12.6 Virginia Department of Transportation

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

12.6 VIRGINIA DEPARTMENT OF TRANSPORTATION

12.601 In General. The procedures of Title 25.1 apply to VDOT's exercise of the power of eminent domain. ¹⁸⁷ Except as to procedure, Title 25.1 does not subject VDOT to any limitations on its exercise of the power of eminent domain under Title 33.2 governing the construction and administration of Virginia's highways, bridges, and ferries. ¹⁸⁸ VDOT almost always uses the quick-take procedures outlined in section 33.2-1001 et seq. of the Virginia Code. In other cases, VDOT's condemnation procedures follow the procedures set forth in Chapter 2 of Title 25.1. Petitions for condemnation must comply with section 25.1-206, and property owners are entitled to jury trials.

Historically, an important distinction between VDOT condemnations and condemnations by other condemning authorities was that, pursuant to section 33.2-1007, VDOT had the right to acquire what it deemed to be uneconomic remnants of property remaining after the take for the highway

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project. ¹⁸⁹ However, the 2007 enactment of Section 1-219.1 of the Virginia Code appears to have stripped VDOT of the ability to acquire uneconomic remnants. Section 1-219.1 controls to the extent that there are inconsistencies between its provisions and any other general or special law, including section 33.2-1007. Section 1-219.1(C) provides that no more property can be taken than that which is necessary to achieve a condemnor's stated use, ostensibly preventing VDOT from taking uneconomic remnants. Moreover, Section 1-219.1(G) requires that condemnors offer to purchase uneconomic remnants but permits property owners to reject those offers and retain their excess property.

12.602 Negotiations Before Condemnation. As with all condemnors, VDOT must engage in bona fide efforts to acquire the subject property through negotiation. VDOT must comply with the appraisal requirements of section 25.1-417. ¹⁹⁰ If VDOT makes a determination that the amount of property to be taken is valued at $25,000 or more, it must obtain a bona fide appraisal to give to the property owner. Its offer for acquisition of the property may not be less than the appraised amount. ¹⁹¹ Moreover, as part of the negotiating process, VDOT must have a title examination and provide the property owner with the title report. ¹⁹² During negotiations, VDOT must provide information on the type and amount of foreseeable damage to the value of the owner's property, or enhancement in that value, resulting from...