ARLINGTON COUNTY, VIRGINIA County Board Agenda Item Meeting of October 2, 2004 DATE: September 20, 2004 SUBJECT: Adoption of a Resolution Authorizing the Acquisition by Eminent Domain of a Fee Simple Interest in Real Estate, Improvements, Appurtenances, and a Temporary Construction at 901 N. Quincy St. (Lot 36 and Part of Lot 35, Varcoe s Subdivision) for Public Street, Sidewalk, Utilities and Drainage Purposes C. M. RECOMMENDATION: Adopt the attached Resolution (Attachment 1) authorizing the acquisition by eminent domain of certain property interests at 901 N. Quincy St. ISSUE: Whether or not to authorize the County Manager or his designee, to make a bona fide offer to purchase certain property interests at 901 N. Quincy St. ( Property ) for public street, sidewalk, curb, gutter, utilities and drainage purposes, and to authorize the acquisition of the property interests by eminent domain if the offer is not accepted. SUMMARY: The County has approved plans for streetscape improvements at the intersection of 9 th Street N. and N. Quincy St. (Expenditure Account No. 013.319, RI12, Project ). Although County staff have made repeated efforts to acquire the necessary property rights from the property owner, 901 N. Quincy Street Associates, a Virginia general partnership ( Property Owner ), staff have been unable to negotiate an acquisition price. The Property Owner continues to insist verbally that the property interests that the County is proposing to acquire are worth substantially more than the appraised value of such interests. Therefore, the County has been unable to obtain the necessary property interests from the Property Owner for the Project. If the County Board adopts the attached Resolution, and if the bona fide offer is not accepted, then it will be necessary to acquire the property interests by eminent domain. DISCUSSION: The developer of Quincy Crossing and The Atherton ( Developer ) agreed to make a good faith effort to acquire the necessary property interests from the Property Owner. The Developer was unsuccessful in its acquisition attempts, so the Developer agreed, as a condition of a Site Plan Amendment (SP #276) for the property located at 3923 Wilson Boulevard (Quincy Crossing), to set aside money to aid the County in acquisition and development of the public improvements. The Developer deposited acquisition funds in a Trust and Agency Account and also set aside money to construct the public improvements. The acquisition funds are currently in an interest bearing fund created as a condition of a Site Plan County Manager: County Attorney: Staff: Alan Soon, DES, Right-of-Way Section
Amendment (SP #276) for the property at 3923 Wilson Boulevard, Quincy Crossing. In addition, Site Plan Condition #48 requires that, unless the County either acquires the necessary property interests, has a binding agreement for such acquisition, or files a condemnation suit within the five (5) year time period following the deposit of acquisition funds by the Developer with the County, then the acquisition funds, less County expenses and the appraised value of the right of way, must be returned to the Developer by the County. Therefore, unless the Property Owner voluntarily conveys the necessary property interests to the County, the County must be a party to a judicial proceeding (i.e. condemnation proceeding) to acquire the right-of-way for the Project, within the required five-year time period, in order to use all of the funds in the acquisition account. The base amount the Developer was required to submit for acquisition costs relating to 901 N. Quincy Street was Four Hundred Twenty Five Thousand Dollars and Zero Cents ($425,000.00) plus estimated CPI-U increases for the five-year term. With the increases, the amount funded by the Developer to the County for acquisition costs, was Five Hundred Twenty Two Thousand Six Hundred Thirty One Dollars and Zero Cents ($522,631.00). With accrued interest, as of August 13, 2004, the amount in the Trust and Agency Account has appreciated to Five Hundred Eighty Eight Thousand Eight Hundred Sixty Seven Dollars and Sixty One Cents ($588,867.61). In addition, Site Plan Condition #48 provides for Project construction costs, in the amount of One Hundred Thirty Thousand Dollars and Zero Cents ($130,000.00), which are secured by a bond from the Developer of 3923 Wilson Boulevard, and are therefore not included with the acquisition money held in the Trust and Agency Account. Unlike the situation with the acquisition costs, the Developer, rather than the County, holds the money as a bond for the term set out as part of the Quincy Crossing Site Plan. The Site Plan Condition #48 required that the One Hundred Thirty Thousand Dollars and