Dinner at Quang Dong Taste on Holland Road.
Can’t believe how fast time has gone. From 3 in 1983 to 7 in 2018. The progress is way beyond my expectations. I am truly blessed and humbly grateful with how our journey has been. With new building and staff, I feel we are just beginning to hit our stride. Thank you Lord for all the blessings. Thank you crew for helping me define who I am and what I can be. Mahalz.
|
|
The trial was held in Federal court from February 7 – February 9. Judge Henry Morgan presided. We first received press coverage prior to my first Rally on November 10, 2015.
NOVEMBER/2015
Southsidedaily.com is your source for free local news and information in Virginia Beach
A long-time Virginia Beach dentist is decrying what he and his lawyers say is eminent domain abuse by the city against his practice.
A city spokesman relayed a statement Friday from Deputy City Manager Dave Hansen in response to the allegations.
“The city has accommodated Dr. Bergano and promptly addressed his concerns,” it said in part.
Allan Bergano said the city told him last year he would have to leave the building where he has served patients for more than three decades because of a widening project on North Witchduck Road. He and his wife, Edwina, spent nearly a year looking for another location; when they submitted the potential costs of their move to the city, they were shocked at its offer for relocation help: $25,000.
Bergano said other dentists who moved for a nearby widening project on South Witchduck Road had received assistance ranging from $280,000 to $500,000. He appealed the city’s offer. The response provided another surprise.
The city withdrew its offer of $25,000 and instead said the dental practice could stay where it was, Bergano said. The reversal came in August, about a month before the September deadline he had been operating under to move, he said. The Berganos had already spent time and money looking for a new location — tens of thousands of dollars, they say — and had a lease on the new spot, near Town Center.
Staying put, however, seemed an untenable situation to Bergano. The city had purchased the office complex in 2014 and in August began filling it with its Department of Human Services. A building that Bergano once shared with chiropractors, insurance agents, a law office and other small businesses was now devoted almost entirely to government services that drew an unsettling clientele for Bergano’s staff and patients.
They began seeing prisoners in orange jumpsuits and handcuffs coming for evaluations and “indigent people sleeping” in the parking lot, he said.
Bergano said his practice is now the only business in the building. The incompatibility of a dental office surrounded by Human Services was one of the reasons the city wanted him to move in the first place, Bergano said.
Hansen, in the statement released Friday, said Bergano had a month-to-month lease when the city acquired the office complex a year ago, and that the city has offered him a five-year extension on his lease.
“Dr. Bergano has known he was not being required to move since August 2015,” he wrote.
Hansen added that “several parking spots” have been marked for the dental office’s exclusive use, and said the city will schedule “those rare visits” by inmates when Bergano’s office is closed.
“Inmates are occasionally – but rarely – brought to the new Human Services offices located in the adjacent building. They are brought through a separate entrance,” he wrote.
The city has upgraded electrical and plumbing systems, landscaping and more to the building, which was “was in very bad shape” when the city bought it, Hansen wrote. Moving Human Services there was intended to “offer essential services to Virginia Beach residents closer to where they live” and is “part of a conscious effort to improve Human Services for our citizens,” he wrote.
As for Bergano’s expenses, Hansen wrote that the city has offered to pay for the time the dentist and his wife spent in their search for a new place, “as well as any other contractual expenses that were undertaken,” but “no such expenses have been disclosed to the city.”
“The city has already paid $2,500 to compensate the real estate broker that Dr. Bergano engaged to search for a new office,” he wrote.
The Norfolk eminent domain law firm Waldo & Lyle is representing the Berganos in their case. A representative for the firm relayed a blistering rebuttal Saturday to Hansen’s statement on behalf of the couple.
“The city has been a terrible landlord,” it said. “We are being forced to move because of the hostile environment the city has created, an environment that will kill the business that has taken us three decades to build.”
About the inmates, it said, “At least the city admits they are bringing them. What they are not saying is that they are bringing them in handcuffs accompanied by armed deputies.”
If the situation is so safe, they asked, “then why is there a full-time security guard posted outside?”
As for the designated parking spots, the Berganos said they asked for eight spots but received only four, “and often they are used by human services.”
The rebuttal also says the city has not offered to compensate them the same way it did for the three dentists who moved for the South Witchduck Road project.
“And when we presented a relocation estimate of almost $500,000 one city official laughed in our face,” they wrote.
The Berganos are holding a rally at 3 p.m. Tuesday at their office at 256 N. Witchduck Rd. to call attention to their case. Allan Bergano said they want to hold local government officials accountable and keep other small businesses from facing the same treatment.
“If this can happen to me it can happen to anybody,” he said. “This is not about me. This is about small businesses.”
————————————————————————-
VIRGINIA BEACH
A dentist said he plans to sue the city after it told him to relocate his business on North Witchduck Road, then changed its mind and said he could stay.
Allan Bergano, who moved to Hampton Roads from Seattle 32 years ago, says the city has treated him badly in the exchange and is withholding money he believes is due. He’s also angry that he now shares the building with a Human Services Department annex.
“I’m still wondering why I am being treated like this,” Bergano said. He is organizing a protest at his office today.
In a statement, Deputy City Manager Dave Hansen said the city has given Bergano $2,500 to pay for the real estate broker he used and has offered to compensate the dentist and his wife for their time expended in the search and any other contractual expenses that were incurred.
The couple have not taken up the offer, the statement said.
In September 2014, the city bought Bergano’s building on North Witchduck Road to house some operations of the Human Services Department. The building was in bad shape, and the city fixed it up, according to Hansen’s statement.
That month, Bergano was told in a letter that he would have to move and the city would reimburse him for those expenses.
Eleven months later, and after Bergano signed a lease elsewhere, the city sent a letter notifying him that the relocation was no longer necessary. He would be reimbursed for money he spent looking for a new place for his practice, according to the letter dated Aug. 20.
Bergano said he is entitled to hundreds of thousands of dollars that was given to other dentists in the area who relocated on the city’s dime. He also wants to know why the city backed out on him at the last minute.
“At first, I was kind of glad I didn’t have to move,” he said. “Then it dawned on me that if they could change their mind about relocating me, they could evict me.”
Bergano would not disclose how much he spent during the months he was looking for a new place to lease, but he said he flew to Pennsylvania to look at new dental equipment and hired advisers to help with the search.
He said the city directed him to three other dentists on South Witchduck Road who were relocated by the city because of road improvements. In those cases, reimbursements ranged from $280,000 to $520,000, according to city invoices.
The city reimbursed the other dentists between 2008 and 2011, according to the documents.
In a rebuttal statement to Hansen’s statement, Bergano said that when he presented a relocation estimate of almost $500,000, one city official “laughed in our face.”
Bergano said he plans to move even though the city has said he can stay in the building, because it now houses an annex of the Human Services Department.
“My patients don’t feel comfortable. My staff doesn’t feel comfortable,” he said. “I have to move.”
In a news release, Bergano said inmates in orange jumpsuits regularly come into the building, unsettling his patients. Hansen’s statement said inmates are occasionally, but rarely, brought in through a separate entrance, and their visits will be scheduled when Bergano’s office is closed.
Bergano said he plans to sue the city for relocation and medical expenses incurred during the time that he thought he would have to move. The situation has caused his blood pressure to rise, he said.
A rally for Bergano is planned for today at 3 p.m. at his office at 256 N. Witchduck Road.
Southsidedaily.com is your source for free local news and information in Virginia Beach
A dentist who says the city intentionally disregarded his rights in an eminent domain case has filed a federal lawsuit over the matter and asked two senators and a congressman to seek an investigation into it.
Allan Bergano alleges in his complaint that the city acted at times with malice and with “callous disregard” for his constitutionally and federally protected rights regarding his longtime dental practice on North Witchduck Road. He also alleges the city failed to train its employees on areas of law involving displaced people and relocation benefits following a government’s acquisition of property.
Bargano’s lawsuit was filed late Tuesday afternoon in U.S. District Court in Norfolk by his attorney, Joe Waldo of the eminent domain firm Waldo & Lyle.
City Attorney Mark Stiles provided the following statement Wednesday by email through a city spokesman:
“We believe the city has treated Dr. Bergano fairly, but we have not yet seen the lawsuit, so we have no comment on it.”
In addition to the lawsuit, Bergano has sent letters to Sens. Mark Warner and Tim Kaine and Rep. Scott Rigell outlining what he describes as his “mistreatment” by the city of Virginia Beach and asking them to seek an investigation by the Federal Highway Administration into the matter.
The letters outline the history of Bergano’s dispute with the city and mention the dentist’s civic involvement in Virginia Beach.
“Dr. Bergano, among many other civic duties, recently chaired FilFest 2015 at Town Center which celebrated Filipino heritage and brought thousands of visitors to the City,” the letters say.
They are signed by the chairman of the Filipino American Community Action Group and the vice chairman of the Council of United Filipino Organizations of Tidewater, in addition to Bergano.
Bergano has leased space in an office building on Witchduck Road and practiced there for 32 years. He says the city acquired that building under threat of condemnation in 2014 for a road expansion project, and told Bergano that he would have to move his practice and be entitled to relocation assistance.
Bergano spent a year and thousands of dollars seeking a new location; when he signed a lease for a new spot, the city denied his request for relocation assistance, according to an email from a city employee that was filed with the lawsuit. Bergano’s estimated cost for build-out and equipment for the new spot totaled $458,000.
The city then reversed course and said Bergano could stay where he was. The city, after acquiring the building, had moved its Human Services Department into the offices around his dental practice, however, taking up parking spaces, bringing prisoners in handcuffs for evaluations, and drawing homeless people into the dentist’s office because all the other entrances to the building are kept locked, the letter to the legislators said.
