Eminent domain; reimbursement of costs. (SB478)

Introduced By

Sen. Mark Obenshain (R-Harrisonburg) with support from co-patron Sen. David Suetterlein (R-Salem)

Progress

Introduced
Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law

Description

Eminent domain; reimbursement of costs. Provides that costs and fees may be awarded in condemnation actions where the amount the owner is awarded at trial as compensation for the taking of or damage to his property is 20 percent or more greater than the amount of the condemnor's initial written offer. Under current law, such costs and fees may be awarded if the amount awarded as compensation at trial is 30 percent or more greater than the petitioner's final offer. The bill removes an exception for meeting the requirements for payment of costs and fees for condemnation actions involving easements valued at less than $10,000. The bill also replaces the word "petitioner" with "condemnor" in the provision of the Code allowing the court to award costs and fees and allows the court to order the condemnor to pay to the owner reasonable fees and travel costs incurred by the owner for up to three experts, or as many as called by the condemnor, whichever is greater, who testified at trial. Read the Bill »

Status

03/10/2016: Passed the House

History

DateAction
01/12/2016Prefiled and ordered printed; offered 01/13/16 16102425D
01/12/2016Referred to Committee for Courts of Justice
02/10/2016Reported from Courts of Justice with substitute (14-Y 0-N) (see vote tally)
02/10/2016Committee substitute printed 16105458D-S1
02/12/2016Constitutional reading dispensed (39-Y 0-N) (see vote tally)
02/15/2016Read second time
02/15/2016Reading of substitute waived
02/15/2016Committee substitute agreed to 16105458D-S1
02/15/2016Engrossed by Senate - committee substitute SB478S1
02/15/2016Constitutional reading dispensed (39-Y 0-N) (see vote tally)
02/15/2016Passed Senate (37-Y 2-N) (see vote tally)
02/17/2016Placed on Calendar
02/17/2016Read first time
02/17/2016Referred to Committee for Courts of Justice
02/17/2016Assigned Courts sub: Civil Law
02/22/2016Impact statement from DPB (SB478S1)
02/22/2016Subcommittee recommends reporting with amendment(s) (7-Y 3-N)
03/07/2016Reported from Courts of Justice with substitute (19-Y 2-N) (see vote tally)
03/07/2016Committee substitute printed 16106208D-H1
03/09/2016Read second time
03/10/2016Read third time
03/10/2016Committee substitute agreed to 16106208D-H1
03/10/2016Amendments by Delegate Habeeb agreed to
03/10/2016Engrossed by House - committee substitute with amendments SB478H1
03/10/2016Passed House with substitute with amendments (90-Y 5-N)
03/10/2016VOTE: PASSAGE (90-Y 5-N) (see vote tally)
03/10/2016House substitute with amendments rejected by Senate (0-Y 39-N) (see vote tally)
03/10/2016House insisted on substitute with amendments
03/10/2016House requested conference committee
03/10/2016Senate acceded to request (38-Y 0-N) (see vote tally)
03/10/2016Conferees appointed by Senate
03/10/2016Senators: Obenshain, Garrett, Deeds
03/10/2016Conferees appointed by House
03/10/2016Delegates: Habeeb, Minchew, Krizek
03/11/2016C Amended by conference committee
03/11/2016Conference substitute printed 16106358D-S2
03/11/2016Conference report agreed to by Senate (38-Y 1-N) (see vote tally)
03/11/2016Reconsideration of conference report agreed to by Senate (40-Y 0-N) (see vote tally)
03/11/2016Conference report agreed to by Senate (40-Y 0-N) (see vote tally)
03/11/2016Conference report agreed to by House (89-Y 6-N)
03/11/2016VOTE: ADOPTION (89-Y 6-N) (see vote tally)

Video

This bill was discussed on the floor of the General Assembly. Below is all of the video that we have of that discussion, 7 clips in all, totaling 17 minutes.

Transcript

This is a transcript of the video clips in which this bill is discussed.

