Ottofaro v. City of Hampton

Present: All the Justices

FRANK J. OTTOFARO, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 020101 January 10, 2003

CITY OF HAMPTON

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge

I.

The primary issues that we consider in an appeal of a

judgment entered in a condemnation proceeding are whether a

city condemned private property for a public purpose, and

whether a city council's condemnation resolution complied with

the applicable law.

II.

In September 1999, the City Council for the City of

Hampton adopted a resolution that authorized the acquisition

of several parcels of land, including two parcels owned by

Frank J. Ottofaro and Dora J. Ottofaro (the landowners). The

City filed a certificate of take against the Ottofaros'

property as permitted by Code §§ 33.1-119 through -132. The

City deposited $164,000, the estimated fair market value of

the property, in the clerk's office of the circuit court

contemporaneously with the filing of a certificate of take.

Subsequently, the City filed its petition for

condemnation, and the Ottofaros filed responsive pleadings
which included certain affirmative defenses to the City's

condemnation proceeding. The Ottofaros sought an injunction

to prevent the City from destroying a small rental house on

their property. The circuit court conducted an evidentiary

hearing on the request for injunctive relief and denied the

Ottofaros' request.

Later, the circuit court conducted an ore tenus hearing

and at the conclusion of the hearing, the court rejected the

Ottofaros' defenses. The Honorable Wilford Taylor, Jr., judge

of the Circuit Court of the City of Hampton, presided during

this hearing. The circuit court held that the City Council's

resolution was valid, that the City Council had not unlawfully

delegated authority to its city attorney, that the resolution

recited a public purpose, and that the City Council complied

with the requirements of Code § 33.1-91, which permits the

taking of residential property outside a designated right-of-

way. A different judge, the Honorable Christopher W. Hutton,

presided over the trial to determine just compensation. At

the conclusion of that trial, the commissioners returned a

report in favor of the landowners in the amount of $170,000.

The circuit court entered a judgment confirming the

commissioners' report, and the landowners appeal.

III.

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 In 1989, the City Council for the City of Hampton adopted

a comprehensive plan that, among other things, identified a

proposed arterial roadway that would connect Queen Street with

another throughway. The City Engineer for the City of

Hampton, James F. Whitley, approved a plan dated August 1999

that contained the proposed road alignment which would

traverse the landowners' property. Eventually, a road was

constructed that, with the exception of certain minor changes,

has the same alignment in relation to the landowners' former

property as shown on the August 1999 plan.

On September 22, 1999, the City Council approved a

resolution that stated a need to acquire property for the

construction of a "new arterial network." The City Council

stated in its resolution that it was "necessary to acquire

property to be used for the construction of improvements to

the intersection of West Mercury Boulevard and West Queen

Street, for the construction of improvements to the

intersection of Pine Chapel Road and West Queen Street; and

property acquisition incidental to these named improvements

which are consistent with the City's Comprehensive Plan

. . . ." The resolution authorized the City Attorney to

acquire numerous properties, by negotiation or condemnation,

including Parcels 23 and 24 that the landowners owned. These

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parcels consisted of a total of about three-quarters of an

acre.

According to the resolution, "construction of the new

roadways and improvements to existing roadways will serve a

public purpose by improving the City's transportation network;

by providing improved access to underutilized property within

the City of Hampton; and by reducing the traffic flow along

the portion of West Queen Street that abuts a residential area

. . . ."

Approximately two months after the City Council adopted

its resolution, the Hampton Industrial Development Authority,

a political subdivision of the Commonwealth, executed a

development agreement with Hampton Roads Associates, L.L.C.,

for the development of property in the area where the

landowners' former property is located. The City of Hampton

is not a party to this agreement. Pursuant to the terms of

the agreement, Hampton Roads Associates (the developer) would

develop several acres of land with frontage on the new road.

The Industrial Development Authority stated in the agreement

"that the City has, to the extent it has jurisdiction,

authorized the undertakings set forth in this Agreement and

the expenditure and distribution of the [Industrial

Development Authority] Allowance in accordance with the

provisions of this Agreement." Additionally, the agreement

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required that the Industrial Development Authority "shall

exercise its best efforts to cause the City to acquire the

Road Improvement Parcels . . . pursuant to eminent domain

proceedings or by consensual agreement with the property

owners so that the construction of the Road Improvements may

proceed."

The agreement stated, however, that "[t]he Developer

acknowledges and agrees that the City may only exercise its

power of eminent domain when there is a direct showing of

public purpose and need, and the power may only be exercised

for property which is necessary for the Road Improvements and

related infrastructure improvements and additions." The

City's retail development manager, Kathy Grook, testified that

the City had "no obligation with the [Industrial Development

Authority] to proceed with condemnation" under the terms of

the agreement.

