Inverse condemnation proceeding; reimbursement of owner's costs. (SB543)

Introduced By

Sen. Mark Obenshain (R-Harrisonburg)

Progress

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

Description

Inverse condemnation proceeding; reimbursement of owner's costs. Directs the court to reimburse a plaintiff for the costs of an inverse condemnation proceeding for "damaging" property if a judgment is entered for the plaintiff. Under current law, the court is directed to award costs only for the "taking" of property. The change made in this bill corresponds with the language of amendments to Article 1, Section 11 of the Constitution of Virginia, which became effective on January 1, 2013 Read the Bill »

Status

03/05/2016: Passed the General Assembly

History

DateAction
01/13/2016Prefiled and ordered printed; offered 01/13/16 16102426D
01/13/2016Referred to Committee for Courts of Justice
02/10/2016Reported from Courts of Justice (14-Y 0-N) (see vote tally)
02/12/2016Constitutional reading dispensed (39-Y 0-N) (see vote tally)
02/15/2016Read second time and engrossed
02/15/2016Constitutional reading dispensed (39-Y 0-N) (see vote tally)
02/15/2016Passed Senate (39-Y 0-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
02/22/2016Subcommittee recommends reporting with amendment(s) (10-Y 0-N)
02/24/2016Reported from Courts of Justice with amendment (22-Y 0-N) (see vote tally)
02/25/2016Read second time
02/26/2016Read third time
02/26/2016Committee amendment agreed to
02/26/2016Engrossed by House as amended
02/26/2016Passed House with amendment BLOCK VOTE (97-Y 0-N)
02/26/2016VOTE: BLOCK VOTE PASSAGE (97-Y 0-N) (see vote tally)
03/01/2016House amendment agreed to by Senate (39-Y 0-N) (see vote tally)
03/02/2016Enrolled
03/02/2016Bill text as passed Senate and House (SB543ER)
03/02/2016Signed by Speaker
03/05/2016Signed by President
03/07/2016G Governor's Action Deadline Midnight, Monday, April 11, 2016
03/07/2016Enrolled Bill Communicated to Governor on 3/7/2016
03/07/2016G Governor's Action Deadline Midnight, Sunday, April 10, 2016

Video

This bill was discussed on the floor of the General Assembly. Below is all of the video that we have of that discussion, 2 clips in all, totaling 11 minutes.

