Senate Bill 485, which is currently pending before the Virginia General Assembly, would require entities that condemn land for a highway project to condemn an owner’s entire parcel whenever the owner demands it. Under the proposed bill, the owner of the parcel, not the condemnor, would decide whether the residue the owner is left with after a partial acquisition is an uneconomic remnant that must also be taken by the condemnor. This decision would not be subject to review: the bill establishes no objective standard that the property owner’s decision must meet, and there is no general principle—like abuse of discretion—that would otherwise constrain the decision. The bill would also remove the limitation on the amount of land that condemnors can acquire in this manner. Thus, owners who have a part of their property taken for a highway project, no matter how small the acquisition and no matter how unimportant to the rest of the property the area taken is, would be able to require the condemnor to acquire the whole parcel regardless of its size. On the other side of the coin, if the residue met any of the other statutory criteria that would authorize the condemnor to acquire the whole parcel and the landowner objected, the bill would forbid the condemnor from acquiring the residue. Once again, the bill does not impose any objective criteria or limitation on the landowner’s discretion.
The bill’s lack of constraint on the landowner’s decision means that the amended statute would be open to abuse. To illustrate, imagine that a person owns a twelve-acre parcel of unimproved land. The locality in which the parcel is located decides to expand a highway that runs adjacent to the parcel. The locality only needs to take about a thousand square feet of the parcel for the project, leaving the rest of the land untouched and undamaged. If the bill is passed, the owner could declare that the parcel is no longer suitable for its current use regardless of the tiny size of the acquisition. Thus, with a simple declaration, the owner could require the locality to acquire an enormous parcel when the locality only needs a small fraction of it for the project.
The bill also amends the general acquisition policies more generally applicable to governmental condemnors to allow the landowner to decide whether a partial acquisition renders the residue of his property an uneconomic remnant that the condemnor must also take. The effectiveness of this policy change is questionable, however, because, by its own terms, the policy statute does not create an enforceable right for owners or otherwise bestow upon them a cause of action.[1]
It should also be noted that the portion of the bill dealing with the general acquisition policies is poorly drafted. The current version of the policy dealing with uneconomic remnants is found at Va. Code § 25.1-417(A)(9) and reads: “If the acquisition of only part of a property would leave its owner with an uneconomic remnant, the state agency concerned shall offer to acquire the entire property.” Notably, the quoted text does not specify who determines whether the residue is an uneconomic remnant. That question is left to the definition statute, which specifies that the term 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] The bill amends the substantive policy to dictate that the landowner decides whether the residue is an uneconomic remnant, but it leaves the definition unchanged. Thus, the amended statute would dictate that the landowner makes the decision, whereas the definition section would state that the condemnor does, and that inherent conflict would almost certainly give rise to litigation.
The bill is currently before the Civil Law Subcomittee of the Senate Judiciary Committee. The subcommittee has not yet released its dockets, so it is unknown when the bill will be considered. Its progress can be tracked here. The bill’s current text can be found here.
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[1]Va. Code § 25.1-417(B); City of Chesapeake v. Clear Sky Car Wash, L.L.C., 89 Va. Cir. 27, 30 (Chesapeake 2014) (holding that the statute does not provide the landowner with a private cause of action for failure to comply with its requirements).
[2]Va. Code § 25.1-400 (emphasis added).
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