PRESENT: Goodwyn, Mims, Powell, Kelsey, McCullough, and Chafin, JJ., and Russell, S.J.
PALMYRA ASSOCIATES, LLC, ET AL.
OPINION BY
v. Record No. 191680 JUSTICE STEPHEN R. McCULLOUGH
December 17, 2020
COMMISSIONER OF HIGHWAYS
FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
Richard D. Taylor, Jr., Judge Designate
The landowner in a condemnation proceeding challenges several rulings below: (1) the
court’s decision to strike the testimony of the owner of the property concerning damage to the
residue of the property; (2) the court’s refusal to admit site plans into evidence; and (3) the
court’s inquiry after the trial whether it should hold a new trial or confirm the value of the take.
For the reasons noted below, we will affirm the judgment of the circuit court.
BACKGROUND
Palmyra Associates, LLC (“Palmyra”) owned 44.048 acres of land in Fluvanna County.
The property is situated at the intersection of Routes 15 and 53. Consistent with the County’s
comprehensive plan, Palmyra intended to develop the property into a commercial development.
Palmyra had site plans drawn up in the decade prior to the take. As of the date of the take,
however, the property remained an unimproved wooded lot.
To improve traffic flow at the intersection of Routes 15 and 53 in Fluvanna County, the
Commissioner of Highways (“VDOT”) decided to upgrade the “T” shaped intersection into a
roundabout. VDOT sought to acquire from Palmyra approximately 7,200 square feet (0.166 of
an acre) in fee simple, 4,500 square feet (0.103 of an acre) for a permanent drainage easement,
and 1,930 square feet (0.0443 of an acre) in temporary construction easements.
The parties could not reach an agreement on VDOT’s offer to purchase the land. VDOT
then recorded a certificate of take on January 7, 2016 and a petition in condemnation on July 1,
2016. Palmyra asked for the appointment of commissioners to resolve the question of
compensation.
Palmyra’s initial expert witness designation stated that David G. Sutton, the co-owner of
the property, would testify that “a one (1) acre pad site on the front portion of the property has a
value of approximately $400,000,” and his “opinion[]” as to “damages to the residue” would
“us[e] . . . $400,000 as the value of a one (1) acre pad site fronting Route 15.” In a supplemental
answer to an interrogatory, Palmyra indicated that Sutton would “opine that the roundabout has
reduced the development potential of the residue by reducing its frontage size and thus
eliminating a fourth building pad,” resulting in damages to the residue in the amount of
$545,000.
Relying on Appalachian Power Co. v. Anderson, 212 Va. 705 (1972), VDOT filed a pre-
trial motion to exclude testimony from the owners of the parcel to the extent it relied on the loss
of a non-existent pad site in estimating the value of the damage to the residue. VDOT argued
that “[a]lthough Palmyra Associates may be able to present evidence that the subject property is
‘suitable’ to being subdivided for commercial pad sites, it is improper to value the subject
property as if it was an actual subdivided one-acre pad site on the date of the take.” The circuit
court held that Sutton could testify, but that he could not offer evidence of damages to the
residue on a per lot basis.
Palmyra also sought to introduce site plans into evidence, which the trial court refused.
Those site plans depicted a proposed commercial development for the property. Refused Exhibit
A consisted of 22 pages of detailed site plans of development prepared and filed with the county
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over 10 years prior to the take. Ex. Add. 2-23. Refused Exhibit B showed a site plan reflecting
changes to Route 15 resulting from another construction project. Refused Exhibit C was an
overlay of the roundabout project (including the planned “fourth leg” entrance) which was
prepared using VDOT’s plan for the roundabout project, overlaid on the site plans depicted in
Refused Exhibits A and B.
The County had not approved these site plans. Sutton testified that the County had
approved “the concept” but had not given approval of the final plan. He also explained that the
County imposed a number of conditions, but, as of the date of the take, Palmyra had not met
those conditions. A significant portion of the property was in a floodplain. Therefore, Palmyra
needed County approval to build on the floodplain. Palmyra acknowledged it may need to
construct a retaining wall to gain the County’s approval. The site plans also showed additional
infrastructure improvements, such as the widening of a road and bridge and the construction of
two entrances.
