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

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the state, and is not a taking of private property for a public use in the sense contemplated by the Constitution, for which compensation must be allowed.”); State Highway and Transp. Comm’r v. Linsly, 290 S.E.2d 834, 837 (Va. 1982) (similar). Said another way, nuisance abatement under the police power does not trigger a constitutional right to just compensation. See Stickley v. Givens, 11 S.E.2d 631, 638 (Va. 1940). B. With these principles in mind, we address Fox’s two related challenges to the district court’s grant of summary judgment for the city on the inverse condemnation claim. First, he argues that a jury must decide whether the house at 615 Walker Avenue constituted a nuisance. Second, he argues that a jury must decide whether the city acted pretextually in claiming that it demolished the house to eliminate blight or abate a nuisance. Beginning with whether a jury must decide if the house constituted a nuisance, Fox is wrong for two reasons. First off, Fox never appealed the city’s determination that the house constituted a nuisance. That failure to exhaust administrative remedies bars him from challenging the nuisance determination thereafter. See Lee v. City of Norfolk, 706 S.E.2d 330, 337–38 (Va. 2011). Second, aside from his exhaustion problem, whether Fox’s property was a nuisance under Virginia law is not a material issue in this case. Fox’s claim fails whether or not the house was a nuisance. What if the house was a nuisance? Then the city properly abated it without compensation under its police power. See Stickley, 11 S.E.2d at 638; Lee, 706 S.E.2d at 338. In that situation, Fox cannot sustain an inverse condemnation claim because the city never “took” property in the eminent domain sense. See Lee, 706 S.E.2d at 338. 13
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