Pursuant to the terms of the agreement, the developer was

required to create site plans, as well as design and construct

the necessary road improvements, which were required to comply

with standards promulgated by the City. The City Engineer

testified that typically a developer will prepare an alignment

plan for a future road and submit it to the City's engineering

office for review and approval. Once the developer has

constructed a road, the City will inspect the road, and if it

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meets the City's standards, the City may accept the road by

dedication or condemnation, and the road will become a public

road under the ownership and control of the City.

It is undisputed that the road constructed on the

landowners' former parcels is owned and controlled by the City

and is open for public use. The City Engineer estimates that

by the year 2018, approximately 26,000 motor vehicles will use

the road daily.

IV.

A.

The landowners argue that the City lacked a public

purpose to condemn their former property, and that the

underlying reason for the condemnation was that the City

actually desired to acquire the property and convey it to a

developer that would create a retail shopping center.

Continuing, the landowners point out that only 18% of their

former property will be used for the construction of the road

and that the residue will be leased to the developer for

private purposes. Responding, the City asserts that the

landowners' property was condemned for public use and that the

residue of the property will not be transferred to a private

entity for a private purpose.

Initially, we observe that the issue "whether a taking is

for a public purpose is a judicial question, reviewable by the

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courts. . . ." Hamer v. School Bd. of Chesapeake, 240 Va. 66,

70, 393 S.E.2d 623, 625 (1990); accord City of Richmond v.

Carneal, 129 Va. 388, 394, 106 S.E. 403, 405 (1921) ("[W]hat

constitutes a 'public use' is a judicial question to be

decided by the courts."). And, contrary to the City's

contention, the fact that the City filed with its petition for

condemnation a resolution that stated that the landowners'

property would be taken for a public use does not bar judicial

review of the issue of public use.

The principles pertinent to our resolution of the issue

whether the landowners' former property was taken for a public

use are well established. We have stated that

"the public use implies a possession, occupation,
and enjoyment of the land by the public at large, or
by public agencies; and a due protection to the
rights of private property will preclude the
government from seizing it [from] the hands of the
owner, and turning it over to another on vague
grounds of public benefit to spring from the more
profitable use to which the latter may devote it."

Phillips v. Foster, 215 Va. 543, 547, 211 S.E.2d 93, 96

(1975). We have also stated recently that "[t]o be public, a

use must be one in which the terms and manner of its enjoyment

are within the control of the governing body. The public

interest must dominate any private gain." Town of Rocky Mount

v. Wenco of Danville, Inc., 256 Va. 316, 322, 506 S.E.2d 17,

21 (1998); accord Phillips, 215 Va. at 547, 211 S.E.2d at 96;

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Rudee Inlet Auth. v. Bastian, 206 Va. 906, 911, 147 S.E.2d

131, 135 (1966); Mumpower v. Housing Auth. of Bristol, 176 Va.

426, 448, 11 S.E.2d 732, 740 (1940); Nichols v. Central Va.

Power Co., 143 Va. 405, 415-16, 130 S.E. 764, 767 (1925).

Applying the aforementioned principles, we hold that the

circuit court correctly concluded that the City condemned the

landowners' property for a public purpose. The evidence is

uncontroverted that the City owns the road, and that the road

is open for use to the public. The City anticipates that by

the year 2018, approximately 26,000 vehicles will use the road

daily. The City authorized the acquisition of land for

construction of the road for the reasons enumerated in its

1989 comprehensive plan, which included a need for a road that

would serve as a "connector" to other public roads. The

resolution adopted by the City Council authorized the

condemnation of the landowners' property for the purposes of

improving the City's transportation network, reducing traffic

flow, and improving access to underutilized property within

the City.

Contrary to the landowners' contention, there is no

evidence in the record that suggests that the residue of the

landowners' former property will be conveyed to a private

entity. Rather, according to the record, the City may

transfer the residue of the landowners' former property to the

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Hampton Industrial Development Authority, a political

subdivision of the Commonwealth, which will lease the property

to a private developer.

B.

The landowners also argue that the City's condemnation

resolution is "fatally defective in that it failed to fix the

location of the road with certainty or definiteness, and the

City Council improperly delegated to the City Attorney the

power to acquire what was 'necessary.' " Continuing, the

landowners contend that Code § 25-46.7 requires a petition for

condemnation "to include 'a description of the work or

improvements to be made' " and that Code § 15.2-1903 "requires

that any enabling resolution describe 'the use to which the

property will be put.' " The landowners argue that "[t]he

City has consistently failed to generate any specific

information regarding the location of the road." We disagree

with the landowners' contentions.

