SB437: Eminent domain; definitions of lost access and lost profits, determining compensation.
Be it enacted by the General Assembly of Virginia:
1. That § 25.1-100 of the Code of Virginia is amended and reenacted and that the Code of Virginia is amended by adding a section numbered 25.1-230.1 as follows:
§ 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 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 appointed or empanelled.
"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 create any new right or remedy or diminish any existing 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, 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 date of valuation that is suffered as a result of a taking of the property on which the business or farm operation is located, provided (i) 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 (ii) 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 as an element of damage 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) 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.
§ 25.1-230.1. Lost access and lost profits.
A. For purposes of this section:
"Business" shall have the same meaning as set forth in § 25.1-400.
"Business profit" means the average net income for federal income tax purposes for the three years immediately prior to the valuation date of a business or farm operation located on the property taken.
"Direct access" means ingress or egress on or off a public road, street, or highway at a location where the property adjoins that road, street, or highway.
"Farm operation" shall have the same meaning as set forth in § 25.1-400.
B. The body determining just compensation shall include in its determination of damage to the residue any loss in market value of the remaining property from lost access caused by the taking or damaging of the property. The body determining just compensation shall ascertain any reduction in value for lost access, if any, that may accrue to the residue (i) beyond the enhancement in value, if any, to such residue as provided in subdivision A 1 of § 25.1-230, or (ii) beyond the peculiar benefits, if any, to such other property as provided in subdivision A 2 of § 25.1-230, by reason of the taking and use by the petitioner. If such peculiar benefit or enhancement in value shall exceed the reduction in value, there shall be no recovery against the landowner for such excess. The body determining just compensation may not consider an injury or benefit that the property owner experiences in common with the general community, including off-site circuity of travel and diversion of traffic, arising from an exercise of the police power. The body determining just compensation shall ensure that any compensation awarded for lost access shall not be duplicated in the compensation otherwise awarded to the owner of the property taken or damaged.
C. The body determining just compensation shall include in its determination of damage to the residue lost profits to the owner of a business or farm operation conducted on the property taken only if the owner proves with reasonable certainty the amount of the loss and that the loss is directly and proximately caused by the taking of the property through the exercise of eminent domain and the following conditions are met:
1. The loss cannot be reasonably prevented by a relocation of the business or farm operation, or by taking steps and adopting procedures that a reasonably prudent person would take and adopt;
2. The loss will not be included in relocation assistance provided pursuant to Chapter 4 (§ 25.1-400 et seq.);
3. Compensation for the loss will not be duplicated in the compensation otherwise awarded to the owner of the property taken or damaged; and
4. The loss shall be determined in accordance with generally accepted accounting principles applied on a consistent basis.
D. Any and all liability for lost access and lost profits shall be established and made a part of the award of just compensation for damage to the residue of the property taken or damaged.
E. It shall not be a requirement of any bona fide effort to purchase the property pursuant to § 25.1-204 or 33.1-89 that the petitioner include any liability for lost profits in a written offer to purchase the property.
F. In any proceeding in which the owner of a business or farm operation seeks to recover lost profits, the owner shall provide the condemning authority with all federal income tax returns, if any, relating to the business or farm operation for which the owner seeks lost profits for a period of three years prior to the valuation date and for each year thereafter during the pendency of the condemnation proceeding. The condemning authority shall not divulge the information provided pursuant to this subsection except in connection with the condemnation proceeding.
G. Nothing in this section is intended to provide for compensation for inverse condemnation claims for temporary interference with or interruption of a business or farm operation other than that which is directly and proximately caused by a taking or damaging of property through the exercise of eminent domain.
2. That this act shall become effective January 1, 2013, contingent upon the passage of an amendment to the Constitution of Virginia on the Tuesday after the first Monday in November 2012 amending Section 11 of Article I of the Constitution of Virginia.
Be it enacted by the General Assembly of Virginia:
1. That §§ 25.1-100 and 25.1-400 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 25.1-230.1 as follows:
§ 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 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 appointed or empanelled.
