PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Carrico and Koontz, S.JJ. *
JOSEPH C. LEE OPINION BY
JUSTICE WILLIAM C. MIMS
v. Record No. 092385 March 4, 2011
CITY OF NORFOLK
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Junius P. Fulton, III, Judge
In this appeal, we review the circuit court’s dismissal,
upon demurrer and pleas in bar, of a property owner’s claims
for compensation and damages following the demolition of a
residential building by the City of Norfolk.
FACTS
The circuit court dismissed the case below on demurrer and
pleas in bar without taking evidence. “Where no evidence is
taken in support of a plea in bar, the trial court, and the
appellate court upon review, consider solely the pleadings in
resolving the issue presented.” Lostrangio v. Laingford, 261
Va. 495, 497, 544 S.E.2d 357, 358 (2001). The facts as stated
in the plaintiff’s pleadings are taken as true for the purpose
of resolving the special plea. Id.
Joseph C. Lee (“Lee”) owned a duplex (“the building”) in
Norfolk. On June 2, 2006, the City of Norfolk (“the City”)
*
Justice Koontz presided and participated in the hearing
and decision of this case prior to the effective date of his
retirement on February 1, 2011; Justice Kinser was sworn in as
Chief Justice on February 1, 2011.
issued a building permit to Lee to repair damage caused by an
accidental fire. On August 25, 2006, the permit was revised to
include authorization for elevation of the building out of a
floodplain to prevent water intrusion.
On or about September 5, 2006, while repairs were ongoing,
the City’s Occupancy Inspector inspected the building.
According to the City, Lee’s duplex was observed with most of
the roof missing, an unsecured roof gable, shattered brickwork
(some of which was falling off), glass windows pulled loose
from their frames, rotten portions along the base of certain
walls, some walls raised off the foundation with improperly
used jacks, dangling electric wires at the point where the
service was connected to the house, and piles of dangerous
debris strewn about.
The next day, Lee received a telephone call from a City
employee who informed him that his building permits had been
revoked because he had exceeded the “50 percent rule.” This
rule limits repairs to non-conforming structures, such as Lee’s
duplex, to 50% of the value of the structure. Lee never was
informed in writing that his permits had been revoked.
On September 20, 2006, Lee received a letter by certified
mail, dated September 12, 2006, from James A. Rogers
(“Rogers”), the Acting Chief of the Division of Neighborhood
2
Preservation for the City. The letter informed Lee that the
building
was inspected and found to be open providing a
haven for undesirable & criminal activities.
THE STRUCTURE HAS BEEN RENDERED UNSAFE BY
ATTEMPTED REPAIRS. The property is in violation
of health and safety regulations of Section
130.0 of the Virginia Uniform Statewide Building
Code (USBC) and Article I, Chapter 27, Section
27-8 of the Code of the City of Norfolk.
Therefore it has been declared UNSAFE AND A
PUBLIC NUISANCE.
Rogers directed Lee to board and secure the property by
September 20 and to have the building demolished by September
27. Rogers then stated: “If there are sound reasons why this
limit cannot be met, or you are not in agreement with the
interpretation or application of the code, you must contact me
immediately.” Later in the letter, Rogers outlined Lee’s right
of appeal:
Any owner who is aggrieved by the Code
Official’s decision concerning the application
of the USBC or refusal to grant modification to
the provisions of the USBC may appeal that
decision pursuant to Section 106.5 of the USBC.
The appeal must be filed with the appropriate
authority in writing, with a filing fee within
twenty-one (21) days of this notice.
Lee promptly retained counsel. One week later, on
September 27, Lee and his attorney met with the Assistant City
Attorney and several other City employees to discuss the issues
raised in the September 12 letter. At the meeting, Lee agreed
to make certain changes requested by the City to alleviate the
3
safety concerns. The record does not indicate any questions or
discussions by Lee or his attorney at this meeting or
subsequently regarding his right to appeal the public nuisance
finding or the demolition directive.
