Code of Virginia

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Code of Virginia
Title 25.1. Eminent Domain
Chapter 1. General Provisions
10/16/2021

Chapter 1. General Provisions.

§ 25.1-100. Definitions.

As used in this title, unless the context requires a different meaning:

"Appraisal" means a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market information.

"Body determining just compensation" means a panel of commissioners empaneled 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 appointed or empaneled.

"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.

"Lost access" means a material impairment of direct access to property, a portion of which has been taken or damaged as set out in subsection B of § 25.1-230.1. This definition of the term "lost access" shall not diminish any existing right or remedy, and shall not create any new right or remedy other than to allow the body determining just compensation to consider a change in access in awarding just compensation.

"Lost profits" means a loss of business profits, as defined in § 25.1-230.1, that is suffered as a result of a taking of the property on which a business or farm operation is located, subject to adjustment using generally accepted accounting principles consistently applied, from a business or farm operation for a period not to exceed three years from the later of (i) the date of valuation or (ii) the date the state agency or its contractor prevents the owner from using the land or any of the owner's other property rights are taken. The person claiming lost profits is entitled to compensation whether part of the property or the entire parcel of property is taken. In order to qualify for an award of lost profits, one of the following conditions shall be met: (a) the business is owned by the owner of the property taken, or by a tenant whose leasehold interest grants the tenant exclusive possession of substantially all the property taken, or (b) the farm operation is operated by the owner of the property taken, or by a tenant using for a farm operation the property taken, to the extent that the loss is determined and proven pursuant to subsection C of § 25.1-230.1. This definition of the term "lost profits" shall not create any new right or remedy or diminish any existing right or remedy other than to allow the body determining just compensation to consider lost profits in awarding just compensation if a person asserts a right to lost profits in a claim for compensation.

"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. The term "petitioner" or "condemnor" includes a state agency.

"Property" means land and personal property, and any right, title, interest, estate or claim in or to such property.

"State agency" means any (i) department, agency or instrumentality of the Commonwealth; (ii) public authority, municipal corporation, local governmental unit or political subdivision of the Commonwealth or any department, agency or instrumentality thereof; (iii) person who has the authority to acquire property by eminent domain under state law; or (iv) two or more of the aforementioned that carry out projects that cause persons to be displaced.

"State institution" means any (i) institution enumerated in § 23.1-1100 or (ii) state hospital or state training center operated by the Department of Behavioral Health and Developmental Services.

1962, c. 426, § 25-46.3; 1991, c. 520; 2000, c. 1029; 2002, c. 878; 2003, c. 940; 2006, c. 586; 2009, cc. 813, 840; 2010, c. 835; 2011, cc. 117, 190; 2012, cc. 476, 507, 699, 719; 2015, c. 642; 2017, c. 314; 2018, c. 702.

§ 25.1-101. Condemnation by state institutions.

A. Any state institution may acquire by condemnation title to (i) land, (ii) any easement thereover or (iii) any sand, earth, gravel, water or other necessary material for the purpose of opening, constructing, repairing or maintaining a road or for any other authorized public undertaking; however, such acquisition by condemnation shall only be commenced if the terms of purchase cannot be agreed upon or the owner (a) is unknown, (b) cannot with reasonable diligence be found within this Commonwealth or (c) cannot negotiate an agreement or convey legal title to the property because the owner is a person under a disability.

B. Condemnation proceedings authorized by subsection A shall be conducted under the provisions of Chapter 2 (§ 25.1-200 et seq.) of this title insofar as applicable.

Code 1950, § 25-232; 1964, c. 291, § 25-232.01; 1980, c. 559; 1986, c. 117; 2003, c. 940.

§ 25.1-102. Condemnation of property of corporations possessing power of eminent domain.

A. Except as provided in §§ 15.2-1906 and 15.2-2146, no (i) corporation or (ii) electric authority created under the provisions of Chapter 54 (§ 15.2-5400 et seq.) of Title 15.2 shall file a petition to take by condemnation proceedings any property belonging to any other corporation possessing the power of eminent domain, unless, after notice to all parties in interest and an opportunity for a hearing, the State Corporation Commission shall certify that a public necessity or that an essential public convenience shall so require, and shall give its permission thereto; and in no event shall one corporation take by condemnation proceedings any property owned by and essential to the purposes of another corporation possessing the power of eminent domain. Notwithstanding anything herein to the contrary, a locality exercising the powers granted by § 15.2-2109 or § 15.2-2115 shall be subject to the provisions of this section to the same extent as are corporations, unless otherwise provided in § 15.2-1906 or § 15.2-2146.

