[author: Timothy R. Hughes, Esquire]
On November 6, Virginia voted by a nearly 3-1 margin to amend the state constitution and drastically change eminent domain law. The constitutional amendment may ultimately be the source of quite a few unintended consequences in the future.
The Existing Law
The Constitution of Virginia, like the United States Constitution, already barred governmental entities from taking private property for public use without just compensation. The Virginia Constitution previously stated that the General Assembly would define “public uses.” Existing statutes passed by the General Assembly made clear:
No more private property could be taken than was necessary to achieve the stated public use; and
Takings were not permitted for matters where the primary purpose was private financial gain, private benefit, an increase in tax base or tax revenues, an increase in employment, or economic development.
The Constitutional Changes
The Constitutional Amendment enshrined some existing statutory elements with constitutional level fiat. The Amendment also added some new elements as well.
Public use is no longer to be defined by the General Assembly, and the private use language above was added to the Virginia Constitution;
No more private property could be taken than was necessary to achieve the stated public use, adding this language to the Virginia Constitution;
The Virginia Constitution now places the burden firmly on the condemnor to prove public use with no presumption;
The language now bars not just the “taking” of property without compensation, but also the “damaging” of property; and
“Just compensation” must include not just the value of property taken, but also lost profits, lost access, and damages to the residue.
What are the Impacts?
First, it likely just got a lot harder and more expensive to solve the transportation problems in Northern Virginia. Acquisition of right of way access is a major cost component in our road construction expenses. Forced to pay for lost profits and residual damages, VDOT’s current funding woes are likely only made worse by this change.
The change to allow fights over “damages” to property triggering a taking is likely to spawn substantial and unpredictable litigation. As with the residual damages, this will add uncertainty to land acquisition costs for right of way and make VDOT projects even harder to advance. The types of claimants asserting that their property is “damaged” by governmental action are probably only limited by the creativity of their lawyers.
Finally, changing this amendment in the future will be very hard. Passing a constitutional amendment requires passage through the General Assembly twice with identical language and an intervening election between the two votes. That effort must be followed by adoption by the voters. This amendment was mostly ignored by the business community who advocated en masse against the passage on the second go round, only to be rebuffed by legislators who did not want to explain their positive votes the first time.
We will have to see in the future whether the amendment imposes even further funding burdens on our transportation infrastructure. One thing is certain – if there are problems with this change, they will be virtually impossible to fix after passage of this amendment.
Timothy R. Hughes is a Shareholder in the law firm of Bean, Kinney & Korman in Arlington, Virginia and lead editor of the firm’s blog at http://www.valanduseconstructionlaw.com. He represents clients in construction and commercial litigation, and corporate, contracts, and general business matters. He can be reached by e-mail at email@example.com and by phone at 703-525-4000.