Summary
finding no violation of § 9505 due to long history of negotiations, including many contacts and visits with the property owners and in-person deliveries of the appraisal report, plans, and drawings
Summary of this case from State v. Middletown Dev., Inc.Opinion
C.A. No. 08C-09-065 JAP.
Submitted: December 22, 2008.
Decided: April 3, 2009.
Michael W. Arrington, Esquire, Wilmington, Delaware, Attorney for Plaintiffs.
Richard L. Abbott, Esquire, Hockessin, Delaware, Attorney for Defendants.
MEMORANDUM OPINION
Ronald and Mildred Teague live on almost an acre of land located on the western side of Bear-Christiana Rd. (more commonly known as Route 7) near where it intersects with Delaware Route 273 in Christiana. DelDOT has instituted condemnation proceedings to obtain a small portion of the Teagues' property as part of a project to improve Route 7. Presently before the Court is the State's application for an order of possession and the Teagues' motion to dismiss. For the reasons which follow, DelDOT's application is GRANTED and the Teagues' motion is DENIED.
Background
In addition to the Teague's home, there is a building on the parcel which Mr. Teague uses to operate his business, Christiana Auto Parts. The State seeks to condemn 2,171 square feet, amounting to less than six percent of the Teague parcel, located on the front of the Teague parcel for use connected with a redesign and renovation of Route 7. Neither of the buildings on the Teague parcel are located on the portion to be condemned. There are, however, four oak trees, asphalt paving and a sign advertising the presence of Christiana Auto Parts on the portion subject to condemnation, and the State's offer includes compensation for those items.
The heart of the controversy seems not to be the value of the land taken from the Teagues, but rather the redesign of Route 7. Currently, Mr. Teague's customers coming from the south make a left turn on Route 7 directly into Christiana Auto Parts. The redesigned Route 7 includes a four foot wide median divider in front of the Teagues property, which will make it impossible for northbound drivers to make a left hand turn directly into Christiana Auto Parts. Instead they will be required to travel 700 feet farther north, make a U-turn at the intersection with Route 273 (which will be controlled by a traffic light) and drive back south to the store entrance. Mr. Teague contends that the large majority of his customers use northbound Route 7 to approach his store and that his business will be ruined if they cannot turn directly into the premises. The overwhelming evidence at the trial demonstrated it was not feasible for DelDOT to provide the Teagues with a dedicated left hand turn for at least two reasons. First, redesigned Route 7 will have two lanes of traffic in both directions, thus forcing northbound drivers attempting to turn left into the Teagues' property to cross two lanes of southbound traffic. According to the plaintiff's witnesses, this creates a danger not only for the Teagues' customers but also for the motorists heading southbound on Route 7. Second, a dedicated turn lane for the Teague property would dangerously shorten the northbound left turn lanes planned for Route 7 where it intersects with Route 273. The northbound left turn lane approaching Route 273 needs to be long enough to accommodate stopped vehicles waiting to make a left turn onto Route 273 and provide sufficient space behind those stopped vehicles for drivers entering the left turn lane to decelerate and stop. It is unrebutted that it would be impossible to construct a turn lane sufficiently long if there were a dedicated turn lane for the Teagues.
There is an at-grade concrete median strip on Route 7 in front of the Teague's property. There is some question whether northbound drivers can legally turn left across that median. Given this Court's resolution of the pending applications, it is not necessary for the Court to resolve this question.
The Teagues' Contentions
The Teagues raise several objections to the State's motion for an order of possession. They contend that:
1. The State did not proceed by motion as required by the rules of this Court when it sought an order of possession.
2. The State has not established any public necessity for the Teagues' property in order to construct a road project within a reasonable time.
3. The State did not make a good faith offer as required by the Real Property Acquisition Act because it did not take into account the rezoning of the parcel to a commercial zone.
4. The State has used the wrong valuation method in determining the compensation to offer the Teagues and therefore have violated its statutory duty to make a good faith offer.
