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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.
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