Any eminent domain lawyer will tell you that loss of access cases can be difficult. In some jurisdictions, you have to lose all access before the court will consider you harmed. Or the courts see a difference between a loss of “direct” access versus “circuitous” access. All we know is that from an owner’s perspective, access to the property can be a key element of its value.

We thought the 2012 post-Kelo amendment to the Virginia Constitution was designed to address that. Article I, section 11 notes:

… No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms “lost profits” and “lost access” are to be defined by the General Assembly. …

The legislature did so, defining “lost access” as “material” impairment of “direct” access to “property, a portion of which has been taken or damaged …”

So here’s the situation that resulted in today’s opinion from the Virginia Supreme Court, Hooked Group, LLC v. City of Chesapeake, No. 190764 (May 28, 2020). Hooked owns some now-vacant land in the city. There are two ways to get to the property, Callison Drive around the back, and Battlefield Boulevard in the front. To placate neighbors, the city prohibited Hooked from using Callison Drive to access the property.

Hooked brought an inverse condemnation claim, asserting a taking. The trial court sustained the city’s demurrer (motion to dismiss for failure to state a claim, to all you modern pleaders). The court concluded that the property didn’t lose all access, so too bad, owner, no taking. 

The Virginia Supreme Court affirmed, concluding that because the owner still had access to the “major public highway” (Battlefield Boulevard), its loss of access of a “minor residential street” could not be a taking as a matter of law. 

The Landowner did not allege that it owned a private easement of access to Callison Drive. Instead, it alleged that it possessed an easement for direct access “as a property owner abutting Callison Drive.” The Landowner alleged that the Callison Drive entrance “was necessary to serve as a secondary ingress or egress” to the property, and that the closure of the Callison Drive entrance “has had a substantial negative effect on the value and highest and best use of [its] property.”

Slip op. at 2.

One good thing that comes out of this opinion: the court rejected the argument that the city’s invocation of the police power addressed the takings issue. Of course the city has the power to regulate things in to promote the public health, safety, and welfare. But that doesn’t answer the taking question. 

Nevertheless, the exercise of that power can constitute a taking under certain circumstances. The exercise of the police power must be balanced with the right landowners have to gain access to public streets from their property

Slip op. at 4.

This decision

Hooked Group, LLC v. City of Chesapeake, No. 190764 (Va. May 28, 2020)