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2002 SESSION
021275266Patrons-- Drake, Dudley, Marshall, D.W., Stump and Suit; Senators: Mims, Whipple and Williams
Be it enacted by the General Assembly of Virginia:
1. That §§ 25-46.17, 36-27, and 36-51 of the Code of Virginia are amended and reenacted as follows:
§ 25-46.17. (Effective July 1, 2002) Pretrial settlement conference; determination of preliminary issues; fixing date of trial on issue of just compensation.
A. The property owner or the condemning authority in any condemnation proceeding may request and the court shall order a pre-trial settlement conference to be conducted by the court. Such conference may be requested at any time by either the property owner or the condemning authority but, if requested, shall be held not sooner than thirty days prior to trial whereupon the court shall order both parties to appear with counsel and the parties shall appear with settlement authority. All settlement conferences conducted pursuant to this provision shall be non-binding. In the event 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 the appointment of commissioners made in accordance with § 25-46.9 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, 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 or by the court, as provided in § 25-46.19. 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, and 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 by a commission or by the court, as provided in § 25-46.19.
C. 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.
D. At such hearing the court may also determine whether the petitioner shall have the right of entry as provided in § 25-46.8.
§ 36-27. (Effective July 1, 2002) Eminent domain.
A. An authority shall have the right to acquire by the exercise of the power of eminent domain any real property which may be necessary for the purposes of such authority under this chapter after the adoption by it of a resolution declaring that the acquisition of the real property described therein is necessary for such purposes. An authority may exercise the power of eminent domain in the manner provided in Chapter 1.1 (§ 25-46.1 et seq.) of Title 25. The commissioners before which condemnation proceedings are conducted may hear evidence as to the value of the property including but not limited to the owner's appraisal and the effect that any pending application for a zoning change, special use permit application or variance application may have on the value of the property. The court may also determine whether there has been unreasonable delay in the institution of the proceedings after public announcement by the condemnor of a project which necessitates acquisition by the condemnor of a designated land area consisting of or including the land sought to be condemned. If the court determines that such unreasonable delay has occurred, it shall instruct the commissioners in such proceedings to allow any damages proved to their satisfaction by the landowner or landowners to have been sustained to his or their land during and because of such delay, in addition to and separately from the fair market value thereof, but such damages shall not exceed the actual diminution if any in fair market value of the land in substantially the same physical condition over the period of the delay. This provision shall not apply to any such public announcement made prior to July 1, 1960.
B. Prior to the adoption of any redevelopment plan pursuant to § 36-49 or any
conservation plan pursuant to § 36-49.1, an authority shall send by certified
mail, postage prepaid, to at least one of the owners of every parcel of
property to be acquired pursuant to such plan a notice advising such owner that
(i) the property owned by such owner is proposed to be acquired and (ii) such
owner will have the right to appear in any condemnation proceeding instituted
to acquire the property and present any defense which such owner may have to
the taking. Such notice shall not be the basis for eligibility for relocation
benefits. At the time it makes its price offer, the authority shall also
provide to the property owner a copy of the appraisal of the fair market value
of such property upon which the authority has based the amount offered for the
property, which appraisal shall be prepared by certificate signed by a
certified general real estate appraiser licensed in accordance with Chapter
20.1 (§ 54.1-2009 et seq.) of Title 54.1, setting forth the appraiser’s opinion
of the fair market value, together with two comparable property sales, if
available, of the property to be acquired.
C. At the time the authority makes its price offer, either the authority or the
property owner may request that they participate in a dispute resolution proceeding
as defined in § 8.01-576.5, to encourage the early settlement of disputes
between the authority and the property owner concerning the price offer or the
authority's ability to acquire the property by the exercise of the power of
eminent domain. If agreed to by the parties, the dispute resolution proceeding
shall be governed by the provisions set forth in Chapter 20.2 (§ 8.01-576.4 et
seq.) of Title 8.01 or Chapter 21.2 (§ 8.01-581.21 et seq.) of Title 8.01 where
mediation is used and, where requested, shall be conducted within thirty days of the
authority's delivery of its price offer. The dispute resolution proceeding shall not
be binding upon the parties, but rather shall be conducted to further
resolution of factual disputes, avoid unnecessary use of the courts, and
facilitate settlement of the issues surrounding the authority's acquisition of
the property. If the parties agree that a dispute resolution proceeding be
held, such dispute resolution proceeding shall be completed prior to the
institution of condemnation proceedings by the authority, except where the
authority can demonstrate that circumstances justify the initiation of
condemnation proceedings prior to the date on which the dispute resolution
proceeding will be conducted.