Following the September 27 meeting, Lee made some efforts
to comply with the City’s requirements. However, the City
deemed them to be unsatisfactory. Lee also hired a structural
engineer to evaluate the building, who filed a report with the
City on November 10, 2006. The report concluded that the
building was not in danger of immediate collapse and
recommended the reissuance of the permits. The City requested
additional information from Lee’s engineer, who declined to
provide it or work further on the matter. Lee then hired a
second engineer, who provided some but not all requested
information to the City six weeks after the initial engineer’s
report, on December 21, 2006.
However, on December 19, 2006, Rogers had mailed another
letter to Lee. In it, Rogers reiterated the deficiencies in
Lee’s proposed engineering plan and informed Lee that “[t]he
extensions to date have expired, and no further extensions will
be granted. The City of Norfolk will be demolishing the
structure under the emergency provisions of the Uniform
Statewide Building Code.” He explained that “[t]his action is
a continuum of the certified letter to you dated September 12,
4
2006, declaring the structure UNSAFE AND A PUBLIC NUISANCE.”
The City demolished the building 17 days later, 107 days after
Lee received the initial letter that gave notice it was a
public nuisance, directed the demolition, and outlined the
right of appeal.
During those 107 days, Lee did not file an appeal. The
record does not reflect any inquiries or other communications
from him or his attorney regarding his right to do so.
PROCEEDINGS BELOW
Lee filed suit against the City in the Circuit Court of
the City of Norfolk. His complaint consisted of three counts.
First, he claimed deprivation of his federal due process rights
under 42 U.S.C. § 1983 (2006 & Supp. I 2007). Second, he
brought a state claim for violation of his due process rights
under Article I, Section 11 of the Constitution of Virginia,
alleging that the City had taken his property for public use
without just compensation by inverse condemnation. Third, he
brought a common law claim sounding in tort for property
damages.
The City demurred to count one and filed pleas in bar to
counts two and three. In its demurrer, the City argued that
“the availability of the inverse condemnation procedure, per
se, provide[d] Lee with due process of law in satisfaction of
the U.S. Constitution.” In its pleas in bar, the City argued
5
that Lee did not have a viable inverse condemnation claim
because he never appealed the City’s determination that the
property was a nuisance. On count three, the City argued that
Lee did not give timely notice to the City as required by Code
§ 15.2-209. It further argued that, under the doctrine of
sovereign immunity, the City is immune from liability for all
acts or omissions made by City personnel engaged in the
governmental function. The circuit court sustained the
demurrer to count one with leave to amend, and deferred
judgment on the inverse condemnation and property damage counts
so the record could be more fully developed.
The court’s order also stated that “[t]he demurrer is
sustained with respect to . . . count two of the Complaint.”
Since the Court in the same ruling deferred a ruling on the
inverse condemnation claim in count two, apparently the court
interpreted count two as including a distinct state due process
claim in addition to the inverse condemnation claim and
therefore sustained the demurrer as to both federal and state
due process claims based on the availability of the inverse
condemnation remedy.
Lee subsequently filed an amended complaint, alleging
federal claims in count one that the City violated 42 U.S.C.
§ 1983, and his “constitutionally guaranteed property and civil
rights.” He stated that the City’s conduct violated both due
6
process and equal protection guarantees: it was “arbitrary,
unreasonable, irrational, and without legitimate basis or
purpose” and it “intentionally regulated and treated the
subject property differently from other similarly-situated
properties . . . without legitimate reason or rational basis.”
Specifically, he pointed to his active negotiations with the
City and the engineering reports that concluded the property
was not in danger of collapse.
In his amended complaint, Lee alleged numerous defects
with the notice provided by the September 12, 2006 letter, as
follows: the letter cited a provision of law that did not exist
and omitted required elements of proper notice; the letter or a
similar notice was not sent to the lienholder on the property
and the City did not publish notice in a newspaper of general
circulation once a week for two consecutive weeks, both as
required by Code § 15.2-906; and the letter did not contain a
statement requiring the person receiving it to accept or reject
the terms of the notice as is required by § 118.3 of the
Virginia Construction Code.
