Condemnation lesson: fight!

Published 12:42 pm Wednesday, August 3, 2016

When taking land, government offers are generally low

By Diana McFarland

Managing editor

It appears the best path to follow when faced with property condemnation is to fight.

Property owners that settled with Isle of Wight County over land for the Nike Park bike and pedestrian trail received significantly less than those who hired a lawyer to assist with the proceedings.

And among those cases not handled by an attorney, it appeared that those who were more skillful at negotiating — or were in a better position for any number of reasons — got proportionally more money.

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Paul and Rhonda Davis, who live along Nike Park Road, received $5,000, while their next door neighbors with a similar sized lot got $12,000. {mprestriction ids=”1,2,3,4,5,6″}

The amount offered to property owners was based on the property’s assessed value, and the pro rata share of the land, said Isle of Wight County Assistant County Administrator Don Robertson.

For example, if an individual owned an acre and the county was taking a tenth, Isle of Wight would offer a tenth of the value, he said.

Davis and his neighbors, the Chouinards, have similar acreage, and the land assessments vary by $400, according to Isle of Wight County property records.

Davis, who doesn’t want a bike trail in front of his house to begin with, became angry when he heard the difference in payout amounts. 

“They took me for all I was worth. I feel like I got taken,” he said, adding that he was initially offered $4,000 and the amount was so low, he decided against hiring a lawyer.

Clem Batten, 85, and his wife, Florence, 90, negotiated the settlement themselves and received between $5,000 and $6,000, according to Clem.

“I got gypped, big time,” he said.

Once he received the check, Clem said he was repeatedly asked to cash the check because his reticence was “holding up work on the trail,” he said.

“They were pushing it so hard to cash the check,” he said.

Daniel and Carrie Bristow were initially offered $5,000 by the county for their property along Battery Park Road, which is the location of their landscaping business and “Palm Patch.”

Surprised by the low offer, Carrie said, “that’s when we hired a lawyer.”

The amount of acreage acquired was similar to that of the Davises, .1138 to .116, but with the help of the attorney, the Bristow’s received $39,516. Yet, after paying the attorney, the Bristow’s were left with $27,879 and still had to pay taxes on the property.

Right of way easements

The acquisitions in the bike trail cases are right-of-way easements and allow Isle of Wight to retain superior rights to it, but the owner still has to pay taxes on the property.

In other words, the landowner now has an unrequested partnership with Isle of Wight County, who is the controlling partner, said attorney Joe Sherman with Waldo & Lyle, P.C., who handled several cases, including the Edwards family, who were offered $99,850 for 1.4 acres, but has since filed for another trial (See related story).

According to family member Mary Ann Edwards, the $99,850 represents $11,800 for the land and the remaining $88,050 was for damages. Damages refer to the impact having the public using the property will have on the owners.

According to the easement document drafted by Isle of Wight County, the county has the right to use land adjoining the easement (bike trail) when necessary.

That means that if Isle of Wight decides it needs a bulldozer to make repairs, it can leave that equipment on the landowners’ property for however long it takes to make the repair and the owner has little recourse, Sherman said.

“All the owner really gets to do with the land is pay tax on it and pick up trash from the public who have an open invitation to use private property whenever they want,” Sherman said.

Also, Isle of Wight can install benches, signs and other items along the easement without the owner’s permission, Sherman said.

Carrie Bristow is concerned that bicyclists or pedestrians curious about her stand of palm trees will wander off the trail and inadvertently step on, and damage, delicate irrigation spray heads.

The Bristow’s are also concerned about losing a row used for planting the palm trees, as well as a fence that runs across the property. By the time they buy a new fence and have it installed, any money they got for bike trail will be gone, Carrie said.

Ryland Edwards Jr. said his farm employs large, heavy equipment to bale hay and maintain and cut timber. What damage will that equipment do to the bike trail and who is responsible? he asked.

“The county is taking away rights we already have,” he said, adding that the family has yet to receive an adequate answer about possible damage from farm equipment.

The easements are 20 feet wide and include the path (10 feet) as well as room on either side for drainage, Robertson said.

The process

Isle of Wight County hired KDR Real Estate services to handle the transactions. Based in Richmond, KDR specializes in obtaining parcels of land for localities, and has 24 listed as clients on its website.

Davis said the process began with letters and phone calls and finally a sign went up in the yard indicating the property was targeted for condemnation.

The sign really bothered him. While he threw away the letters in disgust, the sign remained as a reminder for months, he said.

Oddly, many of the deeds for properties along Battery Park Road, which are in the town of Smithfield, did not include the amount paid for the easement. Instead, $10 was handwritten in the area reserved for the settlement amount — a piece of legalese that allowed the document to be recorded without an actual amount, according to Isle of Wight Circuit Court Deputy Clerk Deborah Szymanski.

