1.9 Determination of Just Compensation

LibraryEminent Domain Law in Virginia (Virginia CLE) (2017 Ed.)

1.9 DETERMINATION OF JUST COMPENSATION

The issue of just compensation is normally determined by either a condemnation jury or a panel of commissioners. 267 However, just compensation may be determined by the court if all parties agree or if the landowner, after notice, fails to appear, respond, or request either a jury or commissioners. 268

1.901 Appointment of Commissioners.

A. Qualifications. All commissioners must be disinterested free-holders 269 and residents of the county or city in which the property or the greater portion of the property to be condemned is situated. No person may serve as a commissioner for more than one full week within any three-month period, unless agreed to by the parties. 270

B. Selection. The condemnor and landowner may agree to submit either five or nine qualified persons to act as commissioners. 271 If the parties do not agree, each party will submit a list of at least six qualified persons or, in the absence of a list, the court may submit a list on behalf of a party. 272 The court then selects nine potential commissioners from the lists, and at least two alternates who must be summoned at least 30 days before the trial. 273 If nine persons are selected from these lists, each party then is

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allowed two preemptory strikes. 274 If a landowner has filed no answer, then the court may subpoena five persons to serve as commissioners. 275

C. Grounds for Setting Aside Awards. Awards have been set aside under the commissioners system where:

1. The landowner gave commissioners lodging, food, and liquor during the trial. The Virginia Supreme Court set aside the award without regard to any actual influence on the award. 276
2. The landowner entertained the commissioners, and the commissioners discussed the landowner's financial condition with the landowner's lawyers before making their report. 277
3. Panel members were treated to food and entertained by the landowner. The court applied the general rule in civil litigation of setting aside jury verdicts where any jury member is entertained by someone interested in the suit. 278
4. One commissioner had previously been paid to appraise the same property by the condemnor. 279
5. One commissioner owned property next to the property to be condemned and the commissioner had been asked by the landowner to serve on the panel. 280
6. Several commissioners read a newspaper article describing negotiations to buy the parcel before hearing

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the case (including the amount of the offer made by the city). 281
7. One commissioner was disputing the valuation of his property by the State Highway Department in another county. 282
8. There was "mere" contact by the landowner's attorney with a commissioner before the trial. 283
9. Commissioners who had litigated with condemnor over the use of their property and had made statements in depositions that county had a "personal vendetta" against property owners and that county staff was "arrogant and power-hungry." 284
10. A commissioner was a client of the attorney representing the landowners and the commissioner had used the same appraiser as the landowner in a previous condemnation. 285
11. Ownership of an adjacent parcel and recent settlement of an acquisition with the condemning authority constitutes a present financial interest so intimately related to the issue of compensation that a potential commissioner could not "sit indifferent in the cause." 286

D. Grounds Rejected for Setting Aside Awards. Courts have declined to set aside awards under the commissioners system where:

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1. Persons recently acted as commissioners because they can be disinterested and are not disqualified from acting as commissioners again. 287
2. A commissioner had a "mere" friendship or ongoing business relationship with a party, since it did not involve financial interests related to issues commissioners would decide. Since a party to a condemnation is unlikely to select an enemy as a prospective commissioner, it is clear that the General Assembly concluded that friendship, standing alone, is not sufficient grounds for disqualification. 288 The Virginia Supreme Court has held that a business's customers cannot be "per se" excluded 289 and that the sale of personal insurance policies on the construction of buildings for the landowner on adjacent property did not ultimately relate to the parcel being acquired. 290
3. A commissioner had business dealings with an expert witness and an ongoing business relationship with the landowner, because neither relationship creates a direct or indirect interest in the property sufficient to disqualify the commissioner for cause. 291
4. A commissioner was the pastor of the landowner's church and his personal friend, and would get an indirect financial benefit from his tithe to the church. 292
5. The court did not reach a decision on the issue of whether a commission's decision was valid when one