Lee did not modify his claims for inverse condemnation or
property damage, except to include the Constitution of the
United States as additional authority for his inverse
condemnation claim. The City again filed a demurrer and pleas
in bar relying on the same grounds as previously. However, the
7
demurrer now stated that it was encompassing the due process
and equal protection claims.
The circuit court, from the bench, sustained the demurrer
as to the equal protection claim with leave to amend. Later,
the court issued a letter opinion sustaining the demurrer to
the due process claims without leave to amend. In the letter,
the court stated that Lee “cannot, as a matter of law make a
case for due process deprivation while he is entitled to
postdeprivation relief under his Count II claim for relief for
inverse condemnation.”
Lee then filed a second amended complaint consisting of a
renewed equal protection claim, as well as restating the
existing claims for inverse condemnation and property damage.
It also continued to include federal and state due process
allegations and claims. In response to the second amended
complaint, the City filed an answer with affirmative defenses,
including that Lee had failed to exhaust his administrative
remedies. The City also filed an “Objection to Second Amended
Complaint and Motion to Dismiss” in which it argued that Lee
failed to replead his equal protection claim within 14 days,
and that Lee had again alleged violations of due process after
the court denied Lee leave to do so. The court heard argument
and, ruling from the bench, denied the motion to dismiss.
However, the order denying the motion to dismiss stated:
8
it appearing to the Court that [Lee], without
waiving and while expressly reserving his
exception and objection to the Court’s prior
ruling dismissing [his] due process claims,
acknowledges and agrees that as the result of
said prior ruling of the Court Count One of the
Second Amended Complaint states only an equal
protection claim.
The City subsequently filed a revised answer to the second
amended complaint and a demurrer to Lee’s equal protection
claim. The circuit court heard argument on the demurrer and
reserved its ruling. Later, the circuit court heard argument
on the pending pleas in bar, initially filed in response to the
first amended complaint, to the inverse condemnation and
property damage claims. From the bench, the court granted the
City’s plea as to the property damage claim and reserved ruling
on the inverse condemnation claim.
By letter opinion dated June 25, 2009, the circuit court
granted the plea in bar to Lee’s inverse condemnation claim and
also analyzed in detail the due process “notice and appeal”
issues that are pleaded in conjunction with the inverse
condemnation claim and that underlie Lee’s first assignment of
error. 1
1
The court later issued a letter opinion overruling the
outstanding demurrer to Lee’s only remaining claim, alleging
violation of his equal protection right. However, Lee then
nonsuited that claim.
9
Lee appeals the various adverse rulings and assigns error,
without elaboration as to the nature of the error, as follows
(verbatim):
1. The trial court erred in dismissing Lee’s due process
claim.
2. The trial court erred in dismissing Lee’s inverse
condemnation claim.
3. The trial court erred in dismissing Lee’s property
damage claim.
DISCUSSION
A. DUE PROCESS
We review de novo the circuit court’s sustaining of the
demurrer, observing familiar principles:
The purpose of a demurrer is to determine
whether a motion for judgment states a cause of
action upon which the requested relief may be
granted. A demurrer tests the legal sufficiency
of facts alleged in pleadings, not the strength
of proof.
Augusta Mut. Ins. Co. v. Mason, 274 Va. 199, 204, 645 S.E.2d
290, 293 (2007) (internal citations and quotation marks
omitted).
On brief, Lee argues that he stated a cause of action for
a violation of his due process rights because of the defects he
listed in the September 12 letter. These defects, Lee argues,
resulted in the denial of his constitutional right to notice
and an opportunity to be heard prior to the demolition of the
building.
10
First, Lee notes that the letter, while alleging violation
of the Uniform Statewide Building Code (“USBC”), erroneously
cited § 130.0 of the USBC, a section that does not exist.
