the Clock Tower Shopping Center in Sterling. The hole blocked access to a service road off of Route 7 that allowed customers to get into the shopping center.

The main entrance to the shopping center was obstructed for most of the year. County officials reportedly acknowledged that the problem stemmed from failure of a county-owned pipe and that repairs were the county’s responsibility.

Months after the sinkhole appeared, county Supervisor Eugene Delgaudio, who represented the district, sought to allay concerns. In a June website message, he thanked citizens for their patience and said repairs would begin soon.

Delgaudio said the county “moved at a deliberative and immediate speed in awarding a contract.”

Despite county action to start work in June, repairs were not completed “until the end of 2015,” according to the lawsuit.

Inverse condemnation

The lube shop sued based on inverse condemnation, contending the unrepaired sinkhole amounted to a government “taking” of its property right to have accessible customer access.

The county responded that the business had no property right because it did not own the property where it operated – it simply leased the space in the shopping center.

The lube shop – represented by J. Chapman Petersen of Fairfax – argued it had a basic private property right to customer access.

As a business organized under state law, and lawfully operating in the leased space, the plaintiff shop claimed a right to reasonable ingress and egress for its customers, Irby summarized.

“Such a right, Plaintiff essentially asserts, is itself a private property right,” the judge wrote.

Irby agreed with the lube shop. She said the Virginia constitution makes no categorical distinction between personal and real property rights or between landowner and lessee.

“The implied constitutional right of action for inverse condemnation likewise contains no such distinctions. If such a claim meets all of the necessary requirements to recover for a taking or damaging of a private property right, it is no defense that the property right taken or damaged was a personal property right rather than a real property right or that the holder of the personal property right was a lessee rather than a landowner,” Irby wrote.

Suit claims delays were ‘purposeful’

The county also argued the lube shop’s lawsuit lacked a claim of any purposeful act or omission by the county. The lawsuit failed to allege that the county purposefully caused the failure of the storm water pipes and the resulting sinkhole. Irby agreed on that point.

But the county also said the lawsuit failed to “demonstrate any actual delay in repairing the sinkhole that could have separately damaged” the lube shop’s property rights. Irby disagreed as to the delay.

In an amended complaint, the business alleged that, after acknowledging its responsibility to fix the sinkhole shortly after it occurred and being aware of the harm to shopping center business, the county took no action for at least six months. The county decided to allocate resources to other projects instead, the complaint said.

Once repairs began, the county “moved at the slowest possible pace,” the suit claimed. If not for county inaction, repairs might have been accomplished in only 30 days, the suit said.

Irby said the county’s alleged inertia constitutes “the type of governmental conduct that will support liability in inverse condemnation.”

The case remains pending. The county is represented by Leo P. Rogers and Jason S. Hobbie of Leesburg.