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Scope of experts’ testimony at condemnation trial is clarified

In a trial over damages for land taken for an easement required for construction of a natural gas pipeline, the landowners’ expert may testify about the high demand for residential subdivisions, but cannot testify about the stigma attached to pipelines, the alleged impact of temporary construction activities or reports by other appraisers about other properties. The pipeline owner’s expert can testify about comparable sales because objections to such testimony go to the weight of the evidence, not its admissibility.

Background

Mountain Valley Pipeline, or MVP, is constructing an interstate natural gas pipeline. The court entered an order granting MVP immediate possession of the easement on this property. The trial of this matter is scheduled to begin March 16, 2020. Pending before the court are parts one through five of MVP’s motion in limine, MVP’s motion to exclude expert testimony and defendant’s motion to exclude expert testimony.

MVP’s motion in limine

MVP argues that the highest and best use is the current use of single-family residence. It further argues that the conceptual resubdivision is inadmissible and that any opinion based on it is also inadmissible.

It is undisputed that no actual progress has been made toward subdividing the property, but to prove highest and best use, there is evidence demonstrating the high demand for residential subdivision. Therefore, the court will not exclude evidence of conceptual subdivision in this case for purposes of evidence of highest and best use.

Post-take, defendant’s expert witness Dennis Gruelle opines that the highest and best use of the property is as a single-family residence – its current use. However, it is unclear to the court whether Gruelle is using the lot method to value the property after the take. The court needs further information, and will likely have to hear from Gruelle, to make this determination. For these reasons, MVP’s motion with regard to the conceptual subdivision will be denied in part and taken under advisement in part.

Gruelle’s report makes various statements pertaining to fear and stigma associated with pipeline easements based on interviews with brokers who stated that “many buyers are afraid of a gas pipeline” and “do not want to look at properties with gas pipelines.” The court has excluded such evidence before and will do so again in this case because “[t]here is no evidence linking the alleged diminution of these property sales to fear and stigma as opposed to other factors.” For similar reasons, the court has also excluded claims that the pipeline is dangerous or unsafe or evidence of other pipeline accidents or incidents, and will do so again in this case.

Next, Gruelle’s report comments on the alleged impact of temporary construction activities, such as the “uncertain” impact of “existing springs, wells, drainage and (especially in sloping areas) soil compaction.” Because “compensable loss in the eminent domain context is limited to risks that are inherent in the easement,” this evidence is excluded.

Gruelle’s report contains references to a series of opinions by other appraisers. As to the appraisals of other properties, defendant offers no evidence that the other properties are comparable to the property here. Therefore, the court agrees that these appraisals should be excluded. As to the prior appraisal of the property by Jared Schweitzer, if the appraisal is shown to be relevant and a proper foundation for its admission into evidence is made, then it will not be excluded because it was for purposes of setting security.

Remaining motions

Defendant’s motion to exclude expert testimony criticizes the comparable sales used by Joseph Thompson in his assessment of the before and after value of the property. As the court has held previously, objections to comparable sales go to the weight of the evidence, not its admissibility.

MVP separately moves to exclude any expert testimony pertaining to the conceptual resubdivision of defendant’s property. For the reasons stated above, this motion will be denied in part and taken under advisement in part.

MVP’s motion in limine granted in part, denied in part; MVP’s motion to exclude expert testimony denied; defendant’s motion to exclude expert testimony denied.

Mountain Valley Pipeline LLC v. 1.85 Acres of land, owned by Jacqueline J. Lucki, Case No. 19-cv-00147, March 5, 2020. WDVA at Roanoke (Dillon). VLW 020-3-136. 16 pp.

VLW 020-3-136