Code § 15.2-1903(B) states:

"Prior to initiating condemnation proceedings,
the governing body shall adopt a resolution or
ordinance approving the proposed public use and
directing the acquisition of property for the public
use by condemnation or other means. The resolution
or ordinance shall state the use to which the
property shall be put and the necessity therefor."

The resolution adopted by the City Council stated that the

landowners' property would be condemned for the construction

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of a road that would, among other things, improve the City's

transportation network, provide access to underutilized

property within the City, and reduce traffic flow within the

City. The resolution also directed the acquisition of the

property for public use. We find no requirement in Code

§ 15.2-1903 that directs the City to include in its resolution

a fixed and definite description of a road that it seeks to

construct for a public purpose. We do note, however, that the

circuit court made a finding of fact that the location of the

road "was fixed and definite since 1989." The landowners do

not assign error to the circuit court's finding, and we note

that this finding is supported by the evidence of record.

We also reject the landowners' contention that the City

Council's resolution improperly delegated to the City Attorney

the right to exercise the City's condemnation power. The

landowners argue that the City Attorney was authorized to

condemn the necessary rights-of-way from the landowners

although the City failed to designate the locations of the

rights-of-way. Thus, the landowners assert that the terms of

the resolution constituted an illegal delegation of the City

Council's legislative power.

The City Council's resolution stated in part

"that the City Attorney be and is hereby authorized
and directed to institute negotiations and
condemnation proceedings as authorized by the Code

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 of Virginia . . . for the acquisition of the
necessary rights-of-way (and, within the limitations
and conditions of Section 33.1-91 of the Code of
Virginia of 1950, as amended, entire tracts upon
which such rights-of-way shall be located) from the
land owners which are designated on the attached
Exhibit 'A', but nothing in this resolution shall be
construed as preventing negotiation by the City
Attorney and/or City Manager for the purchase of any
and all of said property at a private sale should
the owners there agree to sell at the prices
offered."

Contrary to the assertions of the landowners, the City's

resolution did not confer the power of condemnation upon its

city attorney. Rather, the language at issue in the

resolution simply directed the city attorney to acquire the

entire tracts of land upon which the road would be located,

but only if the requirements of Code § 33.1-91, which imposes

certain limitations upon the City's power to condemn the

residue, were satisfied. The resolution did not give the city

attorney any discretion to decide how much land to acquire by

condemnation.

Our decision in Ruddock v. City of Richmond, 165 Va. 552,

178 S.E. 44 (1935), upon which the landowners rely, has no

application in this case. In Ruddock, we invalidated a

resolution that authorized a city attorney to seek the

condemnation of land because the resolution permitted that

city attorney to acquire property that had not been designated

in the resolution. The petition for condemnation that we

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reviewed in Ruddock described property that was not contained

in the resolution that authorized the condemnation proceeding.

We held that the resolution was invalid because it improperly

delegated the city council's exclusive power of condemnation

to the city attorney. Id. at 561, 178 S.E. at 47. Unlike the

circumstances in Ruddock, the resolution authorizing the

condemnation proceedings in this case specifically identified

the parcels subject to condemnation and specifically

authorized the city attorney to acquire the landowners' entire

properties as permitted by Code § 33.1-91. The resolution

adopted by the Hampton City Council did not delegate the

City's condemnation power to its city attorney.

We disagree with the landowners' contention that the

City's resolution condemning the residue violated Code § 33.1-

91. This statute permits a city, in the acquisition of

rights-of-way for road construction and land incidental to

that construction, to exercise the power of eminent domain

upon an entire tract of land or any part thereof

"whenever the remainder of such tract or part
thereof can no longer be utilized for the purpose
for which the entire tract is then being utilized,
or a portion of a building is to be taken or the
cost of removal or relocation of the buildings, or
other improvements on the remaining portion,
necessitated by the taking, would exceed the cost of
destroying such buildings or other improvements, or
the highway project will leave the remaining
portions without a means of access to a public
highway . . . provided, however, that the [City]

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 shall not acquire the remainder of such tracts . . .
by condemnation where the remaining portion is in
excess of two acres."

As the City correctly points out, it was entitled to obtain

the residue to the landowners' tracts because the City

satisfied the requirements prescribed in Code § 33.1-91, which

governs the taking of residual property. The City asserts,

and the landowners do not disagree, that the residue of the

landowners' former tracts is less than two acres and "can no

longer be utilized for the purpose for which the entire tract

[was] then being utilized," in this instance, residential

rental property. Additionally, the remaining portion of the

former tracts would not have a means of access to a public

highway.

We cannot consider the landowners' arguments that the

City condemned their former property for the purpose of

facilitating the construction of a commercial shopping center.

This contention is not the subject of an assignment of error

and, therefore, may not be considered in this appeal. Rule

5:17(c).

