Present: All the Justices 

NORFOLK REDEVELOPMENT AND 

HOUSING AUTHORITY 

v. Record No. 051708 OPINION BY JUSTICE ELIZABETH B. LACY 

 June 8, 2006 

C AND C REAL ESTATE, INC. 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John C. Morrison, Jr., Judge 

 This appeal pertains to the dismissal of a housing 

authority's petition to acquire property by condemnation 

pursuant to the authority's conservation plan. 

 Code § 36-49.1 authorizes localities to prepare, adopt, 

and execute conservation plans to identify and rehabilitate 

"slum, blighted, deteriorated or deteriorating areas" within 

the locality. Pursuant to this authority, the Norfolk City 

Council adopted a resolution in 1987 commissioning the Norfolk 

Redevelopment and Housing Authority (the Authority) to examine 

blighted and deteriorating land in the North Church Street 

area of Norfolk to determine whether conservation was 

possible. The following year, after a public hearing, the 

City Council adopted the conservation plan (the Plan) 

recommended by the Authority. See Code § 36-49.1(8). 

The Plan allowed the Authority to acquire property 

included in the conservation area by exercising the power of 

eminent domain. The Property Acquisition section of the Plan 

sets out the procedure for acquiring properties through 
2

eminent domain and references a "Boundary and Land Acquisition 

Map" that identifies properties to be acquired. 

 The Plan stated that there were "two large junk yards in 

the area which add to the blighted condition of the district." 

The Boundary and Land Acquisition Map identified those two 

parcels as property "To Be Acquired" under the plan. C and C 

Real Estate, Inc. (C&C) owns one of the parcels identified in 

the Plan. C&C purchased this property (the Property) in 1997 

and leased it to Downtown Used Auto Parts for use as an 

automobile salvage yard. Downtown Used Auto Parts originally 

leased the Property in 1992 from the former owner, who had 

also operated a salvage yard on the Property. 

 In 1990, the Authority sent a notice to correct the 

conditions considered as deficiencies to the owner of the 

second junkyard identified in the Plan; however, it sent no 

such notice to the owner of the Property now owned by C&C. 

The Authority did notify C&C of its intent to acquire the 

Property by letter dated December 1, 1999. During this time 

period, the Mid-Atlantic Coca-Cola Bottling Company (CocaCola) began discussions with the Authority about the 

possibility of an expansion of its operations in the Mid-Town 

area. Coca-Cola suggested that the City convert the Property 

into a parking lot that could be used by Coca-Cola's 
3

employees. No action was taken on Coca-Cola's suggestions at 

that time. 

 By letter dated August 16, 2000, the Authority offered to 

purchase the Property for $400,000. C&C did not reply to the 

offer for over two years. During the interim, the owner of a 

neighboring property successfully petitioned the City to close 

a part of Armistead Avenue in an area adjacent to the 

Property. C&C acquired part of the closed street from the 

City during the first half of 2002 and, in November of that 

year, rejected the Authority's purchase offer and asked that 

the Authority "proceed to file the Petition in Condemnation." 

The following year, on July 22, 2003, the Authority sent 

another letter offering to buy the Property for $560,000. C&C 

again refused the offer. On October 27, 2003, the Authority 

passed a resolution authorizing the condemnation of the 

Property. The petition for condemnation was filed in the 

Circuit Court of the City of Norfolk on November 25, 2003.

Following an ore tenus hearing, the circuit court issued 

a letter opinion concluding that the Authority's condemnation 

petition should be dismissed because: (1) that part of the 

Plan purporting to authorize condemnation of property solely 

on a finding of blight or a blighting influence was invalid; 

(2) C&C did not receive a one-year notice to correct 

deficiencies to which it was entitled under the Plan; and (3) 
4

the Authority's 15-year delay in filing the condemnation 

proceeding raised due process concerns. The circuit court 

also held that Code § 36-49.2 does not prevent the Authority 

from using its condemnation power to acquire property 

designated as blighted pursuant to a conservation plan even if 

the property will be used for industrial purposes after 

rehabilitation. Following further briefing and argument of 

counsel, the circuit court entered a final order on May 12, 

2005, incorporating its letter opinion and dismissing the 

Authority's condemnation petition. The Authority timely filed 

this appeal. 

