# Petition for Writ of Certiorari — Wood v. City Council of Manassas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 869

## Text

@8 47% JUL 2-998

In The
Supreme Court of the United States

October Term, 1997

WILLIAM DOYLE WOOD,
Petitioner
v.
CITY COUNCIL OF MANASSAS, VIRGINIA,
and
THE BOARD OF SUPERVISORS OF PRINCE WILLIAM COUNTY,
and

MANASSAS REGIONAL AIRPORT ADMINISTRATION BOARD

On Petition For Writ Of Certiorari
To The Supreme Court of Virginia

PETITION FOR WRIT OF CERTIORARI

NORBORNE P. BEVILLE, JR.
Counsel of Record

9305 GRANT AVENUE

MANASSAS, VIRGINIA 20110

(703) 631-3259

ll I

QUESTIONS PRESENTED FOR REVIEW

1) May the trial court make a finding of fact without
hearing evidence that alleged acts of nuisance, trespass, and inverse
condemnation constituting a conspiracy and a physical invasion of
property in violation of Amendments V and XIV of the Constitution
of the United States of America, are preliminary activities involving
planning in order to sustain a demurrer and to dismiss this case with
prejudice, denying the petitioner a trial and any opportunity to present
evidence in violation of Amendments V and XTV of the Constitution

of the United States of America?

2) May the trial court dismiss the petitioner's case for
failure to give notice of an "account" pursuant to Code of Virginia -
Section 15.1-550 prior to filing for claims of a proprietary nature
alleging nuisance, trespass, and inverse condemnation in violation of
Amendments V and XIV of the Constitution of the United States of
America and dismiss the matter with prejudice and without leave to
amend or the opportunity comply with procedural requirements,
denying the plaintiff a trial or any adjudication of his rights in
violation of Amendments V and XIV of the Constitution of the United

States of America?

TABLE OF CONTENTS

PAGE NUMBERS

Questions Presented For Review

Table of Contents

Table of Cited Authorities

Citation of Reports

Basis of Jurisdiction

Applicable Constitutional Provisions and Statutes
Statement of the Case

Argument for \llowance of a Writ of Certiorari
Appendix

Order Circuit Court of Prince Wiliam County,
Virginia September 5, 1997

Order Supreme Court of Virginia April 3, 1998

ii

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A8

TABLE OF CITED AUTHORITIES

PAGE NUMBERS

Agins v. Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 7
65 L. Ed 2d 106 (1980)

Danforth v. United States, 308 U.S. 271, 60S. 7
Ct. 231 84 L. Ed 240 (1939)

First English Evangelical Luther Church v. 6,7
Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96
L. Ed 2d 250 (1987)

Lucas v. South Carolina Costal Counsil, 505 U.S. 8
1003, 112 S. Ct. 2886, 120 L. Ed 2d 798 (1992)

Williamson County Regional Planning Commission v. 8,9
Hamilton Bank, 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed 2d 126
(1985)

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CITATION OF REPORTS
There are no official or unofficial reports of the orders entered
in this case. Copies of the Orders of the Circuit Court of Prince
William County, Virginia and the Supreme Court of Virginia are

attached in the Appendix.

BASIS OF JURISDICTION

This Court has jurisdiction of this appeal pursuant to § 28
U.S.C 1257 based upon the dismissal of the case without a hearing
denying the petitioner's rights under Amendments V and XIV of the
Constitution of the United States of America on September 5, 1997
and the refusal of the Petition for Appeal by the Supreme Court of
Virginia on April 3, 1998.

APPLICABLE CONSTITUTIONAL PROVISIONS AND
STATUTES

CONSTITUTION OF THE UNITED STATES OF AMERICA
AMENDMENT V

No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a
grand jury, except in cases arising in the land or naval forces, or in the

militia, when in actual service in time of war or public danger; nor

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shall any person be subject for the same offense to be twice put in
jeopardy of life or limb, nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

AMENDMENT XIV
Section 1.

All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and
of the state wherein they reside. No state shall make or enforce any
law which shall abridge the privileges or immunities stcbioiae of the
United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within

its jurisdiction the equal protection of laws.