Bergano says that situation has forced him to move.
Deputy City Manager Dave Hansen released a statement in early November regarding Bergano’s complaints.
“The city has accommodated Dr. Bergano and promptly addressed his concerns,” it said in part.
Hansen wrote that the city has offered to pay for the time the dentist and his wife spent in their search for a new place, “as well as any other contractual expenses that were undertaken,” but “no such expenses have been disclosed to the city.”
“The city has already paid $2,500 to compensate the real estate broker that Dr. Bergano engaged to search for a new office,” he wrote.
Bergano’s lawsuit, among other things, asks the judge to declare that Bergano is a displaced person under state and federal law and that the city deprived him of his rights. It seeks “appropriate compensatory damages” and attorneys’ fees and costs.
The city must adhere to federal law in the case because it received federal funding for the road expansion project, according to the complaint.
——————————————————————–
Based from Dennis’s press packet:
Embargo for Nov. 9, 2015
To: Hampton Roads news directors, newspaper editors, reporters
From Dennis Hartig, on behalf of Allan Bergano, D.D.S.
Re: Nov. 10 rally protesting eminent domain abuse Community protests eminent domain abuse Of popular Kempsville dentist
VIRGINIA BEACH — Friends and patients of a popular Kempsville dentist will rally at 3 p.m. Tuesday in protest of the way the City of Virginia Beach has crippled his practice. Dr. Allan Bergano, a well-known Kempsville community leader, has been seeing patients for three decades at his leased office at 256 N. Witchduck Road. To make way for improvements to North Witchduck Road, the city acquired the building under threat of condemnation. The city decided not to raze the building, but determined that it was no longer fit for business use. The city turned the building over to the its Department of Human Services. It ordered Dr. Bergano to move, promising to defray the relocation expense, as it had done for three nearby dentists whose offices were taken when South Witchduck Road was widened. Those three received from $280,00 to $520,000 in relocation assistance. In 2014, Dr. Bergano followed the city’s orders, spent a year and tens of thousands of dollars to find a new location, sign a new lease, and develop a budget for relocating the new office. During this time, the human services department moved in. The dental practice was the only private business left in the building. After following the city’s orders to move, and on the eve of his move to a new office, the city pulled the rug out from under Dr. Bergano. The city decided that Dr. Bergano should stay put and keep his practice in the same building as the human services department, even though Bergano told them it would hurt his practice. His 2,000 patients lost access to his office from Witchduck Road and clients of the city agency took his assigned parking spaces. But worst of all were the regular visits to the building by inmates from the city jail wearing orange jump suits, in handcuffs and accompanied by deputies. The visits by prisoners has created a hostile atmosphere that has unsettled his patients and staff. To save his business, Dr. Bergano is relocating a short distance away. The city has refused to defray his expenses. He is considering legal action but is hoping the city changes its mind.
VIRGINIA BEACH, Va. (WAVY) – A Virginia Beach dentist says he’s dealing with a painful situation for his practice. It’s all for the sake of progress for drivers.
Dr. Allan Bergano’s office is on North Witchduck road, essentially in the path of the big widening project. He says the past year of bad buyout offers and changes is worse than, well, going to the dentist.
Dr. Allan Bergano established his practice in Virginia Beach 32 years ago. Right now he’s paying two leases, but not by choice.
“Thirty-two years down the drain,” said Bergano. “The city stole my dream. This is my American dream right here and it went down the drain. Small business owners are being ripped off by the city. I followed directions to a tee and then all of sudden the rug was pulled from me.”
Dr Bergano says it all began last year when the city approached him with a plan to widen Witchduck Road which would require him to relocate with their help. The city bought the building and began moving offices with the Department of Human Services. He says they gave him a year to find a new place, sign a lease and bring back his bids. But when he did he was appalled.
“At first I said, OK I completely understand, limited parking, closing of the street and all the city services,” said Bergano. “Then they told me I only qualified for $25,000 whereas my colleagues were getting anywhere between $250,000-$500,000.”
And when he appealed their decision, things only got worse. Another change of heart. He says they rescinded their offer altogether. No money to move. In fact, he no longer had to relocate, although he says they knew he might not feel so comfortable anymore.
“This is not conducive to a dental practice,” said Bergano. “My patients don’t feel safe. My staff doesn’t feel safe.”
So now he’s feeling the squeeze — Left to move on his own dime. Dr. Bergano says he refuses to be treated unfairly or remain silent anymore. He’s hosting a rally to bring attention to this issue next week. He says future business owners need to be made aware. It’s Tuesday, Nov. 10 at 3 p.m. outside of his office at 256 N Witchduck Rd.
Virginia Beach City Attorney Mark Stiles sent WAVY.com this statement Friday:
We have been working with Dr. Bergano for quite some time, and we will continue to work with him to find an agreed resolution that is fair to everyone
Deputy City Manager Dave Hansen sent this statement to WAVY later in the day.
10 On Your Side will be following up on this case next week.
http://wavy.com/2015/11/06/dentist-says-city-officials-are-forcing-him-to-move-after-32-years/
WE RALLY 11/10/15
http://wavy.com/2015/11/10/locals-rally-in-support-of-dentists-relocation-protest/
Published: November 10, 2015, 7:19 pmVIRGINIA BEACH, Va. (WAVY) — Supporters rallied Tuesday around a dentist who plans to move his battle with city officials into court.
10 On Your Side first told you about Dr. Allan Bergano’s battle with the City of Virginia Beach Friday.
The city asked him to move last year to make way for a road project, but they offered a small fraction of what they’ve paid to other medical practices, Bergano said.
Then, he says, the city reneged on the deal altogether, but by that time he had already signed a lease in a new location.
“The city has to look at small businesses,” Bergano said. “We are the heart and soul of this community, and the message I have is, if they’re going to treat me the way they have done, nobody is safe.”
Bergano’s attorney says he wants the city to pay about $475,000 in relocation costs, and he plans to file suit Wednesday.
Outside the Witchduck Road location where Bergano has practiced for 32 years, long-time patients, friends, and coworkers held up signs showing their support, and drivers honked and cheered as they passed.
“I feel like the city has let him down in some way,” said Raul Padilla, who has known Bergano since 1983. “He sustained [his practice], he worked at it for 32 years, and it would be a shame to see it fall or diminish in some measure because of this.”
Bergano said he’s worked not only to build his practice, but also to help the community grow during his time in Virginia Beach.
“I will continue to make this community better. I believe in Virginia Beach, and I believe the city will do the right thing,” he said.
A spokesperson for the city said because the matter is headed to court, city officials would no longer comment.
Last week, however, the city manager sent a list of ways he says the city tried to work with Bergano.
City councilman Bob Dyer stopped by the rally and said although he was not familiar with all aspects of the story, he would talk with city officials about it.
Bergano Rebuttal to Hansen statement
Voluntarily moving? No. This is extremely misleading because it omits the fact that the city told us last year we had to move because the building would no longer be fit for business use. They ordered us out and gave us one year to find a new location. • We spent a year and tens of thousands of dollars finding a new place. We signed a lease because the city told us to. Now we have two leases. On the eve of our move the city pulls the rug out from under us and makes us stay put by refusing to pay to relocate us.
Good landlord? No. The city has been a terrible landlord. We are being forced to move because of the hostile environment the city has created, an environment that will kill the business that has taken us three decades to build.
Fair compensation? No. The city once again omits facts. It has not offered to compensate us the same way it did for the three dentists who were relocated when S. Witchduck was overhauled. • They got from $280,000 to $520,000. They city has refused to explain why we are being treated differently. And when we presented a relocation estimate of almost $500,000 one city official laughed in our face.
Better building? Yes. They have improved the building, not for the Berganos. They made it worse for us. http://wavy.com/2015/11/06/dentist-says-city-officials-are-forcing-him-to-move-after-32-years/http://wavy.com/2015/11/06/dentist-says-city-officials-are-forcing-him-to-move-after-32-years/http://wavy.com/2015/11/06/dentist-says-city-officials-are-forcing-him-to-move-after-32-years/
DECEMBER/2015 WE SUIT THE CITY
Friends and patients of Kempsville dentist Allan Bergano held a rally outside the Witchduck Office Court building at 256 N. Witchduck Road Nov. 10, 2015 in protest of the way the City of Virginia Beach has treated a relocation issue with his practice.
A dentist who says the city’s indecision as to whether he had to move his longtime dental practice has cost him a great deal of time, money and stress sued this week.
Dr. Allan Bergano’s filing in federal court in Norfolk also named as defendants two city employees he says issued the decisions: City Right of Way Agent Gail Salmons and Director of Public Works Philip Davenport. He also has sent letters to U.S. Sens. Mark Warner, Tim Kaine and Rep. Scott Rigell asking them to investigate the matter.
The problems between the city and the dentist began last year when the city bought the building on North Witchduck Road where Bergano has maintained his practice for 32 years and told him he had to move, according to the lawsuit. Bergano was told he would be compensated for expenses, the lawsuit says.
While he looked for an appropriate site, Bergano said his business suffered. A city road expansion project moved his office’s entrance and eliminated some parking. When some of the city’s Human Services Department relocated to the facility, employees and visitors took up most of the remaining parking, prisoners in handcuffs and jail jumpsuits were brought in, and homeless people camped out in the parking lot sometimes came inside his office. It made his patients and staff feel unsafe, the lawsuit says.
Bergano signed a lease for a new site in July and submitted an estimate of $458,393 for relocation costs. The expenses included hiring a real estate broker, advisers to help with the search, and all the new equipment and construction expenses required for such a move, said Joseph Waldo, one of Bergano’s lawyers.