V.

In view of our holdings, we need not consider the

litigants' remaining arguments. Accordingly, we will affirm

the judgment of the circuit court.

Affirmed.

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JUSTICE KINSER, with whom JUSTICE LEMONS joins, dissenting.

I disagree with the majority’s conclusion that “the

resolution authorizing the condemnation proceedings in this

case . . . specifically authorized the [C]ity [A]ttorney to

acquire the landowners’ entire properties as permitted by Code

§ 33.1-91.” Instead, the City Council for the City of Hampton

authorized the City Attorney to determine whether the property

owned by Frank J. Ottofaro and Dora J. Ottofaro satisfied the

requirements of Code § 33.1-91. By delegating this authority

to the City Attorney, the City Council allowed the attorney to

make the decision whether to acquire only a portion of the

Ottofaros’ property or their entire parcels.

The provisions of Code § 33.1-91 permit the condemnation

of an entire tract of real estate when the remaining portion

is less than two acres and one of the following conditions is

present:

[T]he remainder of such tract or part thereof can no
longer be utilized for the purpose for which the entire
tract is then being utilized, or a portion of a building
is to be taken or the cost of removal or relocation of
the buildings, or other improvements on the remaining
portion, necessitated by the taking, would exceed the
cost of destroying such buildings or other improvements,
or the highway project will leave the remaining portions
without a means of access to a public highway, or
whenever in the judgment of the Commissioner the
resulting damages to the remainder of such tract or part
thereof lying outside the proposed right-of-way, or the
area being acquired for a purpose incidental to the
construction, reconstruction or improvement of a public

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 highway, will approximate or equal the fair market value
of such remaining lands[.]

In the resolution at issue, the City Council authorized

the City Attorney to “institute negotiations and condemnation

proceedings . . . for the acquisition of the necessary rights-

of-way (and, within the limitations and conditions of Section

33.1-91 of the Code of Virginia of 1950, as amended, entire

tracts upon which such rights-of-way shall be located) from

the land owners which are designated on the attached Exhibit

‘A’[.]” Noticeably absent from the resolution is any finding

by the City Council that the residue of the Ottofaros’

property fulfilled the requirements of Code § 33.1-91. Even

the majority implicitly recognizes this omission. The

majority states that “the language at issue in the resolution

simply directed the [C]ity [A]ttorney to acquire the entire

tracts of land upon which the road would be located, but only

if the requirements of Code § 33.1-91 . . . were satisfied.”

(Emphasis added). Because the determination whether those

requirements were fulfilled had not yet been made and the City

Council failed to do so, the City Attorney, rather than the

City Council, made the final decision whether to acquire the

Ottofaros’ entire tracts or just the portions needed for the

right-of-way.

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 “[A]n act of the legislature delegating to a municipality

the power of eminent domain must be strictly construed in

favor of the landowner.” Ruddock v. City of Richmond, 165 Va.

552, 562, 178 S.E. 44, 47 (1935). “The power can only be

exercised for the purpose, to the extent, and in the manner

provided by law.” Bristol Redevelopment & Housing Auth. v.

Denton, 198 Va. 171, 178, 93 S.E.2d 288, 293 (1956); see also

City of Richmond v. Childrey, 127 Va. 261, 268, 103 S.E. 630,

631 (1920) (“one claiming the power must bring himself

strictly within the grant, both as to the extent and manner of

its exercise”). In Ruddock, we quoted with approval the

principle that “[w]hen the legislature delegates the right to

exercise the power of eminent domain the grantee of the power

cannot surrender, transfer or redelegate the same to another

unless expressly authorized by the statute conferring the

power.” 165 Va. at 561-62, 183 S.E. at 47.

Pursuant to Code § 15.2-1902, the General Assembly

authorized localities to exercise the power of eminent domain

in accordance with certain procedures. One of those

procedures mandates that, “[p]rior to initiating condemnation

proceedings, the governing body shall adopt a resolution or

ordinance approving the proposed public use and directing the

acquisition of property for the public use by condemnation or

other means.” Code § 15.2-1903(B) (emphasis added). A

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resolution cannot “direct[] the acquisition of property”

without specifying whether only a portion of a tract of real

estate needed for a specific project shall be condemned or

whether the entire parcel shall be acquired pursuant to Code

§ 33.1-91. The General Assembly has not authorized the City

of Hampton to delegate to the City Attorney the power to

decide how much of a property owner’s real estate to condemn.

That decision must be made by the City Council and reflected

in its resolution.

Accordingly, I conclude that, in the resolution presently

before us, the City Council for the City of Hampton improperly

redelegated its power of eminent domain to the City Attorney.

For that reason, I would reverse the judgment of the circuit

court and dismiss the petition for condemnation.

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