As long as there is an amount in the blank, it can be recorded, she said.

Smithfield town attorney Bill Riddick said he was asked by KDR to draft a template for the easement deeds, and that is why his name appears on those located in the town.

The town was not at all involved in the negotiations, distributing funds or any of it, Riddick said.

Riddick said the town was “cut out of this.”

While his signatures are on the town deeds, it is simply as a formality and means the town has accepted the deed, Riddick said.

Riddick said it was odd that the amounts were left off many of the town deeds and that it is public information.

A request for the missing amounts was made to Isle of Wight County, but a response was not received by press time.

Smithfield District Supervisor Dick Grice, who was not on the Board of Supervisors when the decision to pursue the bike trail was made, or when the county decided to allow for condemnation, is not so sure the method used to obtain the land was the best format. He has asked county staff to prepare a presentation and wants to hold a work session later this month.

For Grice, any cost overruns on the project would be considered unacceptable.

 Where the money comes from

So far, payouts have ranged from $2,900 to $99,850. Payouts that were made through negotiations and did not go court will come out of the grant funds, Robertson said.

Those pay outs that come from actual condemnation in court will come from the county attorney’s budget, as well as legal fees associated with the trial, he said.

To date, Isle of Wight has paid $80,000 in legal fees for assistance in all condemnation cases, including the Edwards family, Robertson said.

There is $346,000 set aside for professional services in the county attorney’s budget for fiscal 2017.

The four-mile Nike Park bike and pedestrian trail is paid for with a combination of VDOT transportation grants and funding from Isle of Wight County and the town of Smithfield, and is estimated at $7.3 million.

It will run from Nike Park to Battery Park Road and on to the intersection of Battery Park and South Church Street. The town of Smithfield is still considering whether to add a trail that would connect that portion to the Cypress Creek Bridge and on to downtown Smithfield and Windsor Castle Park.

The Nike Park bike trail is included in Isle of Wight County’s bike and pedestrian facilities master plan that was initially drafted in 2006.

In addition to enhancing connectivity by bike or foot within the county, officials have more recently stressed that unless the money is used for the bike trail, it will go to another locality.

The bike trail has been controversial for years, with supporters in favor of adding other means of transportation, while detractors consider the financial and human cost too high for what is received in return. Opponents also point out that the trail will have to be replaced eventually when Nike Park Road is widened to four lanes.


 Tragic recollections

By Diana McFarland

 Managing editor

Many residents who had their property taken for the Nike Park bike trail said the experience was upsetting and unsettling, not to mention that most felt they did not receive just compensation.

For the Edwards family, faced with part of their generational farm being taken, the experience recalls a similar situation that ended tragically more than 50 years ago.

It was July 8, 1969 and Dr. Ryland Edwards Jr. was busy running his new veterinary clinic, The Oaks, with his wife Mary Ann.

At the same time, Columbia Natural Gas, was eyeing property along Nike Park Road to acquire as easement for a natural gas pipeline.

Ryland’s father, Ryland Sr., was very upset about the prospect of deeding an easement that would cut a swath completely across the farm his family had owned since the late 19th century.

“It was a very emotional time,” said Ryland Jr. who was 33 years old at the time.

One day, the man representing the gas company came to call.

The family, including Ryland Sr., was on the front porch discussing the issue. Without warning, Ryland Sr. was stricken by a heart attack.

He collapsed on the porch in front of several members of his family, including Ryland Jr.’s oldest son.

The gas company representative was there too, Ryland Jr. said.

Family members called the family doctor, Dr. Bernard Jamison, as well as Ryland Jr., who was out on a call of his own.

But it was too late. Ryland Sr. died at the age of 64. By the time Ryland Jr. arrived, he was gone.


 At a glance


Highest pay out offered to date — $99,850 for 1.4 acres

 Lowest pay out offered to date — $2,900 for .0230 acres

Highest amount per square foot — $7.97

Lowest amount per square foot — $.99

Amount paid to date for legal fees — $80,000

Estimated cost of bike trail — $7.3 million


Easements defined

 An easement means that some entity (common easement holders include Dominion Power, gas and telephone companies,) has a right to use a specific portion of the property for a specific reason (power, gas, cable).

A right-of-way is generally used to mean that the public has a right to use the property, such as roads.

A right-of-way easement, as in the case of the Nike Park bike and pedestrian trail, means the public has a right to use a portion of the property for recreational uses.

•Information courtesy of attorney Joseph V. Sherman of Waldo & Lyle, P.C.   {/mprestriction}