BACKGROUND
Joye Shuler had a problem. The state of South Carolina was building a new port terminal in Charleston and needed a road to connect it to the interstate. The footprint established for that road lay claim to one third of Joye’s lumber and millwork business, which had been founded by her father in the ‘40s and had grown to employ approximately 100 people. Joye attended public meetings, lobbied politicians, rallied environmental regulatory agencies, and held meetings with SCDOT engineers, pleading that the road not impact the site. The threat of condemnation hung over Joye’s head for close to a decade. When SCDOT announced it was appraising property for the land to be condemned—Joye’s land—she reached out to her corporate lawyers, who referred her to Richard Bybee.
CHALLENGES
Once engaged by Joye and her brothers who owned the land, Rick assembled a team consisting of appraisers, a site engineer, an architect and contractors to establish a just compensation estimate for the land taken and damages to the remainder. Joye’s case was complicated by the nature of the project delivery system adopted by the government. The State chose not to design the road before it took property, but undertook a design build contract process so the vertical alignment and road elevation elements were unknown during the pendency of the condemnation case. The task for the team was further complicated by the goal of the client to preserve the business and remain at its central location befitting customers, like home builders and contractors, who served historic downtown Charleston and high end residential homes on the area beaches and sea islands. The fact that business damages are not compensable under SC eminent domain law made the challenges even greater.
STRATEGY
Rick’s strategy was to build the condemnation claim on a highest and best use change theory claiming damages to the remainder in addition to the value of the land because the property could no longer be used to house the business. He simultaneously developed an administrative relocation claim using the same design professionals engaged in the condemnation case. To save the business, the building square footage lost in the take had to be replaced in vertical structures on the remaining land. The millwork shop and inventory buildings had to removed and replaced. The millwork shop itself was not within the right of way but its adjacent hopper operation was and there was no room to relocate it, so the shop had to move.
RESULTS
The relocation claim was negotiated with high-ranking SCDOT officials, including its right of way director and FHWA officials. The program is designed to reimburse the displaced business for actual moving and reestablishment costs. Rather than attempt to agree on the ultimate expense of relocating the business, eligible elements of the relocation were categorized and approved by state and federal officials. This approved list of categories, which included temporary inventory storage and local and state building code upgrade costs, was made a part of the mediated settlement agreement. The design team, recognizing the eligibility of costs associated with the moving and storage of the lumber inventory created a movable shelf system to meet wind-load and seismic code requirement which also served as the structural support system for the building. The settlement agreement called for the payment of $4.8 million for the condemnation case. The approved relocation payments exceeded $8 million for a total payment of over $12 million dollars.