Monday, March 20, 2006

Eminent domain reform marches on: 36 reforms in 6 years, 15 pending

(Charlottesville Independent Media, Jan 30 2006)

Virginia's reform movement began in 1999 with passage of SJ 271 establishing a Joint Committee to study "the fairness of compensation when land is taken by eminent domain and make recommendations to the General Assembly." The Committee brought in nationally recognized experts to examine Virginia's Law and held public hearings, attended by over 700 people. Hundreds testified about abuses they had suffered under the system, urging reform. The experts who examined the law unanimously agreed to its inadequacy, finding it among the worst in the nation.

The work of The Committee resulted in passage of nine badly needed reforms in 2000 and over the next 5 years there have been 27 additional changes designed to give property owners greater fairness when their land is taken. These reforms are listed below.

In 18 other states when the property owner proves that the amount offered by the condemnor was not fair, the court may order the condemnor to reimburse the property owners court costs, including attorney fees, or the condemnor is automatically required by law to reimburse all of the property owner's litigation expenses. This more than any other change to Virginia's laws would create a fairer system because it would encourage condemnors to offer a fair price initially and it would assure "just compensation" to those property owners who prove the condemnor wrong in court.

In 2005 the General Assembly passed landmark legislation that allows the judge to order the condemnor to reimburse some of the property owner 's litigation expenses. However, attorney fees and other miscilaneous fees are still not included and until they are property owners will be lucky to keep 50% of any benefit gained by going to court. Property owners will not receive the "just compensation" required by the Virginia or the US Constitutions, until the law requires reimbursement of all court costs. 18 State Require "litigation reimbursement".

2005 Legislation Enacted, Impacts Title 25: Eminent Domain

1. Requires the condemnor to offer to sell the property back to the former owner at the original price plus six percent annual interest, including price adjustments for any improvements made, if the property acquired by eminent domain is declared surplus within 15 years of the condemnor taking title. SB 301, "Senator Jay O'Brian"

2. Requires the condemnor "to request permission" to enter property being examined for eminent domain acquisition; by certified letter, by guaranteed overnight courier, or other means that provide a signed receipt as proof of delivery. The condemnor must also post notice of their intent on the entry way of the building or business and include the specific date or dates the inspection is proposed to be made; the name of the entity that will be entering the property; the purpose for the entry; and the reason for testing, appraisals, or other examinations to be performed. The notice shall be made not less than 15 days prior to date of intended entry. HB 1820, "Delegate Terri Suit"

3. Requires the condemnor to reimburse the property owner for any damages resulting from entry. If a dispute arises over the amount of damages that results in a court challenge, the court shall award the owner his reasonable attorneys' fees, court costs, and fees for up to three expert witnesses; if the court finds that the condemnor maliciously, willfully, or recklessly damaged the owner's property; or the court awards the owner damages 30 percent, or more, above the condmenor's final written offer. HB 1820, "Delegate Terri Suit"

4. Requires the condemnor to make a bonafied but ineffective offer prior to beginning condemnation proceedings and for the initial amount to be for no less than the agency's approved appraisal of fair market value of the property. HB 1821, "Delegate Terri Suit"

5 Requires the condemnor to have deposited the agreed purchase price in court before the owner can be required to surrender possession. HB 1821, "Delegate Terri Suit"

6. Requires the condemnor and the property owner to disregard any decrease or increase fair market value caused by the proposed public improvement, or by the likelihood the property will be acquired, or due to anything other than physical deterioration within the reasonable control of the owner in determining the amount of "just compensation" for the property. HB 1821, "Delegate Terri Suit"

7. Requires the condemnor to provide the property owner, with a written statement and summary of the basis for the amount established as just compensation, together with a copy of the appraisal of the fair market value upon which the condemnor based the offer. Where appropriate, the amount of just compensation for damages to remaining property will be separately stated. HB 1821, "Delegate Terri Suit"

8. Gives the judge discretion to require the condemnor to reimburse the property owner's reasonable appraisal and engineering fees, as well as reasonable fees and travel costs for up to three expert witnesses, testifying at trial, if the owner is awarded compensation that is 30 percent or more greater than the amount of the condemnor's written offer. This does not apply to VDOT or to cases involving easements valued at less than $10,000. HB 1821, "Delegate Terri Suit"