5. The State did not describe the public use in the manner required by the RPAA.
6. The State did not afford the owners an opportunity to meet with the appraiser at the site as required by the RPAA.
Response, ¶ 11.
Id., ¶¶ 9,10.
Analysis
The General Assembly imposed on DelDOT the duty to establish a "permanent system of state highways along the route or routes of travel as will accommodate the greatest needs of the people of this State." To this end, DelDOT is empowered to "lay out, open, widen, straighten . . . reconstruct and maintain any state highway." DelDOT is authorized to exercise the State's power of eminent domain in order to accomplish this.DelDOT's authority to exercise the State's power of eminent domain is not without its limits, however. In 1972 the General Assembly enacted the Real Property Acquisition Act in order that the State could secure funding under the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. The RPAA's purpose, as described by the Superior Court is:
"to encourage and expedite real property acquisitions by agreements with owners, to assure consistent treatment of property owners, to promote public confidence in land acquisition practices, and to avoid litigation and thereby relieve congestion in the courts."
58 Del. Laws c. 413.
Id. The preamble to the legislation recites that "continued eligibility of the State of Delaware for various types of Federal aid is made contingent upon [passage of legislation such as the RPAA]."
42 U.S.C. § 4601, et seq. The federal statute which spawned Delaware's RPAA contains guidelines which are worded similarly to the RPAA. However the federal statute does not create any rights in property owners. United States v. 410.69 Acres of Land, 608 F.2d 1073, 1074, n. 1 (5th Cir., 1979) (per curiam)("that provision is no more than a statement by Congress of what it perceives to be the preferred method of dealing with landowners when the Government wants to acquire their land"); Paramount Farms, Inc. v. Morton, 527 F.2d 1301, 1306 (7th Cir. 1975) (statute's "language, legislative history, judicial decisions and policy considerations all compel the conclusion that Congress never intended to permit judicial review of agency action taken or omitted pursuant to guidelines"); Portland Natural Gas Transmission System v. 4.83 Acres of Land, 26 F. Supp.2d 332,336 (D.N.H. 1998) (statute "does not create any substantive rights and cannot be cited as an impediment to an eminent domain action"); Tennessee Gas Pipeline Co. v. New England Power, C.T.L., Inc., 6 F.Supp.2d 102, 104-5 (D.Mass. 1998) (statute "merely sets forth policy guidelines, creating no rights whatsoever in condemnees").
City of Dover v. Cartanza, 541 A.2d 580, 582 (Del.Super. 1988).
The primary means of accomplishing the Act's goals is its emphasis on acquiring real property through negotiation.
29 Del. C. § 9505(1) ("Every reasonable effort shall be made to acquire expeditiously real property by negotiation").
The RPAA sets out fifteen guidelines which, at first blush, might appear to be mandatory requirements imposed upon the governmental agency seeking to acquire real property. In a scholarly opinion, however, then President Judge Ridgley concluded that these guidelines are neither mandatory nor jurisdictional and, in appropriate cases, the acquiring agency may still condemn property despite its failure to strictly comply with those guidelines. This Court concluded in City of Dover v. Cartanza that if the acquiring agency has deviated from those guidelines:
The guidelines are prefaced by the language "[t]he agency shall comply with the following policies." 29 Del. C. § 9505.
Cartanza, 541 A.2d at 583.
I conclude that the RPAA guidelines are directory rather than mandatory. Therefore, noncompliance may in certain circumstances be excused. Noncompliance is not a jurisdictional defect requiring automatic dismissal whenever it is raised. It is instead a defense or objection to the taking which shall be deemed waived if not presented.
If noncompliance exists, then the agency must demonstrate a valid excuse for its failure to follow the RPAA's policies. Excuses include the agency's good faith efforts to comply with the policies or a showing that compliance would have been futile.
Id. at 583 (citation and footnote omitted).
Cases following Cartanza have reiterated the necessity of the non-complying agency showing a good faith mistake or futility in compliance.
E.g., State v. Amin, 2007 WL 1784187 (Del.Super. April 26, 2007); State v. Dorzback, 1991 WL 89887 (Del.Super. May 28, 1991).
