Rudder v. Wise County Redevelopment and Housing Authority, 770582

• Decision Date: 22 November 1978
• Docket Number: No. 770582,770582
• Court: Virginia Supreme Court
• Parties: Skaggs RUDDER and Wilma L. Rudder v. WISE COUNTY REDEVELOPMENT AND HOUSING AUTHORITY. Record

Page 177

249 S.E.2d 177

219 Va. 592

Skaggs RUDDER and Wilma L. Rudder v. WISE COUNTY REDEVELOPMENT AND HOUSING AUTHORITY.

Record No. 770582.

Supreme Court of Virginia.

Nov. 22, 1978.

S. Strother Smith, III, Abingdon (William H. Robinson, Robert T. Copeland, John Jeffrey Fluck, Smith, Robinson & Vinyard, Abingdon, on brief), for plaintiffs in error.

J. Robert Stump, Norton (Sturgill & Stump, P. C., Norton, on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

In this condemnation proceeding the Wise County Redevelopment and Housing Authority sought to acquire certain real property of Skaggs Rudder and his wife located within the project area of the St. Paul Neighborhood Redevelopment Project. ¹

Under the Project, approved by the Town of St. Paul and by the County of Wise, the Authority proposed to acquire all land within the project area of 96.7 acres, including a portion of the Clinch River. All structures on the land would be demolished, the Clinch River would be rechanneled by the Tennessee Valley Authority (TVA) to prevent flooding, a four-lane highway, Alternate Route 58-A, would be constructed by the Virginia Department of Highways, and the remainder of the land would be resold for redevelopment for residential and commercial purposes.

The Rudders' answer to the petition for condemnation was treated as a motion to dismiss. In it the landowners challenged the Authority's right to condemn their property, asserting, Inter alia, that the project area was not blighted, that a proper environmental impact study was required but had not been prepared, and that the proposed taking was unconstitutional because the land was later to be resold to private individuals. Evidence on the motion to dismiss was presented in Ore tenus hearings and by deposition, but the trial court did not rule on the motion until the hearing before the condemnation commissioners had been completed and the report by the commissioners awarding the Rudders the sum of $65,090 had been filed. Exceptions to the commissioners' report were overruled. Subsequently, the trial court, in a written opinion, specifically found that the taking of the Rudders' property was for public use, that the property was located in a blighted area, and that an adequate environmental impact study of the area had been made. By final order, the court overruled the motion to dismiss and confirmed the commissioners' report. On appeal, the question is whether the court erred in overruling the motion to dismiss.

The finding made by the Authority that the project area was blighted or deteriorated was presumptively correct but subject to review by the trial court; nevertheless, the burden was upon the landowners to show by clear and convincing evidence that the finding was arbitrary and unwarranted. Runnels v. Housing Authority, 207 Va. 407, 411, 149 S.E.2d 882, 885 (1966). See Adair v. Nashville Housing Authority, 388 F.Supp. 481, 489-490 (D.Tenn.1974), Aff'd, 514 F.2d 38 (6th Cir.), Cert. denied, 423 U.S. 928, 96 S.Ct. 274, 46 L.Ed.2d 255 (1975). Moreover, in passing on the sufficiency of the evidence to support the trial court's decision we view it in the light most favorable to the trial court's finding that the area was blighted.

The Rudders called as witnesses various persons who had participated in the survey, examination, and evaluation of the project area during the planning stages of the redevelopment project. These were engineers and consultants who had made reports, based upon detailed inspection of the area and of the exteriors and interiors of the structures therein, that the project area was blighted or deteriorated within the meaning of Code § 36-49 and was eligible for redevelopment. It appears to be uncontradicted that the project area, excluding the Clinch River, aggregated approximately 80 acres. It further appears from a letter signed by Kenneth Poore, an engineer employed by one of the consulting firms that prepared studies and plans for the project, that the project area contained 109 principal buildings, of which 62, located on 15.1 acres, were classified as structurally substandard requiring or warranting clearance, and 42 others, located on 42 acres, warranted clearance to remove blighting factors (40 subject to periodic flooding, 1 obsolete building type, and 1 improperly located on the land). The remaining land, with slopes exceeding 50%, was inaccessible during periods of flooding.

The only witness who testified that the project area was not blighted or deteriorated was a real estate broker, Andrew J. Hargroves. His familiarity with the area was limited. He conceded that he had been inside not more than twelve to fifteen of the buildings in the area, that some buildings already had been demolished when he made his inspection, and that he had spent only five minutes, prior to testifying, viewing photographs of the 109 buildings in the project area.

The Rudders rely heavily upon Housing Authority v. Denton, 198 Va. 171, 93 S.E.2d 288 (1956), where we affirmed the ruling of the trial court that the housing authority had improperly classified a proposed redevelopment area as blighted. We held that the evidence clearly showed that the buildings in the area as a whole were not dilapidated. Denton, supra, 198 Va. at 179, 93 S.E.2d at 294.

The housing authority in Denton had introduced evidence to show that 63.9% Of the total redevelopment area was occupied by dwellings, and that 61% Of these dwellings were dilapidated. We stated, however, that this evidence, even if credible, did not Necessarily establish the validity of the authority's actions as it would show that only 39% Of the area as a whole was blighted. We agreed that the evidence fully supported the finding of the trial court that the majority of the residences were not blighted but were " 'sound, safe, and well kept,' " and that the decision of the authority was " '. . . contra to the overwhelming weight of the evidence in the case.' " Id. at 180, 93 S.E.2d at 295. See Annot., 45 A.L.R.3d 1096, 1124-1125 (1972).

Contrary to the contentions of the Rudders, however, we did not establish a rigid mathematical formula to be used in evaluating the determination made by a housing authority that an area was eligible for redevelopment. Thus, in Runnels, supra, we based our decision not...