AYES 31, NO'S 9, THE BILL PASSES. TURNING FORWARD TO PAGE 12, SENATE BILL 478, THE SENATOR FROM ROCKINGHAM, SENATOR OBENSHAIN.

Sen. Mark Obenshain (R-Harrisonburg): MR. PRESIDENT, I MOVE THE BILL PASS. SPEAKING TO IT --

[Unknown]: SENATOR HAS THE FLOOR.

Sen. Mark Obenshain (R-Harrisonburg): MR. PRESIDENT, LADIES AND GENTLEMEN OF THE SENATE, THIS IS AN EMINENT DOMAIN BILL. IT IS A RELATIVELY SIMPLE ONE AS THEY GO. WE RIGHT NOW ALLOW LOCAL GOVERNMENTS AND VDOT TO CONDEMN PROPERTY, AND WHEN THEY MAKE AN OFFER, WE REALLY EXPECT THEM TO MAKE A FAIR OFFER TO PEOPLE. BUT IT TURNS OUT THAT THEY ARE NOT. AND SOME PEOPLE CAN AFFORD TO FIGHT THIS, AND SOME PEOPLE CAN AFFORD TO HIRE A LAWYER, HIRE EXPERTS, AND THEY A LOT OF PEOPLE, FRANKLY, THOSE WHO ARE LEAST ABLE TO AFFORD TO HELP THEMSELVES, THEY ARE TAKING IT. AND THEY ARE LOSING MONEY ON PROPERTY THAT, FRANKLY, IS PROBABLY WORTH MORE TO THEM THAN ANYBODY ELSE ON THE FACE OF THE EARTH. THOSE ARE THE POOR PEOPLE. NOW, PEOPLE WHO CAN AFFORD TO FIGHT, WHO DO FIGHT, YOU KNOW, WHAT THEY ARE DOING IS, YOU KNOW, VDOT IS MAKING A BET THAT PEOPLE AREN'T GOING TO FIGHT, AND IT IS A LOW-RISK BET, BECAUSE THEY CAN ALWAYS COME BACK AND INCREASE THEIR OFFER. AND THAT'S WHAT THEY DO. THEY WIND UP GOING TO COURT, AND SOME TIME BEFORE TRIAL THEY MAKE THE FAIR OFFER, THE ONE THAT IS WITHIN 20% OF WHAT THE PROPERTY IS ACTUALLY WORTH. AND AS A RESULT THE PROPERTY OWNER HAS GONE TO COURT, TO TRIAL, HAS INCURRED COSTS, ALL BECAUSE VDOT HAS NOT MADE A FAIR OFFER UP FRONT. AND IT IS REALLY KIND OF A BAIT AND SWITCH THAT HAS BEEN TAKING PLACE. AND WHAT THIS BILL DOES IS IT SIMPLY SAYS, LOOK, IF YOU ARE GOING TO TAKE PROPERTY, YOU KNOW, GO AHEAD, BUT, YOU KNOW, IT IS INCUMBENT UPON THE GOVERNMENT TO MAKE A FAIR OFFER. TO MAKE A FAIR OFFER TO THE PROPERTY OWNER. IF THEY ARE GOING TO TAKE THEIR PROPERTY. SO THE AWARD OF THOSE COSTS IS GOING TO BE TIED UNDER THIS BILL TO THE INITIAL OFFER THAT'S MADE BY VDOT. NOW, UNDERSTAND THIS IS NOT A TYPICAL NEGOTIATION. I MEAN, THEY ARE TAKING OUR PROPERTY, AND AS A RESULT THIS PROVIDES THAT MEANINGFUL REMEDY TO THOSE PROPERTY OWNERS, AND MOREOVER, WE HAVE ACTUALLY INCREASED THE AMOUNT, OR THE VARIANCE FROM 20 TO 25%, SO UNDER THE ORIGINAL BILL IT WAS 30% -- EXCUSE ME, UNDER THE EXISTING LAW, IT HAD -- THE VARIANCE HAD TO BE 30%. THE BILL NOW IS 25%. SO WITH THAT, MR. PRESIDENT, I WOULD MOVE THAT THIS BILL PASS. THE SENATOR FROM ARLINGTON,

