1.4 PROCEDURAL CONSIDERATIONS
1.401 General Procedural Principles.
A. History of Title 25.1. Former Title 25 of the Virginia Code controlled condemnation by government agencies and public service corporations from 1950 to 2003. The changes in Title 25.1, although largely nonsubstantive, modernize language and place the sections in a more rational order. The general condemnation procedures in Title 25.1 are similar to those in Title 33.2, which apply to state acquisition of highway right of way. For example, the "certificate of deposit" and "certificate of take" process allowing the transfer of defeasible title to the condemnor prior to a trial establishing the value of the real estate used by VDOT and some localities has been codified as Chapter 3 in Title 25.1.
B. Exceptions to Applicability of Title 25.1. Title 25.1 of the Virginia Code applies to all condemnation proceedings "[u]nless otherwise specifically provided by law." 150 The principal exceptions include:
| 1. | Condemnations by the Commissioner of High-ways; 151 | ||
| 2. | Property in an agricultural or forestal district which requires compliance with the special provisions of section 15.2-4313; | ||
| 3. | Special condemnation procedures relating to the power of housing, road, or utility authorities to condemn exist in special general assembly acts or local charter provisions; 152 and | ||
| 4. | Takings of multifamily housing must be accompanied by a relocation plan for the displaced residents approved by either the housing authority or, if none, the political subdivision where the project is located. 153 The requirement of a relocation plan is |
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| not applicable if the authority merely "guarantees" financing for a privately owned housing project and no title is acquired by the authority. 154 |
1.402 Statutory Principles for Eminent Domain Proceedings.
A. Action at Law. Although the distinction between "law" and "equity" has been largely eliminated in Virginia, eminent domain actions generally follow concepts historically attributable to "law actions." For example, courts may not structure "equitable" remedies in eminent domain cases, and strict compliance with statutory requirements may not be waived by courts. Accordingly, eminent domain cases should be considered "law" actions in the manner in which actions at law have been treated in the past in Virginia. 155
B. Solely Statutory With No Equitable Concepts. Eminent domain proceedings are statutory in nature, and courts may not invoke equitable principles to decide who among competing condemnors shows greater public necessity for particular property. As between competing condemnors, the locality that may condemn is the locality that first complies with the statute. 156
A condemnor that files a petition to condemn or a certificate of take does not then acquire a vested right to finish that condemnation when the General Assembly, in a later enactment, requires that all condemnation must be completed by a certain date. 157
C. Jurisdiction. Jurisdiction lies in the circuit court for the locality in which the property, or a greater portion of it, is situated. 158
D. Discovery. All pretrial procedures of the Rules of the Virginia Supreme Court apply to "the exercise of the right of eminent domain." 159 One unique rule is Rule 4:1(b)(4)(D), which provides that if the condemnor initiates
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discovery, it must pay all reasonable costs of discovery, including the cost and expense of experts. Recoverable costs and expenses are limited to those incurred in responding directly to discovery and do not include costs incurred for preparing for discovery or for developing a work product. 160 Rules 4:2 and 4:5 (Depositions), Rule 4:8 (Interrogatories), Rule 4:9 (Request for Production of Documents, Electronically Stored Information, and Entry on Land for Inspection), and Rule 4:11 (Requests for Admission) are now commonly used in eminent domain cases. Rule 4:9(a)(3) permits entry upon land for the purpose of inspecting, measuring, surveying, photographing, testing, or sampling the property. The inspection is permitted without leave of court, upon serving notice on the landowner of the time and manner of conducting the inspection. 161
In an eminent domain action, the basis for an expert witness's opinion is discoverable, as is the assessed value for tax purposes, even though the assessed value is inadmissible at trial. 162
E. Dismissal of Proceedings or Nonsuit. Dismissal by the condemnor is available as a matter of right. If the trial on just compensation has not commenced, the condemnor must pay the owner "reasonable expenses" actually incurred in preparation for trial. If the trial has commenced, then in addition to incurred reasonable expenses, the condemnor must pay attorney fees and witness fees. 163
1.403 Other Conditions Precedent to Exercise of Eminent Domain Power.
A. Title Search. Prior to making an offer to purchase, filing a certificate of take, or a certificate of deposit, to acquire a fee simple interest the condemnor must undertake a title search to determine the nature and
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extent of ownership interests in the property. A copy of the report must be provided to the owner. 164
B. Bona Fide But Ineffectual Effort to Purchase. Every condemnation must be preceded by a bona fide, but "ineffectual," effort to buy the property if the known owner is competent and can be found in the state by the exercise of reasonable diligence. 165 The manner of compliance with this condition must be stated in the petition. 166 The bona fide effort must include a written statement to the landowner that explains the public use for which the property is desired, certify compliance with section 1-219.1 of the Virginia Code, detail the factual basis for the amount of the offer, and include a complete copy of any appraisals done. An appraisal is required if the property is valued at more than $25,000. If the value is between $10,000 and $25,000, the owner may request that an appraisal be used as the basis for determining just compensation. 167 An offer by a professional appraiser is "not frivolous" as a matter of law and does not defeat the jurisdiction of the trial court even if the landowner contests whether the appraisal includes all the interests being acquired. A factual defense that the appraisal is faulty because of being incomplete is preserved as a defense for the trial on just compensation. 168
Where the question of an adequate offer is put in issue by the owner, the condemnor has the burden of showing compliance. 169 A bona fide offer is deemed made when negotiations indicate the impossibility of an agreement with the landowner and when there are multiple refusals of various offers. Mere arithmetic errors do not make an offer a bad faith offer. Nor does a clerical error in identifying the property. 170 A bona fide offer need not include any value for lost profits. 171 To lack any bona fide basis, the offer must be a product of fraud or oppressive conduct by the condemnor. The amount offered must be at least the greater of the condemnor's approved
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appraisal of the fair market value of the property, if such an appraisal is required, or the amount of the real estate tax assessment, if the entire parcel for which the assessment was made is sought to be acquired. 172 A reduction in the size of a take that was determined to be more than "necessary" does not render the original offer by the Highway Commission no longer "bona fide," because no statute explicitly sets forth such a jurisdictional standard after the amendment to Article I, Section 11 of the Virginia...