The Court believes there is a further exception which excuses the failure to strictly comply with section 9505. When the departure from the guidelines does not frustrate the purpose of the Act and has no discernable impact on the course of the negotiations, the Court will excuse the agency's failure to strictly comply. The traditional remedy for an agency's failure to adhere to section 9505's guidelines is to dismiss the condemnation suit without prejudice with leave for the agency to begin the acquisition process anew. The Cartanza court concluded that "Given the purposes of the RPAA, the appropriate remedy to ensure compliance with its guidelines is dismissal without prejudice. Should [future] good faith efforts to comply with the RPAA not result in an agreement between the parties, the City may commence another condemnation action." In cases where there has been a material departure from the guidelines which could have adversely affected the negotiation process, this remedy makes sense. That remedy, however, is too extreme in instances where the Court is satisfied that the departure from the guidelines had no impact on the negotiations. In such cases, requiring the agency to start over would be fruitless because, after the meaningless departure from the guidelines is corrected, the same negotiation impasse will invariably result. It is well settled that the law will not require the performance of a useless act, and this Court is unwilling to require an acquiring agency to undertake such a useless task in these instances. Consequently, if this Court is satisfied that the departure from the RPAA guidelines had no impact on the negotiations and did not otherwise frustrate the purpose of the RPAA, it will excuse that departure.
See Cartanza, 541 A.2d at 584; Dorzback, 1991 WL 89887, at *4.
Manganaro v. Stover Builders, Inc., 1981 WL 376970 (Del.Super. July 27, 1981); Lee Builders, Inc. v. Wells, 92 A.2d 710, 714 (Del. Ch. 1952).
The exception to the RPAA guidelines recognized here is similar to the familiar harmless error rule. The United States Supreme Court has observed that harmless error rules "serve a useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result in any way." The harmless error rule is frequently applied in both civil and criminal litigation and indeed it is imbedded in the rules of the courts of this state. This Court can see no justification for carving the harmless error doctrine out of our jurisprudence when it comes to application of the RPAA.
Chapman v. California, 386 U.S. 824, 827 (1967)
E.g., Superior Court Civil Rule 61; Court of Chancery Rule 61. See also D.R.E. 103(a) ("Error may not be predicated upon [an evidentiary] ruling . . . unless a substantial right of a party is affected").
Finally, this is not a marked extension, if any extension at all, of the rule announced in Cartanza. As mentioned previously, then President Judge Ridgley wrote in that case that "futility" would excuse strict compliance with the RPAA. "Futility" can be fairly characterized as meaning there is no adverse impact on the negotiations. Thus the Cartanza court recognized, implicitly at least, that the absence of adverse impact on the negotiations will excuse strict compliance with the RPAA.
The Court now turns to the Teagues' contentions.
1. There is no procedural bar to the State's application
The Teagues contend that DelDOT is not entitled to an order of possession because it did not proceed by motion. They point out that DelDOT has chosen, instead, to proceed by a document entitled "Notice of Intention to Take Possession." This contention warrants only scant attention.
The premise underlying defendants' argument — that plaintiff incorrectly proceeded with a "Notice of Intention to Take Possession" — is mistaken. The rules of this Court require "10 days written notice of intent. . . ." Super. Ct. Civ. R. 71.1. Consequently, the title DelDOT affixed to its submission is appropriate.
At the outset the Court notes that the title DelDOT has chosen to affix to its submittal is appropriate. The rules of this Court in condemnation proceedings require "10 days written notice of intent [to take possession]." The title selected by DelDOT is consistent with this. Moreover, the Court's rules are to be "construed and administered to secure the just, speedy and inexpensive determination of every proceeding." This matter has been litigated in precisely the same manner as it would have been if the State had titled its submittal a "motion" and the Teagues do not argue that they have been prejudiced in any way by the purported misnomer. In the absence of any prejudice to the Teagues, the title to DelDOT's submittal is of no moment to the Court. Accordingly, the Teagues' argument is rejected.
Super. Ct. Civ. R. 71.1.
