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Livingston v. Virginia Dep't of Transportation, No. 101006 (June 7, 2012)

Livingston v. Virginia Dep't of Transportation, No. 101006 (June 7, 2012)

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1Present: All the JusticesGEOFF LIVINGSTON, ET AL.OPINION BYv. Record No. 101006 JUSTICE LEROY F. MILLETTE, JR.June 7, 2012VIRGINIA DEPARTMENT OFTRANSPORTATIONFROM THE CIRCUIT COURT OF FAIRFAX COUNTYRobert J. Smith, JudgeGeoff Livingston and 134 other homeowners or renters(collectively Plaintiffs) in Fairfax County's (County)Huntington subdivision brought this inverse condemnation suitagainst the County and the Virginia Department ofTransportation (VDOT) after their homes were flooded during asevere storm in the summer of 2006. The circuit courtdismissed the suit on demurrer, holding in relevant part that asingle occurrence of flooding cannot support an inversecondemnation claim under Article I, Section 11 of theConstitution of Virginia. We disagree and reverse.I.A.Because this case arises from a demurrer, we recite thefacts as they are alleged in the Plaintiffs' second amendedcomplaint. Station #2, LLC v. Lynch, 280 Va. 166, 169, 695S.E.2d 537, 539 (2010). On June 25, 2006, the Plaintiffs werehomeowners or renters in Huntington, which is located along thesouthern bank of Cameron Run, a tributary stream of the Potomac
 
2River, near the County's border with the City of Alexandria.That evening, a storm produced "long periods of precipitationwith high intensity downpours," causing significant flooding.In less than two hours, the flow depth of Cameron Run increasedfrom just under 2 feet to almost 14 feet. The storm createdthe second-highest water flow in the channel since 1953.
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 The floodwaters, blocked on the north by the concrete massof the Capital Beltway, overwhelmed the southern bank ofCameron Run and engulfed much of Huntington. Floodwater backedup through storm and sanitary sewers and filled the basementsof many of the Plaintiffs' homes with sewage-laced water. Theflood damaged the Plaintiffs' homes and personal property.The Plaintiffs allege that the June 2006 flood was causedby the acts or omissions of the County and VDOT. During itsconstruction of the Beltway in the early 1960s, VDOT'spredecessor, the Virginia Department of Highways, straighteneda curved section of Cameron Run and relocated it roughly 1,150feet closer to Huntington.
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The straightening and relocationreduced Cameron Run to 38% of its natural width.
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The highest flow was created by Hurricane Agnes in 1972.
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From the time of the Beltway's construction until theJune 2006 flood, VDOT owned the land on which Cameron Run wasrelocated. The Huntington homes were built several yearsbefore the relocation of Cameron Run and construction of theBeltway.
 
3VDOT built the Beltway to the immediate north of therelocated Cameron Run. To create a base for the Beltway inwhat had been a marsh and wetlands, VDOT removed the natural"sponge" for floodwater by adding solid fill and draining theremaining water with vertical "sand wicks." The presence ofthe Beltway on the northern edge of the relocated Cameron Runalso created a berm, which forced water south during floodingand "eliminat[ed] the conveyance potential beyond the northbank of the stream."The Plaintiffs allege that their homes would not haveflooded in 2006 had VDOT not, in the early 1960s, relocatedCameron Run, filled in portions of the watershed marshes toconstruct the Beltway, narrowed the channel's natural width,and built the Beltway in such a way as to serve as a concretewall blocking any northern flow of water from the channel.The Plaintiffs further allege that the flood damage was"amplified" by the County's and VDOT's acts or omissions afterthe relocation of Cameron Run and construction of the Beltway.They allege that most of their homes would not have flooded atall, and those few that did would have suffered only minordamage, if the elevation of the June 2006 flood had not beensignificantly raised by the accumulation of sediment in therelocated Cameron Run due to the County's and VDOT's failure todredge or otherwise maintain the channel, VDOT's construction

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