In Bailey’s Crossroads, Fairfax schools might use eminent domain to relieve overcrowding

September 6, 2013

Fairfax County School Board members are considering the use of eminent domain to acquire a foreclosed commercial office building in the Bailey’s Crossroads area that the board wants to covert into an elementary school.

The school board voted 8 to 2, with two board members absent, Wednesday night to authorize obtaining the building through purchase or the right of eminent domain, which allows a government agency to take private property for public use. The vote came after a closed-door meeting.

The Fairfax school system has been seeking to acquire the vacant building, which is not for sale, to help alleviate severe crowding concerns at Bailey’s Elementary School. Schools officials confirmed Thursday night that the board is seeking to obtain the building.

The possible use of eminent domain to acquire the property, a five-story brick building at 6245 Leesburg Pike, highlights the school system’s urgency in seeking to remedy overcrowding. Bailey’s Elementary opened this year with a projected enrollment of more than 1,450 students, and the building is 30 percent over capacity.

To address the problem, books have been removed from the school’s library and have been replaced with desks. Hopscotch courts that once surrounded the school have been covered with 19 mobile classrooms.

“The overcrowding needs to be relieved as soon as possible,” said board chairman Ilryong Moon (At Large). “We are not only running out of time, but we don’t have a lot options.”

Virginia Code 22.1-127 grants local school boards the authority to “exercise the right of eminent domain . . . necessary for public school purposes.”

Moon said that the school board has tried to “negotiate in good faith with the property owner, but the property owner has not been responsive so far.”

Anthony Chang, a vice president of the commercial real estate firm Cassidy Turley, who is marketing the building for lease, did not return requests for comment.

Moon said that “time is of the essence,” and that using eminent domain “if it comes down to it , it could resort to that. That’s an option we have.”

The Fairfax school board has approved using eminent domain in the past. Officials said that in the mid 1990s, the board used a similar process to acquire property near Carson Middle School.

School board member Dan Storck (Mount Vernon) voted against the proposal Wednesday.

“We have a responsibility as elected officials to only invoke statutory process as a last resort,” Storck said.

Benjamin D. Leigh, a real estate lawyer with the Loudoun-based firm Atwill, Troxell & Leigh, said that Virginia Code grants the school board, and even the parks authority, the right to use eminent domain.

“It’s not unusual,” Leigh said, noting that school districts in other states have similar powers. “Eminent domain is always in the quiver of a government body.”

It will be incumbent on the school board to prove that acquiring the building will be for the “public good,” Leigh said. Then the board must work with appraisers and possibly the courts to determine “just compensation” for the property.

“Eminent domain always presents the issue of the public good versus the rights of the individual landowner to keep owning their land,” Leigh said.

Leigh said that acquiring commercial properties presents its own challenges, since commercial property owners and their taxes help fund the school system.

The 99,000 square-foot building on Route 7 was constructed in 1987 and was last sold in 2005 for $20.5 million. According to 2013 Fairfax tax assessments, the property is valued at $7,346,870. The building mostly has been empty since last August, when the Fairfax County Health and Human Services Department moved out.

Leigh said that professional appraisers use a variety of factors to determine “just compensation” for a building.

The tax assessment is “not a good indicator of value,” Leigh said, since it is set by the county and possibly could be used against the landowner. That the building is vacant also does not mean much, Leigh said.

“The temporary snapshot of a building may not be the true reflection of its value,” Leigh said, noting that the building is located in a prime area inside the Beltway. “If it’s vacant, that doesn’t mean it’s worth less. It could have considerable value for a building firm that wants to come in and revamp it.”

T. Rees Shapiro is an education reporter.
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