CODE OF VIRGINIA SECTION 15.1-550

§ 15.1-550. No account shall be allowed by the board of
supervisors unless the same shall be made out in separate items and
the nature of each item specifically stated, and, when no specific fees
are allowed by law, the time actually and necessarily devoted to the
performance of any service charged in such account shall be verified

by affidavit, to be filed therewith. The attorney for the

Commonwealth, or the county attorney in those counties which have
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created the offfice of county attorney, shall represent the county
before the board and shall advise the board of any claim which in his
opinion is illegal or not before the board in proper form, and upon
proper proof, or which for any other reason ought not to be allowed.
When any claim has been allowed by the board against the county
which in the opinion of such attorney, or any six freeholders of the
county is improper as to form or proof or illegal, he shall seek the
advice of the Attorney General as to legality or the State Auditor of
Public Accounts as to matters of accounting, or such freeholders may
appeal the decision of the board to the circuit court of the county. If
either the Attorney General or the State Auditor of Public Accounts is
of the opinion the claim is illegal or in improper form, the attorney for
the Commonwealth shall appeal from the decision of the board to the
circuit court of the county. In any event of any such appeal, the
moving party shall cause a written notice thereof to be served on the
clerk of the board and the party in whose favor the claim is allowed
within thirty days after the making of such decision. If the court finds
and states in its order that the claim was improperly allowed but that
the consideration received or to be received by the county for
payments made or to be made was or will be for value, it shall dismiss
the appeal. If the court finds otherwise, it shall remand the claim to
the board of supervisors for appropriate action. Whenever any claim
allowed by the board is declared illegal by a court of competent

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juridiction, the attorney for the Commonwealth, or the county attorney

in those counties which have created the office of county attorney, in
the name of the county, shall institute proper proceedings in the circuit
court of his count within two years for the entry of the order allowing
the same, if such amount has already been paid. The attorney for the
Commonwealth, or the county attorney in those counties which have
created the office of county attorney, shall be available to the board
and hive his legal opinion when requested. (Code 1950, § 15.-257;
1962, c. 623; 1968, c. 450; 1980, c. 58;1982, c. 173; 1984, c. 617.)

CODE OF VIRGINIA SECTION 15.1-554

§ 15.1-554. No action shall be maintained by any person
against a county upon any claim or demand until such person shall
have first presented his claim the board of supervisors of such county
for allowance, unless the governing body of the county has entered
into a binding arbitration agreement or there is a provision in a written
contract with the county to submit to arbitration any controversy
thereafter arising. When there exists such a provision in a contract or
there is a written agreement to arbitrate, the provisions of the Uniform
Arbitration Act, Article 2 (§ 8.01-581.01 et seq.) of Chapter 21 of
Title 8.01, shall apply. (Code 1950, § 15-261; 1962, c. 623: 1987, c.

483.)

STATEMENT OF THE CASE

ihe Lana Sa Se

The plaintiff, William Doyle Wood, alleged takings by
conspiracy, nuisance, trespass, inverse condemnation, and physical
invasion of his property by the City Council of Manassas, Virginia,
the Board of Supervisors of Prince William County, Virginia, and the
Manassas Regional Airport Administration Board by reason of the
creation of a runway protection zone for and low level overflights of
his abutting property into and out of the Manassas Regional Airport
and other related activities constituting an all use taking of his
property in violation of Amendments V and XIV of the Constitution

of the United States of America.

At the hearing on the Demurrers and Pleas in Bar filed by the
defendants the Circuit Court of Prince William County, Virginia ruled
that Wood's noncompliance with the notice provisions of Section
15.1-550 of the Code of Virginia required dismissal with prejudice as
to the Board of Supervisors of Prince William County, Virginia and
made a finding of fact that the actions of the City Council of
Manassas, Virginia and the Manassas Regional Airport
Administration Board were preliminary activities which required
dismissal with prejudice of the action as to them. The petitioner

contended on appeal that these rulings deprived him of his property

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without due process of law citing First English Evangelical Lutheran
Church v. Los Angeles 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed 2d
2500 (1987).

The Supreme Court of Virginia ruled on April 3, 1998 that

there was no reversible error in the judgment complained of.

ARGUMENT FOR ALLOWANCE OF A WRIT OF
CERTIORARI

In his pleading filed in the Circuit Court of Prince William
County, Virginia, Wood has alleged causes of actions for conspiracy,
inverse condemnation, nuisance, and trespass. The facts alleged are
summarized as follows: a conspiracy under color of state and local
laws to harm him in his trade or profession; the identification and
designation of noise overlay areas, which admitted the existence of
sound nuisances; the formulation of an application to the FAA of
noise exposure maps; the encouragement of increased business on the
Airport: the creation of an RPZ. Runway Protection Zone; the
expansion of the LDN 65 area in which the noise reached 65 decibels
or more in a twenty-four hour period; the encouragement by the City
and County of limited residential building in the County near the
Airport; studies which eventually led to the acts complained of therein

and the eventual deprivation of Wood's vested property rights;

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appraisals of the Wood property and other properties; and introduction

of helicopter traffic.

The trial court accepted evidence in the form of an affidavit as
to the ownership and operation of the airport but based its ruling on
the fact that the acts complained of were "preliminary activities."

