People think I am pulling their leg when I tell them that in our fine state, a landowner’s friends and business associates may be selected to hear the landowner’s condemnation case and award just compensation. In a Virginia condemnation case a landowner has three options to determine his just compensation: a bench trial, a jury trial, or commissioners. Qualification of a condemnation commissioner is an extremely peculiar point of Virginia law.

If the landowner elects to have commissioners determine just compensation, then prior to trial, the landowner and the condemning authority each submit their own list of proposed commissioners. The commissioners who will hear the case are then selected out of the pool created by the two lists. The commissioners must be property owners who reside in the jurisdiction where the case is pending, and that makes sense. Then things start to get odd. The case is heard by five commissioners, which is a small number, but even more peculiarly, the commissioners do not have to reach a unanimous decision. Any three or more of the five commissioners may act. However, that is not the strangest part.

You might think the commissioners who determine how much to pay a landowner should be unrelated to the landowner and impartial in their judgment. Not so much. To date, Virginia courts have declined to disqualify potential commissioners with relationships with the landowner in several instances. Consider the following examples:

  1. A case where the commissioner was the landowner’s pastor and friend. State Highway & Transp. Comm’r v. Garland, 223 Va. 701, 705 (1982);
  2. A case where the commissioners had business relationships with the landowner’s expert witness. State Highway & Transp. Com. v. Cardinal Realty Co., 232 Va. 434, 440 (1986). The commissioner had an “ongoing” business relationship with a party. Id.
  3. A case where commissioners were customers of the business being condemned. First Bank & Tr. Co. v. Commonwealth Transp. Comm’r, 263 Va. 451, 456 (2002).

This unusual bit of Virginia law is under scrutiny by the Virginia legislature. The only eminent domain bill before the Virginia General Assembly in this session would do away with the commissioner system. Senate Bill 1039 would remove the option for commissioners and leave a jury trial or bench trial as the available options. Stay tuned for updates.