Second, he argues that the letter stated that he had a 21-day
window to appeal under the Maintenance Code of the USBC, 2 but
that the appeal period should have been controlled by the
Construction Code of the USBC, 3 which provides for a 90-day
appeal period. Third, Lee argues that § 118.3 of the
Construction Code requires that an inspection report be
prepared and filed in the records of the local building
department, and that the notice to him should have contained “a
statement requiring the person receiving the notice to
determine whether to accept or reject the terms of the notice.”
Finally, Lee argues that Code § 15.2-906 requires notice to be
given to the owner and lienholder of the affected property, and
be published once a week for two successive weeks in a
newspaper of general circulation in the locality before
demolition may occur. Such notice to lienholder and
publication were not done.
The City responds that, regardless of any notice
deficiencies, a demolition of private property for public use
cannot constitute a due process violation because of the
2
The Maintenance Code is set out in Part III of the USBC.
3
The Construction Code is set out in Part I of the USBC.
11
availability of a post-deprivation action for inverse
condemnation. The City further responds that the alleged
defects in the notice are unrelated to the question of whether
due process was provided, relying upon Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (requiring
notice calculated to apprise parties of the pending action and
an opportunity to present objections).
The United States Constitution guarantees that no state
shall “deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV. “In
procedural due process claims, the deprivation by state action
of a constitutionally protected interest in ‘life, liberty, or
property’ is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without
due process of law.” Zinermon v. Burch, 494 U.S. 113, 125
(1990) (emphasis in original). “The constitutional violation
actionable under § 1983 is not complete when the deprivation
occurs; it is not complete unless and until the State fails to
provide due process.” Id. at 126.
While the Supreme Court of the United States “usually has
held that the Constitution requires some kind of a hearing
before the State deprives a person of liberty or property,” Id.
at 127,”[i]n some circumstances, however, the Court has held
that a statutory provision for a postdeprivation hearing, or a
12
common-law tort remedy for erroneous deprivation, satisfies due
process.” Id. at 128.
The Fourth Circuit Court of Appeals has found that because
“aggrieved property owners may file an inverse condemnation
action pursuant to Virginia’s declaratory judgment statute,”
they are afforded procedural due process as a matter of law.
Presley v. City of Charlottesville, 464 F.3d 480, 490 (4th Cir.
2006) (citing Richmeade, L.P. v. City of Richmond, 267 Va. 598,
594 S.E.2d 606 (2004)); see also Tri-County Paving v. Ashe, 281
F.3d 430, 438 (4th Cir. 2002) (availability of post-deprivation
procedures bars landowner’s procedural due process claim).
We do not address whether, as a general principle, upon a
taking for public use the availability of a post-deprivation
inverse condemnation action by statute affords an aggrieved
landowner due process of law. See Presley, 464 F.3d at 490.
The circuit court concluded that the availability of an inverse
condemnation action by statute afforded Lee due process of law
per se, despite also finding that Lee could not avail himself
of an inverse condemnation action because there was no taking
but only the abatement of a nuisance.
As discussed below, we agree with the circuit court that
the City’s demolition of Lee’s property was not a taking, but
rather the abatement of a nuisance for which no compensation is
due. Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S.
13
470, 492 (1987). Consequently, even if a post-deprivation
hearing would satisfy due process, Lee was not entitled to such
a hearing because there was no compensable taking. The circuit
court therefore erred in sustaining the demurrer to count one
of the amended complaint on that basis. However, for reasons
discussed below, that error was harmless.
This Court has previously explained:
The abatement of a nuisance often requires
prompt and summary proceedings, and where the
abatement is authorized under the police power
of the State and due process of law has been
observed, the owner of the property destroyed
for the public good has no constitutional rights
beyond those provided in the statute under which
the abatement is made.
Stickley v. Givens, 176 Va. 548, 562, 11 S.E.2d 631, 638
(1940). Lee does not contest that the demolition was
“authorized under the police power of the State.” Likewise he
does not challenge the constitutionality of the statute,
regulations, or municipal ordinances under which the City
acted. Id. Rather, on brief his only contention is that, by
its September 12 letter and subsequent conduct, the City did
not observe due process of law because it provided
“insufficient” notice. In doing so, Lee conflates unrelated
regulatory deficiencies with the alleged constitutional
violation of his right to be notified of the City’s decision
and to present his objection. It is possible for a state
14
agency to fail to adhere strictly to its regulations without
violating the constitutional right to due process. See Bates
v. Sponberg, 547 F.2d 325, 329-30 (6th Cir. 1976) (“it is only
when the agency’s disregard of its rules results in a procedure
which in itself impinges upon due process rights that a federal
court should intervene in the decisional processes of state
institutions”).
