The Supreme Court of Virginia releases one opinion today in which it holds that the City of Hopewell is entitled to sovereign immunity from most claims arising out of its controlled burn of a vacant shopping center.
The dispute grew out of the City’s demolition of Colonial Corner, an old shopping center owned by Shree Arihant. After two failed redevelopment attempts left the property vacant, the City notified Shree Arihant in 2019 that the buildings were blighted, unsafe, and unfit for occupancy, and demanded an abatement plan. None was submitted. Over the following two years, the City Council directed staff to plan a controlled burn, though it never adopted the ordinance required for spot blight abatement and never formally voted to demolish the property, Rather, a clerk erroneously recorded a vote to burn the building that had actually been a vote to move forward with planning. Citing continued trespassing, including by children, and an “immediate danger” to the public, the City’s fire department burned the shopping center in February 2021.
Shree Arihant sued, and its second amended complaint asserted intentional trespass, statutory business conspiracy, tortious interference with a business expectancy, statutory waste, a takings claim under Article I, Section 11 of the Virginia Constitution, and requests for declaratory relief concerning costs and penalties the City had imposed. The City filed a plea in bar asserting sovereign immunity as to everything except the takings claim, submitting the plea on the pleadings and exhibits alone. The circuit court denied the plea, saying it could not determine whether the City’s actions were solely or partially within its governmental function, and the City took an interlocutory appeal under Code §§ 8.01-626 and 8.01-670.2.
Applying the familiar governmental/proprietary distinction for municipal immunity, the Court concluded that blight abatement is a governmental function: it involves the exercise of discretionary authority and is directly tied to public health, safety, and welfare. The complaint and its attached exhibits established that the City was, at least in part, abating blight when it burned the building.
Two of Shree Arihant’s counterarguments failed. First, the City’s admitted noncompliance with the statutory and municipal requirements for spot blight abatement (no ordinance, no formal demolition vote) did not strip it of immunity because immunity turns on the nature of the function performed, not on whether the municipality exercised its authority properly. A municipality performing a governmental function retains immunity even when it acts negligently or improperly. Second, allegations that the City was really motivated by redevelopment prospects did not defeat immunity either. At most, the complaint showed dual purposes, and when a governmental function coincides with other functions, the governmental function is the overriding factor. The Court expressly declined to decide whether economic development standing alone could be a governmental function.
The Court therefore held the City immune from the common law tort claims, the statutory tort claims, and most of the declaratory judgment requests. The takings claim survives, however, since sovereign immunity does not reach claims founded on self-executing provisions of the Virginia Constitution.
Worth flagging: the Court acknowledged the plea in bar wouldn’t fully immunize the City from participating in the litigation given the surviving takings claim but exercised its discretion under Code § 8.01-626 to hear the interlocutory appeal anyway.
A Virginia Appellate Law Blog 