Zero Cents ($130,000.00) bonded to pay for the public improvements (i.e. sidewalk), be initially adjusted to reflect the CPI-U adjustment for the five-year term. Accordingly, the bond amount originally held was increased to One Hundred Fifty Nine Thousand Eight Hundred Sixty Three Dollars and Zero Cents ($159,863.00). The staff understands that Audrey Wong, Daniel Wong, Pete W. Chan and Yuk Peng Cheng operate a restaurant, the Sichuan Wok Restaurant, on the Property. The edge of the street along the current N. Quincy St. and 9 th Street N. frontage of the Property presently consists of a graveled area without curb, gutter or sidewalk. The area adjacent to the east and south of the Property in front of both Quincy Crossing, 3923 Wilson Boulevard and The Atherton (801 N. Quincy Street) along N. Quincy St. and 9 th Street N. presently consists of a brick paved sidewalk, curb and gutter. Installation of such facilities on the Property are needed to improve the road bed, pedestrian and traffic flow and drainage, and be consistent with the adjacent properties delineated in the Virginia Square Sector Plan. Similar improvements, including storm sewer facilities, are planned to be installed on the opposite side of Quincy Street by the developer of Quincy Plaza. The streetscape plan for Virginia Square dates back to the 1983 Virginia Square Sector Plan, but was updated in November 2002, and now specifies a minimum sidewalk width of 13 feet. Other new developments in the immediate area include Liberty Center (southwest corner of 9 th St. N. and N. Quincy St.) and Quincy Plaza. Recommendations for infill sites between Fairfax Drive and Wilson Boulevard (west of N. Monroe Street) propose land use plans for the Property as mixed-use-residential/office and/or a civic space or open space. Adoption of a Resolution Authorizing Acquisition - 2 -
To create a safe pedestrian way, the County proposes to construct the Project consisting of public street, sidewalk, curb, gutter, utility and drainage improvements at the intersection of 9 th St. N. and North Quincy St. to enhance the public health, safety, convenience and welfare. This requires that the County obtain certain property interests, described below, from the Property Owner. The current appraised value of the property interests to be acquired by the County Board for the real estate, improvements, appurtenances, temporary construction easement, and damages is Three Hundred Fifty Thousand and Zero Dollars and 0/100 Cents ($350,000.00). This sum was determined by an appraisal prepared by The Robert Paul Jones Co., Ltd. with an effective date of September 20, 2004. The staff recommends that the County Board determine and adopt the Resolution that delineates, among other things that: 1. these acquisitions are necessary for the purposes of installation, construction, reconstruction, maintenance, repair, relocation and removal of public street, sidewalk, curb, gutter, utilities and drainage facilities and systems; 2. the work or improvements to be made by the County within the property being acquired in fee simple are necessary to provide improved transportation, pedestrian and vehicular travel, utility service, and drainage facilities for County citizens, and to enhance the public health, safety, convenience and welfare; 3. the public improvements will necessitate that the County acquire, in fee simple, one thousand seven hundred and one (1,701) square feet of real estate, more or less, with improvements thereon, and appurtenances thereto, for public street, sidewalk, curb, gutter, utilities and drainage purposes, together with a temporary construction easement of nine hundred and fifty eight (958) square feet of real estate, more or less, and improvements thereon; and 4. a) a public necessity exists for the acquisition of the property interests for public street, sidewalk, curb, gutter, utilities and drainage purposes so as to provide improved transportation, pedestrian and vehicular travel, utility service and drainage facilities for County citizens, and to enhance the public health, safety, convenience and welfare; b) the property interests shall be used for the installation, construction, reconstruction, maintenance, repair, relocation and removal of public street, sidewalk, curb, gutter, utilities, and drainage facilities, and for temporary easement rights to perform such work; and c) such public uses are hereby approved by the County Board. By the attached Resolution, the County Board also authorizes and directs the County Manager, or his designee, to make a bona fide effort to acquire the property interests from the Property Owner. If such effort is ineffectual, or if the terms of a purchase are not agreed upon, or if consent to purchase cannot be obtained then, the County Board authorizes and directs the County Attorney, or other attorney as may be retained by the County, to institute and conduct, in the name of the County Board, condemnation proceedings, in the Circuit Court of Arlington County, Virginia, to acquire the property interests from the Property Owner and successors in title, if any. The County Manager, or his designee, is authorized to verify the Petition in such condemnation Adoption of a Resolution Authorizing Acquisition - 3 -
