A short one from the Virginia Supreme Court. In Palmyra Associates, LLC v. Comm'r of Highways, No. 191680 (Dec. 17, 2020), the court upheld the exclusion of evidence about a property's "before" condition in a partial take case, concluding that the proffered evidence of the property's development potential was too speculative. Or, more accurately, that the trial court did not stray beyond its wide discretion to keep the evidence out.
VDOT needed a portion of Palmyra's property for a roundabout. The big question was the damage to the remainder (or "residue") property and its highest and best use. Owner said commercial development; VDOT said existing use.
The owner offered testimony that it intended to develop the property (consistent with the County's general plan), and had drawn up site plans years ago. But it had not secured entitlements, and further government approvals were needed before those plans could come to fruition. The owner had plans, but "[a]s of the date of the take, however, the property remained an unimproved wooded lot." Slip op. at 1. The trial court kept this evidence out.
The Supreme Court affirmed. It didn't conclude the evidence was something that a prospective buyer wouldn't consider ever, only that the trial court didn't abuse its discretion when it kept it out. As we know, when it comes to admitting or excluding evidence, trial courts have a "range of discretion," and the abuse of discretion standard of review is a tough one to overcome on appeal. We suppose if the trial court instead admitted the property owner's evidence, it would be just as hard to overturn on appeal. After all, the owner wasn't simply making up these plans:
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.
Slip op. at 7.
But the Supreme Court concluded that this was more on the speculative side, even though it did not expressly say so. Under the abuse of discretion standard, it didn't have to agree with the trial court that this evidence was too speculative, only find that the trial court wasn't totally off the rails:
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 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.
Slip op. at 7-8.
Palmyra Associates, LLC v. Comm'r of Highways, No. 191680 (Va. Dec. 17, 2020)