The facts in D.A. Realestate Inv., LLC v. City of Norfolk, No. 23-1863 (Jan. 16, 2025), a recent decision from the U.S. Court of Appeals for the Fourth Circuit, are fairly sympathetic. And the opinion starts off with a tantalizing quote:
In 1761, Massachusetts lawyer James Otis exclaimed “one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle.” John Adams’s Reconstruction of Otis’s Speech in the Writs of Assistance Case, in Collected Political Writings of James Otis 12–13 (Richard Samuelson, ed. 2015). American law has embraced that principle since our nation’s founding. U.S. Const. amend. V. But we have also long recognized that “all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.” Mugler v. Kansas, 123 U.S. 623, 665 (1887).
Slip op. at 3.
But still no succor from the court.
While an active-duty sailor was deployed, the city determined his property was uninhabitable. It sent and posted notices, but the mailed notices were returned to sender. A few months later, the city tried again. After returning from deployment, the owner did some maintenance, but didn't directly respond to the city's determination the property was uninhabitable (the record doesn't reveal whether the owner knew of the determination).
And the next year, the Navy deployed the owner again for a short time. Upon his return he "saw a faded notice posted to the house[,]" after which he contacted the city. Slip op. at 6. But that apparently went nowhere, and "[i]n June 2018, the city prepared another notice of violation letter[,]" that gave the owner 30 days to remediate, or else the city would demolish it. Slip op. at 7. No response. At the end of 2018, the city tore down the building.
Three years later, the owner sued for, inter alia, due process, a federal taking, and a Virginia-law inverse condemnation claim. The district court granted the city summary judgment.
The owner appealed to the Fourth Circuit, but limited the issue to to whether the Virginia inverse claim was subject to disputed facts, and abandoned appeal of the federal claims. Slip op. at 10 ("Thus, the only issue before us is whether Fox showed any genuine dispute of material fact related to his Virginia inverse condemnation claim."). In other words, a federal appeals court was going to be weighing in solely on a state law issue, and even then only on the relatively narrow question of whether the owner had pointed to evidence sufficient to meet his minimal burden of production on summary judgment (not persuasion).
That, and the fact that the resulting opinion is published, should give you some clue that any truly interesting insight this was going to produce might lie in the dicta. We'll get to that intriguing dicta in a moment, but first the holding (affirmed).
The court began by noting:
When this collision [the tension between using your property how you like versus the obligation not to use it in a way that harms others] occurs in Virginia, the government has two options. It can abate a public nuisance without paying compensation. Or it can exercise its right of eminent domain based on the public use of blight elimination. In the latter situation, the government may acquire title to the property, but it must pay the owner just compensation.
Slip op. at 3.
The owner claimed that there's a factual dispute regarding whether his property was a nuisance, and that a jury alone can make that determination. The court rejected the argument, first because he had a chance to challenge the city's administrative determination that the property was a nuisance, and he failed to use the city's appeal process to chase that down. The second, and more important reason was that it is not material under Virginia law whether or not the house was a nuisance. The court noted that Virginia caselaw treats nuisance abatement as an exercise of police power exempt from the obligation to provide just compensation. So it it was a nuisance, no inverse liability.
And if it wasn't a nuisance, then the destruction was ultra vires; an essential element of a Virginia inverse claim is proof that the taking was for a public use:
As a result, if Fox is right that the house posed no danger to public health or safety, he’s correct that it is not a nuisance under Virginia law. But for the same reason, it did not constitute blight. See id. § 1-219.1(B). And since eliminating blight is the only potentially applicable public use here, Fox cannot show the “public use” element of an inverse condemnation claim. See AGCS, 800 S.E.2d at 163 (“Inverse condemnation permits recovery only when property is taken or damaged for public use.” (internal quotation omitted)). In sum, whether the house constituted a nuisance is immaterial—Fox’s inverse condemnation claim fails whether the answer is yes or no.
Slip op. at 14-15 (footnotes omitted).
Next, the court rejected the owner's argument "that a jury must resolve whether the city pretextually stated a purpose of blight elimination or nuisance abatement." Slip op. at 15. The owner had raised vague allegations that the real reason for the demolition of the house was not that it was blighted, but because Norfolk wanted to free up the site for redevelopment. The court held this claim was not supported by any evidence to meet the owner's Rule 56 burden. See slip op. at 17. Game over.
Now, here's the useful dicta in the case. The court noted that it was not saying that these type of circumstances can never present a claim. It recognized that the pretext situation could be pressed in several ways. First, the owner might have administratively appealed the nuisance determination. Or "he could have brought at timely § 1983 due process claim for an unlawful taking." Slip op. at 16 (citations omitted).
Take that last one and keep it in your file for future deployment.
D.A. Realestate Inv., LLC v. City of Norfolk, No. 23-1863 (4th Cir. Jan. 16, 2025)