"Business" means any lawful activity, except for a farm operation, conducted primarily:
1. For the purchase, sale, lease, and rental of personal and of real property, and for the manufacture, processing, or marketing of products, commodities, or any other personal property;
2. For the sale of services to the public;
3. By a nonprofit organization; or
4. Solely for the purposes of § 25.1-406, for assisting in the purchase, sale, resale, manufacture, processing, or marketing of products, commodities, personal property, or services by the erection and maintenance of an outdoor advertising display or displays, whether or not such display or displays are located on the premises on which any of the above activities are conducted.
"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.
"Farm operation" means any activity conducted solely or primarily for the production of one or more agricultural products or commodities, including timber, for sale or home use, and customarily producing such products or commodities in sufficient quantity to be capable of contributing materially to the operator's support.
"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 change in access that occurs to property that has been taken or damaged as set out in subsection A of § 25.1-230.1. This definition of the term "lost access" 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 a change in access in awarding just compensation.
"Lost profits" means a loss of the usual profits from a business or farm operation that is suffered as a result of a taking or damaging of the property on which the business or farm operation is located to the extent that the loss is proven pursuant to subsection B 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 as an element of damage 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) 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.
§ 25.1-230.1. Lost access and lost profits.
A. The body determining just compensation shall consider an injury or benefit that is peculiar to the property owner and that relates to the property owner's ownership, use, or enjoyment of the particular parcel of real property, including a substantial and material impairment of direct access on or off the remaining property that affects the market value of the remaining property. The body determining just compensation shall ascertain damages for lost access, if any, that may accrue to the residue beyond the enhancement in value, if any, to such residue by reason of the taking and use by the petitioner. If such enhancement in value shall exceed the damage, there shall be no recovery against the landowner for such excess. The body determining just compensation may not consider an injury or benefit that the property owner experiences in common with the general community, including circuity of travel and diversion of traffic through an exercise of the police power. The body determining just compensation shall ensure that any compensation awarded for lost access shall not be duplicated in the compensation otherwise awarded to the owner of the property taken or damaged. As used in this subsection, "direct access" means ingress or egress on or off a public road, street, or highway at a location where the remaining property adjoins that road, street, or highway.
B. The body determining just compensation shall include in its determination compensation for lost profits to the owner of a business or farm operation conducted on the property taken or damaged only if the owner proves with reasonable certainty the amount of the loss and the following conditions are met:
1. The loss is directly caused by the taking of the property or damage to the residue;
2. The loss cannot be reasonably prevented by a relocation of the business or farm operation, or by taking steps and adopting procedures that a reasonably prudent person would take and adopt;
3. The loss will not be included in relocation assistance provided pursuant to Chapter 4 (§ 25.1-400 et seq.); and
4. Compensation for the loss will not be duplicated in the compensation otherwise awarded to the owner of the property taken or damaged.
C. Any and all liability for lost profits shall be established and made a part of the award of just compensation by the conclusion of the condemnation proceeding.
D. Nothing in this section is intended to provide for compensation for inverse condemnation claims for temporary interference with or interruption of a business or farm operation other than that which is directly and proximately caused by a taking or damaging of property through the exercise of eminent domain.
§ 25.1-400. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Business" means
any lawful activity, except a farm operation, conducted primarily:
1. For the purchase, sale,
lease and rental of personal and of real property, and for the manufacture,
processing, or marketing of products, commodities, or any other personal
property;
2. For the sale of services
to the public;
3. By a nonprofit
organization; or
4. Solely for the purposes of
§ 25.1-406, for assisting in the purchase, sale, resale, manufacture,
processing, or marketing of products, commodities, personal property, or
services by the erection and maintenance of an outdoor advertising display or
displays, whether or not such display or displays are located on the premises
on which any of the above activities are conducted.
"Comparable replacement dwelling" means any dwelling that is (i) decent, safe and sanitary; (ii) adequate in size to accommodate the occupants; (iii) within the financial means of the displaced person; (iv) functionally equivalent; (v) in an area not subject to unreasonable adverse environmental conditions; and (vi) in a location generally not less desirable than the location of the displaced person's dwelling with respect to public utilities, facilities, services and the displaced person's place of employment.
