Bill Text: VA HB651 | 2010 | Regular Session | Chaptered
Bill Title: Eminent domain cases; reinstates option of landowner to choose between commissioner & jury to hear.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2010-04-21 - Governor: Acts of Assembly Chapter text (CHAP0835) [HB651 Detail]
Download: Virginia-2010-HB651-Chaptered.html
Be it enacted by the General Assembly of Virginia: 1. That §§ 8.01-187, 25.1-100, 25.1-209, 25.1-213, 25.1-214, 25.1-219, 25.1-220, 25.1-235, 25.1-318, and 62.1-98 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Article 4 of Chapter 2 of Title 25.1 sections numbered 25.1-227.1 and 25.1-227.2 as follows: §8.01-187. Commissioners or condemnation jurors to determine compensation for property taken or damaged. Whenever it is determined in a declaratory judgment proceeding
that a person's property has been taken or damaged within the meaning of Article
I, Section 11 of the Constitution of Virginia and compensation has not been
paid or any action taken to determine the compensation within §25.1-100. Definitions. As used in this title, unless the context requires a different meaning: "Body determining just compensation" means a
panel of commissioners empanelled pursuant to §25.1-227.2, jury selected
pursuant to §25.1-229, or the court if neither a panel of commissioners nor
a jury is "Court" means the court having jurisdiction as provided in §25.1-201. "Date of valuation" means the time of the lawful taking by the petitioner, or the date of the filing of the petition pursuant to §25.1-205, whichever occurs first. "Freeholder" means any person owning an interest in land in fee, including a person owning a condominium unit. "Land" means real estate and all rights and appurtenances thereto, together with the structures and other improvements thereon, and any right, title, interest, estate or claim in or to real estate. "Locality" or "local government" means a county, city, or town, as the context may require. "Owner" means any person who owns property, provided that the person's ownership of the property is of record in the land records of the clerk's office of the circuit court of the county or city where the property is located. The term "owner" shall not include trustees or beneficiaries under a deed of trust, any person with a security interest in the property, or any person with a judgment or lien against the property. This definition of the term "owner" shall not affect in any way the valuation of property. "Person" means any individual; firm; cooperative; association; corporation; limited liability company; trust; business trust; syndicate; partnership; limited liability partnership; joint venture; receiver; trustee in bankruptcy or any other person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise; club, society or other group or combination acting as a unit; the Commonwealth or any department, agency or instrumentality thereof; any city, county, town, or other political subdivision or any department, agency or instrumentality thereof; or any interstate body to which the Commonwealth is a party. "Petitioner" or "condemnor" means any person who possesses the power to exercise the right of eminent domain and who seeks to exercise such power under this chapter. The term "petitioner" or "condemnor" includes any person required to make an effort to purchase property as provided in §25.1-204. "Property" means land and personal property, and any right, title, interest, estate or claim in or to such property. "State institution" means any (i) educational institution enumerated in §23-14 or (ii) state hospital or state training center for individuals with mental retardation operated by the Department of Behavioral Health and Developmental Services. §25.1-209. Notice of filing of petition. A. Upon the filing of a petition for condemnation, the petitioner shall give the owners 21 days' notice of the filing of such petition and of its intention to apply to the court to ascertain just compensation for the property to be taken or affected as a result of the taking and use by the petitioner of the property to be so acquired. B. The notice, along with a copy of the petition, shall be served on the owners. In such notice, the petitioner shall give notice that an answer and grounds of defense shall be filed setting forth any objection or defense to the taking or damaging of his property or to the jurisdiction of the court to hear the case and to elect to proceed with either the appointment of commissioners or empanelment of a jury for the determination of such just compensation. C. The notice may also include notice of the petitioner's application for the right of entry as provided in §25.1-223, if such application is included in the petition as authorized by §25.1-207. D. A copy of the notice required to be served on the owners by this section also shall be served in the same manner upon any tenant entitled to participate in the proceeding pursuant to §25.1-234, whose lease has been duly recorded or whose tenancy is actually known to the petitioner. However, a tenant so notified may participate in the proceeding only as permitted by § 25.1-234. E. In addition to any other notice required to be served