Jurisdiction Holds for Reduced Highway ‘Take’

A Dinwiddie County Circuit Court holds that the Highway Commissioner’s amend­ment of a certificate of take to reduce the property taken does not nullify the bona fide offer to purchase as a condition prece­dent for the court’s jurisdiction.

The commissioner moved this court to amend the certificate reducing the fee take by allowing wider traffic entry points from the highway into respondent’s property – a convenience store and gas station at the intersection of Cox Road and Boydton Plan Road – and allowing respondent’s ex­isting digital sign to remain in the utility easement that was originally an exclusive easement. The second part of the request­ed certificate amendment was subject to the approval of the local governing body, Dinwiddie County. The commissioner as­serted that the respondent requested these changes to the highway project plan during negotiations and the commissioner moved for the changes as a concession to respon­dent. Respondent consented to the motion to amend the certificate acknowledging at the hearing that Va. Code § 33.2-1024 and case law allow the amendment. The court grants petitioner’s motion to amend the certificate without objection. By agreement of the parties, the court finds good cause to continue the trial.

The court awards respondent the re­quested $1,000 for surveying costs taxed as costs to petitioner at the conclusion of the proceedings. The commissioner agreed that the amount and payment are within the statutorily authorized fee payable by the commissioner to respondent, but the commissioner objected to the timing of the payment, noting that it must be made at the conclusion of the case.

Respondent objects to the court’s juris­diction when the reduction in property tak­en resulting from the amendment reveals that the original take in the certificate was more than necessary in violation of Article I, Section 11 of the Virginia Constitution as codified in Va. Code § 1-219.1. Respondent contended the amendment consequently changes the amount of property taken and nullifies the prior bona fide offer.

Respondent urges this court to disre­gard longstanding precedent on eminent domain by adopting his reading of Article I, Section 11 of the Virginia Constitution blended with statutory authority found at Va. Code § 20.1-204 requiring a bona fide offer to purchase. Respondent’s rationale is 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 Code § 25.1-204.

Legislative change

The court examined the constitutional provision and finds that it announces a commonly understood fundamental right to private property ownership. This un­derstanding is repeated and the consti­tutional amendment cited in the limita­tions on eminent domain codified in Va. Code § 1-219.1(C); however, subsection D of 1-219.1 provides an exception for high­ways. Also, subsection H 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 § 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.

Since respondent does not present a constitutional challenge to the statutory scheme for eminent domain, this court must continue to strictly apply the stat­utes as written and follow controlling precedent interpreting and applying these statutes. Accepting respondent’s ar­gument would ignore the progression and timing of constitutional and legislative changes. 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.

The court denies respondent’s motion to dismiss the petition.

Commissioner of Highways v. Sadler (Teefey) No. CL 14-292, April 6, 2016; Din­widdie County Cir.Ct. VLW 016-8-047, 6 pp.