State ex rel. W.Va. Dep't of Transp. v. Burnside
| Decision Date | 13 June 2016 |
| Docket Number | No. 15–1112,15–1112 |
| Citation | 790 S.E.2d 265,237 W.Va. 655 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia ex rel. West Virginia Department of Transportation, Division of Highways, Petitioner v. The Honorable Robert A. Burnside, Jr., Judge of the Circuit Court of Raleigh County, and MCNB Bank and Trust Co., Respondents |
Leah R. Chappell, Adams, Fisher & Chappell, PLLC, Ripley, West Virginia, Counsel for the Petitioner.
David Allen Barnette, Vivian H. Basdekis, Jackson Kelly, PLLC, Charleston, West Virginia, Counsel for the Respondent.
, Justice:
In this original proceeding, the Division of Highways (“DOH”) of the West Virginia Department of Transportation petitions for extraordinary relief, seeking in the underlying condemnation matter to prohibit enforcement of the circuit court's order requiring it to deposit $1,012,500 before it is granted right of entry and defeasible title to certain commercial property owned by MCNB Bank and Trust Company. We agree with the DOH that it is entitled under the law to acquire the aforementioned right and title upon its deposit of the lesser sum of $417,100, and we therefore grant the requested writ of prohibition.
At issue is 0.78 acres of realty adjoining Robert C. Byrd Drive in Beckley, West Virginia. For decades, the property was the site of a service station and automotive repair shop. The business required the installation of underground storage tanks (“USTs”) for the purposes of dispensing gasoline and sequestering used oil. In 1986, Exxon Mobil Corporation owned the USTs, and the company filed a notification thereof with the West Virginia Department of Environmental Protection (“DEP”). Exxon Mobil removed the original steel USTs in 1988 and replaced them with fiberglass models, but an Environmental Assessment performed at the site in August 1991 revealed that petroleum hydrocarbons had seeped into the surrounding soil. Monitoring wells were thereafter installed to detect the range and intensity of the contamination. On November 27, 1991, Exxon Mobil conveyed the property by special warranty deed to H.C. Lewis Oil Co., which, on March 16, 1992, acknowledged its ownership of the USTs by filing the appropriate paperwork with the DEP. H.C. Lewis removed the fiberglass tanks in 1997.
On January 5, 2007, H.C. Lewis sold the property to Chrite Properties I, LLC, for $400,000. MCNB financed the purchase price and lent Chrite another $750,000 for improvements. Chrite built a Sonic fast-food restaurant at the site, much of which was paved with asphalt or covered with concrete in order to render it suitable for its intended use. Chrite eventually defaulted on the loan, however, and MCNB foreclosed on the property, which was conveyed to the bank by deed on October 10, 2013, for the stated consideration of $1 million.
Around the time of the foreclosure sale, the DOH decided to acquire 0.56 acres of the property to facilitate construction of a new highway to be known as the East Beckley Bypass. On May 20, 2014, the DOH applied to the circuit court to condemn the parcel and determine the compensation due MCNB. In so doing, the DOH elected to proceed using the “alternative method” prescribed by statute, which provides in pertinent part:
W. Va. Code § 54–2–14a (1981)
.
In its verified Application, the DOH averred that MCNB had rejected its tender of $417,100, the details of which were set forth in an exhibit thereto:
| Fair market value of 0.56-acre parcel | $140,800 |
| Diminution in value of 0.22-acre residue | 136,200 |
| Temporary construction easement over residue | 3,200 |
| Restaurant machinery and equipment in place | 136,900 |
| ________ | |
| TOTAL: | $417,100 |
With respect to the first three components of the DOH tender, that is, exclusive of the machinery and equipment fixtures, the $280,200 subtotal was considerably short of the combined $875,600 value arrived at by the agency's retained appraiser. The appraiser explicitly stated in his report, however, that the valuation was premised on the site being free from contamination. Accordingly, the difference of $595,400 corresponded to the estimated cost of environmental remediation to the site, which the DOH would have to absorb as a necessary precursor to the onset of road construction.
MCNB answered the Application on June 26, 2014, denying that $417,100 represented just compensation and asserting that the property's fair market value, as calculated by its own appraiser, was instead $1,294,100. MCNB's Answer incorporated its Third–Party Complaint for contribution and indemnification against Exxon Mobil and H.C. Lewis, which those parties each moved to dismiss. Upon receipt of the Answer, the DOH moved for an order in conformance with § 54–2–14a
, authorizing it to enter the property and granting it defeasible title thereto upon deposit of the tender amount with the Circuit Clerk. That motion came on for hearing on August 28, 2014.
By its order entered September 18, 2015, the circuit court granted the DOH's motion, although it conditioned title and the right of entry on the deposit of the full amount of the agency's appraisal, with no deduction for the anticipated costs of environmental remediation. The circuit court's order thus directs the DOH to deposit not only the tender amount of $417,100, but also the $595,400 remediation estimate, for a total of $1,012,500. The order confirmed the circuit court's view that “[West Virginia Code §] 54–2–14a
does not allow the [DOH] to deposit less than $1,012,500.00 in order to gain defeasible title and right of entry to the subject property.” On November 19, 2015, the DOH filed the instant petition for extraordinary relief, seeking to prohibit enforcement of the circuit court's order insofar as it requires the agency to deposit any funds in excess of its $417,100 tender.1
“ ‘Prohibition lies only to restrain inferior courts from proceedings in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers.’ ” Syl. pt. 3, in part, State ex rel. Hoover v. Berger , 199 W.Va. 12, 483 S.E.2d 12 (1996)
(). A petition for a writ of prohibition “ ‘may not be used as a substitute for [a petition for appeal] or certiorari.’ ” Id. (quoting Crawford ). In Hoover, we set forth five factors to assist us in determining whether a lower tribunal has exceeded its legitimate authority such that we should exercise our discretion to grant extraordinary relief in prohibition:
(1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Syl. pt. 4, in part, id .
We begin with the general proposition that the sovereign authority, whether federal or state, may exercise its inherent power of eminent domain to acquire privately owned property for governmental use only to the extent that it fairly reimburses the owner for what is taken. That fundamental principle derives from the Fifth Amendment of the United States Constitution, which specifically prohibits the public taking of private property “without just compensation.” U.S. Const. amend. V
. Our State constitution similarly instructs that “[p]rivate property shall not be taken or damaged for public use, without just compensation.” W. Va. Const. art. III, § 9.
In adherence to those constitutional commands, the Legislature enacted a comprehensive statutory framework regulating the public taking of private property. The procedural methodology thereby established in Article 2, Chapter 54 of the West Virginia Code strives to serve the societal interest in efficiently securing public infrastructure, an undertaking that “is so often necessary for the proper performance of governmental functions that the power is deemed to be essential to the life of the state.” State of Ga. v. City of Chattanooga , 264 U.S. 472, 480, 44 S.Ct. 369, 68 L.Ed. 796 (1924)
. At the same time, the eminent domain statute accommodates the constitutional preeminence afforded private property rights through the mandate of just compensation.
The prescribed procedure varies depending on whether the condemnation is sought by the State or...
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