 On appeal, the Authority raises eight assignments of 

error. Four of these challenge the findings made by the 

circuit court in conjunction with its conclusion that the 

Authority's condemnation action violated C&C's due process 

rights. Three assignments of error relate to the circuit 

court's interpretation and application of the Plan. Finally, 

the Authority challenges the admission of certain expert 

testimony. Additionally, C&C assigns cross-error to the 

circuit court's holding that Code § 36-49.2 did not prohibit 

the Authority from using its eminent domain powers for 

acquiring property that will be used for industrial purposes. 

We will consider these issues in order. 

THE AUTHORITY'S APPEAL 
5

1. Due Process

The circuit court's conclusion that the Authority's 

attempt to take C&C's Property violated due process was based 

on the 15-year delay from the time the Authority made its 

finding of blight until it attempted to correct the blighted 

condition of the Property by filing the condemnation petition.1

 

This delay, according to the circuit court, "argues strongly 

against" a finding that the elimination of blight was the 

"real reason" the Authority sought to acquire the Property. 

The circuit court further found that this delay gave rise to a 

"reasonable expectation" that the Authority would not take the 

Property and that the delay allowed C&C to expand its business 

while the Authority was insulated from paying for the "value 

of the ongoing business" in a condemnation proceeding. The 

Authority challenges each ground relied upon by the circuit 

court, arguing that the condemnation did not offend principles 

of due process because the passage of 15 years did not alter 

the reason for the taking, did not violate any limitations 

period, and would not result in unfair compensation for the 

Property to be taken. For the following reasons we agree with 

the Authority. 

 1

 Although the condemnation proceeding was not filed until 

2003, C&C was aware of the Authority's interest in acquiring 

the Property based on letters exchanged beginning in 1999, 

some of which contained offers to purchase the Property. 
6

The due process clauses of the Constitutions of the 

United States and of the Commonwealth of Virginia prohibit the 

government from taking private property unless such property 

is taken for public use and the property owner receives just 

compensation for the property taken. U.S. Const. amend. V; 

Va. Const. art. 1, § 11; Kelo v. City of New London, ___ U.S. 

___, ___ n.1, 125 S.Ct. 2655, 2658 n.1 (2005); State Highway & 

Transp. Com. v. Linsly, 223 Va. 437, 443, 290 S.E.2d 834, 838 

(1982). 

Taking private property to stem blighting and 

deteriorating conditions is a public purpose. Mumpower v. 

Housing Authority, 176 Va. 426, 437, 11 S.E.2d 732, 735 

(1940). A locality's determination pursuant to a conservation 

plan that property is blighted and subject to acquisition is a 

legislative act which, on review, is entitled to a strong 

presumption of validity. Runnels v. Staunton Redevelopment & 

Housing Authority, 207 Va. 407, 410, 149 S.E.2d 882, 884 

(1966). The locality's determination may be set aside by a 

circuit court only on a showing that the locality acted 

arbitrarily. The burden is on the challenger to establish 

that the decision was invalid by clear and convincing proof. 

Id. In this case, C&C failed to carry that burden of proof. 

As the circuit court noted, in 1988 the Authority 

determined that the Property was a blight and exerted a 
7

blighting influence on the area.2 The owner of the Property at 

the time did not challenge that decision. The question before 

us then is whether a challenge to that determination arising 

many years later but before property has been acquired is 

resolved by examining the condition of the property at the 

time of the initial designation or at the time of acquisition. 

This is an issue of first impression for this Court. We 

conclude that while the original determination retains the 

strong presumption of validity attached to such legislative 

acts, the current status of the property must be considered 

when determining whether the original purpose of the 

acquisition remains viable at the time the condemnation 

occurs. This standard is dictated by the statutes governing 

conservation plans which allow the use of eminent domain only 

 2

 The Authority made the following finding: 

There are significant environmental 

problems which are contributing to the 

deterioration of the project area. Trash, 

litter, and debris are found throughout 

the area. Vacant lots are covered with 

weeds and, in several cases, the partial 

foundations of demolished buildings. 

