RECENT TRIALS AND SETTLEMENTS
City of Virginia Beach v. 3232 Page Avenue Condominium Unit Owners Association, Virginia Beach Circuit Court
| INITIAL OFFER: | $4000 |
| JURY'S VERDICT: | $152,000 |
On February 20, 2009 the City of Virginia Beach condemned two easements on one-quarter acre of the 3232 Page Condominium Unit Owners Association private beach at Cape Henry Beach. The first easement taken was to convert the private beach into a public beach, while the second allowed the City to perform maintenance work on the beach, including replenishment projects though the beach, according to the City's own documents, was growing naturally.
The City valued the taking of the easement rights from the property owner at $4,000. The three condominium owners disagreed and challenged the City's valuation in court. Over the course of a three day trial in June 2011, the jury concluded that the City's offer of $4,000 was unreasonably low and awarded the property owner thirty-eight times the City's offer- $152,000.
Commonwealth Transportation Commissioner of Virginia v. Taco Bell of America, Inc., Fairfax Circuit Court
As part of a road-widening project in the Merrifield area of Fairfax County, VDOT condemned a portion of the property owned by Taco Bell, at one of the busiest intersections in Northern Virginia. Because the new road ran through a part of the Taco Bell restaurant on the property, VDOT demolished the entire building. At the just compensation trial, Taco Bell presented evidence that the restaurant building contributed to the value of the property, and that items of restaurant equipment, including prep tables, deep fryers and other equipment necessary to operate the Taco Bell restaurant, were fixtures that contributed value to the property for which Taco Bell was entitled to receive just compensation. After permitting Taco Bell to present evidence as to the contributory value of fixtures, the Fairfax Circuit Court reversed itself and instructed the jury that it was not to award any compensation for fixtures.
After the jury returned its just compensation award, Taco Bell appealed, contending that the trial court had erred in removing the valuation of fixtures from the jury's consideration. The Supreme Court of Virginia granted the appeal and reversed the decision, remanding it for a new trial on just compensation. The Supreme Court reaffirmed the use of a three-factor test to determine whether an item of property is a fixture, with the intent of the owner being the paramount and controlling factor. Because the Fairfax Circuit Court had excluded this evidence despite testimony from Taco Bell's representative that Taco Bell intended the items to remain in its restaurant indefinitely, the Supreme Court ruled that this was legal error and that Taco Bell is entitled to a new just compensation trial.
United States v. 515 Granby, LLC, United States District Court for the Eastern District of Virginia
| INITIAL OFFER: | $6,175,000 |
| JURY'S VERDICT: | $13,401,741 |
On July 1, 2010, the United States condemned a parcel of land owned by 515 Granby, LLC for the construction of an annex to the Walter E. Hoffman federal courthouse on the corner of Granby St. and Brambleton Ave. in downtown Norfolk. The property was the site of the proposed Granby Tower, a 31 story high-rise mixed-use condominium tower. At the time of the condemnation, the property had completed the first stage of development of the Granby Tower. Significant earth work had been completed along with the relocation of utilities. Approximately 600 piles had been driven to support the high-rise tower.
When the United States acquired the property in 2010, it offered the property owner $6,175,000 as just compensation but attributed no value to the improvements or development that had taken place on the land. At trial, the United States increased its estimate of just compensation to $9,000,000, giving value to only a fraction of the improvements. The property owner presented evidence that all development activities and improvements to the property contributed value and therefore just compensation was $16,320,000. After a three day jury trial, the jury returned an award of $13,401,741 for total just compensation.
Commonwealth Transportation Commissioner of Virginia v. KFC US Properties, Inc. and GOH Merrifield, LLC
| INITIAL OFFER: | $2,860,000 |
| JUST COMPENSATION SETTLEMENT: | $4,000,000 |
VDOT condemned the entire parcel of a KFC restaurant in the Merrifield area of Fairfax County for the widening of Gallows Road. The land was owned by GOH Merrifield, LLC and leased by KFC under a long-term lease with approximately 37 years remaining after the date of taking. Just five years prior to the taking, KFC had completely rebuilt the restaurant building, put in all new fixtures and equipment, and completely renovated the site improvements, parking lot, and landscaping. KFC and GOH reached an agreement as to distribution of the settlement award, and KFC took over as lead counsel for the property owners. VDOT deposited $2.86 million with the Fairfax Circuit Court in 2008 to take defeasible title to the land. After the parties agreed to mediation with Judge Robert L. Harris (Ret.) of the McCammon Group, the case was successfully settled for $4 million.
