Construction Law Insights

Mendes v. Beahm, 2020 U.S. Dist. LEXIS 111986, 2020 WL 3473656 (W.D. Va. Jun. 25, 2020)

Plaintiff Nelson Mendes purchased waterfront property in Warren County, Virginia, in May 2017 with plans to open a tree nursery and eventually build a residence. Mendes’s contractors began to clear trees and other obstructions, and Mendes built a greenhouse himself. A month later, the Warren County Building Inspection Department (“Building Department”) issued a stop work order and instructed Mendes to obtain a land disturbance permit. When Mendes sought clarification, the Building Department informed him that a neighbor reported Mendes’s contractors removing vegetation and tossing it into the river, which prompted a Virginia DEQ site inspection. The neighbor later recanted her story and admitted her false report was a result of her being upset by

Mendes’s clearing of trees near her land. DEQ later informed Mendes that there were no compliance issues with his property. However, the Building Department accused Mendes of violating several DEQ regulations, including failure to submit a full erosion and sediment control plan. A third DEQ official overruled the Building Department’s position, and the Building Department acquiesced. From March 2018 to January 2019, the project continued without incident.

In January 2019, Mendes received a notice of violation from the Warren County Planning Department’s Zoning Administrator for multiple zoning violations. The next month members of the Building and Planning Departments visited the property at Mendes’s request. Although Mendes’s position was that a 2015 Zoning Ordinance Interpretation exempted him from a permit requirement, the Planning Department instructed him to submit an agricultural exemption zoning application and that all structures on the property would need to be inspected for compliance with the National Flood Insurance Program and FEMA standards. Mendes complied with these requests. In May 2019, Mendes received a zoning determination that he would need to obtain residential building permits for all structures in the flood plain area. Mendes appealed, and the at the Board of Zoning Appeals (“BZA”) hearing presented evidence of arbitrary and capricious enforcement and trespassing by county officials. Prior to a second BZA hearing, the head of Planning Department informed Mendes that it was prepared to concede to Mendes’s legal position but require him to pay a ten-dollar zoning permit fee for his deck. Mendes rejected this, but the BZA directed him to comply.

Mendes brought a § 1983 claim against Warren County, various county officials in their official and individual capacities, and other government entities, asserting procedural and substantive due process claims, and equal protection claim, a Fourth Amendment claim, and a civil conspiracy. He also requested that the court exercise its supplemental jurisdiction and review the BZA’s determination. The court dismissed all claims but his Fourth Amendment claim against one official.

The court held that Mendes’s procedural due process claim failed because he conceded that he was unable to identify a property interested that was abridged by the actions of the defendants, which failed to satisfy the first two elements of the claim. Tri Cty. Paving, Inc. v. Ashe Cty., 281 F.3d 430, 436 (4th Cir. 2002). He also failed to appeal the BZA’s ruling within 30 days pursuant to Code § 15.2-2314. Mendes’s substantive due process claim failed both for his inability to identify any deprivation of a protected property interest and because the defendants’ conduct did not meet the standard of “the most egregious official conduct” that “shocks the conscience.” Wolf v. Fauquier Cty. Bd. of Supervisors, 555 F.3d 311, 323 (4th Cir. 2009). The court dismissed his equal protection claim because he failed to adequately allege, as required by Twombly and Iqbal, specific similarly situated properties to support his claim. The court dismissed his civil conspiracy claim because of conclusory allegations made “upon information and belief” and because the intracorporate conspiracy doctrine bars his claim. The court also rejected his request to exercise its supplemental jurisdiction.

The court did permit his Fourth Amendment claim to survive. Mendes alleged that the Planning Department floodplain manager trespassed on Mendes’s property looking for evidence of potential zoning violations without his consent. Mendes’s allegations included emails obtained by FOIA supporting his contention that the official was unaware of any legal authority granting him the right to access Mendes’s property. The defendants failed to argue under the applicable line of cases supporting qualified immunity for administrative searches. Therefore, the court did not dismiss Mendes’s Fourth Amendment claim against the floodplain manager.

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Thomas Wolf 002 Kenneth Stout 002 Jason Goldsmith 002

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