City to try eminent domain over road near Kmart

The City of Charlottesville will attempt to use eminent domain to acquire property leased by Kmart to clear the way for a public road next to the new Whole Foods market off of Hydraulic Road.

The land at issue contains no dilapidated buildings or overgrown lots, only a brand new road built by the Whole Foods developer.

The council voted 3-1 to authorize condemnation proceedings for a portion of Hillsdale Drive Extended, the road that runs between Kmart and the new Whole Foods site.

If successful, the city would take over 1.487 acres of Kmart’s leased property in order to fully establish the road as a public right-of-way.

Meadowbrook Creek, LLC, the developer of the Whole Foods, owns the entire parcel at 1801 Hydraulic Rd., of which Kmart leases a portion.

Kmart has opposed the road, alleging that the landlord is violating the terms of the lease by building a road on land upon which it said it would not erect any buildings or other structures.

The road was built by Meadowbrook Creek, but the city agreed to reimburse the developer for costs of up to $2 million. In return, the developer promised to build the road to meet city and state standards and hand it over to city control.

Meadowbrook Creek would like to give the road to the city, but Kmart threw a wrench into the works last summer when the retailer filed a lawsuit alleging that parts of the road and the Whole Foods parking lot infringed on Kmart’s leased property. The lawsuit is still pending in Charlottesville Circuit Court.

Both Meadowbrook Creek and the city have offered to acquire full rights to the land for its appraised value of $20,000. Kmart has not given a “substantial response,” said City Attorney Craig Brown, and there are still more than five years left on the lease.

“We would like to move the process forward and allow this to be dedicated to the city as a public street,” said Brown.

Brown said it’s rare that city staff make eminent domain requests, but the fact that the road is a “high transportation priority” and has already been built make this case stand out.

“It is not a question of taking property which is dedicated solely to private use and converting it to public use, but rather taking property which de facto has a public use now as a road, and making that legally official,” Brown said.

Councilor Holly Edwards was the only member to vote against the eminent-domain resolution.

“It was my hope that the entities would provide some sort of a compromise…” Edwards said.

Councilor Satyendra Huja said the action was in the public interest.

“It benefits the city,” Huja said. “It also benefits the Kmart actually because it gives them better access to their own property.”

The phrase “eminent domain” was not uttered in the council chambers until resident Colette Hall stood and asked for an explanation.

“Are you saying this is eminent domain?” Hall asked.

“Yes,” Brown answered, saying he uses the terms “condemnation” and “eminent domain” interchangeably.

A Kmart spokeswoman declined to comment, citing the pending litigation.

Kmart’s lawyer also declined to comment, saying he had yet to speak to his client about the issue.

Brown said he plans to make a court filing within the next few weeks, but also indicated he hoped that Kmart would settle the matter beforehand by accepting an offer.

“I’d love if that was the case and we could avoid going to court,” Brown said.

The connector road, which officials have hailed as a project that will relieve congestion on U.S 29, is designed to eventually run from Hydraulic Road to the north of Greenbrier Drive by weaving through the Seminole Square Shopping Center. 

Mayor Dave Norris, currently visiting the sister city of Winneba, Ghana, was absent from the meeting.