Palmyra Associates, LLC v. Commissioner of Highways ( 2020 )


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  • PRESENT: Goodwyn, Mims, Powell, Kelsey, McCullough, and Chafin, JJ., and Russell, S.J.
    PALMYRA ASSOCIATES, LLC, ET AL.
    OPINION BY
    v. Record No. 191680                                JUSTICE STEPHEN R. McCULLOUGH
    December 17, 2020
    COMMISSIONER OF HIGHWAYS
    FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
    Richard D. Taylor, Jr., Judge Designate
    The landowner in a condemnation proceeding challenges several rulings below: (1) the
    court’s decision to strike the testimony of the owner of the property concerning damage to the
    residue of the property; (2) the court’s refusal to admit site plans into evidence; and (3) the
    court’s inquiry after the trial whether it should hold a new trial or confirm the value of the take.
    For the reasons noted below, we will affirm the judgment of the circuit court.
    BACKGROUND
    Palmyra Associates, LLC (“Palmyra”) owned 44.048 acres of land in Fluvanna County.
    The property is situated at the intersection of Routes 15 and 53. Consistent with the County’s
    comprehensive plan, Palmyra intended to develop the property into a commercial development.
    Palmyra had site plans drawn up in the decade prior to the take. As of the date of the take,
    however, the property remained an unimproved wooded lot.
    To improve traffic flow at the intersection of Routes 15 and 53 in Fluvanna County, the
    Commissioner of Highways (“VDOT”) decided to upgrade the “T” shaped intersection into a
    roundabout. VDOT sought to acquire from Palmyra approximately 7,200 square feet (0.166 of
    an acre) in fee simple, 4,500 square feet (0.103 of an acre) for a permanent drainage easement,
    and 1,930 square feet (0.0443 of an acre) in temporary construction easements.
    The parties could not reach an agreement on VDOT’s offer to purchase the land. VDOT
    then recorded a certificate of take on January 7, 2016 and a petition in condemnation on July 1,
    2016. Palmyra asked for the appointment of commissioners to resolve the question of
    compensation.
    Palmyra’s initial expert witness designation stated that David G. Sutton, the co-owner of
    the property, would testify that “a one (1) acre pad site on the front portion of the property has a
    value of approximately $400,000,” and his “opinion[]” as to “damages to the residue” would
    “us[e] . . . $400,000 as the value of a one (1) acre pad site fronting Route 15.” In a supplemental
    answer to an interrogatory, Palmyra indicated that Sutton would “opine that the roundabout has
    reduced the development potential of the residue by reducing its frontage size and thus
    eliminating a fourth building pad,” resulting in damages to the residue in the amount of
    $545,000.
    Relying on Appalachian Power Co. v. Anderson, 
    212 Va. 705
    (1972), VDOT filed a pre-
    trial motion to exclude testimony from the owners of the parcel to the extent it relied on the loss
    of a non-existent pad site in estimating the value of the damage to the residue. VDOT argued
    that “[a]lthough Palmyra Associates may be able to present evidence that the subject property is
    ‘suitable’ to being subdivided for commercial pad sites, it is improper to value the subject
    property as if it was an actual subdivided one-acre pad site on the date of the take.” The circuit
    court held that Sutton could testify, but that he could not offer evidence of damages to the
    residue on a per lot basis.
    Palmyra also sought to introduce site plans into evidence, which the trial court refused.
    Those site plans depicted a proposed commercial development for the property. Refused Exhibit
    A consisted of 22 pages of detailed site plans of development prepared and filed with the county
    2
    over 10 years prior to the take. Ex. Add. 2-23. Refused Exhibit B showed a site plan reflecting
    changes to Route 15 resulting from another construction project. Refused Exhibit C was an
    overlay of the roundabout project (including the planned “fourth leg” entrance) which was
    prepared using VDOT’s plan for the roundabout project, overlaid on the site plans depicted in
    Refused Exhibits A and B.
    The County had not approved these site plans. Sutton testified that the County had
    approved “the concept” but had not given approval of the final plan. He also explained that the
    County imposed a number of conditions, but, as of the date of the take, Palmyra had not met
    those conditions. A significant portion of the property was in a floodplain. Therefore, Palmyra
    needed County approval to build on the floodplain. Palmyra acknowledged it may need to
    construct a retaining wall to gain the County’s approval. The site plans also showed additional
    infrastructure improvements, such as the widening of a road and bridge and the construction of
    two entrances.