The city denied the request. When Bergano threatened to appeal, he received a letter telling him that he did not have to move after all, and that he would be compensated only for the real estate broker fee and his time, even though the city has paid up to $520,000 for another dentist’s relocation, the lawsuit states.
Deputy City Attorney Christopher Boynton said this week the city had not been served yet and he did not believe it was appropriate to comment at this time.
A statement issued by Deputy City Manager Dave Hansen in November said the city has addressed Bergano’s concerns, including marking several parking spaces for his use, scheduling the inmates’ visits to times when the dentist’s office is closed, paying $2,500 for his real estate broker, and offering to pay for contractual expenses and time spent on the search.
Jane Harper, 757-222-5097, jane.harper@pilotonline.com
Southsidedaily.com is your source for free local news and information in Virginia Beach
A dentist who says the city intentionally disregarded his rights in an eminent domain case has filed a federal lawsuit over the matter and asked two senators and a congressman to seek an investigation into it.
Allan Bergano alleges in his complaint that the city acted at times with malice and with “callous disregard” for his constitutionally and federally protected rights regarding his longtime dental practice on North Witchduck Road. He also alleges the city failed to train its employees on areas of law involving displaced people and relocation benefits following a government’s acquisition of property.
Bargano’s lawsuit was filed late Tuesday afternoon in U.S. District Court in Norfolk by his attorney, Joe Waldo of the eminent domain firm Waldo & Lyle.
City Attorney Mark Stiles provided the following statement Wednesday by email through a city spokesman:
“We believe the city has treated Dr. Bergano fairly, but we have not yet seen the lawsuit, so we have no comment on it.”
In addition to the lawsuit, Bergano has sent letters to Sens. Mark Warner and Tim Kaine and Rep. Scott Rigell outlining what he describes as his “mistreatment” by the city of Virginia Beach and asking them to seek an investigation by the Federal Highway Administration into the matter.
The letters outline the history of Bergano’s dispute with the city and mention the dentist’s civic involvement in Virginia Beach.
“Dr. Bergano, among many other civic duties, recently chaired FilFest 2015 at Town Center which celebrated Filipino heritage and brought thousands of visitors to the City,” the letters say.
They are signed by the chairman of the Filipino American Community Action Group and the vice chairman of the Council of United Filipino Organizations of Tidewater, in addition to Bergano.
Bergano has leased space in an office building on Witchduck Road and practiced there for 32 years. He says the city acquired that building under threat of condemnation in 2014 for a road expansion project, and told Bergano that he would have to move his practice and be entitled to relocation assistance.
Bergano spent a year and thousands of dollars seeking a new location; when he signed a lease for a new spot, the city denied his request for relocation assistance, according to an email from a city employee that was filed with the lawsuit. Bergano’s estimated cost for build-out and equipment for the new spot totaled $458,000.
The city then reversed course and said Bergano could stay where he was. The city, after acquiring the building, had moved its Human Services Department into the offices around his dental practice, however, taking up parking spaces, bringing prisoners in handcuffs for evaluations, and drawing homeless people into the dentist’s office because all the other entrances to the building are kept locked, the letter to the legislators said.
Bergano says that situation has forced him to move.
Deputy City Manager Dave Hansen released a statement in early November regarding Bergano’s complaints.
“The city has accommodated Dr. Bergano and promptly addressed his concerns,” it said in part.
Hansen wrote that the city has offered to pay for the time the dentist and his wife spent in their search for a new place, “as well as any other contractual expenses that were undertaken,” but “no such expenses have been disclosed to the city.”
“The city has already paid $2,500 to compensate the real estate broker that Dr. Bergano engaged to search for a new office,” he wrote.
Bergano’s lawsuit, among other things, asks the judge to declare that Bergano is a displaced person under state and federal law and that the city deprived him of his rights. It seeks “appropriate compensatory damages” and attorneys’ fees and costs.
The city must adhere to federal law in the case because it received federal funding for the road expansion project, according to the complaint.
JUNE/2016 SECOND RALLY MOVE INTO NEW OFFICE
http://wavy.com/2016/05/30/judge-says-city-of-virginia-beach-treated-dentist-unfairly/
http://wavy.com/2016/05/30/judge-says-city-of-virginia-beach-treated-dentist-unfairly/
Published: May 30, 2016, 8:08 pm Updated: June 1, 2016, 11:46 pmVIRGINIA BEACH, Va. (WAVY) — A judge says a local dentist has been treated unfairly by the City of Virginia Beach.
Dr. Allan Bergano says he was low-balled by the city to move his practice to make way for the widening of Witchduck Road.
U.S. District Judge Henry Morgan says the city hasn’t been fair to Dr. Bergano and needs to be.
In 2014, Virginia Beach bought Dr. Bergano’s building, where he has been a dentist since 1983, and told him to move.
In July 2015, Dr. Bergano signed a lease for a new building and submitted a customary expense of relocation and buildup of new office to the city.
In August 2015, the city offered $25,000 for relocation, then later withdrew that. Other dentists got between $280,000 and $520,000 to relocate, but the city claims that was because those dentists had buildings that were destroyed. Dr. Bergano did not need to move, according to the city.
On August 20, 2015, the city informed Dr. Bergano, who has already committed to a new lease elsewhere, that he is not entitled to relocation funds, reversing their 2014 position.
The Human Services Department has moved into the building. Dr. Bergano says that move has brought inmates, homeless people and other people with severe issues into his dental business climate. Security guards now patrol the property. Bergano thinks this is no place to have a dental office.
On June 1, 2016, Dr. Bergano will move to a new site at his own expense.
“I just want to be treated like my colleagues, fairly, and I am not being treated fairly,” Bergano says.
Bergano wants Virginia Beach to pay him at least $400,000 to move his business. Today, there is no money on the table.
“I feel like they want to make me the poster child for future dentists, or other small businesses that have to move. They will be tough on them, and not pay a single dime,” Bergano says.
In an April 7 motions hearing, U.S. District Judge Henry Morgan told the City Attorney Mike Beverly: “You’ve got a citizen of the City of Virginia Beach who has been practicing dentistry for 30 years. He was treated very unfairly by the city.”
“The city has an obligation to treat Dr. Bergano fairly, but the city also has an obligation to the city taxpayers and not to give Dr. Bergano something that he is not entitled to under the law,” Beverly told WAVY News.
Judge Morgan continues: “The question is, can the city avoid that with some technical defense and say that he doesn’t have a cause of action even though they treated him grossly unfairly?”
“This is what we’ve been saying all along. Dr. Bergano has been treated unfairly by the City of Virginia Beach, and all he is looking forward to is to be treated as fairly as his colleagues have been,” says Bergano’s attorney, Brian Kunze, from the firm Waldo & Lyle.
Other doctors that had to move were paid hundreds of thousands of dollars.
Judge Morgan tells the city to settle, then shuts down Beverly: “The city ought to settle the case with the plaintiff, but the city ought not be treating people like this unfairly, which is what they’re doing.”
According to the transcript:
MR. BEVERLY: May I respond, Your Honor?
THE COURT: (Judge Morgan) No.
10 On Your Side’s Andy Fox asked Beverly whether the line of statements from the Judge that will hear the case is bad news for him.
“We trust Judge Morgan will give us a fair trial once the city presents its side of the case,” Beverly responded.
This is really important for the city because Judge Morgan is hearing the case.
On Wednesday, Dr. Bergano moves his business to his new office at his own expense. Dr. Bergano’s family and friends will rally at the old business that day at 4:30 p.m. to protest what the city has done.
📷
💫
📷💫
cite=“https://www.facebook.com/we.are.FANHS/posts/173049746720804” class=“fb-xfbml-parse-ignore”>Posted by href=“https://www.facebook.com/we.are.FANHS/”>FANHS Legacy MONTH on href=“https://www.facebook.com/we.are.FANHS/posts/173049746720804”>Thursday, June 14, 2018
its never over until its over….
http://wavy.com/2017/06/23/berganos-attorney-to-get-around-200k-in-va-beach-eminent-domain-case/
Taxpayers in the City of Virginia Beach got somewhat of a break in a recently settled eminent domain case.
WAVY’s Andy Fox reports Joe Waldo, the attorney for Joseph Bergano, wanted $600,000 in attorney fees. The city thought he was due $94,000.
“We deserve the cost of the case and the attorney fees that are about $600,000,” Waldo said.
Bergano, a dentist, took the city to court because they told him he could stay in his building but he had already made plans to move and thought he should be compensated.
Federal judge Henry Morgan said Friday he did not think the case was special enough to warrant the legal fees Waldo thought he deserved. Waldo will get around $200,000.
“There has to be some reduction … Mr. Waldo’s hours were filled in long after the work was performed, and the starting date is difficult to determine when the clock started running.”
Va. Beach taxpayers got somewhat of break in Bergano relocation case. Their legal fees paid by city but not as much as wanted. @WAVY_News
The city recently settled with Bergano for $175,000. City attorney fees for Kaufman & Canoles attorney Hunter Sims was in excess of $336,000, including expert witness fees and other fees.
Of Waldo’s fees, Morgan said Friday, “I don’t think the plaintiff can recover expert witness fees … I believe a reasonable legal fee is around $200,000.”
Judge Morgan also dinged Waldo due to poor billable hour records.
“If we had kept better records the judge would have paid more he said that,” the judge said.
Andy Fox asked, “Was that a mistake to do that?” Waldo answered: “It wasn’t a mistake, it was just how we were moving through that case.”
One could argue it was a mistake if you ended up getting less than what you could have because you did it.
