Senate panel weakens eminent-domain bills: Richmond (VA) Times-Dispatch, 2/16/05

It removes key provisions from two measures, which now head to full committee

By Greg Edwards

Two bills to put more bite into protections for landowners faced with loss of their property for the public good came out of a state Senate subcommittee yesterday missing some teeth.

In a meeting room overflowing with local-government and utility lobbyists and sprinkled with a few land-owning residents, the Senate Courts of Justice Subcommittee on Eminent Domain pulled key provisions from both bills after hours of discussion.

"[Lawmakers] had an opportunity to strengthen the rights of property owners and fell far short," said Susan Rubin, a lobbyist for the Virginia Farm Bureau Federation, after the panel had taken pliers to the legislation.

The bills, which had passed the House of Delegates, had the support of the Farm Bureau and the Virginia Property Rights Coalition, a group that has been working for several years to make eminent-domain laws more landowner-friendly.

Representatives for local governments, utilities and the Virginia Department of Transportation opposed the legislation.

Their big concern: Requirements in both bills for paying landowners' court costs would prompt landowners to reject damage settlements and purchase offers and go to court more often.

But Del. Robert F. McDonnell, R-Virginia Beach, one of the legislation's co-sponsors, said the bills would do the opposite. "The whole idea is to encourage settlements and discussion before the legal fees heat up," McDonnell said.

The bills aim to protect landowners who get offers that are too low, he said. "The whole idea is to encourage earlier resolution of [property-rights] matters."

Eminent-domain lawyer Joseph Waldo said farmers have had tires and harvesting equipment damaged after survey crews placed metal survey stakes on their cropland without proper notice. The crews have also damaged crops by driving pickup trucks through fields and have refused to pay damages, he said.

One bill would have allowed landowners to recover costs of going to court, including attorney's fees, if their property were damaged by an inspection or survey and attempts at a settlement and alternative dispute resolution had failed.

Opponents argued that the legislation could be expensive for those doing the condemning and that it was unneeded because property-damage claims are rare. The subcommittee responded by changing the legislation to make the award of landowners' court costs discretionary for a judge.

The panel stripped language from the second bill that would have required the payment of expert-witness and other court costs, excluding attorney's fees, if a landowner in a condemnation case were able to prove that property was worth at least 30 percent more than the final written offer made for it.

Richmond lawyer Sandy Cherry, speaking for a coalition of opponents, warned lawmakers that, in cases where land is taken through condemnation, juries often see local governments and utilities as having "deep pockets."

Left untouched by the subcommittee were provisions in the first bill that would strengthen the required notice that a local government or public-service corporation, such as a telecommunications or energy utility, must give a landowner when entering land for an inspection or survey.

The panel also retained provisions in the second bill that would require those seeking to exercise eminent-domain powers to offer a landowner the full, fair appraised value of the property. It would also mandate that landowners be paid for their land before being forced to move from it.

The full Senate Courts of Justice Committee will hear the two bills Monday morning.

Times-Dispatch: www.timesdispatch.com