Virginia Code 25.1-230.1: (See Editor’s Note) Lost access and lost profits.
A. For purposes of this section:
Terms Used In Virginia Code 25.1-230.1
- Body determining just compensation: means a panel of commissioners empaneled pursuant to § Virginia Code 25.1-100
- farm: means any person that obtains at least 51 percent of its annual gross income from agricultural operations and produces the agricultural waste used as feedstock for the waste-to-energy technology, (ii) "agricultural waste" means biomass waste materials capable of decomposition that are produced from the raising of plants and animals during agricultural operations, including animal manures, bedding, plant stalks, hulls, and vegetable matter, and (iii) "waste-to-energy technology" means any technology, including but not limited to a methane digester, that converts agricultural waste into gas, steam, or heat that is used to generate electricity on-site. See Virginia Code 1-222.1
- Land: means real estate and all rights and appurtenances thereto, together with the structures and other improvements thereon, and any right, title, interest, estate or claim in or to real estate. See Virginia Code 25.1-100
- Lost access: means a change of vehicular or pedestrian access to property that is caused by a public use project for which the eminent domain power has been exercised against the property and which results in a diminution in the value of the property. See Virginia Code 25.1-100
- Lost profits: means a loss of profits or expected profits suffered by a business or farm operation as a result of a taking or damaging of the property on which the business or farm operation is 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. See Virginia Code 25.1-100
- 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. See Virginia Code 25.1-100
- Person: means any individual; firm; cooperative; association; corporation; limited liability company; trust; business trust; syndicate; partnership; limited liability partnership; joint venture; receiver; trustee in bankruptcy or any other person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise; club, society or other group or combination acting as a unit; the Commonwealth or any department, agency or instrumentality thereof; any city, county, town, or other political subdivision or any department, agency or instrumentality thereof; or any interstate body to which the Commonwealth is a party. See Virginia Code 25.1-100
- Property: means land and personal property, and any right, title, interest, estate or claim in or to such property. See Virginia Code 25.1-100
- State agency: means any (i) department, agency or instrumentality of the Commonwealth; (ii) public authority, municipal corporation, local governmental unit or political subdivision of the Commonwealth or any department, agency or instrumentality thereof; (iii) person who has the authority to acquire property by eminent domain under state law; or (iv) two or more of the aforementioned that carry out projects that cause persons to be displaced. See Virginia Code 25.1-100
“Business” shall have the same meaning as set forth in § 25.1-400.
“Farm operation” shall have the same meaning as set forth in § 25.1-400.
B. The body determining just compensation shall include in its determination of damage to the residue any loss in market value of the remaining property from lost access. The body determining just compensation shall ascertain any reduction in value for lost access, if any, that may accrue to the residue as provided in subsection A of § 25.1-230. The body determining just compensation shall ensure that any compensation awarded for lost access shall not be duplicated in the compensation otherwise awarded to the owner of the property taken or damaged.
C. The body determining just compensation shall include in its determination of just compensation lost profits to the owner of a business or farm operation conducted on the property taken or damaged if the owner or the business or farm operation proves with reasonable certainty the amount of the loss and that the loss is directly and proximately caused by the taking or damaging of the property through the exercise of eminent domain and the following conditions are met:
1. The loss cannot be reasonably prevented by a relocation of the business or farm operation, or by taking steps and adopting procedures that a reasonably prudent person would take and adopt;
2. The loss will not be included in relocation assistance provided pursuant to Chapter 4 (§ 25.1-400 et seq.);
3. Compensation for the loss will not be duplicated in the compensation otherwise awarded to the owner of the property taken or damaged; and
4. The loss shall be determined in accordance with generally accepted accounting principles applied on a consistent basis.
D. Any and all liability for lost access shall be established and made a part of the award of just compensation for damage to the residue of the property taken or damaged, and any and all liability for lost profits shall be set forth specifically in the award. In a partial acquisition, in the event that the owner of the property being condemned and the owner of the business or farm operation claiming lost profits are the same, then any enhancement or peculiar benefit shall be offset against both damage to the residue and lost profits.
E. It shall not be a requirement of any bona fide effort to purchase the property pursuant to § 25.1-204 or 33.2-1001 that the petitioner include any liability for lost profits in a written offer to purchase the property.
F. 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 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 condemnation proceeding. Additionally, unless already named in the petition for condemnation, the owner of the 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 chapter. Proceedings to adjudicate lost profits may, upon motion of the owner of the business or farm operation, be bifurcated from the other proceedings to determine just compensation, but such bifurcation shall not prevent the entry of an order confirming indefeasible title to the land interests acquired by the condemning authority.
G. Nothing in this section is intended to provide for compensation for inverse condemnation claims for lost profits or lost access for temporary interference with or interruption of a business or farm operation where the impact to the property is for a period of fewer than seven days.
2012, cc. 699, 719; 2015, c. 642; 2018, c. 702; 2019, c. 788; 2022, cc. 734, 735.