The Virginia Supreme Court is set to consider a case that asks whether less than a total loss of access to a parcel is a taking, and is the government's mere invocation of a "police power" rationale to cut off access is enough to insulate it from the payment of compensation.
When Hooked proposed to develop its property, the City of Chesapeake closed Callison Drive, the street adjacent to Hooked's property after the neighbors complained. This cut off Hooked's direct access to Callison Drive, even though it still had access from its property from another street.
The trial court dismissed (demurred) Hooked's inverse condemnation claim, concluding that the City was exercising its police power when it closed the street, and thus there was no taking as a matter of law. Hooked argued that Virginia property owners have a property right for direct access to adjacent roads, especially after the Virginia amended its constitution in 2012 to reflect that owners have the right to compensation for "lost access."
We contributed to an amici brief supporting Hooked's appeal, arguing that the mere invocation of "police power" does not solve the case:
The assertion that the City extinguished Hooked’s access to the street for safety reasons using its police power is not even relevant in a takings inquiry. Indeed, the Takings Clause imposes a condition on the lawful exercise of police powers with a requirement to pay just compensation where government goes too far in abrogating common law property rights. Thus, to state a valid claim for inverse condemnation, the property owner must first concede the validity of the government action (government actions that do not further some public purpose are ultra vires and void, and cannot result in a requirement to provide compensation). Thus, if the City had not extinguished Hooked’s access for a public purpose, Hooked would not have an inverse condemnation claim with a compensation remedy, but rather one for a due process violation with injunctive or declaratory relief.
Br. at 8 (footnotes omitted).
Here are the other briefs in the appeal:
The court has not yet set arguments, but we shall follow along and update when it does.
More here, from the Right of Way Law blog.
Brief Amici Curiae of Owners' Counsel of America, NFIB, and the Virginia Property Rights Coalition, Hooked...
