Road closure was not compensable taking

Where a city closed one of two roads from which appellant landowner’s commercial property could be accessed, the trial court correctly ruled this was not a taking that entitled appellant to compensation.

Background

The landowner’s commercial property has frontage on Callison Drive and Battlefield Boulevard. The city of Chesapeake closed Callison Drive, which had been chained for many years, to all but emergency traffic. The closure prevented access to the landowner’s property.

The landowner sued for a declaration that the road closure was a taking and sought to empanel a jury to determine just compensation. The complaint alleged that the landowner had “an easement for direct access “as a property owner abutting Callison Drive.”

The city demurred, arguing the landowner had not stated a claim for inverse condemnation. The trial court sustained the demurrer.

The court ruled that although the landowner pleaded a right of access, its right to access was not “taken or damaged” because there was still access from Battlefield Boulevard. In response to the landowner’s motion for consideration, the trial court noted that Battlefield was a “major public highway.” The landowner appealed.

‘Reasonable and adequate’

“Landowners are not entitled to access their property from a specific location; rather, they are entitled only to ‘reasonable and adequate access.’”

“In State Highway & Transportation Commissioner v. Linsly, 223 Va. 437 (1982), the owner of commercial buildings that fronted on an existing highway sought compensation when access to the property changed from direct access to a highway to a limited access via a new service road.

“We concluded that ‘the extinguishment of easements of abutting landowners upon the conversion of a conventional highway into a limited access highway,’ i.e. when access to a property directly from the highway was downgraded to access indirectly via a service road, was compensable.”

In State Hwy. & Transp. Comm’r v. Dennison, 231 Va. 239 (1986), “the property had two access points. One point of access was to a two-lane highway and the other was to a four-lane road. This four-lane road was divided by a median, but there was an opening in the median to turn into the property. The take eliminated access to the property from the four-lane road. …

“We concluded that the factfinder was entitled to hear evidence of damage to the residue of the property from this loss of access. …

“Under this body of case law, the exercise of police power by the City to close access to and from Callison Drive did not, as a matter of law, deprive the Landowner of reasonable access. That is because the Landowner retained access to its property through a major public highway, namely, Battlefield Boulevard.

“Dennison is simply inapposite. The factfinder could conclude from the facts presented in Dennison that there was a loss of reasonable access to the property at issue. In contrast, the facts pled in the present complaint in connection with the closure of Callison Drive do not permit an inference of a loss of reasonable access to the Landowner’s property.

“Therefore, the trial court properly sustained the demurrer.”

Constitutional amendment

In the wake of a 2012 amendment to the Virginia constitution and subsequent implementing legislation, “if the landowner has suffered ‘a material impairment of direct access to property,’ that loss is now compensable even if the landowner retains reasonable access.

“For example, a landowner who owns a property that has access to two major roads may face a material impairment of direct access to property if access is cut off to one of those roads.

“Thus, following the enactment of Code §§ 25.1-100 and 25.1-230.1, the inquiry involves several steps: (1) does the landowner retain reasonable access to the property following a taking or governmental action under the police power; and (2) even if the remaining access is reasonable, has the landowner suffered a loss of access that is (a) direct, i.e. indirect loss of access is not compensable, and (b) material, i.e. significant, essential, or of real importance?

“Here, the Landowner’s lost access to Callison Drive, although qualifying as a direct loss of access, is not, as a matter of law, ‘a material impairment of direct access to property’ within the intendment of Code § 25.1-100.

“The Landowner did not plead any facts that would indicate that the closure of access to and from Callison Drive was of real importance or great consequence or that it was significant or essential.

“Therefore, the trial court correctly granted the City’s demurrer.”

Affirmed.

Hooked Group, LLC v. City of Chesapeake, Record No. 190764 (McCullough). May 28, 2020, Chesapeake City Cir. Ct. (Lilley). Lawrence Steven Emmert, Blake Alan Willis, Joshua Ellis Baker for appellant, Jacob Paul Stroman, Kelly L. Daniels Sheeran, Ellen Frances Bergren, Kelly Joanne Lackey for appellee. VLW 020-6-041, 8 pp.