[Unknown]: THANK YOU, SENATOR. SENATOR FAVOLA. THANK YOU, MR. PRESIDENT. SPEAKING TO THE MOTION. SENATOR HAS THE FLOOR. THE SENATOR FROM ROCKINGHAM GAVE A VERY COMPREHENSIVE EXPLANATION OF THIS BILL, BUT THERE IS ONE PIECE OF THE BILL THAT CAUSES ME SOME ANXIETY, AND THAT IS FOR PROPERTIES THAT MAY BE VALUED AT 10,000 OR LESS, VDOT HAD AN EXCEPTION TO -- UNDER THE CURRENT LAW SO THEY DIDN'T HAVE TO PAY FOR THE COSTS, BUT THIS BILL REMOVES THAT EXCEPTION. AND WHAT HAPPENS IS WE HAVE A LOT OF PROJECTS WHERE VDOT, OR LOCAL GOVERNMENT JUST NEEDS AN ADDITIONAL STRIP OF LAND HERE, OR AN ADDITIONAL STRIP OF LAND THERE, OR PERHAPS A SIDEWALK EASEMENT. JUST TO COMPLETE A PROJECT THAT, LET ME REMIND YOU, HAS GONE THROUGH AN ENORMOUS PUBLIC COMMENT PROCESS, WHERE NEIGHBORS HAVE AGREED, WHERE ALL OF YOU HAVE BEEN INVOLVED IN THESE PUBLIC HEARINGS, WHERE WE ARE TRYING TO GAIN CONSENSUS ON TRANSPORTATION PROJECTS OR INFRASTRUCTURE ABOUT PROJECTS THAT HAVE HAD PROJECTS, SO WE ARE TALKING HUNDREDS OF PUBLIC HEARINGS AND FOLKS REALLY WANT IT, AND WHAT THIS BILL DOES, IN MY OPINION, AND I THINK IN THE OPINION OF VDOT, IS IT'S GOING TO ENCOURAGE LAWSUITS. I MEAN, RIGHT NOW, VDOT DOES OFFER THE BEST PRICE ACCORDING TO ASSESSMENTS. THEY GO OUT, THEY HIRE INDEPENDENT ASSESSORS, THEY ASSESS THE PROPERTY, BUT, YOU KNOW, NOW THAT THEY DON'T HAVE THE EXCEPTION, IT'S GOING TO ENCOURAGE PEOPLE TO TAKE VDOT TO COURT WITH THE HOPES THAT THE COURT WOULD DETERMINE, GEE, VDOT WAS OFF, AND THE VALUE IS REALLY 25% HIGHER, AND THEN OF COURSE WE'LL HAVE TO PAY THOSE COSTS. LET ME JUST REMIND YOU, I KNOW WE ALL THINK GOVERNMENTS HAVE DEEP POCKETS, BUT THE FACT IS, IT'S TAXPAYERS WHO ARE PAYING THOSE DOLLARS, AND VDOT IS DIPPING INTO ITS APPROPRIATION THAT WE GIVE THEM TO PAY THESE COSTS, AND THEY ARE GOING TO HAVE MORE TO PAY AS A RESULT OF THIS BILL. SO I AM SYMPATHETIC WITH WHERE THE SENATOR FROM ROCKINGHAM IS HEADING, BUT I WOULD SUGGEST PERHAPS A BETTER APPROACH TO THIS PROBLEM WOULD HAVE BEEN MAYBE LAYING OUT THE FACTORS THAT VDOT NEEDS TO CONSIDER AND MAKING THE FIRST OFFER RATHER THAN REMOVING IN -- THIS EXCEPTION. THE LAST THING I WOULD JUST NOTE, IN COMMITTEE, DOMINION AND THE RAILROADS WERE REMOVED FROM THIS EXCEPTION. SO JUST SO YOU KNOW THAT. THANK YOU, MR. PRESIDENT. AND I ASK THAT THE LADIES AND GENTLEMEN OF THE SENATE VOTE AGAINST THIS BILL. THANK YOU, SENATOR. THE SENATOR FROM FAIRFAX CITY, SENATOR PETERSEN.

