9.8 Remedies

• Library: Eminent Domain Law in Virginia (Virginia CLE) (2017 Ed.)

9.8 REMEDIES

9.801 Generally. A party aggrieved by government action may either seek to have the government action declared invalid and regain use of his property or file a claim for damages due to the regulatory taking. Even if an action is declared invalid, damages may be awarded for the time period during which the invalid regulation limited the owner's use of property.

9.802 Temporary Taking. In 1987, the Supreme Court held, in First English Evangelical Lutheran Church v. County of Los Angeles, ³⁰⁹ that

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"where government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective." ³¹⁰ Although on remand the lower court held that no taking had occurred, this Supreme Court decision established the principle of damages for a temporary regulatory taking.

In a concurring opinion in City of Virginia Beach v. Virginia Land Investment Ass'n No. 1, ³¹¹ Justice Lacy found that First English did not apply in a downzoning case because the owner "was not deprived of all use of its land." ³¹²

In Wheeler v. City of Pleasant Grove, ³¹³ the court described the measure of damages appropriate in a temporary taking case. The landowner should receive the market rate of return for the duration of the taking, multiplied by the difference between the property's fair market value with the improper restriction and without the restriction. ³¹⁴ This is similar to the calculation of damages awarded for a temporary easement in eminent domain. ³¹⁵

One difficulty that must be confronted in Virginia is the speculative nature of the damages caused by the delay in the construction of a real...