Virginia Housing Commission: Eminient Domain/Blight Removal/Brownfield
Remediation Work Group
September 14,
2005
Commission members
present were Delegates Terrie Suit (chair) and Melanie Rapp and Senator
Mary Margaret Whipple. Work group advisors present were Phillip Abraham,
John Broadway, Randy Cook, Mark Ingreo, Pat O'Hare, Susan Rubin, Jose
Simon, and Joe Waldo.
STATUS REPORT
OF BROWNFIELD SUBCOMMITTEE WORK GROUP
Staff provided a
brief overview of the status of the subcommittee work group to provide
recommendations regarding the appropriate level of disclosure and risk
reduction for former Brownfield sites. The work group members include:
Kathy Frahm, Department of Environment Quality (DEQ); Jeff Ainslie and
Pat O'Hare, Virginia Homebuilders Association; Joseph Durant, Assistant
Chesapeake City Attorney; and Mark Flynn and Debbie Thompson, Virginia
Municipal League. The work group met on two occasions, August 2, 2005,
and September 9, 2005, and has included in its discussion the following
alternative methods for risk reduction for development occurring on contaminated
sites:
- Uniform Environmental
Covenants Act (UECA). This legislation was developed by the Uniform
Code Commission and would provide a mechanism for using-and removing-use
restrictions on sites that are remediated to less than residential use.
It's been passed by several other states and there appears to be growing
interest in Virginia. The work group is looking into the possibility
of having an individual familiar with UECA to appear before the full
work group to provide an overview of the legislation.
- Draft legislation
clarifying local government authority. This aspect of the work group's
efforts involves development of legislation clarifying the authority
of localities to adopt ordinances requiring site assessments as part
of a rezoning or subdivision approval process and possible model ordinances
to assist with the implementation of that authority. The work group
is working to develop legislation and documents for consideration by
the subcommittee.
- Draft legislation
relating to property disclosure provisions. The work group is reviewing
the feasibility of including deed notice requirements on all sites that
have satisfied remediation requirements. The group is working on language
to accomplish this for consideration by the subcommittee.
- Information and
ideas on training and outreach approaches. The work group is discussing
ways to increase access to information on potential contamination for
local governments, planning staff, title companies, and real estate
agents, including increasing outreach and training, the possibility
of the DEQ providing more consistent GIS-based information via the Internet
on Brownfield sites that the agency is aware of and expanding the Uniform
Real Estate Disclosure Form to include information not only on where
purchasers can get information on petroleum releases, but information
on other contaminated sites as well. Currently, DEQ has some of this
information in GIS format and is working to update and expand this information
for petroleum releases, and voluntary remediation program sites; however,
the agency does not have information on all of the known un-permitted
waste disposal sites in GIS format and obtaining that information may
be resource intensive.
REVIEW OF EMINENT
DOMAIN WORK SHEET/MATRIX
Delegate Suit then
explained that the meeting would proceed with review of the matrix of
suggestions and comments provided by interested parties relating to eminent
domain. The matrix divides the suggestions and comments under four broad
categories: Public Use Definition/Eminent Domain Authority, Accountability,
Condemnation Procedure, and Compensation.
The work group proceeded
with reviewing the matrix with comments provided by members throughout
the review. During the review several of the items invoked discussion
among the work group members.
Public Use Definition/Eminent
Domain Authority
Suggestion:
Prohibit the use of eminent domain for economic development or tax enhancement
purposes.
This suggestion included
language for a proposed amendment to the definition of "public use"
found at § 15.2-1900. John G. "Chip" Dicks expressed the
concern that the suggestion lacked a definition of economic development
and tax revenue. Mr. Waldo expressed a concern that the language may have
the effect of broadening the housing authorities.
Suggestion:
Amend the definition of "public uses" to prohibit condemnation
by a locality that (i) is made with the intent of making the property
available for ownership or use by a private entity unless any benefits
that will accrue to the private entity as a result of its ownership
or use of the property are merely incidental when compared to the benefits
that will accrue to the public or (ii) is otherwise predominantly for
a private purpose.
This suggestion also
included language amending the same code section. Delegate Suit stated
that the language might create difficulty in situations where eminent
domain was being used to clear title. Mr. Dicks stated that the definition
used in the suggested amendment would be too broad. Mr. Abraham suggested
that the work
group consider removing the word "predominantly" from the suggested
language as it would cause confusion and uncertainty in individual cases.
Ms. Rubin asserted that the work group should move forward on this issue.
Mr. Broadway maintained that perhaps the work group should not pursue
the language.
Suggestion:
Prohibit the use of eminent domain for the purpose of receiving additional
tax revenue.
This suggestion,
which included language for amending § 15.2-1900, was offered jointly
by the Virginia Municipal League and the Virginia Association of Counties.