At trial, Sutton testified that the loss to the residue caused by the taking was $545,000.
When asked how he arrived at that figure, he responded that he “took the frontage acreage,
which is roughly 5.5 acres that [he] had previously valued at $2.2 million, and [the take]
damaged that at twenty-five percent.” Sutton further explained that “we’ve lost significant
development potential across that frontage because of the imposition of the fourth leg of the
roundabout, as well as because the property that was taken reduced our frontage and compressed
where we could develop on that first primary acreage.” After deliberating, the commissioners
returned with a majority award and a minority award. The three commissioners nominated by
Palmyra returned the majority award, including $66,400 for the fee simple acquisition, $37,187
for the drainage easement, $3,544 for the temporary construction easement, and $350,000 for
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damages to the residue, amounting to total just compensation in the amount of $457,131. The
two commissioners nominated by VDOT returned the minority award, including $66,400 for the
fee simple acquisition, $37,187 for the drainage easement, $3,544 for the temporary construction
easement, and $125,000 for damages to the residue, amounting to total just compensation in the
amount of $232,131.
VDOT filed post-trial exceptions to the commissioners’ report. Among other things,
VDOT argued that Sutton’s testimony about damage to the residue must have been based on the
loss of a pad site, in contravention of the court’s pre-trial ruling that such testimony was
inadmissible. VDOT pointed to the fact that, at trial, Sutton estimated the damage to the residue
at $545,000, the same figure as the damages estimate Sutton reached pre-trial based on the loss
of a pad site. VDOT further noted that, at trial, Sutton’s testimony did not supply “any basis for
his conclusion that the development potential of the property was reduced in any way other than
the elimination of a fourth building pad site.” Consequently, VDOT contended, “[t]he only basis
for Mr. Sutton’s opinion that the development potential of the residue was reduced was the
elimination of a fourth building pad site, which the Court previously ruled was improper.” The
circuit court agreed. It concluded that Sutton had testified in contravention of the court’s
pre-trial ruling and his testimony should be stricken.
Following the trial, the circuit court stated that it would “entertain argument” by counsel
“as to whether the Court should” follow one of two approaches: “confirm the award of the take
only, or grant a new trial.” Counsel for VDOT responded that the parties “agree . . . that . . . the
Court should enter a Final Order in this matter setting aside the damage award and confirming
the award for the value of the take, only.” Counsel for Palmyra clarified that while the parties
did not agree on the court’s ruling striking the testimony, “both sides agree to the first of the 2
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options [the court] gave [them].” That option was that “the Court should confirm the award of
the take only” rather than “grant a new trial.”
The circuit court entered a Final Order confirming the commissioners’ award of $107,131
for the take and setting aside the award for damages to the residue. This appeal followed.
ANALYSIS
I. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN EXCLUDING PALMYRA’S
SITE PLANS FROM CONSIDERATION BY THE COMMISSIONERS BECAUSE A NUMBER OF
SIGNIFICANT CONTINGENCIES EXISTED BEFORE THOSE PLANS COULD BE APPROVED.
Palmyra assigns error to the circuit court’s
refus[al] to admit into evidence site plans [the] Landowner had
prepared over 10 years prior to the take showing the development
potential of their property and overlays showing the impact of the
imposition of the fourth leg of the roundabout on the development
potential of their property. 1
“In every eminent domain case involving a partial taking, the measure of damages to the
residue of the property not taken is the difference in the fair market value of the residue
immediately before and immediately after the taking.” City of Virginia Beach v. Oakes, 263 Va.
510, 516 (2002) (quoting East Tennessee Nat. Gas Co. v. Riner, 239 Va. 94, 100 (1990)). “In
ascertaining such damages, both present and future circumstances which actually affect the value
of the property at the time of taking may be considered, but remote and speculative damages may
not be allowed.” Id. For example, when there exists a reasonable probability of a favorable
re-zoning, a prospective buyer and seller would consider that circumstance in valuing the parcel
on the date of the take. Helmick Family Farm, LLC v. Commissioner of Highways, 297 Va. 777,
1
VDOT argues that this assignment of error is procedurally defaulted because Palmyra
failed to file any exceptions to the commissioners’ report at the conclusion of the trial. We
disagree. The development plans were excluded pre-trial and did not inform the commissioners’
report. Palmyra opposed the court’s pre-trial exclusion of the site plans. That is sufficient to
preserve the point for appellate review. See Code § 8.01-384.