"Decent, safe, and sanitary dwelling" means a dwelling that:
1. Is structurally sound, weather tight and in good repair;
2. Has a safe electrical wiring system adequate for lighting and appliances;
3. Contains a heating system capable of maintaining a healthful temperature;
4. Is adequate in size with respect to the number of rooms and area of living space needed to accommodate the displaced household;
5. Has a separate, well-lighted and ventilated bathroom that provides privacy to the user and contains sink, toilet, and bathing facilities (shower or bath, or both), all operational and connected to a functional water and sewer disposal system;
6. Provides unobstructed egress to safe open space at ground level. If the unit is above the first floor and served by a common corridor, there must be two means of egress; and
7. Is free of barriers to egress, ingress and use by a displaced person who is handicapped.
"Displaced person" means:
1. Any person who moves from real property, or moves his
personal property from real property (i) as a direct result of a written notice
of intent to acquire or the acquisition of such real property, in whole or in
part, for any program or project undertaken by a state agency or (ii) on which
such person is a residential tenant or conducts a small business, a farm
operation or a business described in clause subdivision 4 of the
definition of "business" in this section § 25.1-100 as a direct result
of rehabilitation, demolition, or other displacing activity as the state agency
may prescribe, under a program or project undertaken by the state agency in any
case in which the state agency determines that such displacement is permanent;
2. Solely for the purposes of §§ 25.1-406, 25.1-407, and 25.1-411, any person who moves from real property, or moves his personal property from real property: (i) as a direct result of a written notice of intent to acquire or the acquisition of other real property, in whole or in part, on which such person conducts a business or farm operation, for a program or project undertaken by a state agency or (ii) as a direct result of rehabilitation, demolition, or other displacing activity as the state agency may prescribe, of other real property on which such person conducts a business or farm operation, under a program or project undertaken by the state agency in any case in which the state agency determines that such displacement is permanent; and
3. Any person who moves or discontinues his business or moves other personal property, or moves from his dwelling, as the direct result of (i) federally assisted activities for the enforcement of a building code or other similar code or (ii) a program of rehabilitation or demolition of buildings conducted pursuant to a federally assisted governmental program.
The term "displaced person" does not include (i) a person who has been determined, according to criteria established by the state agency, to be either in unlawful occupancy of the displacement dwelling or to have occupied such dwelling for the purpose of obtaining assistance under this chapter or (ii) in any case where the state agency acquires property for a program or project, any person, other than a person who was an occupant of the property at the time it was acquired, who occupies such property on a rental basis for a short term or a period subject to termination when the property is needed for the program or project.
"Dwelling" means the place of permanent or customary
and usual residence of a person, according to local custom or law, including a
single-family house, a single family unit in a two-family, multi-family, or multi-purpose property; a unit of a
condominium or cooperative housing project; a nonhousekeeping unit; a mobile
home; or any other residential unit.
"Farm operation"
means any activity conducted solely or primarily for the production of one or
more agricultural products or commodities, including timber, for sale or home
use, and customarily producing such products or commodities in sufficient
quantity to be capable of contributing materially to the operator's support.
"Mortgage" means such classes of liens as are commonly given to secure advances on, or the unpaid purchase price of, real property, together with the credit instruments, if any, secured thereby.
"Nonprofit organization" means an organization that is exempt from paying federal income taxes under § 501 of the Internal Revenue Code (26 U.S.C. § 501).
"Person" means any (i) individual or (ii) partnership, corporation, limited liability company, association, or other business entity.
"Uneconomic remnant" means a parcel of real property in which the owner is left with an interest after the partial acquisition of the owner's property and which the state agency has determined has little or no value or utility to the owner.
2. That this act shall become effective January 1, 2013, contingent upon the passage of an amendment to the Constitution of Virginia on the Tuesday after the first Monday in November 2012 amending Section 11 of Article I of the Constitution of Virginia.