Lee v. City of Norfolk
706 S.E.2d 330
| Va. | 2011Background
- Lee owned a duplex in Norfolk; City issued a fire-damage repair permit later revised to allow elevating the building out of a floodplain.
- September 5, 2006 occupancy inspection revealed extensive safety hazards; Lee was told his permits were revoked for exceeding the 50 percent rule, though no written notice was provided.
- September 12, 2006 letter declared the structure unsafe and a public nuisance, directed demolition and provided a 21-day appeal window; Lee was advised of the right to appeal under USBC.
- Lee met with City officials on September 27 to discuss compliance; subsequent reviews by engineers did not lead to immediate permit reissuance; extensions expired with demolition imminent.
- City demolished the building 107 days after the initial nuisance designation; Lee did not file an appeal; Lee sued the City asserting due process, inverse condemnation, and property damage claims.
- Circuit court sustained demurrers/pleas in bar on some counts and dismissed others; on appeal,Lee challenges due process, inverse condemnation, and property damage rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether due process was violated by notice/appeal deficiencies | Lee argues notice was inadequately calculated and failed to permit a hearing. | City contends inverse condemnation post-deprivation remedy defeats due process claim; notice defects do not violate due process. | Due process claims fail; notice adequate; error harmless |
| Whether Lee's inverse condemnation claim is viable after failure to exhaust remedies | Lee contends notice precluded timely appeal, so remedies were not exhausted. | Lee failed to appeal the nuisance designation; prerequisite exhaustion bars inverse condemnation claim. | Inverse condemnation barred; nuisance abatement not a taking |
| Whether City is immune to Lee's property damage claim | Lee contends § 15.2-209 and non-sovereign factors allow recovery. | Sovereign immunity shields City from tort liability for governmental police-power actions. | City immune; property damage claim barred |
Key Cases Cited
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (due-process notice requirements)
- Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (U.S. 1987) (nuisance abatement not a taking)
- Stickley v. Givens, 176 Va. 548 (Va. 1940) (abatement of nuisance under police power; no compensation)
- Lilly v. Caroline County, 259 Va. 291 (Va. 2000) (dismissal based on failure to appeal; decision final)
- Presley v. City of Charlottesville, 464 F.3d 480 (4th Cir. 2006) (post-deprivation remedies bar procedural due process claim)
- Jones v. Board of Governors, 704 F.2d 713 (4th Cir. 1983) (unfair departures from procedures; reliance considerations)
- City of Chesapeake v. Cunningham, 268 Va. 624 (Va. 2004) (sovereign immunity for governmental police-power actions)
- Edwards v. City of Portsmouth, 237 Va. 167 (Va. 1989) (police power immunity framework)
- City of Chesapeake v. Fenon, 203 Va. 551 (Va. 1953) (police power abatement not a compensable taking)
- Lostrangio v. Laingford, 261 Va. 495 (Va. 2001) (special pleas in bar and pleadings standard)
- Dusenbery v. United States, 534 U.S. 161 (U.S. 2002) (due process not requiring actual notice when reasonably calculated)