The circuit court specifically addressed in detail the
“notice and hearing” grounds for Lee’s assignment of error in
its June 25, 2009 letter opinion, which granted the plea in bar
to the inverse condemnation claim that was grounded upon due
process principles. The circuit court stated: “The September
letter represented the notice to demolish under § 118.3 and it
stipulated the time period in which the building needed to be
demolished and gave a 21 day time period during which Lee could
appeal the unsafe designation. . . . Lee’s due process rights
were safeguarded by the opportunity to appeal the decision of
the City that his property constituted a public nuisance.”
Based upon Lee’s own pleadings and the record, we agree
with the circuit court that Lee’s constitutional due process
rights to notice and an opportunity to object were not violated
by the deficiencies of the September 12 letter. In Mullane,
the Supreme Court of the United States explained the notice
required to satisfy due process:
15
An elementary and fundamental requirement of due
process in any proceeding which is to be
accorded finality is notice reasonably
calculated, under all the circumstances, to
apprise interested parties of the pendency of
the action and afford them an opportunity to
present their objections. The notice must be of
such nature as reasonably to convey the required
information, and it must afford a reasonable
time for those interested to make their
appearance.
339 U.S. at 314. 4
The September 12 letter incorrectly cited the controlling
section of the USBC, 5 and we take as true Lee’s allegations that
the City failed to send notice to lienholders or publish the
notice in a newspaper of general circulation. Nonetheless, it
cannot be said that the letter failed to apprise Lee “of the
pendency of the action” or to “afford [him] an opportunity to
present [his] objections.” Id. The letter informed Lee that
the City had found the property to be “unsafe and a public
4
More recently, the United States Supreme Court reiterated
the core principle of Mullane, holding that due process did not
require actual notice in a forfeiture proceeding, but only
notice “reasonably calculated” to “inform those affected.”
Dusenbery v. United States, 534 U.S. 161, 170 (2002). See also
United Student Aid Funds, Inc. v. Espinosa, 559 U.S. ___, ___,
130 S.Ct. 1367, 1378 (2010) (no due process violation where a
failure to hold an adversary proceeding and serve notice
through summons and complaint did not deprive creditor of
adequate notice that its interest will be adversely affected).
5
Section 105.1 of the Virginia Maintenance Code states, in
part: “[W]hen the code official determines that an unsafe
structure or a structure unfit for human occupancy constitutes
such a hazard that it should be razed or removed, then the code
official shall be permitted to order the demolition of such
16
nuisance” in violation of the USBC, and that Lee had a right to
appeal that determination. It is clear that Lee actually
received the notice and appreciated its gravity, since he
immediately retained counsel and met with City officials to
discuss the condition of the property. Upon these specific
facts, it is immaterial whether the appeal period was 21 days
or 90 days, since during the 107 days that elapsed from receipt
of the notice until demolition Lee made no inquiries about his
appeal rights and took no actions to avail himself thereof.
Lee next argues, relying on Jones v. Board of Governors,
704 F.2d 713, 717 (4th Cir. 1983), that he was deprived of due
process as a result of the City’s deviation from its own
procedures and previous assurances. In Jones, the Fourth
Circuit Court of Appeals recognized that “significant
departures from stated procedures of government and even from
isolated assurances by governmental officers which have induced
reasonable and detrimental reliance may, if sufficiently unfair
and prejudicial, constitute procedural due process violations.”
Id. (citing United States v. Caceres, 440 U.S. 741, 752-53 &
n.15 (1979)) (secret audio recordings admissible despite being
made in violation of IRS regulations, as taxpayer had no reason
to rely on those regulations).
structures in accordance with applicable requirements of this
code.”