Super. Ct. Civ. R. 1.
2. The State has established a public purpose for the project
The Teagues argue that the proposed taking is not for a valid public purpose. There is a rebuttable presumption that the proposed taking is for a valid public purpose, which in order to overcome, the Teagues must make a clear showing of fraud, bad faith or gross abuse of discretion. This can be a daunting task for a party challenging the proposed construction of a public highway. Indeed, the record is devoid of any such evidence and for this reason alone defendants' argument fails.
State v. 0.62033 Acres of Land in Christiana Hundred, 110 A.2d 1 (Del.Super. 1954), aff'd, 112 A.2d 857 (Del. 1995).
See Woodwerx, Inc. v. Delaware Department of Transportation, 2007 WL 927943, at*2 (Del.Supr. Mar. 29, 2007) (service road "served a valid public purpose as a matter of law").
It is worth noting, however the evidence shows that, contrary to fraud, bad faith or abuse of discretion, there is a clear public purpose as to the project in general and the manner in which it impacts the Teagues in particular. The unrebutted evidence shows that the State anticipates a greatly increased use of Route 7 in the near future. Currently about 26,000 vehicles use the pertinent stretch of Route 7 each day, and the State estimates that daily use by 2025 will rise to roughly 43,000 vehicles. The Court finds, therefore, that the proposed widening of Route 7 has a legitimate public purpose. As noted previously, the primary bone of contention with the Teagues is that northbound vehicles will no longer be able to make a left turn directly into their auto parts store. As discussed above, the unrebutted evidence is that safety considerations require extension of the Route 7 left turn lane onto Route 273 and that the extension of this lane will preclude direct turn access onto the Teague property. That evidence also shows that even if it were feasible to shorten the left turn lane onto Route 273, it would be unsafe to permit left turns at the Teague property across the new two lane southbound Route 7.
In short, there is no evidence of fraud, bad faith or abuse of discretion and therefore this Court accepts the State's determination that this project serves a public purpose.
3. The State made a good faith effort to negotiate with the Teagues
The record demonstrates that the State made a good faith effort to negotiate. Mr. Teague testified that at a 2003 public meeting he was aware that a median barrier would be constructed on Route 7. In both 2003 and 2004 DelDOT told Mr. Teague that it could not, and would not, include a northbound left turn into his property. Hence, Mr. Teague knew even before negotiations began that the left hand turn he sought was not a negotiable item.
DelDOT made reasonable efforts to negotiate with the Teagues. William Roe delivered in person the appraisal report along with DelDOT's offer to Mr. Teague on April 29, 2008. Thereafter, Mr. Roe had contact with the Teagues or their prior counsel on the following dates as part of DelDOT's effort to negotiate the compensation with the Teagues:
The Court considers only efforts to negotiate after the offer was delivered to the Teagues.
• 4/29/08 — Offer made in person to property owners. Teague response — insisted on left in/left out or business will close.
• 5/8/08 — follow up visit with Mr. Teague to go over results of research in response to questions/comments during initial meeting:
• 31 Auto Parts houses in NCC with 19 having a left in/left out. 6 of 19 no impact with no right in/no right out.
• Project Management — left in/left out unsafe. The left in/left out does not exist now. Anyone turning into the Auto Parts business, over the median, is breaking the law. The median has been placed there to direct traffic, keeping it on the asphalt only.
• U-turn at Route 7 and SR 273 option now and will remain as an option when project constructed.
• 5/22/08 — follow up visit with Mr. Teague. Mr. Teague not satisfied with valuation. Mr. Teague indicated he would hire an appraiser to review the DelDOT appraisal. He also will hire an attorney to review the documents. He asked for a set of plans. Delivered plans on this same date.
• 6/4/08 — follow up visit with Mr. Teague. He has not hired an appraiser, did hire an attorney.
• 6/18/08 — follow up visit with Mr. Teague. He has not hired an appraiser. He did visit the comparable sales in the appraisal report — not satisfied with the comparable sales in the appraisal but did not offer any refuting information other than he is not satisfied with comparable sales in the appraisal.
