Present: All the Justices 

BOARD OF SUPERVISORS OF 

PRINCE WILLIAM COUNTY 

v. Record No. 960508 OPINION BY JUSTICE ELIZABETH B. LACY 

 January 10, 1997 

OMNI HOMES, INC. 

OMNI HOMES, INC. 

v. Record No. 960471 

BOARD OF SUPERVISORS OF 

PRINCE WILLIAM COUNTY 

 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Richard B. Potter, Judge 

 In this appeal, we consider a property owner's claim that 

government action constituted an uncompensated taking of 

property in violation of the Fifth Amendment of the United 

States Constitution or Article I, § 11 of the Constitution of 

Virginia. 

 In 1986, Omni Homes, Inc. (Omni) executed a contract to 

purchase a 72.68-acre parcel of unimproved land located in 

Prince William County and, in 1989, bought the parcel for 

$436,091. The property was zoned R-10, urban residential 

development, and Omni proposed to develop the land as Doves 

Landing subdivision with 106 residential lots. The property 

was located adjacent to an undeveloped 188-acre parcel owned by 

 Doves Landing Associates (DLA). DLA planned to develop its 

property as Doves Overlook subdivision with approximately 405 

residential lots. 

 Development of Doves Landing as a subdivision required 

securing certain road and utility access. The property was 
2 

three miles from public water and sewer access, and the only 

access to a public road was over a gravel road called Doves 

Lane. To obtain adequate access to the public road, Omni could 

purchase additional easements along Doves Lane from adjoining 

property owners and upgrade the road, or it could design a new 

road through Doves Overlook. Similarly, Omni could secure 

access to the needed utilities by paying the full three-mile 

extension costs or could agree to share the cost of the utility 

extension with DLA, the owner of Doves Overlook. Omni decided 

to base its R-10 development plan on providing road, sewer, and 

water access through and in conjunction with Doves Overlook and 

its owner. 

 DLA and Omni had an informal understanding that if Doves 

Overlook was developed as an R-10 subdivision, DLA would permit 

Omni to "piggyback" on its plans so that the road access and 

public sewer and water could run through Doves Overlook and 

into Doves Landing. Omni and DLA also "agreed to agree later" 

that they would enter into a cost-sharing agreement in which 

Omni would pay its pro rata share of the road and utility 

extension cost on a per lot basis. However, there was no 

written agreement between Omni and DLA to this effect, and Omni 

did not have any easements or other property interests in Doves 

Overlook that would permit it to construct the infrastructure 

through Doves Overlook. 

 DLA submitted its preliminary subdivision plan for Doves 
3 

Overlook in October 1987. In the opinion of the County, the 

plan proposed a public facility which was inconsistent with the 

County's Comprehensive Plan, and necessitated a review under 

Code § 15.1-456. The County's position led to a series of 

appeals, culminating in a determination by the Circuit Court of 

Prince William County that such review was not necessary. This 

Court refused the County's petition for appeal on January 9, 

1990. Doves Overlook's preliminary plan was approved on 

February 7, 1990. 

 Meanwhile, in January 1988, Omni submitted its 

preliminary subdivision plan for Doves Landing to the County 

for approval. On January 12, 1988, the County told Omni that 

its plan did not meet minimum requirements because it did not 

show access to a public road through Doves Overlook. The 

County also informed Omni of the litigation involving DLA's 

subdivision plan for Doves Overlook. Omni proceeded with its 

plans, completing its contract to purchase the Doves Landing 

parcel in January 1989, and re-filing its subdivision plan in 

April 1989. The County returned the plan in May, suggesting 

that it was premature until the appeals surrounding DLA's 

subdivision plan for Doves Overlook were resolved. Omni sued 

the County to force it to process Omni's plan. That litigation 

was settled by an agreement that the County would process the 

plan, but no approval would be given until the conclusion of 

the litigation between DLA and the County. 
4 

 The County informed Omni in June 1990, that the Doves 

Landing preliminary plan could not be presented to the planning 

commission until access to the public road was secured by an 

approved, bonded road through Doves Overlook. The Doves 

Overlook plan did not show such a road. Omni acknowledged the 

requirement and the County agreed to hold the plan open. 

