Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.1
COMMONWEALTH TRANSPORTATION
COMMISSIONER OF VIRGINIA
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 061737 September 14, 2007
TARGET CORPORATION, A/K/A
TARGET STORES, INC.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Jr., Judge
I.
In this appeal of a judgment in favor of a landowner in a
condemnation proceeding, we consider issues related to the
recovery of damages for the loss of visibility to the residue
of the real property.
II.
The Commonwealth Transportation Commissioner of Virginia
filed a petition for condemnation pursuant to Code § 25.1-205
against Target Stores, Inc. As authorized by Code §§ 33.1-89,
et seq., the Transportation Commissioner recorded a
certificate of deposit among the land records in Fairfax
County, where the subject property is located. Upon
recordation, title to certain land that had been owned by
Target’s predecessors in title vested in the Commonwealth.
1
Justice Lacy participated in the hearing and decision of
this case prior to the effective date of her retirement on
August 16, 2007.
The real property interests subject to the take included land
in fee simple, permanent easements, and temporary easements.
These real property interests were taken for the construction,
reconstruction, alteration, maintenance, and repair of Roberts
Parkway, which is a part of Route 6197 in Fairfax County.
Target filed its answer to the petition, and a jury trial
was conducted in the circuit court. The jury returned a
report that awarded Target $175,100 for the value of the real
property interests and $3,324,900 for damages to the residue.
The Transportation Commissioner filed exceptions to the
report. The circuit court rejected the exceptions and entered
an order confirming the report. The Transportation
Commissioner appeals.
III.
In accordance with familiar principles, we will state the
evidence in the light most favorable to Target, the prevailing
party in the circuit court. Hoffman Family, L.L.C. v. City of
Alexandria, 272 Va. 274, 278, 634 S.E.2d 722, 724 (2006);
Stanley v. Webber, 260 Va. 90, 92, 531 S.E.2d 311, 312 (2000);
Bayliner Marine Corp. v. Crow, 257 Va. 121, 126, 509 S.E.2d
499, 502 (1999).
Target owns and operates a “big box” retail store on a
triangular-shaped parcel in Fairfax County. Before February
5, 1999, the date of the take, Target’s parcel consisted of
2
approximately 10.56 acres. The front of the store was
situated on New Guinea Road, a public street from which
signage for the store was visible. Old Guinea Road extended
along the rear of the store, and this road also provided
access to the store.
In 1983, Target’s predecessor in title made a proffer to
Fairfax County, and the proffer affected future development of
the parcel that is the subject of this condemnation
proceeding. The proffer, which became a part of the zoning
classification for the parcel, included a site plan. The
proffer required dense landscaping on certain portions of the
property that reduced the visibility of the store. The 1983
site plan also showed the future construction of Roberts Road
Bridge. Additionally, information that had been submitted in
conjunction with the 1983 proffer revealed that the majority
of Old Guinea Road would be vacated in the future.
Before February 1999, Target’s retail store was visible
from Old Guinea Road and New Guinea Road. Witnesses described
the visibility of the store from New Guinea Road as excellent.
According to one of Target’s expert witnesses, the highest and
best use of Target’s parcel before the take was for the
location of a “big box” retail store. A “big box” retail
store is a retail establishment that sells goods to the public
3
at discount prices in a large building, similar to a
warehouse, with few amenities.
In August 1999, the Transportation Commissioner commenced
construction of Roberts Parkway, which consists of four lanes
and a bridge. In March 2002, Roberts Parkway opened.
The Transportation Commissioner closed most of Old Guinea
Road to traffic, but a small portion of that public road
remains open for vehicular access to Target’s store. New
Guinea Road extends beside the store. Even though Roberts
Parkway is adjacent to the store, visibility of the store from
the Parkway is obscured because of privacy barriers that were
erected.
The Transportation Commissioner agreed at trial that
after the take, the store was not visible from Roberts
Parkway. However, the Transportation Commissioner’s expert
witness testified that Target did not incur any damage to the
residue because of this loss of visibility to its store.
