A recent legal decision clarifies that a private entity retains exclusive ownership rights over land previously used by a municipality as a public park, with implications for local land management and public access. The case was filed by Pretty Lake 5757 LLC in the Circuit Court of the City of Norfolk against the City of Norfolk in November 2022.
The dispute involves two parcels known as the Pretty Lake Avenue Parcel and the Snake Parcel. After purchasing these properties at a tax sale in April 2022, Pretty Lake 5757 LLC sought a judicial declaration affirming its exclusive ownership. The company also requested an injunction to prevent the City from using or operating any structures or improvements—such as gazebos, walkways, piers, benches, grills, and signs—on either parcel. According to the filing, “Pretty Lake sought a judicial declaration that it was entitled to exclusive ownership of the Property and an injunction ordering the City to cease use or operation of the Property.” In response, the City counterclaimed to quiet title based on adverse possession and sought compensation for any improvements if found not entitled to them.
The background reveals that since at least 1990, the City maintained portions of these parcels as a public park. In 1992, three gazebos were constructed by the City; further developments included a large concrete pier built in 2008 along with other amenities like benches and grills. Disputes about property boundaries led to prior litigation resolved by a 2009 order confirming Clark Investments (the previous owner) held title to one parcel while the City owned an adjacent strip known as the Bragg Strip.
After Clark Investments failed to pay real estate taxes assessed by the City, enforcement actions led to a tax sale in which Pretty Lake acquired both parcels. No evidence was presented during litigation showing that Pretty Lake granted any easement or permission for continued city use or improvement after purchase.
At trial, several key findings emerged:
– The court determined that “the City’s admission as to Pretty Lake’s ownership ‘super[c]edes any alleged clerical error in related deeds.'”
– It ruled that while “the City had not abandoned its right of way” for purposes limited strictly to public transportation (such as walking or biking), much current use—including maintaining gazebos and grills—exceeded this scope.
– The court found “the construction and maintenance of gazebos…not consistent with purpose for which Right of Way was dedicated,” thus ruling those structures outside permissible city use.
– On adverse possession claims regarding one parcel (the Snake Parcel), evidence showed that both Clark Investments and later Pretty Lake paid taxes on it after acquisition; this acknowledgment negated hostile possession required for adverse possession under Virginia law.
– Regarding statutes of limitation defenses raised by the City against ejectment claims brought by Pretty Lake, “the City did not allege as an affirmative defense that statutory limitations period had run for ejectment claims.” Therefore, those defenses were unavailable at trial.
The court also addressed whether common law ejectment actions could be brought against governmental entities when property is taken for public use without compensation. Citing precedent from Sheffield v. Department of Highways & Transportation (1990), it concluded such actions are permissible unless their effect would significantly disrupt essential public functions—a situation not present here given “all parties agree [the park] is scarcely used by public.” As such, “permitting ejectment…will not result in same degree of adverse effects as shutting down major highway.”
On issues relating to implied easements claimed by the City over disputed parcels (to access its own Bragg Strip), no evidence supported preexisting uses necessary at time of original severance; therefore no implied easement was found.
Finally, procedural matters included exclusion of two witnesses offered late by the City during trial due to missed disclosure deadlines; this exclusion was upheld on appeal as within judicial discretion.
Ultimately, Pretty Lake prevailed on most points: its exclusive fee simple ownership was confirmed; city use is limited strictly to transit along established rights-of-way; all nonconforming structures became property of Pretty Lake upon purchase; and no compensation is owed because “the City did not adequately prove value for compensation for value of improvements.”
Attorneys listed include Kristopher R. McClellan and Adam D. Melita from the City Attorney’s Office representing appellant (City), with Stephen Heretick and Louis N. Joynes representing appellee (Pretty Lake). Judges Causey, White, and Frucci presided over appellate review under Record No. 0073-25-1.
Source: 0073251_City_of_Norfolk_v_Pretty_Lake_5757_LLC_Opinion_Virginia_Court_of_Appeals.pdf