 In November 1990, the County adopted regulations required 

for implementation of the Chesapeake Bay Preservation Act. 

Code §§ 10.1-2100 through -2116. These regulations affected 

Doves Overlook, and DLA sued the County for inverse 

condemnation. That litigation was settled by a consent decree 

entered on October 6, 1993, in which the County paid DLA $3.7 

million for Doves Overlook under a three-year lease/purchase 

agreement. 

 On April 4, 1994, Omni filed the instant litigation 

alleging that the County's various actions amounted to a taking 

of Omni's property without compensation in violation of the 

Fifth Amendment to the United States Constitution (Fifth 

Amendment), 42 U.S.C. § 1983, and Art. I, § 11 of the 

Constitution of Virginia (Art. I, § 11). Following an ore 

tenus hearing, the trial court determined that the purchase of 

Doves Overlook by the County qualified as regulatory action and 

constituted a compensable taking or damaging of Omni's property 

for purposes of the Fifth Amendment and Art. I, § 11. The 

trial court entered an order requiring the County to pay Omni 
5 

 

$850,000. The trial court denied Omni's request for attorneys' 

fees and dismissed Omni's claim under 42 U.S.C. § 1983 on 

ripeness grounds. The County and Omni filed separate appeals 

challenging a number of the trial court's rulings. We awarded 

both appeals and combined them for argument and disposition 

here. 

 Omni argues, and the trial court held, that the property 

interest in issue was Omni's right "to use its property, and to 

do so at a density permitted under the R-10 zone."1

 The trial 

court determined that, at the time the County purchased Doves 

Overlook, development of Doves Landing by using Doves Overlook 

for road, water, and sewer access was the only remaining 

economically viable use of Omni's land. Consequently, the 

County's purchase of Doves Overlook, according to the trial 

court, caused Omni to lose all economically viable uses of its 

property. Thus, the trial court held that the County's action 

was an uncompensated taking in violation of the Fifth Amendment 

and Art. I, § 11. 

 The trial court also held that, even if the County's 

action did not preclude all economically viable uses, an 

 1The parties disagree over the property right at issue in 

this case. The County asserts that the interest affected by 

its purchase of Doves Overlook was Omni's ability or right to 

develop its property with and through Doves Overlook. 

Resolution of these conflicting views is unnecessary in light 

of our disposition of the case. For purposes of this opinion, 

we utilize the trial court's description of the right at issue. 
6 

uncompensated taking occurred under both the federal and state 

constitutions. The trial court found that the economic impact 

of the County's actions on Doves Landing went beyond mere 

diminution of the value of the land and that Omni's reasonable 

investment-backed expectations were frustrated by the County's 

action. Finally, the trial court held that Omni suffered 

damage, as that term is used in Art. I, § 11, because the right 

to develop Doves Landing as an R-10 subdivision was a right 

appurtenant to the land, and the County's purchase of Doves 

Overlook directly and specially decreased the value of Omni's 

property. 

 Principles of appellate review require that the judgment 

of the trial court be upheld unless it is plainly wrong or 

without evidence to support it. Carter v. Carter, 223 Va. 505, 

508-09, 291 S.E.2d 218, 220 (1982). However, we are not bound 

by the trial court's view of the law. See City of Richmond v. 

Braxton, 230 Va. 161, 163-64, 355 S.E.2d 259, 261 (1985). In 

this case, the trial court erred in its interpretation of the 

relevant legal standards used to determine whether property has 

been taken under the federal and state constitutions. Applying 

these standards, we conclude that the facts do not support a 

finding of a compensable taking or damage under either the 

federal or state constitutions and, accordingly, we will 

reverse the judgment of the trial court. We first review 

Omni's Fifth Amendment claim. 
7 

 FIFTH AMENDMENT 

 The Fifth Amendment prohibits the government from taking 

private property for public use without just compensation. 

