SB 666 — Eminent domain; redefines lost access and lost profits.

RECONVENED SESSION REENROLLED VIRGINIA ACTS OF ASSEMBLY --–– 2022 RECONVENED SESSION CHAPTER 734R An Act to amend and reenact §§ 25.1-100 and 25.1-230.1 of the Code of Virginia, relating to eminent domain;

E N [S 666] Approved AprilR 27,O 20221. Be it enacted by the General Assembly of Virginia:

1.

L As used in this title, unless the context requires a different meaning:

L "Appraisal" means a written statement independently and impartially prepared by a qualified E appraiser setting forth an opinion of defined value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market information.

§D 25.1-227.2,"Body jurydetermining selectedjust compensation" means a panel of commissioners empaneled pursuant to jury is appointed or empaneled.suant to § 25.1-229, or the court if neither a panel of commissioners nor a jury"Court" ismeans appointedthe orcourt empaneled.having jurisdiction as provided in § 25.1-201.

"Court" means the court having jurisdiction as provided in § 25.1-201.

S "Land" means real estate and all rights and appurtenances thereto, together with the structuresstructu6es and otheroth"Locality" improvementsor thereon,"local andgovernment" anymeans right,a title,county, interest,city, estate or claimtown, inas orthe tocontext realmay estate.require.te.

"Locality" or "local government" means a county, city, or town, as the context may require.

"Lost profits" means a loss of business profits, as defined in § 25.1-230.1, that is suffered or expected profits suffered by a business or farm operation as a result of a taking or damaging of the property on which a the business or farm operation is located, subject to adjustment using generally accepted accounting principles consistently applied, from a business or farm operation operated for a period not to exceed three years from the later of (i) the date of valuation or (ii) the date the state agency or its contractor prevents the owner from using the land or any of the owner's other property rights are taken.

(a) the business is owned by the owner of the property taken, or by a tenant whose leasehold interest grants the tenant exclusive possession of substantially all the property taken, or (b) the farm operation is operated by the owner of the property taken, or by a tenant using for a farm operation the property taken, to the extent that the loss is determined and proven pursuant to or damaged, and bears the burden of proving lost profits in accordance with the requirements of subsection C of § 25.1-230.1.

"Owner" means any person who owns property, provided that the person's ownership of the property is of record in the land records of the clerk's office of the circuit court of the county or city where the property is located.

trustee in bankruptcy or any other person acting in a fiduciary or representative capacity, whether appointed by a courtany department, agency or otherwise;instrumentality thereof;

club, society or other group or combination acting as a unit;

the Commonwealth or any department, agency or instrumentality thereof;

or any interstate body to which the of 3 Commonwealth is a party.

"Petitioner" or "condemnor" means any person who possesses the power to exercise the right of of 3 eminent domain and who seeks to exercise such power.

In any proceeding in which the owner of a business or farm operation seeks to recover lost profits, the owner shall provide the condemning authority with all federal income tax returns, if any, relating to the business or farm operation for which the owner seeks lost profits for a period of three years prior to the later of (i) the valuation date or (ii) the date the state agency or its contractor prevents the owner from using the land or any of the owner's other property rights are taken, and for each year of 3 thereafter during the pendency of the condemnation proceeding.

The condemning authority shall not divulge the information provided pursuant to this subsection except in connection with the condemnationcondRmnation proceeding.business or farm operation may intervene in the proceeding by filing a motion to intervene accompanied by a petition for intervention setting forth the basis for the lost profits claim under this chEpter.

Additionally,Proceedings unlessto alreadyadjudicate namedlost inprofits themay, petitionupon formotion condemnation,of the owner of the business or farm operationoperation, maywill intervenenot inexpire theuntil proceedingone byyear filingor alater motionfrom tothe intervenedate accompaniedof bythe afiling of the petition for interventioncondemnation, settingbut forthsuch bifurcation shall not prevent the basisentry forof an order confirming indefeasible title to the lostland profitsinterests claimacquired underby thisthe chapter.condemning authority.

ofO 3for Proceedingslost toprofits adjudicateor lost profitsaccess may,for upontemporary motioninterference ofwith theor ownerinterruption of thea business oroL farm operation,operation be bifurcated from the other proceedingsthan tothat determinewhich justis compensationdirectly ifand theproximately lostcaused profitsby claima periodtaking willor notdamaging expireof untilproperty onethrough year or later from the dateexercise of theeminent filingdomain ofwhere the petitionimpact forto condemnation,the butproperty suchis bifurcationfor shalla notperiod prevent the entry of anfewer orderthan confirmingseven indefeasibledays. title to the land interests acquired by the condemning authority.

G.E petitioner filed prior to July 1, 2022, (i) a petition in condemnation pursuant to Chapter 2 D (§ 25.1-200 et seq.) of Title 25.1 of the Code of Virginia or (ii) a certificate of take or deposit pursuant to Chapter 3 (§ 25.1-300 et seq.) of Title 25.1 or Title 33.2 of the Code of Virginia.

NothingAny in(i) this section is intended to provide for compensation for inverse condemnation claims for lost profits or lost(ii) accessshall forbe temporarygoverned interference with or interruption of a business or farm operation other than that which is directly and proximately caused by athe takingprovisions or damaging of property through the exerciseCode of eminentVirginia domainin whereeffect theprior impact to theJuly property1,se is2022. for a period of fewer than seven days.

2.B R 2

That the provisions of this act shall not apply to condemnation proceedings in which the petitioner filed prior to July 1, 2022, (i) a petition in condemnation pursuant to Chapter 2 (§ 25.1-200 et seq.) of Title 25.1 of the Code of Virginia or (ii) a certificate of take or deposit pursuant to Chapter 3 (§ 25.1-300 et seq.) of Title 25.1 or Title 33.2 of the Code of Virginia.

Any condemnation proceedings in which the petitioner filed a petition or certificate described in clause (i) or (ii) shall be governed by the provisions of the Code of Virginia in effect prior to July 1, 2022.