• 6/18/08 — follow up visit with Mr. Teague. Mr. Teague not in.
• 6/24/08 — follow up visit with Mr. Teague. Nothing new.
• 6/26/08 — Mr. Teague's attorney (William Bailey) called requesting project plans/drawings.
• 7/2/08 — follow up visit with Mr. Bailey to drop off project plans/drawings.
Thomas Nickel of DelDOT also contacted the Teagues on July 10, 2008 in an effort to resolve the impasse.
DX-7, DX-6.
In contrast to DelDOT's efforts, the Teagues never submitted a counteroffer to DelDOT nor did they ever provide a rationale to DelDOT why their property was worth more than DelDOT's offer. Indeed never obtained their own appraisal of their property. Under these circumstances, the Court is satisfied that DelDOT has more than fulfilled its obligation to negotiate in good faith with the Teagues.
This Court's opinion in State v. Amin resembles in some respects the case-at-bar and therefore warrants discussion. In that case the owner of property to be partially taken by DelDOT complained about limitations on access to his property caused by a highway redesign. The State and the owner negotiated for several weeks about alternative designs which would increase the owner's access. These negotiations lured the owner into not retaining his own appraiser to value the land to be taken. At some point the State abruptly instituted condemnation proceedings without telling the owner that design modifications were off the table. This Court concluded that under those circumstances the owner was misled during the negotiation process and, therefore, the State failed to negotiate in good faith as required by the RPAA.
1995 WL 717407 (Del.Super. Nov. 22, 1995).
Amin is distinct in critical respects. The Court finds here that the Teagues were never misled into believing that left turn access into their property was "on the table" for discussion. The Court credits the testimony of Ms. Hastings that Mr. Teague was told as early as 2003, and consistently thereafter, that it was not feasible to provide him with left turn access. Further, unlike Amin, there is no evidence that DelDOT ever negotiated about left turn access with the Teagues' property; indeed, the undisputed evidence shows that from the outset DelDOT was convinced that such left turn access was not feasible. Finally, Mr. Teague's testimony shows that the reason they failed to hire their own appraiser had nothing to do with being misled by DelDOT, but rather was attributable to the fact "I didn't have the zoning straightened out." The Court concludes, therefore, that Amin does not require it to find that DelDOT failed to negotiate in good faith.
A handwritten note in DelDOT's negotiation record indicates that on July 10, 2008 a negotiator advised Mr. Teague "I would talk to Shante about left in will call back." DX 6. On July 14, according to another note, the negotiator "[a]dvised left in/out cannot happen, will not be constructed as part of our project." Id. This, standing alone, might suggest that Mr. Teague was not told until the last moment that design modifications were off the table. In taking into consideration all of the evidence, however, the Court concludes that the Teagues were aware that a left turn into the property was never a negotiable item.
Rough tr. at 65.
4. DelDOT made a good faith offer.
The Teagues assert that DelDOT failed to make a good faith offer as required by the RPAA because it utilized the wrong valuation technique. They contend that DelDOT should have used the "before and after" appraisal method, but instead employed an inappropriate method known as the strip valuation method. The undisputed evidence convinces this Court, however, that under the circumstances of this case DelDOT has made a good faith offer to the Teagues.
It is undisputed that DelDOT's appraiser used the strip valuation method when appraising the Teagues' property. Under this method, the appraiser estimates the value of the entire property (less improvements) and calculates the value of the portion to be taken on the basis of the ratio of the size of the portion to be taken compared to the size of the entire parcel. For example, assume a one acre parcel is valued at $50,000 and the State desires to take 10% of that parcel for a highway project. Applying the strip method of appraisal, the value of the portion to be taken is 10% of $50,000, or $5,000.
The Teagues strenuously argue that DelDOT was required by law to apply a different valuation method known as the "before and after" method. This method requires determining the value of the entire parcel before the taking and the value of the remaining parcel after the taking. The difference between the two is the compensation to which the landowner is entitled. It first received judicial approval in the Delaware courts in 1952 when then Judge Herrmann employed it in State v. Morris, and ever since then "[j]udicial adherence to the "Difference Between the Fair Market Value of the Property Before and After the Taking" has been steadfast in our law."