2004 Legislation Enacted Impacts Title 25: Eminent Domain

9. Establishes the date of property valuation at the date of adoption of the conservation/redevelopment plan, if a locality initiates condemnation proceedings against a property owner located within an already adopted conservation or redevelopment plan and any of the property is then down zoned by the locality without the consent of the property owner. HB 1821 "Delegate Thelma Drake

Establishes the date of property valuation at the day before the property was down zoned if the condemnation is against the same owner who owned the property at the time of the down zoning, the down zoning occurred without consent of the property owner, and the locality initiated condemnation proceedings within five years after the adoption of a conservation/redevelopment plan that was not part of a comprehensive rezoning plan. HB 1820, "Delegate Thelma Drake"

10. Bars VDOT from forcing an owner of improved owner occupied property to relocate until the owner is allowed to withdraw funds in the amount represented by the certificate of take filed with the Court. Should the owner refuse to withdraw the funds or if the Commissioner believes the owner does not possess clear title, that ownership is disputed, or that certain owners cannot be located, the Commissioner may petition the Court to establish these facts and request authority to force relocation. HB 834, "Delegate Thelma Drake"

11. Requires the VDOT to institute condemnation proceedings, including appointing commissioners or a jury to determine the amount of compensation to be paid for the property and any damages done to the property within a period of 180 days from the date the property is taken by condemnation. Prior to enactment of this bill property owners having their land taken by VDOT could be in limbo for a full year. HB 835, "Delegate Thelma Drake"

2003 Legislation Enacted Impacts Title 25: Eminent Domain

12. Requires VDOT" to file condemnation within 180 days after recording a certificate to take the property, unless an agreement with the property owner as to compensation for the taking of or damage to the property has been reached. If the VDOT fails to institute proceedings within this 180 day period, the owner may file a proceeding in circuit court. HB 1946, "Delegate Thelma Drake"

13. Prohibits VDOT from offering evidence of the value of the property taken or damaged that is less than the amount that was either previously deposited with the court or represented by a certificate of deposit filed with the court, in a condemnation hearing. HB 1949, "Delegate Thelma Drake."

14. Provides that interest on certain VDOT obligations to property owners acquired through condemnation proceedings will accrue at the rate of interest established pursuant to §621 (a)(2) of the Internal Revenue Code. HB 1950, "Delegate Thelma Drake"

15. Directs localities in condemnation proceedings to reimburse property owners, or others legally obligated to pay the property taxes, for the pro rata portion of real estate taxes that have been paid for the period of time prior to the date of title vesting in the locality or the effective date of possession, whichever is earlier. SB 990, "Senator William Mims"

2002 Legislation Enacted Impacts Title 25: Eminent Domain

16. Requires condemning authorities to provide the property owners with a copy of the title status report prepared in connection with the acquisition of property. This was only required of VDOT in the past. The condemnor must complete the title examination prior an offer being made to acquire the property. SB 995, "Senator William Mims"

17. Requires pretrial, non-binding mediation before a neutral third party when requested by either a condemning authority or the property owner whose property is being acquired by such authority. HB 843, "Delegate Thelma Drake"

18. Recognizes billboard owners in eminent domain proceedings and defines and clarifies terms in Virginia's Eminent Domain Laws. HB 918, "Delegate Morgan Griffith"

2001 Legislation Enacted Impacts Redevelopment Housing Authorities and Public UtilitiesGoverning Public Utilities / Governing Housing Authorities

19. Requires housing authorities, to identify funding sources sufficient to acquire property under consideration. HB 2438 "Delegate Thelma Drake"

20. Requires housing authorities to acquire property or to have begun condemnation proceedings within five years of the redevelopment plans approval or the land is no longer eligible to be acquired unless the parties agree to the acquisition. HB 2438 "Delegate Thelma Drake"

21. Requires localities to reaffirm a redevelopment plan within three years of the plans approval. "Delegate Thelma Drake"

