12.9 Inverse Condemnation

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

12.9 INVERSE CONDEMNATION

12.901 Traditional Inverse Condemnation. In a typical inverse condemnation, the property owner files a declaratory judgment action under section 8.01-184 of the Virginia Code to prove that a condemning authority has taken or damaged property within the meaning of Article I, Section 11 of the Constitution of Virginia. After the court decides that a condemning authority has taken or damaged property within the meaning of Article I, Section 11, and if the owner and the condemning authority have not agreed on an amount of just compensation for the taking or damage or both, then the owner, after waiting 60 days, may file a motion for an order appointing commissioners or condemnation jurors to determine just compensation, pursuant to section 8.01-187. The proceedings are governed by the condemnation procedures applicable to the particular condemning authority whose conduct constituted an unconstitutional taking or damage to property.

The 2006 General Assembly passed legislation eliminating condemnation commissioners from Chapter 2 of Title 25.1. The 2010 General Assembly passed legislation reinstating the option of the commissioners. Accordingly, in cases filed on or after July 1, 2010, the issue of just compensation is determined by a commissioner or jury, upon a timely election made by an owner as provided in section 25.1-213, or, if no election is made, the issue of just compensation may be determined by the court. ³⁴⁰

If the circuit court with jurisdiction over the inverse condemnation action rules that the condemning authority has taken or damaged property without the payment of just compensation in violation of Article I, Section 11, then the owner is entitled to reimbursement for reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and

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engineering fees, that the owner actually incurs in a proceeding to prove the condemning authority's liability for the unconstitutional taking. ³⁴¹

A claim for constitutional damage lies for a one-time event that causes damage to property. In Livingston v. Virginia Department of Transportation, ³⁴² the Virginia Supreme Court held that a single instance of temporary flooding supported an inverse condemnation claim under the damage clause of the Constitution of Virginia. However, no claim for damages may be made due to public use of land in proximity to the owner's property, such as a power line which does not actually cross the owner's property. ³⁴³

12.902 Statute of Limitations. The statute of limitations for inverse condemnation cases is three years from the taking or the damage to the value of the property. ³⁴⁴ The Supreme Court of Virginia views an inverse condemnation action as a property owner seeking redress in the form of...