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

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the “public use” element of an inverse condemnation claim. See AGCS, 800 S.E.2d at 163 (“Inverse condemnation permits recovery only when property is taken or damaged for public use.” (internal quotation omitted)).9 In sum, whether the house constituted a nuisance is immaterial—Fox’s inverse condemnation claim fails whether the answer is yes or no.10 Fox’s second challenge to the district court’s order fares no better. He argues that a jury must resolve whether the city pretextually stated a purpose of blight elimination or nuisance abatement. And it is true that § 1-219.1(E) authorizes a property owner to argue— as a defense “[d]uring condemnation proceedings”—that “the stated public use is a pretext for an unauthorized use . . . .” That’s because, as we have already said, eminent domain 9 Despite this overlap between blight and nuisance, the state can still abate a public nuisance without paying compensation. See Lee, 706 S.E.2d at 338 (“The law is well settled that the abatement of a nuisance by a public body is not a compensable taking.”); Palmer v. Atl. Coast Pipeline, LLC, 801 S.E.2d 414, 419–20 (Va. 2017) (clarifying that the 2012 Constitutional Amendment limits “the parameters within which eminent domain may be exercised” but “does not abrogate the extensive common law privileges [including an officer’s ability to abate public nuisances] catalogued by the Restatement and recognized in Virginia statutory law”). 10 Fox argues that a nuisance abatement may still become a compensable taking by going “too far.” When reviewing a Fifth Amendment takings claim, we recently stated that “Government actions taken pursuant to the police power are not per se exempt from the Takings Clause . . . .” Yawn v. Dorchester Cnty., 1 F.4th 191, 195 (4th Cir. 2021). Even so, Yawn did not address nuisance abatement of derelict property. See id. at 195–96 (concluding a county’s spraying of pesticides on Zika-infected mosquitoes was not a foreseeable or intentional taking of Yawn’s bees). Nor did it address Virginia takings law, which emphasizes that “abatement of a public nuisance” does not require “any compensation to the owner of the property which creates the nuisance.” Stickley, 11 S.E.2d at 638. 15
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