Opposition Brief — Wood v. City Council of Manassas

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No. 98-47

t Ait j

In The .

Suprene Court of the United States

October Term, 1997

WILLIAM DOYLE WOOD,

Petitioner,

VS.

THE CITY COUNCIL OF MANASSAS, VIRGINIA; BOARD

OF SUPERVISORS OF PRINCE WILLIAM COUNTY and THE

MANASSAS REGIONAL AIRPORT ADMINISTRATION

BOARD,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

BRIEF IN OPPOSITION FOR RESPONDENTS

THE CITY COUNCIL OF MANASSAS, VIRGINIA

AND THE MANASSAS REGIONAL AIRPORT

ADMINISTRATION BOARD

JERRY WILLIAM BOYKIN

Counsel of Record

REDMON, BOYKIN & BRASWELL

Attorney for Respondents The City

Council of Manassas, Virginia and

The Manassas Regional Airport

Administration Board

510 King Street, Suite 30]

Alexandria, Virginia 22314

(703) 684-2000

147888 (800) 274-3321 * (800) 359-6859

COUNSEL PRESS

PARTIES TO THE PROCEEDING

The petition accurately lists the parties to this proceeding.

Issues regarding whether the plaintiff below had standing

to sue the parties he did were raised as part of defendants’ Plea

in Bar and Demurrer. The Manassas Regional Airport

Administrative Board is made up of individuals appointed by

the City Council. The City Council of the City of Manassas,

Virginia and the Airport Board are immune from prosecution

in their individual capacities under the doctrine of sovereign

immunity. Messina v. Burden, 223 Va. 301, 321 S.E. 2d 657

(1984). These issues were not decided by the Circuit Court.

TABLE OF CONTENTS

Page

Parties to the Proceeding .........00+-eeeeeeeeees i

Table of COMmtemtS cc ccc cece twee ress escnas ii

Table of Cited Authorities ..........60 cece eee eee ill

Statement of the Case ........--- eee cece ee eeees l

A. The Petition Fails To Disclose A Critical Element

Regarding The Disposition Of This Matter. . 2

B. Petitioner’s Reliance On First Lutheran Church

v. Los Angeles Is Misplaced. The Preliminary

Activities Undertaken To Study The Feasibility

Of Expanding The Airport Did Not Constitute A

Taking That Was Either Temporary or Permanent.

Reasons for Denying the Writ ........---+--++eeeee +

ComelMBiOt 6 cc.cn dsc hea ha DNR eee eee eee ee 5

ili

TABLE OF CITED AUTHORITIES

Cases Cited: Page

Agins v. Tiburon, 447 U.S. 255, 100 S. Ct. 2138. 65

ws sah Hatin ee: A 3, 4

Arlington Yellow Cab y. Transportation, Inc., 207 Va.

313, 149 S.E. 2d 877 NP Saige eee. Gl 4

Board of Supervisors of Prince William County v. Omni

Homes, 253 Va. 59 481 S.E. 2d 460 (1997) ...... 4

Danforth v. United States, 308 U.S. 271, 60 S. Ct. 231,

ig Bos Lo | I Re 3

First English Evangelical Lutheran Church v. Los

Angeles, 482 U.S. 304, 104S. Ct 2378, 96 L. Ed. 2d

(Ee PEAR SES SEIS TOA alee Paes 2, 3,4

Jones v. Miller, 2 Va. Dec. 232, 23 S.E. 35 (1882) . 2

Messina v. Burden, 223 Va. 301, 321 S.E. 2d 657 (1984)

SOE OP AREAS V8. CA e Cat en's Kako kod ok. i

Virginia - Carolina Rwy Co. v. Booker, 99 Va. 633. 39

ra a i a tse 2

Se ee

STATEMENT OF THE CASE

The Petitioner, William Doyle Wood, was formerly the owner

of property located in Prince William County, Virginia, near the

municipal airport for the City of Manassas. In February 1996,

Wood filed a Bill of Complaint for declaratory judgment,

injunctive and other relief in the Circuit Court for Prince William

County, Virginia. This suit was filed against the City Council of

Manassas only. The City Council filed a Demurrer to the Complaint

and prior to its being heard by the Circuit Court, Wood nonsuited

the case.

Subsequent to that time. the property in question was

foreclosed upon by Wood's creditors and he no longer owned

the property at the time that the action, which is the subject matter

of this Petition, was filed.

Wood initiated a Motion for Judgment, Petition for Inverse

Condemnation and for Declaratory Judgment in June 1997 against

the City Council of Manassas. Virginia, the Board of Supervisors

of Prince William County and the Manassas Regional Airport

Administration Board. This suit alleged, among other things, that

activity undertaken by the City Council to determine whether the

airport runway should be expanded constituted a taking of his

property. The activity undertaken included various studies relating

to the creation of a noise Overlay district and the initiation of the

Federal Aviation Administration application process to determine

whether such an extension of the runway was feasible, warranted

or made economic sense.

Wood claimed that such activity constituted a taking of “all

use” of the property which amounted to inverse condemnation

entitling him to compensation.

