City of Chesapeake v. Dominion Securityplus Self Storage, L.L.C., 291 Va. 327

Background

Dominion SecurityPlus (Dominion) acquired a 4.5-acre parcel in 2002 that was subject to a recorded subdivision plat containing Note 7: a 50-foot area reserved "for future purchase by the City" and a broad waiver of "any claims for damage to . . . the residue" arising from such purchase.
The City planned and constructed the Dominion Boulevard Improvements Project (widening and raising the road and replacing a bridge). The City sought to obtain the reserved area and related easements by purchase or condemnation; negotiations failed and the City filed a certificate of take in 2012.
The City’s condemnation took 4,943 sq. ft. entirely within the Note 7 reservation and additional easement areas, some inside and some outside the reservation. After construction, Dominion’s facility lost direct access to and visibility from Dominion Boulevard due to the roadway being raised.
Dominion asserted the reservation was unenforceable (unconstitutional or otherwise) and sought damages to the residue for loss of visibility, signage, and direct access; the City argued Note 7 barred such claims as a waiver.
The circuit court allowed evidence of visibility and access damages and awarded $44,141 for the fee take and $2,156,789.18 for residue damages. The City appealed.

Issues

Issue	Dominion's Argument	City’s Argument	Held
Whether Note 7’s waiver bars Dominion’s claims for damages to the residue arising from the City’s acquisition of the reserved area	Note 7 inapplicable because City condemned rather than "purchased," and City took easements outside reserved area	Note 7 is a valid, binding waiver running with the land that bars any claims for damages to the residue from the purchase/take of the reserved area	Waiver in Note 7 is valid and unambiguous; it bars Dominion from claiming damages to the residue caused by acquisition of the reserved area (applies despite condemnation).
Whether the circuit court could limit the waiver by importing a foreseeability requirement	Waiver should not preclude proof of damages from the project as a whole; foreseeability irrelevant	Waiver’s plain terms cover "any" damage; no foreseeability term exists to be read in	Court cannot rewrite contract; inserting foreseeability was error—Note 7’s plain language governs.
Whether the waiver was voided because City took additional easements outside the reservation	Taking rights outside the reservation vitiates waiver	Note 7 applies only to damages caused by taking the reserved area; takes outside reservation are not governed by Note 7	Note 7 does not apply to takings outside the reserved area, but Dominion failed to apportion residue damages to those outside takes.
Appropriate disposition given Dominion’s failure of proof apportioning damages	Award should stand because project caused damages to residue	Because most awarded damages could not be tied to non-reserved takes, award cannot be sustained	Court reversed the $2,156,789.18 residue award and entered final judgment for the City on that claim.

Key Cases Cited

Bailey v. Loudoun County Sheriff’s Office, 288 Va. 159, 762 S.E.2d 763 (contract interpretation reviewed de novo)
Squire v. Virginia Hous. Dev. Auth., 287 Va. 507, 758 S.E.2d 55 (clear contract terms are enforced as written)
Lansdowne Dev. Co. v. Xerox Realty Corp., 257 Va. 392, 514 S.E.2d 157 (courts will not insert terms into contracts for a party’s benefit)
Dewberry & Davis, Inc. v. C3NS, Inc., 284 Va. 485, 732 S.E.2d 239 (parties are bound to the contract terms they agreed to)
Blake v. Commonwealth, 288 Va. 375, 764 S.E.2d 105 (appellate courts may decide only the dispositive assignment of error)