This decision apparently arises from the holding of the U.S.
Supreme Court in Danforth v. United States, 308 U.S. 271, 60 S.Ct.
231 84 L. Ed 240 (1939) involving the enactment of flood control
legislation and Agins v. Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65. L.
ED. 2d 106 (1980) involving enactment of zoning ordinances. While
both of these were deemed not to be takings, this doctrine appears to
have been severely eroded if not overruled by the holding in First
English Evangelical Lutheran Church v. Los Angeles, 482 U.S. 304,
107 S. Ct. 2378, 96 L. Ed 2d 250 (1987).

The petitioner contends that the apparent judicial notice taken
by the trial court as to the facts alleged being "preliminary activities"
is obvious error and contravenes the holding of the Supreme Court of
the United States of America in First English Evangelical Lutheran
Church v. Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed 2d
250 (1987). This case held clearly that any taking which denies a
landowner all use of his property requires compensation under the

Constitution of the United States of America.

The trial court in this case ruled without hearing any evidence
that all activities by the defendants were "preliminary activities" and
required dismissal. No authority was cited for this and Wood
contends that none exists. Logically all activities are preliminary to
something else and at this point Wood has alleged a taking of all uses
of his property sufficient to meet the test of Lucas v. South Carolina
Costal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed 2d 798
(1992) that required compensation where the activities complained of
deprived him of all economically viable use of his property and
therefore effected a taking.

The trial court further dismissed the action as to the Board of
Supervisors of Prince William County, Virginia for failure to give
notice to the Board as required by Code of Virginia Sections 15.1-550
and 15.1-554. This dismissal was with prejudice and without leave to
amend and effectively denied Wood any option to give notice and
refile, thus denying his right to be heard in violation of Amendments
V and XIV of the Constitution of the United States of America.

The ruling assumes that the petitioner had an "account" with
the Board but also required him to submit a claim to the very party
whose actions he was complaining of. Although the case of
Williamson County Regional Planning Commission v. Hamilton Bank,
473 U.S. 172, 105 S. Ct. 3108, 87L. Ed 2d 126 (1985) requires
exhaustion of state remedies, the trial court's dismissal of the matter

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with prejudice and without leave to amend or refile clearly constitutes
a final decision and allows the petitioner to appeal as held in this case.

Petitioner William Doyie Wood has alleged in his initial
pleading a deprivation of all use of his property and a taking requiring
compensation under Amendments V and XIV of the Constitution of
the United States of America. By its ruling sustained by the Supreme
Court of Virginia that these were preliminary activities the trial court
denied the landowner Wood compensation and even the right to
present evidence. This Court should declare such actions in violation
of the Constitution of the United States of America and the case

should be remanded for further proceedings.

RESPECTFULLY SUBMITTED
William Doyle Wood
By Counsel

NORBORNE P. BEVILLE, JR.
Counsel for Petitioner

9305 Grant Avenue

Manassas, VA 20110

(703) 361-7156

APPENDIX

A2. Order Circuit Court of Prince William County, Virginia
September 5, 1997

A8. Order Supreme Court of Virginia April 3, 1998

Al

VIRGINIA:

IN THE CIRCUIT COURT FOR PRINCE WILLIAM COUNTY

WILLIAM DOYLE WOOD,
Plantiff,

LA: 43132

y
VIRGINIA
et al.,

)

)

)

)

)

)

CITY COUNCIL OF MANASSAS, )
)

)

)

Defendants, )
)

ORDER

THIS CAUSE, came to be heard on the Plea In Bar and
Demurrer of the City Council of Manassas, Virginia and Manassas
Regional Airport Administration Board as well as the Plea In Bar and
Demurrer of the County of Prince William. For the reasons stated
from the bench on August 15, 1997, it appears that the Demurrer of
Prince William County should be granted because the plaintiff did not
comply with the requirements of Sections 15.1-550 through 15.1-554,
Code of Virginia, for plaintiffs monetary claims for compensation

ased on inverse condemnation, nuisance and trespass,

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and the Demurrer of the City Council of Manassas, Virginia and the

Manassas Regional Airport Administration Board should be granted
because the only activity engaged in by these defendants was

preliminary activity which was not actionable by William Doyle Wood.

Accordingly.

IT IS ORDERED, that the Motion for Judgment, Petition In
Inverse Condemnation And For Declaratory Judgment of William
Doyle Wood should be dismissed with prejudice and without leave to
amend.

THIS IS A FINAL ORDER.

ENTERED this Sth day of September, 1997.