B. If the State Corporation Commission gives its permission to a condemnation, the Commission shall establish for use in any condemnation proceeding whether any payment for stranded investment is appropriate and, if so, the amount of such payment and any conditions thereof.

C. Any condemnor that is authorized to use the procedure set out in Chapter 3 (§ 25.1-300 et seq.) of this title by a provision that incorporates such procedure by reference shall, in using such procedure, be subject to the provisions of this section to the same extent as are corporations, unless the provision specifically provides that this section shall not apply to such condemnor's use of such procedure.

Code 1919, § 3832; 1996, c. 619, § 25-233; 1999, cc. 484, 531; 2003, c. 940.

§ 25.1-103. Condemnation of lands of state institutions.

Without the consent of the General Assembly, no condemnor shall be authorized to condemn or acquire any lands belonging to, attached to the site, or used for the purposes of any state institution.

Code 1919, § 4384; Code 1950, §§ 25-45, 25-46; 1962, c. 426, § 25-46.6; 2003, c. 940.

§ 25.1-104. Condemnation of lands of private educational institutions for highway purposes.

No lands of any private, nonprofit institution of higher education in the Commonwealth approved to confer degrees pursuant to Article 3 (§ 23.1-213 et seq.) of Chapter 2 of Title 23.1 that, at the time proceedings are instituted, (i) are located within 500 feet of any building erected and used for school purposes or (ii) surround the school buildings and are used as a campus, park, or athletic ground or field, shall be subject to condemnation for the purposes of public highways.

Code 1919, § 4384; Code 1950, §§ 25-45, 25-46; 1962, c. 426, § 25-46.6; 2003, c. 940.

§ 25.1-105. Condemnation of cemeteries.

Nothing in this title shall be construed to authorize the condemnation of property of any cemetery or burial ground, or any part thereof. The authority to condemn any cemetery or burial ground shall be specifically as provided by law.

Code 1919, § 4384; Code 1950, §§ 25-45, 25-46; 1962, c. 426, § 25-46.6; 2003, c. 940.

§ 25.1-106. Condemnation of lands within agricultural and forestal districts.

No property that is within an agricultural and forestal district as provided by Chapter 43 (§ 15.2-4300 et seq.) of Title 15.2 shall be condemned except in accordance with §§ 15.2-4312 and 15.2-4313.

1977, c. 681, § 25-46.2:2; 2003, c. 940.

§ 25.1-107. Condemnation of lands within adopted conservation or redevelopment plans.

A. After the adoption of a conservation or redevelopment plan pursuant to Article 7 (§ 36-48 et seq.) of Chapter 1 of Title 36, should any property located within the area of the conservation or redevelopment plan be downzoned without the expressed consent of the property owner and should the locality initiate condemnation proceedings against that owner after any such downzoning, the date of valuation shall be the date of adoption of the conservation or redevelopment plan. However, if the owner of the property on the date of the downzoning no longer owns the property on the date condemnation proceedings are initiated, then the date of valuation shall be the date of the filing of the petition for a condemnation or a certificate pursuant to Chapter 3 of this title, as the case may be.

B. If property located within a conservation or redevelopment plan adopted pursuant to Article 7 (§ 36-48 et seq.) of Chapter 1 of Title 36 was downzoned without the expressed consent of the property owner within a period of five years prior to the adoption of the conservation or redevelopment plan and if such downzoning was not part of a comprehensive rezoning of the locality, then, if the locality should initiate condemnation proceedings within five years after the adoption of the conservation or redevelopment plan against the same owner who owned the property at the time of the downzoning, the date of valuation shall be the day before the date the property was downzoned. However, if the owner of the property on the date condemnation proceedings are initiated is not the same owner on the date the property is downzoned, then the date of valuation shall be the date of the filing of a petition for condemnation or a certificate pursuant to Chapter 3 (§ 25.1-300 et seq.) of this title, as the case may be.

