July 2022 Second Example Ten-point Answers to Virginia Essay Questions
July 2022 - QUESTION 7 – VIRGINIA BAR EXAMINATION
7. After several years of searching, Wilma and Harry Homeowners (Homeowners) found an idyllic parcel of land in the City of Chesapeake, Virginia (City), adjacent to a city park. They built their dream home there in 2010 and added a swimming pool in the backyard a year later. The city park was very large and the portion bordering their home site was remote, wooded and largely used for hiking and “wilderness” camping. Wilma and Harry loved the privacy it offered.
In 2018, the City decided to build a baseball complex near Wilma and Harry’s home. Concerned about the possible effect the construction of the baseball complex would have on their property, Wilma and Harry engaged an engineering firm to determine any effect on their property. The engineer advised them that the City’s plans for the baseball complex would alter the drainage from the park and direct large amounts of water onto their property. In particular, he advised that there was a high probability that drainage from the baseball complex would frequently flood their garage as well as the basement of their house. In addition, the engineer predicted that their swimming pool would be in the drainage area, thus making it impossible to keep the pool in usable condition.
Wilma, Harry and their engineer met the City building officials to advise of the potential damage to their property, and they requested that the City alter its plans so their property would not be affected. The City ignored their request, and there was no further communication with the Homeowners. After the construction was completed in 2020, the predicted flooding of their property began. The flooding has continued to the present and is especially bad during rainy periods.
On March 1, 2022, Wilma came home for lunch and found that their truck and camper were covered with spots of yellow paint. City workers were painting lines in the parking lot of the baseball complex. It was a windy day, and the paint was being blown from the baseball complex and onto the Homeowners’ truck and camper parked on the driveway near their home.
Wilma and Harry were furious with the City and promptly filed suit in the Chesapeake Circuit Court against the City of Chesapeake. The first count alleged that the City’s negligence in painting the parking lot on the windy day had damaged their truck and camper. The second count claimed that the City violated their constitutionally protected right to ownership and enjoyment of their home through inverse condemnation by constructing the baseball complex, and that as a result, their property was a total loss.
The Chesapeake City Attorney responded to the suit by filing a Motion to Dismiss both claims, citing sovereign immunity, and claiming that Wilma and Harry had failed to provide any notice of their claims for damages to the City prior to filing the lawsuit.
| (a) | What do Wilma and Harry need to show in order to prevail on their inverse condemnation action? Explain fully. | |
| (b) | How should the Court rule on the City’s Motion to Dismiss Wilma and Harry’s negligence claim and their inverse condemnation claim on the grounds of sovereign immunity and failure to provide notice? Explain fully. |
July 2022 - QUESTION 7 – EXAMPLE ANSWER
7a. Wilma and Harry will need to show that due to the actions of the City of Chesapeake, their property has been deprived of all use. Cities, towns, and counties in Virginia may excercise emminent domain and condemn private property to be taken for public use. Just compensation must be provided to the owners of such property, and the condemnation may only be for public uses, which are interpreted narrowly, and can only be after a good faith effort to purchase the property for a reasonable price. If no agreement can be reached, the property may only then be condemned following a designated procedure to satisfy Constitutional due process. Inverse condemnation, however, occurs not when the locality has followed the above process, but rather when they have undertaken such actions that although not an outright taking of the property, it has rendered the property essentialy worthless to the owner without compensating them for it. Here, the city’s actions have caused a significant amount of water to be drained onto the property, specifically flooding the house’s garage and basement as well as rendering the swimming pool to be in an unusable condition. The fact that the house and property are so badly flooded due to the city’s actions probably means that the house is incurring significant flood damage and likely serious foundational and structural issues at least in the long term. For that reason, it is likely that Wilma and Harry can show that the city’s actions have deprived them of all use of their property, as a lot that is constantly flooded to such an extent is not useful as a home and likely not usable for any other valuable purpose. Therefore, it is likely that Wilma and Harry could prevail on an inverse condemnation claim agaisnt the City of Chesapeake.
7b. The Court should dismiss Wilma and Harry’s negligence claim for both lack of notice and because of the City of Chesapeake’s soveriegn immunity.
Negligence claims against cities can only proceed if the city is given 6 month’s notice of such claims. As it does not appear that Wilma and Harry have given any notice to the City of Chesapeake concerning their negligence claim agaisnt it, the city’s motion to dissmiss should be granted. Additionally, even if the notice requirements are met, the city would likely enjoy soveriegn immunity for its actions. Soveriegn immunity for towns and cities exists with respect to governmental functions, although they can be sued for negligence in proprietary functions. Governmental functions are such functions that require the excercise of governmental discretion. Some examples include actions of the police force, fire department, design of roadways, etc. Proprietary functions are those functions which are conducted primarly for the conveinence of its citizens, and include such things as maintence of roads. When an action by a city or town contains both governmental and proprietary elements, the govermental function controls and extends soveriegn immunity. Such limited waiver of soveriegn immunity for cities and towns is unlike that of counties in Virginia, which remain absolutely immune for actions in tort. When a function is deemed governmental and soveriegn immunity extends, the city will only be liable if gross negligence is shown. Operation of recreational facilities such as parks or the baseball complex shown here have been deemed to fall under soveriegn immunity. Such immunity extends even beyond the physical confines of the recreational facility, as city trash trucks hauling stuff away from a park miles away from the park have been held to be engaging in the operation of recreational facilities. Therefore, Wilma and Harry will have to show gross negligence to be successful, and nothing in the facts seems to suggest that the city was anything beyond ordinarily negligent in operation of the baseball complex. Soveriegn immunity will extend to the City of Chesapeake’s actions, and the suit will be dismissed.
The Court should not dismiss the inverse condemnation claim. Although 6 months notice is required for suits in tort agaisnt cities in towns, there is no such requirement for inverse condemnation claims. Likewise, soveriegn immunity does not apply to the area of emminent domain as the city is constitutionally bound to provide just compensation it the owners of property it has taken, whether by traditional condemnation proceedings or inverse condemnation. For those reasons, the court should not dismiss Wilma and Harry’s inverse condemnation claim.