Roanoke Redevelopment and Housing Authority v. William Don and Maeona Stegall
| INITIAL OFFER: | $750,000 |
| JUST COMPENSATION SETTLEMENT: | $2,900,000 |
The Stegalls owned 3.795 acres in the RRHA's South Jefferson Redevelopment Area from which they ran a family truck tire business. The RRHA plan called for the complete acquisition of the Stegall's property. When the South Jefferson Redevelopment Plan was adopted in 2001 the Stegalls were originally offered $750,000 for their property. The Stegalls refused to sell their property at that price and waited 8 years for RRHA to institute the condemnation proceeding, which it did in November of 2008. In July of 2010 the RRHA and the Stegalls settled on a price of $2,900,000 for the acquisition of their property.
Commonwealth Transportation Commissioner of Virginia v. Pizza Hut of Virginia, Inc.
| INITIAL OFFER: | $2,275,100 |
| JUST COMPENSATION SETTLEMENT: | $2,775,000 |
| Type: | Eminent Domain Condemnation |
VDOT condemned a large portion of a Pizza Hut restaurant at the corner of Lee Highway and Gallows Road in the heart of the Merrifield area of Fairfax County. The land was owned by Pizza Hut, and VDOT's taking of a significant portion of the lot resulted in VDOT tearing down the existing building, leaving a vacant, undevelopable lot at a prime, pin corner location with nearly 150,000 vehicles passing the intersection daily. VDOT acquired the property by filing a Certificate of Take in 2008 and depositing $2,275,100 with the Fairfax Circuit Court. The parties agreed to mediate the just compensation and retained Judge Robert L. Harris (Ret.) of the McCammon Group, who helped the parties successfully resolve the matter for $2,775,000.
Commonwealth Transportation Commissioner of Virginia v. Three Brothers Deary
| INITIAL OFFER: | $426,173 |
| JUST COMPENSATION SETTLEMENT: | $1,197,000 |
Three Brothers Deary, a family partnership of longtime Virginia Beach residents owned and operated a shopping center on First Colonial Road in Virginia Beach. In its project to widen First Colonial Road, VDOT acquired a broad strip of property along the front of the shopping center eliminating 50% of the center's storefront parking. In 2007, when VDOT took the property, it estimated just compensation to be $426,173. Three Brothers Deary and VDOT settled in 2010 for $1,197,000 as just compensation for the property taken and damage done to the residue.
Commonwealth Transportation Commissioner of Virginia v. William G. Becker
| INITIAL OFFER: | $210,650 |
| JUST COMPENSATION SETTLEMENT: | $630,000 |
VDOT condemned a strip of land on the front of William Becker's property in Fairfax County, which was leased to a national automotive service chain. The acquisition took away numerous parking areas on the property and reduced onsite circuity. It also created a narrow entrance to the property that was unable to accommodate tractor-trailers, which frequently accessed the property to make deliveries. Mr. Becker engaged Waldo and Lyle, which was able to demonstrate the effect of the taking on the utility and value of the property. VDOT and Mr. Becker reached an agreement to settle the matter in 2009 for $630,000 in just compensation, three times the initial offer made by VDOT.
Commonwealth Transportation Commissioner of Virginia v. Dominion Station DC, LLC
| INITIAL OFFER: | $779,452 |
| JUST COMPENSATION SETTLEMENT: | $2,000,000 |
In 2010, VDOT condemned a portion of a parcel of vacant land in the Sterling area of Loudoun County, owned by Dominion Station DC, which intended to develop it as a bank and office building site. The taking eliminated the prime corner location for a bank site, leaving the property owner with only the rear of the property. After Waldo & Lyle was retained, it negotiated a settlement in early 2011 in which VDOT agreed to purchase the entire property from Dominion Station DC for $2,000,000.