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of the commissioners slept through the presentation of the evidence. 293
6. Commissioners made an excessive award, misunderstood the court's instructions, and proceeded under erroneous principles of law. 294
7. Commissioners were right-of-way agents for other condemning authorities.
8. Commissioners are employees of other government agencies who might deal with the county VDOT engineer.
9. Commissioners' award was based on what they thought the landowner "deserved" and the commissioners purposely refused to follow the court's instruction to use the Virginia definition of fair market value in making their award. 295

Many of the relationships between potential commissioners and participants in a condemnation case that historically have been tolerated by Virginia courts would, if existing in a normal civil jury trial, result in striking the juror for cause.

1.902 Appointment of Jury.

A. Qualifications. If the landowner selects a jury to determine just compensation, jury commissioners chosen pursuant to section 8.01-343 et seq. will randomly select the condemnation jurors in the manner set forth in section 8.01-336 et seq. 296 The qualifications for condemnation jurors are the same as for civil juries except that they must be freeholders as well as residents. 297 Freeholder status is to be noted on the jury list by the jury commissioners. 298

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B. Selection. On the day of trial, jurors who appear are called to be sworn based on their voir dire until a disinterested and impartial panel is obtained. Any juror may be stricken for cause. From the impartial panel the judge randomly selects thirteen jurors. From this panel of thirteen jurors, each party has four peremptory strikes. The court may appoint alternate jurors. Five persons from a panel of not fewer than thirteen jurors constitute a jury in a condemnation case. If fewer than seven jurors remain prior to the exercise of peremptory strikes, the trial may proceed and be heard by less than five jurors provided the parties agree. However, no trial may proceed with fewer than three jurors. 299

Voir dire is conducted in the same manner as in other civil juries. 300 Trial judges in civil cases in Virginia typically do not permit extensive voir dire.

Either party may challenge a juror for cause. Existing law on striking "commissioners" for cause is likely to remain relevant even when a jury is used. However, given the random selection process under section 25.1-229, there is likely to be little chance of the type of financial or land ownership relationships that can occur when the parties choose commissioners.

1.903 Objections to Striking of Jurors or Commissioners Based on Discriminatory Motive. In Commonwealth Transportation Commissioner v. Thompson, 301 the Virginia Supreme Court held that the United States Supreme Court's decision in Batson v. Kentucky, 302 which prohibited racial discrimination in jury selection, applies to peremptory challenges to condemnation commissioners. Batson was extended to gender discrimination in J.E.B. v. Alabama ex rel. T.B. 303 Thus, a condemnor or owner must be able to articulate a race- or gender-neutral explanation for striking any proposed juror or commissioner if challenged under Batson or J.E.B. Batson motions questioning strikes for racial or gender reasons are now common in trials using randomly chosen juries.

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1.904 Conduct of Jurors and Commissioners at Trial. The behavior of both parties and their counsel toward jurors or commissioners in eminent domain trials should be the same as toward jurors in any other civil trial.

The accepted approach is that all jurors or commissioners must view the property and hear the evidence, but only a majority of the full jury or panel of commissioners is necessary to sign the report setting the value. A minority report may be filed but need not be. 304

Jurors or commissioners summoned or empaneled receive the amount authorized by section 17.1-618 (currently $30 each day) for their attendance, travel, and other costs, and such costs are to be paid by the condemnor. 305

1.905 Issues Determined by the Jury, Commissioners, or Court When Setting Value.

A. Date of Valuation. By statute, the date of valuation is as of the time of the lawful taking or the date of the filing of the petition, whichever occurs first. 306 However, section 25.1-107 provides for an earlier date of valuation than the filing of the petition if the property has been downzoned within a conservation or redevelopment area or was downzoned within five years before the creation of a conservation or redevelopment plan. If there is a factual dispute regarding the date of the take, the jurors or commissioners will determine the date. Generally, there will be no factual dispute, and the take date will be determined as a matter of law by the...

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