    At trial, Sutton testified that the loss to the residue caused by the taking was $545,000.
    When asked how he arrived at that figure, he responded that he “took the frontage acreage,
    which is roughly 5.5 acres that [he] had previously valued at $2.2 million, and [the take]
    damaged that at twenty-five percent.” Sutton further explained that “we’ve lost significant
    development potential across that frontage because of the imposition of the fourth leg of the
    roundabout, as well as because the property that was taken reduced our frontage and compressed
    where we could develop on that first primary acreage.” After deliberating, the commissioners
    returned with a majority award and a minority award. The three commissioners nominated by
    Palmyra returned the majority award, including $66,400 for the fee simple acquisition, $37,187
    for the drainage easement, $3,544 for the temporary construction easement, and $350,000 for
    3
    damages to the residue, amounting to total just compensation in the amount of $457,131. The
    two commissioners nominated by VDOT returned the minority award, including $66,400 for the
    fee simple acquisition, $37,187 for the drainage easement, $3,544 for the temporary construction
    easement, and $125,000 for damages to the residue, amounting to total just compensation in the
    amount of $232,131.
    VDOT filed post-trial exceptions to the commissioners’ report. Among other things,
    VDOT argued that Sutton’s testimony about damage to the residue must have been based on the
    loss of a pad site, in contravention of the court’s pre-trial ruling that such testimony was
    inadmissible. VDOT pointed to the fact that, at trial, Sutton estimated the damage to the residue
    at $545,000, the same figure as the damages estimate Sutton reached pre-trial based on the loss
    of a pad site. VDOT further noted that, at trial, Sutton’s testimony did not supply “any basis for
    his conclusion that the development potential of the property was reduced in any way other than
    the elimination of a fourth building pad site.” Consequently, VDOT contended, “[t]he only basis
    for Mr. Sutton’s opinion that the development potential of the residue was reduced was the
    elimination of a fourth building pad site, which the Court previously ruled was improper.” The
    circuit court agreed. It concluded that Sutton had testified in contravention of the court’s
    pre-trial ruling and his testimony should be stricken.
    Following the trial, the circuit court stated that it would “entertain argument” by counsel
    “as to whether the Court should” follow one of two approaches: “confirm the award of the take
    only, or grant a new trial.” Counsel for VDOT responded that the parties “agree . . . that . . . the
    Court should enter a Final Order in this matter setting aside the damage award and confirming
    the award for the value of the take, only.” Counsel for Palmyra clarified that while the parties
    did not agree on the court’s ruling striking the testimony, “both sides agree to the first of the 2
    4
    options [the court] gave [them].” That option was that “the Court should confirm the award of
    the take only” rather than “grant a new trial.”
    The circuit court entered a Final Order confirming the commissioners’ award of $107,131
    for the take and setting aside the award for damages to the residue. This appeal followed.
    ANALYSIS
    I.      THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN EXCLUDING PALMYRA’S
    SITE PLANS FROM CONSIDERATION BY THE COMMISSIONERS BECAUSE A NUMBER OF
    SIGNIFICANT CONTINGENCIES EXISTED BEFORE THOSE PLANS COULD BE APPROVED.
    Palmyra assigns error to the circuit court’s
    refus[al] to admit into evidence site plans [the] Landowner had
    prepared over 10 years prior to the take showing the development
    potential of their property and overlays showing the impact of the
    imposition of the fourth leg of the roundabout on the development
    potential of their property. 1
    “In every eminent domain case involving a partial taking, the measure of damages to the
    residue of the property not taken is the difference in the fair market value of the residue
    immediately before and immediately after the taking.” City of Virginia Beach v. Oakes, 
    263 Va. 510
    , 516 (2002) (quoting East Tennessee Nat. Gas Co. v. Riner, 
    239 Va. 94
    , 100 (1990)). “In
    ascertaining such damages, both present and future circumstances which actually affect the value
    of the property at the time of taking may be considered, but remote and speculative damages may
    not be allowed.”
    Id. For example, when
    there exists a reasonable probability of a favorable
    re-zoning, a prospective buyer and seller would consider that circumstance in valuing the parcel
    on the date of the take. Helmick Family Farm, LLC v. Commissioner of Highways, 
    297 Va. 777
    ,
    1
    VDOT argues that this assignment of error is procedurally defaulted because Palmyra
    failed to file any exceptions to the commissioners’ report at the conclusion of the trial. We
    disagree. The development plans were excluded pre-trial and did not inform the commissioners’
    report. Palmyra opposed the court’s pre-trial exclusion of the site plans. That is sufficient to
    preserve the point for appellate review. See Code § 8.01-384.
