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Matoaka school site was illegally seized

The Virginia Gazette
November 11, 2006
By Megan Zirkle

SPOTSYLVANIA — James City may have to pay thousands in back rent to the Armistead family after a judge ruled Wednesday that the county improperly took 44 acres for Matoaka Elementary. The county has likely absorbed thousands more in unnecessary legal costs.

The upside is that construction of the school is expected to continue uninterrupted. Building is on a tight deadline, and further delays could mean the school won't open next September.

Circuit Judge Ann Simpson told attorneys representing James City that “the locality must fully comply when exercising eminent domain.” The ruling was a victory for attorney Henry Howell III, who is representing Travis Armistead Jr., one of four owners of the property.

Simpson's ruling cited three errors:

* Each property owner did not receive a bonafide offer before the land was condemned.

* A title examination was not properly conducted to accurately identify all property owners.

* Not all landowners were notified before the county withdrew the land from the Agricultural & Forestal District.

Attorney Francis “Sandy” Cherry of Kaufman & Canoles represented James City. He argued that the county did make offers for the property in the fall of 2005, before beginning eminent domain proceedings. Problem was, the county made the offer through a commercial Realtor who was initially instructed not to identify the county as the buyer, or divulge what the land would be used for.

Robert Singley testified that he was hired by the county to negotiate and enter a purchase contract with Travis Armistead for the land. The offer at the time was $540,000, nearly $100,000 more than the appraised value. This, Cherry claimed, was part of the entire condemnation process.

Armistead pressed Singley for the identity of the buyer, and eventually Singley revealed the buyer because he was “authorized” to do so. The deal never materialized, and the county took steps to condemn the land.

Simpson's ruling means workers have been working improperly on the site since January. County attorney Leo Rogers said Thursday that the landowners will likely ask for compensation for the use of the property between January and October.

Errors in the process to take the land date back to December 2005, when the eminent domain process began. The Board of Supervisors voted to seize the land, but documents listed only one owner — Hanson.

It turns out the Hanson trust owns only half the land. The other 50% belongs to Travis Armistead and his sisters, Sally Armistead Wilson and Mary Hogge. All three are co-trustees and equal beneficiaries.

Cherry noted that Hogge and Wilson had agreed to sell their interest in the parcel to the county. Travis Armistead and the Hanson trust, however, would not.

James City and the Armisteads have tangled over land before. The site for the desalination plant off Route 5 was seized by the county through eminent domain. Travis Armistead contested that action as well, with Howell representing him. Howell's appeal of the desal case went to the Virginia Supreme Court, where the county won.

State law requires an appraisal and title examination before negotiations are held to condemn property. Landowners are also entitled to a copy of the documents.

Simpson ruled that James City did not comply. Documents submitted as evidence show that the county sent out condemnation letters before the property was appraised late in 2005.

What may save the school site is a second condemnation of the same property begun last month. The unusual step served as a fail-safe should Armistead win in court.

In a follow-up Thursday night, Howell claimed the second condemnation is also invalid. He insisted the county once again failed to give property owners proper notice before withdrawing some 40 acres of land from the AFD.

Reached at home Friday morning, Rogers said Howell's assertions have never been submitted “in a formal or legal manner that have given us time to respond.” Rogers added that he was confident that the second certificate of take is valid.

Last week the Planning Commission approved the withdrawal of the school site for a second time. Commission members Don Hunt and Jim Kennedy dissented, suggesting some county officials are fed up with the mess.

Kennedy called the land seizure a “disaster” and added, “this makes us look bad as a community, a county and a government.”

Supervisor chairman Bruce Goodson said Thursday that the situation is “difficult since I value private property rights.” He considered the ruling a “setback,” but was happy that the court conceded the building of the school.

“Only the exact price and any rental still remains to be determined,” Goodson noted.

County administrator Sandy Wanner was also optimistic on the future of Matoaka.

“The fact that the ruling does not impede the construction of Matoaka nor the planned opening is important to the county and the schools,” Wanner said. “Naturally, eminent domain cases are always difficult for a variety of reasons and this case had some unintended consequences.”