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

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can only be exercised for public use under Virginia law. See AGCS, 800 S.E.2d at 163–64. So if, as Fox argues, the city wrongfully took the property for purposes other than public use, it would be a wrongful exercise of eminent domain. But inverse condemnation is not an available remedy for such wrongful conduct because an essential element of an inverse condemnation claim is the taking of property for public use. Virginia law is clear— “[t]ortious or wrongful conduct by a government official . . . can never be a sufficient ground, in itself, for an inverse condemnation award.” Id. (internal quotation omitted).11 That doesn’t mean Fox had no remedy for what he claims is the city’s wrongful conduct. Fox had several routes to pursue his pretext argument. He could have appealed the city’s nuisance determination to an administrative board. See DARI II, 2023 WL 5347305, at *4; Lee, 706 S.E.2d at 337–38. Or he could have brought a timely § 1983 due process claim for an unlawful taking. See Chi., B. & Q. R. Co. v. City of Chicago, 166 U.S. 226, 234–35 (1897); see also Wheeler v. City of Pleasant Grove, 833 F.2d 267, 270 n.3 11 In a Rule 28(j) letter, Fox argues that a recent Federal Circuit decision supports his unlawful taking argument. See Darby Dev. Co. v. United States, 112 F.4th 1017 (Fed. Cir. 2024). There, landlords filed a federal Tucker Act claim against the federal government for physically taking their rental properties through a COVID-era eviction moratorium. Id. at 1022. Darby found the moratorium “authorized” in the takings sense— the government agent’s action was “chargeable to the government”—even if the moratorium was unlawfully issued. Id. at 1027. Darby does not apply to Fox’s state-law inverse condemnation claim. Virginia law has “consistently adhered to the view that the eminent domain provisions in the Virginia Constitution have no application to tortious or unlawful conduct . . . .” State Highway and Transp. Comm’r of Va. v. Lanier Farm, Inc., 357 S.E.2d 531, 534 (Va. 1987). “The negligent acts of public officials or agents . . . cannot be regarded as acts of the government itself . . . .” Eriksen v. Anderson, 79 S.E.2d 597, 600 (Va. 1954). Darby does not supplant those clear pronouncements from the Supreme Court of Virginia. 16
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