17
Here Lee neither alleged in his pleadings nor asserted in
his assignments of error or on brief that he “reasonably relied
on agency regulations promulgated for his guidance or benefit
and has suffered substantially because of their violation by
the agency.” Caceres, 440 U.S. at 752-53. Likewise, Lee
neither alleged nor argued that he relied on the “assurances
[of] governmental officers which have induced reasonable and
detrimental reliance.” Jones, 704 F.2d at 717. See also Cox
v. Louisiana, 379 U.S. 559, 571 (1965) (individual could not be
punished for demonstrating near courthouse where the highest
police officials of the city had advised the demonstrators that
they could meet where they did). While Lee stated that he met
with the City and “agreed to make certain changes requested by
the [City] to alleviate [its] safety concerns,” he did not
allege that the City told him that doing so in any way vitiated
his obligation to appeal within the required time-frame
(whether 21 days or 90 days), or that the City induced him not
to appeal.
Accordingly, we agree with the circuit court in its June
25, 2009 letter opinion that Lee actually received
constitutionally adequate notice and an opportunity to appeal.
Lee’s due process claims therefore fail to state a cause of
action upon which the requested relief may be granted. Augusta
Mutual Ins. Co., 274 Va. at 204, 645 S.E.2d at 293.
18
B. INVERSE CONDEMNATION
Lee assigns error to the circuit court granting the City’s
plea in bar to his claim for inverse condemnation for failure
to exhaust administrative remedies. “A plea in bar presents a
distinct issue of fact which, if proven, creates a bar to the
plaintiff’s right of recovery.” Station #2, LLC v. Lynch, 280
Va. 166, 175, 695 S.E.2d 537, 542 (2010) (internal quotation
marks omitted).
The Constitution of Virginia guarantees that “the General
Assembly shall not pass any law . . . whereby private property
shall be taken or damaged for public uses, without just
compensation.” Va. Const. art. I, § 11. The General Assembly
has afforded those aggrieved by a taking with a statutory
remedy for inverse condemnation. See Code § 8.01-187.
By letter opinion, the circuit court found that Lee’s
failure to exhaust his administrative remedies, i.e. appeal to
the local administrative body, barred his inverse condemnation
claim. Lee does not dispute the legal effect of his failure to
appeal. Rather, he argues that, in the absence of proper
notice, an appeal period cannot begin to run.
As discussed above, the City’s September 12 letter
constituted sufficient notice to apprise Lee of his right to be
heard by way of an appeal to the Board of Building Code
Appeals. See Code § 36-105. Having failed to appeal the
19
City’s determination that the property was a nuisance, Lee
acquiesced in that determination as a “thing decided.” Lily v.
Caroline County, 259 Va. 291, 296, 526 S.E.2d 743, 745 (2000)
(dismissal of declaratory judgment action based on failure to
file appeal with board of zoning appeals) (internal quotation
marks omitted).
The law is well settled that the abatement of a nuisance
by a public body is not a compensable taking. Keystone
Bituminous Coal, 480 U.S. at 492 (“the State has not ‘taken’
anything when it asserts its power to enjoin the nuisance-like
activity.”); Stickley, 176 Va. at 561, 11 S.E.2d at 63 (“In the
abatement of a public nuisance, it is not necessary to provide
any compensation to the owner of the property which creates the
nuisance.”); Jeremy Improvement Co. v. Commonwealth, 106 Va.
482, 490, 56 S.E. 224, 227 (1907) (“The abatement of such a
nuisance for the public safety comes under the police power of
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.”). Therefore, the circuit court
properly granted the City’s plea in bar to Lee’s inverse
condemnation claim.
C. PROPERTY DAMAGE
Lee argues that the trial court erred in granting the
City’s plea in bar to his property damage claim. The City’s
20
plea in bar consisted of two grounds: the application of Code
§ 15.2-209 and the doctrine of sovereign immunity. Because no
evidence was taken in support of the plea in bar, we review
Lee’s claim taking all material factual allegations as true.