Sen. Chap Petersen (D-Fairfax): THANK YOU, MR. PRESIDENT. RISE TO SUPPORT THE BILL.

[Unknown]: THE SENATOR HAS THE FLOOR.

Sen. Chap Petersen (D-Fairfax): MR. PRESIDENT, LADIES AND GENTLEMEN OF THE SENATE, I HAVE AN OBJECTION TO THIS BILL THAT IT DOESN'T GO FAR ENOUGH. AND I SEE THE SENATOR FROM HARRISONBURG NODDING HIS HEAD. I HAVE DONE THESE REPRESENTATIONS, AND LET ME TELL YOU SOMETHING, FOLKS, WHEN A CONDEMNATION OCCURS, THE CONDEMNING AUTHORITY HAS ALL THE CARDS. THEY HAVE ALREADY SELECTED THE PROPERTY, THEY HAVE ALREADY VALUED THE PROPERTY, AND THEY HAVE FREE LEGAL ADVICE, OKAY? FREE LEGAL ADVICE. THEY ALREADY HAVE A COUNTY ATTORNEY, THEY ALREADY HAVE THE ATTORNEY GENERAL, THEY ALREADY HAVE A TEAM OF ATTORNEYS THAT ARE TRAINED IN THIS TYPE OF WORK, AND IF YOU ARE THE LANDOWNER AND YOU SUDDENLY GET A PETITION TACKED TO YOUR DOOR SAYING YOU HAVE LOST THE PROPERTY BECAUSE A CERTIFICATE OF TAKE HAS BEEN FILED, AND BY THE WAY, HERE'S AN APPRAISAL WHICH TELLS YOU WHAT IS A, QUOTE, UNQUOTE, FAIR PRICE FOR THAT, AND YOU CAN EITHER ACCEPT IT OR FIGHT IT. AND IF YOU DO FIGHT IT, YOU KNOW WHAT? YOU ARE GOING TO HAVE TO GO OUT AND HIRE AN ATTORNEY, BECAUSE YOU DON'T GET A FREE ATTORNEY. THIS IS JUST A SMALL BILL THAT BASICALLY SAYS VDOT SHOULD GIVE A FAIR APPRAISAL ON THE FRONT END, WHICH WILL BE BINDING TO THEM. NOW, NOTICE IT STILL WON'T REIMBURSE THE LAND OWNER FOR THEIR LEGAL FEES. ALL IT SAYS IS YOU CAN GET YOUR EXPERT FEES PAID, WHICH COULD BE 3, 5, MAYBE $10,000, DEPENDING ON IF YOU GO TO TRIAL. NOW, MY COLLEAGUE FROM ARLINGTON, WHO IS VERY GIFTED IN EXPLAINING HER POINT OF VIEW, BUT I WOULD TELL HER I REPRESENTED SOME OF HER CONSTITUENTS THIS SUMMER, AND THERE WAS AN INITIAL OFFER FOR THEIR PROPERTY MADE FOR TWENTY GRAND. WE TOOK IT TO TRIAL AND GOT A JURY VERDICT FOR $450,000. SO THAT WAS APPARENTLY NOT A FAIR OFFER. AND I HAD A TEAM OF SOPHISTICATED PANELISTS, SO THE BOTTOM LINE, LITSEN, I LOVE -- LISTEN, I LOVE VDOT, TRYING TO SAVE THE TAXPAYER, I GET IT. THAT'S NOT THE -- WHAT THE CONSTITUTION SAYS SHOULD BE THE FINAL DETERMINATION. ALL THIS IS IS JUST A SMALL PIECE FOR THOSE LANDOWNERS THAT CAN'T AFFORD TO HIRE A BIG-TIME ATTORNEY, OR A SMALL-TIME ATTORNEY LIKE ME, BUT JUST SLIGHTLY, SLIGHTLY TILT THE PLAYING FIELD BACK CLOSER TO 50/50, TRUST ME, VDOT STILL HOLDS DARN NEAR ALL THE CARDS. SO DO THE LOCAL AUTHORITIES. THIS WILL JUST TELL THEM AT THE OUTSET, YOU GOT TO PUT IN A FAIR APPRAISAL OR YOU MAY HAVE TO PAY A SMALL PRICE AT THE END. THANK YOU.