Mr. Cook stated that the work group must be concerned about placing too
many restrictions on public use. He stated, for example, that a utility
use of eminent domain was a public purpose. Mr. Waldo stated that the
suggestion was moving the work group in the right direction. Mr. Dicks
maintained that a rewrite of the Housing Authority Law contained in Title
36 of the Code of Virginia could be a vehicle for clearing up many problems
and confusing provisions related to eminent domain authority and the use
of that authority.
Suggestion:
Provide that whenever property is condemned and will be used by a private
party, the condemnor must establish by clear and convincing evidence
that the condemnation of the property is necessary.
Mr. Waldo stated
that the current proof of standard is working fine and that this suggestion
should be taken off of the table.
The work group continued to review the items under the Public Use Definition/Eminent
Domain Authority heading without additional comment. Delegate Suit concluded
by asking that members develop a definition of "public use"
to be reviewed by the work group at its last meeting in October 2005.
Accountability
Suggestion:
Consider development of accountability mechanism to ensure that the
private entity ultimately develops the property that was acquired through
eminent domain as originally planned.
Mr. Waldo stated
that this issue was better suited to a case by case basis as it affects
very few people.
Suggestion:
Require the commencement of a redevelopment project occur within a stated
period of time after the property has been declared blighted. This would
eliminate the indefinite cloud over the property.
Discussion among
the members on this suggestion centered on previous legislation sponsored
by former Delegate and Commission Chair Thelma Drake. This legislation
would have required action to be taken by the condemning authority within
five years of the property in question being declared blighted. It was
noted that the provisions applied only to redevelopment districts and
did not include conservation districts.
Condemnation Procedure
Suggestion:
Expand the amendments made to § 25.1-203 by HB 1820 so that its
provisions apply to Virginia Department of Transportation (VDOT). These
amendments modified the provisions associated with the condemnor's entry
onto property regarding notice and damage awards.
Ms. Rubin noted that
the VDOT had been left out of the right-of-entry provisions of the previous
legislation.
Suggestion:
Amend relevant section of Title 25.1 to provide for a regular juror
selection process in condemnation cases rather than the present system
of either commissioners or the selection of jurors from a small, previously
selected list of individuals.
Mr. Waldo noted that
most parties to a condemnation action want a regular jury selection process
and stated that proceedings should be treated like a felony case.
Compensation
Suggestion:
Compensation should include business losses.
Discussion among
the members concluded that compensation of business losses was an appraisal
issue. It was suggested that it would be helpful to have the professional
licensing entity provide background on the standards of practice for the
profession and how those standards may relate to business losses in an
appraisal done for a condemnation proceeding. Mr. Broadway indicated that
he would be willing to work on developing this issue.
Nancy McCord, of
the Virginia Property Right Coalition addressed the work group in support
of changes to the condemnation procedure. The organization supports a
constitutional amendment with "public use" defined. Ms. McCord
noted that the property owner in a condemnation action should be reimbursed
for attorney fees, because the owner is not receiving full fair market
value for their property. Ms. McCord stated that HB 1821, which passed
during the 2005 Session, was the first time to her knowledge that a provision
was included for the reimbursement of a condemnee's expenses. This legislation
provides that if an owner is awarded an amount that is at least 30% greater
than the amount offered, then the court may award the owner other expenses,
including appraisal, engineering, and expert witness fees. She stated
that the award of attorney fees should not be left to the discretion of
judges because appeals in condemnation actions may last many years and
attorney fees mount up over time. Ms. McCord also requested that the work
group pursue the use of mediation in condemnation proceedings, stating
that Utah and Florida are states that use mediation with a 95% success
rate with results that are timely and equitable.
PUBLIC COMMENT
Elizabeth Waycoft,
of Patrick County, stated that she had two gas lines going through her
property, stating that when the highway was widened the home owners were
not reimbursed in a timely manner.
Randolph Grey, of
the City of Roanoke, indicated that he was a business owner and supported
reimbursement for business losses. He also requested that the work group
look into an appropriate definition of "blight."
After public comment,
Delegate Suit asked that the following items be included in the discussion
at the October 2005 meeting with an objective of developing a consensus
on the language that will be recommended to the full Commission:
- Mediation
- Removal of Section
1821 language
- Definition of
blight
- Timelines of reimbursement
FUTURE MEETINGS
The work group met
on Thursday October 20, 2005. The agenda and other materials may be found
on the Commission website. The Virginia Housing Committee will meet on
November 15, 2005.
Chairman:
The Hon. Terrie
Suit
For information,
contact:
Amigo Wade and
Elizabeth Palen
DLS Staff
Website:
http://dls.state.va.us/houscomm.htm
|