Zoning: Inverse condemnation claim against Loudoun County is dismissed

Where two homeowners sued Loudoun County for inverse condemnation, but they failed to comply with Code § 15.2-1248, which relevantly states “[n]o action shall be maintained by any person against a county upon any claim or demand until such person has presented his claim to the governing body of the county,” their suit was dismissed.

Background

The circuit court sustained two demurrers to Ron and Andrijana Brown’s complaint for inverse condemnation against Loudoun County and the Board of Supervisors of Loudoun County, and negligence and gross negligence against Gary Clare.

The Browns contend that the circuit court erred in dismissing their inverse condemnation claim by holding that they were required, and failed, to plead that the County purposefully took or failed to take an action that intentionally diverted flood water onto the Browns’ property. The Browns also argue that the circuit court erred in ruling that Clare, a county employee, owed no duty to them.

In a cross assignment of error, the County argues that the circuit court erred in overruling its demurrer on the grounds that the Browns’ failure to comply with Code § 15.2-1248 required dismissal of their claims.

Inverse condemnation

The circuit court found that “for purposes of demurrer review, [the Browns] have alleged sufficient facts of governmental action or inaction.” However, the circuit court then went outside the grounds stated in the demurrer and ruled that the Browns were required to allege that the County purposefully acted or failed to act in a way that intentionally relocated the FEMA floodplain, citing AGCS Marine Ins. Co. v. Arlington Cnty., 293 Va. 469 (2017).

This is a misapplication of AGCS Marine Insurance Co. and not the standard for sufficiently pleading a claim for inverse condemnation. In its ruling, the circuit court created an additional requirement that not only must the government body act or fail to act purposefully, but that the result from that action or inaction must be intentional.

Cross assignment

The County’s cross-assignment of error argues that the circuit court erred in ruling that the Browns were not required to comply with Code § 15.2-1248, and therefore erred in overruling the demurrer on that ground. Code § 15.2-1248 is a presentment statute that states in relevant part: “[n]o action shall be maintained by any person against a county upon any claim or demand until such person has presented his claim to the governing body of the county.”

However, the Browns contend that they were not required to comply with Code § 15.2-1248 because an action for inverse condemnation is a “self-executing” constitutional claim. In the alternative, the Browns argue that they complied with the presentment statute by sending a letter to the County when they filed their lawsuit.

Although the Browns are correct that the constitutional provisions regarding inverse condemnation are self-executing, there is no limiting language in Code § 15.2-1248 that would create an exception to the procedural requirements in presenting such a claim to the governing body. And sending the notification letter simultaneously with the filing of the lawsuit frustrates the legislature’s purpose in requiring presentment of the claim because it does not provide the Commonwealth’s Attorney time to advise the board of such claim.

As such, the circuit court erred in sustaining the demurrer on the grounds that the Browns did not state a claim for inverse condemnation, but that the demurrer should have been sustained for the Browns’ failure to comply with Code § 15.2-1248.

Negligence claims

Clare’s “ministerial actions” included overseeing the berm’s construction through his employment with the County, and this vague allegation cannot be presumed to impose a legal duty when Clare did not prepare any plans for or participate in the construction of the berm. Therefore, the second amended complaint is devoid of any rational connection between Clare’s ministerial actions for the County and a duty to protect the Browns from flooding due to the berm’s construction by two private companies. Accordingly, the circuit court did not err in sustaining Clare’s demurrer to the negligence and gross negligence claims.

Affirmed.

Brown v. Loudoun County, Record No. 2158-23-4, May 27, 2025. CAV (unpublished opinion) (Frucci). From the Circuit Court of Loudoun County (Snow). Arie M. Jones (Timothy P. Bosson; Isaiah R. Kalinowski; Bosson Legal Group, PC, on briefs), for appellants. Nicholas J. Lawrence, Senior Assistant County Attorney, for appellees Loudoun County, Virginia and Board of Supervisors of Loudoun County, Virginia. Kevin B. McCandlish (Jennifer Lee Parrish; Parrish Snead Franklin Simpson, PLC, on brief), for appellee Gary Clare. VLW 025-7-136. 11 pp.