VIRGINIA BEACH
In the close-knit community of Lynnhaven Dunes, the condominium's gemstone is a roughly 300-foot strip of beach along the Chesapeake Bay. The sliver of sand is a place where the condos' residents take morning strolls, gather for wine on summer evenings and play with their dogs.
Their small chunk of Cape Henry Beach, which stretches from First Landing State Park to the Lesner Bridge, is their backyard, said the condo association's president, Stan Clark.
But the condominium no longer owns the shoreline abutting its property after the city condemned portions of Cape Henry Beach in 2009 to place sand dredged from Lynnhaven Inlet there.
Now they're going to court to see how much the rights to that land are worth.
The condo association valued them at $1.5 million, according to court documents. The city says they're worth nothing.
They'll ask jurors to decide in a civil trial starting in Circuit Court today. It's expected to last several days.
The trial is the next iteration of an ongoing legal battle between the Lynnhaven Dunes Condominium Association and the city, stretching back to 2009 when the association first contested the city's taking of easements allowing it to use and maintain its section of Cape Henry Beach. The association lost that claim in Circuit Court and appealed to the state Supreme Court, which ruled last November that the city had the right to acquire the easements but should have compensated the land's owners.
At issue is Lynnhaven Dunes' riparian rights, which are a waterfront landowner's rights to access and use the water adjoining his or her property.
The state owns submerged land in the commonwealth, including any dry land created by sand that's dumped on the water's edge.
So when the city put sand on Cape Henry Beach, it created a strip of state-owned land and severed Lynnhaven Dunes' riparian rights, the Supreme Court ruled.
The loss prevents the association from ever building on that land, Clark said.
Fifty years ago, four of the condominium's six buildings would have been underwater, he said. Sand buildup over time expanded their usable acreage, and they were hoping that trend would continue.
Now Lynnhaven Dunes doesn't own the rights to any new land. Experts expected to testify this week have estimated it will grow by about 4 feet a year, said the association's attorney, Henry Howell III.
The loss also could affect the condos' values, said association member Connie Turpin, who's lived at Lynnhaven Dunes for about two years. Lynnhaven Dunes might not be able to market its homes as beachfront property or sell them at a premium, beachfront price because the state now owns the land next to the bay and the city possesses the easements to use it, Turpin said. Instead, they're now beach-view, she said.
The association is asking for $1.5 million for the riparian rights, plus legal fees, according to court documents. Any judgment would be split among the condos' 70 owners, among them retired Navy SEALs, airline pilots and widows.
The city never wanted or intended to take the landowners' rights, Deputy City Attorney Chris Boynton said.
It needed a place to put sand dredged from Lynnhaven Inlet to make it deeper for watercraft, he said. Cape Henry Beach offered a solution.
"We were trying to make the beach bigger and protect their structures and public structures and allow a larger space for recreation for everyone," Boynton said.
Environmental regulations prevent Lynnhaven Dunes from building on that land anyway because it's beyond the dunes and too close to the water, Boynton said. And the city's appraiser determined the association may still market its units as waterfront property.
The state might give back the association's riparian rights, but settlement efforts so far have been unsuccessful, Boynton said. The city had initially offered to pay the association $15,000 to use its beach, which was nearly an acre, according to court records.
To prevent future litigation like this, city officials are seeking a clarification to state law that says a waterfront property owner maintains his or her riparian rights after a sand-replenishment project.
"Our view is that this has been, and always will be, a public beach, and the owners at Lynnhaven Dunes have every function and practical ability to use that beach that they had before the beach-replenishment project," Boynton said. "They have the same water view. They have the same water access.... They just have a bigger beach to play on."
It's about more than that, said Turpin, standing on the sand in front of Lynnhaven Dunes on Monday morning.
"This is all what's at issue," she said, looking out over the beach. "You just can't come in and take away our rights."
Their attorney, Howell, said: "The question is: What are they worth?"
Kathy Adams, 757-222-5155, kathy.adams@pilotonline.com