Station # 2, LLC, 280 Va. at 169, 695 S.E.2d at 539.
Code § 15.2-209(A) requires that “[e]very claim cognizable
against any county, city, or town for negligence shall be
forever barred unless the claimant . . . has filed a written
statement of the nature of the claim . . . within six months
after such cause of action accrued.” In his amended complaint
and second amended complaint, Lee alleged that his counsel
notified the City Attorney, in writing, of the time, place, and
location of the demolition on or about May 2, 2007, less than
six months after the demolition. Taking that allegation as
true, and in the absence of an evidentiary hearing, Code
§ 15.2-209 could not serve as the basis for sustaining the plea
in bar.
Lee further argues that sovereign immunity could not serve
as a bar to his property damage claim against the City. We
have previously explained the standard of review in a sovereign
immunity case:
Where no evidence is taken in support of the
plea, the trial court, and the appellate court
upon review, must rely solely upon the pleadings
. . . in resolving the issue presented. The
21
existence of sovereign immunity is a question of
law that is reviewed de novo.
City of Chesapeake v. Cunningham, 268 Va. 624, 633, 604 S.E.2d
420, 426 (2004) (internal citation omitted). In City of
Chesapeake, we explained that “[s]overeign immunity protects
municipalities from tort liability arising from the exercise of
governmental functions,” id. at 634, 604 S.E.2d at 426, which
include exercises of the “police power.” Id. at 638, 604
S.E.2d 429. See also Edwards v. City of Portsmouth, 237 Va.
167, 171, 375 S.E.2d 747, 749 (1989) (city immune for exercise
of police power).
We have long recognized that the abatement of a public
nuisance is an exercise of the police power. See, e.g.,
Stickley, 176 Va. at 562, 11 S.E.2d at 638 (abatement
authorized under the police power of the state); Bunkley v.
Commonwealth, 130 Va. 55, 68, 108 S.E. 1, 5 (1921) (abatement
of nuisance proper exercise of Commonwealth’s police power).
In City of Chesapeake, we explained that “[a] function is
governmental if it entails the exercise of an entity’s
political, discretionary, or legislative authority.” 268 Va.
at 634, 604 S.E.2d at 426. “[W]hen a municipality plans,
designs, regulates or provides a service for the common good,
it performs a governmental function.” Id. at 634, 604 S.E.2d
426. On the other hand, “[i]f the function is a ministerial
22
act and involves no discretion, it is proprietary.” Id. For
example, “routine maintenance or operation of a municipal
service is proprietary.” Id. at 634, 604 S.E.2d at 427. In
Fenon v. Norfolk, 203 Va. 551, 556, 125 S.E.2d 808, 812 (1962),
we explained:
The underlying test is whether the act is for
the common good of all without the element of
special corporate benefit, or pecuniary profit.
If it is, there is no liability, if it is not,
there may be liability. That it may be
undertaken voluntarily not under compulsion of
statute is not of consequence.
Applying the foregoing principles to this case, it is
clear that the City is immune for exercising its police power
to abate the public nuisance that it had deemed Lee’s building
to pose. See Stickley, 176 Va. at 562, 11 S.E.2d at 638.
Furthermore, the City’s demolition of Lee’s building was not a
ministerial act or routine maintenance of a municipal service.
See City of Chesapeake, 268 Va. at 633, 604 S.E.2d at 426.
Rather, the demolition entailed the exercise of the City’s
discretionary authority, id. at 634, 604 S.E.2d at 426, and was
performed “without the element of special corporate benefit, or
pecuniary profit.” Fenon, 203 Va. at 556, 125 S.E.2d at 812.
Accordingly, we find that the City’s demolition of Lee’s
building was an exercise of the governmental function and that
the City enjoyed sovereign immunity for its actions.
23
Therefore, the circuit court did not err in granting the plea
in bar to Lee’s claim for property damage.
CONCLUSION
For the reasons stated above, the judgment of the circuit
court will be affirmed.
Affirmed.
24