As eminent domain trial attorneys we are frequently asked questions regarding "condemnation."
The purpose of this article is to address the legal concepts and procedures associated with condemnation or, as it is sometimes called, "eminent domain."
The power of eminent domain
The power of eminent domain is possessed by federal, state and local governments. This power has been delegated to many governmental agencies. The government has also delegated the power of eminent domain to public utilities, such as power companies. Governmental agencies and utilities possessing the power of eminent domain are often referred to as "condemning authorities."
There are restrictions on the power of a condemning authority to take private property. For example, property may not be taken for a private use; e.g., a taking must further a "public purpose." Additionally, the permissible scope of a taking is often atissue in eminent domain cases; in this regard, there must be a "necessity" for the taking.
A condemning authority's exercise of its eminent domain powers is coupled with a duty to fairly compensate land owners by paying "just compensation." Just compensation means the fair market value of the land taken. Fair market value is defined as the price which one, under no compulsion, being desirous and able to buy, is willing to pay for the property.
Condemnation cases frequently focus primarily on damages to remaining land.
This is particularly true in power line cases where aesthetic damage to property invariably results in a significant diminution in value. The test for "damages to the residue" is the difference in value immediately before and immediately after the taking considering ever circumstance, present and future, which affects value. In cases involving partial takes, the condemning authority must pay landowners the fair market value of land taken and damages to the residue.
Consultation
An owner should, upon being notified of a condemnation, seek input from an appraiser and an eminent domain attorney of his or her choice. These services can frequently be obtained on a preliminary basis at a relatively nominal cost. It is, for example, easy to overlook such things as environmental issues and other factors that contribute to a significant diminution in the fair market value of property remaining after a partial take.
An eminent domain appraisal done for the purpose of ascertaining just compensation requires special skills that are not necessarily possessed by all appraisers. There is a particular format that appraisals for eminent domain purposes must follow. This format is not something that is used by all appraisers under all circumstances. An appraiser's use of correct methodologies, assumptions, comparable sales and other data is critical to the presentation of a claim for just compensation.
Recommended measures
If a landowner's property is impacted by a taking, there are certain measures that can be taken to insure that the right to just compensation will be protected. These measures include the following:
- Generally, a condemning authority will tender a written notice that a property is needed for a project and will then tender a written offer to purchase. This usually occurs prior to the formal initiation of a condemnation action. Offers from condemning authorities are frequently coupled with multiple contacts by the condemning authority's representatives. A prudent landowner will save all records of communications, such as letters, documents, e-mails and notes of conversations. It is also important to take photographs of the property prior to condemnation.
- An owner is well advised to avoid taking positions that may be used against him or her in an eminent domain trial. If, for example, an owner contests a tax assessment, stating that his or her property is worth less than the county's estimate, the record of an appeal to the Board of Equalization or Board of Assessors may be used to impeach an owner if he or she, in a condemnation case, later asserts that the property has a higher value.
- Contracts of sale, including sales of a portion of impacted property, thatattach a particular value to property before condemnation proceedings are initiated should be avoided.
- In the event an owner wishes to attend a public hearing regarding a proposed taking, he or she should be aware that such hearings and the records associated with the same are a source of information for condemning authorities. On the other hand, such hearings can provide helpful information regarding the scope of a particular project, thereby assisting a landowner in case preparation.
- An owner facing eminent domain proceedings should maintain his or her property. Aesthetics are important, especially in Rappahannock County. You can be assured that the condemning authority's appraisers will be inspecting your property long before it is formally condemned. Maintenance of property has an impact on fair market value which is, in turn, the yardstick for measurement of just compensation.
Your remedy
Virginia law provides that a landowner can request a condemnation jury of his or her peers to determine the fair market value of land taken and damages to the residue. All condemnation jurors must be "freeholders," e.g. landowners. The condemnation jury determines the amount of the award.
Although condemning authorities possess the power of eminent domain, an owner is entitled to be made financially whole in a condemnation proceeding; e.g., the landowner is to be put in as good a position pecuniarily as he or she would have occupied if his or her property had not been taken. Compensation must be a full and perfect equivalent for the property.
Your right
A condemnation case is an exercise in the law of eminent domain. The object of the exercise is to provide a landowner with just compensation. Just compensation is more than a remedy. It is a constitutional right.
DOUGLAS K. BAUMGARDNER, a partner in the Washington, Virginia law firm of Baumgardner & Brown has practiced law for 31 years. He is a formerCommonwealth Attorney, County Attorney, and a co-author of the Virginia State BarCLE publication titled "Eminent Domain, State and Federal." He has represented landowners and governmental agencies in eminent domain proceedings in state and federal courts. He has participated in eminent domain cases in the counties of Loudoun, Frederick, Warren, Rappahannock, Culpeper, Fauquier, Orange, Madison, and Louisa.