15-1112 – State of West Virginia ex rel. West Virginia Department of Transportation, Division of
          Highways v. Honorable Robert A. Burnside and MCNB Bank and Trust Co.
                                                                                           FILED
                                                                                      June 13, 2016
                                                                                    released at 3:00 p.m.
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
Chief Justice Ketchum, concurring:                                                   OF WEST VIRGINIA



               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 costs 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

               1
                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).
               2
                   Western Pocahontas Properties, 236 W.Va. at 62-63, 777 S.E.2d at 631­
32.
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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,




             3
             Richard J. Roddewig, Classifying the Level of Risk and Stigma Affecting
Contaminated Property, in VALUING CONTAMINATED PROPERTIES, 219, 221 (2002).
             4
              260 N. 12th St., LLC v. State of Wisconsin Dep’t of Transp., 808 N.W.2d
372, 382 (Wis. 2011).
             5
              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.
                                           2

260 North Street LLC.6 There is a minority view that usually requires the remediation

costs to be escrowed until the condemnation is remediated.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.




              6
                  260 North 12th Street, LLC, supra n. 4.
              7
              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].
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