Target presented numerous witnesses who testified that
after the take, the residue to its property was damaged
because the store lost visibility upon the partial closure of
Old Guinea Road and upon the construction of privacy barriers
along Roberts Parkway. For example, Dexter Williams, who
qualified as an expert witness, gave the following testimony:
4
“Q: Describe for me what [has] been lost from
this site.
“A: [The store] was . . . at the corner of two
roads with visibility from two sides; now it is
. . . at the corner of two roads with visibility
from one side.”
Target’s expert witnesses rendered opinions on the damage
to the residue caused by the lack of visibility. Richard
Marchitelli testified that the damages associated with the
permanent taking were $115,000, and the damage to the residue
caused by loss of visibility was $4.6 million. Everett B.
Wright, another expert witness, testified that the damages to
the property that was taken were $173,000 and that the damage
to the residue caused by the loss of visibility was
approximately $3.3 million. Additionally, the jury
commissioners took a view of the property.
IV.
Code § 25.1-417(A)(3) states:
“Before initiating negotiations for real
property, the state agency shall establish an amount
which it believes to be just compensation therefor
and shall make a prompt offer to acquire the
property for the full amount so established. In no
event shall such amount be less than the agency's
approved appraisal of the fair market value of such
property, if such an appraisal is required. Any
decrease or increase in the fair market value of
real property prior to the date of valuation caused
by the public improvement for which such property is
acquired, or by the likelihood that the property
would be acquired for such improvement, other than
that due to physical deterioration within the
reasonable control of the owner, shall be
disregarded in determining the compensation for the
5
property. The agency concerned shall provide the
owner of real property to be acquired with a written
statement of, and summary of the basis for, the
amount it established as just compensation, together
with a copy of the agency's approved appraisal of
the fair market value of such property upon which
the agency has based the amount offered for the
property, if such an appraisal is required. Where
appropriate, the just compensation for the real
property acquired and for damages to remaining real
property shall be separately stated.”
(Emphasis added).
Relying upon this Code section, Target filed a pretrial
motion in limine asserting that Code § 25.1-417, “specifically
makes it clear that a property owner cannot get enhancement as
a result of the project, nor can a property owner be penalized
[because of] a decrease in the value of the property as a
result of the announcement of a project or the impending
nature of a project.” The circuit court ruled that during the
trial, the litigants may not “seek admission or elicit
evidence of any party’s knowledge of the design or
construction of the Roberts Parkway Bridge prior to the
taking, or any expectancy therefrom,” and that “either party
may seek admission or elicit evidence of the 1983 Proffer
Statement, the approved Target Site Plan and other zoning for
the Target site as of the date of the taking.” Subsequently,
the judge who presided during the trial interpreted the
pretrial ruling as requiring that all references to the future
construction of Roberts Parkway or the closing of Old Guinea
6
Road must be redacted from documents related to the zoning
proffer and related site plans admitted in evidence at trial.2
The Transportation Commissioner argues that even though
Code § 25.1-417 prescribes the methodology that the Department
of Transportation must utilize to establish fair market value,
the circuit court’s ruling, prohibiting the Transportation
Commissioner from presenting evidence that Target knew of the
design and construction of the Roberts Parkway before Target
acquired the real property, is contrary to Code § 25.1-
417(A)(3). Continuing, the Transportation Commissioner states
that the redacted references on exhibits in the landowner’s
proffer would have shown the jury that Fairfax County’s zoning
classification required that the Target store not be visible
from Roberts Parkway, and that the closure of Old Guinea Road
was required by the zoning ordinance.
This Court cannot consider the Transportation
Commissioner’s arguments. The Transportation Commissioner
failed to make all the documents that he claims should not
have contained redactions a part of the record.3 This Court
2
A different judge presided during the hearing for the
motion in limine.