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791 (2019). Site plans can similarly be relevant if a prospective willing buyer would recognize
the probability of site plan approval in the near future when determining market value.
A number of our cases demonstrate the range of discretion a trial court can exercise in
determining whether to admit site plans in a takings case. For example, in Lynch v.
Commonwealth Transportation Commissioner, 247 Va. 388 (1994), we held that the court erred
in refusing to admit the site plans proffered by the landowner. Id. at 394. The County had
recommended “the development of Lynch’s property for quality office buildings, up-scale
industrial uses, and a major conference center/office complex with an incidental retail
component.” Id. at 390. Lynch then made plans consistent with the County’s recommendations
to “to develop his land as an office/industrial park, consisting of office buildings and up-scale
industrial space for leasing.” Id. An architectural and engineering firm drafted a Generalized
Development Plan for the industrial development of Lynch’s property. Id. at 390-91. This plat
demonstrated that Lynch’s land was suitable for industrial development prior to the taking of a
portion of the land. Id. at 391.
The circuit court in Lynch excluded three exhibits from evidence: (1) a plat showing the
general development plan with an overlay showing the taking; (2) a revised generalized
development plan, showing development changes Lynch claimed were necessitated by the
taking; and (3) a revised generalized development plan with an overlay showing the impact of
the taking on the potential development of Lynch’s property. Id. at 393.
We concluded that these exhibits should have been admitted into evidence because they
“demonstrated the property’s potential, the adaptability and suitability of the property for its
highest and best use, and the impact of the taking on the remaining property.” Id.
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Conversely, in Wammco, Inc. v. Commonwealth Transportation Commissioner, 251 Va.
132 (1996), we upheld the court’s exclusion of evidence proffered by the landowner to establish
“the costs necessary to adjust the property to its changed condition, as well as the reasonable
potential use of the property at the time of the taking.” Id. at 136. We reasoned that the claims
of damage were “contingent on the improvement of off-site roads in the vicinity of the residue
and the acquisition of property of others to provide access to the site.” Id. at 138.
“[A] trial court’s decision to admit or exclude evidence,” including in eminent domain
proceedings, is reviewed for “abuse of discretion.” Dean v. Board of County Supervisors, 281
Va. 536, 540 (2011); see also Ramsey v. Commissioner of Highways, 289 Va. 490, 495 (2015).
Discretion means a “range of choice” and we will not reverse a trial court’s decision unless the
court’s discretionary decision exceeded the “outermost limits of the range of choice available.”
Reyes v. Commonwealth, 297 Va. 133, 140 (2019) (quoting Lambert v. Sea Oats Condo. Ass’n,
Inc., 293 Va. 245, 253 (2017)). Such a deviation is not present here.
It is worth noting preliminarily that Sutton was permitted to testify about the County’s
comprehensive plan, which contemplated commercial development. He also testified about the
status of the site plans, namely, that the County had approved the plans “in concept” but that they
were subject to certain conditions. Sutton also explained that the property was zoned
commercial in the central part and for its frontage, and the rest of the property was zoned
agricultural.
On the record before us, we are unwilling to hold that the trial court abused its discretion
in excluding the site plans. First, the site plans had not been approved. Although not dispositive,
this circumstance is relevant. Second, although Palmyra asserted that the County had approved
“the concept,” the County had imposed a number of conditions on such approval. As of the date
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of the take, Palmyra had still not met those conditions. Third, the property is situated in a
floodplain, and it was unclear whether Palmyra would have to build a retaining wall or whether,
as Sutton testified, Palmyra could avoid building a retaining wall and instead “complete the fill
. . . by having a toe that goes far enough out.” If so, Palmyra would have needed to “lose a little
land.” The parties also disputed whether, under the site plans proffered by Palmyra, a road and
nearby bridge would need to be widened or a new bridge built, at a cost of around $4 million. At
any rate, to open an undeveloped parcel to commercial development, Palmyra needed an
entrance to its proposed development, whether via a “fourth leg” to the roundabout or some other
means. Palmyra would also need to gain approval for this entrance. Given all of these
circumstances, the trial court did not abuse its discretion in declining to admit the ten-year-old
site plans.