Ronald and Leta DeAngelis v. City of Chesapeake and Chesapeake School Board
| INITIAL OFFER: | $0 |
| JUST COMPENSATION SETTLEMENT: | $175,000 |
The DeAngelises own the Southgate Plaza Shopping Center in Chesapeake, Virginia, and in 2007, when the Chesapeake School Board began construction on a new school adjacent to the DeAngelises' property, construction trucks and heavy equipment began utilizing the shopping center parking lot as a cut-through to the construction site and a staging area. As part of the school construction, the City of Chesapeake also placed a drainage pipe on the DeAngelises' property, and the School Board built a bus entrance to the school off of the property's driveway. The DeAngelises retained Waldo & Lyle, which filed an inverse condemnation action on their behalf in 2009. In 2011, the DeAngelises and the City and School Board settled the matter for compensation of $175,000.
Commonwealth Transportation Commissioner of Virginia v. Brown
| INITIAL OFFER: | $107,650 |
| VDOT Opinion at Trial: | $14,000 |
| JUST COMPENSATION SETTLEMENT: | $250,000 |
The Brown family has owned their land in Virginia Beach, an area known as "Brown Town," since the late 1800s. Their land had been previously bisected for a road project, but VDOT determined that the land originally taken contained too much wetland. VDOT decided to take another 8-acre swath of land, through the Browns' prime uplands, for its road project. VDOT originally offered the Browns $107,650 for the land taken. The Browns engaged Waldo & Lyle to represent them, and when the Browns refused this offer and decided to take the matter to trial, VDOT hired a new appraiser, who valued the property at only $14,000. At trial, VDOT offered testimony that the property, located in the middle of Virginia Beach and surrounded by residential development, was nearly worthless and could only be used for "conservation easements." In the middle of the trial, Waldo & Lyle helped negotiate a settlement on behalf of the Brown family for $250,000, nearly eighteen times VDOT's appraisal.
City of Suffolk v. Upton Farms, Inc.
| INITIAL OFFER: | $2,000,000 |
| JUST COMPENSATION SETTLEMENT: | $3,100,000 |
The City of Suffolk undertook a plan to improve the intersection of Shoulders Hill Road and Nansemond Parkway. Upton Farms, Inc. owned property on all corners and quadrants of the affected intersection. The City's initial offer of just compensation was slightly more than $2 million for all four properties. Upton Farms understood that the project severely impacted their properties and refused the City's offer, retaining Waldo & Lyle. The City's project placed a retention pond on the corner of one parcel, the most marketable portion of that property, compressed the useable acreage of another of the properties such that only 50% of the site was buildable and created a number of other issues for the properties. The project eliminated the owner's control of the road frontage, changed the grade, pushed by-right development and sign placement away from the road and imposed various easements on the property. After mediating the cases individually, Upton Farms, with the assistance of Waldo & Lyle agreed to a settlement with the City of Suffolk for more than $3.1 million.
THE EVANGELINE YODER LIVING TRUST
v. CITY OF NEWPORT NEWS,
JURY VERDICT: $217,000
In this inverse condemnation action Ms. Yoder sued the City of Newport News for creating a flooding condition on her property. In March of 2008 the Newport News Circuit Court ruled that Ms. Yoder’s property had been taken and damaged when the City of Newport News accepted into its storm water management system a drainage system that created a flooding condition on the Petitioner’s property.
In April of 2010 a three-day trial was held to determine the amount of just compensation to be paid for the taking and damaging of the Yoder’s property. The property owner put on evidence that the value of the property taken and damaged was $310,223.00. The City argued that the value was $37,000.00. After being instructed that the owner’s property had been taken and damaged the five-person just compensation jury awarded a total of $217,000 for the taking and damaging of the property.
Click here to read the feature in Virginia Lawyers Weekly regarding this case
ROANOKE REDEVELOPMENT
AND HOUSING AUTHORITY,
v.
B
&B HOLDINGS, LLC
ORIGINAL OFFER: $1,025,000
JURY VERDICT: $2,200,000
The Roanoke Redevelopment and Housing Authority (RRHA) condemned the Burkholders’ property on June 29, 2007 – the last day possible before a new law would have prohibited the taking of their property. The RRHA wanted the Burkholders’ property to turn over to Carilion Health Systems for private development.
A two-year attempt to invalidate the taking of the property ended in the fall of 2009 when circuit court judge William D. Broadhurst ruled that RRHA had properly proceeded in declaring the South Jefferson Redevelopment Area to be blighted. The Burkholders’ case received national press coverage and helped remind citizens in the Commonwealth of Virginia of the necessity of a constitutional amendment to protect private property rights from being subrogated to private economic development interests.
