As previously discussed, the Virginia General Assembly has passed two major eminent domain bills this term: Senate Bill 666, which primarily expands the definition of lost profits, and Senate Bill 694, which, among other things, expands liability for costs in certain situations and expands liability for lost access. Rather than sign or veto the bills outright, the governor recommended amendments to both.
Senate Bill 666
The recommended amendments to Senate Bill 666 primarily relate to Va. Code § 25.1-230.1(G). The bill originally amended that provision to state that the statute did not provide a claim where (1) no property of the owner was taken and (2) the impact to the property is for a period of fewer than seven days. The Governor has recommended that the first condition be stricken, so that the statute prohibits claims for lost profits and lost access stemming from temporary takings that last for fewer than seven days. This is consistent with the amendment to the provision in Senate Bill 694. Thus, under both bills, a condemning authority will not be liable for interruptions to business or lost access from temporary takings that last for less than a week, such as for short-term repair projects or festivals. Longer-term projects and events could give rise to liability.
Even if these amendments are adopted, the bill will expand liability for lost profits and remains problematic for that reason and the reasons previously discussed.
Senate Bill 694
The recommended amendments to Senate Bill 694 are a mixed bag. The first amendment makes the statute governing VDOT’s filing of a certificate consistent with the provision that applies more generally. Specifically, it specifies that VDOT, like other condemnors, should specify the end date for temporary easements in its certificates if such date is known or can be reasonably estimated. If the date is unknown, VDOT, like other condemnors, should certify that the date is unknown and, when the date is ascertained, file a certification of that date in the same manner as the certificate. This clears up a potential source of confusion and is therefore a good thing.
The other recommended amendments make the bill worse. The first such amendment pertains to the statute allowing a landowner to file a petition for condemnation when the condemnor fails to do so within the required time after filing the certificate of take. As originally drafted, the bill provided that, in that scenario, the landowner could file the petition and the condemnor would be liable for the landowner’s attorney’s fees and costs incurred in filing the petition. Such a provision makes sense—it would ensure that the landowner is not penalized for seeking a timely determination of just compensation where the condemning authority failed to move the case along in a timely fashion.
During the committee hearing on the bill, a couple of senators and speakers became confused about the scope of the fees and costs provision, with one senator thinking that it applied to a petition to draw down the funds filed with a certificate of take and a speaker thinking that it applied to all fees and costs incurred in a case. An attorney with a prominent firm representing landowners, who the sponsor identified as an expert in the area, added to the confusion by stating that the provision was meant to address the situation where a lienholder charges a landowner its internal costs to review a request to release its claim to the proceeds of the eminent domain proceeding. That attorney suggested that the bill be amended to provide that the landowner could recover the costs and fees “charged by a lienholder.” The committee adopted that amendment for the statute that applies generally but failed to do so for the statute pertaining to VDOT. The governor’s recommendation makes the same change to VDOT’s statute.
The amendments adopted by the committee and recommended by the governor effectively eliminate the fees and costs provision. The statute only allows the landowner to recover the fees and costs “charged by a lienholder . . . incurred in filing the owner’s petition.” There likely will be no such fees and costs, as the lienholder charges for considering a request to release the lien, not for filing the petition for condemnation.
The General Assembly will consider the recommended amendments at its veto session, which is scheduled for April 27.
Matt Hull is a Pender & Coward attorney focusing his practice on eminent domain/right of way, local government, and waterfront law matters.
Leave A Comment