3
The Transportation Commissioner identified specific
documents that contained references he maintains should not
have been redacted. Duplicate copies of some of the documents
at issue were admitted in evidence and some, but not all, of
the documents were inadvertently provided to the jury without
redaction. Receipt of these unredacted documents does not
7
has consistently adhered to the following principles that are
applicable here:
“This Court will not consider testimony excluded by
the trial court ‘without a proper showing of what
that testimony might have been.’ O’Dell v.
Commonwealth, 234 Va. 672, 697, 364 S.E.2d 491, 505
(1988). ‘When testimony is rejected before it is
delivered, an appellate court has no basis for
adjudication unless the record reflects a proper
proffer.’ Whittaker v. Commonwealth, 217 Va. 966,
968, 234 S.E.2d 79, 81 (1977).”
Rose v. Jaques, 268 Va. 137, 154, 597 S.E.2d 64, 74 (2004);
accord Holles, Inc. v. Sunrise Terrace, 257 Va. 131, 135, 509
S.E.2d 494, 497 (1999) (“When testimony is excluded before it
is presented, the record must reflect a proper proffer showing
what the testimony would have been.”); Chappell v. Virginia
Electric and Power Co., 250 Va. 169, 173, 458 S.E.2d 282, 285
(1995); Wyche v. Commonwealth, 218 Va. 839, 842, 241 S.E.2d
772, 774 (1978); Jackson v. Commonwealth, 98 Va. 845, 846-47,
36 S.E. 487, 488 (1900). The Transportation Commissioner’s
failure to make a proffer of all the documents without the
redactions has deprived this Court of the ability to determine
the admissibility of those documents and, if admissible,
whether the circuit court’s exclusion of that evidence
prejudiced the Transportation Commissioner. Holles, 257 Va.
render the redaction ruling of the circuit court harmless
error as Target argues, because not all the documents
identified by the Transportation Commissioner were provided to
the jury in unredacted form.
8
at 135, 509 S.E.2d at 497. A circuit court’s judgment is
presumptively correct, and the appellant bears the burden of
presenting a sufficient record to permit a determination
whether the circuit court committed an alleged error.
Commonwealth v. Williams, 262 Va. 661, 669, 553 S.E.2d 760,
764 (2001); accord McDonald v. National Enterprises, Inc., 262
Va. 184, 195, 547 S.E.2d 204, 211 (2001); White v. Morano, 249
Va. 27, 30, 452 S.E.2d 856, 858 (1995).
V.
The Transportation Commissioner submitted the following
proposed jury instructions, which were refused by the circuit
court:
“Jury Instruction 20
“One who owns land abutting a public highway is
entitled only to reasonable visibility of his
property. His right of visibility is limited by the
state’s right to control traffic over its highways.
“If you find that the landowner in this case
will have reasonable visibility of his property
after the construction of this project, then you may
not award damages for the change of visibility.”
“Jury Instruction 21
“The highway constructed upon the land here
being condemned is on a new location, no part of
which was included in an existing public road which
abutted upon the lands of the owner in this
proceeding. Therefore, in determining the damages,
if any, to the remaining lands of the owner, you
will not consider that said remaining land had any
right or easement of access or visibility taken from
it or the owner, for the reason that there was no
such right of easement or access or visibility by
the owner or appurtenant to the land described in
9
the petition at the time of the taking by the
Commonwealth Transportation Commissioner.”
The Transportation Commissioner argues that the circuit court
erred by denying proposed Jury Instructions 20 and 21 because
a landowner’s loss of visibility is not a compensable damage
in a condemnation proceeding.
We will not consider the Transportation Commissioner’s
arguments because the Transportation Commissioner has adopted
inconsistent positions. In the circuit court, as illustrated
by the Transportation Commissioner’s proposed Jury Instruction
20, the Transportation Commissioner asserted that a landowner
who owns land abutting a public highway is entitled to damages
if a governmental taking has deprived that landowner of
reasonable visibility of his property. In this Court,
however, the Transportation Commissioner asserts that
compensation for “loss of visibility would be directly at odds
to the established principle in Virginia that the State has
the right to control the flow of traffic under its police
power.”
