| Washington Post Prices In Question In Eminent Domain Cases By Chris L. Jenkins Washington Post Staff Writer Sunday, May 13, 2001; Page PW01 |
But for a more than a year, the plot of land has been a small battlefield, as the Prince
William County School Board, under the power of eminent domain, has tried to seize a
sliver of Eisen's property to build a turn lane for a new middle school, set to open
across Catharpin Road next year.
Now, what has been a 13-month war of words has turned into a lawsuit filed by Eisen
last week, and a petition for condemnation by the School Board in Prince William
Circuit Court, each arguing for a different fate for the grassy 35-foot strip in question.
"They have the right to take some of my land, I don't deny that," Eisen said. "But this
entire process leaves people without any recourse, especially if you feel that the offer is
below what the property is worth."
Eisen is one of the hundreds of property owners across the county and state who say
that although the process of taking land may be legal and justified, the reality is
Byzantine and complicated, arbitrary and unfair. Along with dozens of state legislators,
they say that property owners lose thousands of dollars on their property when the state
or an agency comes to seize their land.
The power of eminent domain gives local and state governments the right to seize
private property for public purposes, such as when building a school or a new road.
Under the Code of Virginia, utilities and the Virginia Department of Transportation also
are allowed to enter private property and conduct land surveys and take land to build
power lines. The law says property owners shall be paid a fair market price for the
amount of land taken; in other cases a power company may pay for the right to use a
portion of a property, known as an easement.
Most of the complaints come when property owners have received an offer for all or part
of their land from a state agency or utility and find the offer is lower than what they think
their property is worth. At first, agency assessors -- which may be from the state or
private power companies -- are required to contact a property owner by phone, letter or
personal visit, assess the property and enter into negotiations with the resident. If
property owners disagree with the offer, they may gather their own lawyers, assessors
and other experts to testify for them if they choose to go to court and challenge the offer.
But it comes at a cost. "I was never interested in keeping our property from the state -- if
they need it, they need it," said Rosy Frankel, who recently had her home of more than
20 years off Route 234 seized as the state prepares to widen the road from two to four
lanes. Although records show that she was offered about $200,000 by VDOT, she
wound up receiving nearly $35,000 more after going to the state Supreme Court. That
gain cost her $15,000 in legal fees.
"But when you think that you're not being offered what your land is worth you need to pay
for appraisers and lawyers and all kinds of other experts to testify for you in court,"
Frankel said. "If you don't have the money, realistically, what can you do?"
State officials, including those for VDOT, Dominion Virginia Power and the School
Board maintain that their offers are always comparable to the market value of the
property. They add that in many cases the process has become more efficient over the
years. In addition, they have increased their offers for moving fees and other
compensation packages, they say.
"A lot of times what people don't understand is that we can only offer what the market
price is," said Louis Hester, assistant director for right-of-way development at VDOT.
There may be other factors, he said, that make the land worth more.
But complaints by property owners have become so thunderous that during the past
two sessions of the General Assembly, bills have been drafted to help increase the
efficiency of the condemnation procedures and partially reimburse property owners for
their costs if they win a higher sum than what was originally offered by a state agency or
private company. Although the General Assembly did pass legislation allowing for
property owners to be informed in writing of the assessment of their homes in 2000, all
five bills drafted to further help residents in eminent domain proceedings died in
committee this year.
As a result, supporters of the bills argue that Virginia is way behind most states when
settling eminent domain claims. They cite in particular a joint subcommittee study that
found that most states provide some kind of reimbursement for legal expenses when a
resident challenges the amount offered and that property owners are generally given
better compensation and a stronger appeals process across the country.
"Look, the agencies are out to save money," said Joe Waldo, a lawyer in Roanoke who
specializes in eminent domain cases. "But when you have people awarded by courts
up to $50,000 more than the state originally offers, it makes you wonder: Are they really
being fair?"
Although statistics on takings under eminent domain in Virginia are hard to come by,
hundreds of properties are usually seized when a project comes through a region. For
instance, 446 properties were acquired as part of the Route 234 widening project,
which include entire land acquisitions and small easements of 15 feet to 20 feet, VDOT
officials said. And many legislators say that with the increase in growth and
development has come an overwhelming amount of court activity as people challenge
what they see as unfair offers for their land.
"It's a problem that really isn't going to go away," said Sen. Madison E. Marye (D),
whose 39th District includes Montgomery and Grayson counties in the western part of
the state. He introduced five bills that died in this year's session, including the bill that
would reimburse legal costs. "Each year it seems I've had to intervene more and more
when an agency comes in and takes somebody's property. And many times, when they
go to court, the court is agreeing with them."
In Eisen's lawsuit, which seeks $100,000 in damages and an injunction against the
School Board, she says the School Board trespassed on her land by allowing a phone
line to be buried under her front lawn, and has not only offered too little compensation
for the land but also is taking more land than the turn lane calls for. Her lawsuit claims
that she has taken on "irreparable harm to her property and financial damages."
The School Board offered $8,000 for the 35 feet needed to widen Catharpin Road, but
Northern Virginia Electric Cooperative (NOVEC) paid Eisen $20,000 for a similarly sized
part of her property to run a power line under her front lawn last year.
"The system really is tilted toward the agency that is trying to take land," said Del.
Robert G. Marshall (R), who cosponsored four of the bills, including the one to partially
reimburse property owners if they win in court. The bill was also supported by several
other local legislators, including state Sens. Charles J. Colgan (D) and John H.
Chichester (R).
"I'm not convinced that it's outright malice on the state or the companies' part," added
Marshall, who wrote two letters to the Prince William County School Board on Eisen's
behalf. "But when a property owner like [Eisen] is offered one thing for a similar piece of
land, then offered half the price for another, there's a problem."
Attorneys for the School Board counter, however, that NOVEC paid too much for the
land and that their offer stands based on their own audit.
"What other companies do is really out of our control," said Martin Crim, the attorney for
the School Board in the case. "I think even NOVEC would agree that they've paid too
much money for that property."
State legislators, along with Eisen, who has spent $10,000 since March 2000 fighting
for what she considers a fair offer, cite the differences between offers as an example of
the arbitrary nature of taking private land.
"The only thing I really wanted was the knowledge that the offers I was getting were
fair," Eisen said.
© 2001 The Washington Post Company
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