Division of Legislative Services > Legislative Record > 2005

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.


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.


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.


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.


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.


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


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.

The Hon. Terrie Suit

For information, contact:
Amigo Wade and Elizabeth Palen
DLS Staff



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