There are two large junk yards in the area 

which add to the blighted condition of the 

district. Derelict, abandoned motor 

vehicles were identified throughout the 

proposed project area prior to a concerted 

effort to rid the area of this problem. 

Although a number of vehicles have been 

removed, the underlying conditions have 

not changed and others will probably take 

their place.
8

for the specific public purposes of eliminating deteriorating 

properties or arresting the blighting influence. If a 

property no longer meets that criteria, acquisition by 

condemnation pursuant to a conservation plan would no longer 

be authorized. See Code §§ 36-49.1, -50.1. Therefore, in 

this case, to rebut the presumption of validity, C&C bore the 

burden to show by clear and convincing evidence that the 

Property no longer was a blight or no longer exerted a 

blighting influence on the surrounding area. 

The evidence relied upon by the circuit court to 

show a change in acquisition purpose included the 

Authority's discussions with Coca-Cola and improvements 

to the Property, including adding water and sewer 

service, cleaning up trash, painting and otherwise fixing 

one building while demolishing another, and erecting a 

fence limiting the visibility of the interior. The 

evidence of discussions between Coca-Cola and the 

Authority regarding use of the Property as a parking lot 

does not address the condition of the Property and 

therefore is not relevant rebuttal of the presumption 

that the finding of blight remains valid. Furthermore, 

the purpose of a conservation plan is to identify and 

acquire blighted property so that the property may be 

rehabilitated. Because properly designated and acquired 
9

"blighted" property may eventually be made available to 

and used by private enterprise, Code § 36-49.1, such 

ultimate use does not alter the original acquisition 

purpose of eliminating blight. 

Although the evidence showed that improvements were made 

to the condition of the Property, there is also evidence that 

the Property remains a blight or has a blighting effect on 

surrounding property. The Authority introduced pictures of 

the Property from 1988 through the time of trial along with 

the testimony of Karen Wilds, who qualified as an expert for 

the Authority in the field of land planning. Wilds testified 

that based on her observation of the current state of the 

Property and the pictures of it, the Property remained 

infeasible of rehabilitation and its condition was not 

consistent with the objectives of the Plan. 

This record does not contain clear and convincing 

evidence sufficient to rebut the presumption that the 

Authority's designation of the Property as blighted or 

exerting a blighting influence remained valid. Accordingly, 

the Authority did not acquire the Property for a non-public 

purpose in violation of the federal and state due process 

clauses. 

In addition to limiting the government from taking 

private property unless the taking is for a public use and the 
10

landowner is justly compensated, constitutional procedural due 

process mandates that the government provide a landowner 

"notice and a reasonable opportunity to be heard" before 

affecting that individual's property rights pursuant to a 

binding court decree. Doe v. Brown, 203 Va. 508, 512, 125 

S.E.2d 159, 163 (1962). However, our case law establishes 

that the legislature may prescribe the manner in which that 

notice will be provided, so long as its provisions afford the 

individual a reasonable opportunity to be heard. Id.; 

Williamson v. Hopewell Redevelopment & Housing Authority, 203 

Va. 653, 655, 125 S.E.2d 849, 850-51 (1962). 

In this case, the circuit court did not find, and C&C 

does not assert, that the Authority failed to afford C&C 

proper procedural due process under the notice provisions of 

the eminent domain statutes. Code §§ 25.1-205 through –222; 

see also Williamson, 203 Va. at 656, 125 S.E.2d at 851 

(finding eminent domain hearing notice provisions under former 

Code § 25-13 constitutional). To the extent the circuit court 

and C&C maintain the Authority violated C&C's procedural due 

process rights, they rely upon the 15-year delay between the 

Authority's adoption of the Plan and filing the condemnation 

proceeding. This delay, according to the circuit court, gave 

C&C a "reasonable expectation that their property would not be 

condemned . . . especially since the City of Norfolk conveyed 
11

additional property to [C&C] in 2002 when part of Armistead 

Avenue was closed" and allowed C&C to improve its business, 

although the Authority would not be liable for "the value of 

the ongoing business." We find, however, that these factors 

do not implicate any procedural due process considerations in 

the context of this case. 