Transcript

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

SENATE BILL 543 PASSED THE HOUSE WITH AMENDMENT. SENATOR FROM ROCKINGHAM, SENATOR OBENSHAIN. I MOVE THAT THE HOUSE AMENDMENT BE AGREED TO. THIS AMENDMENT SIMPLY CLARIFIES THAT THIS BILL IS NOT TO BE RETROACTIVELY APPLIED. THANK YOU, SENATOR. THE QUESTION IS SHALL THE SENATE CONCUR WITH THE HOUSE RECORD THEIR VOTES AYE, THOSE OPPOSED NO. ARE THE SENATORS READY TO VOTE? HAVE ALL THE SENATORS VOTED? DO ANY SENATORS DESIRE TO CHANGE THEIR VOTE? THE CLERK WILL CLOSE THE ROLL. AYES 39, NOS 0. AYES 39, NOS 0. THE SENATE CONCURS WITH THE HOUSE AMENDMENT. SENATE BILL 567 PASSED THE HOUSE WITH AMENDMENT. SENATOR FROM SOUTHERN FAIRFAX COUNTY, SENATOR BARKER. MR. PRESIDENT, I MOVE THAT WE
THE AMENDMENTS ARE AGREED TO. I HATE TO BREAK IT UP, BUT I SENATE BILL. WOULD ASK THAT WE REJECT THE GOVERNOR'S AMENDMENTS TO SENATE BILL 543. SPEAKING TO THAT, IF I CAN REFRESH THE MEMBERS' RECOLLECTION THIS IS A BILL DEALING WITH INVERSE CONDEMNATION. IT IS NOT WHERE THE LOCAL GOVERNMENT OR STATE COMES TO TAKE YOUR PROPERTY TO BUILD SOMETHING ON IT, IT IS WAY GOVERNMENT, SAYS BUILDS A ROAD AND DIVERTS WATER AND THAT WATER IS NOW CROSSING YOUR PROPERTY SO YOU CAN'T USE IT ANY LONGER, THAT IS AN INVERSE CONDEMNATION. THE GOVERNMENT HAS TAKEN YOUR PROPERTY WITHOUT ACTUALLY TAKING IT. AND OUR CONSTITUTION PROTECTS PROPERTY OWNERS' RIGHTS WITH RESPECT TO INVERSE CONDEMNATIONS AS WELL. WHAT THIS BILL WAS IT PROVIDED PROTECTIONS FOR THOSE PROPERTY OWNERS CONSISTENT WITH THE PROTECTIONS AVAILABLE IN THE EVENT THAT THEY ACTUALLY TAKE YOUR PROPERTY AND MADE CONSISTENT THE ABILITY OF THOSE PROPERTY OWNERS TO RECOVER COSTS AND EXPENSES ASSOCIATED WITH FIGHTING TO BE COMPENSATED FOR THAT. AND WHAT THE GOVERNOR'S AMENDMENT HAS DONE IS IT HAS SAID THAT IF YOU INCUR, IF YOU RECOVER FOR THAT DAMAGE TO YOUR PROPERTY YOU -- YOUR RECOVERY HAS TO BE AT LEAST 50% OF THE VALUE OR THE COST THAT YOU HAVE INCURRED. IN ORDER TO BE ABLE TO RECOVER THOSE COSTS. HERE IS WHAT THIS DOES. IF I OWN A VERY VALUABLE BIG PIECE OF PROPERTY, I'M GOING TO BE FINE. IF I HAVE A PIECE OF PROPERTY THAT HAS BEEN DAMAGED IN THE AMOUNT OF A MILLION DOLLARS, I WOULD HAVE TO INCUR $2 MILLION OF COSTS AND EXPENSES TO BE PUNISHED BY THIS AMENDMENT. BUT IF I AM A NORMAL PERSON WHO OWNS A SMALL PIECE OF PROPERTY AND I HAVE $5,000 WORTH OF DAMAGE TO MY PROPERTY BY WATER RUNNING ACROSS IT, OR SOME OTHER FORM OF TAKEN, IF THE LOCAL GOVERNMENT OR VDOT STUBBORNLY REFUSES TO COMPENSATE ME FOR THAT AND I INCUR $10,000 WHICH I CAN DO AT THE DROP OF A HAT IN COSTS AND EXPENSES IN TRYING TO RECOVER, I'M NOT GOING TO BE ABLE TO RECOVER THOSE. SO WHAT I WOULD RESPECTFULLY SUBMIT IS I UNDERSTAND THE CONCERN THAT THE ADMINISTRATION HAS, BUT IF WE ARE GOING TO PROTECT PROPERTY OWNERS WE NEED TO PROTECT ESPECIALLY THE PEOPLE WHO ARE MOST VULNERABLE, THE PEOPLE WHO CAN'T AFFORD TO FIGHT AND WHAT IS GOING TO HAPPEN WITH THIS. THIS LEGISLATION OR THIS AMENDMENT IS THAT THE POOR FOLKS, THE FOLKS WHO CANNOT AFFORD TO INCUR THOSE COSTS ARE JUST GOING TO HAVE TO EAT IT AND THEY ARE NOT GOING TO BE ABLE TO CHALLENGE THOSE ACTIONS. SO WHAT I WOULD ASK IS THAT WE REJECT THE GOVERNOR'S AMENDMENTS TO THIS BILL SO THAT IT CAN HAVE THE DESIRED IMPACT OF PROTECTING ALL PROPERTY OWNERS AND NOT JUST THE MOST WEALTHY PROPERTY OWNERS. THANK YOU, SENATOR. THE SENATOR FROM FAIRFAX CITY, SENATOR PETERSEN.

Sen. Chap Petersen (D-Fairfax): I RISE FOR AN INTRODUCTION.

[Unknown]: THE SENATOR HAS THE FLOOR.