[Unknown]: THANK YOU, SENATOR. THE SENATOR FROM BUCKINGHAM, SENATOR GARRETT.

Sen. Tom Garrett (R-Lynchburg): SPEAKING TO THE BILL.

[Unknown]: SENATOR HAS THE FLOOR.

Sen. Tom Garrett (R-Lynchburg): MR. PRESIDENT, IT IS DIFFICULT, AND I AM GOING TO ASSOCIATE MYSELF WITH THE COMMENTS FROM THE SENATOR FROM FAIRFAX CITY, DEMONSTRATED A FINE UNDERSTANDING OF THE CONSTITUTION. IT IS AMAZING FOR ME TO THINK THAT ISTANDING IN A CHAMBER OF THE SENATE OF VIRGINIA AND MIGHT NEED TO EXPLAIN THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, BUT I WILL. EVERYBODY THINKS THAT MEANS THAT YOU HAVE THE RIGHT AGAINST SELF INCRIMINATION. IT DOES. IT ALSO SAYS IN THE FIFTH AMENDMENT THE TAKING CLAUSE, WHICH IS IMPORTANT. IT SAYS NOR SHALL PRIVATE PROPERTY BE TAKEN WITHOUT JUST COMPENSATION. IT'S THE CONSTITUTION. WE ARE MEMBERS OF THE VIRGINIA SENATE. WE SHOULD KNOW IT. THE SENATOR FROM FAIRFAX CITY, THERE WAS A CASE WHERE $20,000 WAS OFFERED TO A CLIENT OF HIS, WHO LATER RECEIVED $450,000. I SHOULDN'T NEED TO REMIND THE MEMBERS OF THIS BODY, AND I QUOTE, AN ADDITIONAL STRIP OF LAND HERE, OR AN ADDITIONAL STRIP OF LAND THERE, OR QUOTE MAYBE AN EASEMENT FOR A SIDEWALK, IS PROPERTY OWNED BY A PRIVATE CITIZEN BEING TAKEN BY THE GOVERNMENT. WHICH THEREFORE IS SUBJECT TO THE RULE OF THE CONSTITUTION, WHICH SAYS, NOR SHALL PROPERTY BE TAKEN WITHOUT JUST COMPENSATION. I COMMEND THE SENATOR FROM ROCKINGHAM, AND ASSOCIATE MYSELF WITH THE COMMENTS FROM THE SENATOR FROM FAIRFAX CITY. THIS IS OUR JOB. WE SERVE THE PEOPLE. WE PROTECT THEIR PROPERTY. AND WE UPHOLD THE CONSTITUTION. LET'S PASS THIS COMMON SENSE BILL.

Del. Bill Howell (R-Fredericksburg): THANK YOU, SENATOR. THE QUESTION IS SHALL SENATE BILL 478 PASS. ALL IN FAVOR OF THE MOTION WILL RECORD THEIR VOTES AYE, OPPOSED NO. VOTE? HAVE ALL THE SENATORS VOTED? DO ANY OF THE SENATORS DESIRE TO CHANGE THEIR VOTE? THE CLERK WILL CLOSE THE ROLL.


[Unknown]: ON THE NUMBER TWO, IS AFTER LINE 34, INSERT NUMBER FOUR, GOVERNED BY SECTION 25.1-245.1.

Del. Bill Howell (R-Fredericksburg): GENTLEMAN FROM SALEM, MR. HABEEB DISCUSSED HIS FLOOR AMENDMENTS.