    5
    791 (2019). Site plans can similarly be relevant if a prospective willing buyer would recognize
    the probability of site plan approval in the near future when determining market value.
    A number of our cases demonstrate the range of discretion a trial court can exercise in
    determining whether to admit site plans in a takings case. For example, in Lynch v.
    Commonwealth Transportation Commissioner, 
    247 Va. 388
    (1994), we held that the court erred
    in refusing to admit the site plans proffered by the landowner.
    Id. at 394.
    The County had
    recommended “the development of Lynch’s property for quality office buildings, up-scale
    industrial uses, and a major conference center/office complex with an incidental retail
    component.”
    Id. at 390.
    Lynch then made plans consistent with the County’s recommendations
    to “to develop his land as an office/industrial park, consisting of office buildings and up-scale
    industrial space for leasing.”
    Id. An architectural and
    engineering firm drafted a Generalized
    Development Plan for the industrial development of Lynch’s property.
    Id. at 390-91.
    This plat
    demonstrated that Lynch’s land was suitable for industrial development prior to the taking of a
    portion of the land.
    Id. at 391.
    The circuit court in Lynch excluded three exhibits from evidence: (1) a plat showing the
    general development plan with an overlay showing the taking; (2) a revised generalized
    development plan, showing development changes Lynch claimed were necessitated by the
    taking; and (3) a revised generalized development plan with an overlay showing the impact of
    the taking on the potential development of Lynch’s property.
    Id. at 393.
    We concluded that these exhibits should have been admitted into evidence because they
    “demonstrated the property’s potential, the adaptability and suitability of the property for its
    highest and best use, and the impact of the taking on the remaining property.”
    Id. 6
            Conversely, in Wammco, Inc. v. Commonwealth Transportation Commissioner, 
    251 Va. 132
    (1996), we upheld the court’s exclusion of evidence proffered by the landowner to establish
    “the costs necessary to adjust the property to its changed condition, as well as the reasonable
    potential use of the property at the time of the taking.”
    Id. at 136.
    We reasoned that the claims
    of damage were “contingent on the improvement of off-site roads in the vicinity of the residue
    and the acquisition of property of others to provide access to the site.”
    Id. at 138.
    “[A] trial court’s decision to admit or exclude evidence,” including in eminent domain
    proceedings, is reviewed for “abuse of discretion.” Dean v. Board of County Supervisors, 
    281 Va. 536
    , 540 (2011); see also Ramsey v. Commissioner of Highways, 
    289 Va. 490
    , 495 (2015).
    Discretion means a “range of choice” and we will not reverse a trial court’s decision unless the
    court’s discretionary decision exceeded the “outermost limits of the range of choice available.”
    Reyes v. Commonwealth, 
    297 Va. 133
    , 140 (2019) (quoting Lambert v. Sea Oats Condo. Ass’n,
    Inc., 
    293 Va. 245
    , 253 (2017)). Such a deviation is not present here.
    It is worth noting preliminarily that Sutton was permitted to testify about the County’s
    comprehensive plan, which contemplated commercial development. He also testified about the
    status of the site plans, namely, that the County had approved the plans “in concept” but that they
    were subject to certain conditions. Sutton also explained that the property was zoned
    commercial in the central part and for its frontage, and the rest of the property was zoned
    agricultural.
    On the record before us, we are unwilling to hold that the trial court abused its discretion
    in excluding the site plans. First, the site plans had not been approved. Although not dispositive,
    this circumstance is relevant. Second, although Palmyra asserted that the County had approved
    “the concept,” the County had imposed a number of conditions on such approval. As of the date
    7
    of the take, Palmyra had still not met those conditions. Third, the property is situated in a
    floodplain, and it was unclear whether Palmyra would have to build a retaining wall or whether,
    as Sutton testified, Palmyra could avoid building a retaining wall and instead “complete the fill
    . . . by having a toe that goes far enough out.” If so, Palmyra would have needed to “lose a little
    land.” The parties also disputed whether, under the site plans proffered by Palmyra, a road and
    nearby bridge would need to be widened or a new bridge built, at a cost of around $4 million. At
    any rate, to open an undeveloped parcel to commercial development, Palmyra needed an
    entrance to its proposed development, whether via a “fourth leg” to the roundabout or some other
    means. Palmyra would also need to gain approval for this entrance. Given all of these
    circumstances, the trial court did not abuse its discretion in declining to admit the ten-year-old
    site plans.