II. THE TRIAL COURT PROPERLY STRUCK SUTTON’S TESTIMONY.
Palmyra also assigns error to the circuit court’s decision to strike, post-trial, Sutton’s
testimony concerning damage to the residue. Palmyra argues that the circuit court erred in
“finding that Mr. Sutton’s testimony had anything to do with damaging the property on a ‘per
lot’ basis.” Palmyra suggests other ways that Sutton might have arrived at the same damages
figure pre-trial and during trial.
The circuit court ruled pre-trial that Sutton could not rely on the loss of a non-existent
pad site in estimating the value of the damage to the residue of the property. Prior to trial, Sutton
had based his valuation on the loss of “a fourth building pad” and he estimated the damages to
the residue in the amount of $545,000. At trial, Sutton testified that the loss to the residue
caused by the taking was $545,000 – the very same figure he employed pre-trial. When asked at
trial how he arrived at that figure, he responded that he “took the frontage acreage, which is
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roughly 5.5 acres that [he] had previously valued at $2.2 million, and [the take] damaged that at
twenty-five percent.” Sutton further explained that “we’ve lost significant development potential
across that frontage because of the imposition of the fourth leg of the roundabout, as well as
because the property that was taken reduced our frontage and compressed where we could
develop on that first primary acreage.”
Sutton’s testimony concerning lost “development potential” was necessarily rooted in a
lost “pad site.” This hypothetical pad site depended on contingent and speculative site plans —
plans the trial court properly excluded. The property’s development potential was uncertain
because the County had imposed certain conditions, which Palmyra had not satisfied; the
property was situated in a flood plain, which would necessitate adjustments; and the property
would need additional infrastructure changes to be developed as a commercial site.
Consequently, on these specific facts, the trial court did not err in striking Sutton’s testimony. 2
III. THE DOCTRINE OF INVITED ERROR FORECLOSES RELIEF ON PALMYRA’S CLAIM THAT
THE TRIAL COURT “PUT THE PARTIES ON TERMS.”
In its remaining assignment of error, Palmyra asserts that “[t]he trial court erred in
putting the parties on terms of either the court confirming the value of the take or ordering a new
trial.” Code § 25.1-233(A) provides that “[t]he report of the body determining just compensation
may be confirmed or set aside forthwith by the court.” A circuit court has “the same power over
2
Justice Harrison, writing for three justices in Appalachian Power Co., 212 Va. at 711,
wrote that a landowner may not “treat[] the affected land . . . as divided into lots when in fact it is
undeveloped acreage.” Appalachian Power Co., 212 Va. at 711. A majority of the Court
concurred in the result while stating that it did “not accept all the views expressed in [Justice
Harrison’s] opinion.” Id. at 714. Based on our resolution of this case we do not examine
whether and if so, to what extent, a landowner may offer evidence that the property’s fair market
value would be affected by a reasonable probability that land would be divided into lots. Cf.
Helmick Family Farm, LLC, 297 Va. at 791.
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the reports of the body determining just compensation as it . . . has over verdicts of juries in civil
actions.” Code § 25.1-233(B).
After the court struck Sutton’s testimony, it informed the parties that it would “entertain
argument” as to whether the trial court should “confirm the award of the take only, or grant a
new trial.” Palmyra did not object at that time that the trial court was “putting it on terms.”
Instead, it agreed that the circuit court should confirm the award rather than grant a new trial.
The invited error doctrine precludes a litigant from “approbating and reprobating” – that is
“invit[ing] error, as the [litigant] … did here, and then [attempting to take] advantage of the
situation created by his own wrong.” Cohn v. Knowledge Connections, Inc., 266 Va. 362, 367
(2003). The invited error doctrine bars us from considering this assignment of error.
CONCLUSION
For the foregoing reasons, we will affirm the decision of the trial court.
Affirmed.
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