by James A. Bacon
H. Cliff Page, an artist, sculptor, Vietnam vet, merchant mariner, civic activist and former candidate for Mayor of Portsmouth, won a victory for individual property rights when the Virginia Supreme Court ruled unanimously in his favor July 3 in a dispute with the Portsmouth Redevelopment and Housing Authority (PRHA).
“This is a precedent-setting case of huge import to all Virginians,” Page tells Bacon’s Rebellion. The ruling “will make cities and municipal housing and economic authorities sit up and take notice that they cannot abuse the protected rights of the citizens with tyrannical impunity!”
The case has been a decade in the making, dating to when the PRHA demolished a building sharing a wall with Page’s property, causing major damage to its supporting structure, interior walls and roof.
The PRHA argued that it enjoyed sovereign immunity because it tore down its building at the instruction of the City of Portsmouth, which was exercising its governmental powers to eliminate a blight. The Portsmouth Circuit Court ruled in favor of the housing authority, and its interpretation was upheld by a Court of Appeals. But the Supreme Court accepted Page’s argument that the PRHA was carrying out a proprietary function — in effect, acting as a property owner, not a sovereign government.
In 2009 the PRHA acquired the property in an area of downtown Portsmouth that had been declared a “slum and blight” for purposes of seeking a Community Development Block Grant. After the PRHA’s acquisition, the building housed Oasis Ministries, which operated as a soup kitchen.
The PRHA made no effort to improve the property, and in 2014 the City declared it a “dangerous building” and nuisance, and gave the authority two weeks to “abate the hazard.” The private contractor hired to raze the building badly damaged Page’s property.
According to the opinion written by Justice D. Arthur Kelsey, Page argued that the PRHA owned the building for more than five years and did nothing to address the “failing roof, water damage, and asbestos, all problems that a private landowner would be responsible for addressing.” PRHA’s malfeasance represented “an inept exercise of a proprietary function — not a governmental function,” Page contended. “For all practical purposes,” wrote Kelsey in summarizing his argument, “PRHA was acting no differently than a private landowner.”
PRHA countered that because the City would have enjoyed sovereign immunity if it had been the one to demolish the building, so, too, should PRHA for obeying the city’s Notice of Emergency Demolition.
“Given the unique facts of this case. we hold that sovereign immunity does not immunize PHRHA from … liability,” Kelsey wrote. “Under Virginia law, a municipal development and housing authority can be held liable in tort while engaging in ‘proprietary functions’ but not ‘governmental functions.'”