Even if the authority and the property owner have participated in a dispute
resolution proceeding prior to the institution of condemnation proceedings by the
authority, either party may request, and the court shall order the parties to
participate in, a dispute resolution proceeding, which shall be governed by the
provisions set forth in Chapter 20.2 (§ 8.01-576.4 et seq.) of Title 8.01 or
Chapter 21.2 (§ 8.01-581.21 et seq.) of Title 8.01 where mediation is used. The
dispute resolution proceeding shall occur at least thirty days prior to any trial on
the issue of just compensation and shall not be binding on the parties, but rather
shall be conducted to further resolution of factual disputes, avoid unnecessary
use of the courts, and facilitate settlement of the just compensation issue. In
the event the dispute resolution proceeding does not resolve the issue, the
trial on the issue shall proceed on the docket of the court.
D. In all such cases the proceedings shall be according to the provisions of
Chapter 1.1 (§ 25-46.1 et seq.) of Title 25, so far as they can be applied to
the same, and the term "company " as used in such chapter, and any officers of a
"company " referred to therein, shall be construed as meaning the authority and
the commissioners thereof, respectively. An authority may exercise the power of
eminent domain in the manner provided by any other applicable statutory
provisions for the exercise of the power of eminent domain. No real property
belonging to the city, the county, the Commonwealth or any other political
subdivision thereof may be acquired without its consent.
§ 36-51. Redevelopment plans.
A. An authority shall not initiate any redevelopment project under this law
until the governing body (or planning agency or other public agency designated by it or
empowered by law so to act) of each city or town or county (hereinafter called a
"municipality") in which any of the area to be covered by such project
(hereinafter called the "redevelopment area") is situated, has approved a plan
(hereinafter called the "redevelopment plan") which provides an outline for the
development or redevelopment of the redevelopment area and is sufficiently
complete to indicate (i) its relationship to definite local objectives as to
appropriate land uses and improved traffic, public transportation, public
utilities, recreational and community facilities and other public improvements;
(ii) proposed land uses and building requirements in the redevelopment area;
(iii) the land in the redevelopment area that the authority does not intend to
acquire; (iv) the land in the redevelopment area that will be made available
after acquisition to private enterprise for redevelopment and that land which
will be made available after acquisition to public enterprise for
redevelopment; (v) anticipated funding sources that may be sufficient to
acquire all property designated for acquisition within five years of the
municipality's approval; and (vi) the method for the temporary relocation of
persons living in the redevelopment areas; and also the method for providing
(unless already available) decent, safe and sanitary dwellings in the locality
substantially equal in number to the number of substandard dwellings to be
cleared from the redevelopment area, at rents within the financial reach of the
income groups displaced from such substandard dwellings. Any municipality is
hereby authorized to approve redevelopment plans through their governing body
or agency designated for that purpose.
B. No sooner than thirty months or later than thirty-six months following the
date of the municipality's approval of the redevelopment plan (hereinafter called
the "approval date"), the municipality shall review and determine by resolution
whether to reaffirm the redevelopment plan. Where the municipality fails to
reaffirm the redevelopment plan, any real property within the redevelopment
area that has not been acquired by the authority, or for which a petition in
condemnation has not been filed by the authority, prior to the date of adoption
of such resolution by the municipality (hereinafter called the "termination
date") shall no longer be eligible for acquisition by the authority unless the
authority and the property owner mutually agree to the acquisition, in which
case the authority shall be specifically empowered to acquire the property. For
purposes of this section, a mediation request submitted by either the authority
or the property owner, in accordance with § 36-27, prior to the termination
date shall preserve the authority's right to file a petition in condemnation
relating to such real property for a period of six months after the termination
date.
C. Where the municipality reaffirms the redevelopment plan, the authority shall
continue to be authorized to acquire real property within the redevelopment area by
purchase, or through the institution of eminent domain proceedings in accordance
with § 36-27, until the fifth anniversary of the approval date. Any real
property within the redevelopment area that has not been acquired by the
authority, or for which a petition in condemnation has not been filed by the
authority, prior to the fifth anniversary of the approval date, shall no longer
be eligible for acquisition by the authority unless the authority and the
property owner mutually agree to the acquisition, in which case the authority
shall be specifically empowered to acquire the property. For purposes of this
section, a mediation request submitted by either the authority or the property
owner, in accordance with § 36-27, prior to the fifth anniversary of the
approval date, shall preserve the authority's right to file a petition in
condemnation relating to the real property for a period of six months after the
fifth anniversary of the approval date.
D. Notwithstanding the provisions of this section, a municipality shall not be
precluded from adopting a new redevelopment plan, in accordance with this section,
which designates a redevelopment area that includes real property that was
previously included within a redevelopment area under a previously adopted
redevelopment plan.
E. If the authority decides against acquiring real property designated for
acquisition under an approved redevelopment plan after having made a written
purchase offer to the owner of the property, it shall, upon the written request
of the property owner given no later than one year after the date of written
notice from the authority to the property owner of its decision not to acquire
his property, reimburse the owner of the property his reasonable expenses
incurred in connection with the proposed acquisition of his property.
Reasonable expenses shall include, but are not limited to, reasonable fees of
attorneys and appraisers or other experts necessary to establish the value of
the property to be appraised.