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VDOT Sues Day Care—and Taxpayers Get Hosed

Richmond Times-Dispatch
November 13, 2009
By A. Baront Hinkle

The Leave It to Beaver Child Care center occupies a modest building on German School Road in working-class Richmond. It's a short walk south of a mixed-martial-arts studio and a Food Lion, and a short walk north of a tidy apartment complex and a few houses that either have been boarded up, or look as though they soon might be. Most of the parents who bring their children to the owner, Wanda Beavers, for daytime care are single black moms.

Maybe that made the commonwealth figure it could roll right over her.

Two years ago, as Angela Pellerano of WTVR first reported, the City of Richmond asked VDOT to acquire part of Beavers' property -- about half the front yard -- so German School Road, which could use widening, would get some. VDOT offered the underwhelming sum of $6,683. Beavers made a counter-demand: $30,000.

So VDOT took her to court, filing for condemnation under the state's eminent-domain power. It wound up losing badly. A jury ordered VDOT to pay Beavers and her business partner -- her mother -- $52,216.

The agency should have quit while it was behind. Instead, it has appealed to the Virginia Supreme Court. So far, VDOT has shelled out almost $61,000 in attorney and appraiser fees. Why isn't the attorney general's office, which is a shop full of house lawyers for the state, handling the case? Because there are too many condemnation cases and not enough lawyers to do the job. For decades, condemnations routinely have been farmed out to attorneys in private practice. Even if VDOT were to win, the case already has cost the public more than twice what Beavers asked for. If it loses, the state will be out roughly four times what it could have gotten the property for by paying Beavers' asking price.

The state is hanging its hat on a flimsy reed. In 1995, a previous owner received a special-use permit from the city to turn what had been a church into a day care. The terms included a reservation of dedication to the city's director of public works. VDOT says this amounts to a promise to surrender the land, which renders the property worthless, so it shouldn't have to pay more than a pittance.

But Circuit Court Judge Ernest P. Gates III didn't buy that argument, for several reasons. The most salient one: The City Council didn't have the power to impose such a restriction in the first place. Besides that, the city never invoked the dedication -- as court transcripts show. (Gates: "So you're not claiming that there's been a dedication?" Attorney representing VDOT: "No . . . .The dedication hasn't taken place.") VDOT says it is fighting the case on principle, seeking guidance about how to appraise land parcels in circumstances similar to those in the Beavers case. Really? How often do these seemingly unusual circumstances turn up?

While the lawyers representing VDOT are raking in legal fees, Wanda Beavers' legal costs also are stacking up. If she ultimately prevails, she'll probably get only a modest slice of the jury award. If she loses, she'll get even less. In either scenario, both Beavers and the taxpayers get hosed.

Four years ago, dissenting in the infamous Kelo case, Supreme Court Justice Sandra Day O'Connor warned that the effects of that eminent-domain ruling would not be random. It would amount to Robin Hood in reverse: Big corporations and powerful political interests would stomp all over the little guy, evicting small fry to bring in richer honchos who would pay more.

But the Beavers case shows how the little guy can get stiffed even when the state is using the power of condemnation for legitimate purposes -- in this case, widening a public right-of-way. Nobody, not even Wanda Beavers, disputes the rationale for taking her property. But the Constitution stipulates that when the government takes your land, it owes you just compensation. There doesn't seem to be much justice -- let alone common sense -- in the Beavers case. In the wake of the Kelo ruling, Virginia, like many other states, enacted reforms that were intended to rein in eminent-domain abuse. It would seem the state still has some more work to do in that regard.

If we could read the secret history of our enemies, we should find in each man's life sorrow and suffering enough to disarm all hostility. --Henry Wadsworth Longfellow