Moreover, it is "well- established that sales to potential condemnors are involuntary sales and as such cannot establish the fair market value of comparable property." Bajwa v. Sunoco, Inc., 329 F. Supp. 2d 726, 733 (E.D. Va. 2004). The court will grant MVP's motion to exclude evidence of amounts paid for easements on other properties.
f the consultation clause, especially in light of the savings provision, does not create an express statement that non-compliance with the consultation clause is a defense to this action at this stage."); Tamez v. Chertoff , 2009 WL 10693618, at *5 (S.D. Tex. Jan. 27, 2009) ("This Court previously held that ... the Government may properly file a condemnation action before compliance with the negotiation provisions of 8 U.S.C. § 1103(b), but may not receive possession prior to compliance."); United States v. 27.36 Acres of Land, More or Less , No. 7:18-CV-338, ECF No. 21, slip op. at 5 (S.D. Tex. Dec. 12, 2018) ("[W]hile failure to follow consultation procedures may delay possession, non-compliance with any consultation requirements is a not a defense against the condemnation itself under the Declaration of Takings Act.").Id. (quoting United States v. Certain Ints. in Prop. in Cascade Cty., Mont. , 163 F. Supp. 518, 524 (D. Mont. 1958) (quoting *1011 29A C.J.S. Eminent Domain § 224 )); seeBajwa v. Sunoco, Inc. , 329 F.Supp.2d 726, 732 (E.D. Va. 2004) ; Kerr v. Raney, 305 F.Supp. 1152, 1156 (W.D. Ark. 1969) ; see alsoUSG Pipeline Co. v. 1.74 Acres in Marion County, Tenn. , 1 F.Supp.2d 816, 824–25 (E.D.Tenn. 1998) (holding that making a monetary offer and demonstrating a desire to acquire easements by negotiation and settlement rather than by eminent domain to be more than sufficient to prove the condemnor made a bona fide effort); Thornton Dev. Auth. v. Upah , 640 F.Supp. 1071, 1075 (D. Colo. 1986) (finding that the Government's offer and rejection of a counteroffer from the property owner qualified as a reasonable effort).1.
Moreover, it is "well-established that sales to potential condemnors are involuntary sales and as such cannot establish the fair market value of comparable property." Bajwa v. Sunoco, Inc., 329 F. Supp. 2d 726, 733 (E.D. Va. 2004). The court will grant MVP's motion to exclude evidence of amounts paid for easements on other properties.
"It is sufficient that negotiations proceed far enough to indicate that an agreement is impossible, and, where it is apparent that the parties cannot agree on the amount to be paid, a formal effort to agree is not necessary." County of Cascade, 163 F.Supp. at 524 (quoting 29A C.J.S. Eminent Domain § 224); see Bajwa v. Sunoco, Inc., 329 F.Supp.2d 726, 732 (E.D.Va. 2004); Raney, 305 F.Supp. at 1156 (W.D.Ark. 1969); see also USG Pipeline Co. v. 1.74 Acres in Marion County, Tenn., 1 F.Supp.2d 816, 824-25 (holding that making a monetary offer and demonstrating a desire to acquire easements by negotiation and settlement rather than by eminent domain to be more than sufficient to prove the condemnor made a bona fide effort); Thornton Dev. Auth. v. Upah, 640 F.Supp. 1071, 1075 (D.Colo. 1986) (finding that the Government's offer and rejection of a counteroffer from the property owner qualified as a reasonable effort). After an unsuccessful attempt has been made, ordinarily, a second effort is unnecessary.
The question of whether a "condemnation or other taking" occurred is controlled by state law. Bajwa v. Sunoco, Inc., 329 F. Supp. 2d 726, 732 (E.D. Va. 2004) In Virginia, the condemnation process cannot begin without an attempt by the Commonwealth to purchase the property. Id. (citing Commonwealth Transp. Comm'r of Va. v. Klotz, Inc., 425 S.E.2d 508, 511 (Va. 1993)).
To support this portion of its argument, the MDOT references Bajwa v. Sunoco, Inc., in which a federal court held that "sales to potential condemnors are involuntary sales and as such cannot establish the fair market value of comparable property." 329 F. Supp. 2d 726, 733 (E.D. Va. 2004). A closer reading of Bajwa reveals, however, that the court's conclusion regarding the irrelevance of information of similarly situated property owners was limited to the evidence of the sale price of those properties.