During a three-day just compensation trial the landowner, B&B Holdings, presented evidence that the RRHA significantly had undervalued the owners’ property. The RRHA had not valued the interim use of the buildings on the property, but the landowner’s appraisers found that the buildings and structures on the ground had an interim value. The RRHA also valued the Burkholders’ property as two separate parcels, which would disqualify it from the high-density zoning it had been granted.
VIRGINIA DEPARTMENT OF TRANSPORTATION
v.
LOGAN SINCLAIR LIMITED PARTNERSHIP
PRINCE WILLIAM COUNTY CIRCUIT COURT
VDOT INITIAL OFFER: $2,620,076.00
JUST COMPENSATION
SETTLEMENT: $4,800,000.00
The Logan Sinclair Limited Partnership owned two adjoining parcels in the City of Manassas, which totaled just under 21 acres, offset from the intersection of Wellington Road and Route 28, one of the remaining undeveloped intersections in Manassas. The Logan Sinclair property was the largest privately held undeveloped property in Manassas.
VDOT condemned the property to build a bridge carrying Route 28 traffic over Wellington Road and to build a connector road between Route 28 and Wellington, which created a significant change in grade, loss of utility and access and the elimination of visibility. The condemnation also burdened the property with a number of utility, drainage and maintenance easements.
The experts engaged by the Logan Sinclair Partnership, which included two real estate appraisers, four engineers, a wetland delineator and a real estate consultant, determined that VDOT’s condemnation severely damaged the property and left it in a vastly inferior condition, which reduced the property’s value by reducing its highest and best use from high-end retail to industrial warehouse. VDOT’s appraisers had not considered the scope of damage the project created on the property.
With Waldo & Lyle’s assistance, the Logan Sinclair Limited Partnership reached a settlement $2.2 million above VDOT’s initial offer.
COMMONWEALTH TRANSPORTATION COMMISSIONER OF VIRGINIA
v.
TRUSTEES OF THE JACK SCHRIER IRREVOCABLE TRUST
Fairfax County Circuit Court
INITIAL OFFER: $2,563,900
JURY AWARD FOR
PROPERTY TAKEN: $3,409,890
JURY AWARD FOR
DAMAGE TO PROPERTY : $895,600
A five-member Fairfax County condemnation jury unanimously awarded the owner of the former Merrifield Sunoco site, the Trustees of the Jack Schrier Irrevocable Trust, and the long-term tenant, Sunoco, Inc. (R&M), a total of $4,305,490.00 for the taking of a portion of the property and the damage to the residue by the Virginia Department of Transportation as part of its project to widen Lee Highway and Gallows Road in the Merrifield area of Fairfax County. The property owner presented expert testimony from an appraiser and a real estate broker that the highest and best use of the site was continued use as a gasoline/service station and convenience store.
The property owner’s expert witnesses testified that comparable properties sold in 2006 for between $4.4 million and $6 million. VDOT presented expert testimony from an appraiser that the highest and best use of the site was for assemblage with adjoining parcels for redevelopment as a bank site. VDOT’s expert witness testified that the service station building had no contributing value to the property, although the parties agreed that the gasoline storage tanks and fuel pumps did have a value.
As required by statute for eminent domain just compensation trials, the jury viewed the property. After deliberating five hours, the jury awarded the property owner and the long-term tenant more than $1,850,000 above VDOT's initial deposit and just compensation appraisal. The jury award included $3,409,890 for the value of the property rights taken and $895,600 in damages to the remaining property as a result of the taking.
WALDO AND LYLE WINS SIGNIFICANT VICTORY FOR PROPERTY OWNER NEAR DULLES AIRPORT
INITIAL OFFER: $289,925.00
JURY VERDICT FOR
PROPERTY TAKEN: $368,718
JURY VERDICT FOR
DAMAGE TO PROPERTY: $668,832
TOTAL JURY VERDICT: $1,034,550 (plus interest)
Khalid B. Mohamed, a Northern Virginia contractor and real estate investor, owned a 1.75-acre tract of land at the corner of Centreville Road and West Ox Road in Western Fairfax County, Virginia, not far from Dulles Airport. Mr. Mohamed’s property, on a wooded corner of one of the last undeveloped intersections along a busy stretch of Centreville Road, was unusual in that it was split-zoned, approximately half residential and half commercial. The commercially-zoned half of the Mohamed property fronted on Centreville Road. As part of a project to widen Centreville Road from two lanes to six, the Virginia Department of Transportation condemned a portion of Mr. Mohamed’s property, and the land taken was entirely from the commercially-zoned half of the property.