proceedings. Counsel for the County Board is authorized to take all such actions as may be necessary to conduct the proceedings to a conclusion consistent with the Resolution, and with any subsequent action of the County Board regarding this matter. The Vicinity Map, attached to this report as Attachment 2, shows the location of the Property. LEGAL NOTICE: Notice of public hearing regarding the proposed adoption of the Resolution was published in a newspaper having general circulation in Arlington County on September 13, 2004 and September 20, 2004. FISCAL IMPACT: The amount of Five Hundred Eighty Eighty Thousand Eight Hundred Sixty Seven Dollars and Sixty One Cents ($588,867.61) as of August 13, 2004, is on deposit with the County in Trust and Agency Account (Fund 099, Agency 035, Project M1) for the purpose of the County acquiring the necessary property interests. This amount reflects the Five Hundred Twenty Two Thousand Six Hundred Thirty One Dollars and Zero Cents ($522,631.00) that was originally deposited Four Hundred Twenty Five Thousand Dollars and Zero Cents ($425,000.00), plus increases tied to the CPI-U) pursuant to Condition #48 of SP #276 in November 1999, plus subsequent interest accrual in the account. Condition #48 provides that, if the County acquires the right-of-way at a total cost, including both payment to the Property Owner and direct expenses related to the County s acquisition, that is less than the amount in the acquisition fund, any remaining funds, less County expenses and the appraised value of the right of way, shall be returned to the Developer. Moreover, if upon the date which is five years after the date the Developer places such amount into the acquisition fund (November 18, 2004), the County (1) has not acquired the right-of-way from the Property or the entire Property; (2) is not a party to a judicial proceeding to acquire the right-of-way from the Property or the entire outpracel; or (3) does not have a fully ratified, binding contract to acquire the right-of-way from the Property Owner or the entire Property which provides for settlement to occur within six months, then the Developer shall be entitled to receive a refund of a portion of the donated amount, said portion to be the difference between: a) the accrued funds in the acquisition fund, and (b) the sum of any documented expenses incurred by the County plus the appraised value of the right-of-way. It is possible that during the course of the condemnation proceedings, the Court or the commissioners may determine that the fair market value of the property interests to be acquired by the County exceeds the Three Hundred Fifty Thousand and Zero Dollars and 0/100 cents ($350,000.00) appraised value of such interests. The amount of Five Hundred Eighty Eight Thousand Eight Hundred Sixty Seven Dollars and Sixty One Cents ($588,867.31) is held in the Trust and Agency Account for this acquisition. So long as the County, before or after the determination of fair market value, has not entered upon the Property, the County can choose, whether or not, to acquire the property interests. If, after filing a Petition of Condemnation, the County decides not to acquire the property interests, then the County must pay the Property Owner s: 1. attorney s fees; 2. witness and expert witness fees; and 3. other reasonable expenses. Adoption of a Resolution Authorizing Acquisition - 4 -
ATTACHMENT 1 A RESOLUTION AUTHORIZING THE ACQUISITION BY EMINENT DOMAIN OF A FEE SIMPLE INTEREST IN REAL ESTATE, IMPROVEMENTS, APPURTENANCES, AND A TEMPORARY CONSTRUCTION EASEMENT AT 901 N. QUINCY STREET (LOT 36 AND PART OF LOT 35, VARCOE S SUBDIVISION) FOR PUBLIC STREET, SIDEWALK, UTILITIES AND DRAINAGE PURPOSES BE IT RESOLVED by the County Board of Arlington County, Virginia ( County Board ) that: 1. The County Board proposes to construct certain public street, sidewalk, utility and drainage improvements at the intersection of North 9 th Street and North Quincy Street in Arlington County, Virginia (Project No. RI12) to enhance the public health, safety, convenience and welfare; and, 2. Such public improvements will necessitate that the County Board acquire, in fee simple, one thousand