As part of a federally-funded highway project, the WV DOT took a portion of parcels belonging to several property owners. The partial takings ended up landlocking one tract. So the DOT proposed building an access road to that parcel. The owners didn’t think this was the best idea, because “maintaining a road in that area would be unreasonably costly” because the area is steep and in a slide area. 

The owners counterclaimed, seeking an order to compel the DOT to take this landlocked track as an “uneconomic remnant” under the Uniform Relocation Act, which defines that term as “a parcel of real property in which the owner is left with an interest after the partial acquisition of the owner’s property and which the head of the Federal agency concerned has determined has little or no value or utility to the owner.” 42 U.S.C. § 4651(9).

The trial court concluded the jury should determine whether the remainder tracts were uneconomic remnants, and permitted both the DOT and the owners to present evidence on the subject. But the court could not figure out whether the jury should hear evidence of the DOT’s offer to construct an access road, nor could it decide whether the DOT could mitigate in lieu of paying money damages. So it asked the WVa Supreme Court to answer certified questions. 

In West Virginia Dep’t of Transportation v. Echols, No. 18-0226 (Apr. 12, 2019), the court answered those certified questions (slightly reformulated to state the issues the court thought relevant), concluding:

  • The statutory language quoted above delegates the discretion to make the call about what is or isn’t an uneconomic remnant solely to “the head of the Federal agency concerned,” who is called upon to determine whether the remnant property “has little or no value or utility to the owner.” Slip op. at 16 (“We find no ambiguity in the operative provision of [the statute] that places the duty of determining whether a parcel of real property is an uneconomic remnant, i.e., it has little or no value or utility to the owner, exclusively upon the head of the acquiring agency.”). So whether the owner has any use for the property is “is a question to be determined exclusively by the Commissioner of Highways,” not the courts. Id. at 17. The Commissioner gets to decide whether you have use for it. Got it.  
  • Can the DOT build an access road to mitigate the landlocking, or must it pay money compensation? It can build the road, according to the court. The owners are entitled to monetary compensation for the losses resulting from the severance of their properties, but that does not affect the DOT’s ability to “mitigate damages to a residue for which it will be required to provide such compensation.” Slip op. at 21. The mitigation is considered a special benefit of the taking, which are under WVa law, offset against the compensation owed. Id. at 22. But it must obligate itself to do so, not merely plan it. Id. at 27 (“The foregoing authorities plainly establish that the DOH may mitigate severance damages by restoring public road access without the agreement of a landowner so long as the DOH is somehow obligated to construct the road. A mere promise to do so is insufficient.”). 
  • Finally, the court concluded that the DOT could not be compelled to take the remnant tract, a portion it didn’t need for the highway project. The DOT had the authority to voluntarily purchase it, but if it decided it didn’t want to, the enabling statute doesn’t give it the authority to take. Thus, it cannot be forced to take.   

Overall, this case confirms that eminent domain delegates a lot of power to the government, and that courts are very reluctant to step in an decide what must be taken. 

West Virginia Dep’t of Transportation v. Echols, No. 18-0226 (W. Va. Apr. 12, 2019)