It would also appear the real losers in the case are Virginia Beach Taxpayers because with that $200,000 to Waldo here is the breakdown of the cost:
The Bergano Case — Cost To Taxpayers
To Dr. Bergano: $175,000
Attorney Fees: $200,000
City’s Outside Council: $310,000
Expert Witnesses: $39,439
Total: $724,439
“Taxpayers lost because the city fought the Berganos as the judge said at every turn, so in the end [Virginia Beach failed to give them] due process and equal protection and because of that the City of Virginia Beach lost,” Waldo said.
Judge Morgan has been critical of how the city attorney’s office handled the case from the start.
“It is unfortunate you don’t have a negotiating partner, and the city didn’t have one for the first two years of this case,” said Deputy City Attorney Chris Boynton.
Dr. Bergano sharply disagrees.
“The city doesn’t understand when they are wrong,” Bergano said. “They don’t know what they are supposed to do. I still haven’t heard an apology and all they are saying is we are being uncooperative, which is not true.”
Waldo told 10 On Your Side that he thought Friday was a victory, and he got $200,000 from the city, his client won and hopefully the city learned a less on how to treat people displaced by city projects.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
Plaintiffs,
CITY of VIRGINIA BEACH, GAIL E. SALMONS, and PHILIP A. DAVENPORT,
Defendants.
ORDER
This matter is before the Court following a bench trial held February 7, 2017 through
February 9, 2017 at which Plaintiffs Dr. Allan L. Bergano, D.D.S. (“Dr. Bergano”) and Dr. Allan
Salmons, and Phillip A. Davenport (“Defendants”) presented evidence and argument. After the trial, the Court FOUND the City liable to Plaintiffs. The Court instructed the Parties to submit briefs for the Court to consider in ruling on damages, including whether Plaintiffs are entitled to attorneys’ fees. These findings of fact and conclusions of law explain the Court’s reasoning as to liability.
Plaintiffs are a dental practice and a dentist. Defendant Salmons is a Right of Way Agent for the City, and Defendant Davenport is the Director of Public Works for the City.
Dr. Bergano operated a dental practice at 256 North Witchduck Road, Virginia Beach, Virginia for over thirty (30) years and served approximately 2,000 patients. For that entire period, Dr. Bergano leased office space in the Witchduck Office Court building owned by Jerry Collier (“the Witchduck building”). The Parties agreed that Mr. Collier and Dr. Bergano maintained an excellent landlord-tenant relationship. By 2014, Dr. Bergano leased approximately 1,350 square feet of space in the Witchduck building.
The Witchduck building is bounded by North Witchduck Road, a heavily trafficked thoroughfare; Admiral Wright Road; and Jersey Avenue. Curb cuts into the parking lot provide visitors with access points from each road.
In early 2014, Dr. Bergano’s wife, an employee at the dental practice, attended a public meeting on the City’s proposed project (“the Project”) to widen Witchduck Road, the heavily trafficked thoroughfare. At the meeting, Mrs. Bergano learned that the City’s construction plans would eliminate parking spaces around the Witchduck building, limit direct access from the property to North Witchduck Road, and convert the adjoining Admiral Wright Road into a cul-de-sac. The Project received federal and state funding. Def Ex. 3.
In the spring of 2014, James Lawson, a City real estate agent, learned that the City planned to purchase a portion of the Witchduck building property to facilitate its widening project. Mr. Lawson approached City Council with the City’s plan to purchase the property.
David Hansen, then a deputy City Manager, discussed the property purchase with Mr. Lawson, and they concluded that the City would use the Witchduck building to house other City offices and personnel. PI. Ex. 20. In fact, evidence at trial established that by July 17, 2014, Mr. Hansen and the City had purposed to let Plaintiffs continue leasing space in the building for the foreseeable future. Mr. Hansen testified, “[I]t was clear to me that we did not need that space.”
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 2 of 26 PageID# 1301
Mr. Lawson arranged for two (2) appraisals of the portion of the property the City planned to purchase. The first appraisal was approximately $78,000. However, Mr. Lawson recognized that the City’s Project would eliminate up to eighteen (18) parking spaces around the Witchduck building and potentially incentivize drivers to cut through the property as a shortcut to North Witchduck Road. He raised these concerns with the appraiser, and the appraiser reevaluated the damage to the residue of property at over $601,000. PI. Ex. 20. Mr. Lawson then met with Defendant Davenport, and the City decided to acquire the entire Collier property rather than a portion because the damage to the residue would equal a large percentage of its entire value.
The City offered to purchase the entire Witchduck building property in the spring of 2014. At trial, the Court additionally FOUND that while the City was negotiating thepurchase of the Witchduck building, the City instructed Mr. Collier not to extend existing leases or negotiate new leases with tenants. In exchange, the City paid him additional monies corresponding to the rent payments he would have received had he retained two other tenants and acquired an additional tenant. PI. Ex. 11. Mr. Collier closed on the purchase of the entire Collier property by the City on September 9, 2014.
At trial, Mr. Lawson testified that the City policy was to inform tenants that the City had purchased their landlords’ property only after the sales were completed because this practice prevented tenants from prematurely ending their leases. However, in July 2014, before the City purchased the Collier property, Mr. Lawson informed its only tenant. Dr. Bergano, that the City would purchase the Witchduck building. At Deputy City Manager Hansen’s direction, Mr. Lawson told Dr. Bergano that he would need to relocate his dental practice because the City would be using the entire property. Mr. Lawson communicated the implication of the Project to Dr. Bergano and informed him that the City could execute a new month to month lease with him
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 3 of 26 PageID# 1302
before he would have to relocate. Mr. Lawson retired at the end of 2014, and Defendant Salmons replaced him as the City’s relocation liaison officer to Plaintiffs.
Dr. Bergano testified that the City informed him of its acquisition of the Witchduck building and required him to sign a new month to month “Possession Agreement”‘ with the City within ten (10) days or forfeit his relocation benefits. On September9, 2014, though it restricted his rights compared to his previous lease, Dr. Bergano entered into a Possession Agreement (“PA”) with the City. PI. Ex. 5. The PA allowed Plaintiffs to “stay in the Premises pending relocation… for a period of twelve months, beginning on September 9, 2014, and ending no later than September 15, 2015.” Id, ^ C. Dr. Bergano understood that he needed to relocate his practice by September 15, 2015 and accordingly began searching for a new practice location.
On September 15, 2014, Defendant Salmons delivered a letter and attachments to Dr. Bergano at his practice. Def Ex. 48. The letter indicated that Plaintiffs were eligible for relocation benefits, and the attachments included the City’s Business Relocation Assistance brochure, which contained information about benefit options as well as information concerning appeal rights from an adverse decision by a city official. Id; ^ PI. Ex. 6.
In August 2015, the City relocated five (5) divisions of its Human Services Department (“HSD”) to the Witchduck building. Dr. Bergano testified that the presence of his new cotenants “created a very toxic environment:” all HSD office doors were locked; a security guard monitored the building twenty-four (24) hours a day; inmates in orange jumpsuits assisted in moving the HSD offices into the building, Def Exs. 102, 112, 114, 119, 126, 127, 138;^ inmates ‘ The City’s position was to distinguish the “Possession Agreement” from a month to month lease as the term lease in itself might potentially confer additional rights to the occupant/tenant.
^ The City presented internally conflicting evidence as to whether inmates in orange jumpsuits also performed landscaping work at the Witchduck building.
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 4 of 26 PageID# 1303
in orange jumpsuits escorted by guards visited the building for periodic evaluations; and the City posted a “Police Parking Only” sign reserving a parking space for City police cars. PI. Exs. 16, The security guard once harassed a young African American male dental patient and even once questioned Dr. Bergano why he was present at the building. Dr. Bergano indicated that HSD clients often entered his offices to ask for directions to the HSD offices because Dr. Bergano’s door was the only unlocked door, and if the practice provided unsatisfactory answers, some clients became angry. Dr. Bergano testified that he “felt like a hostage,” and his staff and patients felt threatened. HSD clients also slept overnight in the Witchduck building parking lot, and the increased activity at the building made parking difficult for his patients and staff. Dr. Bergano testified that his lease with Mr. Collier had reserved eight (8) parking spaces for the dental practice, and when he complained to the City about the parking difficulties after HSD’s move, the City reserved only four (4) spaces for the dental practice although he and his staff alone needed five spaces.
necessary modifications or “build-out” of the property, and bids for any new required dental equipment. Evidence at trial indicated that Defendant Salmons repeatedly encouraged Plaintiffs to keep the City informed about their progress and expenses during their relocation search process. Def. Ex. 81.
Therefore, Plaintiffs hired commercial real estate broker John Wessling to search for a new dental practice location. After a few months of unsuccessful searching, during which Plaintiffs suffered fire damage to their home, Plaintiffs hired another broker, Robert Carter, who Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 5 of 26 PageID# 1304
was recommended by a physician friend. Mr. Carter and Plaintiffs examined various properties, visited approximately seven (7), and eventually chose 4460 Corporation Lane, Virginia Beach, Virginia. Mr. Carter testified that access was an important concern in locating a suitable property, as was parking. The Corporation Lane suite was previously used as a general medical practitioner’s office and needed substantial renovations to make it suitable for a dental office.
Dr. Bergano and Mr. Carter testified to the precise arrangement of dental operatories required to ensure a dentist’s mobility while preventing physical strain on the dentist and patient and staff comfort. The Corporation Lane office space had been partitioned for a group of different offices and had unsuitable flooring, electrical work, plumbing, and HVAC facilities. At the trial, the Court FOUND that the space had to be reduced to “shell” condition because it was necessary to virtually gut the space in order to properly rebuild it for a dental practice.