We have consistently held that litigants may not take
inconsistent positions at different stages of litigation.
Cohn v. Knowledge Connections, Inc., 266 Va. 362, 367, 585
S.E.2d 578, 581 (2003); Commonwealth v. Lotz Realty Co., 237
Va. 1, 7, 376 S.E.2d 54, 57 (1989); Sullivan v. Commonwealth,
10
157 Va. 867, 878, 161 S.E. 297, 300 (1931); Kelley v.
Commonwealth, 140 Va. 522, 536, 125 S.E. 437, 441 (1924). We
have also stated that “[t]his is an appellate court, and [this
Court] hears cases on the theory upon which they were tried in
the [circuit] court, reviewing those points properly raised,
decided, and preserved.” Pearsall v. Richmond Redevelopment &
Housing Authority, 218 Va. 892, 908, 242 S.E.2d 228, 237
(1978) (quoting Strauss v. Princess Anne Marine and
Bulkheading Co., 209 Va. 217, 221-22, 163 S.E.2d 198, 202
(1968)). The Transportation Commissioner will not be
permitted to argue in this Court that Target may not recover
any damages for loss of visibility when, in the circuit court,
the Transportation Commissioner asserted that Target is
entitled to recover damages if it does not have “reasonable
visibility” of its property.
Additionally, the circuit court implicitly held that
proposed Jury Instruction 21 was confusing, and the court did
not think that the jury would understand that instruction. In
his brief filed in this Court, the Transportation Commissioner
does not challenge the circuit court’s ruling that the jury
would not understand proposed Jury Instruction 21. Therefore,
the circuit court’s ruling is the law of this case, and we
will not disturb that ruling. Today Homes, Inc. v. Williams,
272 Va. 462, 470, 634 S.E.2d 737, 742 (2006); Owens-Corning
11
Fiberglas Corp. v. Watson, 243 Va. 128, 136, 413 S.E.2d 630,
635 (1992).
VI.
The Transportation Commissioner argues that the circuit
court erred by denying proposed Jury Instruction 18, which
states:
“Use of the subject property is already
restricted by local zoning ordinances. Your
calculation of damages, if any, to the remaining
property must be based solely on the negative
effects on the fair market value to the remaining
property resulting from the taking alone, beyond
those restrictions already imposed on the property.
“If the taking has caused no additional
negative effects on fair market value to the
remaining property beyond those created by the
zoning ordinance restrictions, you may not award any
damages.”
The Transportation Commissioner argues in this Court that the
circuit court’s denial of this instruction was prejudicial
because the zoning classification of Target’s property was
relevant to the value of the property, and the zoning
classification required obstructions to visibility of the
property upon the construction of Roberts Parkway.
We do not consider the Transportation Commissioner’s
arguments because the Transportation Commissioner did not
raise these issues in the circuit court. The Transportation
Commissioner made the following argument in the circuit court
regarding Jury Instruction 18:
12
“[Counsel for the Transportation Commissioner]:
All right, Your Honor. The issue in this case that
the Commonwealth has tried to present is that the
flow of traffic around the property has not changed
or damaged visibility.
“All these instructions – specifically, 19, 20,
and 21, deal specifically with our argument that,
based on the traffic patterns on the roadway, they
have not been damaged. These are all correct
statements of – well, let me –
. . . .
“[The Court]: The question is whether or not
[the proposed instructions] are appropriate to give
as an instruction, as opposed to being correct
statements of law.
“[Counsel for the Transportation Commissioner]:
Well, as I said, Your Honor, I mean, the basis of
our case has been, based on the flow of traffic
around the property – I mean, their argument is two
sides, one side. Our argument is that, based on the
flow of traffic around the property, [Target has]
not been damaged, based on the visibility, you know,
the landscaping, how the traffic passes in front of
the property.
