2012

Livingston v. Va. Dept. of Transp.

Supreme Court of Virginia

284 Va. 140, 726 S.E.2d 264

Plaintiffs were homeowners or renters in Huntingdon subdivision in Fairfax County located along Cameron Run, a tributary of the Potomac. On June 25, 2006, torrential rain caused heavy flooding and damage from Cameron Run overflow. Plaintiffs alleged that the flooding was caused by changes in Cameron Run during construction of the Capital Beltway, and VDOT’s failure to dredge or control sediment accumulation in the stream channel. Trial court granted VDOT’s demurrers and dismissed the suit, holding that a single occurrence of flooding cannot support an inverse condemnation claim under Article I, § 11 of the Constitution of Virginia. Supreme Court reversed. A government’s failure to act can give rise to a compensable damaging under Article I, § 11. The inverse action arises from the failure to maintain the channel, which channel was part of the public use of the Beltway. A single occurrence of flooding, even of an extraordinary nature, can support an inverse claim. VDOT elected to use nearby subdivisions as temporary storage sites for excess storm water instead of maintaining Cameron Run. Plaintiffs can also seek compensation for damaged personal property appurtenant to the real property.

Dissent by Justices McClanahan and Goodwyn, stating that the Plaintiffs failed to allege that VDOT damaged their properties through exercise of the power of eminent domain under Va. Code § 33.1-89, but also failed to allege it was damaged for a public use. Acts of negligence in failing to maintain do not constitute a constitutional taking.

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