§ 2.2. Eminent domain.

(a)

(1)

Generally. The city is hereby authorized to exercise the powers set forth in §§ 33.1-119 through 33.1-129 of the Code of Virginia as in force on the effective date of this Charter and as hereafter amended, relating to acquiring title and taking possession in eminent domain proceedings, and to acquire by condemnation proceedings lands, buildings, structures, and personal property or any interest, right, easement or estate therein, of any person or corporation, for its purposes whenever, in the opinion of the council, a public necessity exists therefor, which shall be expressed in the resolution or ordinance directing such acquisition, whether or not such lands, buildings, structures, or personal property or interest, right, easement, or estate has already been devoted to a public use; provided, however, that the provisions of the Code of Virginia shall apply as to any property owned by a corporation possessing the power of eminent domain that may be sought to be taken by condemnation under the provisions of this act, and whenever the city cannot agree on terms of purchase or settlement with the owners of the subject of such acquisition because of incapacity of such owner, or because of the inability to agree on the compensation to be paid or other terms of settlement or purchase, or because the owner or some one of the owners is a nonresident of the state and cannot with reasonable diligence be found in the state or is unknown.

(2)

Certificates issued pursuant to such eminent domain may be issued by the city council, signed by the city manager, and countersigned by the city treasurer. Such certificates shall have the same effect as certificates issued by the State Highway Commissioner under the aforesaid sections and may be issued in any case in which the city proposes to acquire property of any kind by the exercise of its powers of eminent domain for any lawful public purpose, whether within or without the city.

(b)

(1)

Alternative procedures in condemnation. The city may, in exercising the right of eminent domain conferred by subsection (a), make use of the procedure prescribed by the general law of the Commonwealth, or may elect to proceed as hereinafter provided. In the latter event, the resolution or ordinance directing acquisition of any property, as set forth in the preceding section, shall provide therein in a lump sum the total funds necessary to compensate the owners thereof for such property to be acquired or damaged. Upon the adoption of such resolution or ordinance, the city may file a petition in the clerk's office of a court having jurisdiction of the subject, which shall be signed by the city manager and set forth the interest or estate to be taken in the property and the uses and purposes for which the property or the interest or estate therein is wanted, or when property is not to be taken but is likely to be damaged, the necessity for the work or improvement which will cause or is likely to cause such damage. There shall also be filed with the petition a plat of a survey of the property with a profile showing cuts and fills, trestles and bridges, if any, and a description of the property which, or an interest or estate in which, is sought to be taken or likely to be damaged and a memorandum showing names and residences of the owners of the property, if known, and showing also the quantity of property which, or an interest or estate in which, is sought to be taken or which will be or is likely to be damaged. There shall be filed also with said petition a notice directed to the owners and tenants of the property, if known, copies of which shall be served on such owners and tenants of the freehold of such property, if known. If the owner or tenant of the freehold is unknown or a nonresident of the state or cannot with reasonable diligence be found in the state, or if the residence of the owner or tenant is unknown, the owner or tenant may be proceeded against by order of publication which order, however, need not be published more than once a week for two successive weeks and shall be posted at a main entrance to the courthouse. The publication shall in all other respects conform to §§ 8.01-316, 8.01-317, and 8.01-319 of the Code of Virginia, as in effect on the effective date of this Charter or hereinafter modified or amended.

(2)

Upon the filing of said petition and the deposit of the funds provided by the council for the purpose in a bank to the credit of the court in such proceedings and the filing of a certificate of deposit therefor, the interest or estate of the owner of such property shall terminate and the title to such property or the interest or estate to be taken in such property shall be vested absolutely in the city and such owner shall have such interest or estate in the funds so deposited as the owner had in the property taken or damaged and all liens by deed of trust, judgment, or otherwise upon said property or estate shall be transferred to such funds and the city shall have the right to enter upon and take possession of such property for its uses and purposes and to construct its works or improvements. The clerk of the court in which such proceeding is instituted shall make and certify a copy of the petition, exhibits filed therewith, and orders, and deliver or transmit the same to the clerk of the court in which deeds are admitted to record, who shall record the same in the deed book and index them in the name of the person or persons who had the property before and in the name of the city, for which the clerk shall receive the same fees prescribed for recording a deed, which shall be paid by the city.