93 A.2d 523 (Del.Super. 1952).
State v. Hawkins, 1995 WL 717407, at *2 (Del.Super. Nov. 22, 1995); see, e.g., Acierno v. State, 643 A.2d 1328 (Del. 1994); State ex rel Secretary of the Department of Transportation v. ECR Properties, Inc., 2004 WL 693001 (Del.Super. Mar. 25, 2004).
In evaluating the Teagues' argument it is critical to keep in mind the measuring stick to be used. The RPAA provides that "[b]efore the initiation of negotiations for real property, an amount shall be established which it is reasonably believed is just compensation therefore, and such amount shall be offered for the property." Therefore the issue here is not the final valuation of the Teagues' property, but rather whether DelDOT has made a good faith offer.
Dorzback, 1991 WL 89887, at *3 (Del.Super. May 28, 1991) ("Any questions of valuation are not appropriate at this stage [order of possession] of the action").
The evidence shows that DelDOT made a good faith offer. DelDOT offered testimony that it chose to employ the strip method here because the before and after method would have yielded a negligible diminution in the value of the remainder of the parcel which is to be retained by the Teagues. In other words, according to DelDOT's evidence, utilization of the "before and after" method in this instance would have resulted in an offer near zero to the Teagues. The defendants offered no evidence to rebut this testimony and thus the Court accepts it as true. Given that DelDOT has opted to use the valuation method more generous to the Teagues, this Court finds that it has satisfied its obligation to make a good faith offer despite its decision to eschew the "before and after" method here.
5. DelDOT provided sufficient notice of its intent to exercise its power of eminent domain.
The RPAA requires that any agency proposing to exercise its power of eminent domain provide a public description of that use in at least one of three methods prescribed by that statute. Defendants contend that DelDOT has failed to comply with this requirement, but the uncontradicted evidence shows that DelDOT satisfied it by conducting public hearings well in advance of the condemnation.
In 2005 the General Assembly added the following to the RPAA:
Notwithstanding any other provision of law to the contrary, the acquisition of real property through the exercise of eminent domain by any agency shall be undertaken, and the property used, only for the
purposes of a recognized public use as described at least 6 months in advance of the institution of condemnation proceedings:
a. In a certified planning document;
b. At a public hearing held specifically to address the acquisition; or
c. In a published report of the acquiring agency. This paragraph shall not apply to the obtaining of right-of-ways or easements by an agency for public utilities, such as sewer, water, or electric.
29 Del.C. § 9505(15).
The uncontradicted evidence shows that DelDOT complied with this requirement by conducting not one, but two, public meetings more than six months before the institution of these proceedings. Mr. Teague acknowledged having attended these meetings, one in 2003 and the other in 2004, at which time proposed modifications to Route 7 were discussed. He agreed that he was aware from these meetings that a portion of his property would be taken as part of the proposed project.
It is true that the events in 2003 and 2004 were called "meetings" by DelDOT instead of "hearings." But the difference in nomenclature has no significance. It is undisputed that information was presented to the public on the nature and scope of the project and acquisitions. It is likewise undisputed that members of the public, including Mr. Teague, were given an opportunity to voice their opinions and present any objections they had. Assuming, without deciding, that DelDOT was also required by the RPAA to provide information about the proposed raised median on Route 7, the Court finds that it did so at these meetings. A slide shown at the 2003 meeting contains the statement "Due to safety concerns, a raised median is required between SR 273 and Christiana Meadows." Advantages to the raised median were displayed on the same slide. In short, the Court concludes that the 2003 and 2004 meetings conducted by DelDOT satisfied the RPAA. 6. DelDOT and its appraiser have materially complied with the obligation to meet with the owner
Mr. Teague acknowledged that he discussed the raised median and its alleged impact on his business with DelDOT officials at the meetings.
DX-9. This encompasses the portion of Route 7 on which the Teagues' property is located.
