2008

Kitchen v. City of Newport News

Supreme Court of Virginia

275 Va. 378, 657 S.E.2d 132

Hurricane Floyd, in 1999, caused extensive flooding in several subdivisions in Newport News. Kitchen filed suit because of extensive damage and loss to real and personal property. Kitchen alleged taking of private property without just compensation in violation of both the Fifth Amendment to the United States Constitution, and 42 U.S.C. § 1983, and inverse condemnation under Article I, § 11 of the Constitution of Virginia and Va. Code § 8.01-187. Trial court dismissed all allegations on demurrer. Supreme Court reversed and remanded. Taking or damaging property in the constitutional sense means that governmental action adversely affects the landowner’s ability to exercise a right connected to the property. Kitchen alleged that City’s actions caused the subdivisions to be retention ponds for overflows of Jones Run, and as a direct result of governmental action the subdivision was subject to frequent flooding. Kitchen was also entitled to pursue his Fifth Amendment claims simultaneously with his state law claims. Section 8.01-187 disturbs no vested rights and creates no new obligation. It merely supplies another remedy to enforce existing rights.

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