Selected Recent Virginia Real Estate and Land Use Decisions
U.S. Court of Appeals for the Fourth Circuit
Sun Yung v. Zom Clarendon, L.P., 2011 U.S. App. LEXIS 9381 (4th Cir. Va. May 6, 2011) The instant appeal involves a dispute over a 14-foot wide L-shaped portion of property located in the Clarendon subdivision in Arlington, Virginia. Here, we consider whether an express or prescriptive easement exists over the property. We also review the district court's ruling to disallow expert opinion with respect to the creation of the purported express easement. For the reasons that follow, we affirm the district court's judgment.
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U. S. Dist. Courts Eastern and Western Districts of VA.
Oryn Treadway Sheffield, Jr., Trust v. Consolidation Coal Co., 2011 U.S. Dist. LEXIS 120604 (W.D. Va. Oct. 19, 2011) In this diversity action governed by Virginia law, the plaintiffs claim ownership of unidentified minerals contained in a tract of land which is under lease for coal mining purposes to another party. Although active coal production stopped some time ago, it is alleged that the defendant has now used the underground voids left after the coal was mined to dispose of wastewater from another coal mine.
The plaintiffs assert that this use of the mine voids by the defendant entitles them to money damages. The defendant has moved to dismiss on the ground that the plaintiffs have failed to allege any facts showing an ownership interest in the mine voids or any injury to their property rights. I agree, and will grant the defendant's Motion to Dismiss.
Moore-King v. County of Chesterfield, 2001 U.S. Dist. LEXIS 11204 (E.D. Va. Sept. 30, 2011) This matter is before the Court on a motion to dismiss and cross-motions for summary judgment pursuant to Federal Rules of Civil Procedure 12(b)(1) and 56. In this case, the plaintiff, Patricia Moore-King ("Moore-King"), challenges the zoning ordinance, business license tax ordinance, and fortune teller permit ordinance through which Chesterfield County regulates fortune teller businesses. Moore-King alleges that these ordinances violate her rights to free exercise of religion, free speech, and equal protection under the United States Constitution, [*2] and her rights under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The County has moved to dismiss the "as applied challenges" set forth in the Complaint, contending that those claims are not ripe for judicial determination. Both parties have moved for summary judgment.
For the reasons set forth below, the Court denies the County's motion to dismiss, grants the County's motion for summary judgment, and denies Moore-King's cross-motion for summary judgment.
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Virginia Supreme Court
McCarthy Holdings LLC v. Burgher 09/16/2011 In resolving a suit with claims for declaratory relief in the application of an easement on real property, the circuit court did not err in concluding that an easement agreement granting “exclusive use,” without stating the purpose or purposes for which the easement may be used, does not permit the owner of the dominant estate to bar the owner of the servient estate from reasonable use of the easement area as a matter of law. An alleged error regarding payment of property taxes does not concern a live controversy, and is not considered. The judgment is affirmed.
Zinone v. Lee's Crossing Homeowners Ass'n 09/16/2011 In a property owner's suit against a homeowners association for declaratory and injunctive relief, among other remedies, the circuit court did not err in concluding that language of the association's declaration allowing the declarant of a recorded declaration to make unilateral amendments to its terms was not inconsistent with the Virginia Property Owners Association Act, which contains provisions concerning the ability to amend a declaration that are neither mandatory nor exclusive and, thus, can be controlled by the express provisions of a particular declaration. Accordingly, the judgment of the circuit court is affirmed.
Taco Bell v. Commonwealth 06/09/2011 In a condemnation proceeding, the trial court erred in striking evidence relating to certain alleged fixtures used in the operation of a fast food restaurant, and in directing the jury to disregard those items in determining compensation for the value of the property taken by the Commonwealth. Considering the evidence in the light most favorable to the landowner, the evidence on the issue whether the items in question were fixtures or personalty for condemnation purposes was sufficient to submit to the jury. The judgment of the trial court is reversed and the case is remanded for further proceedings.
Mulford v. Walnut Hill Farm Group 06/09/2011 (Revised 06/10/2011) In an action by a landowner claiming a legal right to access certain property, the plaintiff failed to prove the requisite formal acceptance or express assertion of dominion over a purported access road by public authority. The trial court’s finding of fact regarding lack of use by plaintiff's predecessors was not plainly wrong, nor did the circuit court misapply the law in denying a prescriptive easement. There was no error in finding that the plaintiff failed to show that defendant acted with unclean hands, or that it should be estopped from denying an easement. There was no basis on which to presuppose the existence of the easement, and thus the circuit court did not err when it required the plaintiff to prove its existence. The judgment of the circuit court is affirmed.
Riverside Owner v. City of Richmond 06/09/2011 In a taxpayers' action for relief from allegedly erroneous assessment of taxes on real property under Code § 58.1-3984, seeking a refund of overpayments, and recovery of attorney's fees, the city's use of an internal "policy" to calculate the amount of a partial exemption was inconsistent with provisions of the governing local ordinance, which requires that a property’s first assessed value after rehabilitation be used to determine the amount of a partial exemption. The taxpayers were not given a partial exemption that was greater than the increase in assessed value resulting from rehabilitation, because the first assessed value after rehabilitation did not include market appreciation. Any error in admitting expert testimony about real estate appraisal and the underlying rehabilitation program was harmless because it did not address issues decided by the trial court and could not have affected the result. There was no error in including retail space in the final order under these pleadings and this evidence. Nor was there error in denying attorney's fee recovery since this action was brought under the tax Code and not the parties' agreement where the purported fee recovery right is found. The judgment of the circuit court is affirmed.
