A. The owner of property that the Commissioner of Highways has entered and taken possession of, or taken defeasible title of, pursuant to the provisions of this chapter may petition the circuit court of the locality in which the greater portion of the property lies for the appointment of commissioners or the empanelment of a jury to determine just compensation for the property taken and damage done, if any, to such property, as provided in Chapter 2 (§ 25.1-200 et seq.) of Title 25.1 if (i) the owner and the Commissioner of Highways have not reached an agreement as to compensation and damages, if any, and (ii) the Commissioner of Highways:
1. Has not completed the construction of the contemplated improvements upon the property after a reasonable time for such construction has elapsed; or
2. Has not instituted condemnation proceedings within: a. Sixty days after completion of the construction of the contemplated improvements upon the property; b. One hundred days after the Commissioner of Highways has entered upon and taken possession of the property, regardless of whether the construction of the contemplated improvements has been completed; or c. One hundred days after the recordation of a certificate.
B. A copy of such petition shall be served on the Commissioner of Highways at least 10 days before it is filed in the court. The Commissioner of Highways shall file an answer within five days after the filing of the petition. If the courts finds that the conditions prerequisite for such appointment as provided in subsection A are satisfied, the court shall appoint commissioners or empanel a jury, as requested in the owner’s petition, to ascertain the amount of compensation to be paid for the property taken and damages done, if any. The proceedings shall thereafter be governed by the procedures prescribed in Chapter 2 (§ 25.1-200 et seq.) of Title 25.1 insofar as they may be applicable, except that the owner shall have the burden of proceeding with the evidence as to just compensation. The Commissioner of Highways shall reimburse the owner for his fees and costs, including filing fees and attorney fees, incurred in filing the owner’s petition.