2011

Lee v. City of Norfolk

Supreme Court of Virginia

281 Va. 423, 706 S.E.2d 330

City had issued building permit to Lee to rebuild duplex damaged by fire. More than three months later, a City inspector saw the property in a dangerous condition of serious damage and disrepair. By telephone call the next day, Lee was informed by City that his permit was revoked, as more than 50% of his non-conforming structure had been destroyed. Two weeks later Lee received a letter from the City declaring the duplex unsafe and a public nuisance. Lee made some further attempts at repair, but never appealed the decision in the letter. The City demolished the building 107 days after Lee received the letter giving notice of the public nuisance, directing the demolition of the property, and stating the manner to appeal that decision. Lee filed a complaint listing three counts: (1) deprivation of federal due process rights under 42 U.S.C. § 1983; (2) violation of state due process rights under Article I, § 11 of the Constitution of Virginia by inverse condemnation; and, (3) common law claim for property damage. After demurrers were granted as to the due process claims, Lee included a 42 U.S.C. § 1983 equal protection claim. The trial court ultimately dismissed all claims and Lee appealed. The Supreme Court affirmed. There was no taking of Lee’s property, but an abatement for which no compensation is due. Further, Lee received constitutionally adequate notice from the City and an opportunity to appeal but did not. Therefore, he was given notice and an opportunity to be heard. Lee acquiesced in the City’s decision that the duplex was a public nuisance by his failure to appeal, and abatement by the police power of the State is not a compensable taking. Finally, the City had sovereign immunity from the common law claim for the discretionary exercise of police power to abate a public nuisance.

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