Del. Greg Habeeb (R-Salem): YES, SIR, MR. SPEAKER. ONE OF THE LINE AMENDMENTS IS JUST CLARIFYING AND STRIKING OUT LANGUAGE ONCE WE DO THE SUBSTITUTE DIDN'T NEED TO BE IN THERE. IT MADE IT CLEAR AND THE OTHER IS SORT OF A BELT AND SUSPENDERS MAKING IT CLEAR A PROVISION 245 C DOESN'T APPLY IN THE NEW 245.1. I KNOW NOBODY KNOW WHAT'S THAT MEANS BUT IF THEY CARE, I'LL ANSWER QUESTIONS, OTHER WISE, I MOVE ADOPTION OF THE LINE

[Unknown]: QUESTION IS ON ADOPTION OF AMENDMENTS. THE FLOOR AMENDMENTS, THOSE IN FAVOR SAY AYE. THOSE OPPOSED, NO. FLOOR AMENDMENT IS AGREED TO.

Del. Greg Habeeb (R-Salem): MR. SPEAKER, MEMBERS OF THE BODY, THERE ARE EXISTING CODE SECTIONS IN NARROW CIRCUMSTANCES, CERTAIN COSTS IN EMMEANT DOMAIN CASES WESTBOUND SHIPPED WHEN THE FINAL WRITTEN OFFER IS LESS THAN A CERTAIN AMENDMENT RELATIVE TO WHAT THE PROPERTY OWNER GETS. THIS LEAVES THE STATUS QUO FOR ALL TYPES OF CONDEMNATION EXCEPT FOR THOSE GOVERNED BY 33.2. NOW, WHEN V DOT CONDEMNS PROPERTY, THE COST SHIFT BE WILL BE MORE PROPERTY OWNER FRIENDLY. THE HOPE IS THAT THIS WILL LEAD TO GREATER RESPECT FOR PROPERTY RATES AND ALSO, QUICKER RESOLUTION OF THE CASES AND LESS LITIGATION AND I MOVE PASSAGE OF SENATE BILL 478.

Del. Bill Howell (R-Fredericksburg): GENTLEMAN FROM CHARLOTTESVILLE, MR. TOSCANO.

Del. David Toscano (D-Charlottesville): THANK YOU, MR. SPEAKER, WILL THE GENTLEMAN YIELD FOR A QUESTION?

[Unknown]: I YIELD.

Del. David Toscano (D-Charlottesville): GENTLEMAN YIELDS.

[Unknown]: I ASK THE GENTLEMAN SINCE HE REWROTE THIS BILL, IS THERE A REASON WHY HIS NAME IS NOT ON THE PATRON'S LIST AT THIS POINT? I WILL TELL THE GENTLEMAN I HAVE A POLICY NOT TO CO-PATRON ANY BILL BECAUSE WHEN I DO, SOMEONE REWRITES THE BILL AND I DON'T LIKE WHEN IT HAPPENS. I DIDN'T CO-PATRON IT IS SHALL THE BILL PASS? I. THANK THE GENTLEMAN FOR THE ANSWER. SHALL THE BILL PASS?

Del. Bill Howell (R-Fredericksburg): CLERK WILL CLOSE THE ROLL.

[Unknown]: AYE, 90, NO, FIVE. THE BILL IS PASSED. MR. SPEAKER, RETURNING TO PAGE THREE OF THE PRINTED CALENDAR, SENATE BILL 449 MOVED TO REGULAR CALENDAR, SENATE BILL 449 A BILL TO AMEND AND REENACT VARIOUS SECTION OF THE CODE OF


Del. Greg Habeeb (R-Salem): YESTERDAY. WE ACTUALLY ADOPTED A COUPLE AMENDMENTS, CAME OUT OF HERE WITH A PRETTY BIG VOTE. ONE OF THE AMENDMENTS WAS SCREWED UP A LITTLE BIT, SO WE PUT IT INTO CONFERENCE TO MAKE ONE LITTLE TWEAK, CHANGED ONE WORD AND HAVE A UNANIMOUS AGREEMENT ON A SUBSTITUTE, WHICH IS A CONFERENCE REPORT, AND I WOULD MOVE ADOPTION.

Del. Bill Howell (R-Fredericksburg): SHALL THE CONFERENCE REPORT BE ADOPTED?