Commonwealth Transportation Commissioner v. DuVal

Citations: 238 Va. 679; 385 S.E.2d 605; 6 Va. Law Rep. 810; 1989 Va. LEXIS 180Docket: Record No. 880595

Court: Supreme Court of Virginia; November 10, 1989; Virginia; State Supreme Court

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Justice Whiting delivered the opinion regarding an appeal of a condemnation award, focusing on whether two prospective commissioners should be disqualified and an instruction concerning the impact of a highway project on property value. On May 20, 1985, the Commonwealth Transportation Commissioner recorded a certificate of deposit, acquiring 11.983 acres from a 200-acre tract owned by J.J. Jewett and T.S. Winston, III, Trustees, for the Powhite Parkway extension project. At that time, William B. DuVal and Jean H. DuVal had a contract to purchase the entire tract, which was conveyed to them in August 1985. The condemnation petition was filed on November 17, 1986. The 200 acres were located south of the proposed extension and included various commercial and industrial properties nearby, with no damage claimed to the remaining land.

Prior to the selection of commissioners, both the Commissioner and DuVal submitted lists of potential commissioners. During the voir dire examination, prospective commissioner Robert S. Vukmer disclosed an interest in real estate subject to condemnation, while Charles E. Savage had been approached by DuVal's attorney about serving as a commissioner. The court denied motions to disqualify Vukmer and Savage, but Vukmer was later struck from the panel, allowing Savage to serve.

An expert appraiser for the Commissioner testified that the highest and best use of the property on the valuation date was single-family residential, but this changed to light industrial use due to the project. DuVal contested this, asserting that the area's development influenced the property's highest and best use independently of the project. Both parties agreed that the value of the property would significantly increase if light industrial development were considered its highest and best use, rather than single-family residential.

Instruction 9 states that if the highest and best use of the subject property shifted from single-family residential to light industrial by May 25, 1985, solely due to a road improvement project that condemned the property, then light industrial use cannot be considered. The Commissioner initially submitted this instruction without the term "solely," but DuVal objected and requested its inclusion, which the court accepted over the Commissioner's objection. DuVal maintained his objection to the rest of the instruction but did not raise a cross-error to support it.

The document references prior cases on the disqualification of condemnation commissioners. In May v. Crockett, the court ruled that a commissioner should have been disqualified due to conflicts of interest related to adjacent properties under condemnation. The ruling emphasized the necessity of public confidence in the impartiality of condemnation commissioners, equating their roles to that of jurors. Recent cases upheld the discretion of trial courts in refusing to disqualify commissioners when no financial interests related to the case were evident, affirming the importance of integrity in eminent domain proceedings.

Concerns are raised about a Commissioner’s potential bias in valuing Vukmer's property due to disputes over another property’s value, suggesting that maintaining public confidence necessitates excusing such commissioners for cause. Additionally, the document discusses the inappropriate practice of counsel notifying commissioners of their appointments, as it may create an appearance of bias or favoritism that undermines the integrity of the process.

Disqualification of a commissioner was warranted due to improper contact with condemnees, as established in previous cases such as Crockett and Kessinger. The 1968 amendment to the condemnation statute changed the selection process for commissioners, allowing parties to nominate candidates but not to contact them directly. The court found that the trial court erred in denying the motion to disqualify the commissioners for cause based on the potential for abuse arising from any contact.

The instruction given to commissioners regarding the change in the highest and best use of DuVal's property was deemed problematic. The term "solely" improperly suggested that DuVal had to prove the project was the exclusive reason for any change in property value. It was concluded that DuVal should not benefit from any value increase caused by the project, even partially. The court identified the ambiguity in the original instruction and recommended that it be revised to clarify that any increase in value must be considered 'in whole or in part' due to the project while ensuring the property owner is entitled to any value increase not related to the project. The judgment was reversed and the case remanded for further proceedings in line with this opinion.