“the incentive remains strong for the State to accurately calculate its tender, because if the amount ultimately allowed as just compensation—either by the commissioners’ report or by a jury verdict—exceeds the estimate initially paid into court, the landowner is entitled to payment of the excess plus ten percent interest from the date of the [condemnation] petition.”
How later courts described this case
- “the incentive remains strong for the State to accurately calculate its tender, because if the amount ultimately allowed as just compensation—either by the commissioners’ report or by a jury verdict—exceeds the estimate initially paid into court, the landowner is entitled to payment of the excess plus ten percent interest from the date of the [condemnation] petition.”
Written by the judges who cited it.
The opinion
Chief Justice Ketchum,
concurring:
I agree completely with the majority opinion. I write separately because, at trial, -the circuit court will be called upon to determine whether evidence of environmental contamination and remediation eosts will be admissible because they are relevant to the property’s fair market value.
Under our law the condemning agency is required to pay the landowner just compensation for the property. Just compensation is the price that the property would bring if it were offered for sale on the open market by someone who wanted to sell and was bought by someone who wanted to buy, both exercising prudence and intelligent judgment as to its value, and neither under any compulsion to buy or sell. 1 Every element which affects value and which would influence a prudent purchaser should be considered. 2
In other words, would a prudent buyer consider (1) that the property is contaminated (2) may need to be remediated and (3) the cost of remediation. Even if the contaminated property had been remediated, would a prudent buyer consider environmental stigma, i.e., an adverse effect on the market’s perception of the value of property containing an environmental risk even after clean-up costs have been expended or considered in estimating value. 3
Evidence of environmental contamination should be'treated “no differently than evidence of a leaky basement, a cracked foundation, or a dilapidated roof: in each case, if the damage and the attendant costs of repair would influence a prudent purchaser in determining how much to pay for the property, then evidence of such damage and repair costs is relevant to fair market value and therefore admissible in condemnation proceedings.” 4
Under our condemnation statute the issue is fair market value on the date of taking (the date the condemnation was filed). 5 Our condemnation statutes do not contemplate determining who contaminated the property or who is required to clean up the property. The single issue for the jury to determine is the fair market value of the property on the date the condemnation was filed.
We do not have a West Virginia Supreme Court case addressing contamination. My concurrence follows the majority view outlined in the leading case, 260 North Street LLC. 6 There is a minority view that usually requires the remediation costs to be es-crowed until the condemnation is remediat-ed. 7 However, I suspect the Department of Transportation will remediate the property or indemnify the landowner before the trial when the property is valued as to the date of its taking by the Department of Transportation.
. Menis E. Ketchum, West Virginia Pattern Jury Instructions, § 1204 Eminent Domain (2016); W.Va. Dept. of Highways v. Berwind Land Co., 167 W.Va. 726, 732 , 280 S.E.2d 609, 614 (1981); W.Va. Dept. of Transportation v. Western Pocahontas Properties, 236 W.Va. 50, 61-62 , 777 S.E.2d 619, 630-31 (2015).
. Western Pocahontas Properties, 236 W.Va. at 62-63 , 777 S.E.2d at 631-32 ,
. Richard J. Roddewig, Classifying the Level of Risk and Stigma Affecting Contaminated Property, in Valuing Contaminated Properties, 219, 221 (2002).
. 260 N. 12th St., LLC v. State of Wisconsin Dep’t of Transp., 338 Wis.2d 34 , 808 N.W.2d 372, 382 (2011).
. West Virginia Pattern Jury Instructions, § 1203 Eminent Domain (2016); Syllabus Point 1, W.Va. Dep't of Highways v. Roda, 177 W.Va. 383 , 352 S.E.2d 134 (1986); Western Pocahontas Properties, 236 W.Va. at 63 , 777 S.E.2d at 632 .
. 260 North 12th Street, LLC, supra n. 4.
. Michael L. Stokes, Valuing Contaminated Property in Eminent Domain: A Critical Look at Some Recent Developments, 19 Tul Env. L.J. 221 (2006); Nichols on Eminent Domain, §§ 13.10 ■and§ 12.A.01 [7] [6],