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Eminent domain addressed, but ‘still long way to go’

Something is better than nothing—and while Virginia landowners didn’t get all they were asking for with a pair of proposed bills in this year’s General Assembly, Farm Bureau leaders and legislative staff say the passage of HB 1820 and HB 1821 represented a step in the right direction.

Both bills were sponsored by Del. Terrie L. Suit, R-Virginia Beach, at Farm Bureau’s request and addressed eminent domain concerns for landowners. Specifically, the bills covered landowner notification prior to entry by the condemning authority; and fair compensation for acquired land by a condemning authority. Both bills overwhelmingly passed in the Senate and House chambers, though neither as originally written.

HB 1820, as passed, requires condemners to either post a notice of intent to enter property or make an in-person delivery to the owner in person, as well as delivering it via certified mail. The bill also stipulates that a landowner may attempt to recover damages, if they occur, from an entry. If legal action is necessary and results in a judgment awarding the owner a figure that exceeds the condemner’s final written offer within a prescribed period of time by 30 percent of more, the court may award the landowner reasonable court costs and attorney and expert witness fees as well (for up to three expert witnesses). Those costs may also be awarded a landowner if the court finds that the condemner maliciously, willfully or recklessly damaged his property.

"We still have a long way to go," said Susan Rubin, Farm Bureau legislative specialist.

Suit echoed Rubin’s sentiments, but noted that having the bills amended in committee was better than not getting them out of committee at all.

While Farm Bureau initiated both bills, they ran into opposition from the Virginia Department of Transportation, as well as some utilities and local governments. Meanwhile, many Virginians presented in committee first-hand accounts of eminent domain run-ins.

Earl Game, owner of Game’s Farmers’ Market in Newport News, had to "fight (VDOT) like a dog" to get the fair market value for his property when the department built the Hampton Roads Center Parkway in 1999. Game’s store was in the way of the six-lane highway where it was scheduled to intersect Harpers- ville Road.

"The state’s initial offer (for the portion of Game’s property paved over) was a little more than $24,000," he said. "I wouldn’t agree on the settlement, so we went to court. I’ve got a $5 million-dollar-a-year business here; they were going to give me $20,000, $25,000, but it was going to cost me $150,000 just to do the electrical work needed from the disruption."

A judge ordered VDOT to compensate Game to the tune of $800,000—more than 30 times the original offer. That was not only for the land, but it also considered the cost of renovations to the market and its parking lot from the subsequent road construction.

"The front entrance to the store was right on the intersection," Game explained. "They backed off adding one of the lanes they’d planned, and I reworked my parking lot and put up a couple of new entrances.

"I felt like I had no rights, like VDOT was telling me, ‘This is the law, so we can do it,’" he continued. "I’m not against eminent domain per se, if you need my property for the public good. But I should be reimbursed so I can put my business back in shape after they’re done with it."

"We haven’t addressed all the situations that need fixing," Rubin said, "but we are appreciative of the progress made with the passage of this legislation that begins to address landowner issues."

The issue:

Eminent domain refers to the ability of government agencies to acquire private property for public use. Because many Farm Bureau members are landowners, Virginia Farm Bureau has a long-term interest in monitoring eminent domain-related legislation and voicing the concerns of farmers and other property owners to elected officials.

The bills:

HB 1820 – Eminent domain; right of entry to inspect

Modifies the provisions associated with a condemner’s entry onto property by

(i) expanding the information provided in the initial request for permission to inspect and strengthening delivery requirements;

(ii) requiring that the notice of intent to enter be posted or otherwise delivered to the owner in person, in addition to being sent by certified mail; and

(iii) providing that if the owner files an action to recover damages caused by entry and is awarded judgment in an amount 30 percent or more than the condemner’s final written offer within a prescribed period of time, or if the court finds that the condemner maliciously, willfully or recklessly damaged the owner’s property, the court may award the owner reasonable court costs, attorney fees, and fees for up to three expert witnesses testifying at trial.

HB 1821 – Eminent domain; acquisition of property.

Modifies the provisions associated with acquisitions under eminent domain by

(i) requiring that a state agency’s acquisition of real property be conducted in accordance with provisions that are only precatory under current law, including that the state agency establish an initial amount that is no less than the agency’s approved appraisal of the fair market value of the property and that no owner can be required to surrender possession until the state agency pays the agreed purchase price or deposits funds with the court, and

(ii) providing that if an owner is awarded at trial as compensation for the taking of or damage to property an amount that is 30 percent or more greater than the amount of the petitioner’s written offer within a prescribed period of time, the court may award the owner reasonable appraisal and engineering fees, and reasonable fees and travel costs for up to three expert witnesses testifying at trial. The cost award provisions do not apply to cases involving easements valued at less than $10,000 or to cases in which a petition in condemnation or certificate of take or deposit was filed prior to July 1, 2005.

Posted in: Property Rights

 

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