Until 1992, the United States Supreme Court had enunciated 

various criteria to be applied by the courts in considering 

whether a compensable taking had occurred. These criteria did 

not provide a bright line test but required courts to engage in 

a case-by-case, ad hoc analysis. Florida Rock Industries, Inc. 

v. United States, 18 F.3d 1560, 1570 (Fed. Cir. 1994), cert.

denied, ___ U.S. ___, 115 S.Ct. 898 (1995). A compensable 

taking occurred if government regulation went "too far," 

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922), based 

on consideration of: (1) the character of the government's 

action; (2) the economic impact of the regulation on the 

claimant; and (3) the extent to which the regulation has 

interfered with distinct investment-backed expectations. Penn 

Cen. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). 

 In 1992, Justice Scalia, writing for the majority in Lucas 

v. South Carolina Coastal Council, 505 U.S. 1003 (1992), 

explained that this "case-specific inquiry" is not necessary 

when the government physically takes possession of property or 

 regulatory action deprives property of "all economically 

beneficial or productive use." Id. at 1015. Such 

governmental action goes "too far" and constitutes a 

categorical taking for purposes of the Fifth Amendment. Id. at 
8 

1015, 1019. 

 The Court in Lucas also set out a new test for determining 

whether a take is compensable, even in categorical takings: if 

the "owner's estate shows that the proscribed use interests 

were not part of his title to begin with," the owner is not 

entitled to compensation. Id. at 1027. Stated another way, 

the limitation imposed by the government which constitutes the 

taking "must inhere in the title itself, in the restrictions 

that background principles of the State's law of property and 

nuisance already place upon land ownership." Id. at 1029. The 

regulation must "do no more than duplicate the result that 

could have been achieved in the courts - by adjacent landowners 

. . . under the State's law of private nuisance, or by the 

State under its complementary power to abate nuisances that 

affect the public generally, or otherwise." Id. 

 The facts in Lucas involved a categorical taking and thus 

did not require further discussion of whether regulatory action 

which results in less than a per se or categorical taking can 

be a compensable taking. Nothing in Lucas, however, indicated 

an intent to limit compensable takings under the Fifth 

Amendment to such instances. Courts considering the issue 

since Lucas have continued to resolve Fifth Amendment claims 

involving less than a categorical taking of property by 

utilizing the traditional three-part test. See e.g., Concrete 

Pipe and Products of California, Inc. v. Construction Laborers 
9 

Pension Trust for Southern California, 508 U.S. 602, 643-47 

(1993); Multi-Channel TV Cable Co. v. Charlottesville Quality 

Cable Corp., 65 F.3d 1113, 1123 (4th Cir. 1995); Creppel v. 

United States, 41 F.3d 627, 631 (Fed. Cir. 1994); Loveladies 

Harbor, Inc. v. United States, 28 F.3d 1171, 1179 (Fed. Cir. 

1994). 

 A. 

 In this case, the trial court first determined that the 

action of the County in purchasing Doves Overlook was a 

categorical taking as described in Lucas because it resulted in 

denying Omni all economic use of its property. 

 In reaching this conclusion, the trial court limited its 

consideration of the property's uses to those uses considered 

economically viable by Omni. Acknowledging that the property 

could be developed without using Doves Overlook either at the 

R-10 density, if Omni paid the full cost of the off-site roads 

and utility access, or at a lesser density, the trial court 

nevertheless concluded that neither of these plans was 

"economically feasible for Omni," because "by the time the 

County purchased Doves Overlook Omni had expended thousands of 

dollars to engineer, plan and develop the property, as well as 

attorney fees in litigation." 

 The constitutional inquiry, however, is not whether the 

remaining uses are economically feasible to the owner. The 

loss of the ability to develop or use the land as originally 
10 

intended is not a categorical taking if another economic use 

for the land is available, even if the value of the use is less 

than the value attached to the owner's desired use. Andrus v. 

Allard, 444 U.S. 51, 64-67 (1979); Goldblatt v. Hempstead, 369 

U.S. 590, 593-94 (1962). Thus, action which limits the ability 

to develop or use land as originally intended or in a manner 

producing the largest return on investment does not qualify as 

a categorical taking if another economic use for the land is 

available. The proper inquiry is whether the action complained 

of stripped the land of all economic uses. Lucas, 505 U.S. at 

1015; Whitney Benefits, Inc. v. United States, 926 F.2d 1169, 

1172 (Fed. Cir.), cert. denied, 502 U.S. 952 (1991). 

