Senate Joint Resolution 271 and House Joint Resolution 491, adopted by the 1999 Session of the General Assembly, established a joint subcommittee "to study the current means and adequacy of compensation to Virginia citizens whose properties are taken through the exercise of eminent domain." The joint subcommittee is directed to study (i) the methods by which such eminent domain is exercised and (ii) the means by which compensation is provided or obtained. The resolutions charge the joint subcommittee with making recommendations concerning both issues, advising whether current statutes are adequate to furnish the means and methods of compensation in view of an evolving public utility market.

Though the recitations in the resolutions are directed primarily at the exercise of the power of eminent domain by public utility companies providing electricity service, the mandate for the study is sufficiently broad to require the joint subcommittee to examine the procedures governing all condemnations in Virginia. The joint subcommittee invited all interested persons with complaints about the existing procedures to suggest ameliorative changes.

During its first year the joint subcommittee held six meetings and conducted three public hearings. The joint subcommittee considered testimony from national and local experts on eminent domain law, representatives of agencies and utilities that exercise eminent domain power, citizens who have had or will have property taken through eminent domain, and examined uniform eminent domain laws and the laws of other states. The first meeting attempted to provide an overview of the existing law and an introduction to major issues. The theme of the second meeting was condemnations for electric transmission lines. The third meeting's theme was highway condemnations. Following the second and third meetings, the joint subcommittee conducted evening public hearings. A third public hearing, held in Newport News in October, introduced a new set of concerns involving condemnations by housing and redevelopment authorities. All of the public hearings were well-attended and notable for the passionate interest of the attendees in the issues being addressed in the study. The joint subcommittee held three work sessions to consider the information presented at prior meetings and hearings and to formulate recommendations for changes in the law.

The main theme of the criticism levied against the current procedures was that the "playing field" between condemnors and property owners is slanted in favor of the condemnor. The chief example cited was that even when a property owner proves in court that the condemnor's offer was not adequate and the court awards the owner just compensation, the owner is not fully compensated because litigation expenses must be paid from the amount awarded as just compensation. Other complaints included the lack of information provided to property owners; the execution of the process itself (delays in owners receiving payment, delay in commencement of projects after owners have been notified that their property will be taken); damages to property-not physically taken; and the inadequacy of compensation to business owners, including tenant-operated businesses, for relocation and business losses.

The complexity of the issues precluded the joint subcommittee from completing its work prior to the 2000 Session of the General Assembly. Though decisions on several difficult issues have been postponed until the study's second year, the joint subcommittee offered the following recommendations to the 2000 Session of the General Assembly:

Recommendation 1: The joint subcommittee's study of Virginia's eminent domain laws should be continued for a second year. (Included in Senate Joint Resolution 37)

Recommendation 2: The current commissioner system, where each party nominates six persons for service on the five-member commission charged with determining the amount of compensation, should be replaced with a jury system, with a majority of the members owning real property in the locality. (Included in Senate Bill 453)

Recommendation 3: Condemnors should be required to provide a copy of their appraisal of the property with their offer to purchase the condemnee's property. (Included in Senate Bill 453)

Recommendation 3: The maximum that a court may require a condemnor to reimburse a condemnee for the cost of a survey of his property should be increased from $100 to $1,000. (Included in Senate Bill 453)

Recommendation 4: The condemnor should be required to conduct a title search of the property before making an offer to purchase or filing a certificate of take, in order to avoid delays in payments to condemnees. (Included in Senate Bill 453)

Recommendation 5: The Department of Transportation should provide a copy of its report on the status of title to the condemnee when it makes an offer to purchase property. (Included in Senate Bill 453)

Recommendation 6: The Department of Transportation should be required to use licensed real estate appraisers in conducting its valuations for property acquisitions. (Included in Senate Bill 453)

Recommendation 7: Tenants with a lease term of 12 months should be permitted to intervene in an eminent domain proceeding. (Included in Senate Bill 453)

Recommendation 8: The Uniform Relocation Assistance and Real Property Acquisition Policies Act should not be restricted to projects carried out with federal or state financial assistance. (Included in Senate Bill 63)

Recommendation 9: The Uniform Relocation Assistance Act's $10,000 cap on payments for business relocation expenses should be removed, and the existing cap on payments for the dislocation of a business or farm, in lieu of actual relocation expenses, should be raised from $20,000 to $50,000. (Included in Senate Bill 63)

Recommendation 10: The Commonwealth Transportation Board should be prohibited from using the power of eminent domain to acquire any portion of the property of an existing commercial establishment, or any interest therein, for the purpose of controlling or limiting access to commercial establishments located within 300 feet of an interstate highway. (Included in Senate Bill 110)

Recommendation 11: A housing authority should be required to acquire real property that it has identified for redevelopment within 36 months after announcement of the redevelopment plan. If a housing authority decides against acquiring real property identified for redevelopment, it shall reimburse the owner of such property his reasonable expenses related to the proposed acquisition of his property, upon request. (Included in House Bill 1145)

Recommendation 12: The Senate Finance and the House Appropriations Committees should examine the feasibility of transferring the responsibility for acquiring property for highway purposes from the Department of Transportation to the Department of General Services. The Committees should also examine the potential benefits and drawbacks of providing that costs of land acquisition for highway purposes be paid for by general find appropriations, rather than from revenues currently dedicated to highway construction purposes. (Included in Senate Joint Resolution 38)

Among the difficult issues that the joint subcommittee concluded were in need of additional study were the advisability of requiring the condemnor to pay litigation expenses of the condemnee and whether a condemned business should be compensated for lost profits.

In the course of its first year of work the joint subcommittee has attempted to maintain a balanced perspective between the public's interest in building needed facilities and the rights of individuals who are required to give up their property in order to build projects that are intended to benefit the greater community. The joint subcommittee has worked to ensure that the Commonwealth's procedures will give property owners neither a windfall nor less than fair value for what is taken from them. Injustices result from both underpayments and overpayments for property taken through exercise of the power of eminent domain.

The interests of the public in constructing beneficial projects in a timely and affordable manner need to balance with the interests of citizens in protecting their private property rights. Owners of property should not have to bear more than their proportionate share of the costs of any public project. Yet Virginia's eminent domain laws should not allow someone to use them to extort a windfall from other taxpayers or prevent the construction of beneficial projects.

An underlying issue in the arguments heard throughout this study has been the appropriate jurisprudential approach. Traditionally, condemnation awards are payments for the property that is taken for the public use; therefore, the market value of condemned property is the paramount issue. Critics of this approach argue that the impact of the taking on an owner's home or business are legitimate issues that should be considered in determining the amount of compensation. The gap between these perspectives is the source of much of the dissatisfaction with the current system that was expressed by citizens who spoke at the public hearings.

Over the course of the 2000 interim, the joint subcommittee will continue to examine the issues not resolved by its initial recommendations, and will determine whether further changes to Virginia's eminent domain laws are appropriate.