| The Virginian-Pilot Highway Robbery © February 3, 2005 |
One was his older brother Hersey. In 1991, his car left the road and hit one of the trees that
holds the U.S. 17 right of way in an unforgiving embrace.
Ever since he can remember — Cartwright is 52 — the residents of this tiny farm
community in the southern corner of Chesapeake have been awaiting the day when the
highway department would tame the dark and narrow two-lane road on which they depend.
A few years ago, its surveyors and land agents finally showed up and plotted a new path for
the highway. As it reached Cartwright’s 1,500-acre farm, it veered from the existing route
and made a 1.5 mile arc through his fields.
It took 60 acres, made large portions of his farm inaccessible, and erased his right to build
a limited number of houses near the highway.
Cartwright was thankful for the safety the new highway promised and accepted the
inconvenience and sacrifice as the price of progress.
“We didn’t need to stand in the way of what’s good for thousands of people,” he said.
Cartwright just wanted to be fairly compensated. But he was sadly disappointed after the
Virginia Department of Transportation, using its condemnation powers, took title to six
parcels of Cartwright’s land and deposited checks in the courthouse that were supposed to
represent its fair market value.
That’s when Cartwright learned about the financial consequences of fighting low-ball offers
from utility companies, municipal governments and state agencies.
For a couple of years, Cartwright has been fighting VDOT’s lawyers and appraisers with his
own set of experts and advocates. On the surface, it looks like Cartwright is more than
holding his own. Disputes over four of the parcels have been resolved, including one that a
jury had to decide.
If he had accepted what VDOT offered for the four parcels, Cartwright would have had
$330,000. By fighting he has won $1,582,000. If that sounds like he did pretty well, you don’t
know how the condemnation discount works.
Start by deducting 33 percent for lawyers’ fees, 10 percent for experts and appraisers and
then 20 percent for taxes. Forget the income from 60 acres of crops. And the year that
Cartwright had to take off from work simply to organize his defense. Serving the public
interest has cost him a fortune and the biggest dispute is still ahead.
“I’m winning the battle,” Cartwright says, “but losing the war.”
The same kinds of battles are being fought all across Virginia over power company rights of
way, gas and sewer pipelines and municipal rebuilding projects. They are almost always
invisible to the public and seldom this dramatic. Since 2000, for example, VDOT has
acquired 10,400 pieces of property, 85 percent without a fight. About 1,200 could not be
resolved without legal action and one-third required a trial. In 181 cases, the final award, as
in Cartwright’s case, came in 30 percent or more above the original offer. In the dispute
over one of the Cartwright parcels, a jury found a piece that VDOT took for $57,000 was
actually worth $474,000.
“The only thing these citizens did wrong, was to own their land,” says Beach Del. Bob
McDonnell.
He and Del. Terrie Suit are championing legislation to reduce the penalty that must be paid
by citizens who find themselves in these straits.
It would permit landowners, who, like Cartwright, can prove they’ve been badly
shortchanged, to at least recover the costs for appraisers and experts. It won’t make them
whole, but it reduces the injustice.
The bill, HB1821, has whipped up a predictable fury among lobbyists for utility companies
and government agencies who claim it will cost taxpayers a lot more. McDonnell and Suit
have a more principled argument: If the prospect of having to pay a landowner’s court costs
encourages these condemning authorities to make them whole from the start, instead of
beating them down, the state will be spared millions in legal fees.
The state constitution is supposed to protect property owners from suffering financial
hardship when their land is sacrificed to serve the public good. As Cartwright’s experience
shows, the condemnation process always serves the state, but too often fails the property
owner in ways that are both harsh and undeserved.
The remedy offered by Suit and McDonnell begins to tilt the law back where it belongs: in
favor of property owners like Cartwright.
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