THE CIRCUIT COURT OF HENRICO COUNTY James Stephen Yoffy,
ARTHUR KELSEY JUSTICE
eminent domain case, the Commissioner of Highways initiated a
condemnation proceeding to acquire a narrow strip of
commercial property to create a multi-use trail. At a trial
to determine just compensation, the trial court allowed the
expert witness for the landowner, Karverly, Inc., to testify
that the take caused $193, 270 in damages to the remainder.
The court, however, disallowed the Commissioner's expert
witness from testifying that the take caused $0 in damages to
five-member jury returned a split verdict: Three voted to
award $167, 866 in damages to the remainder, and two stated
that they "felt that the value of the remainder after
take was not correct, which prevented [them] from agreeing to
the damages." J.A. at 309. The Commissioner contends
that the majority's award should be vacated and that he
should be given the opportunity to present his expert
testimony at a new trial. We agree.
Commissioner serves as the "chief executive officer of
the Department of Transportation, " Code §
33.2-222, and "is vested with" the power to
initiate condemnation proceedings on behalf of the
Commonwealth, Code § 33.2-1001. In 2014, the
Commissioner filed a certificate of take, and later, a
petition for condemnation to acquire a 0.115 acre (5, 009.4
square feet) strip of property, J.A. at 21, owned in fee
simple by Karverly to create a multi-use trail and for the
"reconstruction of Route 5 in Henrico County, "
id. at 313.
operates a child daycare center on the remainder of the
property, which is approximately 5.17 acres. Id. at
118. It includes a daycare facility, parking lot, swimming
pools, and playgrounds. It has a landscaped buffer of five or
six trees and several bushes, and just behind the buffer, a
fence. Both the buffer and the fence parallel Route 5 with
the buffer positioned closest to the road. The strip of
property taken includes the buffer but not the fence. At
trial, Karverly argued that it would have to create a new
buffer to provide the remainder of the property with privacy
and security. The fence, Karverly added, would have to be
moved inward to accommodate the new buffer. Both of those
changes, Karverly concluded, would in turn require the
relocation of the "playscapes" within the
playground area as well. Id. at 65. The new buffer
and the relocation of the fence and playscapes were the sole
basis for Karverly's claim for damages to the fair market
value of the remainder.
trial, the Commissioner proffered its expert witness, Joseph
Bryan Call, III, who had performed "thousands of
appraisals" during his career. Id. at 95. Call
valued the remaining property's acreage at $2.80 per
square foot, and when asked about how he reached this
estimate, Call explained that when he
originally looked at the property, [he] examined the plan
sheets, viewed the property, went to the planning office here
at the County to look at the approved plan of development for
the . . . [daycare] facility; confirmed the availability of
utilities at the property with the Utility Department; looked
at the Zoning and Planning Office to confirm the zoning and
the zoning case that the County had pertinent to the current
development, and concluded that the highest and best use of
the property as improved was as a continuation of its present
day care operation.
Id. at 100, 102. Call then addressed whether the
remaining property suffered damage as a result of the take.
"Once [he] looked at everything that [he] could find, to
find out the physical, functional and economic
characteristics of that property, " Call opined,
"there was no way in the world that the [remaining]
property was damaged in any way." Id. at 102.
Karverly's counsel objected after that statement, and the
trial court determined that "it wasn't responsive to
the question." Id. at 103.
subsequently detailed his findings about the sale of four
comparable properties along Route 5, including the sale of
Karverly's land, to establish his valuation of the
acreage at $2.80 per square foot. He explained that
"[t]he best way to estimate the value of commercial land
[was] to go out into the marketplace and identify comparable
sales of properties exhibiting the same highest and best use
as that concluded for the property under appraisal."
Id. He selected commercial-property sales along the
Route 5 corridor "that [had] occurred recently, were
similarly zoned, had the same utilities, were physically
similar and had the same highest and best use."
when Call was again asked if there were any damages to the
remainder of the property, Karverly's counsel again
objected. The trial court was initially "at a loss to
say why" Call could not testify that there were "no
damages." Id. at 109. Karverly's counsel
argued that, as a matter of law, Call's testimony was
inadmissible because he could not offer any opinion on the
measure of damages without first preparing an appraisal of
the fair market value of the remainder, including
improvements, both before and after the take.
of the presence of the jury, the court asked Call whether he
valued the remainder and how. Call explained that he did
value the remainder and recited statements in his appraisal
• "After the acquisition and construction, the
remainder will contain 5.17 acres. It will continue to have
the same irregular shape as it had before."
• "Grade in relation to the roads will not change.
The land will be located at the northeast corner of the
intersection formed by Midview and New Market Roads, as
• "Same utilities will be available after as
• "All of the improvements existing before will
• "The land will continue to maintain its former
• "The property can be accessed in the same manner
• "The only difference in the property after as
compared to before is the slight reduction of size and the
existence of small sliver of permanent drainage and Dominion
Virginia easement. Neither of these impact in a detrimental
way on the utility or value of the remainder."
Id. at 118-19.
upon these facts, Call concluded "that the land
remainder, if vacant, would have the same highest and best
use and value after as compared to before and [that] the
property suffer[ed] no diminution as a result of the proposed
acquisition." Id. at 119. Furthermore, the
"[p]roximity of the path" had "no measurable
impact on the utility or value contribution of the existing
improvements." Id. at 120. In other words, Call
explained, "whatever value contribution the improvements
had in the before instance, they have the same value
contribution in the after instance." Id. at
119. When Karverly persisted in its objection, the trial