C. Where the date of valuation in condemnation proceedings governed by this section predates the date of any downzoning action, the locality may introduce into evidence before the body determining just compensation the estimated difference between the amount of real estate taxes that the owner would have paid had the downzoning not occurred and the amount of real estate taxes assessed against the property since the date of the downzoning and the body determining just compensation may offset the award by that amount.

2004, c. 540.

§ 25.1-108. Offer to sell to former owner.

A. If a condemnor has acquired a fee simple interest in property by exercise of its power of eminent domain and subsequently declares that the property is surplus, the condemnor shall offer, within 30 days following such determination, to sell such property to the former owner or his heirs or other successors or assigns. If (i) the work or improvements described in any written statement required by law or in the petition for condemnation made pursuant to § 25.1-206 have not been let to contract or construction commenced within a period of 20 years from the date that the fee simple interest in the property vested in the condemnor, and the property is not being used for other public uses that are within the limitations set forth in § 1-219.1 or (ii) at any time the property is no longer used or needed for the public use for which the property was taken as may be described in any written statement required by law or in the petition for condemnation or for another specific public use that is within the limitations set forth in § 1-219.1, the condemnor shall declare its fee simple interest in the property to be surplus and offer to sell the property to the former owner or his heirs or other successors or assigns. Additionally, if the conditions described in clause (i) or (ii) occur, the former property owner or his heirs or other successors or assigns may make a written demand that the condemnor (a) declare its fee simple interest in the property to be surplus and (b) offer to sell the property to the former owner or his heirs or other successors or assigns. Any contractual provision or agreement by the former owner waiving the right to receive an offer to sell from the condemnor is void and unenforceable. The offer to sell shall be made in writing by the condemnor at the price paid by the condemnor to the former owner plus interest at the annual rate of six percent, provided that the condemnor may increase the price by the fair market value of the condemnor's improvements, determined at the time the offer to sell is made. In no case shall the price established by the condemnor exceed the fair market value of the property at the time the offer to sell is made. The offer to sell shall comply with the requirements of subsection B. If the former owner or his heirs or other successors or assigns do not accept in writing an offer to sell that complies with the requirements of this section within six months after the offer to sell has been made as provided in subsection B, the former owner or his heirs or other successors or assigns shall have no further right to purchase the property pursuant to this section. An offer to sell that satisfies the requirements of this subsection and subsection B shall be deemed a valid offer to sell under this section.

B. The condemnor shall (i) send the offer to sell to the former owner by certified mail, return receipt requested, to (a) the last known address of the former owner and (b) the address of the former owner as it appears in the tax records of the treasurer for the locality in which the property is located and (ii) publish the offer to sell in a newspaper having general circulation in the locality in which the property is located. The offer to sell shall be published once a week for two successive weeks, shall identify the former owner from whom the condemnor acquired the property, shall briefly describe the property and the date title vested in the condemnor, shall state the offer is made pursuant to this section, and shall state that the offer is open to any heirs, successors, or assigns of the former owner, who shall be named in the offer as parties unknown.

C. This section shall apply only to a fee simple interest in real property acquired by a condemnor in the exercise of its power of eminent domain. This section shall not apply to property acquired by the Commissioner of Highways pursuant to Title 33.2. Further, this section shall not apply to property acquired by a locality for transportation projects, including for bond-funded transportation projects or for future transportation improvements, regardless of whether such projects are undertaken in conjunction with the Commonwealth Transportation Board, provided that as to any such acquisitions by a locality the provisions of § 33.2-1005 shall apply mutatis mutandis to the property and any disposition thereof. Also, this section shall not apply to property that is acquired by the owner of a railroad for actual operating purposes if the property is unsuitable for independent development.

2005, c. 2; 2006, c. 246; 2007, cc. 882, 901, 926; 2011, cc. 117, 190.

§ 25.1-109. Condemnation of lands for compensatory mitigation of wetlands.

When authorization is required by federal or state law for any project affecting wetlands and the authorization is conditioned upon compensatory mitigation for adverse impacts to wetlands, no condemnor shall acquire through exercise of the power of eminent domain any property to satisfy such condition unless: (i) the property sought to be acquired is located within the same locality as the project affecting wetlands, or (ii) the governing body of the locality where the property sought to be acquired consents to its acquisition for such purpose. This section shall not apply to property acquired by the Commissioner of Highways pursuant to Title 33.2.

2005, c. 311.