pursuant to this section, in any proceeding instituted by the Commonwealth Transportation Commissioner under this title or Title 33.1, a copy of the notice of the filing of the petition also shall be served, in the same manner as such notice is served upon owners, upon any person owning structures or improvements for which an outdoor advertising permit has been issued by the Commonwealth Transportation Commissioner pursuant to §33.1-360. §25.1-213. Filing an answer and grounds of defense; election of commissioners or jury. Within 21 days of the service thereof any such owner who desires to assert any objection or defense to the taking or damaging of his property or to the jurisdiction of the court to hear the case, and to make his election to proceed with either the appointment of commissioners or the empanelment of a jury, shall file (i) his answer and grounds of defense designating the property in which he claims to be interested, (ii) the grounds of any objection or defense to the taking or damaging of his property or to the jurisdiction of the court to hear the case, and (iii) his election to proceed with either the appointment of commissioners or the empanelment of a jury for the determination of just compensation. §25.1-214. Failure of owner to file answer and grounds of defense. A. The failure of any owner to file an answer and grounds of defense as provided in §25.1-213 shall not preclude the owner from (i) appearing on the date set for the appointment of commissioners or the empanelment of a jury, (ii) presenting evidence as to valuation and damage, or (iii) sharing in the award of just compensation according to his interest therein or otherwise protecting his rights. However, such failure shall preclude the owner from any other defense by way of pleas in bar or otherwise, except that for good cause shown the time for filing such answer and grounds of defense may be extended by the court. B. If the owner fails to file an answer and grounds of defense, or if the owner files an answer and grounds of defense that fails to elect to have the determination of just compensation made by either commissioners or a jury, then the petitioner may elect to have the issue of just compensation determined by either commissioners or a jury, or by the court as provided in §25.1-220. §25.1-219. Pretrial settlement conference; determination of preliminary issues; fixing date of trial on issue of just compensation. A. The owner or the petitioner in any condemnation proceeding may request and, if requested, the court shall order a pretrial settlement conference. Such conference shall be conducted by a neutral third party, if available. Such conference may be requested at any time by either the owner or the petitioner. If requested, such conference shall be held within the 30 days preceding the scheduled trial date. If such a conference is ordered, the court shall order both parties to appear with counsel, if any, and the parties shall appear with settlement authority. All settlement conferences conducted pursuant to this provision shall be nonbinding. If settlement is not reached, the matter shall proceed to trial as set upon the docket. B. At the hearing upon the petition and application for either the appointment of commissioners or the empanelment of a jury made in accordance with §25.1-209, if no answer and grounds of defense has been filed objecting to the jurisdiction of the court to hear the case and to proceed with the appointment of commissioners or the empanelment of a jury, the court shall enter an order fixing a date for the trial of the issue of just compensation and stating that such issue shall be determined by a commission, by a jury or by the court, as provided in §25.1-220. If any answer and grounds of defense has been filed objecting to the jurisdiction of the court, the court shall determine such issues or other matters in controversy, excepting the issue of just compensation or matters relating to the ownership of any land or other property or the interests of any party in such land or other property before fixing a date for the trial of the issue of just compensation. C. If the court determines all such issues or other matters involving the jurisdiction of the court in favor of the petitioner, the court shall enter an order fixing a date for the trial of the issue of just compensation and stating that such issue shall be determined either by a commission, by a jury or by the court, as provided in §25.1-220. D. An order of the court in favor of the petitioner on any of the foregoing preliminary issues or matters shall not be a final order for purposes of appeal but an order against the petitioner on such issues or matters shall be a final order for purposes of appeal, if the petitioner so elects. If the order against the petitioner does not dismiss the petition, the petitioner may elect to proceed with the case without waiving any of its objections and exceptions to the rulings of the court. E. At such hearing the court shall also determine whether the petitioner shall be granted a right of entry as provided in §25.1-223. §25.1-220. Who determines issue of just compensation. The issue of just compensation shall be determined