On July 27, 2015, after months of searching. Plaintiffs signed a ten-year lease for approximately 2,511 square feet of space in the Corporation Lane property, PI. Ex. 8, with approximately 2,200 square feet ofusable space. The lease parties agreed that Plaintiffs would have until August 31, 2015 to secure fiinding from the City or other sources to modify the space for the dental practice. Id
For eight (8) months. Plaintiffs paid rent for both the Witchduck building and the Corporation Lane property. At the trial, the Court FOUND that Plaintiffs did not breach the Corporation Lane property lease. The City made the curious argument that the Plaintiffs had breached the contract by failing to provide written evidence of their financial ability to perform the lease and therefore the Plaintiffs had not secured the binding lease necessary to become eligible for relocation benefits. In other words, the City argued the Plaintiffs breached the lease as an excuse for the City to deny them relocation benefits, although the City was not a party to the lease. The City, having subpoenaed but not called the landlord at Corporation Lane to testify, presented no
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 6 of 26 PageID# 1305
evidence that the landlord found the lease breached although the written evidence of financial ability from Plaintiffs was never forthcoming. In fact all of the evidence in the case established that the Plaintiffs performed the lease by completing the build out, occupying the new office suite, and paying the rent beginning in June 2016 until the trial. The Court rejected this argument by the City.
On July 27, 2015, Plaintiffs’ counsel wrote a letter to Defendant Salmons notifying the City that Plaintiffs had signed a lease for the Corporation Lane property, which was in “shell” condition. Def. Ex. 89. In early August 2015, Plaintiffs submitted bids for modifications to Defendant Salmons for her approval and selection. Defendant Salmons subsequently visited the Corporation Lane space and considered the proposed renovations. Def. Ex. 90. Defendant Salmons testified that the City awards displaced businesses up to $25,000 for reestablishment expenses such as advertising, painting and carpeting, an amount in addition to any building and moving expenses due. On August 5, 2017, Defendant Salmons emailed Plaintiffs’ counsel and Plaintiffs to inform them that “the City of Virginia Beach will not approve the expense to build out the location at 4460 Corporation Lane, Suite 190 as proposed.” Id She stated that “it was apparent that the location would accommodate the dental practice with minor modifications and exceeds what the dental [practice] currently occupies.” Id At trial, the Court FOUND that the existing suite required major modifications and that the costs of the modification and the addition work necessary to bring it up to code were reasonable and in line with the two estimates that were previously supplied to the City, as long as it was adjusted to reflect the expansion of the number of operatories.
On August 12, 2015, Plaintiffs’ counsel wrote to Defendant Salmons memorializing anin-person meeting about Plaintiffs’ relocation assistance requests and informing her that “the Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 7 of 26 PageID# 1306 firm will be appealing the City’s decision regarding the build out costs of the Berganos’ new office and relocation costs.” Def Ex. 100. On August 19, 2015, Plaintiffs’ counsel wrote to a City real estate agent and Defendant Salmons to “request a date for the Bergano’s [sic] appeal” and urged a speedy response as “time [was] ofthe essence.” PI. Ex. 10.
On August 20, 2015, the day after Plaintiffs filed their formal request for appeal. Defendant Davenport sent Plaintiffs a letter reversing the City’s decision that the dental practice needed to relocate. The letter made no mention of the City’s decision contesting the amount of relocation expenses or Plaintiffs’ right to appeal either of the two conflicting decisions. Def Ex. It stated, “[t]he City has now determined that the subject property will no longer be needed exclusively for City offices; consequently your client will not be required to relocate.” Id (emphasis added). The letter offered to reimburse Plaintiffs for “any expenses incurred to satisfy any contractual relocation obligations entered into after the effective date of the notice of relocation eligibility.” Id However, the City now argues that the Plaintiffs could have avoided their lease obligation by breaching their lease.
In fact, the decisions that Dr. Bergano’s suite was not needed by the City had been made more than thirteen (13) months earlier when the City, through Deputy City Manager Hansen, reached the decision to buy the Witchduck Building, the closing on which did not occur until September 2014. PI. Ex. 17. However, Deputy City Manager Hansen’s decision was never conveyed to Dr. Bergano until the arrival of the August 20, 2015 letter signed by Defendant Davenport. Based upon the testimony in the trial, the exhibits and the Court’s inference that Davenport’s testimony would have been unfavorable, s^ infra Part I.F, the Court infers that Davenport would have disclosed that the August 20, 2015 letter was not a recent decision but 8 Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 8 of 26 PageID# 1307 rather a restatement of Hansen’s July 17, 2014 email which other involved city officials either ignored or overlooked. Clearly the City acted arbitrarily and capriciously.
On September 9, 2014, Deputy City Manager Hansen signed the Possession Agreement (“PA”) on behalf of the City, which PA said that Dr. Bergano “has been permitted to stay in the Premises pending relocation.” PI. Ex. 5, HB (emphasis added). Defendant Salmons testified at trial that Plaintiffs never received a hearing after they requested an appeal. Defendants attempted to lay the groundwork to suggest that they considered the settlement conference between Plaintiffs’ counsel and City officials to be hearings. However, Mr. Hansen also testified that Plaintiffs never received notice of a date or time or place to appeal the City’s denial of relocation benefits. The evidence establishes that the Plaintiffs never received notice of an appeal of the City’s determination that they no longer qualified as “displaced persons” eligible for relocations benefits.
The Court FOUND that the City failed to provide notice to Plaintiffs and failed to provide initial hearings or an appeal of such hearings, which conduct is part of the Court’s finding that the City acted arbitrarily and capriciously.
Defendants argued at trial that Plaintiffs had not moved to the Corporation Lane property by the time the City reversed its relocation determination, and Plaintiffs were therefore not “displaced persons.” S^ Va. Code § 25.1-400. The Court did not accept this argument and FOUND that Dr. Bergano and his corporate practice entity were displaced persons. In June 2016, Dr. Bergano completed the removal of his dental practice to 4460 Corporation Lane.
Evidence at trial established that the City paid Dr. Bergano $2,500 to cover Mr. Carter’s relocation expert fees and $2,500 for one (1) month’s rent at the Corporation Lane property while Plaintiffs and the City continued negotiations for the monthly period.
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 9 of 26 PageID# 1308
£. Comparison of Witchduck Building to Other Locations
Defendants introduced expert testimony concerning the suitability of and access to the Witchduck building after the City’s acquisition and upon completion of the project. Defendants’ experts, real estate appraiser Thomas Tye and commercial real estate broker Peter Abraham, testified that the Witchduck building was appropriate for Plaintiffs’ dental practice and comparable to the Corporation Lane property into which it relocated. For example, they testified that Virginia Beach dentists—including Plaintiffs—can comfortably share their tenant space with counseling and mental health providers. Plaintiffs previously shared the Witchduck building with Tidewater Psychotherapy, which provided mental health evaluations and services, including for prison inmates. In addition, Plaintiffs shared the Witchduck building with the City’s HSD, which they opine provided similar services. The experts equated these mental health providers to Plaintiffs’ current Corporation Lane cotenant, Christian Psychotherapy, a counseling and mental health center which treats inmates who enter through a back entrance and are discreetly led to its offices.^ Finally, the experts drew a comparison between a dental office which shared space in another Virginia Beach office space in the Pembroke area with HSD offices before some of those HSD personnel were relocated to the Witchduck building.
Mr. Abraham interviewed a security guard who advised him that he had observed no incidents at Witchduck, however, there were multiple security issues including apparently another security guard harassing a black patient of Dr. Bergano’s as well as accosting Dr. Bergano himself Also, he did not mention the “police only” parking sign and the multiple instances of HSD patients entering Dr. Bergan’s office, sometimes with very unpleasant consequences for Dr. Bergano’s
^ The Court notes that Christian Psychotherapy moved into the Corporation Lane property in December 2015.
Plaintiffs had signed their Corporation Lane lease in July 2015, before they knew that Christian Psychotherapy would also move into the Corporation Lane property.10
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 10 of 26 PageID# 1309
staff.”^ Defendants indicated that Plaintiffs’ tenant mix in its old and new locations is similar and the HSD presence at the Witchduck building could not have made the location unsuitable for a dental practice. Mr. Abraham relied upon the fact that HSD shared a building in the Pembroke area with a dentist. However, the HSD presence at Witchduck combined HSD offices from five (5) different locations throughout the City, each of which performed a different function involving different patient interaction and is therefore not a valid comparison Mr. Abraham also examined the surrounding neighborhoods, demographics, and access points of Plaintiffs’ former and current office locations. Def Exs. 197, 198, 200, 201, 202A-C. He stated that the locations are similar, and are both “very good” for a dental practice, though the Corporation Lane property is of a slightly better quality and has better amenities in the immediate area. As for access, Mr. Abraham opined on direct examination that the completed Project will make access to the Witchduck building not “ideal” because the closing of the North Witchduck Road curb cut and the cul-de-sac at Admiral Wright Road will necessitate making several turns to enter the parking lot. However, access to Witchduck will still be “good,” he further opined.
The Court found some witnesses persuasive and discounted the testimony of others. The Court discounted the testimony of Defendants’ expert, Thomas Tye, as it was neither well grounded nor impartial. The Court considered Defendants’ expert, Peter Abraham, to be impartial, but his opinions did not account for the entirety of the evidence. For example, Mr. Abraham testified that the tenant mix of the Witchduck building and access of the Witchduck building before and after the Project will be acceptable for a dental practice. However, it is All HSD entrances at Witchduck are kept locked leaving security, when present, and Dr. Bergano’s office the only sources of information and guidance.
11Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 11 of 26 PageID# 1310
apparent that the City’s acquisition of the Witchduck building interfered with the access to the property. Additionally, the Court concluded that Mr. Abraham was unaware of the security guard’s harassing Dr. Bergano and at least one dental patient, and these events affect the suitability of the Witchduck building. The presence of inmates at the building for moving or landscaping also certainly had some impact on the character of the property, even if minor. No evidence was presented that the inmates entered the Witchduck building through a back entrance as they do at the Corporation Lane property. As noted supra, Mr. Abraham did not consider the very different experience Dr. Bergano had with HSD as opposed to the private mental counseling offices at both his old Witchduck and new Corporation Lane offices. Mr. Abraham also seemed to be unaware of the “Police Parking Only” sign at the Witchduck building, which is unusual and disconcerting for a professional office property. Ultimately, the Court FOUND that the Witchduck building’s tenant mix after HSD’s occupancy was unsuitable for a dental practice, and its elimination of access was or would become detrimental to Plaintiffs.
The Court noted that Defendant Davenport did not testify, though he was present in the courtroom throughout the trial. The Court therefore drew the inference that his testimony would harm Defendants. It is well settled that a party’s “failure to testify as to facts material to his case and as to which he has especially full knowledge creates an inference that he refrained from …testifying because the truth, if made to appear, would not aid his contention.” Scott v. Watsontown Trucking Co. Inc.. 920 F. Supp. 2d 644, 654 (E.D. Va. 2013) (quoting Grav v.Great Am. Recreation Assoc.. Inc.. 970 F.2d 1081, 1082 (2d Cir. 1992)). The Court infers from Mr. Davenport’s failure to testify, from Deputy City Manager Hansen’s memo of July 17, 2014^ and from the other evidence in the case that Hansen directed Davenport to write the August 20, “Let’s try to keep the dentist in business so figure out what he is paying now and offer annual leases with a 3% escalator.” Def. Ex. 17.12 Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 12 of 26 PageID# 1311
2015 letter to Dr. Bergano informing him that he was no longer a “displaced person.” Notably,this letter of August 20, 2015, was the first correspondence from the director of public works, Mr. Davenport, to the Plaintiffs.
The Court found the City liable to Plaintiffs but did not find the individual Defendants liable to Plaintiffs. Municipalities are Hable under 42 U.S.C. § 1983 (“§ 1983”) when they follow a “custom, policy, or practice by which local officials violate a plaintiffs constitutional rights.” Owens v. Baltimore City State’s Attorneys Office. 767 F.3d 379, 402 (4th Cir. 2014) (citing Monell v. Dep’t of Soc. Servs. of City of N.Y.. 436 U.S. 658, 694 (1978)). A city’s impermissible act can occur (1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that ‘manifests deliberate indifference to the rights of citizens’; or (4) through a practice that is so ‘persistent and widespread’ as to constitute a ‘custom or usage with the force of law.’
Lvtle V. Doyle. 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris. 164 F.3d 215, 218 (4th Cir. 1999)). The policy or custom must be “(1) fairly attributable to the municipality as its ‘own,’ and [ ] (2) the ‘moving force’ behind the particular constitutional violation.” Spell v. McDaniel. 824 F.2d 1380, 1386-87 (4th Cir. 1987) (citation omitted).
The City has three policies affecting this case: (1) the City does not inform tenants of pending purchases of buildings when it wants those tenants to stay for the City’s profit or convenience, (2) the City does not consider a business eligible for relocation assistance before it has physically moved prior to being notified not to relocate, and (3) the City regularly has paid dentist offices relocation expenses. The City enacted these policies through Deputy City Manager Hansen, who 13
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 13 of 26 PageID# 1312
had authority to implement final policy on behalf of the City on relocation issues.^ Hansen signed the Possession Agreement with Dr. Bergano on behalf of the City, and he was ultimately responsible for the City’s interaction with Plaintiffs. His policy decisions included when to inform Dr. Bergano about the pending purchase, deciding that the City could declare Plaintiffs not displaced because he had not physically moved, and refiising to pay Plaintiffs’ relocation expenses. He also directed the actions of other individuals such as Mr. Lawson and Defendant Mr. Davenport. The injuries in this suit arise from Hansen’s, Davenport’s, and Salmon’s implementation of City policy. Thus, City policy is the proximate cause and the “moving force” responsible for the injury to Plaintiffs, and the City is liable for those injuries. Individual government officials are protected from liability under § 1983 by qualified immunity. They are not liable for discretionary actions within the scope of their authority as long as those actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald. 457 U.S. 800, 818 (1982). As a result, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Mallev v. Briggs. 475 U.S. 335, 341 (1986), Defendants Davenport and Salmons acted within the scope of their authority and followed the policies of the City in their interactions with Plaintiffs. Neither violated clearly established law in their individual interactions with Plaintiffs because they were following City policy, which they did not understand to be unconstitutional at the time they acted. In fact, Mr. Davenport’s letter of August 20, 2015 also followed the regulations in effect, basing eligibility for relocation benefits on the moving date. He also wrote that letter of August 20, 2015 at the direction of Deputy City ®The City Manager is the executive and administrative head of the City of Virginia Beach. See Charter, 1962 Va.Acts c. 147. He undoubtedly has the authority to implement final policy. Here, Deputy City Manager Hansen exercised the City Manager’s authority to implement final policy in the City’s interactions with Plaintiffs. See, e.g..
14
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 14 of 26 PageID# 1313
Manager Hansen. While the regulations and City policies were unconstitutional, as explained below, Davenport and Salmons acted in accordance with City policy. Thus, while the City is liable, Davenport and Salmons are protected by qualified immunity.^
The City is liable to Plaintiffs for the reasons stated below.
The City violated Plaintiffs’ procedural due process rights by failing to provide any notice, hearing, or appeal to Plaintiffs as to the denial of the requested relocation expenses and as to its later determination that Dr. Bergano did not qualify as a “displaced person.”
Under the Due Process Clauses of the Fifth and Fourteenth Amendments, the government must provide a person with due process of law when acquiring his property. U.S. Const, amends. V, XIV. To succeed on a procedural due process claim, a plaintiff must demonstrate he (1) “had a constitutionally cognizable life, liberty, or property interest,” (2) “the deprivation of that interest was caused by ‘some form of state action,'” and (3) “the procedures employed were constitutionally inadequate.” Sansotta v. Town of Nags Head. 724 F.3d 533, 540 (4th Cir. 2013)
(quoting Iota Xi Chapter of Sigma Chi Fraternity v. Patterson. 566 F.3d 138,145 (4th Cir. 2009)) (requiring three elements to prove a procedural due process claim); Clear Skv Car Wash. LLC v. City of Chesapeake. Va.. 910 F. Supp. 2d 861, 885 (E.D. Va. 2012) (requiring three elements to plead a procedural due process claim); ^ Svlvia Dev. Corp. v. Calvert Cntv.. Md.. 48 F.3d 810, 826 (4th Cir. 1995). ‘ In addition, the Court must treat any liability for Davenport and Salmons in their official capacity as liability for the City rather than the individual defendants. See Kentucky v. Graham. 473 U.S. 159, 166 (1985). Thus, this Order discusses the City’s liability as a whole without distinguishing official capacity liability for various City agents.
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 15 of 26 PageID# 1314
Plaintiffs demonstrated constitutionally cognizable property interests. A protected property interest is a legitimate claim of entitlement defined by existing statutes or other recognized rules. Bd. of Regents of State Colleges v. Roth. 408 U.S. 564, 577 (1972). Plaintiffs have protected property interests defined by state law. First, Plaintiffs are entitled to access to the building. The lease with the City requires the City “to use reasonable efforts to minimize any disruption to the Tenant’s business (including access to, and visibility of, the Premises) caused by ongoing construction around the Premises.” Ex. 5, H19. This contractual provision makes Plaintiffs’ interest in access to the building protected by state law. Second, Plaintiffs are entitled to access to parking. The City extended a commercial lease with Plaintiff, which it knew would necessitate access to parking. S^ id. H1• Thus, the lease makes Plaintiffs’ interest in access to parking protected by state law. Third, Plaintiffs are entitled to the suitability of the property for use as a dental office. The lease with the City states that Plaintiffs premises “shall be used as a dental office and for no other purpose.” Id The City’s explicit restriction on Plaintiffs also binds the City by implication. S^ Fuller v. Laurens Ctv. Sch. Dist. No. 56. 563 F.2d 137, 142 (4th Cir. 1977).
Thus, the lease makes Plaintiffs’ interest in the suitability of the property protected by state law. Finally, Plaintiffs are entitled to relocation benefits under Virginia law. State statutes provide that displaced persons are entitled to relocation assistance from a state agency displacing them. S^ Va. Code § 25.1-400 et seq. The City also informed Plaintiffs of their eligibility for relocation assistance. Def. Ex. 48. Thus, Plaintiffs’ have an interest in relocation benefits protected by state law.
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 16 of 26 PageID# 1315
The City’s actions deprived Plaintiffs of those property interests. The City modified access to the building and restricted the available parking. The City also added the five HSD sections to the Witchduck building that made it unsuitable for a dental practice. The City informed Plaintiffs in writing contained in the PA that they must relocate. PL Ex. 5., ^ B. It then refused to pay relocation benefits and subsequently declared that Plaintiffs were not eligible for relocation benefits. Def Exs. 96, 111. Thus, the City’s actions caused the deprivation of Plaintiffs’ interests and were arbitrary and capricious.
The City’s procedures were constitutionally inadequate. The central meaning of procedural due process is the right to an opportunity to be heard and notice of that opportunity. Fuentes v. Shevin. 407 U.S. 67, 80 (1972); ^ United States v. Farmer. 274 F.3d 800, 803 (4th Cir. 2001). Courts measure the adequacy of procedural due process by a three factor test: “(1) ‘the private interest that will be affected by the official action;’ (2) ‘the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;’ and (3) ‘the Government’s interest, including the . .. administrative burdens that the additional or substitute procedural requirement would entail.’ Farmer. 274 F.3d at 803 (quoting Mathews v. Eldridge. 424 U.S. 319, 334-35 (1976)).
