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D.A. Realestate Investment, LLC v. City of Norfolk (2025)

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3. Following these adjustments, Virginia law only permits the exercise of eminent domain for defined public uses. If a government takes property without condemnation proceedings or just compensation, a property owner can bring an “inverse condemnation” action for just compensation. See United States v. Clarke, 445 U.S. 253, 257 (1980). Virginia law permits inverse condemnation actions under the state constitution and a separate statutory provision. Va. Const. art. I, § 11; Va. Code Ann. § 8.01-187; see Kitchen v. City of Newport News, 657 S.E.2d 132, 141–42 (Va. 2008). To succeed, a claimant must establish that (1) he owns private property; (2) a condemning authority has taken or damaged the property; (3) “the taking or damaging was for ‘public use’”; and (4) “[t]he . . . condemning authority failed to pay just compensation.” Close v. City of Norfolk, 82 Va. Cir. 636, at *4 (Va. Cir. Ct. 2009); see also Kitchen, 657 S.E.2d at 136–38. Just as in a regular condemnation action, an inverse condemnation action “permits recovery only when property is taken or damaged for public use.” AGCS, 800 S.E.2d at 163 (internal quotation omitted). A state may also restrain property rights under its police power. “[P]roperty in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community, and the Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it.” Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 491–92 (1987) (cleaned up). Virginia law has long recognized police power authority to abate a public nuisance without compensation. See, e.g., Jeremy Imp. Co. v. Commonwealth, 56 S.E. 224, 226 (Va. 1907) (“The abatement of such a nuisance for the public safety comes under the police power of 12
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