by a commission or a jury, upon a timely election made by an owner as provided in §25.1-213. However, by agreement of the petitioner and all the parties who are sui juris that have appeared or responded, or, if no owner upon proper notice has appeared or responded, or has filed an answer and grounds of defense that fails to elect to have the determination of just compensation made by either commissioners or a jury, then, upon motion of the petitioner, the issue of just compensation may be determined by the court. §25.1-227.1. Qualifications of commissioners. A. The provisions of this article shall apply in eminent domain proceedings in which the issue of just compensation is to be determined by a commission. B. All commissioners shall be disinterested freeholders and residents of the county or city wherein the property or the greater portion of the property to be condemned is situated. No person shall serve as a commissioner for more than one full week within any three-month period, unless agreed to by the parties. §25.1-227.2. Empanelment of commissioners. A. The parties to the eminent domain proceeding may agree upon five or nine persons qualified to act as commissioners, as provided in subsection B of §25.1-227.1. B. If the parties cannot agree upon five or nine qualified persons to act as commissioners, then each party shall present to the court a list containing the names of at least six qualified persons. If any party fails to submit such a list of names, the court may, in its discretion, submit such a list on such party's behalf. C. From the lists submitted pursuant to subsection B, the court shall select the names of nine potential commissioners and at least two alternates. At least one week prior to their service, such persons shall be summoned to appear. D. If nine qualified persons are selected, the petitioner and the owners shall each have two peremptory challenges and the remaining five shall serve as commissioners. If five qualified persons are agreed upon as provided in subsection A, they shall serve as commissioners. E. If an owner has filed no answer to the petition, and the court finds that the owner is not represented by counsel, the court may, in its discretion, and subject to the right of the petitioner to challenge for cause, subpoena five persons who shall serve as commissioners. F. Any three or more of the five commissioners may act. G. In condemnation proceedings instituted by the Commonwealth Transportation Commissioner, a person owning structures or improvements for which an outdoor advertising permit has been issued by the Commonwealth Transportation Commissioner pursuant to §33.1-360 shall be deemed to be an "owner" for purposes of this section. §25.1-235. Compensation of commissioners or jurors. The commissioners §25.1-318. Petition by owner for determination of just compensation. A. The owner of property that an authorized condemnor has
entered and taken possession of pursuant to the provisions of this chapter may
petition the circuit court of the locality in which the greater portion of the
property lies for the appointment of commissioners or the empanelment of
a jury to determine just compensation for the property taken and damages done,
if any, to such property, as provided in Chapter 2 (§25.1-200 et seq.) 1. Has not completed the construction of the contemplated improvements upon the property after a reasonable time for such construction has elapsed; or 2. Has not instituted condemnation proceedings within: a. Sixty days after completion of the construction of the contemplated improvements upon the property; or b. One year after the authorized condemnor has entered upon and taken possession of the property, regardless of whether the construction of the contemplated improvements has been completed. B. A copy of such petition shall be served upon the authorized
condemnor at least 10 days before it is filed in the court. The authorized
condemnor shall file an answer thereto within five days after the filing of the
petition. If the court finds that the conditions prerequisite for such
appointment as provided in subsection A are satisfied, the court shall appoint
commissioners or empanel a jury, as requested in the owner's petition, to
ascertain the amount of compensation to be paid for the property taken and
damages done, if any. The proceedings shall thereafter be governed by the
procedure prescribed by Chapter 2 (§25.1-200 et seq.) §62.1-98. Right of eminent domain of public service corporations. In addition to any right or power of eminent domain that it may have under existing law, every public service corporation engaged in the development of waterpower in this Commonwealth for the production, sale and supply of hydroelectric power and energy to the public shall be vested with the right of eminent domain to the full extent requisite for the acquisition of all lands, property and rights necessary for the purpose of the construction, enlargement, maintenance or operation of any dam, reservoir, power station and/or other structures of any such water-power development, subject to the following provisions:
2. That the provisions of this act shall apply only to actions filed on or after July 1, 2010. |