VIRGINIA BEACH, Va. (WAVY) — This is turning into the property battle that won’t die, a local funeral home versus VDOT.  The owner of Altmeyer Funeral Home on Greenwich Road in Virginia Beach says he needs more time to move.

It sits squarely in the path of the I-64/I-264 interchange rehab project on Newtown Road, and VDOT put up signs Tuesday saying the land is theirs now, and heavy equipment will be put on the property April 30.

Now it could end up in court, again.

Eminent domain attorney Joe Waldo, who represents Jimmy Altmeyer, is filing a motion claiming VDOT is in contempt of court, and that VDOT can’t force the funeral home’s relocation until a circuit court judge hears the case.

The motion has not been filed, but Waldo says it’ll happen soon.

“VDOT has been pushing Jimmy Altmeyer around, and Jimmy Altmeyer is going to push back,” Waldo said. “VDOT has been told by a circuit court judge they can not evict Altmeyer Funeral Home until there is a trial.”

VDOT disagrees with that.

VDOT thinks after a jury awarded Altmeyer over $4 million for the property, the case is no longer about eviction because Altmeyer is no longer a tenant.

“We are now entitled to enter the property,” says VDOT attorney David Arnold. He says Virginia State Code makes it clear.

“Upon paying such sum into court, title to the property and rights condemned shall vest in the petitioner (VDOT). The petitioner or its agents shall have the right to enter and construct its works or improvements upon or through the property described in its petition.”

Arnold says, “The old hearing, that was then and this is now.”  Arnold made it clear all the past legal hearings and trial are past after the jury awarded Altmeyer the money for the eminent domain case.

10 On Your Side visited the new construction underway, one mile away from the current funeral home.

It is clear Altmeyer’s new building restoration and new build out will not be complete by the April 30 date given by VDOT.

It is about 50 percent complete, and cost $6 million dollars, which is $2 million more than what a jury awarded him at trial.

Altmeyer says as he stands in an unfinished room, “My message to VDOT, it’s not like taking a house. This takes time to build a brand new funeral home.”

Altmeyer says VDOT has not been helpful in relocating, but that point is disputed by VDOT, which claims it has been in touch with Waldo and Altmeyer repeatedly over the course of years.

That is true, the case has been going on for years, and Altmeyer first found out VDOT wanted his property “about 10 years ago,” he said. “They have given me no help.  I have had to do this all on my own.  I have done nothing for 2 and a half years.  I have done nothing, but to get out of their way as soon as possible.”

In this eviction, Waldo says Altmeyer has been denied equal protection under the law and due process ordered by the circuit court. “A line has been drawn, and they have crossed that line, and you are not allowed to take the law into your own hand.”

We asked Arnold what happens if Altmeyer is still in the funeral home on April 30, “Well, he shouldn’t be operating there now.  I can’t tell you what will happen on April 30 beyond having equipment moved on the property.”

Joe Waldo will cite the recent Bergano case, on the motion where a federal judge ruled property owners have the right to due process and equal protection under the law in eminent domain cases. The Bergano case involved a dentist in Virginia Beach who claimed he was not treated the same as others who were compensated for losing their businesses due to the widening of Witchduck Road.

As for the Altmeyer Funeral Home, it remains open for now. Seven others remain open and not affected by this VDOT project.