 When the proper standard for determining whether there was 

a categorical taking of property under the Fifth Amendment is 

applied, it is evident that no such taking occurred in this 

case. The property was originally purchased for $436,000, or 

approximately $6,000 per acre. The value of the land after the 

County's purchase of Doves Overlook, according to the appraisal 

relied on by the trial court, was $4,200 to $5,000 an acre, 

based on comparable sales of lots consisting of approximately 

ten acres each. There was no evidence of a lack of market for 

such lots. The trial court itself recognized that the property 

could be developed in this manner. Therefore, the County's 

purchase of Doves Overlook did not deprive Doves Landing of all 

economic or beneficial use and did not constitute a categorical 
11 

taking of Omni's property. 

 B. 

 Similarly, the trial court erred in its alternate holding 

that a Fifth Amendment violation occurred even if the County's 

action did not eliminate all economic use of the property. In 

reaching this conclusion, the trial court considered the 

criteria traditionally applied prior to Lucas - character of 

the government's action, economic impact of the action, and 

frustration of investment-backed expectations. 

 We begin with the trial court's analysis of the 

investment-backed expectations frustrated by the County's 

action. While this criterion embraces a number of factors, a 

primary purpose is to ensure that owners seeking compensation 

for an alleged taking "bought their property in reliance on a 

state of affairs that did not include the challenged regulatory 

regime." Loveladies, 28 F.3d at 1177; see also Ruckelshaus v. 

Monsanto Co., 467 U.S. 986, 1009-10 (1984); Connolly v. Pension 

Benefit Guaranty Corp., 475 U.S. 211, 226-27 (1986); Robert M. 

Washburn, "Reasonable Investment-Backed Expectations" as a 

Factor in Defining Property Interest, 49 Wash. U.J. Urb. & 

Contemp. L. 63, 76 (1996). 

 The trial court described Omni's investment-backed 

expectation as purchasing Doves Landing with the expectation 

that it could be developed at an R-10 density. This 

expectation was not speculative, the trial court concluded, 
12 

because Omni's feasibility studies showed such development was 

possible, the zoning was in place, plans had been submitted, 

"DLA had established its legal rights and thereby Omni's legal 

right to proceed with the plan," and DLA's preliminary plan had 

been approved. Thus, the trial court concluded, "Omni clearly 

had abundant reason to believe that its investment-backed 

expectations were reasonable and accurate and to expect the 

County to approve the plans for Doves Landing." 

 What the trial court failed to consider in its description 

of Omni's expectations was that the "state of affairs" relative 

to R-10 development of Doves Landing at all times included the 

requirement of adequate road and utility access. Omni was 

always aware of this requirement. Securing this access was not 

an expectation under the "state of affairs" but a risk which 

Omni was aware of and accepted when it purchased Doves 

Landing.2 Omni's hope or optimism that it could secure the 

required access cannot transform a risk of development into an 

investment-backed expectation supported by the "state of 

[regulatory] affairs" at the time of purchase. One who buys 

with knowledge of a restraint must assume the risk of economic 

loss. Loveladies, 28 F.3d at 1177; Creppel, 41 F.3d at 632. 

 

 2Testimony at trial indicated the price paid for Doves 

Landing was low for R-10 land, reflecting the need "to do 

things" including acquiring the access rights. 
13 

"A party may not undertake a calculated business risk and then 

seek reimbursement from the Government when the party's gamble 

does not result in its favor." Atlas Enters. Ltd. Partnership 

v. United States, 32 Fed. Cl. 704, 708 (1995). 