First, there is no limitations period defined by statute 

for acquiring property under a conservation plan. Contra Code 

§ 36-51(c)(five year limitation on acquiring property pursuant 

to redevelopment plan commencing on date of plan approval). 

Code § 36-51.1(7). Code § 36-51.1 allows an authority to 

place such a limitation on conservation project activities, 

but the Authority did not do so in this case. The Plan states 

that "[i]t is the intent of the Authority to proceed 

diligently to achieve completion of project activities" and 

that "[t]he Project Area Committee has requested that the 

project activities be completed by the end of 1997 and this 

has been selected as the target date;" however, the Plan does 

not preclude further acquisitions of properties within the 

project area beyond 1997. 

The absence of a limitations period for conservation 

plans is reasonable because conservation projects are by 

nature long-term undertakings. Nevertheless, when a delay in 

pursuing condemnation proceedings becomes unreasonable, the 
12

Authority is subject to Code § 36-27, which allows a court to 

instruct the commissioners in such proceedings to allow 

damages incurred by the landowner because of the delay. 

Finally, neither the circuit court nor C&C have provided 

any legal support for the proposition that a viable due 

process claim in this case can be based on a "reasonable 

expectation" that the Property will not be taken, regardless 

of whether such expectation stems from the passage of time or 

the acquisition of additional property prior to condemnation. 

In the same vein, there is no basis for a constitutional 

procedural due process challenge simply because the Authority 

"is not required to pay for the value of the ongoing business" 

in a condemnation proceeding. The measure of just 

compensation for a governmental taking of property is the 

"fair market value of the land as it stands today, in view of 

all the purposes to which it is reasonably and naturally 

adapted." Fonticello Mineral Springs Co. v. City of Richmond, 

147 Va. 355, 361, 137 S.E. 458, 460 (1927). Paying for the 

value of an ongoing business enterprise is not 

constitutionally required. See id.

 Accordingly, for these reasons, we conclude that the 

circuit court erred in holding that the Authority's 

condemnation proceeding violated principles of due process. 

2. Interpretation and Application of the Plan
13

The Authority next challenges the circuit court's 

determination that Paragraph 1 of the Acquisition section of 

the Plan exceeded the authorization contained in Code § 36-

50.1(4), and that under the Plan, C&C was entitled to a notice 

allowing it the opportunity to cure the blighted conditions 

consistent with Code § 36-50.1(2). The pertinent language in 

the Acquisition section of the Plan states: 

The Boundary and Land Acquisition Map, Exhibit 

One, identifies properties to be acquired 

because they appear infeasible of 

rehabilitation or their land use is 

inconsistent with the purposes and objectives 

of the Conservation Plan. 

Properties within the Project Area will be 

inspected to determine whether or not they 

comply with the provisions of the Conservation 

Plan Rehabilitation Standards . . . . The 

owners of property which does not comply with 

the Standards will be notified in writing of 

observed deficiencies [and if] the property has 

not been made to comply with the Standards 

within one year after receiving a written 

request for such compliance, then the Authority 

may proceed to acquire the property by deed or 

condemnation. 

The relevant portions of Code § 36-50.1 are subsections 

(2) and (4) which provide that in connection with a 

conservation plan, an authority cannot exercise powers of 

eminent domain except to acquire 

(2) properties which are determined by the authority to 

be in violation of the standards for design, 

construction, maintenance and use of property set out in 

the conservation plan . . . and which have not been made 

to comply with such standards within one year after a 
14

written request to rehabilitate to project standards is 

given to the owner by the authority; or 

. . . 

(4) properties which are infeasible of rehabilitation or 

. . . exert a blighting influence on adjacent properties 

or prevent proper development of land so as to inhibit or 

prevent accomplishment of the purposes of the 

conservation plan. 