The demurrer of the City Council of Manassas and the

Manassas Regional Airport Administration Board and the demurrer

of Prince William County were granted and the case was

dismissed. Wood petitioned the Supreme Court of Virginia for a

Writ granting Wood's appeal to that court. On April 3, 1998, the

Virginia Supreme Court declined to grant the requested Writ. This

Petition for Writ of Certiorari follows.

A. The Petition Fails To Disclose A Critical Element

Regarding The Disposition Of This Matter.

The Petition does not disclose to this Court that Wood was

not the owner of the property in question at the time he brought

the present suit in the Circuit Court for Prince William County,

Virginia. Accordingly, it was the position of the defendants in the

actions below that Mr. Wood lacked standing to bring an inverse

condemnation proceeding. The general rule of Virginia is that

only the owner of a parcel of property has standing to claim that

the property has been taken from him. Virginia - Carolina Rwy

Co. v. Booker, 99 Va. 633, 39 S.E. 591 (1901); Jones v. Miller,

2 Va. Dec. 232, 23 S.E. 35 (1882). Wood admits in his motion for

judgment that he was unable to make the mortgage payments on

the property and as a consequence, the property was foreclosed

upon. (Motion for Judgment para. 53).

This fact was set out in the Respondents’ brief at both the

Circuit Court level and before the Virginia Supreme Court. It was

a factor presumably relied upon by both courts in their decisions

dismissing Wood's suit and appeal.

B. Petitioner’s Reliance On First Lutheran Church v. Los

Angeles Is Misplaced. The Preliminary Activities Undertaken

To Study The Feasibility Of Expanding The Airport Did Not

Constitute A Taking That Was Either Temporary OF

Permanent.

The case presented by Petitioner in the instant matter is vastly

different from the factual context within which this Court reviewed

First English Evangelical Lutheran Church v. Los Angeles, 482

U.S. 304, 104 S. Ct. 2378, 96 L. Ed. 2d 250 (1987), despite

Petitioner’s assertions to the contrary. In that case, this Court

determined that the Los Angeles County ordinance which

prohibited the church from rebuilding on a flood plain was a

compensable taking. The Court found that there was at least a

temporary taking because all use of the property was prohibited

by the ordinance, even though the ordinance was later repealed.

Id. 482 U.S. at 321-322.

In the instant case, the Petitioner was not deprived of any use

of his property because all the City of Manassas did was engage in

preliminary studies to determine the feasibility of expanding the

airport. Wood’s use of his property continued despite his conclusory

allegations to the contrary. The activity undertaken is squarely

within the ruling in Danforth v. United States, 308 U.S. 271, 60

S. Ct. 231, 84 L. Ed. 240 (1939) and Agins v. Tiburon, 447 U.S.

255, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980) which determined

that preliminary activity designed to determine the feasibility a

possible future exercise of eminent domain did not constitute a

taking. In Agins, this Court held that precondemnation activities,

including the initiation of eminent domain proceedings did not

amount to a taking. The Court went on to state:

Even if the appellants’ ability to-sell their property

was limited during the pending of the condemnation

proceeding, the appellants were free to sell or

develop their property when the proceedings ended.

Mere fluctuations in value during the process of

governmental decision making, absent

extraordinary delay are “incidents of ownership.

They cannot be considered a ‘taking’ in the

constitutional sense.” (citations omitted)

Id. 447 U.S. at 263, n.9.

REASONS FOR DENYING THE WRIT

The petitioner’s naked, unsupported and conclusory

allegations in his Motion for Judgment that he was deprived of

all use of his property are not sufficient to escape dismissal

because the activities undertaken by the City Council of Manassas

and the Airport Board appointed by it were preliminary in nature

and the facts substantiating this determination were fully set out

in the statement of facts in Wood’s initial pleadings. That Wood

alleged that the preliminary activity constituted a “taking” is not

sufficient to create a viable cause of action where the facts in the

Motion For Judgment clearly indicated that there was no taking

of property. An allegation which merely states a conclusion at

law is demurrable under Virginia Law. Arlington Yellow Cab v.

Transportation, Inc., 207 Va. 313, 149 S.E. 2d 877 (1966). The

Circuit Court properly held that the activities in question could

not possibly amount to a taking despite the conclusory allegations.

See, Agins v. Tiburon, supra. First Evangelical Lutheran Church

v Los Angeles is clearly not applicable to the fact pattern set forth

in this matter.

Moreover, that Wood failed to make his mortgage payments

and therefore caused the foreclosure of his property cannot be

laid at the feet of the City of Manassas. Had Wood held his property

and made the payments he was required to make, regardless of

any activity taken in regard to the airport, he would have been

eligible to recover in condemnation proceedings if the City of

Manassas ever determined to expand the airport. This he did not

do and his failure to act cannot become the responsibility of local

government. See Board of Supervisors of Prince William County

v. Omni Homes, 253 Va. 59 481 S.E. 2d 460 (1997).

CONCLUSION

For the reasons stated herein and for those set forth by Prince

William County in its Brief In Opposition, which are incorporated

herein by reference, the Petition for Writ of Certiorari should be

denied.

Respectfully submitted,