By David Macaulay, The Daily Press, Jan. 3, 2012
For years, Frank Ottofaro has railed against Hampton for its purchase of his property at what is now the Power Plant development. His voice may finally be heard. Frank Ottofaro’s distinctive outbursts against Hampton officials for their use of eminent domain in taking his property have been a feature of Hampton City Council meetings for the better part of a decade. And while his recent plea for a Christmas present in the form of compensation he claims the city owes him wasn’t realized, there’s evidence his persistence may be paying off in other ways.
The Ottofaro case has helped set the scene for a constitutional amendment proposed by the General Assembly. The change in Virginia law would lead to local authorities paying more in compensation for condemnations. Ottofaro’s case has also been used for academic research papers at law schools. Ottofaro, 77, suffers from gout. But he still makes the trip to City Hall every month to make his case. “I support it,” his wife, Dora, said Thursday.
“But I’m sure sick of it.” She says her husband will keep on going to City Hall. “That’s the type of person Frank is,” she said. “If he thinks he’s been done wrong, something’s going to have to happen before he gives up … that’s his nature. You do him wrong and you’re on his list.” During the Dec. 14 public comments session, Ottofaro again railed against the city when he referred to “a wrong that was done to me and my family.”
His property at 11 Pine Chapel Road was demolished for a road in 2000. The city wanted the land for what would become the Power Plant development. Ottofaro says other landowners were offered more money by the city and that some owners received two-and-a-half times the appraised value of their property. He wants about $1 million from the city. “I was hoping to have my check by Christmas, but I haven’t got anything yet,” he told the City Council.
Ottofaro was offered more than $189,000 in 1996 by the original developer of the Power Plant for a rental property he owned on Pine Chapel Road. The developer later upped the offer to $195,724 using a different formula. In 2000, the city told Ottofaro it would purchase his property for $164,000. By the time the case was heard in Circuit Court, the city’s offer had dropped to $122,000. A Hampton Circuit Court jury awarded Ottofaro $170,000 in 2001 for two lots and a house that Hampton demolished in 2000. Ottofaro appealed to the Virginia Supreme Court but lost his case.
‘A TEACHING TOOL’
Ottofaro attended the Hampton City Council’s evening session on Dec. 14. Had he been at the afternoon work session, he would have heard City Attorney Cynthia Hudson explain that his case may be the one highlighted in discussions in Richmond on changing state law. Lawmakers are expected to discuss possible changes that would restrict the ability of authorities to use eminent domain.
Hudson said the city has received information Hampton may be used as a “teaching tool in support of this amendment,” because of the Ottofaro case. But Hampton has joined the Virginia Municipal League, the cities of Newport News and Norfolk, and a number of other authorities in opposing the amendment.
Hudson said on Dec. 14 Ottofaro’s property was not taken for purely economic purposes, but for a road that had been in the city’s comprehensive plan. Ottofaro’s case has attracted academic interest. “Regardless of whether the full factual record of the Ottofaro case proves the landowners’ claims, it is at least an instructive example of the potential harm inherent in the condemnation power when political entities have broad discretion in its application and commercial development is in play,” wrote Donald J. Kochan, a visiting professor at George Mason School of Law in an article for the Virginia Institute for Public Policy. “The Ottofaro case is used in many law schools today,”
Hampton City Councilman Ross Kearney said on Dec. 14. He said the city only needed 150 feet for a road but took 780 feet. Councilman Donnie Tuck wanted to re-open talks on compensation. The move was defeated in a 4-3 council vote. Mayor Molly Joseph Ward pointed out the issue had been the subject of litigation. She said reopening it would raise the possibility of other litigants demanding their cases be reopened.
Hudson said many local authorities are alarmed about possible changes in state law on eminent domain. “There’s a good deal of local government consternation and concern about the potential impacts of the proposed amendment to the Virginia Constitution on eminent domain,” she said. The amendment has a “just compensation” element that would give the property owner the fair market value of the property the government seeks to take plus any potential damage to the property left in terms of how it may have been devaluated by the seizure, she said.
Hudson said lost profits and loss of access to a landowner’s remaining property are not factors under the compensation equation at present. “Certainly under current law, property may only be taken when there’s a public interest and the public interest is greater than the private gain in the taking,” she said.
The amendment is also a reaction to the case of Kelo v. New London, Hudson said. In that 2005 U.S. Supreme Court decision, the court upheld a Connecticut town’s taking of private property for redevelopment. Hudson said the amendment could increase the cost of public projects and deter local authorities from pursuing road projects. For example, under the proposed change in state law, if a new bypass led to a loss of profits by businesses, they could have a claim for compensation. But distinctions between economic and infrastructure needs cut little ice with the Ottofaros. “They did it for meanness,” Dora Ottofaro said. “To show power.”