Eminent Domain Reform: The ‘Virginia Way’
45 Real Estate Law Journal 290, Winter 2016
80 Pages Posted: 24 Jan 2017
Date Written: 2016
The 2013 Eminent Domain Amendment to the Constitution of Virginia was approved overwhelmingly by voters in a November 2012 referendum passed largely in response to Kelo v. City of New London, 543 U.S. 1135 (2005). The Amendment was directed principally at preventing the eminent domain power from being used for economic development, but also contained other provisions adjusting the balance between government and private property owners.
Some have suggested that the Amendment effected a rejection of prior Virginia eminent domain law defining public use and necessity, discarding longstanding, widely-accepted understandings of public use and necessity, and ushering in a new era of heightened judicial scrutiny, largely because the amendment declares private property to be a “fundamental right.” To the contrary, although the Amendment contains explicitly new constitutional limitations as to what is not a public use (drawn largely from Virginia court precedents), the text of the amendment does not impose any new affirmative definitions of “public use” or necessity, and the legislative history anticipates that Virginia Supreme Court “public use” precedents and General Assembly definitions will continue to be applicable, except as modified by the newly adopted non-public use provisions. And there is no evidence that legislators ever envisioned, let alone contemplated, as some now contend, that the amendment requires the “public use” for a project to be justified by a compelling state interest, or subjected to strict judicial scrutiny in terms of its necessity, or narrow tailoring as to impose the least possible impact on any given property owner. The 2013 Amendment makes one element of the concept of public necessity ― the quantity of land proposed to be taken for the stated public use ― a matter for judicial determination. It also contains provisions allowing for recovery of lost profits and lost access, but only as defined by the General Assembly. And it explicitly places the burden of proof on the issue of “public use” with the condemnor, without any presumption that it is a public use. While the foregoing provisions reflect changes in the balance between governmental power and landowner rights, the 2013 Amendment’s primary importance is more political than legal. Its adoption reflects Virginia’s longstanding tradition of individual rights and undoubtedly serves as reaffirmation and strong policy statement with regard to individual property rights; indeed it is the culmination in Virginia of the political firestorm ignited by Kelo, reminding Virginia’s citizens, various bodies with the power of eminent domain, and the General Assembly itself, that Virginia’s just compensation clause has never been in the past and cannot be in the future construed to endorse the use of eminent domain for economic development in the broad manner approved in the Kelo decision.
Keywords: Eminent Domain, Property Law, Kelo, Fundamental Right; Fifth Amendment, Fourteenth Amendment, Public Policy
JEL Classification: H8, H13, H70, K11, K39, K41, Z18
Suggested Citation: Suggested Citation