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Norfolk, VA 23510
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Condemnation, How it May Affect Your Family Farm or Agribusiness

Farm Bureau News
By Joseph T. Waldo

Each year in Virginia hundreds of Virginia farm families and agricultural businesses face the financial hardship of eminent domain. Eminent domain is the government's power to condemn a person's property for the public good.

The United States Constitution and the Virginia Constitution guarantee property owners “just compensation” for property taken under the power of eminent domain. Condemnors, such as the highway department, large utility companies, or local governments frequently make offers that property owners believe are low for their property.

Last year, VDOT took and demolished every barn and essential structure of a dairy farm in Allegheny County to widen a road. In Henry County , property owners went to court to protect their farms when East Tennessee Natural Gas Company, a subsidiary of Duke Power, condemned a 100-foot easement across the farms for a 24 inch, high pressure gas pipeline. In Chesapeake , VDOT cut a farm in half. Each of these farmers refused to accept the condemnor's offer and challenged the condemnor in Court. Every farmer received substantially greater compensation in court for the property taken or damaged than what the government and utility had offered.

In Virginia , property owners are entitled to a “full and perfect equivalent” for property taken or damaged. Property owners are to be paid a monetary award equal to the value of the property taken or the reduction in value of the property remaining. This award must place the owner in as good a financial position as the owner held before the taking of the owner's property.

Condemned property is to be valued according to its most financially profitable use; i.e. the “highest and best use”; and not merely its current use. Many times farmland has a greater value for some other use such as residential. The owner can recover the value of the property according to its value when it is put to its “highest and best use”. The rationale behind this rule is that a farmer would not necessarily sell their property as a farm if they could get a higher value for another use to which is could be put.

WHAT TO DO IF YOUR PROPERTY IS CONDEMNED?

When a condemnor threatens to take your land, you should seek competent advice from lawyers who deal in eminent domain matters on a consistent basis. You would never go to a family doctor for a heart bypass or a hip replacement. Similarly, you should not expect your family attorney to be an expert in eminent domain and property rights law.

Never sign an easement or acquisition agreement before competent legal counsel has reviewed the document. Condemnors often seek to acquire much greater rights in settlement agreements than they could obtain in court.

When agricultural land is taken, particularly farms, property owners often overlook significant damages that occur as a result of the condemnation. Because a property owner is entitled to be paid just compensation not only for the property taken but also for damage to the value of the property that is not taken, property owners should be especially careful to have an eminent domain lawyer who understands compensable damages to evaluate the effect of a taking on their property.

AN EMINENT DOMAIN APPRAISAL IS DIFFERENT THAN THOSE FOR A FINANCIAL INSTITUTION

Property owners should never seek an appraisal by an appraiser recommended by the condemnor or get an appraisal by an appraiser who does not have considerable experience in eminent domain appraising. A property owner does not want to be handicapped by an appraisal done by an appraiser without experience in eminent domain litigation. Condemnation offers often fail to adequately address damages to property not taken, and only eminent domain appraisers have experience in evaluating these types of damages.

Property owners, who challenge condemnors, are finding that they can and do win against condemnors.

A dairy farm in Allegheny County received a unanimous verdict for every dollar needed to compensate for the loss of their dairy farm structures resulting from a VDOT project. Farm families in Henry County went to Court and received six to thirty times the East Tennessee Natural Gas Company's offers for property it took to construct an underground gas pipeline. A farm family in Chesapeake received a unanimous verdict for the exact amount of their appraised value for property taken and damaged by VDOT. The award was over 5 times VDOT's appraised value.

These are just some of the examples of farm families that have won when they contested the condemnor's offer as inadequate.

WHEN THEY COME TO TAKE YOUR PROPERTY

In summary, you are entitled to an offer and, in most cases, an appraisal. You should not accept the condemnor's offer unless you are fully satisfied that it compensates you fully for the property taken and damaged resulting from the condemnation.

When a condemnor threatens to take your property, promptly consult with an experienced eminent domain attorney. Never obtain an appraisal until you have consulted with a qualified attorney. Never sign a settlement agreement until an eminent domain attorney has reviewed it.

Finally, remember one thing, the condemnor has its best interest in mind, and the condemnor's sole interest is to acquire your property as quickly and cheaply as possible.