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Commissioner Seeks to Reduce Highway ‘Take’

Deborah Elkins//April 18, 2016

Commissioner Seeks to Reduce Highway ‘Take’

Deborah Elkins//April 18, 2016

A Dinwiddie County Circuit Court de­nies a property owner’s motion to dismiss the Commissioner of Highways’ petition for condemnation and request to partial­ly invalidate the certificate of take in this case involving property near the intersec­tion of Cox Road and Boydton Plan Road in Dinwiddie County; under Va. Code § 33.2- 1024, the commissioner must seek court approval of any reformation, alteration, amendment or invalidation of the certifi­cate of take.

Voters amended Article I, Section 11 of the Constitution of Virginia in 2012 by adding, “No more private property may be taken than necessary to achieve the stat­ed public use.” Respondent argues this amendment binds this court to find that any change in petitioner’s property is un­constitutional.

Article I, Section 11 of the Constitution announces a commonly understood fun­damental right to private property own­ership. This understanding is likewise re­peated and the constitutional amendment cited in the limitations on eminent domain codified in Va. Code § 1.219.1(C), but sub­section D of 1-219.1 states, “nothing herein shall be construed as abrogating the power of eminent domain delegated independent­ly of this section.”

After voters amended Section 11, the General Assembly repealed and re-titled the highway condemnation statutes for­merly found in Title 33.1-1 through 33.1- 476 by enacting Title 33.2 thereby reaffirm­ing delegation of condemnation authority to the Highway Commissioner as an inde­pendent method of eminent domain. The General Assembly did not change Va. Code § 1-219.1 when enacting Title 33.2. This court must assume the General Assembly, when enacting laws, acted with full knowl­edge of the law in the area in which it dealt.

Virginia Code §§ 33.2-1001 and 1007 authorizes the commissioner to acquire private property or parcels thereof for highways. There is no constitutional right to a hearing on the necessity of the com­missioner’s taking since this remains a legislative question not reviewable by the judiciary. The courts have only limited re­view of the choice or amount of property taken by the commissioner when the prop­erty owner answers the petition that the commissioner’s exercise is an arbitrary and capricious exercise of discretion or involves manifest fraud.

Bona fide offer?

Respondent argues that the reduction in property sought renders the commission­er’s offers to purchase no longer bona fide pursuant to the statutory predicate for the petition found at Va. Code § 25.1-204. In support of this position, respondent cites H.G. Charles v. Big Sandy & Cumberland Ry. Co., 142 Va. 512 (1925). The court in­quired of respondent whether the arbitrary or capricious standard referred to in the opinion applies to this court’s examination of the commissioner’s offer to purchase. Re­spondent answered that Section 11 of Arti­cle I mandates that the trial court apply no standard beyond finding that the amount or interest in property taken by the com­missioner exceeds the amount sought in the petition. Respondent’s position makes no allowance for mistake or error such as in the survey, interpretation of land use laws or project redesign in reduced need for property acquisition. Furthermore, pe­titioner contends that, as in this case, the commissioner’s diminution of the take as an offer of compromise exposes the entire action to jurisdictional dismissal.

This court is not convinced by respon­dent’s argument that the 2012 constitu­tional amendment limits the commissioner to take no more property than that which is necessary to achieve the stated public use. To do so would require that this court ignore the progression and timing of consti­tutional and legislative changes described. Also, the court would have to overlook leg­islatively enacted processes for disposition or reconveyance of excess property taken by the commissioner detailed in Va. Code §§ 33.2-1005 through 1010 all codified after amendment of Article I, Section 11.

Jurisdictional question

Respondent asserts the bona fide offer to purchase is no longer valid due to the reduced taking revealed during the litiga­tion. Petitioner filed the certificate of take describing exclusive use of a utility ease­ment which would necessitate the land­owner removing an existing digital sign from the easement. During the litigation, petitioner’s description of anticipated tes­timony by their expert that the landown­er’s sign can remain was the impetus for respondent’s motion and objection to juris­diction. Respondent presents no author­ity that the commissioner’s designation of experts and description of anticipated testimony constitutes an admission by the party, and this court is likewise unable to find such authority. The court is cautious in examining this distinction since the Rules of the Supreme Court do not apply to emi­nent domain proceedings.

Respondent has the burden of proof to support his motion which he failed to do in this matter. Absent a party admission, Va. Code § 33.2-1024 is the arbiter of this factual dispute. The commissioner must seek court approval of any reformation, al­teration, amendment or invalidation of the certificate of take. This statutory protection of the landowner is the triggering mecha­nism for filing the motion presently before the court. Until this factual dispute is re­solved by one of these methods, this court must deny respondent’s motion to dismiss.

Commissioner of Highways v. Sadler (Teefey) No. CL 14-292, March 16, 2016; Dinwiddie Cir.Ct.; Joseph T. Waldo, Jeffrey Geiger for the parties. VLW 016-8-048, 5 pp.

VLW 016-8-048

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