“All of that mitigates any damages [Target] may
have stated, so, therefore, it is important that
correct statements of the law regarding the flow of
traffic around the property are given to the jury.”
The Transportation Commissioner may not assert, for the
first time on appeal, a new argument in support of Jury
Instruction 18. Rule 5:25.
VII.
The Transportation Commissioner contends that the circuit
court erred by failing to grant its proposed Jury Instruction
19 that states:
“The right to regulate and control traffic in
the interest of public safety is a proper exercise
13
of the Commonwealth Transportation Commissioner’s
police power. The closure of public streets is a
proper exercise of that police power. The landowner
can only recover damages if he has suffered some
special damage to his land that is different than
damages suffered by the public. If the landowner
has not suffered any special damages from the
closure of that road, you may not award any damages
to the landowner.”
The Transportation Commissioner argues that the closure
of roads is “a proper and non-compensable exercise of the
[Transportation Commissioner’s] police power.” Continuing,
the Transportation Commissioner asserts that the circuit
court’s refusal to grant this instruction prejudiced the
Commonwealth because the jury did not understand that it could
not compensate Target for damages to the residue caused by the
closure of a public roadway.
The Transportation Commissioner did not assert in the
circuit court that Target could not recover damages for loss
of visibility because the Commonwealth has the right to
regulate and control traffic and that the closure of roads is
a proper and non-compensable exercise of the Commonwealth’s
police power. We will not permit the Transportation
Commissioner to assert these arguments for the first time on
appeal. Rule 5:25.
VIII.
The Transportation Commissioner asserts the following
assignment of error: “The trial court erred in failing to
14
find that the jury commissioners’ report is contrary to the
evidence at trial.” Rule 5:17(c) states: “An assignment of
error which merely states that the judgment or award is
contrary to the law and the evidence is not sufficient.”
Thus, we do not consider this assignment of error.
IX.
The Transportation Commissioner argues that the circuit
court erred in failing to set aside the jury’s report because
the award of damages was excessive. We disagree with the
Transportation Commissioner.
This Court has repeatedly held that in an eminent domain
proceeding,
“the report of the commissioners4 is entitled to
great weight, is prima facie correct, and must be
confirmed unless ‘good cause be shown against it.’
Where there is a conflict of evidence before the
commissioners neither the trial court nor this
[C]ourt can set aside the award unless it be shown
that the commissioners proceeded upon erroneous
principles, or unless the amount allowed is so
grossly inadequate or excessive as to show prejudice
or corruption on their part. This is so because the
commissioners may base their finding largely upon
facts obtained by their own view of the property
which do not appear in the record.”
Highway Commissioner v. Carter, 216 Va. 639, 641, 222 S.E.2d
776, 777 (1976) (quoting Kornegay v. City of Richmond, 185 Va.
1013, 1024, 41 S.E.2d 45, 50 (1947); accord Highway
15
Commissioner v. Frazier, 214 Va. 556, 558, 203 S.E.2d 350, 351
(1974); Massie v. Highway Commissioner, 209 Va. 365, 368, 164
S.E.2d 696, 698 (1968); Highway Commissioner v. Skillman, 206
Va. 39, 41-42, 141 S.E.2d 700, 702 (1965). In the record
before this Court, the Transportation Commissioner has failed
to establish that the report of the jurors is so excessive as
to show prejudice or corruption.
X.
For the foregoing reasons, we will affirm the judgment of
the circuit court. We observe, however, that we do not decide
whether a landowner, whose real property is the subject of a
condemnation proceeding, may recover damages for loss of
visibility to the residue of the real property. This issue
remains undecided in this Commonwealth.
Affirmed.
4
Pursuant to Code §§ 25.1-100 and -220, the body that
determines just compensation in condemnation proceedings is
referred to as a jury.
16