Commonwealth Transportation Commissioner v. DuVal

385 S.E.2d 605, 238 Va. 679, 6 Va. Law Rep. 810, 1989 Va. LEXIS 180
CourtSupreme Court of Virginia
DecidedNovember 10, 1989
DocketRecord No. 880595
StatusPublished
Cited by2 cases

This text of 385 S.E.2d 605 (Commonwealth Transportation Commissioner v. DuVal) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth Transportation Commissioner v. DuVal, 385 S.E.2d 605, 238 Va. 679, 6 Va. Law Rep. 810, 1989 Va. LEXIS 180 (Va. 1989).

Opinion

Justice Whiting

delivered the opinion of the Court.

[681]*681In this appeal of a condemnation award, we decide whether two prospective commissioners should have been disqualified for cause. We also consider an instruction dealing with a highway project’s impact upon the value of the property to be condemned as a part of that project.

On May 20, 1985 (the valuation date), the State Highway and Transportation Commissioner, now the Commonwealth Transportation Commissioner (the Commissioner), recorded a certificate of deposit and, pursuant to Code § 33.1-122, thereby acquired 11.983 acres (the property) from a tract of approximately 200 acres in Chesterfield County. On that date, the 200 acres were owned by J.J. Jewett and T.S. Winston, III, Trustees. The property was to be used as part of an extension of the Powhite Parkway (the project), beginning at its intersection with Chippenham Parkway and running in a southwesterly direction to Route 288.

At the time the certificate was filed, William B. DuVal and Jean H. DuVal (collectively DuVal) had contracted to purchase the entire 200-acre tract. In August 1985, the trustees conveyed it to DuVal. The Commissioner filed the condemnation petition on November 17, 1986.

The 200 acres were situated south of the proposed extension of the Powhite Parkway and north of Genito Road. The property extended across the entire northern boundary of the 200 acres, between the two properties adjoining it on its eastern and western sides. All parties agreed that there was no damage to the remaining property.

Although DuVal’s property was zoned for single-family residential use on the valuation date, the properties in the Genito Road area were used for commercial and industrial purposes. On the north side of Genito Road, the eastern side of the 200 acres was adjoined by a building supply business, and its western side was adjoined by an automobile speedway. An auto parts business was located immediately west of the speedway. A county landfill was situated on the south side of Genito Road within sight of DuVal’s property, and there was a quarry just south of the landfill.

Two residential subdivisions on the eastern and western sides of the 200 acres were located an undisclosed distance north of Genito Road. Those subdivisions apparently extended in a' northerly direction to the proposed extension of the Powhite Parkway.

[682]*682Prior to October 29, 1987, pursuant to the provisions of Code § 25-46.20, the Commissioner and DuVal each sent the court a list of six freeholders who were residents of Chesterfield County. On October 29, the court selected nine of those persons who appeared for examination, of whom five were selected to be commissioners.

During voir dire examination, one of the prospective commissioners, Robert S. Vukmer, testified that he had an interest in real estate in Newport News and York County which the Commissioner had “taken steps to condemn, although we are disputing value.” Charles E. Savage, another prospective commissioner, testified that before he was summoned as a commissioner, one of DuVal’s attorneys asked him if he “would be willing to serve as Commissioner in a land dispute. That’s all that was said.”

The court denied the Commissioner’s motions to disqualify each of these proposed commissioners for cause. Thereafter, the Commissioner struck Vukmer from the panel, and Savage served as one of the five commissioners.

Joseph B. Call, III, an expert appraiser called by the Commissioner, testified that on the valuation date, absent the impact of the project, the highest and best use of the property would have been for single-family residential purposes; however, because of the project, its highest and best use changed to light industrial development. DuVal, however, testified that the project did not influence this change in highest and best use of the property. He contended that development of the area near Genito Road had changed the prospects for rezoning, as well as the highest and best use of his property to light industrial, without regard to the project. The evidence of both parties showed that the value of the property would be considerably higher if its highest and best use was light industrial use, rather than single-family residential development.

Instruction 9, dealing with this issue, reads as follows:

If you find that the subject property’s highest and best use had changed by May 25, 1985, from single family residential development to light industrial development due solely to the road improvement project which condemned the 11.983 acres, then you cannot consider the subject property’s highest and best use as being light industrial development.

[683]*683The Commissioner tendered this instruction without the word “solely.” DuVal objected to the instruction, but when the court indicated that it would be granted, DuVal asked for the insertion of the word “solely” in the instruction. The court granted the instruction with the insertion, to which the Commissioner objected. DuVal maintained his original objection to the balance of the instruction but does not assign cross-error to support his objection.

I.

We have decided a number of cases dealing with the disqualification of condemnation commissioners for cause. In May v. Crockett, 202 Va. 438, 117 S.E.2d 648 (1961), we held that a commissioner in a highway condemnation proceeding should have been disqualified for cause. This was because of his interests in two parcels adjoining the property to be condemned, one of which was the subject of a pending condemnation proceeding relating to the same project. In dealing with the commissioner’s disqualification, we said:

The maintenance of public confidence in the integrity of reports of commissioners, acting under the statute in the assessment of damages in condemnation proceedings, who are in truth in effect performing the duties of a jury in an ad quod damnum proceeding, is of such importance that the same rule applicable to juries should be applied; and such reports should be kept free from the suspicion that the commissioners may have been improperly influenced.
Every precaution should be taken by the commissioners and by the courts to preserve public confidence in the findings of commissioners.

202 Va. at 440, 117 S.E 2d at 649 (citations omitted).

Two recent decisions also involve commissioner disqualification for bias or interest. In both, we upheld the trial court’s exercise of discretion in refusing to remove challenged commissioners for cause; we concluded that there was failure to show that the business relationships between the challenged commissioners and a litigant involved financial interests related to issues the commissioners would decide. State Hwy. Comm’r v. Cardinal Realty Co., 232 Va. 434, 438, 350 S.E.2d 660, 662 (1986); State Highway and Trans. Comm’r. v. Dennison, 231 Va. 239, 243, 343 S.E.2d [684]*684324, 327 (1986). Nevertheless, we affirmed the principles expressed in Crockett by stating that “[t]he eminent domain statutes . . . must be administered in a manner which promotes confidence in the integrity of the process.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

First Bank & Trust Co. v. Commonwealth Transportation Commissioner
559 S.E.2d 633 (Supreme Court of Virginia, 2002)
City of Virginia Beach v. Giant Square Shopping Center Co.
498 S.E.2d 917 (Supreme Court of Virginia, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
385 S.E.2d 605, 238 Va. 679, 6 Va. Law Rep. 810, 1989 Va. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-transportation-commissioner-v-duval-va-1989.