The Authority argues that Paragraph 1 of the Acquisition 

section complies with Subsection (4) of Code § 36-50.1 and 

allows the Authority to acquire properties under that 

paragraph without providing any notice to the landowner. A 

comparison of the language in the Plan and in the statute, 

however, demonstrates a difference in the conditions under 

which property may be acquired. Subsection (4) of Code § 36-

50.1 allows acquisition without such notice if the properties 

"are infeasible of rehabilitation . . . so as to inhibit or 

prevent accomplishment of the purposes" of the plan. 

(Emphasis added.) Paragraph 1 of the Acquisition section, 

however, refers to properties that "appear infeasible of 

rehabilitation or their land use is inconsistent with the 

purposes and objectives of the Conservation Plan." (Emphasis 

added.) 

The Authority argues that despite this deviation in 

language, the phrases used are synonymous; thus, it contends 

that this portion of the Plan is not overbroad. The Authority 
15

also argues that a reviewing court should not strictly 

construe the terms of a conservation plan because as defined 

by Code § 36-51.1, the conservation plan is merely "an outline 

for the conservation, development or redevelopment of an 

area," and need only be "sufficiently complete to indicate" 

the conservation activities that will take place within the 

project area. We disagree. 

The Plan's phrase "appear infeasible" is more 

encompassing than the Section's "are infeasible," as the 

former would allow a taking of property that can "be taken 

as," "look[s]," or "seem[s]" infeasible of rehabilitation, 

Webster's Third New International Dictionary 103 (1993), while 

the latter mandates that, to be taken, the property must be 

infeasible of rehabilitation. Also, the definition of 

"inconsistent" is "lacking consistency" or "incompatible," 

while the meaning of "inhibit" is to "prohibit from doing 

something." Id. at 1144, 1163. A land use that lacks 

consistency with the goals of a plan does not necessarily 

prohibit an authority from achieving those goals. Thus, we 

reject the Authority's argument that the language in Paragraph 

1 of the Plan is synonymous with and no broader than that 

language in Code § 36-50.1(4). 

We also reject the Authority's argument that the Plan was 

only an outline and any discrepancies were immaterial because 
16

the statute would ultimately control. Although the statutes 

authorize the creation and implementation of a conservation 

plan, an authority's ability to undertake actions allowed by 

statute arises by virtue of a duly adopted conservation plan. 

The plan must be consistent with the grant of authority set 

out in the statutes and, if the plan contains authorization 

for acts beyond those delegated, such authorization is 

invalid. City Council of Alexandria v. Lindsey Trusts, 258 

Va. 424, 427, 520 S.E.2d 181, 182-83 (1999) (citing City of 

Chesapeake v. Gardner Enterprises, Inc., 253 Va. 243, 246, 482 

S.E.2d 812, 814 (1997)). Furthermore, distinguishing 

properties to be acquired under Paragraph 1 or Paragraph 2 on 

the Boundary and Land Acquisition Map does not cure the 

infirmities in Paragraph 1 of the Plan. Thus, we hold that 

the circuit court did not err in determining that the language 

of Paragraph 1 is broader than that found in Code § 36-50.1(4) 

and, therefore, cannot be utilized as a basis for the exercise 

of eminent domain as authorized by that Code section. 

We also conclude that the circuit court correctly 

determined that, as written, the Acquisition section complies 

with subsection (2) of Code § 36-50.1, which allows an 

authority to identify properties not in compliance with its 

standards and acquire them by eminent domain if a landowner 

does not, within one year of written notice, remedy the 
17

violations identified. The language of Paragraph 2 in the 

Plan's Acquisition section is entirely consistent with Code 

§ 36-50.1(2). The evidence is undisputed that C&C did not 

receive the required notice to correct the deficiencies on the 

Property from the Authority. Accordingly, the circuit court 

did not err in holding that because the Authority failed to 

provide such notice and because condemnation was not available 

without notice pursuant to Paragraph 1 of the Plan, the 

Authority could not maintain its condemnation petition against 

C&C's Property in this case. 