seven hundred and one (1,701) square feet of real estate, more or less, with improvements thereon, and appurtenances thereto, for public street, sidewalk, curb, gutter, utilities and drainage purposes, together with a temporary construction easement of nine hundred and fifty eight (958) square feet of real estate, more or less, improvements thereon, and appurtenances thereto, all as more fully shown on a plat entitled Plat Showing Areas Acquired For Public Street, Sidewalk, Utilities And Drainage Purposes And Temporary Construction On Lot 36 & Part Lot 35 Varcoe s Addition To Ballston, D.B. 120, PG 164 Arlington County, Virginia, prepared by the Arlington, Virginia, Department of Environmental Services, Engineering and Capital Projects Division, dated July 20, 2004, attached to this Resolution and made a part hereof as Attachment A, and being more particularly described as follows: Part of 901 N. Quincy Street, Tax Map: RPC# 14043003 Parcels 1 and 2, and a Temporary Construction, each as shown on the above referenced plat, the metes and bounds descriptions of which are attached to this Resolution and made in part hereof as Attachments B, C, and D, respectively, being a part of the same property acquired by virtue of a Deed of Bargain and Sale, dated June 2, 1987, recorded on June 4, 1987, in Deed Book 2279, at Page 1050, in the Arlington County Circuit Court land records ( Land Records ) (jointly Property Interests ); and, 3. The County Board is authorized by, inter alia, Va. Code 15.2-1901, 15.2-1903, 15.2-2001, 15.2-2109, 15.2-2114 and 15.2-2122, and by other laws of the Commonwealth of Virginia, to acquire private property by purchase for the purpose of carrying out the County Board s powers and duties, and to acquire private property by condemnation whenever, in the opinion of the County Board, a public necessity exists therefor; and, Adoption of a Resolution Authorizing Acquisition - 5 -
4. The County Board is of the opinion, and hereby determines and finds that: a) a public necessity exists for the acquisition of the Property Interests for public street, sidewalk, curb, gutter, utilities and drainage purposes so as to provide improved transportation, pedestrian and vehicular travel, utility service and drainage facilities for County citizens, and to enhance the public health safety convenience and welfare; b) the Property Interests shall be used for the installation, construction, reconstruction, maintenance, repair, relocation and removal of public street, sidewalk, curb, gutter, utilities, and drainage facilities, and for temporary easement rights to perform such work; and c) such public uses are hereby approved by the County Board; and, 5. The owner of the above described real property and improvements, as indicated in the Land Records, is 901 N. Quincy Street Associates, a Virginia general partnership ( Property Owner ); and, 6. The current appraised value of the Property Interests as just compensation for acquisition by the County Board for the real estate, improvements, appurtenances, temporary construction easement, and damages, if any, is Three Hundred and Fifty Thousand Dollars and 0/100 cents ($350,000.00). 7. The County Board authorizes and directs the County Manager to make a bona fide effort to acquire the Property Interests from the Property Owner and, if such effort is ineffectual, or if the terms of a purchase are not agreed upon, or if consent to purchase cannot be obtained; then, 8. The County Board authorizes and directs the County Attorney, or other attorney as may be retained by the County, to institute and conduct, in the name of the County Board, condemnation proceedings, in the Circuit Court of Arlington County, Virginia, to acquire the Property Interests from the Property Owner and successors in title, if any, pursuant to the applicable provisions of Va. Code Titles 15.2, 25.1 and 33.1; and, 9. The County Manager, or his designee, is authorized to verify the Petition in such condemnation proceedings, and to execute, on behalf of the County Board, such other documents as are necessary to such proceedings. Counsel for the County Board is authorized to take all such actions as may be necessary to conduct the proceedings to a conclusion consistent with this Resolution, and with any subsequent action of the County Board regarding this matter. Adopted this 2 nd day of October, 2004 COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA ATTEST: Chair Clerk Adoption of a Resolution Authorizing Acquisition - 6 -
Vicinity Map Attachment 2 901 N. Quincy Street Boldface line on this schematic indicates the location of local improvements Fee Acquisition and Temporary Construction Adoption of a Resolution Authorizing Acquisition - 7 -