 Omni's gamble here went beyond merely securing road and 

utility access. Omni's proposed development depended on such 

access coming through Doves Overlook. There was no assurance 

that such access would be available. Omni's ownership of Doves 

Landing did not carry with it any right or assurance that Omni 

could utilize access through Doves Overlook. There were no 

easements or contracts giving Omni road or utility access 

through or with Doves Overlook. At best, Omni and DLA had an 

"agreement to agree" at some future time regarding the access 

issues. There is no evidence in the record that any of the 

money Omni invested in Doves Landing was spent to secure the 

needed access. Had DLA sold Doves Overlook to a party other 

than the County, Omni would be in the same position in which it 

finds itself now: having an R-10 development plan and hoping 

to secure the required road and utility access through and 

together with Doves Overlook.3

 Omni was always dependant on 

 

 3Reasonable investment-backed expectations are also 

subject to the government's power to reasonably regulate for 

the public interest. Lucas, 505 U.S. at 1023; Pace Resources, 

Inc. v. Shrewsbury Township, 808 F.2d 1023, 1033 (3d Cir.), 
14 

 

the willingness of the owner of Doves Overlook to accommodate 

its development plan. 

 The trial court erred to the extent that it considered 

Omni's ability to achieve the required access through Doves 

Overlook as a reasonable investment-backed expectation. The 

trial court further erred in omitting consideration of the risk 

of securing road and utility access when analyzing Omni's 

investment-backed expectation in R-10 development of the 

property. Taking these matters into consideration, we conclude 

that the "state of affairs" upon which Omni relied when it 

purchased Doves Landing included the risk of not securing 

adequate road and utility access. The County's purchase of 

Doves Overlook did not impose this risk, did not change the 

requirements for R-10 development, and did not interfere with 

or frustrate any enforceable arrangement or right Omni had 

cert. denied, 482 U.S. 906, reh'g denied, 483 U.S. 1040 (1987). 

 In the absence of a vested interest, Omni was not entitled to 

rely on continued R-10 zoning of its own property or Doves 

Overlook. Snow v. Amherst County, 248 Va. 404, 408, 448 S.E.2d 

606, 608-09 (1994); Vienna Council v. Kohler, 218 Va. 966, 976, 

244 S.E.2d 542, 548 (1978). Regulatory action required by the 

Chesapeake Bay Act affected the Doves Overlook property and 

ultimately resulted in the change of ownership from DLA to the 

County. 
15 

regarding road or utility access. Therefore, Omni's 

investment-backed expectation in R-10 development does not 

support a claim for a compensable taking of property under the 

Fifth Amendment. 

 The access requirement for R-10 development is also 

relevant to consideration of the economic impact of the 

County's action. This criterion is measured by the difference 

between the fair market value of land before and after the 

alleged take. Florida Rock, 18 F.3d at 1563. The trial court 

characterized the economic impact of the County's purchase as a 

significant diminution of the property's value. Although the 

trial court reached this conclusion by considering the change 

in the property's fair market value, its finding was based on a 

pre-purchase value which assumed the existence of access rights 

through Doves Overlook. 

 The appraisal report relied on by the trial court placed 

the pre-purchase value of Doves Landing at $1.2 million 

"assuming the functional unity" of Doves Overlook and Doves 

Landing. The "functional unity," or access through Doves 

Overlook, was always a contingency, not a right attached to 

Doves Landing or a right which could be enforced by Omni. To 

base a property value on a factor which is required to develop 

the property, but which never existed in fact or in law, 

distorts the fair market value analysis in this case. 

 The economic impact of the County's action must be 
16 

measured without regard to the illusory "functional unity" 

between the two parcels. The value of the property absent 

"functional unity" prior to the County's purchase of Doves 

Overlook was set at $436,000, the 1989 purchase price, and at 

$450,000, based on an April 11, 1989 assessment, which was 

reaffirmed on March 6, 1991. The fair market value immediately 

following the County's purchase without the "functional unity" 

was $350,000. The economic impact, therefore, was at most a 

decrease of $100,000 in value, or somewhat less than one-third 

of the fair market value of the property prior to the County's 

purchase of Doves Overlook. 

 No single criterion or combination of criteria is 

dispositive in a Fifth Amendment taking analysis. See Lucas, 

505 U.S. at 1071; Hodel v. Irving, 481 U.S. 704, 714-16 (1987). 

 Here, we conclude that the trial court erred in its 

identification of relevant investment-backed expectations and 

in the factors it considered in determining the economic impact 

of the County's purchase of Doves Overlook on Doves Landing. 

