by Trish Rudder
More than 60 people attended an information session last Thursday, August 29, to learn how the property acquisition process works and about the property owners’ rights regarding the proposed U.S. 522 Berkeley Springs Bypass to be constructed by the state’s Division of Highways (DOH). The event was held at the Ice House and hosted by the 522 Bypass Taskforce.
Charles Town attorney Braun Hamstead said most people think no one could take their property from them, but the “Constitution has a hole in it that allows eminent domain.”
Some of the property owners said in the meeting that the property has been in their family for generations and has sentimental value.
Hamstead said “sentimental value is worth zero in property negotiations.”
The focus instead should be that the property owner is getting a fair market value.
Local appraiser, Kent Kesecker Associates was awarded a contract by the DOH to appraise 101 land parcels that are in the path of bypass construction. Kesecker’s firm was the low bidder for the contract work.
“The property’s value is determined when it is taken, and the property must be valued at its best and highest use,” Hamstead said.
Once the state decides it needs a parcel of land or a building, it contacts the owner to negotiate a selling price.
Property owners in the path of the bypass received “A Guide for Property Owners and Tenants” from the WV Department of Transportation Division of Highways that describes the rights and the process.
The first step in the process is the initial entry by an appraiser, Hamstead said.
The next step is negotiations, which is the most important part of the process, he said.
“Use another appraisal to negotiate. It’s the best way. Do that instead of spending money on a lawyer,” Hamstead said.
This was reiterated by a local realtor and real estate attorney — that property owners should have their property appraised themselves to evaluate their property’s worth. That can be used as a bargaining chip.
The average cost of an appraisal is between $400 and $500, said attorney Bill Harmison and realtor Connie Perry.
Perry said a property that has commercial potential will bring more money to the owner. She said if an owner wants to go to court over the appraisal, its value is set by a board and not a jury.
“Get a second opinion and have a bargaining chip,” she said. She said more certified appraisers are located in Martinsburg.
Perry said the comprehensive appraisal must determine the “highest and best use” the property can be used for.
If the DOH wants only part of the property, what about the rest of the property? Hamstead said the property owner can force the DOH to address the residue or “damaged” part by taking it to court. For instance, if the property owner has loss of access, the DOH can be forced to go to court.
“You have the right to negotiate good access. For instance, for the DOH to replace a driveway,” said Hamstead.
Negotiation issues should include relocation costs and advance payments to replace what it will cost to move, Hamstead said in the meeting.
“Basic rules apply to businesses, too,” he said.
Dislocation is a federal law that that the state follows. Using the federal Housing and Urban Development (HUD) rules, relocation applies to renters as well, said Hamstead.
“A check for your property will not completely pay for a new home. That is why relocation money is important. The HUD statute is followed regarding location provisions under federal law,” he said.
Property owners who have rental properties have an obligation to their tenants. It is a factor to add to the compensation value because it was income- generated property and has a value based on that, Hamstead said.
Once an offer of sale is accepted, the property owner has 90 days to move. Relocation expenses play into this, Hamstead said.
If negotiations for properties along the bypass fail and the property owner refuses to sell, the WVDOH will petition to take property in circuit court. The DOH deposits the money in the court and the property will be condemned. The court will appoint commissioners that were nominated by the court to hear the case.
If the property case goes to a jury trial, the jury will decide, Hamstead said.
Both parties must agree to go before a jury and not take the commissioners’ decision, said Hamstead.
The 522 Bypass Taskforce is a group of business people and local residents which formed to monitor the bypass design proposals and share project information.