Sen. Chap Petersen (D-Fairfax): THIS MIGHT BE ONE WHERE I WOULD LIKE TO HAVE ASK THE GOVERNOR'S STAFF TAKE ANOTHER LOOK AT THIS. I HAVE BOTH A SUBSTANTIVE AND TECHNICAL POINT. THE SUBSTANTIVE POINT IS SIMILAR. OFTEN TIMES WHEN THE COSTS GO HIGH THE VALUE MIGHT BE QUITE SMALL BUT AGAIN VDOT OR THE UTILITY HAVE AN UNENVIRONMENTED BUDGET TO FIGHT THE CASE. THE LAND OWNER OFTEN TIMES HAS NO BUDGET AND SO IN ORDER TO HAVE AN ATTORNEY GET INVESTED IN THE CASE AND TAKE THE CASE THEY HAVE TO HAVE SOME METHOD OF REIMBURSEMENT AND WE ARE CAPPING THE CLASS OF PEOPLE THAT TWO QUALIFY WHICH MEANS WE ARE CAPPING THE CLASS OF PEOPLE THAT WOULD HAVE THE CHANCE TO FIGHT THE GOVERNMENT AND YES, INVERSE CONDEMNATIONS ARE RARE, BUT WHAT HAPPENS IF SOMEBODY BUILDS A POWER LINE THROUGH YOUR PROPERTY OR A PIPELINE THROUGH YOUR PROPERTY AND AS A RESULT THAT REPORT IS RENDERED UNINHABITABLE. THESE ARE NOT EASY CASES, IT IS A VERY HIGH LEGAL STANDARD THAT IS THE TYPE OF CASE WHERE WE WANT TO GIVE PEOPLE A FIGHTING CHANCE. IN THE AMENDMENT ITSELF EVEN THOUGH ATTORNEYS FEES IS COVERED IN THE STATUTE IT SAYS COSTSERS DISBURSEMENT OR EXPENSES AND DOESN'T SPECIFICALLY MENTION ATTORNEYS IT FEES. IN A CASE DIVIDED IN DISEASE OF LAST YEAR THE LEGISLATURE HAS TO ACTUALLY SPECIFY ATTORNEYS IT FEES IF THAT IS WHAT IT MEANS IN ASTUTE TOUT. I KNOW BECAUSE I LOST THAT CASE AND IT COST KNEE CLIENT $150,000. TAKE IT FROM ME. I THINK THIS NEEDS A TAD BIT MORE WORK AND HOPEFULLY THE GOVERNOR'S OFFICE HAS A SECOND CHANCE IF WE REJECT THE AMENDMENT.

[Unknown]: THANKOUT, SENATOR. THE SENATOR FROM ROANOKE CITY. I MOVE THAT WE ACCEPT THE GOVERNOR'S RECOMMENDATION. LET ME EXPLAIN A LITTLE FURTHER WHAT THIS BILL DOES. FIRST, IT DOES NOT AFFECT ATTORNEYS FEED A COSTS AND EXPENSES AS TO THAT TAKING UNDER THE LAW. THE TAKING IS WHEN VDOT SAYS I NEED YOUR PROPERTY FOR A ROAD AND YOU GET THE COSTS AND ATTORNEYS FEES SHOULD YOU PREVAIL AND THAT IS MANDATORY AND YOU ARE ENTITLED TO THIS. THIS DEALS WITH INVERSE CONDEMNATION AS THE SENATOR EXPLAINED. INVERSE CONDEMNATIONS ARE THE GOVERNMENT DOESN'T COME IN A TAKE OUR PROPERTY BUT TOWS SOMETHING THAT DAMAGES YOUR PROPERTY. A CASE THAT HAPPENED IN 2007 REGARDING THE CHESAPEAKE AIRPORT AUTHORITY. SOME NEIGHBORS AT ANY TIME LIKE THE NOISE AND SUED THE CHESAPEAKE AIRPORT AUTHORITY AND SAID THE GOVERNMENT THE COMMONWEALTH OWED SOME MONEY BECAUSE THE VALUE OF THE PROPERTY WAS DIMINISHED BECAUSE OF THE NOISE. TURNED OUT THEY SOLD THE PROPERTY FOR TWICE WHAT THEY PAID FOR IT AND THE COURT DIDN'T AWARD THEM ANYTHING. BUT THAT THAT CASE, THIS HE WOULD BE HAD THIS HE WON THEY WOULD BE ENTITLED UNDER THIS BILL FOR THE FIRST TIME TO ATTORNEYS, FEES, COSTS AND EXPENSES HAD THEY WON ANYTHING, EVEN A DOLLAR OR $10 OR $20 OR $20,000. WHAT THIS BILL SAYS IT JUST WHAT THE GOVERNOR'S AMENDMENT DOES IS LIMITS THE ATTORNEYS FEES IN CERTAIN LIMITED CIRCUMSTANCES. LET'S SAY FOR EXAMPLE YOU SPEND $100,000 ON THE INVERSE CONDEMNATION CASE AND YOU ARE AWARDED $50,000 OR $40,000 YOU WOULD NOT BE ENTITLED TO COSTS AND EXPENSES. IF YOU ARE AWARDED 50,000, MORE THAN 50% THAN YOU WOULD BE INSIGHTLED TO AN AWARD OF COSTS AND EXPENSES AND ATTORNEY FEES. ALL THIS DOSE IS LIMIT THE IN A LIMITED WAY THE COSTS A AND EXPENSES AND ATTORNEYS FEES IN INVERSE CONDEMNATION CASES ONLY IF THE AWARD IS LESS THAN 50% OF WHAT YOU SPENT TUG TO BRING THE CASE. THE IDEA IS TO DISCOURAGE PRIVILEGE CASES AND PUT SOME LIMITATION ON SOME OF THESE AND LET PEOPLE THINK LONG AND HARD BEFORE THEY BRING THESE CASES AND I THINK MOST PEOPLE DO ANYWAY. BUT THE IN THE CASE INVOLVING CHESAPEAKE APPARENTLY HUNDREDS OF THOUSANDS OF DOLLARS WERE SPENT BY THE CHESAPEAKE AIRPORT AUTHORITY AND, OF COURSE, THEY WON, THE PLAINTIFFS GOT NOTHING IN THAT CASE BUT THE POINT IS LET'S NOT HAVE A RUNAWAY SITUATION WHERE PEOPLE CAN BRING HUGE CASES AGAINST THE GOVERNMENT RUN UP THE BIG EXPENSES AND EVEN IF THEY GET A DOLLAR ALL OF THE COSTS AND EXPENSES AND ATTORNEYS FEES IN BRINGING THE CASE. THAT IS ALL THIS DOES. REAL LAY COMMON SENSE MEASURE AND I RECOMMEND THAT WE ADOPT THE GOVERNOR'S RECOMMENDATION. THANK YOU, SENATOR. THE SENATOR FROM ROCKINGHAM, SENATOR OBENSHAIN.

