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2002 SESSION


VIRGINIA ACTS OF ASSEMBLY -- CHAPTER
An Act to amend and reenact §§ 25-46.17 and 36-27 of the Code of Virginia, relating to eminent domain; condemnation generally; pretrial settlement conferences.
[H 843]
Approved

Be it enacted by the General Assembly of Virginia:

1. That §§ 25-46.17 and 36-27 of the Code of Virginia are amended and reenacted as follows:

§ 25-46.17. 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, if requested, the court shall order a pre-trial settlement conference to be conducted by a neutral third party, if available. 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, if any, 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. 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 a certified general real estate appraiser licensed in accordance with Chapter 20.1 (§ 54.1-2009 et seq.) of Title 54.1.

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.