The private interests at issue. Plaintiffs’ property interests, are at high risk of erroneous deprivation because the City failed to provide Plaintiffs with the central rights of procedural due process: notice and an opportunity to be heard. While never granted a hearing, Plaintiffs submitted an August 12, 2015 letter through counsel declaring an intent to appeal, Def Ex. 100, and there is no evidence that the City ever responded to this letter. In addition. Plaintiffs’
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 17 of 26 PageID# 1316
counsel’s August 19, 2015 letter requesting a date for time and place of an appeal was an unambiguous request for an appeal. Instead of granting the appeal or any other form of hearing, the City made this an adversarial process on August 20th when it sent a letter stating that Dr. Bergano was no longer considered displaced. A hearing should simply declare Plaintiffs’ rights and attempt to make Plaintiffs whole if they have been damaged. The City’s adversarial approach and lack of any hearing made the process of protecting Plaintiffs’ rights unnecessarily difficult.
The papers that the City provided Plaintiffs offer no substitute for core procedural due process. The City’s brochure is unclear as to how relocation benefits are calculated and awarded. PI. Ex. 7. For example, how would Plaintiffs have known they are entitled to the lesser of cost of moving the old equipment or buying new equipment? Furthermore, the City’s brochure and VDOT attachments are unclear as to how a displaced person has to prove relocation expenses. id A hearing could have resolved these unclear statements by explaining those processes to Plaintiffs. The City’s denial of a hearing, whether initial or through the requested appeal, denied Plaintiffs the opportunity to clarify their rights and reach a resolution with the City.
Federal regulations confirm the inadequacy of the City’s processes here. Evidence at trial established that this project was funded by both federal and state money and thus subject to both sets of regulations. Federal regulations require that the notice denying relocation assistance describe the right to appeal that determination. 49 C.F.R. § 24.203(a)(5) (2017). Instead of providing that information in Plaintiffs’ notice, the City relied on the appeal notice in the City’s brochure on relocation assistance. Furthermore, the brochure was incorrect, as it described appealing a decision to VDOT in Richmond, which was not how the City conducted appeals.
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 18 of 26 PageID# 1317
The City’s failure to explain the right to an appeal in the notice to Plaintiffs, and its failure to correctly explain the right anywhere, violated the processes that it was explicitly required to implement.
Plaintiffs’ counsel’s familiarity with cases of this type is also no substitute for providing notice and an appeal to Plaintiffs. Procedural due process requires notice to “a oartv with a property interest of the possible deprivation of that interest.” Plemons v. Gale. 396 F.3d 569, 573 (4th Cir. 2005) (citing Mullane v. Central Hanover Bank & Trust Co.. 339 U.S. 306, 315 (1950)) (emphasis added). There is no exception to the notice requirement for parties who hire experienced counsel. Furthermore, creating such an exception would punish parties for hiring counsel. Plaintiffs did not lose the right to notice by hiring counsel familiar with these types of cases, and the City cannot rely on that familiarity as an excuse for failing to provide notice.
The City’s letter of August 20, 2015 only increased the risk of erroneous deprivation, as it was inadequateto deprive Plaintiffs of their property interest in relocation assistance. The City argues that Plaintiffs are not entitled to relocation benefits because it denied their eligibility in writing pursuant to 24 Va Admin. Code 30-41-30 (2017).^ The regulation provides, in relevant portion, that: Persons who do not qualify as a displaced person under these regulations include:… 5. A person who, after receiving a notice of relocation eligibility, is notified in writing that it would not be necessary to relocate. Such notice shall not be issued unless the person has not moved and VDOT agrees to reimburse the person for any expenses incurred to satisfy any binding contractual relocation obligations entered into after the effective date of the notice of relocation eligibility.
Id. While the City is correct that it followed the regulation to deprive Plaintiffs of their status asdisplaced persons, the Court FINDS that the regulation is unconstitutional as applied to these ®The City’s original notice cited the corresponding federal regulation. ^ Def Ex. 111. The City now argues for deference under the state regulation. Doc. 71 at 5. Since the text of both regulations is identical, the Court’s conclusions are the same regardless ofwhich regulation the City applied here.
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 19 of 26 PageID# 1318
facts and that its facial constitutionality is suspect. The Court further FINDS that Plaintiffs are displaced persons and entitled to relocation benefits under the Virginia statutes. The City’s application of the regulation is unconstitutional because it allowed the City to deprive Plaintiffs of relocation assistance at any time before Plaintiffs physically move property, regardless of how long Plaintiffs operated under the assumption that they will relocate. Proper notice is reasonably calculated to apprise a party of the pendency of its deprivation of property. Plemons. 396 F.3d at 573 (citing Mullane. 339 U.S. at 315). The City’s letter of August 20, 2015 was not proper notice. The City could not reasonably tell Plaintiffs they had to move within twelve (12) months and eleven (11) months later declare that Plaintiffs could not move without adverse consequences. Professional businesses cannot possibly avoid incurring moving costs until their physical move date. The City contracted to buy the Witchduck building from Collier in July 2014 and knew how much property it would be using (and not leasing) such that it would not have needed to tell Plaintiffs that the City needed the entire building. Def Ex. 17. The City did not afford adequate procedural protections to Plaintiffs when it waited to tell them they did not have to relocate until August 20, 2015, after Hansen had remarkably authorized a year-long Possession Agreement with Plaintiffs to run from September 14, 2014 to September 15, 2015 referring to Plaintiffs having to relocate after he authored the July 17 e-mail stating the City did not need Dr. Bergano’s office space. The City’s notice to Plaintiffs that they needed to relocate, as well as the suitability and access issues at the Witchduck building, justified Plaintiffs’ incurring relocation expenses. The lack of any notice or hearing on relocation assistance was a clear violation of procedural due process at the outset, and this eleventh hour letter notice of deprivation, without any hearing, is only further harm to Plaintiffs’ procedural due process rights.
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 20 of 26 PageID# 1319
Furthennore, the City is not entitled to deference on this regulatory interpretation because it raises questions of Constitutional law. Courts generally defer to agencies on interpretations of their governing statutes and related regulations because such interpretations are within the specialized competence of the agency. Manassas Autocars. Inc. v. Couth. 274 Va, 82, 87 (2007) (citing Commonwealth v. American Radiator & Standard Sanitarv. 202 Va. 13, 19 (I960)). However, courts need not defer to agencies when their interpretation raises issues outside their special competence, such as issues of constitutional law. Johnston-Willis. Ltd. v. Kenlev. 6 Va. App. 231, 243 (1988) (quoting Hi-Craft Clothing Co. v. NLRB. 660 F.2d 910, 914-15 (3d Cir.l98n): accord Miller v. Johnson. 515 U.S. 900, 923 (1995): see also Browning-Ferris Indus. V. Residents Involved in Saving the Env’t. Inc.. 254 Va. 278, 284 (1997) (noting that the court does not consider agency expertise in pure questions of law).
Here, the City’s unreasonable interpretation of the regulation raised issues of constitutional law. Thus, the Court accords the interpretation here little deference. The Government’s interest in reducing its administrative burden does not justify itsapproach here. The multiple letters and unclear brochure only exacerbated the situation with Plaintiffs by failing to clarify their rights. A non-judicial hearing with the City would have clarified relocation benefits to Plaintiffs much earlier, granted Plaintiffs their reasonable expenses, and avoided the need for this costly litigation. The City’s opaque and hostile approach increased its burden in this case and caused harm to both Plaintiffs and to City resources. The Government’s interest does not justify the complete lack of procedural due process granted to Plaintiffs.
Thus, the Court FINDS that the City violated Plaintiffs’ procedural due process rights.
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 21 of 26 PageID# 1320
The City violated Plaintiffs’ equal protection rights when it denied relocation assistance and arbitrarily and capriciously withdrew Plaintiffs’ status as displaced persons. Under the Equal Protection Clause of the Fourteenth Amendment, the government must provide a person with equal protection of the laws. U.S. Const, amend. XIV. To succeed on an equal protection claim, a plaintiff must prove that (1) “he was treated different from others who were similarly situated” and (2) “that the unequal treatment was the result of discriminatory animus.” Eouitv In Athletics. Inc. v. Dep’t of Educ.. 639 F.3d 91, 108 (4th Cir. 2011) (citing Morrison v. Garraghtv. 239 F.3d 648, 654 (4th Cir. 2001)). If he succeeds in proving those two elements, then the Court must determine whether the disparity in treatment is justified under the requisite level of scrutiny. Morrison. 239 F.3d at 654 (citing City of Clebume v. Clebume Living Ctr.. Inc.. 473 U.S. 432, 439-40 (1985)). Unless the disparity is based on a suspect classification or affects a fundamental right, the treatment is presumed valid and will be sustained if rationally related to a legitimate state interest. Id
The City treated Plaintiffs differently than other similarly situated persons. Mr. Collier, the previous owner of the Witchduck building, faced damage to his interests because of the City’s purchase of his property. The City compensated him for his anticipated losses without any disagreement or adversarial reaction. PI. Exs. 11,12. In addition. Dr. Bergano was not the first dentist displaced by the City who faced costs of relocation. The City treated those dentists fairly, as when the City notified them of their eligibility for relocation assistance, it provided that assistance. Testimony at trial indicated that other dentists received payments for build out as well as for moving. The City treated Plaintiffs differently, regarding them as adversaries and using tortured interpretations of its own rules to deprive Plaintiffs of their benefits.