22. Allows localities to adopt a new redevelopment plan that includes property under a previously adopted plan. HB 2438 "Delegate Thelma Drake"

23. Requires property owner reimbursed for reasonable expenses incurred in connection with a proposed acquisition when a Redevelopment Housing Authority decides against acquiring previously identified property. The bill also allows for alternative dispute resolution. HB 2438 "Delegate Thelma Drake"

24. Requires that owners of property within the route of a proposed gas pipeline or electrical transmission line of 150 kV or more be sent a notice of the proposed construction by first class mail and that the notice includes a written description of the proposed route of the line and a map or sketch of the route. HB 2268, "Delegate Jim Shuler"

25. Requires that property owners conveying a right-of-way to a public utility have the right to refuse to convey those rights not included in eminent domain. HB 1766 "Delegate Chip Woodrum"

26. Authorizes local government to request of the SCC that utilities share easement corridors. HB 767, "Delegate Chip Woodrum"

27. Requires the State Corporation Commission to hold public hearings if requested by 20 or more property owners. HB 2268, "Delegate Jim Shuler"

2000 Legislation Enacted This Impacts Title 25: Eminent Domain"Senator Madison Marye & Thelma Drake"

28. Requires condemnors to provide property owners with a copy of the appraisal upon which their offer to purchase the property is based *** SB 453(i)

29. Raises the limit of compensation for a survey conducted by a condemnee from $100 to $1,000. *** SB 453 (ii)

30. Requires condemnors to conduct a title search of the property before making an offer to purchase or filing a certificate of take; in order to avoid delays in payments to condemnees.*** SB 453 (iii)

31. Requires VDOT to use licensed real estate appraisers in conducting its valuations for property acquisitions. *** SB 453 (iv)

32. Allows tenants whose lease is 12 months or longer to intervene in eminent domain proceedings. *** SB 453(v)

33. Gives property owners the option of having compensation awards determined by a jury, in addition to the option of using the commissioner system. *** SB 453

34. Requires the condemning authority to make fair and reasonable relocation payments to displaced persons and their family, including the expense of searching for a replacement property. Actual re- establishment expenses for a business or farm shall not exceed $25,000. *** SB63

35. Requires VDOT to notify the owner of a building, structure or other improvement, if they intend to condemn property in a manner that would result in the taking of such improvement. This allows the owner of such improvements to present evidence of the value of in condemnation valuation proceedings. Provides definition of fair market value and of owner. SB 452

36. Prohibits VDOT from using eminent domain to acquire any portion of an existing commercial establishment, if a purpose of the acquisition is to control or limit access to commercial establishments located within 300 feet of an interstate highway. *** SB110

***Legislation recommended by The Joint Subcommittee Studying Eminent Domain

( The Virginia Property Rights Coalition: Dedicated to Reform of Virginia's Eminent Domain Law )

Va. General Assembly 2006

Steve Landes House 25th -- Waynesboro (for example)
HOUSE BILL NO. 924 Offered January 11, 2006 Prefiled January 10, 2006 A BILL to amend and reenact § 15.2-1900 of the Code of Virginia, relating to eminent domain; public use. ----------
Patrons-- Landes, Athey, Callahan, Cline, Cosgrove, Crockett-Stark, Frederick, Gear, Gilbert, Hargrove, Hurt, Morgan and Scott, E.T.
----------Referred to Committee for Courts of Justice ----------Be it enacted by the General Assembly of Virginia:
1. That § 15.2-1900 of the Code of Virginia is amended and reenacted as follows:
§ 15.2-1900. Definition of public uses.

The term "public uses" mentioned in Article I, Section 11 of the Constitution of Virginia, for purposes of private property subject to condemnation, is hereby defined to embrace [strike]all uses which are necessary for public purposes[strike]

[replace with] only those uses that are public uses and shall not include private property to be taken by eminent domain for public purposes. Public purposes or benefits, including an increase in tax revenue or an increase in jobs, shall not constitute or be deemed a public use. Any public use that is a sham or a pretext for the furtherance of private purposes or benefits shall also not constitute a public use, and courts shall be permitted to examine the motives and intent of the condemnor when determining whether a taking is for a public use.


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