Dean v. Board of County Supervisors 04/21/2011 In a condemnation proceeding, there was no abuse of discretion in the ruling of the circuit court barring, on a motion in limine, introduction by the landowners of evidence at trial regarding a particular purported comparable sale of property to the same condemnor, because the landowners in the present case failed to produce evidence sufficient to establish that the purported comparable sale was voluntary and free from compulsion and not by way of compromise. The judgment is affirmed.
Jennings v. Board of Supervisors 04/21/2011 In a challenge by a landowner with riparian rights to a locality's authority to regulate the construction of additional mooring slips and accompanying piers beyond the mean low-water mark of a tidal, navigable body of water, the circuit court did not err in denying relief on claims that the regulation was beyond the jurisdiction of the locality, and that the special exception permit ordinance is void for lack of adequate standards to guide the governing body's decision to grant or deny a special exception permit. The judgment of the circuit court is affirmed.
Scott v. Burwell's Bay Improvement Ass'n 04/21/2011 In a case involving riparian rights, the circuit court did not err in ruling that a party seeking to establish ownership of riparian rights by adverse possession, or, alternately, a prescriptive easement to use those rights, failed to prove these claims by clear and convincing evidence. The evidence to show that the use of the riparian rights was exclusive and continuous for the required period of time fell well below the clear and convincing standard required to prove adverse possession or prescriptive use of the riparian rights by the immediate prior occupants. Thus tacking was not available to establish the requisite time periods. The judgment of the circuit court is affirmed.
Condominium Services v. First Owners' Ass'n 04/21/2011 (Revised 05/25/2011) In a lawsuit between a condominium owners' association and a management services company, the circuit court did not err in sustaining the association's demurrers and striking an affirmative defense. The agreement between the parties, although it referenced the association's bylaws, did not require a three-fourths vote of the unit owners before the association could terminate the services of the management agent. The circuit court also did not err in denying a motion to dismiss the association's conversion claim, because the agreement had been terminated at the time the management company caused over $90,000 in fees to be deposited to its own bank account, and it was not error to grant summary judgment on the conversion claim. Expert witness designations, testimony regarding damages, punitive damages and remittitur are also discussed. The judgment is affirmed.
Lee v. City of Norfolk 03/04/2011 In an action for alleged constitutional, statutory and common-law wrongs by a city in demolishing a building needing repair on the plaintiff's property that the city had deemed to be a public nuisance, there is no reversible error in the circuit court's dismissal, upon demurrer and pleas in bar, of the claims for compensation and damages. The judgment is affirmed.
Harkleroad v. Linkous 01/13/2011 In cross-complaints concerning title to a parcel of improved real property, the circuit court correctly determined that co-tenants with an undivided one-half interest in the property had established the necessary elements to prove adverse possession as against the other co-tenants and, thus, was entitled to a judgment granting quiet title to the entire property in fee simple. The co-tenants in possession established by clear and convincing evidence all the necessary elements to obtain title by adverse possession. The fact that the other co-tenants may have been unaware of their own ownership rights is not relevant since the lack of knowledge did not arise from any purposeful act of the co-tenants in possession and the true ownership could have been ascertained by minimal acts of due diligence. The decrees granting title to the property in fee simple, and denying the application of the other co-tenants for an accounting for rent and partition of the property by sale, are affirmed.
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Virginia Circuit Court Decisions
Blakeley v. Bd. of Supervisors, 2011 Va. Cir. LEXIS 62 (Va. Cir. Ct. Apr. 12, 2011) This matter came before the Court on the Complaint filed by Craig J. Blakeley and Kathleen M. McDermott ("Blakeley") seeking Declaratory Judgment against the Fairfax County Board of Supervisors ("County") relating to the County's grant of a special exception under Zoning Ordinance § 9-610 for waiver of minimum lot width requirements to property belonging to Ana Cornejo ("Cornejo special exception"). The parties filed cross motions for summary judgment and conceded that no material facts were in dispute. After considering the briefs and arguments, the Court grants Blakeley's Motion for Summary Judgment as to Counts I & II and denies the County's Motion for Summary Judgment as to Counts I & II. Because this ruling is dispositive, Blakeley's remaining claims for declaratory relief, Counts III-VI, are denied as moot.
Coleman v. Bd. of Zoning Appeals, 2011 Va. Cir. LEXIS 66 (Va. Cir. Ct. Apr. 7, 2011) This matter comes before the Court on a writ of certiorari to entertain the City of Fairfax ("City") and Zoning Administrator Michelle D. Coleman's ("Zoning Administrator") appeal of three decisions of the Board of Zoning Appeals ("BZA"). After considering the oral arguments of counsel and reviewing the applicable legal authority, I find that the BZA was plainly wrong and applied incorrect principles of law in reversing the Zoning Administrator. I hereby reverse the BZA's decision. Further, I find that the Zoning Ordinance at issue in this case is valid. Therefore, I deny The Lamb Center's request for declaratory judgment and injunctive relief.