After forcing Plaintiffs to incur the costs of relocating his business, the City attempted to deny the majority of
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 22 of 26 PageID# 1321
their relocations costs, and it then arbitrarily removed their displaced status in order to avoid paying such benefits. The payments to Mr. Collier and to other dentists indicate that the City does not routinely find ways to deny payment at the last minute. If the City had treated Plaintiffs like it treated others similarly situated, it would have worked cooperatively and paid reasonable relocation expenses. The City’s attempted use of its own regulatory definition of “displaced person” to deny benefits to Plaintiffs treated them differently than others who were similarly situated.
The City also acted out of discriminatory animus toward Plaintiffs. While there is no evidence to support Plaintiffs’ assertion that the City discriminated against Dr. Bergano on the basis of race, it appears fi:om the evidence that the City did discriminate against Dr. Bergano because he obtained legal counsel regarding his rights. The City denied him relocation benefits and failed to apprise him of any rights related to that denial. Def Ex. 96. The City even argued that it did not need to provide him notice of his appeal rights because of his counsel’s familiarity with this type of case. The City’s own assertions demonstrate that the City followed a different course of action with him because of his counsel. Thus, the City’s unequal treatment ofPlaintiffs was the result of discriminatory animus.
The City’s actions, and its application of a regulation supporting its actions, are not rationally related to a legitimate state interest. A person who hires counsel is not a member of a suspect class or exercising a fimdamental right, which means that the City’s actions discriminating against such a person are presumed valid unless not rationally related to a legitimate state interest. Morrison. 239 F.3d at 654 The City does have a legitimate interest in the conservation of government resources. Clear Skv Car Wash. 910 F. Supp. 2d at 888. Despite that interest, the Court FINDS that Plaintiffs successfully proved that the City’s actions
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 23 of 26 PageID# 1322
were not rationally related to that interest. Rather than apprising Plaintiffs of their rights and seeking to resolve any injury, the City increased its expenses by contesting Plaintiffs’ claim at every turn. The City knew or should have known that this obfuscation would make resolving Plaintiffs’ claim more time-consuming and difficult, wasting government resources. Instead of using a non-judicial hearing to give Plaintiffs the benefits to which they were entitled, the City continuedthe dispute, ultimatelypaying for counsel and for two expensive expert witnesses for a judicial hearing to reach a resolution that the City could have reached through a non-judicial hearing.
The City spent between $21,800 and $24,800 on two relocation experts for this case after refusing to pay more than a small fraction of that, $2,500, for a relocation expert to assist Plaintiffs. The City’s adversarial treatment of Plaintiffs was a costly course of action and not rationally related to the City’s interest in conserving government resources.
Thus, the Court FINDS that the City violated Plaintiffs’ equal protections rights.
Because of the City’s violation of Plaintiffs’ constitutional rights and its unconstitutional application of a regulation, the City improperly denied state relocation assistance to Plaintiffs for their move to Corporation Lane. The Parties also dispute whether Plaintiffs have a separate cause of action directly under Virginia law for relocation assistance. “In adjudicating non-federal questions, a federal court must apply the law of the state.” United States v. Little. 52 F.3d 495, 498 (4th Cir. 1995) (citing Erie R.R. Co. v. Tompkins. 304 U.S. 64, 78 (1938)). Federal courts are bound by the state supreme court’s interpretation of state law. S^ id; ^ also West v. Am. Tel. & Tel. Co.. 311 U.S. 223, 236 (1940). When the state supreme court has not ruled on an issue, federal courts must predict how the state’s courts would resolve the issue. S^ McClung v. Ford Motor Co.
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 24 of 26 PageID# 1323
472 F.2d 240, 240 (4th Cir. 1973). The Virginia Supreme Court has no precedent on whether the state relocation assistance statutes provide a private right of action. Nevertheless, other states have found a private right of action under similar statutes when a municipality fails to implement state procedures. Superior Strut & Hanger Co. v. Port of Oakland. 72 Cal. App. 3d 987, 1001 (Ct. App. 1977) (finding that when a municipality fails to provide adequate procedure for a state relocation assistance claim, a plaintiff may pursue original relief in court). The City stated in its relocation assistance brochure that its appeal process includes the Virginia Department ofTransportation, PI. Ex. 7, but testimony at trial indicated that the City does not actually follow that procedure. Furthermore, beyond failing to offer an appeal hearing here, the City also failed to implement state appeal requirements such as transcribing appeals. S^ 24 Va. Admin. Code 30-41-90 (requiring a court reporter at appeals). These procedural failures may entitle Plaintiffs to judicial remedies directly under the act. Nevertheless, in the absence of Virginia state authority on point, the Court sees no reason to predict how the Virginia Supreme Court would handle these unusual facts when the other counts in the complaint reach the same damages.
Thus, because the City’s violation of Plaintiffs’ constitutional rights caused the failure to award reasonable relocation assistance, the Court will look to the state act for guidance in determining damages.
III. CONCLUSION
For the foregoing reasons, the Court FOUND the City liable to Plaintiffs for an amount of damages to be determined by the Court.
The Clerk is REQUESTED to deliver electronically a copy ofthis Opinion and Order to
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 25 of 26 PageID# 1324
all counsel of record.
It is so ORDERED.
Norfolk, VA
March JQ , 2017
/s/
Henry Coke Morgan, Jr.
Senior United States District Judge
HENRY COKE MORGAN, JR.
SENIOR UNITED STATES DISTRICT JU
26
Case 2:15-cv-00520-HCM-DEM Document 78 Filed 03/14/17 Page 26 of 26 PageID# 1325
Dentist Allan Bergano, center, and his wife Edwina Bergano, left, during a rally outside the Witchduck Office Court building at 256 N. Witchduck Road Nov. 10, 2015 protesting the way the City of Virginia Beach has treated a relocation issue with his practice.
It’s one thing to lose a case in court. It’s something else to get slapped around by a federal judge in the process.
That’s exactly what happened to the city of Virginia Beach earlier this month when U.S. District Court Judge Henry Morgan delivered a stinging rebuke to a city that had stomped all over the constitutional rights of one of its residents. Allegedly to save a few bucks.
The judge – who has not decided on damages – repeatedly used the term “arbitrary and capricious” to describe the actions of City Hall.
I’d call it something else: Arrogant and wasteful.
Face it, most of us don’t expect much from government. We want to be treated fairly when we are forced to interact with officials. And we want our tax dollars spent wisely.
Using even that minimal measurement, Virginia Beach failed the good government test in this case.
In fighting a Beach dentist, who merely asked for what he was owed – relocation costs after the city ordered him out of his office – Virginia Beach embarked on an expensive battle that promises to cost taxpayers far more than if the city had treated the man fairly from the outset.
In a city where leaders shamelessly kowtow to developers and are now itching to blow about $2 million to dead-end Atlantic Avenue as a favor to an Oceanfront hotelier, a dentist in another part of town was bullied over a far smaller sum.
Let’s back up. According to news reports and court documents, in 2014 the city purchased the North Witchduck Road office building where Dr. Allan Bergano had practiced dentistry since 1983. He was told he’d have to vacate and the city would pay relocation costs. By the summer of 2015, Bergano had a new lease in a building that needed construction work to make it suitable for a dental office.
That’s when the city told Bergano he didn’t have to move after all.
Trouble was, not only had Bergano found new space, but he claimed the city had turned the old building into a undesirable location. The complex now housed Human Services Department offices, and manacled prisoners were sometimes in the hallways.
Not what patients want to encounter on their way to get their teeth cleaned.
The fact that the city eventually hired a team of outside lawyers to fight Bergano was not lost on the judge. One charges $375 an hour, the other $200, according to the city attorney’s office.
“The problem with this whole case is that the City of Virginia Beach from the very beginning treated this as an adversary proceeding, which it’s not supposed to be,” Morgan said, according to a court transcript. “The City employees work for the taxpayers. … It’s not their purpose to try to get away with paying Dr. Bergano as little as they possibly can or not advising him of his rights and telling him that because he has a lawyer he has to figure out what his rights are.
“What the city is supposed to do is notify him in clear language what his rights are. … They’re supposed to give him what he is fairly entitled to, and what they have done is they have spent a lot of money trying to keep from paying him anything other than a few thousand dollars. … Virginia Beach was not some entity which was created to fight its tax paying citizens. It was created to serve them, and they haven’t been served in this case.
“They have tried to use every technicality that they could think of to deprive them of that to which he was entitled. It’s really an aggravated situation, and as you can tell, the Court is very concerned about it because if this is an example of the way the City of Virginia Beach treats its citizens, it speaks very poorly of the City of Virginia Beach, where I happen to live.”
Furthermore, when there was a chance to avoid a court battle, through mediation, the city refused, the judge noted.
After the decision, Bergano and his legal team were ebullient.
One of his lawyers, Joe Waldo, characterized the case as a “David versus Goliath” situation.
“In the beginning, I expected to be treated just like the other dentists,” Bergano told me Friday, referring to others who were moved under similar circumstances and justly compensated. “I looked forward to working with the city and being treated fairly.”
Didn’t happen. Bergano was forced to hire lawyers and head to court.
Now that it’s been determined that Bergano’s constitutional right to due process and equal protection were violated, the dentist has asked the judge to make the city pay his attorney fees.
Naturally, the city’s highly compensated lawyers, whose initial payments have amounted to $179,723.52 and are still on the clock, objected.
“I’m so glad it’s over,” Bergano said, wryly noting that it’s been especially disheartening to know that the city was using his tax money to tussle with him in court.
If Beach officials had any decency, they’d sincerely apologize to Bergano. Then they’d apologize to taxpayers for wasting their money on such a pricey and pointless fight.
Kerry Dougherty, 757-446-2306, kerry.dougherty@pilotonline.com
datruthchronicles 
You must be logged in to post a comment.