Municipal: US prevails in Arlington National Cemetery takings suit

Where the United States took 8.929 acres of land from Arlington County, to expand Arlington National Cemetery, and Arlington County argued that 4.23 acres of that land was severable for use as a residential development, but the County failed to show that its development proposals are physically possible, legally permissible or financially feasible, the United States prevailed on the claim.

Background

This civil action arises out of the taking of 8.929 acres of land by the United States of America from Arlington County, Virginia, to expand Arlington National Cemetery. The parties came before the court for a bench trial to determine whether 4.23 acres of that land, which consists of Southgate Road and adjoining land, is severable from the entire 8.929-acre parcel, and, if so, whether the County is entitled to monetary compensation for the taking of the Southgate Road parcel.

Analysis

Before the date of the taking, the County owned all of the 8.929 acres in some form, so there is a “unity of ownership.” Additionally, the parcels always shared physical continuity as the three roadways physically intersected. The central dispute is whether the two parcels — Southgate Road, and Columbia Pike and South Joyce Street — share “the same, or an integrated, highest and best use.” “In the absence of proof to the contrary, the highest and best use of property is presumed to be its current use” at the time of the taking.

The County did not meet its burden to show that it would be physically possible to develop the Southgate Road Parcel for residential use. The County’s two hypothetical townhome development scenarios do not account for a central deficiency with these plans that was raised at trial, namely, the County did not show how a developer would provide the required utility services to the property.

Without any evidence that certain utilities essential for residential development could physically run to the property considering the federal government’s guaranteed opposition to granting an easement to the most direct path for those utilities, the County has not established that it is reasonably probable that these residential developments could physically be built on the Southgate Road parcel. The County also did not show that it was reasonably probable that a proposed development would be legally permissible.

The County has also not met its burden to show that the hypothetical development proposals are financially feasible. The County is correct that developing the Southgate Road parcel for residential use — if reasonably probable — would be more profitable than its current use as a public roadway; however, because it has not shown that its development proposals are physically possible, legally permissible or financially feasible, it has not shown that the highest and best use of the Southgate Road parcel is for residential development, regardless of the profitability of the use.

Because the court finds that highest and best use of the Southgate Road parcel is its current use as a road and that the Southgate Road parcel is an interconnected roadway with Columbia Pike and South Joyce Street, it is not severable from the rest of the 8.929 acres.

Compensation

The County has accepted substitute facilities for the condemnation of the sections of Columbia Pike and South Joyce Street within the project area. As the Southgate Road parcel is part of an interconnected roadway with these portions of Columbia Pike and South Joyce Street, these roads are therefore part of the same parcel for purposes of “just compensation,” and the County must receive the same type of compensation for all of them. In this case, the court finds that the extensive redesign of Columbia Pike and South Joyce Street — as well as the construction of the two-lane South Nash Street — are reasonable and fair substitute facilities for the 8.929 acres taken.

So ordered.

United States v. 8.92 Acres of Land in Arlington County Virginia, Case No. 1:20-cv-667, March 29, 2024. EDVA at Alexandria (Brinkema). VLW 024-3-204. 37 pp.