    II.     THE TRIAL COURT PROPERLY STRUCK SUTTON’S TESTIMONY.
    Palmyra also assigns error to the circuit court’s decision to strike, post-trial, Sutton’s
    testimony concerning damage to the residue. Palmyra argues that the circuit court erred in
    “finding that Mr. Sutton’s testimony had anything to do with damaging the property on a ‘per
    lot’ basis.” Palmyra suggests other ways that Sutton might have arrived at the same damages
    figure pre-trial and during trial.
    The circuit court ruled pre-trial that Sutton could not rely on the loss of a non-existent
    pad site in estimating the value of the damage to the residue of the property. Prior to trial, Sutton
    had based his valuation on the loss of “a fourth building pad” and he estimated the damages to
    the residue in the amount of $545,000. At trial, Sutton testified that the loss to the residue
    caused by the taking was $545,000 – the very same figure he employed pre-trial. When asked at
    trial how he arrived at that figure, he responded that he “took the frontage acreage, which is
    8
    roughly 5.5 acres that [he] had previously valued at $2.2 million, and [the take] damaged that at
    twenty-five percent.” Sutton further explained that “we’ve lost significant development potential
    across that frontage because of the imposition of the fourth leg of the roundabout, as well as
    because the property that was taken reduced our frontage and compressed where we could
    develop on that first primary acreage.”
    Sutton’s testimony concerning lost “development potential” was necessarily rooted in a
    lost “pad site.” This hypothetical pad site depended on contingent and speculative site plans —
    plans the trial court properly excluded. The property’s development potential was uncertain
    because the County had imposed certain conditions, which Palmyra had not satisfied; the
    property was situated in a flood plain, which would necessitate adjustments; and the property
    would need additional infrastructure changes to be developed as a commercial site.
    Consequently, on these specific facts, the trial court did not err in striking Sutton’s testimony. 2
    III.    THE DOCTRINE OF INVITED ERROR FORECLOSES RELIEF ON PALMYRA’S CLAIM THAT
    THE TRIAL COURT “PUT THE PARTIES ON TERMS.”
    In its remaining assignment of error, Palmyra asserts that “[t]he trial court erred in
    putting the parties on terms of either the court confirming the value of the take or ordering a new
    trial.” Code § 25.1-233(A) provides that “[t]he report of the body determining just compensation
    may be confirmed or set aside forthwith by the court.” A circuit court has “the same power over
    2
    Justice Harrison, writing for three justices in Appalachian Power 
    Co., 212 Va. at 711
    ,
    wrote that a landowner may not “treat[] the affected land . . . as divided into lots when in fact it is
    undeveloped acreage.” Appalachian Power 
    Co., 212 Va. at 711
    . A majority of the Court
    concurred in the result while stating that it did “not accept all the views expressed in [Justice
    Harrison’s] opinion.”
    Id. at 714.
    Based on our resolution of this case we do not examine
    whether and if so, to what extent, a landowner may offer evidence that the property’s fair market
    value would be affected by a reasonable probability that land would be divided into lots. Cf.
    Helmick Family Farm, 
    LLC, 297 Va. at 791
    .
    9
    the reports of the body determining just compensation as it . . . has over verdicts of juries in civil
    actions.” Code § 25.1-233(B).
    After the court struck Sutton’s testimony, it informed the parties that it would “entertain
    argument” as to whether the trial court should “confirm the award of the take only, or grant a
    new trial.” Palmyra did not object at that time that the trial court was “putting it on terms.”
    Instead, it agreed that the circuit court should confirm the award rather than grant a new trial.
    The invited error doctrine precludes a litigant from “approbating and reprobating” – that is
    “invit[ing] error, as the [litigant] … did here, and then [attempting to take] advantage of the
    situation created by his own wrong.” Cohn v. Knowledge Connections, Inc., 
    266 Va. 362
    , 367
    (2003). The invited error doctrine bars us from considering this assignment of error.
    CONCLUSION
    For the foregoing reasons, we will affirm the decision of the trial court.
    Affirmed.
    10
    

Document Info

Docket Number: 191680

Filed Date: 12/17/2020

Precedential Status: Precedential

Modified Date: 12/17/2020