Sen. Mark Obenshain (R-Harrisonburg): MR. PRESIDENT, JUST VERY BRIEFLY. A COUPLE OF POINTS. NUMBER ONE, IT IS IMPORTANT TO REMEMBER THAT UNDER THE CURRENT SYSTEM AND UNDER THE BILL AS WRITTEN IT IS INCUMBENT UPON THE JUDGE TO DECIDE WHETHER THE COSTS AND EXPENSES THAT ARE CLIPPED ARE REASONABLE AND THE JUDGE CAN MAKE THAT DETERMINATION THAT THEY ARE TOO HIGH AND RETUESDAY THEM. WHAT THIS DOSE IS IT DOESN'T CAP IT. IT BARS IT. THE WRAY THAT THIS WRITTEN IS IN NO CASE SHALL COST EXPENSES BE AWARDED WHEN THE PLAINTIFF CLAIMS DAMAGE TO PROPERTY IN AN AMOUNT THAT IS LESS THAN 50% OF THE COSTS ACTUALLY INCURRED. IT IS A BAR. SO THE JUDGE DOESN'T HAVE ANY DISCRETION. THE JUDGE CAN'T COME IN AND SAY I AM GOING TO -- I UNDERSTAND THAT YOU INCURRED FEES AND AM GOING TO AWARD LESS IN FEES AND THE JUDGE DOESN'T HAVE ANY DISCRETION AND CAN'T AWARD THE FIRST PENNY IN FEES OR COSTS OR EXPENSES TO THAT PERSON. THIS CREATES A BRIGHT LINE AND IF A PROPERTY OWNER IS ONE DOLLAR OVER THAT LINE THE RESULT IS YOU KNOW THE ABSURD RESULT OF DEPRIVING THEM OF ANY REIMBURSEMENT FOR THE FIRST PENNY INCURRED.

[Unknown]: THANK YOU, SENATOR.

Sen. Mark Obenshain (R-Harrisonburg): WITH THE RECOMMENDATION THAT IT BE REJECTED THE QUESTION IS SHALL THE GOVERNOR'S RECOMMENDATIONS BY AGREED TO. ALL IN FAVOR OF THE MOTION WILL. ARE THE SENATORS READY TO VOTE? HAVE ALL THE SENATORS VOTED? DO ANY SENATORS DESIRE TO CH ANGE THEIR VOTE? THE CLERK WILL CLOSE THE ROLL.

[Unknown]: AYES 9, NOS 30. AYES 9, NOS 30. THE GOVERNOR'S RECOMMENDATIONS ARE REJECTED. SENATE BILL 574.