When viewed properly, we find that Omni's expectation of using 

Doves Overlook to develop Doves Landing did not qualify as an 

investment-backed expectation, as that term is used in an 

analysis under the Fifth Amendment, and that the economic 

impact of the County's action was not one of significant 

diminution in value. In this case, based on the conclusions we 

have reached on two criteria, we believe it unnecessary to 
17 

consider the third criterion, the character of the County's 

action, because regardless of the legality or merit of the 

County's action, Omni did not establish a regulatory taking of 

Omni's property under the Fifth Amendment.4

 ARTICLE I, § 11 OF THE CONSTITUTION OF VIRGINIA 

 Article I, § 11 prohibits the government from taking or 

damaging private property for public uses without just 

compensation. Code § 15.1-276 defines the constitutional term 

"public uses" to embrace "all uses which are necessary for 

public purposes." Property is considered taken for 

constitutional purposes if the government's action deprives the 

property of all economic use. City of Virginia Beach v. 

 

 4Omni claimed a total loss of the economic use of its 

property or alternatively a constitutionally significant 

economic loss of its total property. Thus, we do not address 

whether the total loss of "one of the sticks" in the bundle of 

property rights qualifies as a compensable taking under the 

Fifth Amendment. Lucas, 505 U.S. at 1016 n.7. Compare

Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 

(1987) and Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); 

Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 

(Fed. Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 898 

(1995); and Clajon Production Corp. v. Petera, 70 F.3d 1566 

(10th Cir. 1995). 
18 

Virginia Land Inv. Ass'n No. 1, 239 Va. 412, 416-17, 389 S.E.2d 

312, 314 (1990). 

 As we have previously discussed, the purchase of Doves 

Overlook by the County did not eliminate all economic uses of 

Doves Landing. Therefore, the County's action did not 

constitute a taking of Omni's property under Art. I, § 11. Id.

 Property is damaged for Virginia constitutional purposes 

when an appurtenant right connected with the property is 

directly and specially affected by a public use and that use 

inflicts a direct and special injury on the property which 

diminishes its value. City of Lynchburg v. Peters, 156 Va. 40, 

49, 157 S.E. 769, 772 (1931). Virginia law holds partial 

diminution in the value of property compensable only if it 

results from dislocation of a specific right contained in the 

property owner's bundle of property rights. Lambert v. City of 

Norfolk, 108 Va. 259, 268, 61 S.E. 776, 778-79 (1908). 

 Omni argues, and the trial court held, that the right to 

develop one's property is an "appurtenant right connected to 

the property" and that such right was directly and specially 

affected by the County's actions resulting in the loss of the 

"only viable economic use of the property." However, Omni has 

not lost the right to develop its property. The R-10 density 

classification has not been altered. Omni seeks to transform a 

risk attached to the development of its land at R-10 density 

into a right to do so. As discussed above, Omni had not 
19 

acquired the rights necessary to realize its preferred method 

of development either as a matter of contract or easement. 

There was no right appurtenant to Doves Landing which would 

allow Omni to develop it with and through Doves Overlook. The 

action of the County in purchasing Doves Overlook could not 

damage a non-existent right. Accordingly, we conclude that the 

County's purchase of Doves Overlook did not damage Omni's 

property within the contemplation of Art. I, § 11. 

 For these reasons we will reverse the judgment of the 

trial court and enter judgment in favor of the County in Record 

No. 960508.5

 In light of this holding, we will dismiss Omni's 

separate appeal, Record No. 960471, challenging the trial 

court's disposition of its claims under 42 U.S.C. § 1983 and 

for attorneys' fees because it is moot. 

Record No. 960508 - Reversed and final judgment.

 Record No. 960471 - Dismissed.

 

 5Our disposition of the case makes consideration of the 

County's assignments of error regarding whether the County's 

purchase qualified as regulatory action and Omni's retention of 

the fee interest in Doves Landing unnecessary.