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PRESENT: All the Justices LYNNHAVEN DUNES CONDOMINIUM ASSOCIATION v. Record No. 120086 OPINION BY JUSTICE CLEO E. POWELL November 1, 2012

CITY OF VIRGINIA BEACH FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Bonwill Shockley, Judge In this appeal, we consider whether an ordinance authorizing the acquisition of an easement by condemnation also confers the authority to acquire the easement by an action to quiet title. We further consider whether the evidence in this

case was sufficient to support the circuit court's ruling that the City of Virginia Beach (the "City") proved an implied dedication of the disputed easements and whether the circuit court erred in ruling that Lynnhaven Dunes Condominium Association ("Lynnhaven") was not entitled to compensation for its loss of riparian rights. I. Background The present case concerns the beach along the Chesapeake Bay from First Landing State Park to the Lesner Bridge, referred to as "Cape Henry Beach." The facts regarding the state of Cape

Henry Beach and the City's plan to replenish it are substantially the same as those in the companion case of 3232 Page Avenue Condominium Unit Owners Ass'n v. City of Virginia

Beach, 284 Va. 639, 735 S.E.2d 672 (2012) (this day decided), therefore, we will only address those facts unique to this case. On February 25, 2009, the City filed a "Petition for Condemnation to Confirm Public Easements," seeking to acquire title to the easements from Lynnhaven. In the petition, the

City sought to take or confirm a "perpetual recreational easement and a shore protection/construction easement" (collectively, the "Easements"). In its "Answer, Grounds of Defense and Objections to Jurisdiction," Lynnhaven argued that the City did not have legal authority to condemn the property, as the City has not complied with the statutorily required procedures for a condemnation proceeding. In an order dated July 24, 2009, the circuit court

overruled Lynnhaven's objections and ruled that it would rule on the issue of ownership of the Easements "at or immediately after the hearing to determine just compensation." Recognizing that the issue of ownership of the Easements could render the issue of just compensation moot, the parties mutually agreed to hold the ownership trial prior to the just compensation trial. Additionally, prior to trial Lynnhaven

raised the issue of compensation for its riparian rights. According to Lynnhaven, the beach replenishment project created an artificial strip of land owned by the Commonwealth that cuts off Lynnhaven's connection to the Chesapeake Bay. Thus,

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Lynnhaven argued that, regardless of who actually owned the Easements, the City would still be required to compensate Lynnhaven for the loss of its riparian rights. During the ownership trial, the circuit court heard evidence that, in a plat recorded in 1926 (the "1926 plat"), Cape Henry Beach was depicted as "Ocean Avenue." In 1954, In

however, the Board of Supervisors abandoned Ocean Avenue.

1999 another plat was recorded (the "1999 plat") resubdividing certain lots of the 1926 plat. The 1999 plat did not contain

any reference to Ocean Avenue and made no mention of any public interest in Cape Henry Beach. The City also presented evidence that the public used the entirety of Cape Henry Beach extensively since at least the late 1940's. Further evidence was presented that the City regulated

Cape Henry Beach as early as 1938 and that the City's police force patrolled the entirety of Cape Henry Beach around the clock since at least 1976. Similarly, evidence was presented

that, from at least 1980, the City maintained Cape Henry Beach. Such maintenance included daily garbage removal from trash barrels provided by the City, raking the beach to remove litter, grading the beach, annually planting new beach grass and removing dead sea life. After hearing all of the evidence, the circuit court granted the City's petition, ruling that

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The City has demonstrated by a preponderance of the evidence, and to the extent necessary by clear and convincing evidence and/or by unequivocal evidence, that it acquired by implied dedication as a result of the recordation of a 1926 plat . . . a recreational easement and a maintenance easement in the subject property . . . ; In addition to the 1926 plat, the circuit court relied upon the City's continued "policing, cleaning, draining, and public use over the years" as evidence of the City's acceptance of the implied dedication. The circuit court further determined that

Lynnhaven was not entitled to compensation for the loss of its riparian rights because Lynnhaven's connection to the Chesapeake Bay was cut off as a result of improvements to navigation. Lynnhaven appeals. II. Analysis On appeal, Lynnhaven argues that the City failed to follow the statutory requirements necessary to exercise its power of eminent domain. Lynnhaven also takes issue with the circuit

court's determination that the City had acquired the Easements through implied dedication and the circuit court's determination that Lynnhaven was not entitled to compensation for the loss of its riparian rights. A. Jurisdiction Lynnhaven argues that, because the City did not pass an ordinance authorizing the acquisition of the property by

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quieting title, the City could not bring an action to quiet title in conjunction with a condemnation proceeding. Lynnhaven

relies heavily on Code

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