3. Expert Testimony

Finally, the Authority assigns error to the admission of 

certain testimony of Timothy E. Barrow who qualified as an 

expert in land planning. Much of Barrow's testimony involved 

his interpretation and the Authority's application of the Plan 

as they related to the Authority's determination of blight or 

blighting influence and the operation of the Plan regarding 

the need to provide a property owner with notice and an 

opportunity to cure deficiencies. Because the issues in this 

appeal can be and have been resolved without reference to 

Barrow's testimony, we need not consider whether Barrow's 

testimony was properly admitted. 

C&C'S ASSIGNMENT OF CROSS-ERROR 
18

We now turn to C&C's assignment of cross-error. C&C 

asserts that Code § 36-49.2 bars the Authority from using its 

power of eminent domain to acquire and redevelop properties in 

the conservation project area for industrial use. The circuit 

court held that Code § 36-49.2 "merely expands the means by 

which property may be acquired by the housing authority." 

Because the circuit court's interpretation of the statute is 

correct, we will affirm the circuit court's judgment. 

Code § 36-49.2 provides: 

In addition to the other powers to acquire real 

property by purchase or lease, an authority is 

specifically empowered to purchase or lease real 

property for immediate or future use, without the 

exercise of the power of eminent domain, for 

improvement and development for sale, lease, or 

sublease as industrial sites, scientific research 

laboratory sites, educational institution sites or 

sites for housing persons displaced from other lands 

of the authority. 

The language of this statute does not specifically prohibit 

the use of condemnation proceedings for acquisition of land 

which will be used as an industrial site. The phrase upon 

which C&C relies, "without the exercise of the power of 

eminent domain," taken in context is consistent with a grant 

of power to acquire property by lease or purchase for certain 

uses, while restricting the use of eminent domain to those 

circumstances in which a property satisfies one of the 

criteria set out in Code § 36-50.1. 
19

Adopting C&C's interpretation would create a conflict 

with other statutory provisions that authorize an authority to 

make land acquired pursuant to a conservation plan available 

for use by private entities. See Code §§ 36-49.1, -51.1. 

Such property may be acquired by purchase, lease, or eminent 

domain, but if by eminent domain, compliance with Code § 36-

50.1 is required. As the circuit court concluded, the power 

conferred by Code § 36-49.2 expands the means by which 

property may be acquired and the purposes for which such 

property may be used by the Authority. It does not prohibit 

the use of condemnation by an authority for acquisition of 

property that may subsequently be used for industrial sites or 

purposes.3 Accordingly, we reject C&C's assignment of crosserror. 

CONCLUSION

 In summary, although the circuit court erred in 

concluding that the condemnation proceeding violated 

principles of due process, the circuit court did not err in 

 3

 On appeal, C&C also challenges this Plan in its entirety 

on the ground that its purpose was "an industrial development 

plan that takes property for industrial reuse," and it was 

never designed to eradicate blight or address any other 

condition enumerated in Code § 36-50.1. We reject this 

argument for two reasons. First, C&C specifically waived this 

challenge to the Plan at trial, Rule 5:25, and second, the 

first stated objective of the Plan is "the arrest of 

deterioration and the removal of blight, obsolescence and 

incompatible land uses." 
20

holding (1) that Code § 36-49.2 does not prohibit the use of 

eminent domain for the acquisition of property which may be 

used for industrial purposes pursuant to a conservation plan, 

(2) that because the language of Paragraph 1 of the 

Acquisition Section of the Plan was overbroad, it did not 

allow acquisition of property as authorized by Code § 36-

50.1(4), and (3) that the Plan required the Authority to 

provide C&C notice and an opportunity to correct deficiencies. 

Because the Authority did not comply with the Plan by 

providing C&C with the required notice, there was no error in 

the dismissal of the condemnation proceeding. 

Accordingly, for the reasons expressed in this opinion, 

we will affirm the judgment of the circuit court. 

Affirmed.