(3)

If the city and the owner of property so taken or damaged agree upon compensation therefor, upon filing such agreement in writing in the clerk's office of such court, the court or judge thereof in vacation shall make such distribution of such funds as to it may seem right, having due regard to the interest of all persons therein whether such interest be vested, contingent or otherwise, and to enable the court or judge to make a proper distribution of such money it may in its discretion direct inquiries to be taken by a special commissioner in order to ascertain what persons are entitled to such funds and in what proportions and may direct what notice shall be given to the making of such inquiries by such special commissioner.

(4)

If the city and the owner cannot agree upon the compensation for the property taken or damaged, if any, upon the filing of a memorandum in the clerk's office of said court to that effect, signed by either the city or the owner, the court shall appoint commissioners provided for in Chapter 2 (§ 25.1-200 et seq.) of Title 25.1 of the Code of Virginia or as provided for in subsection (a), and all proceedings thereafter shall be had as provided in Chapter 2 of Title 25.1 of the Code of Virginia or § 38.2-1025 and §§ 38.2-1040 through 38.2-1049, all as in effect on the effective date of this Charter or as hereafter modified, insofar as they are then applicable and are not inconsistent with the provisions of this and the preceding section, and the court shall order the deposit in bank to the credit of the court of such additional funds as appear to be necessary to cover the award of the commissioners or shall order the return to the city of such funds deposited that are not necessary to compensate such owners for property taken or damaged. The commissioners so appointed shall not consider improvements placed upon the property by the city subsequent to its taking nor the value thereof nor the enhancement of the value of said property by said improvements in making their award.

(5)

Unclaimed funds in condemnation cases. Whenever any money shall have remained for five years in the custody or under the control of any of the courts enumerated in subsection (a), in any condemnation proceeding instituted therein by the city, without any claim having been asserted thereto such court shall, where the amount is one hundred dollars ($100.00) or more, cause a publication to be made once a week for two successive weeks in a newspaper of general circulation published in the city, setting forth the amount of such money, the source from which it was derived and the proceeding in which it is held, and requiring all persons having any claim to said money to appear before said court within such time after the completion of the publication as the court may prescribe, and establish their claim. If the sum is less than one hundred dollars ($100.00), the court shall direct the same to be paid into the treasury of the city, and a proper receipt for the payment taken and filed among the records of the proceeding. If no person shall appear and show title in himself, the court shall order the money, after deducting therefrom the costs of such publication if such publication is made and any other proper charges, to be paid into the treasury of the city and a proper receipt for the payment to be taken and filed among the records of the proceeding. The city treasurer shall, in a book provided for the purpose, keep an account of all money thus paid into the city treasury, showing the amount thereof, when, by whom, and under what order it was paid, and the name of the court and, as far as practicable, a description of the suit or proceeding in which the order was made and, as far as known, the names of the parties entitled to said funds. Money thus paid into the treasury of the city shall be paid out on the order of the court having jurisdiction of the proceeding, to any person entitled thereto who has not asserted a claim therefor in the proceeding in which it was held, upon satisfactory proof that such person is entitled to such money. If such claim be established, the net amount thereof, after deducting costs and other proper charges, shall be paid to the claimant out of the treasury of the city on the warrant of the city auditor. No claim to such money shall be asserted after ten (10) years from the time when such court obtained control thereof; provided, however, if the person having such claim was an infant, insane, or imprisoned at the time the claim might have been presented or asserted by such person, claim to such money may be asserted within five (5) years after the removal of such disability.

(6)

In addition to city council, the school board established under this Charter shall have power to acquire by condemnation in accordance with general law land within or without the city, whether dwellings, yards, gardens or orchards, invaded or not, for school purposes not to exceed fifteen (15) acres for any one school when necessary.