After Mr. Mohamed rejected VDOT’s initial offer to purchase the property for $289,925.00, he retained the services of Waldo & Lyle, P.C. At trial, VDOT’s expert appraiser testified that just compensation was $450,900.00, and that the remainder of the lot could be rezoned and subdivided into two residential building lots. Mr. Mohamed had retained the services of an expert engineer, who testified at trial that rezoning was prohibited by the Fairfax County Comprehensive plan, and therefore that Mr. Mohamed would only have one buildable residential lot. Mr. Mohamed’s appraisers testified that they believed just compensation exceeded $1,100,000.00.
The jury returned a unanimous verdict of $1,034,550.00, including $368,718 in compensation for the property rights taken and $668,832 for damages to the remaining property as a result of the taking. VDOT appealed to the Virginia Supreme Court, which denied the Petition for Appeal. The total judgment, including interest, exceeds $1,100,000.00. Mr. Mohamed is also entitled to reimbursement of his expert witness fees in excess of $45,000.00.
COMMONWEALTH TRANSPORTATION COMMISIONER OF VIRGINIA
v.
THEODORE FRANK BODNAR, JR.
INITIAL OFFER: $311,350.00
JURY AWARD: $1,274,866.40 (plus interest)
Following a three-day jury trial, during which the condemnation jurors took a view of the property being taken, on October 21, 2009, the jury returned a unanimous verdict of $1,274,866.40 as just compensation for the taking of property and damage to the residue of property owned by Theodore Bodnar, Jr., located in the Merrifield area of Fairfax County. VDOT initially offered $311,350.00 to Mr. Bodnar to purchase his property rights prior to filing the condemnation action. At trial, VDOT presented expert testimony from an appraiser, who testified that her opinion of just compensation was $344,600, including $343,600 for the property rights taken, $1,000 for adjustment costs, and $0 for damages to the residual property. VDOT’s appraiser opined that the property should be combined with neighboring parcels and redeveloped as a bank site. The property owner presented expert testimony from an engineer and development consultant, that the taking restricted the utility of the property by making the lot non-conforming under the Fairfax County Zoning Ordinance and making access to the residue unreasonable. The property owner also presented expert testimony from an appraiser, who testified that his opinion of just compensation was $1,467,338.06, including $460,172.53 for the property rights taken and $1,007,165.53 for damages to the residual property. The property owner’s appraiser testified that the property would have been developed on its own as a bank site prior to the taking, but that the taking required Mr. Bodnar to negotiate with neighboring property owners, both of whom have long-term leases on their properties, to assemble their properties together in order to develop them. The unanimous jury verdict included $362,385.25 for the value of the property rights taken and $912,501.15 for the damages to the remaining property as a result of the taking.
VIRGINIA DEPARTMENT OF TRANSPORTATION
v.
JOHN G. MARTIN CO., LLC
VDOT INITIAL OFFER: $18,903
JURY AWARD FOR
PROPERTY TAKEN: $48,360
JURY AWARD FOR
DAMAGE TO RESIDUE: $103,188
TOTAL JURY AWARD
FOR CLIENT: $151,548
The Martin family owned an unimproved 2 acre parcel fronting on George Washington Memorial Highway in Grafton (York County), Virginia. Most of the property was part of a farm that had been in the family for over 150 years, and was being held to develop as a prime commercial corner retail site. VDOT decided to expand the road and relocate the utilities in the existing right of way. An electrical switchbox was to be installed on one end of the road frontage, but VDOT stated it intended to install the remaining utilities underground. The property taken included permanent utility easements and a temporary construction easement, but no land acquisition. The project and easements caused a loss of control of the frontage and loss of visibility from one end. At trial, VDOT's appraiser valued the easements at $18,903, and testified that in his opinion there was no damage to the remaining property. The opinion of the landowner's appraiser was that the easements taken had a value of $48,360, and the remaining property had been damaged in the amount of $103,188. On September 4, 2008, seeing the impact of the easements on the remaining property, the jury awarded the landowner just compensation of $151,548, the full amount sought in the case.