DelDOT also points to publication of certain planning documents as evidence of its compliance with the RPAA. Because of the Court's conclusion that the public meetings satisfied the Act, it is unnecessary for it to consider this argument.
The Real Property Acquisition Act provides that "the owner or the owner's designated representative shall be given an opportunity to accompany the appraiser during an inspection of the property. . . ." The Teagues contend that this did not occur here and therefore the complaint should be dismissed.
29 Del.C § 9509(2).
It is undisputed that when the appraiser came to visit the property the Teagues were out of state. The appraiser was accompanied on his tour of the property by the Teagues' 39 year old son, who worked at the auto parts store for 20 years. The is no evidence that, prior to the filing of their answer in this matter, the Teagues ever objected to their son accompanying the appraiser or ever requested a second visit from the appraiser, even though they were represented by experienced counsel during some of the negotiations. The Court concludes, therefore, that DelDOT acted in good faith; under the circumstances it reasonably believed that the Teagues' son was authorized to accompany the appraiser on their behalf and that this visit therefore satisfied the requirement of the RPAA.
The Teagues are now represented by different counsel.
There is a second, independent reason, why the absence of the Teagues during the appraiser's visit should be excused in this case — the record unequivocally demonstrates that the Teagues' absence caused no material adverse impact on the negotiation process and did not frustrate the purposes of the RPAA. Mr. Teague was asked at the evidentiary hearing what additional information the appraiser would have learned if Mr. Teague, rather than his son, had accompanied the appraiser on the tour of the site. He responded that (1) he would have told the appraiser that efforts were afoot to modify the zoning for the property which, if successful, would increase the value of the property and (2) he would have told the appraiser about the adverse impact the raised median strip would have on his business. The Court finds on the basis of this testimony that Mr. Teague's purported inability to convey this to the appraiser had no adverse effect on the negotiations.
The Court does not credit Mr. Teague's testimony that he would have told the appraiser about the moves afoot to change the zoning because, at the time of the appraiser's visit, Mr. Teague was not even aware of the property's zoning. He testified he did not learn of his property's zoning until DelDOT hand delivered a copy of the appraiser's completed report to him, which occurred several weeks after the appraiser's visit.
Moreover, there is no evidence which could lead the Court to conclude that information about later efforts to rezone the property would have affected DelDOT's offer. Even if a zoning change could have somehow been consummated prior to the completion of the appraisal (which it was not), the use of the property was still limited to an auto parts store by a deed restriction. The Teagues acquired the property in question from Mr. Teague's parents in 1984. At the time they acquired the property it was subject to a restrictive covenant which limited the property's commercial use to an auto parts store. That covenant remains in place today. The zoning change, which was not completed until seven months after the appraisal was done, therefore does not change the highest and best use of the property.
DX-4.
PX-1.
Turning to Mr. Teague's testimony that he was deprived of the opportunity to tell the appraiser about the problems the median strip would cause his business, the Court concludes that the loss of this opportunity had no impact on the course of the negotiations. It is undisputed that DelDOT was aware of Mr. Teague's position years before the appraisal. Shante Hastings, a civil engineer employed by DelDOT testified that at the 2003 public hearing Mr. Teague voiced his objection to the median strip. Moreover, she testified that the median divider was never a negotiable item because of safety requirements and that Mr. Teague was aware of this. In short, the Court s convinced that the fact that the Teagues were deprived of another opportunity to repeat their previously voiced objections to the median divider had no impact whatsoever on the negotiations.
The Court finds that Ms. Hastings is a credible witness and credits her testimony in its entirety.
Conclusion
The Court is sympathetic to the Teagues. Although the evidence on the impact off the median divider on their business is incomplete, it is certainly understandable why they would be worried about its effect on the livelihood. Nonetheless, the Court is constrained to apply to the law to the facts as it finds them. Therefore, DelDOT's application for an Order of Possession is GRANTED and the Teagues' motion to dismiss is DENIED.
The Court makes no ruling at this point on whether such evidence is admissible at the trial on compensation.