Costly eminent domain appraisals must be paid for by property owners: Fauquier VA Times-Democrat, 1/9/07


By Karla Eisen, Gainesville

Mark A. Smith's letter of Dec. 13, "Strengthen landowners rights," is correct. Virginia's eminent domain laws are not fair to property owners and should be changed.

It is my hope that Dominion's power line will be defeated and not cross any of our counties.

If we lose this battle, hard- working, tax-paying Virginians will find themselves not only losing their property, but having to pay anywhere from hundreds into the thousands of dollars for a private appraisal to determine if the offer for their property is fair.

This is essential as a basis for negotiations with experienced condemnors, and unfortunately under Virginia law, this appraisal is still a non-compensable expense. The property owner with no interest in selling, but now forced to lose his property, has the added expense of an appraisal.

In addition, if only part of the property is taken, the condemnor is NOT required to consider damages to the appearance of the remaining property - such as the view due to a power line - in determining "fair market value."

As a victim of two separate cases of eminent domain in my front yard, I know first hand that even armed with an appraisal that challenges a low offer, the unfair process continues for property owners. The current options available under the Virginia law are not favorable to property owners.

Option one is to accept the low offer, and option two is to challenge the condemnor's offer in court. While a court challenge seems a reasonable solution, property owners soon learn that even if they prove the condemnor wrong and are awarded "fair market value," they still lose.

They lose because attorney fees and other costs can be 30-40 percent of any benefit they may have gained by going to court. In my case, 50 percent of the settlement was spent on legal fees without even going to court, even though the fair market value settled on was three times the original offer from the government condemnor.

However, when most property owners become aware they can not win, most give up and accept low offers.

There are 18 states that either automatically require or allow the judge to award the property owner all court costs if the condemnor loses in court.

In 2005, the Virginia General Assembly passed legislation which allows the judge to award the property owner the cost of some expert testimony, if the condemnor's offer was 30 percent below the court's award. This falls far short of what experts in eminent domain recommended to the Eminent Domain Study Committee.

The recommendation was to level the playing field by automatically requiring the condemnor to reimburse all of the property owners' litigation expenses if the condemnor's offer was below the court's finding of "fair market value."

Lobbying by Dominion and other powerful condemnors has been responsible for the defeat and weakening of legislation aimed at strengthening property rights.

Once again in the 2007 legislative session, there are proposed bills addressing condemnors to fully compensate for property that an owner loses. Please act now by contacting your elected officials to strengthen property rights. More information can be found from the Virginia Property Rights Coalition: http://www.vapropertyrights.org.

Fauquier VA Times-Democrat: http://www.timescommunity.com