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City of Chesapeake v. Dominion Securityplus Self Storage, L.L.C.

Supreme Court of Virginia

April 28, 2016

CITY OF CHESAPEAKE
v.
DOMINION SECURITYPLUS SELF STORAGE, L.L.C.

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Randall D. Smith, Judge

PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ. [1]

OPINION

CLEO E. POWELL JUSTICE

In this appeal from a condemnation award, we consider whether the circuit court erred in admitting certain expert testimony on damages, in awarding damages to the landowner for loss of visibility of its property, and in awarding damages as a result of loss of direct access to the highway abutting the property.

I. BACKGROUND

Dominion SecurityPlus Self Storage, L.L.C. ("Dominion") operates a self-storage facility located on Dominion Boulevard in the City of Chesapeake ("City"). In 2001, Dominion's predecessors in interest, Nathan and Margaret Eure (the "Eures") applied to the City's Planning Commission for permission to subdivide their six-acre parcel abutting Dominion Boulevard. At the time, Dominion desired to purchase 4.5 acres of the Eures' property to develop a self-storage facility. The Eures hired engineer Robert Kellam ("Kellam") to prepare a site plan for the self-storage facility. The City initially rejected the site plan and required the Eures to obtain a variance because the proposed 4.5 acre parcel lacked sufficient frontage on Dominion Boulevard. The City also required that the property be subdivided and that the subdivision plat reserve a 50-foot right of way in favor of the City for purposes of future expansion of Dominion Boulevard.

The Eures agreed to the City's requests in order to obtain site plan approval. A subdivision plat was prepared that contained Note 7, as required by the City. Note 7 provided:

The owner and/or their heirs, assigns, lessee, grantees or successors in interest agrees to reserve for future purchase by the City the area hereby designated on the plat and shall convey same to the City by deed containing general warranty and English Covenants [of] Title. The purchase value of said area is to be based on the fair market value as of the date the City exercises its right to purchase the area designated as reserved with no compensation for any improvements placed within the area. The owners agree that it shall not make or have any claims for damage to the said improvements or damages to the residue [of] the owners' property by reason of the said purchase.

The Planning Commission granted the variance related to the frontage on Dominion Boulevard. In a letter addressed to the Eures' attorney, the Planning Commission conditioned its approval of the variance on the stipulation that the existing access to Dominion Boulevard may be closed in the future and that an access road would provide road frontage to the rear of the property. Kellam, the engineer, told Dominion about the stipulation.

The subdivision plat containing Note 7 was recorded in the land records of the City on December 27, 2001. On January 14, 2002, a deed was recorded conveying to Dominion the 4.5 acre parcel "subject to all of the terms, conditions, rights, obligations, restrictions, easements and reservations set forth in the duly record[ed] deeds, plats, declarations and other instruments constituting constructive notice in the chain of title to the property."

In 2011, the Chesapeake City Council, by resolution, authorized the acquisition "by purchase or condemnation" of property necessary for the Dominion Boulevard Improvements Project (the "Project"). The Project, which was intended to spur development in the southern part of the City, involved the widening of Dominion Boulevard from a two-lane roadway to a multi-lane, limited access highway, and the replacement of a drawbridge across the Elizabeth River with a new, fixed-span bridge that would be 95 feet at its apex. The City determined that the Project required it to either purchase from Dominion or condemn the 50-foot right of way reservation, some additional land in fee, a permanent utility easement, a permanent waterline easement, and a temporary construction easement.

After attempts to purchase the property and easements from Dominion failed, the City, on March 12, 2012, filed a certificate of take in the amount of $39, 310. The fee take consisted of 4, 943 square feet, which was entirely in the area subject to the reservation under Note 7. Also included in the reservation area was the 345 square feet taken for the waterline easement. The permanent utility easement contained 3, 180 feet, of which 1, 549 square feet were in the reservation. The temporary construction easement consisted of 1, 898 square feet, of which 1, 361 feet were within the reservation. Accordingly, 1, 631 square feet of the permanent utility easement and 537 square feet of the temporary construction easement were not within the reservation.

Prior to the Project, Dominion's entrance was at grade with Dominion Boulevard. As part of the Project, Dominion Boulevard was raised more than 30 feet above Dominion's property. No part of the widened Dominion Boulevard included property taken from Dominion as part of the condemnation, as the City already owned the right of way needed for the widened highway.[2] Because of the raised elevation of the roadway, Dominion's storage facility is no longer visible from Dominion Boulevard. In addition, Dominion no longer has direct access to Dominion Boulevard. Instead, access to Dominion's self-storage facility is now achieved by way of an access road reached by exiting Dominion Boulevard.

On May 7, 2012, the City filed its petition for condemnation in the circuit court, asking for a determination of just compensation for the property taken and damages to the residue. Dominion filed its answer and grounds of defense in which it alleged that it was not bound by the 50-foot right of way reservation because it was "an unlawful exaction of property without due process which action is beyond the authority of [the City]." Dominion also alleged that the condemnation ...


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