Com., Dept. of Transp. v. Fairbrook Business Park Associates, 911489
| Decision Date | 05 June 1992 |
| Docket Number | No. 911489,911489 |
| Citation | 418 S.E.2d 874,244 Va. 99 |
| Parties | COMMONWEALTH of Virginia, DEPARTMENT OF TRANSPORTATION v. FAIRBROOK BUSINESS PARK ASSOCIATES. Record |
| Court | Virginia Supreme Court |
Marc E. Bettius (William L. Carey, Eric J. Berghold, Miles & Stockbridge, on brief), Fairfax, for appellee.
Present: All the Justices.
The primary issue in this condemnation case is whether a property owner can use its master plan of development in its proof of damages to the residue after the condemnor had relied upon information in the master plan in its case-in-chief.
On December 30, 1988, by its certificate of take, the Commonwealth of Virginia, Department of Transportation (VDOT) acquired: (1) the fee simple title to an 84,419 square foot parcel, and (2) a drainage easement in an adjoining 18,522 square foot parcel, both owned by Fairbrook Business Park Associates, a limited partnership (Fairbrook). The 84,419 square foot parcel is almost 2 acres (the two-acre parcel), and the 18,522 square foot parcel is .4252 acres (the .4-acre parcel). The two-acre and .4-acre parcels were the southeastern parts of a 1,212,253 square foot tract, or approximately 27 acres (the 27-acre parcel) in the Town of Herndon, Fairfax County, lying between the north side of the Dulles Toll Road and the southeast side of the Herndon Parkway.
VDOT acquired the two-acre parcel for construction of an access ramp from the Springfield Bypass to the Dulles Toll Road and the .4-acre parcel for surface water drainage necessitated by VDOT's construction. On April 19, 1990, VDOT filed its petition to condemn these interests.
Both parties agreed that the highest and best use of Fairbrook's 27-acre tract was for office development. Wiley Pinkston, VDOT's appraiser, valued the entire tract of land at $12.50 per square foot, or $15,153,163. N. MacKenzie Downs, Fairbrook's appraiser, valued it at $13.50 per square foot, or $16,365,415.
The Herndon zoning ordinance requires that at least 20% of Fairbrook's 27 acres be open space and limits the total floor area of office buildings to 0.50 of the area of Fairbrook's tract. Herndon Zoning Ordinance §§ 28-24-10, 28-24-5 (Oct. 26, 1971). The ordinance defines open space and floor area ratio as follows:
Open Space. Land which is not occupied by any building, parking or loading space, vehicular travel lane, driveway, sidewalk or street. Open space on properties shall contain landscaping, walks or paths, and non-functional amenities.
Floor area ratio. A quotient which is determined by dividing the total floor area of all buildings, measured to the outside of the building, on a lot, by the area of the lot.... [P]arking structures, both above and below grade, are excluded from the computation of floor area ratio.
FAR. Means "floor area ratio."
Because VDOT had taken the fee simple interest in the two-acre parcel, Fairbrook could no longer count the two-acre parcel as a part of its available open space under the zoning ordinance. During discovery, VDOT apparently realized that the loss of this space would substantially reduce Fairbrook's projected buildable office space and, consequently, could substantially damage the value of the residue of the 27-acre tract.
In an apparent effort to reduce Fairbrook's damage claim, VDOT amended its pleadings on April 15, 1991, to reduce the interest taken in the two-acre parcel from a fee simple interest to one of a "perpetual easement." The easement taken in that parcel was described in the amended petition as
the right to construct, reconstruct, repair, improve, alter and maintain the said Springfield Bypass in accordance with the attached plans marked Exhibit[s] A & B. It also includes the right to utilize the land in the future (1) for construction, reconstruction, alteration, improvement, repair and maintenance of the said Route, (2) for all other highway purposes, and (3) in accordance with all the rights and incidents normally acquired in the property by (fee simple, easements, etc.).
....
The said route having been designated, or declared to be a Limited Access Highway[,] ... the Commonwealth Transportation Commissioner ... declares it necessary to be taken any and all easements of access, light or air incident to the lands of the landowner abutting upon said Limited Access Highway, any ramps, loops, or connections at or with intersecting highways.
At the just compensation hearing of VDOT's amended petition and as a part of VDOT's case-in-chief, Pinkston opined that Fairbrook's compensation should be $450,000. Four hundred twenty-seven thousand dollars of that amount was to compensate Fairbrook for its loss of potential open space and FAR on that portion of the two parcels that did not qualify as open space. In explanation of why and how he arrived at his $427,000 figure, Pinkston testified that
before the taking the subject property had a certain amount of available FAR that we assumed, which is 0.50. After the taking the subject still has the same available FAR. That's the situation before and after.
The thing that changes is that the [improved] area cannot be used for open space, and that [improved] area equates to approximately parking spaces.... The remaining area in the taking outside the [improved] area can then be transferred--can then be used as open space [credit], freeing up an equal amount of space on the [residue after the take] for parking.
Pinkston arrived at the $427,000 figure by multiplying his estimated number of 61 lost parking spaces by his estimated $7,000 cost of replacing each such parking space with a space in "structured" parking, meaning parking in multilevel garages. Pinkston concluded that structured parking would be necessary based upon his assumption that Fairbrook would maintain a .50 FAR on all of its 27-acre tract. Pinkston testified that he had examined a number of Fairbrook's development plans, all of which indicated that it would use a .50 FAR. Pinkston admitted that VDOT did not have a plan for the site and that "what they did was to slightly rearrange the plan [Fairbrook] had."
Pinkston also took into consideration that Fairbrook had approximately 30% of available open space. The record indicates that this figure was shown only in Fairbrook's development plans.
In responding to Pinkston's appraisal process, Fairbrook's witnesses agreed with his assumption of a .50 FAR "build-out" and the necessity of providing structured parking on the residue to compensate for the loss of open space. However, they opined that the balance of the unimproved two-acre easement area could not be counted as open space under the Herndon ordinance. Accordingly, Neil Douglas Carter, Fairbrook's architect, testified that in order to maintain the pre-take .50 FAR, a total of 215 structured parking spaces...
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