Not every legal issue results in high octane litigation. Not every lawsuit is appealed to and decided by a state’s highest court. Nor does every case achieve celebrity status. However, every so often a novel legal issue does just that. In December of 2020, the Supreme Court of Virginia decided a unique legal issue that had been the subject of prolonged litigation and has since received international recognition. The case, Johnson v. City of Suffolk, was featured on the cover of the Right of Way Magazine, a publication of the International Right of Way Association, an international organization comprised of global infrastructure real estate practitioners. The cover article, which can be found at https://www.rightofwaymagazine-digital.org/rightofway/january_february2021/MobilePagedReplica.action?pm=2&folio=Cover#pg1, was written by Pender & Coward’s very own Ross Greene and Dave Arnold.
In the case Johnson v. City of Suffolk, the plaintiffs were leaseholders of certain oyster grounds in the Nansemond River. The leaseholders filed an inverse condemnation claim against the City of Suffolk and the Hampton Roads Sanitation District, arguing that both the City and the Sanitation District allowed sewer and stormwater discharge to pollute the waters in which they raised their oysters, and that said pollution rendered their oysters unfit for harvest. The leaseholders claimed that by allowing pollution to run through their oyster beds, the City and the Sanitation District took their property without providing just compensation, an inverse condemnation claim.
The Supreme Court of Virginia recognized the importance of oysters to the history and culture of Virginia. The Court noted that “the oyster has played and continues to play a significant role in the culture, history, economy and ecology of the Chesapeake Bay and its tidal waters.” However, the Court held that the leaseholders’ claim was without merit. The Court held that the leaseholders had very limited property rights to the leased oyster beds and that the rights are specifically delineated by state statute and case law. As such, the Court held that the leaseholders take their leases subject to the risk of pollution and that there was no inverse condemnation of the leaseholders’ oyster beds in this case. A fuller exposition of Johnson v. City of Suffolk can be found in the cover story featured in the Right of Way Magazine as well as in Pender & Coward’s blog article at https://www.pendercoward.com/resources/blog-opinions-and-observations/virginia-supreme-court-rejects-oyster-bed-leaseholders-inverse-condemnation-claim/.
The case of Johnson v. City of Suffolk, No. 191563, was decided December 10, 2020. Dave Arnold, Ross Greene, and Matthew Hull of Pender & Coward’s Eminent Domain / Right of Way Practice Group and Local Government Practice Group represented the City of Suffolk with regard to this matter on brief, with oral argument before the circuit court by Dave Arnold, and oral argument before the Virginia Supreme Court by Ross Greene.
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