BK0157PG1021

"s/Herman A. Whisenant"
Herman A. Whisenant, Jr., Judge

WE ASK FOR THIS:

"s/J W Boykin"

Jerry William Boykin (VSB #15056)
Redmon, Boykin & Braswell, LLP
510 King St., Suite 301

Alexandria, VA 22314

Counsel for Defendants
CITY COUNCIL OF MANASSAS, VIRGINIA
& MANASSAS REGIONAL AIRPORT ADMINSTRATION BOARD

A3

"s/Robert B. Dickerson"

Robert B. Dickerson, Asst. County Attorney
Office of Prince William County Attorney

1 County Complex Court

Prince William, VA 22192

Counsel for Defendant
PRINCE WILLIAM COUNTY
BK0157PG1022

SEEN AND OBJECTED TO AND EXCEPTIONS NOTED:

"s/N. Beville"

Norborne P. Beville, Jr., Esq.
9305 Grant Ave.

Manassas, VA 20110-5064

Counsel for Plaintiff
WILLIAM DOYLE WOOD

A4

VIRGINIA

IN THE CIRCUIT COURT FOR PRINCE WILLIAM COUNTY
WILLIAM DOYLE WOOD,

Plaintiff,
v. Law No. 43132
CITY COUNCIL OF MANASSAS, VIRGINIA, et al

Defendants.

EXCEPTION

The plaintiff, William Doyle Wood by counsel, excepts to the
Court's ruling of August 15, 1997, upon the following grounds.

l. The Court disMissed this matter as to the City Council
and the Airport Board upon the basis that plaintiff's Motion for
Judgment alleges preliminary activities about the planning for the
taking of the land and the runway.

The effect of this ruling appears to be that only an actual
physical occupation of ground itself would be compensable and that
these alleged actions are not compensable.

Counsel for the City and Board cited the case of First English
Evangelical Lutheran Church v. Los Angels 482 U.S. 304, 107 S.Ct.
2378, 46 L.Ed 2d 250 (1987). Plaintiff reads this case to support the

proposition that even a temporary taking which denies him of all use of

BK0157PG1023
A5

his property is compensable. This case discusses preliminary activities
only in the cases of Danforth v. United States 308 U.S. 271, 60 S.

Ct 231 84 L Ed. 240 (1939), which held that enactment of flood
control legislation was not a taking and Agins v. Tiburon 447 US 255,
100 S.Ct 2138, 65 L Ed. 2d 106 (1980), which involved enactment of
zoning ordinances and was deemed not a taking.

At this point there is no allegation or evidence that the
activities of defendants including violation of federal regulations were
preliminary to anything and plaintiff excepts to the Court's ruling in
this regard.

z. The Court dismissed the action against the County for
failure to comply with §15.1-550 and thereafter while the plaintiff has
presented-argument as to that and again notes his exceptions, he also
contends that the dismissal cannot be with prejudice. The County cites
Parker v. Prince William County, 198 Va. 231, 935 E 2d 136 (1956)
for the proposition that compliance with these statutes is jurisdictional.
The Court having ruled that it has no jurisdiction as to the County, the

matter cannot be dismissed with prejudice solely upon that basis.

WILLIAM D. WOOD
By Counsel

decoy

wg Per ee

Ct i Lad EN ae Oe Roe

"s/N Beville"
NORBORNE P. BEVILLE, JR.

Attorney At Law

9305 Grant Avenue

Manassas, Virginia 20110-5064
(703) 361-7156

Counsel for Plaintiff

CERTIFICATE

I hereby certify that a true copy of the foregoing Exception

was mailed to the City Council of Manassas and Manassas Regional

Airport Administration Board, c/o Jerry W. Boykin, Redmon, Boykin

& Braswell, 510 King Street, Suite 301, Alexandria, Virginia 22314,

and The Board of Supervisors of Prince William County, c/o Robert

B. Dickerson, Assistant County Attorney, 1 County Complex Court,

Prince William, Virginia 22192-9201, this 29th day of August, 1997.

"s/N Beville"
Norborne P. Beville, Jr.

BKO0157PG1024

A7

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court

Building in the City of Richmond on Friday the 3rd day of April, 1998.

William Doyle Wood, Appellant,

against Record No. 972489
Circuit Court No. 43132

City Council of Manassas, et al., Appellees,

From the Circuit Court of Prince William County

Upon review of the record in this case and consideration of the
argument submitted in support of and in opposition to the granting of
an appeal, the Court is of opinion there is no reversible error in the
judgment complained of. Accordingly, the Court refuses the petition

for appeal.

A Copy,
Teste:
David B. Beach, Clerk
By: "s/ Wendy L. Tuck"
Deputy Clerk

A8

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1214%3A1. Public record. Not legal advice.